1.         Summary.

(a)        Duty To Report.  “Any person” who has reason to believe a vulnerable adult has been the subject of abuse (the term “abuse” includes the inappropriate use of medication by others likely to cause harm to a vulnerable adult) “shall immediately” notify Adult Protective Services or the nearest law enforcement agency.

(b)       Immunity.  “Anyone” who in “good faith” makes a report is immune from civil and criminal liability in connection with the report or other notification.

(c)        Failure To Report.  A failure to report suspected abuse of a vulnerable adult may itself be a criminal omission.

(d)       Practical Considerations.

Be mindful of the prescriptions being taken.  Arrange for disposal of any prescriptions not in use (unless there is a valid reason for their retention).  Do prevent or stop any problem at the earliest opportunity.  Consider the use of a lockbox, pill count, family meeting, “3-day patch” medication.

Do take careful notes of what you observe.  Do make a report if you believe it appropriate.  Both you and your employer may be liable if you fail to make a report.

Do not be “Jessica Fletcher” and engage in substantive investigations – there may be a practical explanation.  Do not make accusations.  Do talk with your supervisor and others to check your judgment.  Remember that persons with dependency issues may seek to have your firm terminated, and may accuse you of misconduct. 

2.         Scope of the Problem.  The US Department of Health and Human Services released a study in 2007 finding that Utah led the nation in nonmedical use of prescription drugs in 2004 and 2005.  In 2005, prescription drug overdoses accounted for more than twice the number of deaths from illegal drugs – at least a portion of those prescription drugs were obtained illegally.

3.         Example.  In the context of homebound patients, consider the example of Mary.

(a)        Mary had lived with a disability for thirty years and used a wheelchair to get around; she also had diabetes, lung deterioration, heart disease, high blood pressure and arthritis. 

(b)        She took many medications, including painkillers to manage her illness.

(c)        Mary was conscientious about her prescription pain pills; when her husband noticed her pills were disappearing faster than they should have been, he worried she was taking more than she should.

(d)       Mary was on oxygen, and the young man who came to check the equipment was very personable, and he became friendly with Mary.

(e)        Eventually, Mary’s spouse discovered this young man holding Mary’s bottle of pain pills and realized he was the one who had been taking the pills.

(f)        The young man was eventually prosecuted and served jail time as well as paying stiff fines.

(g)        The scenario here involved a business visitor to the home; often family members have even greater access and opportunity to take prescription medications from grandparents or someone else who is ill.  Occasionally, a nurse or home health aide may be involved.

4.         Utah Controlled Substances Act. 

It is unlawful for any person knowingly and intentionally to possess or use a controlled substance analog or a controlled substance, unless it was obtained under a valid prescription or order, directly from a practitioner while acting in the course of his professional practice, or as otherwise authorized by this chapter;

5.         Medicaid Fraud Statute.

(a)        Theft of a prescription drug paid for by Medicaid is Medicaid Fraud 

(b)        The attorney general has:

     (1) concurrent jurisdiction with the department for investigating and prosecuting suspected civil violations of this chapter; and

     (2) exclusive jurisdiction to investigate and prosecute all suspected criminal violations of this chapter.

(Utah Code Ann. § 26-20-13(3).)

6.         Utah Human Services Code.

(a)        “Abuse” means:

(1)        knowingly or intentionally

(i) attempting to cause harm;

(ii) causing harm; or

(iii) placing another in fear of harm;

(2)        unreasonable or inappropriate use of . . . medication, . . .that causes or is likely to cause harm to a vulnerable adult;

(Utah Code Ann. § 62A-3-301(2).)

(b)        Reporting requirements:

(1)       “Any person who has reason to believe that any vulnerable adult has been the subject of abuse, neglect, or exploitation shall immediately notify Adult Protective Services intake or the nearest law enforcement agency.”

            (Utah Code Ann. § 62A-3-305(1).) 

(2)        Anyone who in good faith makes a report or otherwise notifies a law enforcement agency or Adult Protective Services of suspected abuse, neglect or exploitation is immune from civil and criminal liability in connection with the report or other notification.

            (Utah Code Ann. § 62A-3-305(3).)      

(3)        “Any person who willfully fails to report suspected abuse, neglect, or exploitation of a vulnerable adult is guilty of a class B misdemeanor.

 (Utah Code Ann. § 62A-3-305(4)(a).) 

7.         Criminal Code (Similar Provisions to Human Services Code)

(a)        “Abuse” means: 

            (1)         attempting to cause harm, intentionally or knowingly causing harm, or intentionally or knowingly placing another in fear of imminent harm;

           (2)        causing physical injury by knowing or intentional acts or omissions;

(Utah Code Ann. § 76-5-111(1)(b).)

 (b)        The Criminal Code also adds another provision not found in the Human Services Code:  

 (2)        “Under any circumstances likely to produce death or serious physical injury, any person, including a caretaker, who causes a vulnerable adult to suffer serious physical injury or, having the care or custody of a vulnerable adult, causes or permits that adult’s person or health to be injured, or causes or permits a vulnerable adult to be placed in a situation where the adult’s person or health is endangered, is guilty of the offense of aggravated abuse of a vulnerable adult as follows:

(1)  if done intentionally or knowingly, the offense is a second degree felony;”

(Utah Code Ann. § 76-5-111(2).)

(c)        Reporting Requirements: 

(1)        “As provided in Section 62A-3-305, any person who has reason to believe that any vulnerable adult has been the subject of abuse, neglect, or exploitation shall immediately notify the nearest peace officer, law enforcement agency, or Adult Protective Services intake within the Department of Human Services, Division of Aging and Adult Services.”

(2)        “Anyone who makes that report in good faith to a law enforcement agency, the Division of Aging and Adult Services, or Adult Protective Services of suspected abuse, neglect, or exploitation is immune from civil and criminal liability in connection with the report or other notification.” 

(Utah Code Ann. § 76-5-111.1(1) & (2).)

8.         Likely Police Action.

(a)        When they receive a report, they will investigate.

(b)        Taking and using someone else’s medication is described as theft.

              i.      The value of the medication determines whether it is a misdemeanor or a felony theft.

             ii.      In addition, police look at the Controlled Substance Act; if the medication is a controlled substance, then possession or use is a felony.

 (c)        Police also use the elder abuse statute.

             i.    It is abuse if the vulnerable adult is not getting the medication or where something is substituted in place of the medication.

(d)       These are difficult cases.

             i.    Generally victim is not very helpful because of mental deficiency or age, or the victim may die before trial.

            ii.    The family or social workers, or health care providers report the problem to APS or to the police.

iii.  With the cooperation of the family and others, the police can set up stings with hidden cameras, or mark pills, or use pixie dust (invisible—use for money, jewelry and drugs—it stains the perpetrator’s hands when   it   comes into contact with moisture).

           iv.  Interview and try to get confession.  Not always very successful.

          v.   Sometimes the perpetrator is a care giver, or in-home nurse.  These cases are a little easier to work, because their licensing is involved.

(e)        If probable cause the police can make an arrest; ultimately case goes to county attorney and into the court system.  The police have a goal of stopping the problem, getting APS involved, and getting the alleged perpetrator out of the life of the vulnerable adult.

(f)        Right now, police usually don’t press charges for not reporting, but they want the information.

Example.  84 year-old single widow has a home and $600,000 in liquid assets.  Her income is $3,800 per month.  She is in good health but frets incessantly she may need nursing home care and it will deplete her estate.  Solution?  Carve off $100,000 and place it in an irrevocable income only trust.  Once the five year lookback period passes, only the income will be “countable” to her.    

Example.  84 year-old single widow is impoverished except for her home.  She deeds an interest in her home to a son or daughter as tenants in common.  Ownership can be in equal or unequal shares; unless stated, it is inferred the interests are equal.  Widow applies for Medicaid, arguing the value of the home remains exempt because she cannot force the sale of the home, and should not be forced to partition because she will return to the home to live if she can.  Upon her death, only half of the home is subject to lien recovery because that is all she owns. 

What if these two concepts were coupled?  There would be money to “buy” the remaining one-half interest in the home.

 2.         What is “Reverse Half A Loaf” Gifting?

Example.  84 year-old single widow resides in a nursing home and has $20,104 in assets.  She applies for Medicaid.  She then gives $18,104 to her daughter, leaving her with $2,000.  The widow now satisfies three important criteria – she resides in a nursing home, she has applied for Medicaid, and apart from the gift, she is otherwise eligible for Medicaid assistance as she has $2,000 or less in assets.  The sanction period on the gift is 4 months ($18,104 divided by $4,526 (the average cost of care)).  Daughter returns half of the gift, or $9,052.  This reduces the sanction period to 2 months.  Widow uses the $9,052 plus her income to privately pay for her care for two months, and daughter has $9,052 that can be used to supplement her mother’s care in the nursing home. 

Example.  Upon entry to a nursing home, Aunt without children conveys a one-half interest in her home to a trusted nephew in return for his promise to pay for her care (the other half had previously been transferred to a sibling some time ago, who sold his interest to the nephew for $15,000).  Widow meets the three criteria.  Nephew pays nursing home expenses in an amount equal to half the value of the home.

Example.  Widow and son sell family home owned as tenants in common receiving $94,557.70 in net sales proceeds.  Pursuant to their agreement and understanding, all of the proceeds were claimed by son.  Medicaid attributes half of the proceeds to each, $47,278.85.  Son argues that amounts paid on his mother’s behalf (moving expenses, funeral expenses, rent, living expenses, etc.) constituted constructive repayment of any gift from mother to son.       

3.         Seniors Often Think of Their Estate Planning In An “Inverse” Order.

Many estate planners begin a discussion of estate planning with new clients by discussing a will, then perhaps a trust, then a financial power of attorney and a healthcare directive.  Sometimes the last two documents are “tag ons” as part of a “package” and almost become an afterthought.

For seniors, they may be most interested in end of life issues, then a financial power of attorney, whether they need a trust, and last of all, a will.

 4.         Care Treatment Plans and Antibiotics.

A health care directive often ends up on the very bottom of the file (right hand side) at the nursing home – and may never be reviewed again.  The nursing home’s care treatment plan, however (often on colored paper) will always be the top document on the left hand side of the file and will be reviewed virtually every week.

When (or if) to use antibiotics may be one of the most important health care decisions for a person in a nursing home.

 5.         When Children (and Others) Provide Care to Their Parents, It Should Be Done Pursuant to a Written Agreement Entered Into Prior To the Time the Services Are Performed.

Example.  Imagine two identical households facing one another across a suburban street.  In household A, a daughter provides significant assistance to her mother, helping her bathe, providing transportation, picking up groceries and medication, paying her bills, insuring that her lawn is maintained and snow is shoveled.  For these services, mom pays her daughter $y per month.  There is no written agreement.  In household B, a son provides significant assistance to his father, helping him in and out of the shower, providing transportation, picking up groceries and medication, paying his bills, insuring that his lawn is maintained and snow is shoveled.  For these services, dad pays his son $z per month, pursuant to a written agreement entered into some time ago.  Should the mother in household A need Medicaid assistance, payments made to her daughter may be characterized as impermissible transfers.  If the father in household B needs Medicaid assistance, the payments made to his son may well be permissible, since they were performed pursuant to a written agreement entered into (and signed and notarized) prior to the time the services were performed. 

More people should consider using so-called “care contracts”.  They are awkward to discuss and implement, they create taxable income to the care provider, and they arguably result in payment for care adult children and in-laws should provide parents out of love and respect.  On the other hand, they clarify expectations among the parties, and over time, can be an effective Medicaid planning technique.

 6.         Be Careful With Novel Techniques.

Example.  Parent’s estate plan provides a right of first refusal authorizing one of their children to buy the family home for less than fair market value (perhaps, for example, because the child given such right has rendered extraordinary care to one or both parents).  Medicaid must respect the right of first refusal, correct?

Generally, no.  The State takes the position that its estate recovery right supersedes any such arrangement.

First, for our older clients, a revocable trust enables them to appoint a co-trustee (usually a trusted family member, often a son or daughter) to serve with them in managing their financial affairs, which can be particularly helpful as a person ages.  Of course, a good financial power of attorney can be a substitute for this arrangement, but given a choice, a person is generally better empowered as a trustee than as an agent under a power of attorney.

Second, a revocable trust can be an effective way to accumulate assets for administration by the trustee or trustees, ease administration after your death, and perhaps enable you to minimize or avoid probate.  In this modern age, probate avoidance requires a careful review of the title to all of your assets, and proper funding of the trust.  If you do not know how to properly fund your trust, you need to talk with a lawyer.  Proper funding requires a review of all of your assets to make sure the necessary assets are properly titled in the name of your trust.

Third, a revocable trust is indispensable in enabling high net worth individuals to minimize or avoid federal estate taxes.

We are often surprised at the number of people who have revocable trusts, but do not understand the reason for them and have not kept them current.  Like all of your estate planning documents, you need to review your trust periodically to make sure your assets will be distributed as you wish, and to make sure your selection of a successor trustee remains appropriate, that is to say, that the person who is named in the trust to take over if you become incapacitated or pass away is in fact the person you want to have serve.

There are several good reasons to have a revocable trust (sometimes also called a “living trust”).

First, for our older clients, a revocable trust enables them to appoint a co-trustee (usually a trusted family member, often a son or daughter) to serve with them in managing their financial affairs, which can be particularly helpful as a person ages. Of course, a good financial power of attorney can be a substitute for this arrangement, but given a choice, a person is generally better empowered as a trustee than as an agent under a power of attorney.

Second, a revocable trust can be an effective way to accumulate assets for administration by the trustee or trustees, ease administration after your death, and perhaps enable you to minimize or avoid probate. In this modern age, probate avoidance requires a careful review of the title to all of your assets, and proper funding of the trust. If you do not know how to properly fund your trust, you need to talk with a lawyer. Proper funding requires a review of all of your assets to make sure the necessary assets are properly titled in the name of your trust.

Third, a revocable trust is indispensable in enabling high net worth individuals to minimize or avoid federal estate taxes.

We are often surprised at the number of people who have revocable trusts, but do not understand the reason for them and have not kept them current. Like all of your estate planning documents, you need to review your trust periodically to make sure your assets will be distributed as you wish, and to make sure your selection of a successor trustee remains appropriate, that is to say, that the person who is named in the trust to take over if you become incapacitated or pass away is in fact the person you want to have serve.

Finally, if you have a minor or adult child with disabilities, you need a special needs trust. Read more about special needs trusts under that section of our website.

Look for seasoned attorneys who belong to relevant professional organizations.  For example, in elder law, look for attorneys who belong to the National Academy of Elder Law Attorneys, and perhaps lawyers who have a certification in their field, from organizations such as the National Elder Law Foundation.  With regard to special needs trusts, look for lawyers selected for inclusion in the Special Needs Alliance, or perhaps lawyers who have joined the Academy of Special Needs Planners.

Once you have identified two or three possibilities, talk with them by telephone or ask to meet with them for a few minutes.  Explain briefly the nature of your legal needs.  Ask the lawyer how they charge for their services and when you can expect to have your work completed.  Select the attorney you feel most confident in and comfortable with.

A few brief words of caution.  Law is becoming ever more specialized, and you need to be sure the attorney you select has significant experience with the issues you need help with. A significant part of our practice is fixing problem special needs trusts.  Make sure you intend to use the services you are paying for.  Be wary of lawyers who appear to charge significantly less or more than their peers.  And be particularly wary of selecting an attorney based on the say so of morning talk show or cable television hosts and their guests.  Some lawyers pay large fees to talk show guests who in turn promote organization attorneys on television shows.  Some of these lawyers are no doubt qualified and capable.  However, not every member of the organization may be.  You still need to make sure the lawyer is qualified and right for you.