Tuesday, September 23, 2014

The Honor Commandment & Women as Caregivers

Naomi Cahn, Harold H. Greene Professor of Law at GW Law sent me a link to an interesting article that she co-authored. Women, Eldercare, and the Honor Commandment appears in the Berkley Center for Religion, Peace & World Affairs.

Starting the article with the story of Naomi and Ruth, the article explains the authors' "work exploring modern expressions of the Honor Commandment – the Biblical command to honor one’s mother and father – ... [with] many stories of how daughters (and sons) honor their parents."  The article mentions that although the gender gap is closing as far as child care, there is still a significant gap for elder care, with the bulk of caregiving being provided by women. The article proceeds with summaries of several stories and includes quotes from the women caregivers.

"Overall, our research shows that the Honor Commandment not only continues to motivate the providing of elder care, but also reflects the full complexity of practical, emotional, and spiritual care of the family." But the caregiver dilemmas are not limited to the Jewish or Christian religions and are found throughout the world, regardless of religion.

As a society, we may be better off if a sense of honor is the motivation for care of our elders, rather than coercive or regulatory measures. The Honor Commandment and its analogues in other religions and cultures provide a moral framework and path forward that respects both individual wishes and family integrity. But the path of honor can become a “daughter track,” ...  where responsibility for caregiving falls disproportionately on women.  Providing more adequate support for caregiving would have a particularly significant effect for women, ensuring their ability to provide care while also making available the fullness of their services as equally respected worker-citizens.  Strengthening our secular laws to help support caregiving can profoundly affect how people live the Honor Commandment, improving the lives of those who receive and give family care—especially women...  (citations omitted)

The full article will appear in volume 30 of the Journal of Law and Religion (June 2015).  In addition, keep an eye out for a symposium volume in the Journal (co-editors Naomi and Amy Ziettlow) (forthcoming 2016) "will ... feature a slate of international, interdisciplinary, and interfaith scholars addressing the world-wide impact of the Honor Commandment."

Thanks Naomi!

September 23, 2014 in Current Affairs, International, Religion | Permalink | Comments (0) | TrackBack (0)

Sunday, September 21, 2014

Death Bed Radio

Seems like there have been several interesting developments in the past few weeks regarding end of life decision making. Thanks again to Charlie Sabatino, Executive Director of the ABA Commission on Law & Aging. former NAELA president, national expert on end of life issues and all around great guy, for sending me an email about the series run on WNYC public radio. The station ran a 3 part series on "death beds"  The first, Death Beds: Terminally Ill, But Constantly Hospitalized aired on September 8, 2014.  The second, Death Beds: Too Little, Too Late for Many New Yorkers Seeking Hospice aired the next day, and the third, Death Beds: Living Wills Slowly Take Root aired on September 10, 2014.

Each  includes the audio recording as well as the print story. Worth a listen!

September 21, 2014 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Thursday, September 18, 2014

Institute of Medicine-New report: Committee on Approaching Death

The Institute of Medicine of the National Academies has released a new report on end of life issues. The report, Dying in America: Improving Quality and Honoring Individual Preferences Near the End of Life  was released on September 17, 2014. The report brief offers an explanation of the importance of this new survey, including the sheer numbers of American elders who are living with some limitations on ADLs, chronic illness, cognitive issues and more.  As well the report points to issues with the health care system, including problems in accessing care, a lack of palliative care specialists and knowledge about end of life care, and a health care system that works out of sync, with economic incentives. The brief concludes with a call for "person-centered, family-oriented approach that honors individual preferences and promotes quality of life through the end of life [as] ... a national priority."  The report is "a comprehensive assessment of the knowledge gaps, structural problems, and financial disincentives that hamper delivery of optimal care and makes cross-sectoral recommendations to achieve compassionate, affordable, sustainable, and effective care for all Americans."

The website also includes a link to key findings, core components, an infographic and a quiz (5 questions) which is suitable for use in class.

The full report may be purchased as a book or downloaded as a pdf for free (registration is required).
Thanks to Charlie Sabatino for alerting me to this!

September 18, 2014 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Home, Housing & Boomers

My colleague and dear friend Mark Bauer (current chair of the Aging & Law AALS section) sent me a link to an article published in CityLab.  The article is titled Where Are the Baby Boomers Going to Live Out Their Golden Years? The article mentions a recent report from Harvard's Joint Center for Housing StudiesHousing America's Older Adults. The Harvard website for this project includes a number of resources, including the report, an interactive map, an infographic, videos of the keynote address and panel discussion. If you don't have time to read the entire report, be sure to read the executive summary, available here.

The CityLab article mentions some other helpful sources, including an AARP survey on preferences regarding aging at home. The article references aging and disability, looking at the suitability of Boomers; homes for them in the future

The housing stock built for Baby Boomers largely wasn't designed with accessibility in mind. There are five universal-design housing features that tend to address a variety of disabilities that residents face as they age: no-step entries; single-floor living; switches and outlets set at lower heights; extra-wide hallways and doors; and lever-style doors and faucets. Nearly 90 percent of existing homes have one of these features, according to the report—but just 57 percent have two.

The article notes that more recently built homes are more likely to include at least some of these universal design features, but concludes

Yet these detached, single-floor, single-family homes—and the automobile-centric society that comes with them—are only going to fall further out of step with the needs of residents over time. And sooner rather than later. Homes can be retrofitted with lever-style handles and no-step entries (albeit at great expense). It's much harder to turn exurban and rural communities where older Americans live into places that nurture seniors rather than isolate them.

September 18, 2014 in Current Affairs, Housing, Retirement | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 16, 2014

Going Higher, Wider and Faster ... at Age 67

Okay -- this isn't "elder law" but it certainly is a nice moment for the older competitor. Call this inspiration. 

As reported here and here, Ian Millar, age 67, had a $500,000 payday on Sunday, winning the Spruce Meadow International show jumping competition in Canada with his horse Dixson.  They topped second place finisher, 20 year-old rising star Reed Kessler and her mount Cylana, with a clean and faster finish in a two-competitor, final jump-off.  The jumps were set at maximum height and width.  And before you say, "but the horse does all the work," just imagine staying with the horse over huge jumps like this -- at any age.  Of course, Ian does have experience, twice winning this particular competition with his most famous horse, Big Ben.  But that was in 1987 and 1991, before Reed was even born! (Photo from Spruce Meadow Media Services, via Chronicle of the Horse)Ian Millar, Age 67, Wins at Spruce Meadows

September 16, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, September 12, 2014

First Annual Jameson Crane III "Disability and the Law" Student Writing Competition

Thomas Jefferson School of Law  (that just happens to be located in one of my favorite cities, San Diego) is hosting a new writing competition to encourage outstanding student scholarship at the intersection of "law and medicine" or "law and social sciences." The purpose is to promote "understanding" and to further the "development of legal rights and protections" of those with disabilities.  Papers may be on any topic relating to disability law, including legal issues connected to employment, government services and programs, public accomodations, education, higher education, housing and health care.

The First Annual Jameson Crane III Disability and the Law Writing Competition is open to currently enrolled law students, medical students and doctoral candidates in related fields in the U.S.

The winner of the competition will receive a $1,500 cash prize, while two second place winners will each receive $1,000 case prizes, plus the possibility of publication. 

The deadline for submission of entries is January 15, 2015. 

Additional details are available here, or by contacting Professor Susan Bisom-Rapp at Thomas Jefferson Law.  Thanks for letting us know about this new opportunity for students, Susan.

September 12, 2014 in Current Affairs, Discrimination, Grant Deadlines/Awards | Permalink | Comments (0) | TrackBack (0)

Will Americans Still Be Paying Off on Student Loans As Seniors?

In a GAO study titled "Inability to Repay Student Loans May Affect Financial Security of Small Percentage of Retirees," researchers reveal that a significant -- and growing -- proportion of "student loan" debt is owed by Americans aged 65 or older.  In addition to the growth in the total amount of "senior" student loan debt, from $2.8 billion in 2005 to $18.2 billion in 2013, the GAO findings include:

  • Relatively few households headed by individuals 65 or older hold student loan debt -- the number is about 706,000 households in the U.S. -- but the amount they owe may be significant, with estimates that the median debt owed is around $12,000, as compared to a median for those aged 64 and younger of $13,000.
  • Most -- about 82% -- of this debt was for the individual's own education.  It is not known whether how "old" the loans are.
  •  Older borrowers hold defaulted federal student loans at a higher rate -- and defaults can have conquences, including offsets on Social Security payments.  Generally speaking, student debts cannot be discharged in bankruptcy; however adjustments may be possible to keep the individual's monthly income above the poverty threshold.

For more discussion on the GAO report, see "Senior (Citizen) Student Debt Rising," in Inside Higher Ed by Michael Stratford.  Hat tip to Professor Laurel Terry for pointing out this new study. 

September 12, 2014 in Current Affairs, Ethical Issues, Federal Statutes/Regulations, Retirement | Permalink | Comments (0) | TrackBack (0)

Book Review--Government Regulation in Excess?

Our friend and health law/elder law rock star, Marshall Kapp, sent me a note about a book review  he authored (thanks Marshall) that appears in The Gerontologist Advance Access.  The review is of the book, The Rule of  Nobody: Saving America from Dead Laws and Broken Government by Phillip K. Howard.

You may be wondering why a blog for elderlawprofs is posting about laws and government regulations.  Three words: nursing home regulation. Although a subscription is required to read the full review, an excerpt is available for free, much of which I have reproduced here

The brilliant satirist Jonathan Swift said long ago, “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.” (Brainy Quote, n.d.). Swift certainly did not intend that remark as a compliment to either laws or cobwebs. Nonetheless, almost all laws originate to accomplish some reasonably defensible public purpose, even though ... poorly drafted, inconsistently ... enforced, and perpetuated beyond ... their original justification ....             

In this latest project, Howard despairs that regulation in the United States has veered far from its proper function as a setter of boundaries or parameters within which individuals are empowered... (end of excerpt).

Since Marshall sent me a full copy of the book review, I can explain further what the abstract does not, how the author uses nursing home regulations as an example. Marshall describes this on page 1-2 of his review

One of the primary examples that author Howard utilizes throughout The Rule of Nobody to illustrate his constructive critique about the largely dysfunctional nature of the contemporary American regulatory situation is the overwhelmingly extensive and complex set of formal command and-control rules we have promulgated on the federal and state levels to govern the operation of nursing homes.

Marhsall offers a bit of history as to why we have so many laws and regulations for nursing homes and suggests that now is "the time to seriously contemplate smarter, rather than just bigger, regulation...." (review at page 2). He notes that the author provides examples of when the regulations don't end up benefitting the residents, with current regulations stifling innovation. (review at 3).  Marshall concludes his review with this summary

[T]he Rule of Nobody is noteworthy for the nation generally and for long-term care policy-makers particularly... Settling for being “in the ball park” is damning with faint praise, indeed. The only option for many vulnerable individuals is dependence on the benevolence of nursing home owners and workers and lawmakers’ careful guidance. Society owes them a system of oversight and influence that not only aspires to, but effectively achieves, a much loftier standard.

Another one to add to the reading list.

September 12, 2014 in Books, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Thursday, September 11, 2014

Put Me In Coach!

Put me in coach---a phrase often associated with a competitive sport of some sort. We think about coaches for teams, but we need to broaden our perspective, to think about coaches in a much broader aspect:  life coaches, marriage coaches, business coaches, study coaches, and now... retirement coaches.  The NY Times ran an article, Finding an Identity Beyond the Workplace:  There's More to Retirement Than Financial Planning.  We have heard stories before of people whose identities are so intertwined with working, that they are lost when they retire.  Coaches can help those folks, and others, in finding goals for their post-work time.

This entry in the non-sport coaching field, retirement coaching, can help with goals and motivation, according to the article. "Retirement coaches ... are popular these days. The cadre has emerged in the crowded coaching field to cater to a growing number of boomers who are grappling with what’s next."  According to one expert quoted in the article, part of this need for assistance is longevity--with the years post-working stretching out longer in the future, people are looking for help in defining what to do in those years.

Here's how one retirement coach describes what they do  "[w]hen someone retires, they tend to be literally levitating with excess productivity that can’t be channeled ... We help them slowly build a basket of activities."

So what's in the basket? It could be a veritable potpourri of activities, such as "part-time work, humanitarian endeavors, entrepreneurial adventures and artistic pursuits, [as well as] ... a search for legacy and significance ...."  A significant number of clients  of one coach are described by the coach as "hav[ing] some kind of ‘give back’ gene. They want to get involved with a charitable board, or find ways to be a teacher or tutor.”

There are plays to be run in retirement coaching, just like in sports. It takes time for the recently retired to learn those plays and to be prepared for the "game."   This means the first play run will be "a self-assessment that examines values and strengths and clarifies goals, hopes and dreams for the future."  The playbook involves running numbers, too, using "retirement calculators to be sure they won’t outlive their savings."  But although a football coach can use a stop watch to see how fast a player can run the 100, it's more intangible with retirement coaching.  "[I]t’s far harder to compute in advance how to best navigate the intangibles like building a new social network and finding value in how you spend your time in retirement."

How long do you need your coach? It simply depends.  Cost does as well.  There isn't quite as much regulation for these types of coaches as there are in sports, but there still are at least two organizations, according to the article.  So why use a coach? One of the coaches is quoted: “This is a fresh track adventure ....Be patient. For the first time in your life, you need to be able to deal with white space. People get addicted to busyness. White space is the source of creativity and strategic thinking, so don’t fill up your dance card too fast.”

Since all of us are "in the game" of life and aging, we all need to think about our retirement readiness. Now we can have our own coach for that, and maybe there will be an app as well. (Please note my sports analogies are an attempt, feeble as it may be, to have a bit of fun in writing this post. Any sports analogy errors are definitely my own).

 

 

 

September 11, 2014 in Consumer Information, Current Affairs, Retirement | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 9, 2014

Intergenerational Housing--A Cool Idea From Oregon

One of the things (among the many things) I like to post about is the concept of age-friendly communities that allow a person to age in place.  Governing ran an article last month, showcasing a cool project in Oregon that provides intergenerational housing. Young and Old Find Common Ground in Oregon Housing Community explains about Bridge Meadows where elders and foster children reside in the same housing complex, where the units are provided for free to the foster parents.  "Bridge Meadows, a 36-unit apartment complex in [Portland] ... mixes incomes, generations and skill sets in a way that enlivens and enriches the lives of young and old alike." Twenty-seven of the units are for lower-income elders with the rest for those who will be foster parents (or even legal guardians) for at least 3 children within 5 years. Not only do the elders get a break on the housing costs they get to be involved!

[E]lders volunteer their time to work with the kids in the complex. For at least 100 hours per quarter, they tutor, cook, babysit, participate in outdoor activities and so forth. The complex also offers a computer room, library, public courtyard and community garden to help foster connections.

As far as the kids, the program has had a pretty significant impact. Of the "29 children ... 24 were formerly in foster care. Of those 24, just over half are either adopted or in legal guardianship and the rest are on their way to adoption or legal guardianship. In other words, they're all now part of functional families, in permanency or on their way."

The head of Bridge Meadows is pretty enthused about this model's ability to be duplicated, noting that it serves as a solution for 2 serious problems our society is facing, (1) "how to civically attend to our rapidly aging population and" (2) "how to place all the troubled kids peppering children and family services systems in the country."

The author has some concerns about effective replication but still considers this program jan important addition to the spectrum of strategies.  It is a nifty idea! More information about the project, as well as photos, are available on their website.

September 9, 2014 in Current Affairs, Housing, Other | Permalink | Comments (0) | TrackBack (0)

Monday, September 8, 2014

Tragedy on Many Fronts: South Korea Story on Aging Women Near U.S. Base

From the Associated Press in Pyeongtaek, South Korea, an especially troubling history with issues of abuse, human rights, comparative law, international relations, military accountability, and aging:

"More than 70 aging women live in a squalid neighborhood between the rear gate of the U.S. Army garrison here and half a dozen seedy nightclubs. Near the front gate, glossy illustrations posted in real-estate offices show the dream homes that may one day replace their one-room shacks. They once worked as prostitutes for American soldiers in this "camptown" near Camp Humphreys, and they've stayed because they have nowhere else to go. Now, the women are being forced out of the Anjeong-ri neighborhood by developers and landlords eager to build on prime real estate around the soon-to-be-expanded garrison.

 

'My landlord wants me to leave, but my legs hurt, I can't walk, and South Korean real estate is too expensive,' says Cho Myung-ja, 75, a former prostitute who receives monthly court eviction notices at her home, which she has rarely left over the last five years because of leg pain. 'I feel like I'm suffocating,' she says.

 

Plagued by disease, poverty and stigma, the women have little to no support from the public or the government. Their fate contrasts greatly with a group of Korean women forced into sexual slavery by Japanese troops during World War II. Those so-called "comfort women" receive government assistance under a special law, and large crowds demanding that Japan compensate and apologize to the women attend weekly rallies outside the Japanese Embassy.

 

While the camptown women get social welfare, there's no similar law for special funds to help them, according to two Pyeongtaek city officials who refused to be named because of office rules. Many people in South Korea don't even know about the camptown women."

For more of the story, see "Aging South Koreans, Once Prostitutes for U.S. Troops, Being Pushed Away from Base They Never Left."

September 8, 2014 in Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International | Permalink | Comments (0) | TrackBack (0)

Sunday, September 7, 2014

Photographer Vivian Maier: A Search for Her Heir Began with Law School Studies...

One of the challenges of teaching a course called Wills, Trusts, and Estates, is drawing diagrams to chart intestate succession in an effort to explain what happens when you don't create an estate plan (or your written estate plan has gaps or defects).   I'm always looking for good stories to incentivize my students.

That's one reason why I found "The Heir's Not Apparent" by Randy Kennedy so interesting, as the New York Times writer describes the search for missing heirs of American photographer Vivian Maier, who died in 2009, apparently without a will.   According to the article, a suit to establish the rights of a previously unknown heir, a first cousin in France,  has been filed by Virginia attorney David Deal (himself a photographer), "who said he became fascinated with Maier's life in law school and took it upon himself to try to track down an heir." 

Maier's post-death fame as a "street photographer" has created a market for her huge cache of mostly unpublished photos, part of which was purchased by an individual for $380 in a thrift auction in Chicago.  However, the suit rests on the premise that "[u]nder federal copyright law, owning a photographer's negative or a print is distinct from owning the copyright itself.  The copyright owner controls whether images can be reproduced and sold."

A 2014 documentary, Finding Vivian Maier, helps to give "color" to her interesting story of a life quietly filled with black and white photographs.

 

 

September 7, 2014 in Current Affairs, Estates and Trusts, Film | Permalink | Comments (0) | TrackBack (0)

Saturday, September 6, 2014

Our Produce Harvests are "Graying"

I claim New Mexico as one of my several "homelands."  Thus, a story about how chile farmers are confronting the aging of their work forces caught my eye.  This time of year is when the air in New Mexico grows more pungent with the smell of fresh green and red chiles roasting in road-side stands.  From the Albuquerque Journal:

"New Mexico’s chile fields are graying. The generation of farmworkers on which producers have long depended are aging out of the workforce. Farmers say local youth are loathe to take their place picking delicate green chile under a scorching sun, while tough border security and a lack of immigration reform has kept Mexican workers away.

 

Growers across the nation from Washington to South Carolina have long complained of a labor shortage, and they often blame their distance from the border with Mexico, which for decades supplied this country’s agriculture workforce. But New Mexico’s Hatch Valley – an hour’s drive from the Mexican border – is in the same boat, even though a skilled picker can make considerably more than the guaranteed state minimum wage of $7.50....

 

Juan Carlos Soto hunches over knee-high chile plants at the Adams farm in the Hatch Valley, where green fields of chile, corn and pinto beans stretch to the base of the brown Uvas mountains. He came to the U.S. illegally as a farmworker in 1984, he said, and earned citizenship through the 1986 Immigration Reform and Control Act, which granted amnesty to millions of undocumented foreign workers but did little to change the framework for legal immigration of workers going forward.

 

Soto carefully snaps long green chiles off their stems with eye-catching velocity – a skill that only experienced chile pickers have, farmers say. 'This is where I have worked my whole life,' he said, explaining that he taught his daughter to work the chile fields but adding proudly that she became a nurse. 'The youngsters want to work in the shade.'"

For more of the story, read "Chile Farmers Face an Aging Workforce." And before you dismiss this story as just about green chiles, remember that in many regions of our country, long-term care industries also depend on immigrant work forces -- another reason for getting serious about creating fair, safe avenues for legal immigration.  

September 6, 2014 in Current Affairs, International | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 3, 2014

Not Your Typical Phone Call

We get calls of all types, on our cell phones and for those of us who still have them, our land lines. Imagine a phone call offering you counseling on end of life options. Sound far-fetched? Not so much for some. Kaiser Health News (KHN) ran a story in late August,  Operator? Business, Insurer Take On End-of-Life Issues By Phone. The article describes a company  "Vital Decisions... [where] [a]fter sending a letter (people rarely respond) counselors essentially cold-call to offer what they describe as “nondirected” end-of-life counseling" to those who are quite ill.  The company uses social workers to make the calls, which are short (about 15 minutes). Here's what the program is designed to achieve:

to build a relationship over the phone, [with the patient] so [the patient] might be comfortable discussing his situation and his goals. Then he’ll be empowered to communicate those things with others, including his family and his doctors. He could also choose to allow the counselor to talk to his doctors or family directly. It’s paid for by insurers and federal privacy rules permit this for business purposes.

According to Vital Decision's CEO, the goal is to facilitate discussions about end of life care and empower the patient's decision-making.  "The goal is for patients to receive care in those final months that aligns with what the patient wants, even if that's the most aggressive treatment available." Some are skeptical of this phone approach because of the lack of in-person interaction and the challenges to remain neutral, which is why one expert calls for "full transparency from insurers and the company to guard against bias in the sessions."

September 3, 2014 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Monday, September 1, 2014

When You Need a Passport to Visit Mom

The NY Times ran an article a few days ago about retirees who are spending the rest of their lives (or a substantial part thereof) traveling...abroad.  The August 29, 2014 article, Increasingly, Retirees Dump Their Possessions and Hit the Road focuses on the rising number of individuals who choose to travel when they retire. The article cites to statistics from the Commerce Department that "[b]etween 1993 and 2012, the percentage of all retirees traveling abroad rose to 13 percent from 9.7 percent...." As well, over a quarter of a million Social Security recipients receive their benefits at an oversees address,  close to "48 percent more than 10 years earlier...."  The article discusses the value of post-retirement travel, from checking items off one's bucket-list, to quoting experts on how today's retirees are changing the notion of a "typical" retirement.  One expert describes the travel value this way: "an extended postretirement trip can assuage a sense of loss from ending a career."  Of course, many chose domestic travel over international, but the opportunities are there-whether to see the world, or to give back to a global community. 

The article highlights a trend of sorts. Of course, not everyone may choose this path for retirement. But it does make for an interesting question when deciding where to spend the holidays when mom is now living in another country ....

Thanks to Stetson Law student Erica Munz for bringing the article to my attention.

September 1, 2014 in Current Affairs, Housing, International, Retirement, Travel | Permalink | Comments (1) | TrackBack (0)

Thursday, August 28, 2014

The Latest Ruling on "The Most Litigated Will In History"

Pennsylvania has a long and colorful history with charitable trusts and bequests coming from wealthy entrepreneurs, including the histories of The Barnes Foundation and The Hershey Trust, both of which have generated "classic" cases studied in law school courses.

This week, a Philadelphia Court of Common Pleas (the trial level court) issued the latest decision on the Stephen Girard Trust from 1831, the "painstaking details" of which created Girard College.  For much of its existence Girard College functioned as a multi-year, residential boarding school program for orphan boys.  Past court cases have resulted in rulings that permitted significant "deviations" from the terms of the wealthy philanthropist's will, including admission of minority students, female students, and expansion of the definition of "orphans" to admit students who still had one living parent.

At issue now is whether the trustees (actually a "Board of City Trusts" created by statute in 1869 to administer trusts left to Philadelphia for charitable purposes) will be permitted to further "deviate" from the settlor's original vision for the school, in order to create a more "financially sustainable" model. 

Despite the long history of changes, leading the court to describe Stephen Girard's will as "the most litigated will in history," the court treated the latest proposals -- elimination of the residential program and "high school" classes -- as triggering a stricter standard of review, under the doctrine of cy pres:

"This Court does not agree that the requested modifications relate to administrative provisions of Stephen Girard's Will.  The design of Girard College as a boarding school, intended to provide a residence, as well as an education to its students is reflected in the very terms of the Will....

 

Rather than an administrative decision, this Board [of City Trusts, acting as trustees] is seeking a cy pres remedy.  This doctrine, unlike administrative deviation, is applied where a change is sought to the purpose of the trust.... Divorcing the residential aspect of Girard College and the high school program from a Girard education is inconsistent with the very terms of the Will and the directions of the testator.

 

The cy pres doctrine, now codified,... permits this Court to approve a change in the terms of a Trust to direct it to purposes that are as close as reasonably possible to the settlor's original intent and that are possible to fulfill.  The cy pres doctrine cannot be invoked until it is clearly established that the direction of the donor cannot be carried into effect."

After reviewing the evidence about the operating finances of Girard College, the court takes the time to commend the trustees "for beginning to confront the myriad of financial, educational and institutional challenges currently facing Girard College."  Nonetheless, the court concludes that based on the financial information it  "cannot permit the Board to modify the Will of Stephen Girard as requested.... This Court cannot treat those proposed changes as administrative deviations and will not apply the cy pres doctrine absent a showing that achieving those objectives is impracticable."

In addition to the discussion that clearly distinguishes the law of "deviation" from "cy pres," the outcome is also notable because:

  • The court had earlier rejected "standing" for a Girard College alumni group that sought to oppose the proposed changes;  
  • The changes were denied despite the fact that the Attorney General, who has statutory standing to enforce terms of charitable estates in Pennsylvania, had apparently declined to take action;
  • The court appointed an individual to serve as "amicus curiae" to examine and report on the Trustees' proposal to modify the trust terms and the individual's recommendations were clearly important to the ruling. 

Pennsylvania Attorney Neil Hendershot (and Dickinson Law alum)  who represented the Girard College Alumni Association, and who alerted me to this interesting decision, has additional details on his Pa Elder, Estate and Fiduciary Law Blog.  Thanks, Neil!

Whether the trial court's decision will be appealed is not yet known. 

And by the way, as evidence of the long litigation history of the Stephen Girard Trust, this latest ruling is filed under what appears to be the original -- or at least a very early -- Orphan's Court docket number: "O.C. No. 10 DE of 1885." A docket number that lasts 129 years? Impressive.

August 28, 2014 in Current Affairs, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Preparing for the "Alzheimer's Monster" To Get You

Here's another great educational video suggestion from John Marshall Law School's Barry Kozak

Unfortunately, this video is in a format that I cannot show directly here.  Nonetheless, I'm recommending it too, and providing the link.  Alanna Shaikh's "How I'm Preparing to Get Alzheimer's" is provocative, with  great dashes of wry humor.  She uses her father's twelve year history of dementia as incentive to prepare herself for getting dementia.  Alanna rejects "denial" and she's realistic about the likelihood of "prevention or cure" in her lifetime.  She talks about preparing for the "Alzheimer's Monster."

Listen to her practical steps to prepare. What do you think of them?  Realistic? What I appreciate is her focus on working harder to become a better person now, in hope of carrying forward that quality as a deeply engrained personality trait.  She's echoing my own belief, based on observation, that "personality" tends to concentrate over time, with the strongest held traits lasting the longest -- whether for good or ill effect.  Once the rational mind is no longer in control, those essential traits do seem to dominate.   

August 28, 2014 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 27, 2014

A Dynamic Look at Global Increases in Lifespan and Income

Another video suggestion for the classroom from Barry Kozak at John Marshall Law School, this time demonstrating the history of modern human population growth, and highlighting income and longevity in the U.S. and China.  I first watched this interesting video at the prompting of Professor Issi Doron, Haifa University.  The energetic speaker, Hans Rosling, is a professor of international health at Karolinska Institute in Sweden, and also the founder of Gapminder Foundation that creates the dynamic graphs. 

 

August 27, 2014 in Current Affairs, International, Statistics | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 26, 2014

The Role of Aging as a Driver of Economic Growth

Barry Kozak, Director of Elder Law Programs at John Marshall Law School, recently shared with us a copy of a syllabus for his new course on elder law.  He's making a conscious choice to organize his class sessions to highlight core concepts addressed by the Chicago Declaration on the Rights of Older Persons.  He's assembled a list of great short videos for use in class, and he's allowed us to pass on his suggestions to readers of our Blog.  Thanks, Barry!

Here's a great starting point, a four minute video from HelpAge USA and Pfizer Inc. that introduces the concept of global aging as an important driver of economic growth.  Instead of wringing our hands over the aging tsunami, these speakers urge this phenomenon as a reason to think creatively. 

 

August 26, 2014 in Current Affairs, International, Statistics | Permalink | Comments (0) | TrackBack (0)

Monday, August 25, 2014

"It's Complicated" - Examining Age, Gender & Lifetime Discrimination Against Working Women

Bisom-Rapp  SargeantThomas Jefferson School of Law Professor Susan Bisom-Rapp and Middlesex University (UK) Business School Professor Malcolm Sargeant  both with deep expertise in employment and labor law, have joined forces to examine the long-range impact of discrimination against  women during the course of their working lives. Based on experiences in the U.S. and the U.K., they recommend a comprehensive strategy to remedy identified problems.   Their article, "It's Complicated: Age, Gender, and Lifetime Discrimination Against Working Women - The U.S. and U.K. as Examples," was published in 2014 in theUniversity of Illinois' Elder Law Journal.  Here's a  tantalizing introduction:

"This article considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 years old and up is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable.



To capture the phenomenon, the article develops a model of Lifetime Disadvantage, which considers the major factors that on average produce unequal outcomes for working women at the end of their careers. One set of factors falls under the heading “Gender-based factors.” This category concerns phenomena directly connected to social or psychological aspects of gender, such as gender stereotyping and women’s traditionally greater roles in family caring activities. A second set of factors is titled “Incremental disadvantage factors.” While these factors are connected to gender, that connection is less overt, and the disadvantage they produce increases incrementally over time. The role of law and policy, in ameliorating or exacerbating women’s disadvantages, is considered in conjunction with each factor, revealing considerable incoherence and regulatory gaps. Notably, the U.K.’s more protective legal stance toward women in comparison with the U.S. fails to change outcomes appreciably for women in that country.


An effective, comprehensive regulatory framework could help compensate for these disadvantages, which accumulate over a lifetime. Using the examples of the U.S. and the U.K., however, the article demonstrates that regulatory schemes created by “disjointed incrementalism” – in other words, policies that tinker along the margins without considering women’s full life course – are unlikely to vanquish systemic inequality on the scale of gender-based lifetime discrimination."

Professor Bisom-Rapp is also a co-author of The Global Workplace: Internatioanl and Comparative Employment Law - Cases and Materials, now in its second edition. 

August 25, 2014 in Current Affairs, Discrimination, Ethical Issues, International | Permalink | Comments (0) | TrackBack (0)