Nursing home coronavirus deaths and guardianship scandals prompt new recommendations on elder law
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The ABA House of Delegates on Monday approved a pair of resolutions focused on the needs of older Americans.
Resolution 602, sponsored by the Commission on Law and Aging, the Real Estate, Trusts and Estates Section, and the Seasoned Lawyers Division, adopts the recommendations of the Fourth National Guardianship Summit and encourages all legislators and policy makers to incorporate them when improving guardianship laws. , policies and practices.
David English, Representative of the Property, Trusts and Estates Section in the House of Delegates, introduced the resolution. He said while many people have become more aware of guardianship issues due to Britney Spears’ recent case, this is not an isolated incident.
“We’ve been working or dealing with guardianship issues for several decades,” said English, who is also a past chair of the Real Estate, Trusts and Estates Law Section and the Commission on Law and Aging. “As part of this process, approximately every 10 years, a national conference will be held with many participants from many ABA entities, among other groups, to discuss guardianship and make recommendations on how to improve the system.”
ABA members and staff were among 125 advocates and experts who met virtually at the Fourth National Guardianship Summit in May 2021. The association also participated in and adopted recommendations from three previous summits in 1988, 2001 and 2011.
The 22 recommendations from the last summit fall into six areas: rights-based guardianships; supported decision making; limited guardianship, protective devices and detours; guardianship monitoring and the fight against abuse; fiduciary responsibilities and tensions; and guardianship court improvement programmes.
They include the following:
• States and courts must ensure that all legal proceedings that may affect an adult’s rights include valid due process.
• State statutes, rules, policies and procedures should require courts to consider supported decision-making as an alternative to guardianship before and after its imposition.
• States should create guardianship diversion programs that facilitate alternatives to guardianship and therefore reduce the likelihood of unnecessary guardianships being granted.
• States and courts should increase the safety and well-being of adults in guardianship by establishing a person-centred post-appointment monitoring system.
• States should fund an agency to implement and oversee the licensing or certification of court-appointed guardians as well as to monitor, train, and discipline these guardians.
• Congress should establish a guardianship court improvement program, modeled on the child protection court improvement program created in 1993.
Follow the ABA Journal’s coverage of the ABA’s 2022 Mid-Year Meeting here.
The House of Delegates passed a separate resolution in August 2020 that called on Congress to create and fund a Guardianship Court Improvement Program to support states’ efforts to strengthen their adult guardianship systems.
Jo Ann Engelhardt, who is also a representative for the Real Estate, Trusts and Estates Section in the House of Delegates, added that the Racial and Ethnic Diversity Caucus supports the resolution.
“It matters because so often the burden of an ineffective guardianship system can weigh harder on our diverse communities,” said Engelhardt, who is a member of the caucus.
As of mid-September, a dozen states had enacted 24 amendments to their laws that relate to these recommendations, according to the report that accompanies Resolution 602. Congress is also considering reforms, including through the guardianship responsibility.
Information about care home owners and chains should be more accessible, House says
The House of Delegates on Monday approved another resolution aimed at improving transparency and accountability in the ownership and management of nursing homes.
Resolution 601, sponsored by the Commission on Law and Aging, the Health Law Section, and the Division of Senior Counsel, urges Congress and the Centers for Medicare and Medicaid Services to create a nationwide system that audits reports on ownership of nursing homes to ensure disclosure of all owners. , including parent, management and real estate companies. It also asks them to focus more on care home chains by allowing the CMS website that compares care homes to include information about facilities owned by the same companies.
Louraine Arkfeld, representative for the Senior Lawyers Division in the House of Delegates, spoke in favor of the resolution. She argued that “making the decision to place your loved one, a vulnerable loved one, in a nursing home is a difficult decision, even under the best of circumstances.”
Arkfeld, who is also a former chairman of the Commission on Law and Aging and the Senior Lawyers Division, continued, “So wouldn’t you want to know who owns the nursing home? Who really runs the retirement home? Who really controls the decisions, the care decisions, that are going to be made? »
According to a study by the Kaiser Family Foundation, cited in the report that accompanies the resolution, 69% of retirement homes were owned by for-profit companies in 2016. In the same year, 24% operated as non-profit establishments, while 7% were government owned.
The study further shows that more than half of nursing homes were owned or leased by corporate chains with two or more facilities.
“Unfortunately, the pandemic has shown us, often in quite painful ways, how precarious the care and safety of our loved ones can be in nursing homes,” Arkfeld added. “These increasingly complex structures with their disassembly from nursing home ownership and operations have been shown to negatively affect a wide range of quality measures.”
In November 2019, Senator Elizabeth Warren, a Massachusetts Democrat, and two other lawmakers sent letters to the Carlyle Group, Formation Capital, Fillmore Capital Partners and Warburg Pincus, which have stakes in the retirement home industry. They also told the four private equity firms they were concerned about their interests in large, for-profit chains and asked for more information about their investments.
Resolution 601 further urges state and territory legislatures and regulatory bodies to make proposed changes in retirement home ownership and management more transparent by establishing public comment periods or other processes before the transactions.
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