Elder Law Approaching the Post Covid-19 Pandemic Era

• Publication year: 2021

Elder Law Approaching the Post Covid-19 Pandemic Era

By James H. Pietsch

INTRODUCTION

Prior to and during the Covid-19 pandemic, the University of Hawai'i Elder Law Program ("UHELP")¹ received accounts of abuse, neglect and exploitation of older persons in our community. The pandemic may have helped exacerbate problems, but there may be a silver lining; more members of our community, including the legal community, are recognizing existing problem areas and potential remedies. Politicians may be seeking additional protections for what has been called for decades the "epidemic of elder abuse,"² and most importantly, older persons, often with the help of their families and lawyers, are finding better ways to enhance their autonomy and self-determination while protecting themselves from abuse and exploitation, even while maintaining social distancing and, for some, isolation.

There is some good news for nursing home residents and their families, who have faced a year of isolation. Following the roll-out of Covid-19 vaccines, nursing home residents and health care workers had priority status. Infection rates and deaths have dropped significantly in nursing homes,³ and on March 10, 2021, the Centers for Medicare and Medicaid Services released revised guidance for nursing home visitation during the Covid-19 Public Health Emergency to loosen restrictions to allow indoor visitation "regardless of vaccination status of the resident or visitor, unless certain scenarios arise that would limit visitation .. ."⁴ There is also good news for older persons in general as Covid-19 hospitalizations among older Americans tumble and deaths among them decrease as well as more older persons are vaccinated.⁵

During the Covid-19 pandemic, there was a new sense of urgency and interest in advance care planning to help ensure that patients' wishes were accurately documented and respected⁶ as well as an increase in completion of advance directives, even early on in the crisis.⁷ UHELP saw an increase in requests, not only to help with advance health care directives on behalf of individuals who had never before executed them, but also from individuals who were very much afraid that their existing advance directives would not be sufficient for them during the pandemic. The UHELP website⁸ added a Covid-19 update, which included information about how to execute advance planning documents and provided a reference to a specific Covid-19 addendum. UHELP also made presentations via Zoom to the community on topics of urgent concern to older persons.⁹

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During this extended period of isolation, more individuals decided to take charge and to look into "do-it-yourself" ("DIY") wills, including holographic wills, which have been valid in Hawai'i since 1997. See generally Haw. Rev. Stat. § 560-2-502 (2010). A recent study found that (1) it is unclear whether people who create their own wills are less wealthy than those who hire lawyers, (2) there is some evidence that DIY devices are particularly useful for testators who fall gravely ill, and (3) even controlling for the effect of other variables, DIY wills are correlated with a statistically significant increase in the odds of litigation.¹⁰

During the transition period between the election and inauguration of a new president, Congress enacted legislation to amend the Elder Abuse Prevention and Prosecution Act¹¹ to improve the prevention of elder abuse and exploitation of individuals with Alzheimer's disease and related dementias.¹²

But problems continue, even with oversight. Across the country, including in Hawai'i, claims of financial abuse and exploitation of older or vulnerable persons are often addressed by probate courts by means of conservatorships, which are sought to prevent someone from abusing or exploiting an older or vulnerable adult.¹³ Sometimes, unfortunately, the perpetrator is someone who was appointed by the court to prevent such abuse from happening in the first place, namely, the conservator.¹⁴

Most abuse directed against older persons, including financial abuse, is hidden.¹⁵ In a call to UHELP during the Covid-19 pandemic, a caller lamented that his nephew, "Cubby," most likely with the support of his mother "the Lioness," had influenced "Nana" to put the nephew's name on her account and upon her death, he owned the account valued at over $500,000, to the exclusion of Nana's children and her other grandchildren.¹⁶ Once Nana had said that her daughter was "fierce as a lioness in protecting her cub." The situation has now caused estrangement between the Lionesses' family and the rest of the extended family. The last time any of them talked to her, the Lioness proclaimed, "Nana liked Cubby more than anyone else and wanted him to get everything. You know she did not like any of the four of us when we were growing up—we were a burden." The three siblings were astounded and want to find out what happened to all of Nana's money and wonder what role the Lioness may have had in protecting or even encouraging Cubby to go after Nana's money. If Nana really did want Cubby to get the bulk of her assets and to the exclusion of all the other grandchildren, how could that be proven?

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Nana did not have a will or a trust, but issues of capacity and undue influence also abound in wills and trust conflicts involving disappointed heirs.¹⁷ How can one prove the intentions of an individual before his or her capacity diminished or before death? In some states this can be accomplished through pre-death contests, or "pre-mortem validation," which refers to the use of a statutory procedure to validate, during the lifetime of the maker of that document, a will, trust, or other instrument taking effect at death. It may be the testator of a will, the trustee of a trust, or the power holder of a power of appointment who initiates the statutory procedure.¹⁸ The term "pre-mortem probate" is used exclusively when the document being validated is the maker's will.¹⁹

Aging, Dementia and Abuse

"Coronavirus disease 2019 (Covid-19) is particularly deleterious to older adults, and there has been a massive increase in reports of elder abuse during the pandemic. Reports of elder abuse range from financial scams to incidents of family violence, with public warnings issued accordingly from the Federal Trade Commission and the American Bar Association."²⁰

Over the next 20 years persons age 65 and older will increase from 15 to 23 percent of the total population.²¹ By the year 2060, the number of persons age 65 and older is estimated to be 94 million, which is more than double the 2010 estimate for the same age group.²² Many older persons lead active lives well into their 80s, 90s, and 100s. While the aging population is diverse, their longevity and the pressing need for health care and legal advocacy are summarized by a sobering Administration on Aging report.²³ The elder population itself is becoming increasingly older.²⁴ The 85 and older population is projected to increase from 6.4 million in 2016 to 14.6 million in 2040, a 129% increase.²⁵ The year 2030 marks an important demographic turning point in U.S. history according to the U.S. Census Bureau's 2017 National Population Projections.²⁶ By 2030, all baby boomers will be older than age 65.²⁷ This will expand the size of the older population so that 1 in every 5 residents will be retirement age.²⁸ By 2035, there will be 78 million people 65 years and older compared to 76.7 million under the age of 18.²⁹ A majority of Hawai'i's population of baby boomers have reached the age of 60 and over resulting in the rapid growth of Hawai'i's aging population. ³⁰ With the aging of the baby boomers and the decreasing mortality, projections indicate that by the year 2030, one in every four individuals will be an older adult.³¹

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Age is a known risk factor for developing dementia, and with the number of Americans age 65 or older doubling by 2060, so could the number of people with dementia.³² There are various forms of dementia disorders,³³ but by far the most common form of dementia in those over age 65 is Alzheimer's disease.³⁴ 'Alzheimer's is a disease of the brain that causes problems with memory, thinking, and behavior."³⁵ The disease worsens over time and there is no cure.³⁶ Dementia is the loss of cognitive functioning—the ability to think, remember, or reason—to such an extent that it interferes with a person's daily life and activities. These functions include memory, language skills, visual perception, problem solving, self-management, and the ability to focus and pay attention. Some people with dementia cannot control their emotions, and their personalities may change. These effects, if caused by Alzheimer's disease, generally worsen over time.³⁷ Alzheimer's disease is the most common cause of dementia in older adults.³⁸ Approximately 6.2 million Americans of all ages had Alzheimer's disease in 2020, seventy-two percent are age 75 or older, with an estimated number of 29,000 individuals in Hawai'i.³⁹ According to the Alzheimer's Association:⁴⁰

There are three broad phases for the disease, preclinical Alzheimer's disease, mild cognitive impairment (MCI) due to Alzheimer's disease and dementia due to Alzheimer's disease....[and] the Alzheimer's dementia phase is further broken down into the stages of mild, moderate and severe, which reflect the degree to which symptoms interfere with one's ability to carry out everyday activities.
In the past, Alzheimer's disease was often used to describe the dementia phase of the disease. Today we know that dementia is only one part of the disease. It is preceded by mild cognitive impairment (MCI), a period when individuals have subtle cognitive changes that do not interfere with everyday activities.
The Alzheimer's Association also notes:⁴¹
... some individuals have dementialike symptoms without the progressive brain changes of Alzheimer's or other degenerative brain diseases. Common causes of dementia-like symptoms

...