Financial Abuse of Elders & Other At Risk Adults – Part 9

March 25, 2014

by Lawyers With Purpose with No Comment SNT

Remedies For Elder Financial Abuse: State Criminal Prosecution

Although the Adult Protective Services (“APS”) statutes and programs in all 50 states and the District of Columbia recognize elder financial abuse as a reportable action, not all states specifically recognize elder financial abuse or exploitation as a distinct crime. In those states, however, basic criminal laws against theft, fraud, deception, larceny, forgery, and embezzlement can be invoked to prosecute elder financial abuse and seek restitution for the elder. The burden of proof for a conviction under such statutes is typically “beyond a reasonable doubt.”

Frequently, however, prosecutors refuse to pursue elder financial abuse actions for a variety of reasons, including (i) insufficient support of APS investigations by law enforcement personnel; (ii) limited budget resources; (iii) the effect of the incapacity or death of the victim on the ability to marshal sufficient probative evidence; and (iv) the refusal of the victim to cooperate with the development of the case.

Specially trained multi-disciplinary teams of criminal justice and social service professionals are increasingly being trained and deployed to enhance state efforts to prosecute elder financial abuse. Collaboration between and among the following disciplines promises to increase the effectiveness of state efforts to convict and punish the perpetrators of elder financial abuse: (i) APS,State Units on Aging, and Long-term Care Ombudsman Offices (“LTCO”); (ii) state and local law enforcement agencies; (iii) policy makers; (iv) financial and banking industries; (v) legal; (vi) social services agencies and social workers; (vii) medical and mental health care providers; (viii) public health officials; (ix) medical examiners and coroners; (x) state insurance, banking, and securities regulators; (xi) district Attorneys and state Attorneys General; and (xii) consumer protection agencies.

An example of a successful multi-disciplinary team established by the Georgia Department of Human Services Division of Aging Services, Forensic Special Investigations Unit, is the “At-Risk Adult Crime Tactics” (“ACT”) Specialist Program. Over 800 ACT specialists are working in Georgia, with promising results at the local, state and federal levels to combat and prosecute the abuse, neglect and exploitation (“ANE”) of at-risk adults. An ANE work group comprised of representatives of local agencies (e.g. county and city police departments, county District Attorney’s Offices), state agencies (e.g. the Georgia Bureau of Investigation, APS, LTCO, Medicaid, Inspector General, Georgia Association of Chiefs of Police, Georgia Criminal Justice Coordinating Council), and federal agencies (e.g. the FBI; the Offices of Inspector General of the Social Security Administration, HHS, FDA, VA; and the United States Attorney’s Office) meets bi-annually to identify and address obstacles to preventing and prosecuting crimes against at-risk adults. Recommended solutions include the following.

(a) Increased public education and awareness of ANE of at-risk adults.

(b) Mandatory training of criminal justice personnel at all levels (e.g. law enforcement, prosecutors, judges) on ANE of at-risk adults.

(d) Development and codification of evidence preservation procedures designed to enhance prosecution of ANE crimes against at-risk adults.

(e) Development of multi-disciplinary cooperation and collaboration between law enforcement and non-law enforcement government agencies to ensure equal protection for at-risk adult victims.

(f) Facilitation of information sharing between and among government agencies to support investigations and enforcement.

(g) Statutory changes to enable law enforcement to obtain financial records related to abuse and exploitation in a no-cost or low-cost manner.

(h) Development of funding resources to implement the foregoing recommendations.

The activities of the Georgia Department of Human Services Division of Aging Services to combat the societal plague of ANE of at-risk adults is documented in a recent public television production Elder Abuse: Hiding in Plain Sight (available at http://www.gpb.org/elder-abuse).

Part 10 of this series will explore the challenges of prosecuting interstate and international elder financial abuse schemes.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.

Playing “The Price Is Right!”

March 24, 2014

by Lawyers With Purpose with No Comment Legal Marketing Legal Technical

Our tri-annual retreat sparked a lot of discussion and creative thinking about the issues faced by many law firms, and one area that clearly causes a lot of heartburn is, simply, "How much?" What do you charge for your services, and which approach to pricing lends fair value to the firm and the customer alike?

Obviously, you first must make sure your fees are ethical. Whatever that means in your jurisdiction; you want to make sure that you can justify your fees ethically. Yet this is a very broad guideline, and not a particularly helpful way to set your prices. Here are a few of the common methods, along with some of the pros and cons.

Finger in the wind method – This is basing your pricing on what other people are doing in your area. It is not a bad idea to do that research, just so you can see what other people are doing and know that your prices are not way out of line. And if you are charging what everybody else is, if you are going with the herd, you’re going to be comfortable with the pricing. The downside is that, in your clients' minds, it is basic commodity pricing. In other words, they could go to you or the attorney down the street and the client will pretty much get the same thing. It is important to know what everybody else charges, but it is not a good idea to follow their lead.

Flat fee – This is a great way to charge clients, but if you base your fee on how much time you will take, then you could still run into problems. For example, let’s say you have a job that will take you three hours, and if you multiple your billing rate of, say, $250.00/hour by three hours, you decide you’re going to charge $750.00 for your service. Now, that will make you comfortable with the price because it’s based on an hourly rate and the amount of time that you estimate. The downside is, if you underestimate how much time the job will take, you will be underpaying yourself. And if you overestimate too many times, that can also be a problem, because you'll feel like you're overcharging your client, and that will eventually cost you clients. Another issue is that there are only so many hours in the day, and by using this approach you are not taking full advantage of flat fee billing and limiting your revenue based on the number of hours you work a case. One way to correct this is to estimate what it normally takes you to do a job, then build in a buffer to cover the times it might take longer. For example, you would start out estimating that a job will take you three hours, but you know what sometimes it takes you four or five, so you might average the time that it would take thus what the cost will be.

Value-base billing – What is the value of what you’re doing for the client? Let’s say you are saving a client $650,000 of their assets. Are you really only going to charge what everybody else is charging when they may not be able to get even close to the same result? If the attorney down the street is doing $2,000 for a trust, but you can do a trust a little bit differently and save $650,000, you are doing a huge service for the client, a service that the client could not get elsewhere, but doing a huge disservice to self by not charging enough. The great advantage of value-base billing is that you are giving a higher value to the clients; therefore, you can charge higher prices But if you are uncomfortable with the process and the different options available, then it will show. And your clients will not be willing to pay higher prices because your client is not not going to trust you.

Fee schedule – Whichever pricing model you choose, a fee schedule is important because it helps you avoid emotion-based pricing. Sometimes when we are talking with people, we hear a sad story or we see that the client doesn’t have a lot of assets, and we start to feel like social workers. We want to help as many people as possible, but the fee schedule will help you stick to the pricing. If you’ve done your fee schedule right and you're confident in your fees, it will help you reduce the feeling of needing to cut your fees, because you have built your fee schedule in such a way that you know the price is fair. You know that the price is worth what you’re doing. And also remember that, even though the client has a sob story or you feel sorry for them for one reason or another, you still have to do the work, and the work won't be any less because you feel sorry for the client.

On the LWP members web site, you can find our founder's estate planning fee schedule. You can use that as a guide, not necessarily for the amount that you might charge, but it’ll let you know the various services that his firm provides. That can help you decide whether or not you want to offer those or other services, and it’ll get you thinking about what you might be able to charge in your area.

Finally, you don’t want to miss our retreats. At our last retreat, we had a discussion about what happens if the client has a negative reaction to the fee – maybe doesn't want to pay that price or even tries to negotiate with you. After a great discussion, the consensus among our members was, bottom line, the price is the price. If you are confident in your price but the client resists, then you probably have a marketing problem. Bring in more people who are better able to see the value of what you are offering them. Adjust your marketing and bring in better prospects.

Aaron Miller, Legal Technical Trainer, Lawyers With Purupose

Can Veterans or Widows Receiving Service-Connected Disability Get Aid & Attendance?

March 20, 2014

by Lawyers With Purpose with No Comment Legal Technical VA

There are two different veterans benefits programs that provide tax-free income to veterans or their widow(er)s. Each of those programs can include a supplemental payment called Aid and Attendance. The question is, which one is your client eligible for and why does it matter?

When veterans have been injured while serving on active duty or have a resulting injury or disease because of their service (i.e. exposure to agent orange, post-traumatic stress disorder), they may be paid “compensation” for their loss. This is similar to payments in the private sector under Worker’s Compensation. The payment is determined based on the rating the veteran is awarded, which will be from 0% to 100% in increments of 10. The higher the rating, the more money the veteran receives. If the veteran has a rating of 100% or has been determined to be unemployable due to the service-connected injury, the veteran may receive additional income from the VA if the veteran is in need of regular assistance with activities of daily living (dressing, bathing, toileting, transferring, and eating). The additional money is called Special Monthly Compensation for Aid and Attendance. This is available to widows of veterans who are receiving, or could be eligible to receive, Death Indemnity Compensation (DIC).

Veterans who do not have service-connected disabilities may also receive tax-free income from the VA if they meet certain military, disability, and financial criteria. If the veteran served at least 90 days on active duty, one day of which came during a wartime period, and received a discharge greater than dishonorable, then the veteran is considered a “veteran” for the Improved Pension Program. In addition to the military requirements, the veteran must be disabled to receive Improved Pension, but the disability is due to factors not related to military service (i.e. a car accident, stroke, Alzheimer’s Disease, age). The VA defines “disabled” as being age 65 or above. Lastly, the veteran’s income and assets (to exclude a home, vehicles and personal property) must be under certain limits. Assuming the veteran qualifies under all standards, the VA will grant the veteran a monthly amount to bring the veteran’s income up to the VA’s definition of the poverty level (i.e. $12,652 per year for a single veteran or $16,569 for a veteran with one dependent, like a spouse). If the veteran needs the regular assistance of another person to help with activities of daily living, then the veteran can receive the Special Monthly Pension with Aid and Attendance, to increase the monthly amount paid by the VA (i.e. $21,107 per year for a single veteran and $25,022 for a veteran with one dependent). This benefit is available to widows of veterans as well, but the annual amounts payable are less.

When a client contacts you seeking the Aid and Attendance program, always ask if the client is receiving VA benefits for a service-connected disability. If so, and if the rating is 100%, unemployable, or the need for aid and attendance is related to the service-connected injury, then the veteran should seek aid and attendance under the service-connected compensation program. The payment will be higher than that of the Improved Pension program. Moreover, there are no income or asset limitations under the service-connected compensation program, which is usually the limiting factor of non-service-connected wartime veterans from being eligible for the Improved Pension with Aid and Attendance.

The Compensation and Improved Pension Programs are mutually exclusive. The claimant must choose one program or the other, or submit a claim for both and let the VA decide which would be more advantageous for the claimant. As the attorney, you can assist in speeding up the claims process by guiding the client in knowing which program would be best based on type of disability (service-connected or not), level of disability (100% or less), and income and asset levels.

The key to remember is that, whether the veteran or widow is eligible for either compensation or pension, both programs have a supplemental income benefit called Aid and Attendance. The claimant would decide under which program to apply for the supplemental payment.

Attorneys cannot charge to assist with a service-connected claim to increase benefits that would include aid and attendance because there has, presumably, been no adverse action. However, for pension claims, attorneys may assist and charge for fees related to estate planning and asset preservation that, by a result, creates financial eligibility for the Improved Pension Program. The lawyer cannot, however, charge to assist with preparation, presentation or prosecution of the application for benefits.

For more information on the VA Improved Pension Program, visit www.va.gov.

Victoria L. Collier is a Veteran and Certified Elder Law Attorney, Fellow of the National Academy of Elder Law Attorneys, Co-Founder of Lawyers With Purpose LLC, and author of “47 Secret Veterans’ Benefits for Seniors—Benefits You Have Earned … but Don’t Know About.”

Financial Abuse of Elders & Other At Risk Adults – Part Eight

March 18, 2014

by Lawyers With Purpose with No Comment SNT

Parts 6 and 7 of this series addressed the roles of Adult Protective Services and the Long-Term Care Ombudsman Programs in investigating and redressing alleged elder financial abuse. There are several other resources available to handle the myriad legal issues raised by this crime.

The Older Americans Act provides funding for state legal services programs designed to address the needs of elders. In the context of elder financial abuse, such programs can provide no-cost access to the justice system by offering advocacy, advice and legal representation to persons 60 years of age or older, including access to an attorney. Due to limited budgetary resources, these legal services programs accept only a small percentage of the cases referred to them. The staff of these programs also routinely present community education programs addressing topics of interest to elders, including consumer fraud and financial exploitation. This type of community education often helps prevent elder financial abuse from occurring.

Some states also maintain a “Senior Legal Hotline,” which provides brief telephone assistance and advice on civil legal matters to, and on behalf of, persons 60 years of age and older. Attorneys are available to answer legal questions during regular business hours. Additional resources are sometimes available by collaborating with APS programs if the case involves elder abuse and neglect, adult guardianship or conservatorship matters, or elder financial exploitation.

Increasingly, private law firms are offering pro bono legal services to the victims of elder financial abuse. Holland and Knight, which represented Mickey Rooney in a well-publicized civil lawsuit for financial abuse against his step-son, Christopher Aber, has created “The Mickey Rooney Elder Abuse Pro Bono Project.” Private attorneys agree to pursue elder abuse cases that otherwise would not be pursued. The initiative is reportedly being replicated in law firms across the country.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.

Can This Wait?

March 12, 2014

by Lawyers With Purpose with No Comment Team Building

We are all humans, so human things will occur. And sometimes our knee-jerk reaction is to run and tell someone. We try to solve it, or get it off of us, right then and there.

For example, we get a client complaint or emergency – when the attorney is getting ready to do a workshop presentation. What do you do? Do you hit the attorney with the problem, right then and there? Preempting the hurried restroom break before the workshop?

There is an ideal time and place for front-stage and back-stage activities. And this is one of those situations where we need to have a back-stage conversation with the attorney AFTER the workshop. Doing anything less is dumping on someone who needs to have a front-stage presence – cool, calm, confident and collected – when they can’t do anything with the information you dumped on them anyway. It sucks the life out of them before the lights are on them and they are presenting.

Throughout our day, things come to us that are time-sensitive and important. But is it necessary to have the conversation right then? A lot of times, when we have the opportunity to have a conversation, we always hit what is most important for US. Here are some questions to ask the mirror when you're wondering, “Can this wait?”

(1) Does the person need to know this information RIGHT NOW?

(2) Does their livelihood depend on the information?

(3) What can they do with the information?

(4) Is their house on fire? Has there been an accident? Are the kids OK? Are you canceling the workshop because of the news/information?

As team, the greatest role we have is to protect our attorney's confidence. It's one of the “Confidence Builders”. Attorneys are in back-to-back meetings most of the time. The weight of the world is on them as entrepreneurs. We see their calendars, and many times they don’t take time to eat – on their best day. And many times our only opportunity is to communicate in a hallway conversation, so we're tempted to lunge at the chance even when the issue is not crucial. If we feel it is very important for the attorney to know, we need to stop and ask “What can they do with this information right now” before we proceed.

Using the “Confidence Builders,” it may not be so important to let them know at that very moment that we got fired by a client. Although this information needs attention, we can talk about it more effectively in our team meeting later, and address “what worked / what didn’t work.” Hold anything that needs to be addressed until our next meeting or daily huddle.

Ultimately, when running a small boutique business it becomes more necessary to protect those responsible for generating revenue. And we do that by protecting their confidence and being mindful of what they are walking into. It’s not always about them protecting us. It can go both ways – which we will blog about later – but we don’t have to be on the front stage as much as they do. It is our job to protect them when they need to be ON.

Molly L. Hall, Co-Founder, Lawyers with Purpose, LLC, and author of Don’t Be a Yes Chick: How to Stop Babysitting Your Boss, Transform Your Job and Work with a Dream Team Without Losing Your Sanity or Your Spirit in the Process.

Lessons From Facebook

March 11, 2014

by Lawyers With Purpose with No Comment Legal Marketing

Do you use social media in your law practice? This article is NOT about how to, or even if you should, incorporate social media into your business. Rather, it is the lessons we can learn from Facebook, Linkedin, Snapchat and the others.

What has Facebook done? It has reconnected people who lost touch. Friends from high school, past girl-friends and boy-friends, and family have all connected again. In fact, this is how I found my brother after he moved in the middle of the night from Georgia to another state. I almost hired a private investigator until I realized I could just search him on Facebook.

My law firm has Facebook Page too. It has allowed me to connect with colleagues across the nation, friends from law school and my clients follow me there as well. It is nice to stay connected. However, Facebook and the other social media is not the only way to stay connected. Yet, their success does show the value of staying in touch and the fact that people do want to connect.

So, how can you get back in touch with clients you have assisted in the past? And, why would you want to?

The Why:

(1) People who have purchased a service from you in the past are more likely to do so again. The only problem is that they don’t know what else you have to offer unless you tell them.

(2) People who were satisfied with your services will refer others to you. However, after time, the referrals begin to wane unless you stay in the forefront of your clients’ minds.

The How:

(1) To get clients who you have not seen in a long time (several years) back into your office and interested in what you have to offer, invite them to a client update seminar. At the client update seminar, show your clients how your life has changed over the years, how changes in the laws have affected estate planning and planning for long term care, and how you have adjusted your practice to accommodate those changes.

(2) Once you have reconnected, add the clients to your newsletter list. If you don’t have a newsletter, this would be the time to start one and add everyone you come into contact with, especially your prior clients.

(3) You can ask your clients if they prefer the newsletter (and other updates) by snail mail or email. If they opt for email, then you can also send other emails to them regularly to keep them informed as to relevant information you have to share.

(4) Now that you have regained their loyalty, you can host client appreciation events on a regular basis (at least annually).

The Result:

Happier, loyal clients who will come back to you over and over and refer their best friends to you!

If you are looking for a way to expand your income without expanding your marketing budget, reach out to your prior client base. For more information about how to do this, I highly recommend reading Acres of Diamonds by Russell H. Conwell, which you can obtain here for free: http://www.gutenberg.org/ebooks/368.

Your Legal Hour – March 3, 2014

March 7, 2014

by Lawyers With Purpose with No Comment Uncategorized

Welcome to Your Legal Hour!

This week’s topic is Trust Design.

Questions about the materials presented? Contact us at info@lawyerswithpurpose.com

Supporting Materials from This Session

Enhanced Trust Design Template (PDF)

Supporting Materials from Prior Sessions

Bigstock-Green-tick-sign-icon-d-40989001

Five Easy Steps To Get Clients To Respond To Funding Requests

March 6, 2014

by Lawyers With Purpose with One Comment Uncategorized

Strategic Outsource Services, LLC provides estate planning and elder law practices with an alternative to the costs of full-time employees. Outsourcing gives you the opportunity to cut costs and free up more time. Founder, Susan Dachs, has years of professional experience supporting law firms with trust funding.

Today Susan joins our blog and provides "Five Easy Tips to Get Clients to Respond to Funding Requests:"

During my many years working with clients to get their trusts funded, I have learned a lot about getting them to respond to my funding requests. Here five easy tips that will help:

1. PICK UP THE PHONE! I can’t say this enough. You have a much better chance of getting the information from your clients over the phone than you do if you expect them to open your letter or email, go find the info you asked for and then reply to you. Life will get in the way every time, and your request will get lost in the shuffle. If you need an account number or a value of an account, pick up the phone, call them and ask them to set the phone down and go get you the info. Your client will be happier because you made it easier for them, and you will save time, frustration, letterhead, envelopes and postage!

2. Get all the info together ahead of time. Put in the extra time and effort to get all company-specific forms together in ONE package for the client. Many law firms, because they are pressed for time, simply prepare law firm instruction letters for the client to sign and then wait for the companies to reply with a request for their specific form. This creates a constant stream of additional paperwork for the client to sign and return to you. Not only does it slow down the process, it frustrates the client. Start a file of company-specific forms. Put in the extra time and effort to call in advance and obtain any forms you do not have so you can then have the client sign everything in one shot.

3. If you mail something to a client to sign, put a sticky note OVER the signature line if a notary or any other signing method is required. I can’t tell you the number of times a client sees a Sign Here tab and signs away, without reading your note to have the signature notarized. If you place your note OVER the signing line, it forces the client to read it before signing. Simple, but effective.

4. Be specific! If you send a request to a client, be very specific about what you need. For example, rather than sending a reminder letter to a client saying “please forward us any mail you have received from your financial companies,” ask them to “please forward to us any mail you have received from Fidelity, Charles Schwab or Smith Barney – we are waiting for information from them.” Specific company names stick and resonate with a client when a general request doesn’t. A client is more apt to think “Aha! I DID get something from Fidelity the other day” rather than setting your letter to the side to “check into it later.”

5. Always use a local contact. If your client has a local contact or advisor, that is who you should go through for the funding request. The local advisor is often listed on the financial statements, or you can directly ask your client. Even if the advisor instructs you to mail items to the regional office, you can always contact them again if you are not getting a response. Advisors want to look good and provide good service to their clients. Helping you is a great way for them to show their clients their value, and it makes your law firm look great too. So, you are subtly marketing at the same time.

Strategic Outsource Services uses a specific funding process called The Pit Bull Funding Follow Up System™ that produces quick funding results; however, these five tips alone will help you get clients to respond to your requests even within your current funding process.

If you simply don’t have time to properly handle your firm’s funding, contact us to discuss outsourcing your funding to Strategic Outsource Services. We typically complete funding within 45 days for a pre-determined price, so no matter how much follow-up is required to complete a file, your cost stays the same! Get more information about our services at www.outsourcesolution.net.

Blog post contributed by Susan L. Dachs, Director of Operations of Strategic Outsource Services LLC.

March 2014 Member of the Month – Cole Bormuth / Cody, WY

March 5, 2014

by Lawyers With Purpose with No Comment Uncategorized

What is the greatest success you've had since joining LWP?

Our greatest success so far has been in recognizing some operations and processes that need to be broken in order to be put back together in better condition. We're still very much in the process of breaking things; however, after having been in estate planning practice for 20 years with a firm that's 40 years old, it's a slow ship to turn.

I'm also tremendously excited to include Medicaid planning in my practice. I believe that this will be not only a crazy-popular tool to get clients in the door and build a consistent stream of income, but also a wonderful way to help folks plan for their children and successive generations. I agree wholeheartedly with Dave’s comment that preserving assets is almost more important to the client who has $500,000 than it is to the client who has $5,000,000. Spock would say that it’s an exceptionally logical choice to include in the estate planning discussion.

What is your favorite LWP tool?

I very much like the Revenue Focuser exercise, but I confess that the productivity focusers (the Daily, Weekly and Monthly Focusers, the Idea Focuser, etc.) have honed the way that I plan my days like no tool I have ever used before. These are exactly as advertised – they focus me on what I'm supposed to be doing, what I need to be doing, and when I need to plan for projects to be available. I have found that I'm much more productive when I have the productivity focusers setting out my goals; I may not complete everything, but I do a lot better if I've decided on something to achieve.

How has being part of LWP impacted your team and your practice?

LWP™ has offered so much more than drafting software, legal/technical advice toward Medicaid planning – just the practice management coaching has been worth the price of admission! Guidance toward defined team roles, too, has been extremely helpful. I'm still a very new member, but I can already see myriad ways in which LWP™ has impacted my practice and helped me work toward a much more efficient operation.

Financial Abuse of Elders & Other At Risk Adults – Part Seven

March 4, 2014

by Lawyers With Purpose with No Comment Uncategorized

The Crime of the 21^st Century

The federal Older Americans Act mandates the establishment of a Long-Term Care Ombudsman (“LTCO”) program in all 50 states and the District of Columbia. (The term “ombudsman” is Swedish for “citizen’s representative.”) The LTCO is “dedicated to enhancing the lives of long-term care residents through advocacy, education and resolution of resident complaints, including those related to abuse, neglect and exploitation.”

See NCEA site at http://ncea.aoa.gov/Stop_Abuse/Partners/LTC_Ombudsman/index.aspx.

Included in the scope of long-term care facilities subject to LTCO oversight are the following.

· Skilled nursing facilities (“nursing homes”).

· Assisted living facilities.

· “Board and care” homes (often referred to as “personal care homes” or “host homes”).

· Intermediate care facilities for those with intellectual disabilities.

· Other community living arrangements (e.g. group homes).

See National Long-Term Care Ombudsman Resource Center website http://www.ltcombudsman.org/about-ombudsmen.

The LTCO program is usually operated under the auspices of the “State Unit on Aging” or local “Areas on Aging,” which are part of the “Aging Services Network” mandated by the Older Americans Act and developed by the U.S. Department of Health and Human Services (“HHS”) Administration on Aging (“AoA”). In April 2012, HHS established the Administration for Community Living, which consolidated the AoA, the Office on Disability, and the Administration on Developmental Disabilities.

Complaints to the LTCO may be initiated by a call to the State Unit on Aging, the Regional Area Agency on Aging, or State LTCO Office, by either the resident herself, or on behalf of the resident by a friend, family member or other third party. The NCEA maintains a database of all state LTCO contacts (state, regional and local), which can be accessed by calling the Elder Care Locator service at 1-800-677-1116 during regular business hours, or by visiting http://www.ltcombudsman.org/ombudsman. Residents can also initiate a complaint in person when LTCO staff make periodic site visits to the facilities in their jurisdiction.

Complaints of residents are informally investigated by LTCO personnel and resolved, if possible, by informal techniques such as mediation, conciliation, and persuasion. If the complaint is not resolved informally, or if the nature of the complaint is so serious that it requires the involvement of a regulatory agency or law enforcement (e.g. alleged physical or sexual abuse or licensing violations), the matter is referred to the appropriate agency for formal investigation and resolution. LTCO staff will engage in the necessary follow-up to assure that the formal investigation proceeds towards resolution of the resident’s complaint.

All complaints lodged with the LTCO must be kept confidential, unless the resident authorizes the release of her name. It is against the law for a facility to retaliate or discriminate against a resident for making a complaint to the LTCO. Any person who makes a complaint in good faith is protected from civil and criminal liability.

In addition to the largely voluntary nature of many complaints lodged with the LTCO by, or on behalf of, residents of long-term care facilities, state law provides that certain persons having reasonable cause to believe that a resident or former resident has been abused or exploited while residing in a facility are mandatory reporters of such abuse or exploitation. Such reports are directed to be filed with the state Medicaid program and an appropriate law enforcement agency or prosecuting attorney.

State law typically precludes public disclosure of the identity of the resident, the alleged perpetrator and the reporter unless required to be revealed in court proceedings, or upon the written consent of the person whose identity is to be revealed, or as otherwise required by law. Retaliation or discrimination against a mandatory reporter is also prohibited.

Part 8 of this series will discuss several other legal resources for addressing alleged elder abuse.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.