Elder Law Track Monday, June 13 Room 312 - 313 Elder Law Track Monday, June 13 Room 312-313 9:00 a.m. – 10:00 a.m. Surviving the Storm: A Discussion of the Laws Addressing Elder Abuse Chantelle Smith, Iowa Attorney General’s Office, Des Moines, Iowa Sara Scott, Iowa Department of Justice, Des Moines, Iowa 10:00 a.m. - 11:00 a.m. Elder Law Ethics (Part 1) Prof. Josephine Gittler, University of Iowa, Iowa City, Iowa Ronni Begleiter, BrownWinick, P.L.C., Des Moines, Iowa 11:15 a.m. - 12:15 p.m. Elder Law Ethics (Part 2) Prof. Josephine Gittler, University of Iowa, Iowa City, Iowa Ronni Begleiter, BrownWinick, P.L.C., Des Moines, Iowa 1:00 p.m. - 1:30 p.m. Changes for Special Needs Persons after July 1 Gregory Kenyon, Bradshaw Fowler Proctor & Fairgrave, P.C., Des Moines, Iowa Benjamin Chatman, SUMO Group Inc., Des Moines, Iowa 1:30 p.m. - 2:00 p.m. Guardianship Reform Task Force Update Prof. Josephine Gittler, University of Iowa, Iowa City, Iowa 2016 Annual Meeting Conference Elder Law Track Rooms 312 - 313 Surviving the Storm: A Discussion of the Laws Addressing Elder Abuse 9:00 a.m. - 10:00 a.m. Presented by Chantelle Smith Assistant Attorneys General Iowa Attorney General’s Office Hoover Building 1305 East Walnut Des Moines, IA 50319 Phone: 515-281-8811 Sara Scott Assistant Attorneys General Iowa Attorney General’s Office Hoover Building 1305 East Walnut Des Moines, IA 50319 MONDAY, JUNE 13 SURVIVING THE STORM: A DISCUSSION OF THE LAWS ADDRESSING ELDER ABUSE CHANTELLE SMITH AND SARA SCOTT ASSISTANT ATTORNEYS GENERAL IOWA ATTORNEY GENERAL’S OFFICE DEPENDENT ADULT ABUSE—CH. 235B ➤ 18 or older ➤ Dependency: . unable to protect the person’s own interests OR . unable to adequately perform or obtain services necessary to meet essential human needs . as a result of a physical or mental condition which requires assistance from another ➤ Caretaker—related or nonrelated with responsibility for protection, care, or custody; voluntary, contract, employment, or order ➤ Abuse determination and protective services—DHS ➤ Central registry to maintain DAA information 5 DEPENDENT ADULT ABUSE—CH. 235B ➤ Abuse allegation: . Willful or negligent acts or omissions • Physical injury or injury at a variance with history • Violation of ch. 709 (sex abuse) or §726.2 (incest) • Financial exploitation • Neglect . Self-neglect . Sexual exploitation—consensual or nonconsensual sexual conduct which includes, but is not limited to: • Kissing • Touching clothed or unclothed inner thigh, breast, groin, buttock, anus, pubes, or genitals (including pictures/video) • Sex act as defined by §702.17 • Does not include touching between spouses 6 DAA FACILITIES/PROGRAMS—CH. 235E ➤ 18 or older ➤ Dependency: . ability to perform the normal activities of daily living OR . to provide for the person’s own care or protection . is impaired, temporarily or permanently ➤ Caretaker—staff member of facility or program; voluntary, contract, employment, or court order ➤ Abuse determination by DIA ➤ Protective services implemented by DHS and 235B provisions apply, unless inconsistent ➤ Caretaker and employer notified of founded report; placed on central registry (per 235B) 7 DAA FACILITIES/PROGRAMS—CH. 235E ➤ Abuse allegation: . Willful misconduct, gross negligence, or reckless acts or omissions taking into account the totality of the circumstances • Physical injury or injury which is at a variance with history, unreasonable confinement or punishment, or assault which involves a breach of skill, care, and learning ordinarily exercised by a caretaker in similar circumstances • Violation of ch. 709 (sex abuse) or §726.2 (incest) • Financial exploitation (funds, assets, medications, or property) • Neglect 8 DAA FACILITIES/PROGRAMS—CH. 235E ➤ Abuse allegation, con’t.: . Sexual exploitation—within or outside of a facility or program; consensual or nonconsensual sexual conduct which includes, but is not limited to: • Kissing • Touching clothed or unclothed inner thigh, breast, groin, buttock, anus, pubes, or genitals (including pictures/video) • Sex act as defined by §702.17 • Does not include touching between spouses or partners in an “intimate relationship” 9 ELDER ABUSE RELIEF ACT—CH. 235F ➤ “Vulnerable elder” ➤ 60 years of age or older ➤ Unable to protect him or herself from elder abuse as a result of age or a mental or physical condition (but see Chapman v. Wilkinson, No. 15-0153, April 27, 2016) ➤ Modeled after ch. 236 (domestic abuse) ➤ Not required to be filed by elder; can be filed by “substitute petitioner” which includes family, household member, G/C, GAL, agent, or “other interested person” ➤ Temporary and emergency orders available; standard forms created by the judicial branch ➤ Broad relief including orders re: fund transfers and return ➤ Cannot use to avoid ch. 633 proceeding 10 ELDER ABUSE RELIEF ACT—CH. 235F ➤ Abuse allegation: . Physical injury or injury which is at a variance with history, unreasonable confinement or punishment, or assault (not by a 235E caretaker) . Violation of ch. 709 (sex abuse) or §726.2 (incest) . Neglect . Financial exploitation—a person who stands in a position of trust or confidence knowingly and by undue influence, deception, coercion, fraud, or extortion, obtains control over or otherwise uses or diverts the benefits, property, resources, belongings, or assets of the vulnerable elder 11 ELDER ABUSE RELIEF ACT—CH. 235F ➤ “Stands in a position of trust or confidence”: . Parent, spouse, adult child, or other relative . “Caretaker”—related or nonrelated with responsibility for protection, care, or custody; voluntary, contract, employment, or order; does not include facility/program staff . “Confidential relationship”—no banks or credit unions, attorneys, insurance agents or companies, or real estate agents or companies 12 SUBSTITUTE DECISION MAKER—CH. 231E ➤ Authority: . Provide substitute decision-making services to adults and their estates after their deaths when no private SDM is available . Provide assistance to public and private SDMs in securing necessary services for their wards, principals, clients, and decedents and to assist SDMs, wards, principals, clients, courts, and attorneys in the orderly and expeditious handling of all substitute decision-making proceedings . Establish local SDM offices to function as network of SDMs 13 SUBSTITUTE DECISION MAKER—CH. 231E ➤ 18 and older ➤ Resident of Iowa ➤ No suitable family or entity willing and able to serve ➤ Individual is incompetent ➤ G/C must be the least restrictive means ➤ Involuntary petitions only ➤ Represented by the AG ➤ Application for services required 14 SUBSTITUTE DECISION MAKER—CH. 231E ➤ Court–initiated or petition-initiated appointment . Notice must be provided prior to appointment . Must comply with staffing ratios (set by rule) ➤ OSDM-initiated or court-requested intervention . Appointed G/C not fulfilling duties or subject to removal; . Willing and qualified G/C not available; or . Best interests of the ward require 15 GDNSHP/CONSV—CH. 633 ➤ Fiduciary may be removed for failure to perform any duty imposed by law or otherwise disqualified (upon court’s own motion or “verified petition of a person interested in the estate”) ➤ Ward may petition to terminate g/c, but must wait six months if prior petition is denied ➤ Legitimate use of g/c for protection of person 17 POWERS OF ATTORNEY—CH. 633B ➤ Judicial relief—may be sought by principal, agent, g/c, health care POA, spouse, parent, descendant, beneficiary, gov’t agency, caregiver, a person asked to accept POA, a person designated by principal, or someone who demonstrates “sufficient interest in the principal’s welfare” ➤ Naming of guardian/conservator ➤ Agent duties—principal’s reasonable expectations/best interests, good faith, within scope of authority granted ➤ Agent acknowledgment of duties—optional ➤ Fundamental principle unchanged 18 DPOA HEALTH CARE—CH. 144B ➤ Priority over others including guardian unless the court finds the AIF to be behaving badly or DPOAHC says otherwise ➤ Can be revoked “at any time and in any manner by the principal is able to communicate the intent to revoke, without regard to mental or physical condition” 19 GENERAL CRIMINAL ➤ 155A.23 Obtaining ➤ 711 Robbery and Prescript. Drugs by Fraud Extortion ➤ 706 Conspiracy ➤ 713 Burglary ➤ 706A Ongoing Criminal ➤ 714 Theft and Fraud Conduct ➤ 715A Forgery and Fraud ➤ 706B Money Laundering ➤ 716 Mischief and ➤ 707 Homicide Trespass ➤ 708 Assault ➤ 724 Weapons ➤ 709 Sex Abuse ➤ 726 Wanton Neglect ➤ 710 Kidnapping ➤ 727.8 Eavesdropping ➤ 710A Human Trafficking ➤ 729A Hate Crimes 20 2016 Annual Meeting Conference Elder Law Track Rooms 312 - 313 Elder Law Ethics 10:00 a.m. - 11:00 a.m. (Part 1) 11:15 a.m. - 12:15 p.m. (Part 2) Presented by Prof. Josephine Gittler University of Iowa 412 Boyd Law Building Iowa City, IA 52242 Phone: 319-335-9046 Ronni Begleiter BrownWinick, P.L.C. 666 Grand Avenue Suite 2000 Ruan Center Des Moines, IA 50309 Phone: 515-242-2463 MONDAY, JUNE 13 2016 Annual Meeting Conference Elder Law Track Rooms 312 - 313 Changes for Special Needs Persons after July 1 1:00 p.m. - 1:30 p.m. Presented by Gregory Kenyon Bradshaw Fowler Proctor & Fairgrave, P.C. Benjamin Chatman Iowa Medicaid Trust Program PO Box 36565 Des Moines IA 50315 MONDAY, JUNE 13 Special Needs Trusts in Iowa Iowa State Bar Association Annual Meeting Elder Law Section Track Presented by Gregory L. Kenyon Bradshaw Fowler Proctor and Fairgrave, PC Des Moines, Iowa And Ben Chatman Iowa Medicaid Trust Program Before addressing the issue of special needs trust, this outline will provide a general overview of basic eligibility for medical assistance through the Medicaid program and will also provide a brief overview of planning alternatives. I. FINANCIAL NEED – BASIC ELIGIBILITY STANDARDS In order to plan for a person with disabilities it is critical that the program(s) under which the person is receiving benefits are confirmed as the eligibility standards vary. This outline will not go into any great detail in identifying the different programs, but will refer to some basic eligibility standards and a process to analyze planning alternatives. A. Resource Eligibility Some, but not all governmental programs base eligibility on financial need.