To be sure, tontines are illegal in America and have been since the early 1900s. There have been many articles of late, however, arguing for their return and putting the product back onto the menu of options that retirees may want to purchase. The idea of the tontine is rather simple. You get a group of people who all buy into the tontine, with their money going into the collective pool of cash. At certain intervals, you get paid money back. When people in the pool pass away, the money they invested does not go back to the investor’s family or estate. Instead it stays in the pool, allowing the payment to the remaining members to increase. The offensive part comes from the financial gain garnered by another’s death. Some people may view it as gambling on the lives of another.


In 1905 the New York based Equitable Life insurance company internal fight went public with accusations of self serving deals and political payoffs. In response New York launched a far reaching investigation that helped to shape insurance law for the next century. The Armstrong Committee started the career of future United States Chief Justice Charles Evans Hughes, who was a rabid opponent of gambling and helped to create the picture in the public that tontines are gambling. He further helped to draft the 400 plus pages of recommendations and reforms. At the time, New York had jurisdiction over 95 percent of the insurance industry in America. Moreover, within ten years most states enacted similar legislation. As such, the impact was national in scope. Among the reforms enacted was a prohibition on rebates by insurance companies and a ban on deferred dividend insurance.


If one accepts that the tontine is an unsavory form of gambling that should be outlawed, then credit default swaps may also be analogous. While gambling on the death of an individual or a group of individuals may not be as bad as gambling on a mortgage loan defaulting, it is unsavory just the same. Therefore, the idea of gambling is contained within professional, modern and regulated financial products. Many people currently invest in annuities, which is quite analogous to the tontine. In fact, some investment outfits are proposing financial products that have elements of a tontine contained within them. Indeed, the idea of varying payouts on based on the mortality of the payees is already imbedded in some pension products and some TIAA-CREF plans. Some influential authorities are also creating proposals to allow for tontines to exist in the market place, albeit with regulations in effect to insure appropriate management. It is possible that the market place will start to incorporate some hybrid financial products that contain for elements of a tontine investment product. No doubt with the aging of such a large and growing percentage of society, the marketplace would benefit from diversification. There are some, in fact maybe many, individuals who would favor buying into a tontine investment product, as it may feel more fair. It is not a far leap to imagine a future with tontines or tontine hybrids in it.  


On September 30, 2015 the Government Accounting Office (GAO) issued a report following a 15 month investigation regarding advances to pensioners, secured by monies that the pensioner would receive in their pension. The same day the Senate Committee on Aging held hearings on this exact issue to determine if indeed this practice is predatory as well as how the federal government will respond. The GAO conducted an undercover operation and received substantive offers from six different pension advance companies. The GAO report also indicated that there was a lack of disclosure on some fees, interest rates and various options, in addition to undisclosed affliations between 21 of the 38 companies that were investigated. The majority of the offers had interest rates of a stiffling 27 to 46 percent. While there is no set federal definition for usury, New York law defines usury as any loan which requires a payment of 25 percent or more; more about this below. Not surpringly the some of the companies focused their efforts on financially vulnerable pensioners with poor or bad cre dit. One of the recommendations from the GAO report was that the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission (FTC) educate consumers about these practices.


The GAO conducted a related investigation in June, 2014 following then recent concerns regarding lenders taking advantage of retirees in the form of pension advance loans. That report made specific recommenendations to the various federal agencies that are implicated in these class of loans, most importantly the FTC and the CFPB. On August 20, 2015 the CFPB, in conjunction with the New York Department of Financial Services filed a federal lawsuit in the Southern District of California alleging a violation of unfair acts or practices under the Consumer Financial Protection Act.


The GAO report categorizes such transactions as a form of elder financial abuse. Indeed, the strategies allegedly employed by the lenders are both usurious under most state laws and decietful in general. The lowest effective rate under any of the offers was 27 percent. Four states have no set percentage (Maine, Nevada, New Hampshire and New Mexico), while the highest permitted rate is Florida, with 25 percent. It is important to note that the GAO report indicates that that is only the floor for some of these transactions. Page 25 of the the June, 2014 report indicates that some of the transactions reached an interest rate as high as 90 percent. Missouri seems to be the only state that specifically bans pension loans, while Vermont regulates such loans. The lawsuit is also interesting because it highlights the marketing practices allegedly employed by some of the lenders. One of the more problematic practices was the characterization of what transaction was occuring. More specifically, the transaction was characterized as a “sale” and not a loan.


  • Are there unexplained or seemingly hidden fees built into the loan, as evidenced by unexpected or unexplained costs at closing?
  • Is there a truth in lending statement?
  • Does the borrower have to refinance, each time with a higher monthly payment to insure continued payment?
  • Is there a daily interest rate added to any late payments?
  • Are payments higher than expected?
  • Required to buy credit or life insurance if you pass away or become disabled during the life of the loan?


The Fair Housing Act of 1968 was one of the raft of civil rights acts promulgated to help make the promises of Civil Rights Era real.  In its current, amended form, it prohibits discrimination in the sale, rental and financing of housing based on, among other things, disability status.  The Age Discrimination Act of 1975 is another enactment that speaks to the issue of senior housing, as it bars age discrimination in any program or activity that receives federal financial assistance.  While there is a  “housing for older person exemption” that is beneficial for seniors who need the special services found in many communities, the right to restrict housing is limited to only certain delineated situations.  Indeed, the protections for senior housing are broad and robust.  


Despite the many protections, there are, nevertheless, many forms of discrimination that many people do not consider that are just as insidious and limiting as more obvious forms of housing segregation.  In 2008, Lillian Hyatt filed suit in the Federal District of Northern California, seeking “injunctive, declaratory and monetary relief” under the Fair Housing Act against The Sequoias, the continuing care retirement community where she lived.  The lawsuit was the result of Ms. Hyatt’s care facility’s policy of prohibiting walkers and wheelchairs in the dining area. Ms. Hyatt describes herself as “retired professor of social work and an active, vibrant and social member of her community.”  Despite her multiple disabilities, age has not diminished her moxie.  It is important to note that the parties settled their dispute without any admission of wrongdoing or civil liability.


In 2007, Ms. Sally Herriot filed suit in the Federal Northern District of California against Channing House, her continuing care retirement community.  Ms. Herriot alleged a violation of the Fair Housing Act as well as a violation of the Americans with Disabilities Act.  Ms. Herriot’s cases resulted in dismissal by the trial Court on summary Judgment, in favor of Channing House.  The Court, however, made an pronouncement in it’s ruling, when it noted that if a Plaintiff shows that a proposed accommodation is reasonable, the Defendant must show that the accommodations would fundamentally alter the nature of its business.  

In 2005, Mrs. Blanche Bell filed suit in the Federal District of South Carolina, against her continuing care retirement community in Bell v. Bishop Gadsden Retirement Community.  As with Ms. Herriot, the Court allowed for the continuing care retirement community to implement reasonable limitations on personal care aides.


Even as far back as 1990, in the Federal Western District of New York, two “elderly” women who were also physically handicapped and one of whom was diagnosed with schizophrenia, filed a lawsuit  alleging a violation of the Fair Housing Act in the context of disabled housing, and, by extension, senior housing, in Cason v. Rochester Housing Authority,  748 F. Supp. 1002 (W.D.N.Y. 1990).  The Court held that independent living requirements are not permissible under the Fair Housing Act and further outlined the broad protections included in the Fair Housing Act.  Id. 748 F. Supp. at 1006 – 1007.   

If you or a loved one find yourself subject to what you believe to be violations of right to fair housing, you must consult with an experienced elder law attorney.


New York, much like every other state in the country, has a system in place to deal with elder abuse.  It is both preventative and remedial in nature.  Many people are more familiar with analogous child abuse protection laws.  Unlike child abuse protection laws, New York does not have a mandatory reporting law and does not maintain a central registry on data on elder abuse.  In fact, New York is one of only four states that does not mandate reporting of elder abuse.  Unique amongst the states, New York has no law at all dealing with reporting.   It should be noted, however, that as of writing of the present, Assembly Bill A3743 for the 2015-2016 legislative session is pending which would create a mandatory reporting law and a central registry.  


Nationally, over one in ten elders reported some form of abuse in the last year.  Here in New York state, for every one case of elder abuse, 23.5 cases went undocumented.  Elder abuse can take the form of physical abuse, including sexual, financial, emotional and neglect.  Of those forms, financial is by far the most common, accounting for approximately 60 percent of the abuse (46.2 per thousand out of 76 per thousand). New York City has the highest rate of reported cases, while the Central, Southern Tier has the lowest level of elder abuse.  Nationally, the risk of elder abuse increases with a weak social safety support system.  Elder abuse also increases the risk of future hospitalization.  This in turn spawns even further costs, estimated at 5.3 billion dollars over a three year period.  The most likely abusers are adult children and grandchildren.  Not surprisingly, alcohol and drug abuse also heighten the risks.  Within care facilities, over 50 percent of the staff admitted to some form of abuse to a elder patient; quite a sobering statistic.  


Similar to child abuse protection matters, there are a host of services that assist those who are victims of elder abuse.   In the case of elder mistreatment, however, the solution is part of the problem.  Since there are so many service providers, there is an impediment to preventing and remedying the root problems creating the risk.  Since there is not one agency to coordinate and manage all services or act as a gatekeeper to oversee all issues that touch and concern a particular case, some situations that are at risk to develop into elder abuse or even cases of actual abuse are able to go undocumented.  For example, New York City has nine different programs to address elder abuse, while other cases enter official notice via the District Attorney’s Office, police, domestic violence programs miscellaneous social service agencies not associated with or equipped to deal with elder abuse.  Each portal has its own internal data collection system that essentially insulates itself from knowing what the next entity has.  

If you suspect Elder Abuse in any form, the best remedy and protection is to contact experienced elder law attorney and do not hesitate to Adult Protective Services at (844) 697-3505.  


More than half the states have filial support laws on their books. Most states that still have filial support laws as part of its statutory code rarely enforce them. The last time that Georgia successfully enforced its filial support law was 1936. Filial support laws are now coming back into focus, as judged by the relatively recent case of John Pittas in Pennsylvania. Pennsylvania more than most states has a more regular history of enforcement of its filial support statute, as judged from the several cases from 1994 and 2003. Louisiana recently enacted a filial responsibility act on June 29, 2015. North Dakota enforced its filial support law in 2013 when Four Season’s Healthcare Center sought payment from Elden Linderkamp, although the outcome of that case placed much weight on an allegedly fraudulent transfer of the parents land. These cases are the outliers, however.


There are no filial support laws in effect in New York. The New York legislature repealed the state filial support law in 1966 to enable the state to receive benefits under Medicare. The legal basis was that under federal statutory law, specifically 42 U.S.C. § 1396(a)(17)(D), a state cannot take into account an adult children’s financial assets when evaluating an individual’s eligibility for Medicaid. While New York does not have its own filial support laws, that does not necessarily end the inquiry for children concerned about potential liability for their parent’s care. Under the Full Faith and Credit Clause of the Federal Constitution a creditor can obtain a judgment in a sister state (or even foreign country) and domesticate it in New York and seek to enforce it, thereby making an end run around New York’s express denial of filial support laws. New Yorkers do not have to worry about this either due to a 1968 case which dealt with a similar issue. Most specifically, a Connecticut welfare investigator filed suit against a New York resident in Connecticut Courts to recover monies expended for the New York resident’s mother in a Connecticut hospital. The case was “transmitted” to New York Court where Mr. Mintz objected to such obligation in light of then recent filial support law amendment. The Court held while the 1966 filial support law amendment did not directly address the issue found in the case, the legislature only did so due to an “oversight” and that of all filial support obligations, “both intrastate or interstate,” are repealed by implication. In The Matter of Welfare Commissioner v. Mintz, 28 A.D.2d 14, 17 (N.Y. App. Div. 1967).  


Certainly an adult child can be financially liable for a parent’s financial support in New York. Contract obligations, such as under an admission agreements signed by the adult child to help the parent obtain entry into a desirable care facility, may create liability.


The Pennsylvania Association of Elder Law Attorneys is in favor of repeal of Pennsylvania’s filial support law on grounds of fundamental fairness and the belief that it creates disharmony.  


In April, 2015 the Financial Industry Regulation Authority (FINRA), an independent agency chartered by Congress, established a helpline for seniors.  On average, the helpline receives over 100 calls per month.  Many of those calls, FINRA states, highlight the concerns and daily issues that the financial industry face when handling senior investing.  FINRA indeed listened to these concerns and on October 15, 2015 created two potential rules governing the financial industry to help address some of the issues raised in the helpline calls.  All of the proposed changes revolve around the need to protect against the financial exploitation of seniors and other vulnerable adults.  In addition, FINRA also announced plans to amend its new account application template, to help “capture trusted contact information.”  


The first step in the process to creating any agency (or authority in this case) rule is the public comment period.  The first proposed rule, FINRA Rule 4512, would require financial firms to make reasonable efforts to obtain the name and contact information for a “trusted contact person.”  The goal is to help the firm and others prevent the financial exploitation of the client.  Firms may still open an account in the absence of this information and must make reasonable attempts to obtain this information for existing accounts.  The trusted contact person can be of assistance to the firm when deciding whether actual exploitation is occurring or occurred.  


Possessing “trusted contact person” information is meaningless unless it can use it for the benefit of the client.  As such, FINRA also proposed FINRA Rule 2165 which permits firms to place a temporary hold on the disbursement of funds whenever the firm reasonably believes that financial exploitation is occurring. The firm has a “safe harbor” when they hold disbursement of funds under certain circumstances.  Conversely, the firm is not under any legal obligation to hold disbursement of funds even if it suspects financial exploitation.  Finally, a “qualified person” may unilaterally decide to place a hold on disbursement of funds.  Once the firm places the account on hold, it must attempt to contact the trusted contact person that there is a hold, unless it is suspected that the trusted contact person is doing the exploiting.  


The final action that FINRA is taking in response to the issues raised via the senior helpline is to create a new account application template.  FINRA created the template form with the assistance and input of “senior industry professionals and other regulators.”  As noted, the new template helps to capture the “trusted contact person” information noted above for the firm.  Of particular importance is that the form now presents the terms and conditions in plain english, highlights certain disclosures and incorporates investor education information.  Use of the form is by no means binding on firms covered by FINRA.  


There are a number of questions and concerns that FINRA identified, which are of specific concern and which FINRA would like to have addressed during the public comment period.  

  • Should the firm require the consent of the client to contact the “trusted contact”?
  • What information can be relayed to the “trusted contact”?
  • How do firms currently manage the risk of obvious financial exploitation?  
    • Is the firms’ response dependent on whether or not the exploitation was an attempt or actually occured?  
    • Is the firms’ response dependent on whether or not the exploitation occured in the past, ongoing or likely to occur in the future?
  • Will firms take into account potential legal liability when it decides to place a temporary hold under the proposal?
  • Should the the definition of an account include accounts in which the protected adult is a beneficiary and not the principal?  

While the proposed rules may result in actual protection of many individuals, no one has a better tool bag of skills and knowledge than an elder law attorney.  Many of these issues could be best addressed by consulting with an elder law attorney, who can tailor a plan to protect all parties from exploitation and reduce its risk to a manageable level.  


The highly charged trial of former Iowa legislature Henry V. Rayhons is now over.  Five months ago, jurors voted to acquit the Defendant of third degree sexual assault.   One of the voting jurors was a local reporter who wrote a revealing and no doubt personally difficult article.  The article and ultimate outcome of the case should give pause to anyone who thinks that our system of justice is broken.  By all accounts, the jurors all made their decision based on the evidence and took their job seriously and with the utmost integrity.  The larger question that the case spawns, which can now be discussed given that some time has elapsed, is the issue of what rights do dementia patients retain?  More particularly, can a dementia patient consent to intimate contact with loved ones?  For example, can a husband of over 50 years, in the privacy of his wife’s room embrace her in an intimate and loving fashion?  What if the grandchild gives the same loving embrace?  Can the spouse sleep in the same bed without concern for legal liability?  Leaving the issue of intercourse aside, sexual expression is perhaps one of the most profound and important rights.  


The Arc and the American Association on Intellectual and Developmental Disabilities, organizations which serve a population with very similar needs to those with dementia or alzheimer’s, adopted a joint statement that “People with intellectual and/or developmental disabilities, like all people, have inherent sexual rights and basic human needs.  These rights and needs must be affirmed, defended, and respected.”  Most people believe that sexual interest wanes with age. The first detailed examination of its kind, in 2007, dispelled that myth, with sexual interest remaining high and activity higher than expected.  A growing body of advocates and experts agree that the best approach is to create guidelines that allow for intimate and sexual contact.  Dr. Tia Powell, a medical ethicist, states that “there is nothing about being cognitively impaired that means you wouldn’t necessarily appreciate being connected with other people through … sexual means.”  All of the discussion revolves around the issue of consent.  Often times capacity is situationally specific, where a patient may not be able to understand the medical complications and long term consequences of a certain decision, thereby evincing lack of consent.  That same patient, however, may have capacity to consent to something else. The long term harm to others and him/herself certainly plays a role in any issue of consent.  


The Hebrew Home for the Aged was the first facility of its kind that created and implemented policies that allow for sexual expression.  It is possible for institutions to implement policies that distinguish between intimacy and inappropriate relations.  Not surprisingly, many institutions make their decision based on their potential exposure to legal liability.  Often this is at the expense of the patient. Some lawyers advocate for powers of attorney to allow for the patient to engage in sexual activity, which would shield the facility from liability and appease state and federal regulators.  

With such profoundly powerful emotions and basic needs at issue, consultation with an experienced elder law attorney is needed.  Your lawyer can discuss the rights that you have as the client or caregiver.  Your attorney can also to craft a manner of dealing with your specific needs, tailored to your specific set of circumstances.  


On April 21, 2015, the Long Term Care Community Coalition issued a 30 page comprehensive report to document and report on the state of the long term care community.  It was a report card of sorts, where the report notes “significant problems in resident care, quality of life and dignity are pervasive across the country.”  Indeed, the report gives a failing grade for enforcement of the robust laws that provide promises of dignity and superior care.  More specifically, the report notes that long term care facilities have “inadequate care staff” and provide subpar care, lacking in dignity “because there is nothing stopping them from doing otherwise.”  There are too often little or no consequences when the facility fail to live up to the standards that they are contractually bound to, even when these shortcomings result in “significant suffering.”   

The Coalition wrote an additional report focused on New York for various reasons.  New York’s findings can be found here.  The New York report is even more detailed, at least as judged from the fact that it is 18 pages longer than the national report.  


The report is a first of its kind, insofar as it measures the integrity and safety of the long term continuing care facilities with markers that are centered on residents as individuals.  The authors sought to assess facilities by connecting the relevant data to the residents wherever possible.  The report was animated by the spirit of the 1987 Nursing Home Reform Law, which changed the focus from the business to the individual.  


One particularly helpful tool is a state by state comparison on several important measures. Statewide citation rates, the number of fines, amount of fines and the percentage of times that state regulators found actual harm to residents when they found violations.  Data for many of the aggregate findings can be found here.  The total amount of fines imposed by a state for the three years from January, 2012 to January, 2015 is an interesting data set, as it shows perhaps a different legal method for enforcement or perhaps a total abdication of enforcement.  Three states stand out in this regards.  Specifically, North Dakota, South Dakota and Wyoming all imposed no fines and obviously collected nothing in return.  Montana imposed only six fines and collected less than $19,000 in fines.  


  • The use, or, as amply shown, the overuse of antipsychotic drugging is another measure that the report examined. By its own admission, the data set is incomplete, insofar as the data does not break out any statistics for inappropriate antipsychotic administration.  The data coding that is used only applies to “unnecessary drugging”.  
  • Failure to prevent and treat ulcers are another area of specific inquiry.  Most disturbing, when states do cite facilities for inadequate ulcer care or prevention, in only 25 percent of the circumstances will they code the fine as harmful to the resident.  
  • Finally, the report focuses on the adequacy of the care staff employed by a facility

In closing the report correctly points out that the nursing home community routinely claim that it is one of the most regulated industries in America.  If those regulations and laws, however, are not enforced, the claim is meaningless. Additionally, it presents several means by which the industry can properly address theses issues.  

Donating an organ or even a whole body for scientific study or medical education is a relatively common event, which permits a person with perhaps a rare or not well understood disease to contribute to medical science.  Even if the person passes without a disease or any unique characteristics, medical schools need these volunteers for very important work.  Some people see their act as an act of charity, a way of giving a gift to society.  Organ donation helps to reach even more people by providing spare parts for surgeons, for those who need a replacement organ or tissue.  It has been estimated that 114,000 Americans are awaiting organ transplants and that one person is added to the list every 11 minutes and that each year 6,600 people die each year while on the organ transplant list.  


In 2005, the New York legislature passed a law which made it easier to give an anatomical gift.  Organ donation is easy enough now, as it can be a mere check the box designation on your driver’s license.  No additional signatures or witnesses are needed.  New York further permits a person to validly donate their organs or their whole body by way of will.  If the will is later invalidated, the donation is considered valid and any physician or medical school acting on the gift is shielded from liability.  Some people with religious or moral objections to donating their body may still decide to donate organs without violating their conscience or religion.  Even with these provisions in place, it is still best to discuss these decisions with your family and loved ones.  


New York adopted the Uniform Anatomical Gift Act in significant regards.  This streamlines the process by implementing the above noted reforms, which seem simple enough, but allow for an adult’s decision to be their own and respected by the law.  Other reforms speak to the same issue of empowering individuals to make their own decisions, by making it easier for a person to rescind their decision.


While organ donation is better known to many people as a relatively normal matter to address upon the passing of a loved one, it is not so with donating a body.  In many cases, the individual medical schools have their own requirements, such that there are a hodgepodge of rules.  Some only accept bodies from so far away.  Others will only accept bodies of a certain body mass index and almost none will accept bodies with certain infectious diseases, except under special conditions.  Usually the person who wants to donate their body has to communicate with the medical school in advance and will be up to the family to alert the medical school about their passing.  After the medical school is no longer able to effectively use the body it is often cremated.  

Whatever your decision is with organ or tissue donation or body donation it should always be in the context of your larger goals, which should be clearly spelled out in clear detail.  A trusted elder law attorney can help you speak with clarity in this very important matter.  


There are currently 1,900 continuing care retirement communities throughout the country, with approximately one half of a million residents.   As you may already know, continuing care retirement communities are communities that offer seniors or older adults – depending on the community – independent living options with various medical and social care features.  There is a recent trend to offer senior housing options in association with universities, which usually give the residents cutting edge medical care.  The residents also benefit from being allowed to attend college lectures and have access to the universities exercise and recreational activities.  


Generally the residents live in an apartment or even a small house wherein nursing, memory care and other specialty care are offered as needed.  According to the trend has been to increase the level of disclosure and increase the menu of options.  The end result is a complex financial transaction.  Just as you would have an attorney review a real estate sales contract, given the various additional features and costs that can be added to the contract, it is always best to have an experienced elder law attorney review the contract.  There are, however, several things you can do to help avoid pitfalls when you start your search and start to inquire of the various facilities.  Addressing these issues will also help your elder law lawyer provide sound advice.   

  1. What type of advanced care do they have on site?  This particular topic may spawn a lengthy conversation about specialists, specialized nursing care, even housekeeping and upkeep for those with alzheimer’s or similar forms of dementia.  
  2. What events and activities exist locally?  It is not uncommon for communities tied to college campuses to grant access to sporting events.  
  3. Exercise and recreational activities on site?  Many often have a golf course, or other facilities, such as a pool or tennis court.
  4. What services are part of the default, minimum contract, what additional services are available and costs?  
  5. What is the breakdown on the costs and what may be refundable?  Many facilities will return your funds only if you stayed for so long, or if they can have some re-occupy your unit.  This is perhaps the most important single issue to address if your health is okay.
  6. What are the entrance standards?  There are usually age requirements, health and functionality standards.  
  7. Is there a waiting list?
  8. What happens if the resident cannot pay?  Does the facility try to maintain the resident in place or locate a suitable alternative?  Do they work with the resident in advance to avoid an potential future issue?
  9. Food and eating options?  Is there a cafeteria or some sort of dining facility?  Some places offer gourmet dining, others allow access to high end kitchen equipment for the residents to prepare their own meals, while even others have a round robin of residents who cook for other residents on a rotating schedule.  

Whatever your taste or desire, the decision should not be taken lightly.  After you have narrowed your list down to a few, ask for the pricing information.  Your elder law attorney will be able to best advise when you obtain all of the disclosures, applications and notices.

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