My Room, My Home: Extended Stays in Hotels Are a Precarious Solution for Displaced Older Persons

This blog post was written by Andrew Bardetti a third year student at Northeastern University School of Law and a  Program on Human Rights and the Global Economy (PHRGE) Fellow with the Elder Abuse Prevention Project

 

Four years ago, Ms. Smith, now seventy-eight, came in from the cold and requested a room at the hotel.  Without signing any papers, the hotel offered her an extended stay at a discounted rate.  Now the hotel is threatening to remove her without notice because the original below market offer is costing them profits.  Meanwhile, Mr. Crane, age seventy-two, and his partner had a room at an extended stay hotel for the last seven months.  When his partner inexplicably left, he could not afford the daily rate.  Unlike Ms. Smith, the extended stay hotel sought to remove Mr. Crane by sending him a notice to quit.

In the past few months, the Elder Abuse Prevention Project has worked on a few cases similar to Ms. Smith and Mr. Crane.  Currently, for those displaced from their homes and looking for a replacement that same day, there are few options beyond shelters like the Pine Street Inn.  However, the transition from the home you were living in for the last few decades to a shelter which requires you to leave every day is far from conducive for persons vulnerable due to aging.  In the midst of this dire need for affordable housing, Ms. Smith and Mr. Crane turn to extended stay hotels which drain limited resources and do not provide a typical tenancy arrangement.  Yet would they ever qualify for the protections typically afforded tenants?

Historically, a tenant is different from a guest (or lodger) because “only the tenant has an interest in the land.”[1]  A guest is more transient in nature, with “but a passing interest in the use of the premises and has relatively free access to other temporary quarters.”[2]  Generally, “hotel guests are traditionally considered licensees and not tenants.”[3]  The relevant landlord-tenant statutes reinforce this distinction as hotel guests are specifically excluded from statutory notice requirements, protections against invasion of quiet enjoyment, and defenses and counterclaims in summary process actions.[4] 

In jury instructions distinguishing a tenant relationship from a licensor-licensee relationship, retired Judge E. George Daher notes “the law provides that several different factors can be considered” when determining the existence of a tenancy.  These include “(1) whether consideration – ‘usually the payment of rent’ – was given for the tenancy; (2) the intent of the parties; (3) the language of any agreement; and (4) the extent of the parties’ control over the premises.”[5]  Consideration and the extent of the parties’ control, referred to as exclusive possession, are two pivotal factors in determining whether a hotel guest could become a tenant at will.

A tenancy at will “arises out of an agreement, express or implied, by which one uses and occupies the premises of another for a consideration – usually the payment of rent.”[6]  Further, “any consideration is sufficient to support a contract is all that is required to constitute an agreement from which a tenancy may result.”[7]  What constitutes sufficient consideration and possession?  In one case, an oral agreement with payment of residential taxes, homeowners’ insurance, and utility bills was sufficient consideration.[8]  However, two payments for utility bills and use of a “playroom area” were inadequate consideration.[9] Likewise, no payments were inadequate consideration and, because the defendant resided with his mother, no exclusive possession existed either.[10]  So long as a hotel guest pays for the room, consideration should be satisfied but typically a hotel guest does not have exclusive possession because “[t]he immediate control and the supervision of all parts of the premises are retained by the” hotel.[11]  The consequence of finding no tenancy at will is that a notice to quit is sufficient judicial process to remove a hotel guest from their room.[12] 

Even with a broad interpretation of the housing statutes, hotel guests are unlikely to be afforded additional judicial process absent consideration and exclusive possession.  In Serreze v. YWCA of Western Massachusetts, Inc., plaintiffs were in a transitional living program for battered women and their children.  Defendants attempted to remove them by issuing a thirty day notice and subsequently changing the locks.  Plaintiffs claimed they were unlawfully evicted without judicial process and, unlike Ms. Smith and Mr. Crane, had written agreements for an apartment which granted them exclusive right of possession and control.[13]  The Massachusetts Appeals Court held that a tenancy did exist yet recognized that the existence of one was not dispositive for the protections and remedies of § 14 to apply.[14]  The court based its reasoning on broad terms in the statute such as “any residential premises” and “occupant” to remark that a self-help eviction in these circumstances would constitute breach of quiet enjoyment.[15]  While these terms could encompass a hotel guest, the situation in Serreze is distinguishable from hotel guests like Ms. Smith and Mr. Crane because they are not granted exclusive possession of the room.  

Massachusetts simply does not have enough resources and protections in place to assist vulnerable persons when they are displaced from their homes.  Further, courts may be wary of finding extended stays in hotels are tenancies because it would obviate the difference between tenants and licensees.  Despite the lack of a tenancy, persons vulnerable due to aging are spending what limited resources they have on extended stay hotels because the shelter either cannot house them or it is a traumatic place for them to stay.  Extended stay hotels are merely a band aid for a larger systemic issue – a lack of affordable housing options.  Massachusetts must do more to transition vulnerable older persons to affordable housing options.

[1] Tenant, Lodger, and Guest: Questionable Categories for Modern Rental Occupants, 64 Yale L.J. 391, 396 (January, 1955).

[2] Id. at 402.

[3] Hon. David D. Kerman, Bench Memorandum for Residential Summary Process Cases I (15), (2016).

[4] M.G.L. c. 186, § 13, 14, and c. 239 § 8A.  But see Serreze v. YWCA of Western Massachusetts, Inc., 30 Mass. App. Ct. 639, 643 (1991) (those outside of a classic tenancy may avail themselves of § 14 protections). 

[5] 33 Mass. Prac., Landlord and Tenant Law § 1:6 (3d ed.) (September 2017).

[6] Williams v. Seder, 306 Mass. 134, 136 (1940).

[7] Story v. Lyon Realty Corp., 308 Mass. 66, 70 (1941).

[8] Ducker v. Ducker, 1997 Mass. App. Div. 147, 149 (1997) (oral agreement and payment of residential taxes, homeowners’ insurance, and utility bills sufficient consideration for creation of tenancy)

[9] Griffin v. Cogliano, 2002 Mass. App. Div. 55, *4-5 (2002) (two payments for utility bills and use of a “playroom area” was inadequate consideration)

[10] Lavelle v. Lavelle, 2012 Mass. App. Div. 150, *2 (2012) (no consideration because no payments and no exclusive possession because defendant resided with mother)

[11] Assessors of Everett v. Albert N. Parlin House, Inc., 331 Mass. 359, 362 (1954) (charitable corporation considered in possession of rooming house).

[12] See Lavelle at *2 citing West v. First Agr. Bank, 382 Mass. 534 (1981) (superseded by statute on different grounds).

[13] Serreze, 30 Mass. App. Ct at 644.

[14] Id. at 643.

[15] Id. 

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One Step Forward, Two Steps Back: Scammers Prepare to Target Seniors as Government Readies New Medicare Cards

This blog post was written by John Harrington, a volunteer attorney with the Elder Abuse Prevention Project and our resident ScamBuster!  Medicare open enrollment begins on October 15th, so this is particularly important and timely information

It seemed like a good idea:  Congress passed legislation back in 2015 that required the Centers for Medicare & Medicaid Services (CMS) to stop using Social Security numbers on seniors’ Medicare cards and start using a new, randomly-generated 11-digit number to identify each Medicare participant.  The concept was to deter fraud by getting valuable Social Security numbers off Medicare cards and providing new cards and numbers to every single Medicare participant.[1]  All 58 million of them.

 

Unfortunately, ever-creative and flexible scammers inevitably found ways to exploit the switchover to new cards.  Scammers have an arsenal of weapons at their disposal but they’re most likely to employ one or more of the following:

  • Make telephone calls masquerading as a government official to “inform” seniors of the card switchover and “explain” that they just need to “update” their information in order for the senior to get the new Medicare card. Reality:  CMS will mail new Medicare cards to all Medicare participants automatically—participants need not do anything or pay anything in order to receive their new card
  • Make telephone calls pretending to be staff at your doctor’s office and asking for the new Medicare number “just to update our records” or “ensure correct billing.”
  • Set up desks at local health fairs and offer “freebies” like nutritional supplements in exchange for seniors’ new Medicare numbers and other personal information.[2]

To make things even more complex, the annual open enrollment season (the period during which you can switch your Medicare Advantage or Part D prescription plans) is coming up from October 15th through December 7th this year.  Scammers love to call seniors and tell them that open enrollment means they must switch plans or purchase a particular plan.  The reality is that there is no requirement to purchase such a plan or to switch plans if you already have one.  Note though that it is a good idea to review your plan annually and compare its costs for your prescription medications to those of other plans.

What’s the harm in providing your Medicare number or other personal information?  Simple:  scammers can exploit your Medicare number to fraudulently bill Medicare for expensive healthcare equipment they never provided (think power wheelchairs or complex braces and splints).[3]  Then if you someday need similar equipment, CMS may refuse to supply it on the grounds that you’ve already received it (!).

How to protect yourself against the scammers?  Remember a few fundamental rules:

Safeguard your Medicare number! Treat your Medicare card and number (both your current and the forthcoming new one) like you would a credit card.  Only give them directly to your healthcare providers!

Remember that CMS will contact you only through written, mailed letters. CMS won’t call you, much less ask for your Medicare number or other personal information over the phone!

Know that anyone requesting your Medicare number over the telephone is probably a scammer. So just hang up!

Remember that there’s no obligation to purchase a Medicare Advantage or Part D plan or to switch plans if you already have one. It’s a good idea to review your plan annually and compare its costs for your prescriptions to those of other plans.

 

 

[1] New Medicare Cards Offer Greater Protection to More than 57.7 Million Americans, Centers for Medicare & Medicaid Services, at https://www.cms.gov/Newsroom/MediaReleaseDatabase/Press-releases/2017-Press-releases-items/2017-05-30.html

[2]How to Protect Yourself Against Common Medicare Scams, U.S. News & World Report, at https://health.usnews.com/health-news/medicare/articles/2015/10/15/how-to-protect-yourself-against-common-medicare-scams

[3] New Medicare Scams Spread Across U.S., AARP, at http://www.aarp.org/health/medicare-insurance/info-2015/medicare-scams-spread.html

Fighting Elder Hunger and Malnutrition Through Community Gardens

 

This blog post was written by Victor Absil, a second year law student at Boston University School of Law and an Equal Justice Works Elder Justice AmeriCorps law student who worked with the Elder Abuse Prevention Project of Greater Boston Legal Services this Summer

Malnutrition and food insecurity are widespread problems that can have far reaching effects on older adults.  Over ten million elders faced the threat of hunger in 2014, an increase of 65% from 2007 and the problem continues to grow.[1]  Unfortunately, only 42% of eligible older adults are enrolled and receiving Supplemental Nutrition Assistance Program (SNAP) benefits.  Even for those that receive SNAP benefits, many must still find alternative sources for food such as food banks just to get through the month. For older adults, hunger is caused by a number of factors, including poverty, but also other issues such as lack of transportation, social isolation, limited mobility, and health problems.  It can also be caused by elder abuse.

Different forms of elder abuse may lead to an older adult becoming food insecure or even malnourished.  The reasons this happens can vary – it may be the result of “passive” caretaker neglect such as when an elderly spouse caregiver can no longer grocery shop or prepare meals or it may be the result of willful neglect when a caretaker withholds food from a vulnerable elder.  It may also be a byproduct of financial exploitation whereby someone is taking an elder’s income or assets, and not leaving them enough money to buy food.  It can also result from self neglect – when an elder with dementia or mental health issues is no longer able to properly shop for or prepare food.  Different forms of elder abuse leading to food insecurity or malnutrition happens every day both in older adults’ homes as well as in institutional settings such as nursing homes where elders may be dependent on staff for access to proper amounts and types of food.

One very creative way to address the issue of food insecurity and malnutrition is by creating a community farm or garden in senior living environments including nursing homes. This would allow for access to good, healthy food and help combat social isolation, which is a risk factor for elder abuse, by creating more of a sense of community. It could also offer the opportunity for intergenerational projects with older adults and children gardening together.  Some nursing homes have already begun to realize the benefits of community farms. For example, Arroyo Grande Care Center has a community farm where residents grow vegetables.[2] Wheelchair accessible planters and modifications such as raised beds make it easier for elders who have trouble bending or performing other gardening tasks.

Malnutrition stemming from elder neglect is absolutely a growing problem, but it can be combated in part by community gardens, which can offer access to healthy, nutritious food, a sense of purpose, and help create a community of people working together.

 

 

[1] National Council on Aging, Senior Hunger Facts, 2014

[2] See Arroyo Grande Care Center, http://arroyograndecare.com/ (last visited July 17, 2017).

Combatting Social Isolation with Intergenerational Programs

This blog post was written by Emily Bordenski, a third year law student at  New England Law School and an Equal Justice Works Elder Justice AmeriCorps law student who worked with the Elder Abuse Prevention Project of Greater Boston Legal Services this Summer

The National Council on Aging lists social isolation along with diminished cognitive ability (such as dementia or Alzheimer’s disease) as prime risk factors for elder abuse.[1] Many older adults are isolated because of loss of physical or mental capacity, or through the loss of friends and family members. Intergenerational programs are just one way that communities may effectively fight social isolation in older adults by helping elders to form connections on a more intimate level.

What is an intergenerational program?

An intergenerational program is designed for younger and older generations to come together to interact and engage in mutually beneficial activities. There are many benefits to intergenerational programs, including socialization and learning opportunities for both children and older adults. Approximately, 288,085 older adults in Massachusetts live alone. Intergenerational programs provide important benefits to older adults such as increased connectedness and less isolation, which can lead to improved physical and mental health.  For communities and providers who work to prevent elder abuse, the need to fight social isolation is paramount. Every community can help by hosting intergenerational events or encouraging the establishment of intergenerational groups. Many successful examples already exist.

Intergenerational Programs = Elder Abuse Prevention

Another benefit of intergenerational programs is the ability to prevent future elder abuse by advocating and teaching the younger generation to be respectful of elders.  Intergenerational trust building is a largely untapped resource for understanding and preventing elder abuse. Mistreatment, loneliness, neglect, and bullying are terms that are heard and felt across every generation. Caring and meaningful relationships across the generations can help younger and older people feel cared for, needed, and part of a larger community.

 September is Intergenerational Month – so get started!

[1] NCOA. “Elder Abuse Statistics & Facts | Elder Justice.” NCOA.org. National Council on Aging, 25 August 2016. Web. 4 November 2016.

Caregiving and Elder Abuse

This blog post was written by Briana Mansour, a second year law student at Suffolk University Law School and an Equal Justice Works Elder Justice AmeriCorps law student who worked with the Elder Abuse Prevention Project of Greater Boston Legal Services this Summer

The ability to care for an aging loved one is a gift. Unfortunately, the selfless act is one that can also take a debilitating toll on caregivers, especially caregivers who are family members. In certain cases, that toll can lead to elder abuse and neglect. What factors may lead to caregiver abuse or neglect and what can be done to assist caregivers and prevent abuse?

For people of all ages, the role of caregiver can be challenging. A 2015 survey reported that 34 million Americans were caregivers to adults 50 years and older.[1]  The report indicated that one in five caregivers experience high levels of physical strain and 38% reported care giving to be emotionally stressful. In addition, most family caregivers have no formal training to undertake difficult physical as well as emotional tasks.  Caregivers who struggle to perform the necessary tasks because they have their own physical or mental impairments or who are overwhelmed may neglect the elder, or even mistreat the elder out of frustration.

Caregiver Neglect

In Massachusetts, caretaker neglect is considered a type of elder abuse.  Neglect is when a caregiver does not provide for an elder’s safety or for his or her physical or emotional needs.  This includes paid caregivers as well as family caregivers or family members who hold themselves out as caregivers. Caregiver neglect could be motivated by willful behavior by the caregiver who intentionally withholds care or necessities or the neglect could occur when the caregiver is unable to fulfill caregiving responsibilities due to his or her own issues such as mental illness, lack of resources, advanced age, disability, or stress. 

Indicators of neglect may include:

  • Allowing an elder to remain in unsafe living conditions (no heat or running water; fire hazards);
  • Allowing an elder with dementia to wander into dangerous situations;
  • Denying an elder food, medicine, clean and appropriate clothing, access to medical care or medical devices;
  • Unsanitary living conditions: dirt, bugs, soiled bedding and clothes, being left dirty or unbathed

Help For Caregivers = Elder Abuse Prevention

To avoid elder abuse and neglect, caregivers should seek additional assistance when needed to sufficiently care for their loved ones.  Signs for when it may be time to seek additional help for your loved one:

  • When your health is limiting the ability to keep your loved one and yourself safe
  • Increased frustration and forgetfulness
  • Inability to perform everyday functions for yourself
  • Diminished participation in activities that once were enjoyable
  • Neglecting the living space or personal hygiene  

If you require additional assistance to care for your loved one, know you are not defeated. It requires great strength to accept that your own health is decreasing, and if you were to continue being the sole caregiver you would be putting yourself and your loved one’s health at risk. By taking care of your well-being, your loved one will also be better taken care of.

[1] National Alliance for Caregiving and AARP, (2015).

Outreach to Chinese Elders

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The Elder Abuse Prevention Project is dedicated to ensuring that older adults in the greater Boston area live free from abuse, neglect, and exploitation. As a part of that larger mission, we seek to reach the elders in the Boston area who are most vulnerable to abuse. We’ve found that immigrants tend to be especially vulnerable to abuse and exploitation because many immigrants experience isolation, may not trust American authorities, and may be especially reliant on their younger family members. We have therefore made it a priority to reach out to immigrant communities, and have begun by focusing on Chinese elders.

When we first conducted a presentation for Chinese elders, our presentation materials weren’t well equipped for our audience. They couldn’t be easily translated and they didn’t reflect the needs of the Chinese elder community. Since then, we have connected with members of Boston’s Chinese community and our own Asian Outreach Unit to develop specialized materials for Chinese elders and their providers. Our new materials include simpler sentences that can be more easily translated, data and statistics that are specific to the Chinese elder community, and information on how Chinese elders in particular can seek help. We also have handouts that are written in Chinese.

In preparing our improved materials, we learned quite a lot about the Chinese elder community. The community is diverse and realities differ based on the area in China that each elder is from, and their experiences living in the United States. Generally though, we have found that many Chinese elders don’t relate to the term “abuse”. When we discuss elder mistreatment with Chinese elders, we’re careful with the language that we use so that the elders aren’t alienated. In addition, we’ve come to understand that many Chinese elders are reluctant report abuse by a family member, for fear embarrassing the family as a whole. We try to address that fear by showing that there are varied forms of help available, some of which don’t involve filing an official report. We also emphasize that seeking help has the potential to improve the lives of everyone involved in the situation, including the “perpetrator”.

As the Elder Abuse Prevention Project continues to grow, we hope to continue our outreach to immigrant communities. Already, we’re working on developing a training for Russian Elders. If you’re interested in bringing a training to a group of elders or providers whom you work with, please contact Betsey Crimmins at 617-603-1576. We look forward to continuing to grow and expand our offerings.

 

The Heart and Soul of Elder Abuse Prevention – Our EJW AmeriCorps Law Students

Briana Mansour; Victor Absil; and Emily Bordenski

The Elder Abuse Prevention Project of Greater Boston Legal Services (EAPP) is extremely fortunate to be hosting three Equal Justice Works Elder Justice AmeriCorps law students who have done incredible work on behalf of our clients this Summer.  We have greatly enjoyed having Victor, Emily, and Briana as colleagues and are grateful for all of the people that they have been able to assist through legal advocacy and community outreach.

Victor Absil

Victor joined GBLS in the summer of 2017 as an Equal Justice Works, Elder Justice AmeriCorps JD intern with an Equal Justice America fellowship. He was born and raised in the Chicago area and received a BA in Philosophy from DePaul University. He is a rising second year, J.D./M.P.H. student at Boston University. Before starting law school he worked on an organic farm growing healthy vegetables for Chicago communities. During his first year at law school, Victor was a representative for the Health Law Association and beginning in the fall, he will be a member of the American Journal of Law and Medicine.

Throughout the summer Victor has enjoyed working as a legal advocate on a variety of issues facing the elderly population. Some of the major issues he encountered include Medicaid and SSI terminations, wrongful evictions, and working to help spread awareness of laws and various programs that can help the elderly to meet their basic needs and stabilize a healthy living environment. 

“Learning what it is like to work in a public interest organization and how to use practical skills to help those in need has been an incredibly rewarding experience that I will continue to learn from as I move forward in life. I’ve found that one of the best ways to prevent elder abuse is by assisting elders to become more independent and aware of the different forms of elder abuse and the organizations that are here to help.”

Emily Bordenski

Emily joined GBLS in the summer of 2017 as an Equal Justice Works Elder Justice AmeriCorps JD Intern. She grew up in Carroll County, Maryland. She received her B.A. in Health Administration and Public Policy from the University of Maryland, Baltimore County (UMBC) and is currently a rising third year at New England Law | Boston. She serves as the Technical Editor of Due Process, President of the American Health Law Association and a member of the International Law Society, the Public Interest Law Association, and the CORI Initiative. During the summer of 2016, Emily went abroad to London, England where she studied international comparative law topics such as criminal and business law. This experience gave her the opportunity to learn about the needs of communities all over the world. Now, she is concentrated on representing the needs of elderly community members here in Boston. 

“I think the best way to prevent elder abuse is through community outreach and spreading the word about this epidemic. Elder abuse is a complex problem that demands understanding and support by people of all ages. The Elder Abuse Prevention Project at GBLS provides free outreach to anyone who is willing to listen!  During these sessions, we provide information on all different types of elder abuse, examples of situations that some may not consider elder abuse, and resources for people who are victims or may know a victim of elder abuse. As a society, we need to be aware of the epidemic of elder abuse, proactive in preventing the problem, and persistent in making changes.”

Briana Mansour

Briana joined GBLS in the summer of 2017 as an Equal Justice Works Elder Justice AmeriCorps JD Intern. Briana was raised in Leominster, Massachusetts and currently lives in Boston, Massachusetts where she is attending Suffolk University Law School. She earned a B.A. in Psychology from The University of Tampa in Florida. Briana is a member of her school’s Immigration Law Association and she previously interned at the Worcester District Court.

Briana is thrilled to have the opportunity to advocate for elders and help preserve their rights. Since joining GBLS, Briana has advocated on behalf of multiple elders, preparing them for housing and small claims court and dealing with opposing counsel. She has also conducted extensive legal research, allowing her to offer clients legal advice and helping the GBLS staff attorneys answer complex legal questions. Briana is particularly skilled at forging connections with elders and making them feel comfortable opening up to her.

“Spreading awareness through education and being responsive to the signs of abuse will help combat the increasing prevalence of elder abuse.  Providing elders with a platform to project their voices will help prevent elder abuse.”

*  Thank you to Equal Justice Works Elder Justice AmeriCorps for choosing EAPP as a host site