Wednesday, February 12, 2014
Peter Strauss, Co-Director of the Elder Law Clinic at New York Law School, leads off his school's recent Law Review symposium by reminding us of a powerful early piece published in 1983 by Marion Roach. She recounted the first moments when she realized her mother her mother "might be going mad." She went on to explore her mother's Alzheimer's and the family's struggle in her well-regarded memoir, Another Name for Madness.
Professor Strauss' Introduction opens the symposium issue on the theme of Freedom of Choice at the End of Life: Patients' Rights in a Shifting Legal and Political Landscape. Videos of the presentations are available here.
Tuesday, February 11, 2014
Southern California estate planning attorneys Bradley Erdosi and Laura Bromlow offer an interesting list of "Essential Things Everyone Should Know About Estate Planning, Probate and Elder Law," for the January 2014 issue of Orange County Lawyer. The full article is available to bar association members, and is also available on Westlaw.
Among the items, is the caution that "An Intended Beneficiary May Never See a Dime," a warning that special efforts -- and certification by an "independent attorney" -- may be needed to protect a bequest or other covered donative transfer to a caregiver from disqualification arising from a statutory presumption. Complying with California's rules will also help to protect the drafting attorney against an allegation of malpractice. They explain:
"California Probate Code section 21380 (Lexis 2011) outlines the presumption of fraud and undue influence regarding donative transfers to certain people, including a “care custodian” of a dependent adult. Therefore, the gift to your dear friend will be presumed to be the result of fraud or undue influence. However, the drafting attorney can overturn this presumption by following certain steps outlined in California Probate Code section 21384 (Lexis 2011). In completing a Certificate of Independent Review, the certifying attorney must be an “independent attorney” (as defined by the statute) and: (1) counsel the client-transferor, including the nature and consequence of a transfer to the potentially disqualified person, and (2) determine that the intended transfer is not the result of fraud or undue influence. If the above requirements are satisfied, the attorney then signs and delivers to the client a 'Certificate of Independent Review,' the language of which is set forth in section 21384."
Thursday, January 9, 2014
I suspect that Professor Nina Kohn (Syracuse, and a recent visitor at Maine) is having one of those "phone book" moments this week (as when Steve Martin's movie character jumps in excitement to receive the new phone book, because he's now "in print"). Her new casebook, Elder Law: Practice, Policy and Problems, published by Aspen, is now "in print" and a copy arrived on my desk this week.
I have to admit, a bit ruefully, especially to my co-writers on this blog (who each have great classroom texts), that I'm not always faithful in my affections for casebooks. I probably change texts more often than the average professor when teaching Elder Law courses, in part because I find new editions invigorating to read and use in teaching classes in this rapidly changing field.
Thus, I've already done a scan of Nina's new book, and it is fun to see her choice of cases, policy materials and (best of all), her incorporation of problems and exercises in each chapter. The book also appears to be "efficient" as it frequently incorporates rules and statutes into the text in "original" form, thus reducing the cost to students for statutory supplements.
I particularly like her use of several sample documents, such as a health care proxy and an advance health care directive, to give opportunities for readers to compare and contrast language. The book also does not shy away from ethical and practical concerns connected to Medicaid planning. For example, I'm looking forward to a careful read of her section on spousal refusal. She includes materials on cutting edge topics, such as grandparent rights and obligations, and the potential distinction between palliative care and hospice.
Elder Law profs are an amazingly busy group of folks -- just read Kim Dayton's plans for UNretirement on this blog this week if you have any doubt -- and I'm in awe of the prolific efforts of colleagues in this field.
Monday, November 11, 2013
In my experience, the Elder Law Bar -- those lawyers who work hard to help older adults and family members through the maze of options in deciding how to handle long-term care needs and end-of-life planning -- are also a warm, generous group of professionals to hang out with. When you need an answer to a tough question on one of your cases, someone always takes that call. When you need a speaker for a meeting, conference, or classroom, someone always volunteers, and then goes above and beyond, to provide a little something extra in terms of value for the audience.
Another example of the generosity of the bar occurred this semester in my Elder Law class, when a graduate of our law school, Robert C. Gerhard, Esq. stepped forward to teach a class for me when I was called out of town. The topic was "setting up your own elder law practice," and Bob was full of practical advice, including both encouragement and appropriate warnings. Bob is one of many great practitioners who have shared experiences with our students.
But Bob went above and beyond, providing each of the students in the class with a copy of the latest edition (2013) of his treatise, Pennsylvania Medicaid: Long-Term Care (Bisel Co.)
I had a chance to review the book over the weekend. It is a practical "bonanza," in the sense that it offers both narrative explanations of Medicaid law as practiced in Pennsylvania, and all of the key forms and hard-to-find informal state guidelines about the process. It is the kind of book that is useful both to the public as a "first step" and fellow practitioners who need reminders about the many next steps. Chapters 4, 5 and 6 are golden, using clear language to explain "achieving resource eligibility," the application process, and the ever-more challenging "estate recovery" rules.
I hope all elder law and estate planning professors have alums and colleagues in practice who are both generous AND good writers. Thanks, Bob!
Tuesday, November 5, 2013
Alice Hoffman, author of more than a dozen great novels, plus books for younger readers, recently published her first nonfiction work, Survival Lessons, inspired by her own life and the lives of those around her. It was a perfect book for me to pick up recently, when I was a bit weary from travelling too much, and she has good words on several topics related to aging.
At the start of the book, she provides a lovely epigram. I don't think it is giving away too much to repeat it here:
There is always a before and an after.
My advice, travel light.
Choose only what you need most
to see you through.
Thursday, October 24, 2013
I was delighted when earlier this month Canadian short story writer Alice Munro was named the winner of the 2013 Nobel Prize in Literature. I'm a long time fan. To add to the good news, one of my favorite stories by Munro has been republished this week in The New Yorker.
In addition to providing a window into a good marriage in twilight, Munro's short story "The Bear Came Over the Mountain" offers a great opportunity to explore with students some of the older theories that affected care of individuals with dementia in nursing homes. It helps us see why practices have changed, and thus may even offer hope about how more changes could be made. I won't say more about the story, because Munroe says it all much better.
The story was also made into a lovely movie, "Away from Her," with the always elegant Julie Christie playing the key character of Fiona.
UPDATE: When I first wrote this post, there was an active link to the full story. But when I rechecked, it seems the story is now behind a pay wall. I've linked to an excerpt. The whole tale is worth pursuing!
And my thanks to Carlisle Attorney Frances Del Duca for pointing out the New Yorker republication, before we shared a bit of wine with a great group of friends.
Friday, September 27, 2013
For example, I just finished teaching a series of cases that ask students to evaluate the voidability of large end-of-life gifts made by older individuals, usually to persons who appear to be caregivers or recent "befrienders." Were the transactions voluntary even if unwise, or were they the product of an unstable mind or undue influence? Close calls on most of the cases.
The cases that interest me most were the ones where an attorney represented the older person during execution of the documents. In one case, the court commented that the attorney who completed the transaction met with the new client for an hour on a Sunday afternoon and performed a series of "tests" that satisfied the attorney about the client's capacity to complete transfers of the bulk of his real estate. However, a geriatric psychiatrist who later evaluated the same individual, found the individual to have advanced dementia of an Alzheimer's Disease type and concluded the individual would not be able to understand the significance of the deed transfers signed earlier, even though he appeared to be "oriented as to time, place, and person."
Which professional's testimony carried the day? The court credited the attorney's testimony that his client was "lucid" while completing the documents in question, and pointed to the fact the doctor "conceded" that the individual had "moments of lucidity."
Exactly what "tests" does a lawyer, any lawyer, use to evaluate cognitive function? Perhaps every seasoned lawyer has a series of tried and true questions or techniques. But I suspect that many lawyers rely more on instinct than tests, and certainly most transactions by older adults are not challenged.
Should lawyers go further to assess capacity? To help frame the discussion on whether and when to go more deeply into questions of capacity, guidelines are available. Members of the American Bar Association (ABA) and the American Psychological Association (APA) participated in an interdisciplinary task force, which led to three separate documents, including worksheets that may be useful in any assessment of capacity:
- Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers
- Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists
- Judicial Determination of Capacity of Older Adults in Guardianship Proceedings: A Handbook for Judges
The good news is that all three documents are available on the internet. The less good news is the documents are copyrighted and permission is needed to make additional copies for distribution to a group or audience. The handbooks have been available since 2006. Nonetheless, I suspect most attorneys, many psychologists, virtually all other medical professionals, and a heck of a lot of judges have never heard of the handbooks.
Any opinions about the usefulness of these handbooks to practitioners?
Thursday, September 19, 2013
Congratulations, Nina! I look forward to seeing this new resource.
UPDATE: I've corrected the new book's title based on information from Nina. Apparently the editors overlooked the author's preference for alliteration!
Thursday, September 12, 2013
In Pennsylvania, as I blogged last month, we're following the high-profile prosecution of a daughter for allegedly assisting in the suicide of her 93-year-old father, who was on hospice when he reportedly ingested a fatal dose of morphine.
For an alternative perspective on end-of-life decisions, Knocking on Heaven's Door: The Path to a Better Way of Death has just been released by publisher Scribner. Katy Butler, the author, expands on an earlier article she wrote for New York Times Magazine, recounting her education about medicine, death and her journey with her father following a major stroke, his heartbeat preserved by a relenteless pacemaker, even as his mind and will-to-live were devastated by dementia.
Her book is already receiving high profile accolades, including "Letting Go," Stanford Professor Abraham Verghesse's thoughtful essay in the New York Times.
Hat tip to Penn State Law Professor Laurel Terry for spotting the Verghesse book review.
We're confronting major social issues in the USA, including movement toward national recognition of same-sex marriages. Is it possible we are also ready to expand consideration of legal recognition of rights for very ill persons to choose their own death?
Thursday, September 5, 2013
Over the Labor Day weekend, I happened to catch a great public radio interview with author Will Schwable about the book inspired by his two-year conversation with his mother about books. The End of Your Life Book Club describes how their mutual love of reading provided opportunities for the two to discuss life and death, both directly and indirectly. Why was this important? The conversations took place while his mother was receiving chemotherapy for pancreatic cancer. He said they never had "the big talk" you might expect when confronted with mortality -- rather, they had dozens and dozens of small talks.
It made me think about conversations with my own family members. We live far apart and while I try to make it home frequently (at this point, I'm the only family member who flies), I know I don't make it home often enough. But we talk a lot on the phone and I think we have also developed ways of speaking directly and indirectly about the present and the future. Lately, with my parents that has often been through funny conversations about Dancing with the Stars. (Thank goodness for on-demand television access, since I rarely catch the show on first airing.) We talk about who is "doing well for their age" or who isn't. We suggest who we would like to see on the show (Julie Andrews?), and who makes us cringe (sorry, Cloris Leachman). It has become shorthand for talking about memory, mobility, capacity, and our own aches and pains.
What works for your family? Or are you part of a (rare?) family who talks about such topics directly? (Comments open below)
Wednesday, September 4, 2013
For those who are fans of lyrical author Rudolfo Anaya (Alburquerque, Tortuga, Bless Me, Ultima), his newest book draws on personal experiences to explore youth, aging, loneliness and loss in The Old Man's Love Story. The novel is part of a Chicano/Chicana series published by the University of Oklahoma Press.
The multiple award-winner Rudolfo Anaya is Professor of English Emeritus at the University of New Mexico. I was lucky this summer in catching a film festival viewing of the independent movie made from his best known work, Bless Me, Ultima. Lovely.
Monday, August 26, 2013
While on sabbatical in Northern Ireland in 2010 at Queens University Belfast, I first encountered Atlantic Philanthropies. I kept running into innovative projects such as QUB's Changing Ageing Partnership -- and it would turn out the projects had started with seed-funding from Atlantic Philanthropies.
I came to realize that this private foundation was involved in cutting edge fields in many parts of the world. For example, it was funding aging research, health care projects, and higher education programs, such as the creation of the now thriving University of Limerick in the Republic of Ireland. However, the organization had often flown well below the radar screen, and for the early years of its operation, it was virtually impossible to "apply" for a grant. The organization might find you if you were doing sufficiently "good" work, but not usually the other way around. Eventually that approach changed, and AP opened its door for more traditional grant applications.
The man behind the organization's start was Chuck Feeney, an Irish-American businessman and philanthropist who quietly gave away the bulk of the fortune he made with Duty Free Shoppers before anyone even know he was a billionaire. The fascinating story of Chuck Feeney was told by Dublin-based author Conor O'Clery in the book, The Billionaire Who Wasn't, published in the US in 2007.
After reading the book, I "tuned in" to what was happening with private philanthropy, and soon realized that core funding from Atlantic Philanthropies was also behind many important legal service operations in the U.S., including the National Senior Citizens Law Center.
Chuck Feeney's behind-the-scenes impact predated Bill Gate's more transparent support for public philanthropy. I think it is safe to say that researching Chuck Feeney's history led me to add Nonprofit Organizations Law to my teaching package (which includes Elder Law, of course) at Penn State Law. I wanted to know more about whether and how NPOs based in the US can maximize their impact.
I thought that we already knew more or less the whole story of Atlantic Philanthropies, especially as the foundation was slated to go out of existence with a "spend-down" giving plan that would exhaust its multi-billion dollar endowment by approximately 2017.
It turns out there is more to the story, including a recent struggle for control over Atlantic Philanthropies that goes to the heart of 82-year-old Chuck Feeney's original vision. That story is now being told, again by Conor O'Clery, in a new edition of The Billionaire Who Wasn't and excerpts recently released in the Irish Times newspaper. Even if you have not seen the movie Jobs, about Steve Jobs at Apple Computers, you can imagine the conflict that can develop when you combine innovative "genius" and for-profit corporate policy-makers; it appears the intrigue can be just as great in the world of nonprofit foundations.
Hat tip to Una Lynch in Northern Ireland for alerting me to the latest news on Chuck Feeney and Atlantic Philanthropies.
Tuesday, March 16, 2010
Here’s what you’ll find:
Its All About the Money: Potential Repercussions of Denying Disabled Veterans the Freedom to Hire an Attorney
By Benjamin W. Wright
Sentencing Elderly Criminal Offenders
By Dawn Miller
Biting the Bullet: Applying the Objective Test for Terminating Treatment in Cases Involving Incompetent Patients
By Caroline Klosko
Reverse Mortgages and the Challenges of the Current Financial Crisis
By Paul V. Black
Interests in Stark Conflict: The Case for Congress to Close the Stark Law’s Whole Hospital Loophole
By Michael J. Ritter
What Happens to the Correctional System When a Right to Health Care Meets Sentencing Reform
By Stacy L. Gavin
The Current Challenges of Long-Term Care Insurance and Solutions for the Future
By Erin K. Ferris
State of Flux: Older Refugees in the United States
By Jennifer Harry
You can also access the 2009 NAELA Student Journal through the NAELA web site, http://www.NAELA.org. Log on to the site and look under Members>Communications>Publication for the 2009 NAELA Student Journal as well as the archives of NAELA News and NAELA Journal.
The NAELA Student Writing Competition is meant to encourage law students to focus on the issues of Elder and Special Needs Law as a legal specialty. Submissions can address any topic regarding legal issues affecting seniors or people with disabilities. For more information, go to http://www.NAELA.org and look under Professionals>Law Students>Student Writing Competition.
Wednesday, February 17, 2010
The Indiana State Bar Association and the Indiana Bar Foundation are pleased to announce that the Indiana Laws of Aging handbook, formerly known as the Legal Reference for Older Hoosiers, is available for purchase at a minimal price!
Members of the following ISBA sections, which supported the publication's printing, have received a complimentary copy of the handbook: Elder Law Section, Family & Juvenile Law Section, General Practice, Solo & Small Firm Section and the Probate, Trust & Real Property Section.
Additional copies of this publication can be purchased for just $1.50 (plus shipping). The handbook is also being widely distributed to elder law programs throughout the state at no cost.
To purchase a copy of the Indiana Laws of Aging handbook, please fax the order form to 317.266.2588.
To view an electronic copy of the handbook, visit the Indiana Bar Foundation Web site, www.inbf.org, and click on the Laws of Aging button on the left-side column of the IBF home page
Monday, February 15, 2010
PROVIDENCE, R.I. —The cat’s uncanny. It knows when death approaches.
At first this was just a curious observation. Now it’s an undeniable conclusion, first published two years ago in a medical journal and now in a new book that came out last week: “Making Rounds with Oscar: The Extraordinary Gift of an Ordinary Cat.” (Hyperion, $23.99).
Oscar is the cat. David Dosa is the author and the doctor. And it would be a mistake to assume from the title that Oscar merely accompanies Dosa at Steere House in Providence, which cares for patients with terminal dementia.
“It’s definitely his world,” Dosa says. “He just lets us work there.”
Oscar lives at the nursing home. And in his roughly five years there, Oscar has sensed the imminent deaths of some 50 patients whom he insisted on sitting beside and keeping company as their lives came to a close.
“It’s not like he dawdles,” Dosa writes. “He’ll slip out for two minutes, grab some kibble, and then he’s back at the patient’s side. It’s like he’s literally on a vigil.”
Dosa is an assistant professor of medicine at Brown University. He has faith in science, not in a cat. Well, that was once the case. Dosa’s faith has been shaken.
“My own intellectual vanity made it easier for me to reject the notion that some errant feline could know more than we as medical staff did,” Dosa writes. “I felt strangely elated by the notion that I could be completely wrong.”
A few years ago Dosa realized he was completely wrong. Two patients on opposite sides of the nursing home were dying. A female staff member who earlier noticed Oscar’s aptitude to sense the onset of death took Oscar out of one patient’s room and brought him to the room of the other patient who was regarded as more deathly ill.
To read more about Oscar the Cat, http://www.projo.com/lifebeat/content/artsun-oscar_01-31-10_61H80A6_v26.3a627cd.html