California Elder Law Attorney Blog

There are numerous other health issues that people with various types of disabilities have to cope with on an almost daily basis. Depending on the "main" disability, other issues such as high blood pressure, urinary tract infections, lack of coordination and the like can compound living with that disability to a more uncomfortable life.

Preventing pressure sores is a daily concern for individuals who have a spinal cord injury. If you are a person dealing with an SCI, you should always work to stay healthy and avoid this serious skin problem in order to be free to do what you would like to do or anything else that life has to offer.

Pressure sores are known by many names, such as pressure ulcers, decubitus ulcers, ischemic ulcers, bed sores or skin sores. No matter what they are called, they are a serious problem that can take days, weeks, months or even longer to heal.

A pressure sore is an area of the skin or underlying tissue that is dead or dying as a result of the loss of blood flow to the area. It can begin in a number of ways. The most common way is when you or rest on a bony area for a prolonged period of time.

Anyone can get a pressure sore, but individuals with spinal cord injuries are at a much higher risk. It is estimated that up to 80 percent of individuals with an SCI will have a pressure sore during their lifetime, and 30 percent will have more than one pressure sore.

There are a number of factors that can put you at risk, especially if you are disabled by an SCI. They can include disability-induced limited mobility, which can place extended pressure on an area of the body; moisture from bladder and bowel accidents that can further weaken the skin and cause the skin to break down more quickly; a lack of feeling in specific parts of the body that can keep you from sensing that your skin has been damaged; and/or a cut or a scratch that can quickly develop into a larger problem if not properly treated. Spasticity or transfers can also sheer (or rub) the skin and cause damage as well.

The most common sign that a pressure sore is beginning is the appearance of a red area on the skin. Ordinarily, redness should clear within 30 minutes after the pressure is released. If the redness does not clear, a pressure sore has begun. A person with dark skin may also see a change in their skin color. The area may become light, dry, flaky or ashy. Other signs that may indicate the beginning of a pressure sore is an area of skin that is warmer than normal or a change in the skin's texture.

There are four different stages of a pressure sore. They are:

# Stage 1 -- Damage is limited to the top two layers of skin, the epidermal and dermal layers. The skin is not broken and the redness does not turn white when touched.

# Stage 2 -- Damage extends beyond the top two layers of the skin to the adipose tissue. The skin is slightly broken. The sore appears to be an abrasion, blister or small crater.

# Stage 3 -- Damage extends through all the superficial layers of the skin, adipose tissue, down to and including the muscle. The ulcer appears as a deep crater, and damage to adjacent tissue may be present.

# Stage 4 -- Damage includes destruction of all soft tissue structures and involves bone or joint structures. Undermining of adjacent tissue and sinus tracts may be associated with these ulcers.

Continue reading "Spinal Cord injuries May Lead To Pressure Sores says California Nursing Home Abuse and Neglect Attorney Steven Peck" »

A recent Congressional hearing and the poignant testimony of an unexpected victim -- Mickey Rooney -- have helped focus new attention on the abuse and exploitation of old people. Congress should seize the moment to help repair their threadbare web of protection.

The hearing of the Senate Special Committee on Aging, as well as several recent studies, make clear that elder abuse is a growing problem that far outmatches the resources available to fight it.

One national study estimated that in the last year 14 percent of older adults had been neglected, abused or exploited. The numbers could be far higher since the sample did not include people living in institutions or those with significant mental impairments. A 2009 study on financial exploitation estimated that elderly victims lost at least $2.6 billion a year to fraud and abuse.

The loss of power and the isolation that come with age and infirmity make elders particularly vulnerable to abuse from unscrupulous caregivers but also, chillingly, from unscrupulous family members. "I felt trapped, scared, used and frustrated," Mr. Rooney told the committee, saying he had been defrauded by "someone close." "But, above all, I felt helpless."

The cost, on top of the human suffering, is immense: in stolen and squandered savings; the strain on the court system from abusive guardianships; the cost to Medicare and Medicaid from fraud; and from the care of fleeced victims who end up destitute in nursing homes.

The solutions begin with filling the gaps in data collection and services. The Government Accountability Office found that in 25 of 39 states surveyed, financing for adult protective services had fallen or flat-lined in the last five years. Case workers are poorly trained and overwhelmed. The study also found that federal programs to fight abuse are scattered ineffectively across the Department of Health and Human Services. The report urged the department to create a resource center to collect and share abuse data among the states.

Only with coordinated efforts -- like those urged by the offices and agencies created years ago to advocate for children and victims of domestic violence -- will real progress be made. The committee's chairman, Senator Herb Kohl of Wisconsin, is sponsoring a bill to create an office of elder justice, in the Justice Department, to tighten reporting standards and definitions of elder abuse and to help states investigate cases and impose stricter protections for victims. Congress should pass it.

Continue reading "Do Not Exploit Elders Says California Elder Abuse Attorney Steven Peck" »

For most people, the durable power of attorney is the most important estate planning instrument available--even more useful than a will. A power of attorney allows a person you appoint -- your "attorney-in-fact" -- to act in your place for financial purposes when and if you ever become incapacitated says California Elder Law Attorney Steven Peck.

In that case, the person you choose will be able to step in and take care of your financial affairs. Without a durable power of attorney, no one can represent you unless a court appoints a conservator or guardian. That court process takes time, costs money, and the judge may not choose the person you would prefer. In addition, under a guardianship or conservatorship, your representative may have to seek court permission to take planning steps that she could implement immediately under a simple durable power of attorney.

A power of attorney may be limited or general. A limited power of attorney may give someone the right to sign a deed to property on a day when you are out of town. Or it may allow someone to sign checks for you. A general power is comprehensive and gives your attorney-in-fact all the powers and rights that you have yourself.

A power of attorney may also be either current or "springing." Most powers of attorney take effect immediately upon their execution, even if the understanding is that they will not be used until and unless the grantor becomes incapacitated. However, the document can also be written so that it does not become effective until such incapacity occurs. In such cases, it is very important that the standard for determining incapacity and triggering the power of attorney be clearly laid out in the document itself.

However, attorneys report that their clients are experiencing increasing difficulty in getting banks or other financial institutions to recognize the authority of an agent under a durable power of attorney. A certain amount of caution on the part of financial institutions is understandable: When someone steps forward claiming to represent the account holder, the financial institution wants to verify that the attorney-in-fact indeed has the authority to act for the principal. Still, some institutions go overboard, for example requiring that the attorney-in-fact indemnify them against any loss. Many banks or other financial institutions have their own standard power of attorney forms. To avoid problems, you may want to execute such forms offered by the institutions with which you have accounts. In addition, many attorneys counsel their clients to create living trusts in part to avoid this sort of problem with powers of attorney.

While you should seriously consider executing a durable power of attorney, if you do not have someone you trust to appoint it may be more appropriate to have the probate court looking over the shoulder of the person who is handling your affairs through a guardianship or conservatorship. In that case, you may execute a limited durable power of attorney simply nominating the person you want to serve as your conservator or guardian. Most states require the court to respect your nomination "except for good cause or disqualification."

Continue reading "Power of Attorney Is A Very Important Estate Planning Tool Says California Elder Law Attorney Steven Peck" »

A Conservatorship is a judicially created relationship whereby an adult has been given the authorization and responsibility to care for another adult. General Conservatorships can be three basic types: 1) Conservatorship of the person; 2) Conservatorship of the Estate; and 3) Conservatorship of person and estate.

Conservatorship proceedings usually start when a person is so incapacitated that he or she cannot manger his/her own affairs. The person who is the caretaker is called the conservator, and the person who is being taken care of is called the conservatee.

While a valid power of attorney document can authorize the power of attorney holder to accomplish certain of a conservator's tasks, a cannot prevent the ill person from contracting, conveying property or marrying. For example, a patient with Alzheimer's disease may become subject to fraud from unscrupulous persons. While he or she could have given a valid power of attorney while he or she was well, he or she may be befriended, may marry, and convey his or her property to a new spouse. In that situation, the probate code provides that a conservatorship may be established, and the conservator may ask the court to set aside any contract entered into by the ill conservatee. The advantage of the conservatorship is that it can safeguard against fraud against the ill person.

The conservatorship proceeding begins with a petition filed with the court, followed by an investigation by a court investigator and a court hearing. Many factors can affect a conservatorship. For example, if the conservatee objects to the conservator's appointment, he or she may object and the court will assign counsel for the conservatee for that purpose.

A conservator of the estate is required to provide accountings that give details of the conservatee' assets, and how the conservatee's money was spend. Additionally, the court will require that the conservator of the estate to post a bond. The conservator is paid by the conservatee's estate and the court supervises the reasonableness of the payments to the conservator.

If there are several person who have filed petitions to become the conservator for the conservatee, the court will decide who shall become the conservator. Preference rules exist for making such a determination.

A conservatorship must continue until the court orders the conservator relieved from his or her duties. This can happen if the conservatee dies; if the estate is used up; if the conservatee regains his or her capacity; and if the conservator becomes unable or unwilling to act. In the last situation, the court will assign a successor conservator.

Conservatorships are time consuming, expensive, and should only be used when absolutely necessary says California Elder Abuse Attorney Steven Peck. Candidates for conservatorship can be, although not limited to, those who suffer from Alzheimer's disease, stroke, head injuries, Parkinson's and other debilitating disorders. A conservator can petition the court for approval of appropriate Medi-Cal planning transactions such as purchasing a home in order to "spend down" the conservatee's property on exempt assets.

When the Senior Center gets a report of suspected abuse, they refer it to the Department of Health Services for investigation. But, there's not enough staff to deal with all these cases, especially since she says our population is getting older and economic resources are dwindling says California Elder Abuse Lawyer Steven Peck.

"Investigations don't get completed as soon as we'd like them to or they would like them to and there aren't enough services available to in essence fix the problem," says Peck.

Elder Abuse and neglect don't only happen in the home, though. They can occur in institutions like nursing homes, assisted living facilities, or by caregivers.

That's when legal advocacy becomes necessary through the Peck Law Group Elder Law and Nursing Home Abuse and Neglect advocates.

But as the problems grow, concerning the care and neglect of Elders, those who see it everyday say more programs and educating seniors might be the only solution. .

Continue reading "Education Will Go A Long Way In the Continued Attempts to Halt Elder Abuse and Neglect says California Elder Abuse Attorney Steven Peck" »

Plaintiff conservator won a $99,900 compensatory jury verdict against certain defendants, but only one defendant was found liable under the elder abuse statute containing a mandatory fee shifting provision against unsuccessful defendants. (Welf. & Inst. Code, § 15657.5(a).) Later, the trial court ordered the same defendant liable for elder abuse to pay attorney's fees of $320,748.25. Defendant appealed the fee award.

It was affirmed in Conservatorship of the Estate of Ida McQueen, Case No A126825 (1st Dist., Div. 4 Jan. 14, 2011) (certified for partial publication on other issues, fee discussion not published).

Entitlement was not an issue, once the appellate court rebuffed merit challenges to the elder abuse verdict. Appealing defendant argued that much of the time spent by the fee requesting attorneys was expended on other defendants and other causes of action.

Allocation or apportionment, however, is a matter for a trial court's discretion, especially where a common core of facts or legal theories are involved--as it was in the instant case. (Thompson Pacific Construction, Inc. v. City of Sunnyvale, 155 Cal.App.4th 525, 555 (2007); Drouin v. Fleetwood Enterprises, 163 Cal.App.3d 486, 493 (1985).) The lower court did not err in refusing to allocate given that the various claims were "factually intertwined," making it impracticable to separate the conjoined activities into compensable or noncompensable time units. (Fed-Mart Corp. v. Pell Enterprises, Inc., 111 Cal.App.3d 215, 227 (1980).)

Continue reading "Allocation of Attorneys Fees: None Necessary In Financial Elder Abuse Case Where Issues Were Intertwined" »

Pressure ulcer litigation is a growing concern for nursing homes. The incidence of a pressure ulcer alone is used as defacto evidence of neglect on the part of a nursing home. These cases rely on disparate medical records from all treating facilities, testimony of employees of record (when available), and the interpretation of events by expert witnesses. A neat linear format is created by this attenuated reconstruction of events. However, a confluence of factors can lead to the occurrence of a pressure ulcer. Additionally, limited evidence is available regarding the effectiveness of specific prevention strategies. Knowing the outcome in a case being litigated, plus the limitations described above, weakens one's ability to objectively judge whether reasonable prevention strategies were employed in a timely manner or even whether prevention was possible.

Pressure ulcers are a phenomenon, not a disease or even a discrete medical condition. Pressure ulcers - skin breakdown that occurs entirely as a result of exposure to a toxic combination of physical forces, such as pressure and shear - are more accurately described as an injury as used by the Institute of Medicine (IOM). Experienced clinicians know that this type of pressure ulcer is the exception rather than the rule. Instead, the incidence of pressure ulcers in nursing homes is more accurately described as an event, often associated with medically complicated residents who usually are frail and immobilized. Clinicians must continue efforts to understand pressure ulcers, learn which can be avoided, and find better ways to treat them. Criminalizing this event will never provide an environment that encourages funding of the basic research needed to comprehensively understand their natural history nor will it help people at risk for developing pressure ulcers or those responsible for patient care.

The Current Nursing Homes Oversight Environment

The nursing home industry ranks high on the list of the most regulated industries by both state and federal oversight agencies. The federal government is a major stakeholder in the nursing home industry. In the year 2000, the federal government paid nursing homes an estimated $39 billion. Through the Centers for Medicare and Medicaid Services (CMS), the federal government performs an increasingly coordinated oversight role.

Continue reading "Bed Sores, Pressure Sores & Decubitus Ulcer Litigation is A Major Concern for Nursing Homes Says California Nursing Home Abuse and Neglect Attorney Steven Peck " »

Septic sores, or infections involving a loved one in a nursing home.

Any occurrence involving broken bones, especially a fractured hip, a broken arm, or broken leg.

Any type injury or death occurring during or shortly after an occurrence of wandering (including outside the facility) when the staff is not aware that the resident is missing for some period of time

Resident is frequently ill, and the illnesses are not promptly reported to the physician, and or the family

Serious injuries requiring emergency treatment or hospitalization of a loved one

Rapid weight loss, or weight gain without physician or family notification, and a change in treatment being provided

Unexplained or unexpected death of the resident

One nursing home resident injures another resident

Heavy medication or sedation of a parent or a loved one in a nursing home

Continue reading "Symptoms of Nursing Home Abuse and Neglect Occur Regularly says Los Angeles Elder Abuse Attorney Steven C. Peck" »

Nursing home patients have been dragged down hallways, doused with ice water, sexually assaulted and beaten in their beds, yet few prosecutions result says Los Angeles Nursing Home Abuse and Neglect Attorney Steven C. Peck.

Many physical and sexual abuse cases in nursing homes are not treated the same as similar crimes elsewhere, Peck states.

Recently, a case of abuse and sexual assault was described as choking, breaking the elder's neck, and her wrist bones and her hand.

This elder unfortunately died two days later from the trauma. The Facility staff member eventually pleaded no-contest and served a year in prison. The incident was not reported to a state official who was in the nursing home at the time of the beating, he said.

This particular investigation found that nursing homes rarely call police for attacks that would bring an instant response if they occurred elsewhere says California Elder Law Attorney Steven Peck.

Over two million Americans are cared for in 20,000 nursing homes. The homes received $100 billion in reimbursements from Medicare and Medicaid in 2010.

Continue reading "Nursing Home Residents Are Sexually Assaulted And Beaten But Few Prosecutions Result Says Los Angeles Nursing Home Abuse and Neglect Attorney Steven C. Peck" »

Pressure ulcers is any injury caused by unrelieved pressure; a decubitus ulcer, bedsore, or pressure sore that usually occurs in bony prominence like the shoulder blades, elbows, hip bones, sacrum, knees, ankle bones, heel and toes. These are all pressure points because they bear the weight of the body in a certain position.

Stages of Pressure Ulcers:
Stage 1 - the skin is red. The color does not return to normal when the skin is relieved of pressure.
Stage 2 - the skin cracks, blisters, or peels. There may be a shallow crater.
Stage 3 - the skin is gone, and the underlying tissues are exposed. The exposed tissue is damaged. There maybe drainage from the area.
Stage 4 - muscle and bone are exposed and damaged. Drainage is likely.

Persons at risk for pressure ulcers:
-those confined to bed or chair
-unable to move
-have loss of bowel or bladder control
-have altered mental awareness
-have problems sensing pain or pressure
-have circulatory problems
-older, obese, very thin, or malnourished

Signs of Pressure Ulcers:
- pale skin or a reddened area is the first sign of a pressure ulcer.
-pain, burning, or tingling in the area.
-some do not feel anything unusual.

Prevention/Measures to prevent pressure ulcers:
-good nursing care
-cleanliness, and skin care
-reposition the person at least every 2 hours or as scheduled in the person's care plan . Some persons are repositioned every 15 minutes. Use pillows for support as instructed by the nurse. The 30-degree lateral position is recommended.
-prevent shearing and friction during lifting and moving procedures.
-prevent friction by applying a thin layer of cornstarch to the bottom sheets.
-provide good skin care. The skin must be clean and dry after bathing. The skin is free of moisture from urine, feces, perspiration, and wound drainage.
-minimize skin exposure to moisture. Check incontinent persons (those without bowel or bladder control) often. Also check persons who perspire heavily and those with wound drainage. Change linens and clothing as needed, and provide good skin care.
- check with the nurse before using soap. Remember, soap can dry and irritate the skin.
- apply a moisturizer to dry areas such as the hands, elbows, legs, ankles, and heels. The nurse tells you what to use and the areas that need attention.
- give a back massage when repositioning the person. Do not massage bony areas.
- keep linens, dry, and free of wrinkles.
- apply powder where skin touches skin.
- do not irritate the skin. Avoid scrubbing or vigorous rubbing when bathing or drying the person.
-use pillows and blankets to prevent skin from being in contact with skin and to reduce moisture and friction.
- keep the heels off the bed. Use pillows or devices under the lower legs from midcalf to the ankles.
- use protective devices as instructed by the nurse and care plan.
- remind persons sitting in chairs to shift their positions every 15 minutes. This decreases pressure on bony points.
- report any signs of skin breakdown or pressure ulcers immediately to the nurse.

Continue reading "Pressure Sores, Bed Sores and Decubitus Ulcers Are Caused By Unrelieved Pressure Says Los Angeles Nursing Home Abuse and Neglect Attorney Steven Peck" »