Sunday, November 1, 2015

Nite of the Living Will

My friend Jim Pietsch at the U. of Hawaii elder law program offers this clever annual event for elder individuals to encourage the completion of advance directives.   The University of Hawai'i Elder Law Program (UHELP) at the William S. Richardson School of Law held its annual "NITE" OF THE "LIVING WILL" on October 29, 2015. Here is the description of the program from their website.

Deciding...”What If?”
During this daylight presentation of our annual Halloween event, the University of Hawai`i Elder Law Program will present a talk about medical treatment decision-making and advance care planning  to include  informed consent/informed refusal, individual instructions for health care, durable powers of attorney for health care, comfort care only-DNR bracelets/necklaces and Provider Orders for Life-Sustaining Treatment (POLST).

You will have the opportunity to Decide What If? you are unable to communicate your wishes for end of life care. If you still have an old “Living Will” or if you are unsure of how end-of-life decisions will be made for you, come and find out how to make an advance directive or other documents that will help make sure your wishes regarding health care decisions are honored.

The public, especially kupuna, family caregivers, service providers, students and faculty are invited. Tea and little treats will be served. Donations to cover the cost of this hydration and nutrition accepted.

This is such a creative program and kudos to Jim for all of his work!

November 1, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, Programs/CLEs | Permalink | Comments (0)

And the New Name for CCRCs Is...

At the opening general session for LeadingAge's 2015 Annual meeting on November 1,  the results of two years of research into consumer preferences for LTC and senior housing, including consumer and provider surveys and focus groups, has culminated in a new identity for Continuing Care Retirement Communities (CCRCs).  And  -- drum roll,  please -- the new name is Life Plan Communities.

The thinking is interesting.  First,  LeadingAge researchers learned that while current residents embrace the name "Continuing Care Retirement" for their communities, younger persons reject the notion of both "retirement" and "care."  Thus, Life Plan Communities are viewed as playing to the "engagement" model of aging, where individuals have more control over their options, and are less likely to be passive in their response to provider-defined theories of care. 

In announcing the new name, outgoing LeadingAge CEO Larry Minnix and other leaders emphasized that the change is intended to be part of a conversation, to stimulate thinking and reaction to what it means to plan for future needs.  They recognize that states may or may not embrace the name change, including whether state laws will be amended to reflect the new identity for purposes of licensing and regulation.

Will a rose by any other name smell as sweet -- or, perhaps, even sweeter? 


November 1, 2015 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Retirement | Permalink | Comments (0)

LeadingAge 2015 Meeting Begins in Boston

LeadingAge Annual Meeting Program 2015.htmThe four-day annual meeting for LeadingAge, a trade association for providers of senior services with "6,000+ members and partners including not-for-profit organizations representing the entire field of aging services, 39 state partners, hundreds of businesses, consumer groups, foundations and research partners," starts today, November 1, in Boston  The program offerings are impressive with as many as two dozen choices per educational session and keynote addresses by high profile individuals, such as Monday's speaker, Dr. Atul Gawande, famed author of a best selling and much discussed book that challenges thinking on end-of-life case, Being Mortal.

I find LeadingAge as an organization to be fascinating, not least of all because of the scope of providers under its umbrella, but also because it has proven itself to be very responsive to changes in the market place.  It was once known as AAHSA or American Association of Homes and Services, but voted to change its name to LeadingAge in 2010. 

More changes are in the works, as long-time and much respected Larry Minnix is retiring as the head honcho of LeadingAge.  Nonprofit Continuing Care Retirement Communities (CCRCs) were once a major (perhaps even the most dominate) part of the membership, but as the senior care and services market is changing that is less and less true, especially with trends in favor of mergers and acquisitions, including not infrequent  transitions to for-profit operations.  Interestingly, during this year's meeting, LeadingAge is announcing a new for name for CCRCs.  Stay tuned!

This organization clearly understands the need for change to stay attractive to consumers.  At the same time, name changes can also complicate understanding by consumers of the choices available to them -- and can complicate state efforts to evaluate and, where appropriate, regulate different models of senior and adult housing and care services.

November 1, 2015 in Current Affairs, Health Care/Long Term Care, Housing, Programs/CLEs, Property Management, Statistics | Permalink | Comments (0)

Thursday, October 29, 2015

Friends at the End of Life

Friends are an integral part of the fabric of our lives.  Perhaps the most important time in one's life to have friends is at the end of life, according to an article in the New York Times. The article, Near the End, It's Best to be "Friended" focuses on what has become known as the "unbefriended" elders.  When we think "unbefriended", we think of someone without friends or relatives.  Maybe the person has outlived everyone. But the article offers that "unbefriended" has a much broader meaning: "you can also be unbefriended, even if you do have friends and family, if you are incapacitated and haven’t appointed someone you trust as a health care proxy."  The article cites a study that shows an increase in the number of unbefriended elders and notes the likelihood of a continued increase since the chance of dementia increases with age.

More and more patients who lacked decision-making capacity, had no available surrogates and had not completed an advance directive,” said Martin Smith, director of clinical ethics at the Cleveland Clinic.

The kinds of unrepresented elders might change, too. In the past, many were marginalized — homeless, addicted, mentally ill, estranged. Baby boomers, with higher rates of childlessness and divorce, have smaller and more mobile families, and longer life spans. “They could live a largely mainstream life, but outlive everyone around them..."

The article notes that some states have statutes giving priority order to relatives and, in some instances, others to make health care decisions for those who haven't made a directive.

Twenty-four states and the District of Columbia have added “close friend” to that list, according to the American Bar Association Commission on Law and Aging; some states also include aunts and uncles, nieces and nephews, and adult grandchildren. A member of the clergy can serve in that role in Texas. The wider the net, the reasoning goes, the greater the likelihood of finding someone authorized to make decisions. Legalized same-sex marriages also mean fewer unrepresented gay and lesbian older adults.

This is an interesting article that provides good content for discussion with students about the importance of advance directives, and the potential for problems without them.

October 29, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (1)

Wednesday, October 28, 2015

Health Poll September 2015

The Kaiser Health Network September, 2015 tracking poll  tackled several issues. The one I was most interested in was the results on the public's view of end of life care.

As the Centers for Medicare & Medicaid Services prepares to finalize a plan to pay physicians for discussing end-of-life treatment options with Medicare patients, this month’s Kaiser Health Tracking Poll finds that about 8 in 10 of the public favors Medicare and private insurance covering such discussions and about 9 in 10 say doctors should have these discussions with their patients. However, relatively few (17 percent) say they’ve had such discussions with a doctor or other health care provider, including 27 percent of people age 65 or older, while half of the public says they would want to have such a discussion. Over 8 in 10 say they would feel very comfortable talking about their end-of-life medical wishes with their spouse or partner and closer to half say they would be very comfortable talking with a doctor, their children, their close friends or their parents....

The detailed discussion of the poll results provides interesting statistics. Consider the following:

About 9 in 10 (89 percent) say doctors should discuss end-of-life care issues with their patients. But, relatively few (17 percent) say they’ve had such discussions with a doctor or other health care provider, including 34 percent of people age 75 or more, 23 percent of people age 65-74, 19 percent of those age 50-64 and 12 percent of those age 18-49. In addition, those who report having a debilitating disability or chronic condition are more likely to say they have discussed their end-of-life care wishes with a health care provider than those without a disability (31 percent vs. 13 percent). A third of the public says they have participated in a discussion with a doctor about another family member’s wishes about their care at the end of life, including 46 percent of those ages 50-64. Across age groups, many say they would want to have such a discussion about their own end-of-life care (50 percent overall).

The full poll results are available here.


October 28, 2015 in Advance Directives/End-of-Life, Current Affairs, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

New Demographics of Aging -- In Cuba

A window into the demographics of what happens when the average age of populations rises sharply is provided by the New York Times, with a focus on Cuba.  From In Cuba, An Abundance of Love but a Lack Of Babies, by Azan Ahmed:

By almost any metric, Cuba's demographics are in dire straits.  Since the 1970s, the birthrate has been in free fall, tilting population figures into decline, a problem much more common in rich, industrialized nations, not poor ones.

Cuba already has the oldest population in all of Latin America.  Experts predict that 50 years from now, Cuba's population will have fallen by a third.  More than 40 percent of the country will be older than 60.


The demographic crisis is both an economic and a political one.  The aging population will require a vast health care system, the likes of which the state cannot afford.  And without a viable work force, the cycle of flight and wariness about Cuba's future is even harder to break, despite the country's halting steps to open itself up to the outside world....

The article goes into more depth, including identifying factors such as inadequate housing for new families, educational trends that encourage couples to delay having children, and, perhaps most significant, scant job opportunities to support families.   The article also suggests that abortion "is not so uncommon" in families. 

October 28, 2015 in Current Affairs, Health Care/Long Term Care, International | Permalink | Comments (0)

Monday, October 26, 2015

The Spreading Impact of Dementia

I've posted several times of late on recent articles about dementia.  So here is one more, from England.  Published September 21, 2015 in The Guardian, One-third of British people born in 2015 'will develop dementia' looks at the projections of dementia in England. The article opens with sobering statistics. "One in three people born this year will develop dementia, according to new figures. The Alzheimer’s Research UK charity warned of a “looming national health crisis” as the population ages." Quoting Alzheimer's Research UK which offered that age is the most significant risk factor, the article offers future predictions:

As people live longer than ever before, the numbers with dementia will rise. The latest analysis, commissioned by the charity and carried out by the Office of Health Economics, was released to mark World Alzheimer’s Day.

It showed 27% of boys born in 2015 will develop the condition in their lifetime, alongside 37% of girls. Previous research from the same team has estimated that the development of a drug that could delay the onset of dementia by five years would cut the number of cases by a third.

We know the implications on caregivers from this disease. The article offers the fiscal impact on the country:

George McNamara, head of policy at Alzheimer’s Society said: “Dementia is already the biggest health challenge this country faces. It costs the UK in excess of £26bn, which equates to £30,000 a person with dementia – more than the cost of either cancer or heart disease. Today’s stark finding should galvanise the government, and us all, into action.”


October 26, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, International | Permalink | Comments (0)

Sunday, October 25, 2015

Impact of Dementia on Caregivers

The October 2015 issue of Health Affairs contains an article about the impact of caring for an individual with dementia has on caregivers (family and unpaid),  The abstract provides a description of the article, the Disproportionate Impact Of Dementia On Family And Unpaid Caregiving To Older Adults 

The number of US adults ages sixty-five and older who are living with dementia is substantial and expected to grow, raising concerns about the demands that will be placed on family members and other unpaid caregivers. We used data from the 2011 National Health and Aging Trends Study and its companion study, the National Study of Caregiving, to investigate the role of dementia in caregiving. We found that among family and unpaid caregivers to older noninstitutionalized adults, one-third of caregivers, and 41 percent of the hours of help they provide, help people with dementia, who account for about 10 percent of older noninstitutionalized adults. Among older adults who receive help, the vast majority in both community and residential care settings other than nursing homes rely on family or unpaid caregivers (more than 90 percent and more than 80 percent, respectively), regardless of their dementia status. Caregiving is most intense, however, to older adults with dementia in community settings and from caregivers who are spouses or daughters or who live with the care recipient.

A subscription is required to access the full article.


October 25, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0)

Thursday, October 22, 2015

LTC Facilities Monitoring in Illinois

I was interested to learn about a new law in Illinois that allows for electronic monitoring in long term care facilities in certain cases.  Protecting Our Own: The Practical Implications of Illinois’s Authorized Electronic Monitoring in Long-Term Care Facilities notes that this new law goes into effect at the beginning of 2016 and  "permits nursing home residents in facilities that are licensed under certain state legislation such as the ID/DD Community Care Act or Nursing Home Care Act to use audio or video surveillance in their room at their own expense."  There are criminal penalties if anyone interferes with the monitoring devices and there is some money available for those facilities unable to afford the devices.

Illinois joins 4 other states (New Mexico, Oklahoma, Texas and Washington) with electronic monitoring laws.  There are other states that have guidelines for those LTC facilities who want to allow monitoring based on a desire of a resident.  The article discusses the pros and cons of monitoring and offers concerns regarding quality of care.

In terms of quality of care, having cameras in the rooms may also affect the important relationships developed between facility caregivers and their residents.  The staff may choose to rely on the cameras to monitor residents rather than engaging in direct communication, potentially leading to mistrust and even a greater substandard of care that such legislation was meant to combat in the first place.  Residents may never truly feel comfortable without the bond usually fostered between the two parties, contributing to a negative experience.

The Illinois statute is available here. One section of the statute addresses consent to monitoring. Written consent by the resident (or the resident's guardian) is required on a specific form from the state agency.  If the resident's doctor determines the resident lacks the capacity to consent, the statute provides a priority list of individuals who may provide consent.  Among other things, the statute addresses monitoring when the resident has a roommate. The statute also provides for conditions to be set on monitoring. The "standard" conditions set out in the statute include no audio recording, no transmission of either video or audio,  powering off the devices or blocking taping when a health care professional is caring for the resident or roommate or during bathing and dressing or during visits by certain folks such as attorney, financial planner, and  ombudsman. Other restrictions beyond the statutory ones can be imposed.  The statute addresses other matters, such as notice, reporting and more.   Read the Illinois statute here.

October 22, 2015 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, October 21, 2015

LTC & Dementia-Start Saving Now.

USA Today ran an article on October 15, 2015 about the cost of long term care for individuals with dementia, especially those with Alzheimer's. The estimated price tag?  Almost three quarters of a million dollars! Got $730K saved for nursing care? Dementia could cost that much notes that a person with dementia needing long term care could live for several years, needing round the clock care,the cost of that care mounts up and "leav[es] families in an emotional, financial and logistical quagmire."

This is a growing issue and one that will affect many. "Boomers are increasingly faced with supporting both their children and their parents, or at least helping to figure out how their parents can best help themselves. Senior citizens with heart disease and cancers that were once a death sentence are now living far longer."

The article discusses Medicare and Medicaid as far as coverage for long term care and the differences in Medicaid programs amongst states.

October 21, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (1)

The Importance of Understanding Trusts in Family Law, Especially If Divorce Looms

The ABA Section on Family Law has devoted the entire Fall 2015 issue of its Family Advocate magazine to "Crossing Paths with a Trust."   The paper copy of the issue just appeared on my desk. The opening editorial advises family law attorneys advising clients considering divorce not to fear trusts:

Lawyers who simply take a deep breath and read the trust will often be surprised to learn that they have in their hands a road map for how assets will be managed, who gets what, when they get it, and under what terms. 

The articles in the issue include a "plain English guide to trusts as a means of orchestrating assets in divorce cases," how trusts can interact with disclosure requirements for premarital agreements, how to address equitable division of interests assigned to trusts, the use of child support or alimony trusts, and the unique potential advantages for using trusts for "special needs" planning for disabled children.  The issue ends with a bonus -- a primer on "will basics."

The articles underscore what I sometimes find myself saying to law students, that courses on "wills, trusts and estates" are about advanced family law issues, and that if families fail to address disputes among family members while they are still living, the issues may not be any less complicated when the asset-holding family member passes away. 

The entire issue seems like a good resource for a wide audience, including law students.  Unfortunately, the on-line version of Family Advocate issues is restricted to ABA Family Law Section members, at least during the first few weeks of  publication.  Apparently you can purchase paper copies (see for example the rates for the previous issue, for  Summer 2015) , including bulk orders, although I find there is often a lag time for specific issues to become available to purchase.  I guess you have to keep checking!    

October 21, 2015 in Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, October 20, 2015

Evidence Based End of Life Care?

The New England Journal of Medicine published a perspective piece, Toward Evidence-Based End-of-Life Care.

In the last month of life, one in two Medicare beneficiaries visits an emergency department, one in three is admitted to an intensive care unit,and one in five has inpatient surgery. But one of the most sobering facts is that no current policy or practice designed to improve care for millions of dying Americans is backed by a fraction of the evidence that the Food and Drug Administration would require to approve even a relatively innocuous drug.

The article explains why this evidence is important

The public and private sectors are now engaged in an unprecedented array of virtuous efforts to improve end-of-life care. That these efforts are generally not evidence-based is not the fault of the organizations promoting them. It is the responsibility of investigators and research sponsors to identify, develop, and rigorously test interventions so that they can offer guidance as growing political and cultural tolerance increasingly permits implementation of end-of-life care programs. Achieving evidence-based end-of-life care will require at least four key developments — which, fortunately, are now attainable.

The article discusses the four key developments and notes in conclusion "the central challenge is to avoid complacency regarding plausibly useful but non–evidence-based initiatives. Researchers, research sponsors, and large insurers, employers, and health systems can collaborate to advance knowledge about what works best for whom. And the sooner they do so, the better...."

October 20, 2015 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Top Ten Myths and Facts about "Living Wills" -- Charles Sabatino Lays Them Out

ABA's Bifocal, an electronic journal from the ABA Commission on Law and Aging has released one of its October issue articles.  Written by Charlie Sabatino in his usual bold style, we confront ten "Myths and Facts About Health Care Advance Directives," sometimes better (if confusingly) known as "living wills."  To tease the article,  Myth #3 is "Advance Directives are legally binding, so doctors have to follow them."  You will want to read the rest of the story....

October 20, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, October 19, 2015

Market Trends in Financing for Senior Housing Options

Recently I was reading an issue of The Senior Care Investor, a subscription-based news service that reports on the "World of Senior Care Mergers, Acquisitions, and Finance," and doing so since 1948. 

For approximately the last three years, most of the M & A activity has been in assisted living (AL) and memory care (MC).  Senior Care Investor reports that CCRCs are "beginning to make a comeback" as the housing market recovers and prospective residents are again able to use equity in their homes to finance transitions into CCRCs.  The most recent issue also indicates some development money is returning to the skilled nursing facility market, even as overall M & A activity in senior housing is lower in 2015 than in 2014.  

I've been watching quite a bit of activity over the last few years in conversions of nonprofit senior housing operations to "for profit" and there is more evidence of that in the latest report. But the most recent issue (Issue 9, Volume 27) also reports on a "rare for-profit to not-for-profit deal," with a New Mexico-based company, Haverland Care LifeStyle Group, purchasing a new AL/MC community in Oklahoma.  

Also, the Senior Care Investor reports on a faith-based, not-for-profit CCRC provider that has decided to sell an entrance fee model (one that's in transition to an "all rental" model) that will offer independent living, AL, MC units and nursing home beds.  What happens when senior housing operations are fully "private pay" AND "rental" models AND disconnected from a faith-based organization?  Can they maintain their tax-exempt status? In other words, if the public is paying market rates (and thus higher rates based on any market increases) with no promises of future care if the residents run out of money, is that senior housing enterprise still a nonprofit operation entitled to be treated as exempt from federal income taxes?   

October 19, 2015 in Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Property Management, Retirement, State Statutes/Regulations | Permalink | Comments (1)

Thursday, October 15, 2015

When One Spouse Uses Community Funds to Care for His Infirm Parent, Is That A Breach Of Fiduciary Duty to His Spouse?

Last week I spoke on filial support duties, and one question from the audience was whether Pennsylvania's filial support law could obligate someone to provide for a stepparent.  My answer under Pennsylvania law was "probably not." My analysis was based on Pennsylvania cases, such as Commonwealth v. Goldman, that had used a strict definition of parent-child relationship for purposes of calculating the limits on indigent support obligations, although doing so in the context of in-laws rather than stepparents.

But something in the back of my mind was itching, and of course, over  the weekend I started scratching.  I remembered a case, which did seem to recognize a potential for indirect obligations to "parents-in-law." 

The case is from California, where divorcing spouses were arguing over division of community property.  One focus of the disputes was proceeds of the sale of a former house.  While rejecting an argument that the sale of the property transmuted the funds into 50/50 separate property, a California appellate court was willing to consider the expenditure by the husband of some of these funds to care for his "infirm mother" to be a "community debt."  Further, the court observed that unlike the obligation to "reimburse the community" for payment out of community funds to support a child not of that marriage, there was no statutory obligation to "reimburse the community" if the funds were used to care for one spouse's parent.

Pointing to California's "not commonly known" filial responsibility law, the court held that if the funds were actually spent for care of his indigent mother, such use did not constitute an "unauthorized gift."  

The court went further, however, noting that "a spouse's debt payments may constitute a breach of fiduciary duty and run afoul" of California law dealing with contracts with third parties, when entered into by only one married party. A bit of a Catch-22 problem, right? However, this interesting fiduciary duty issue "was not raised" in the parties' briefs and therefore was not resolved on this appeal.

On remand, husband was "entitled to establish the funds were expended to support his mother, who was in need and unable to maintain herself."  For the full analysis, including citations to the relevant California statutes, see In re the Marriage of Leni (2006).

October 15, 2015 in Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, October 14, 2015

Marshall Kapp Discusses Legal and Pecuniary Aspects of Family Caregiving

I'm always playing catch-up on my "must read" list, but fortunately, others keep me on task.  One such article is Florida State Medicine and Law Professor Marshall Kapp's piece, inspired in part by Hendrik Hartog's 2012 book, Someday All This Will Be Yours

In For Love, Legacy, Or Pay: Legal and Pecuniary Aspects of Family Caregiving, published by the Springer Journals of Case Management, Professor Kapp begins with this overview and note of caution about legal planning:

Most caregiving and companionship provided by family members and friends to elder individuals in home environments occurs because of the caregiver's feelings of ethical and emotional obligation and attachment.  From a legal perspective, though, it might be ill-advised for an informal caregiver to admit to such a motivation.

He advises consideration of personal service or personal service agreements, explaining:

We must reject an analytically attractive and pure, but never really socially realistic, tendency to dichotomize the caregiver experience, recognizing instead that a person may simultaneously be both a family member, with the related emotional and ethical connotations of that label, and a business employee.  Morality and materiality are not incompatible.  Caregiving can be both an act of love and a marketable commodity bought and sold between non-strangers.

As Professor Kapp points out, if we as a society really wanted to encourage family caregiving without all too vague promises about future inheritances, we could go beyond mere tax credits and "instead use public funds to pay family caregivers directly."   

October 14, 2015 in Consumer Information, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Social Security | Permalink

Monday, October 12, 2015

Mental Health Awareness - What They Don't Teach You in Law School (...Really??)

Last week was "Mental Illness Awareness Week," and in recognition of that fact, Maryland  Attorney Michael E. McCabe, Jr. posted an important Blog item on representing clients with diminished capacity.  I'm impressed that discussion of the need for lawyers to appreciate the potential for mental health to impact any aspect of the lawyer-client relationship is written for the IPethics & INsights blog, his law firm's " resource for intellectual property rights attorneys." 

In other words, the topics of mental health and legal capacity are not exclusively the province of estate planners, elder law attorneys, disability law practitioners or poverty law experts.

He notes at the outset:

According to the leading mental health organization in the country, 1 in 5 adults in the United States suffers from some form of mental health condition or disorder. Thus, it is likely that at some point in your legal career, you will be representing an individual client or a representative of a corporate client, who suffers from some degree of mental illness.

Attorney McCabe points to ABA Model Rule of Professional Conduct 1.14 as guidance, while also suggesting:

A two-prong test may be useful when determining the existence and degree of a client's mental illness:


(1) "take reasonable steps to optimize capacity," and


(2) "perform a preliminary assessment of capacity."

Attorney McCabe also links (although not directly attributing his recommendation) to Charlie Sabatino's important 2000 article, "Representing a Client with Diminished Capacity:  How Do You Know It And What Do You Do About It?"

I suppose I do have a small quarrel with the author, however.  The title of his post is "What They Didn't Teach You in Law School: Representing  Client with Diminished Capacity."  Mr. McCabe graduated law school in 1992, and perhaps diminished capacity was not well addressed by law schools at that time.  Although it could be my bias as an academic interested in aging policy, I believe law schools have changed with the times.  Certainly I find myself teaching the importance of "capacity" issues and the attorney-client relationship, and I start this in my 1L course on Contracts, while digging deeper into the field of mental health impacts in Wills/Trusts/Estates and, of course, Elder Law.  Other faculty members address mental health in a variety of other contexts, including courses on education law.

If Mr. McCabe is right that law schools are not currently addressing the complex concerns attached to mental health, then certainly the moral from his column is "we need to do better." 

My thanks to Attorney McCabe, and to Dickinson Law Professor Laurel Terry for sharing his article. 

October 12, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Property Management | Permalink | Comments (0)

Friday, October 9, 2015

Filial Friday: Freakonomics Asks "Should Kids Pay Back Parents for Raising Them?"

In a convergence of my teaching, research and public outreach work, this week I've found myself in several overlapping conversations about whether adult children have obligations -- moral or legal -- to care for or financially support their parents.  

This week, following my Elder Law Prof Blog post recommending Hendrik Hartog's fascinating book, Someday All This Will Be Yours, which I also recommended to my Trust & Estate students, I had a nice series of virtual conversations with Dirk about his book. What a thoughtful historian he is.  We were talking about his research-based observation in the book about adult children and needy parents:

Adult children were not legally bound to remain and to work for their parents.  Nor were they obligated to care for the old.  Adult children were, paradigmatically and legally, free individuals, "emancipated," to use the technical term. . . . Furthermore, there was little -- perhaps nothing-- to keep an uncaring or careless adult child from allowing a parent to go over the hill to the poorhouse.

I asked, "what about filial support laws?"  Turns out that was a timely question because Professor Hartog  had just been interviewed for a Freakonomics Radio episode, "Should Kids Pay Back Their Parent for Raising Them?" The program became publically available, via podcast or written transcript, on October 8, 2015.  In the interview Professor Hartog was asked to comment on filial support laws.  He said in part:

Filial responsibility statutes are very weak efforts to ensure that the young will support the old if they are needy.... They rarely are enforced.  Very, very, very, very rarely.  So, you know, in a sense, every time they are enforced they become a New York Times article or they become an article in the local newspapers. 

Professor Hartog was speaking in large measure from the perspective of his important historical research, including review of a body of case reports from New Jersey spanning some 100 years from the mid 1880s to the mid 1900s.  And based on my own historical research, I would also say that in the U.S., filial support laws have been rarely enforced, although I would characterize the enforcement as often "episodic" in nature, especially after the growth of Social Security and Medicaid benefits.  But...

I think the modern story is quite different in at least one state -- Pennsylvania.  Part of this difference is tied to the fact that Pennsylvania's filial support law permits enforcement by commercial third-parties, including nursing homes, as I discussed in my 2013 article on Filial Support Laws in the Modern Era.  Other U.S. jurisdictions with "modern" enforcement cases are South Dakota and Puerto Rico.

Indeed, I'm speaking on October 9, 2015 at the invitation of a Bench and Bar Conference in Gettysburg, PA about "The Festering Hot Topic" of Filial Support Laws in Pennsylvania. In the presentation, I report on controversies arising from recent, aggressive collection efforts by law firms representing nursing homes, as well the latest examples of successful enforcement suits by nursing homes and family members. I also analyze a disturbing additional claim, where Germany is seeking to enforce its filial support law to compel a U.S. resident to pay toward the costs of care for an ailing father in Germany. 

Ultimately, I think that Professor Hartog and I agree more than we disagree about the lack of behavioral impact flowing from filial support laws. As demonstrated by Professor Hartog in his book, much care and support is provided by children, but flowing from complicated moral or personal inclinations, rather than statute-based lawsuits.

This seems a more realistic paradigm, although  not without opportunities for misunderstanding and disappointment. But, as I often observe, the very last person I would want involved in my care would be someone who is doing it "only" because a statute -- much less a court -- is telling them they must care for me.

October 9, 2015 in Books, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, International, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, October 2, 2015

Register Now-Webinar on Proposed Nursing Home Regs

The National Consumer Voice for Quality Long-Term Care is hosting a free webinar on October 6, 2015 from 2-3:30 p.m. According to the announcement

The proposed federal nursing home regulations published by the Centers for Medicare and Medicaid Services (CMS) in July will shape nursing home care for decades to come. CMS needs to hear what consumers, their families and advocates around the country think about the rule. This is one of the most important opportunities you will ever have to impact what these new federal nursing home regulations look like. Comments are due October 14 by 5:00pm ET. 

This webinar is designed to assist advocates in understanding the proposed changes and in participating in the comment process.

Eric Carlson of Justice in Aging and Robyn Grant of the Consumer Voice are the presenters. To register for this webinar, click here.


October 2, 2015 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Programs/CLEs, Webinars | Permalink | Comments (0)

Planning Well For The End of Life (as a Foundation)

I've long been fascinated by the history of Atlantic Philanthropies (AP), starting when I first became aware of the behind-the-scenes role of the founder, Chuck Feeney, in funding extraordinary educational endeavors in Ireland, and, as I soon learned, also funding important social and health advocacy movements around the world.  The end of AP as a multi-million dollar grant-making foundation is near at hand, although not the end of its impact.

Linked here is the latest report from the CEO of AP, Christopher Oechsli, with linked reports on AP's final grants, including its support for a groundbreaking National Dementia Strategy in Ireland.

October 2, 2015 in Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, International, Retirement | Permalink | Comments (0)