Wednesday, July 22, 2015
The Law Society of England and Wales recently issued a "Practice Note" for lawyers (or rather, "solicitors") on representing vulnerable clients, including but not limited to clients with dementia. The guideline reflects research that demonstrated "solicitors need to adapt their practices to identify and meet the needs of vulnerable clients." The guide recognizes that "vulnerable" clients may include a range of persons, and may involve physical or mental capacity issues of varying degrees.
The guide warns that failure to "meet the needs of a vulnerable client" may trigger:
- A discrimination claim or a claim for a failure to make reasonable adjustments under the Equality Act 2010, which could result in sanctions including damages.
- A claim for damages or compensation against you or your firm if you act on the instructions of a client lacking capacity to make relevant decisions, having failed to satisfy yourself as to the client's capacity to instruct you or failing to document your assessment of the client's capacity, leaving the validity of the transaction open to challenge.
- A complaint against you to the Legal Ombudsman, which could result in your name being published and/or you having to pay financial compensation. The ombudsman will refer complaints about discrimination to the SRA.
- Reputational risk - your practice's reputation is inextricably linked to the way in which you treat your clients. Conversely, a practice with an inclusive ethos will not only attract a wider group of clients but also a more diverse workforce bringing benefits to the business.
The guide has a detailed discussion of mental capacity issues, including the attorney's need to consider the following four factors:
Friday, July 17, 2015
ElderLawGuy Jeff Marshall Esq. has a staffer who works with therapy dogs in nursing homes and Jeff posted Josephine Reviello's interesting essay on her experiences. She begins with a surprising history of the "case law" behind the nickname for dogs as "Man's Best Friend:"
The popularization of the phrase is actually said to have come from an attorney, George Graham Vest. In 1870, Vest was in the courtroom representing a farmer who was suing for damages after his dog “Old Drum” was shot by a neighbor. Toward the closing of the trial, Mr. Vest said, “A man’s dog stands by him in prosperity and in poverty, in health and in sickness. He will sleep on the cold ground, where the wintry winds blow and the snow drives fiercely, if only he may be near his master’s side. He will kiss the hand that has no food to offer, he will lick the wounds and sores that come in encounters with the roughness of the world. He guards the sleep of his pauper master as if he were a prince. When all other friends desert, he remains. When riches take wings and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens.”
And later, the phrase shortened to “man’s best friend”. Vest won the case and also won its appeal to the Missouri Supreme Court. A statue of the dog stands in front of the Warrensburg, Missouri courthouse.
The author's dog is an Old English Sheepdog, Hannah Bear. I can just imagine how popular she would be!
"Nothing makes me feel better inside than spending a couple of hours at a nursing home where people who want to pet our dogs. It totally lightens up the entire atmosphere -- for everyone."
Of course, occasionally Pam's critters have been known to go on vacation, especially at this time of the year when they sneak off to the beach for a little R & R. Be careful, Thelma Lou; too much time in the sun can cause wrinkles!
Thursday, July 16, 2015
Probably the best bang for your CLE buck in Pennsylvania comes from the two-day Elder Law Institute hosted each summer by the Pennsylvania Bar Institute. This year the 18th annual event is on July 23 & 24 in Harrisburg.
- "The Year in Review" with attorneys Marielle Hazen and Robert Clofine sharing duties to report on key legislative, regulatory and judicial developments from the last 12 months;
- How to "maximize" eligibility for home and community based services (Steve Feldman and Pam Walz);
- Cross disciplinary discussions of end-of-life care with medical professionals and hospice providers;
- LTC "provider" perspectives (Kimber Latsha and Jacqueline Shafer);
- Latest on proposals to change Veterans' Pension Benefits (Dennis Pappas);
- Implementation of the Pa Supreme Court's Elder Law Task Force Recommendations (Judges Lois Murphy, Paula Ott, Sheila Woods-Skipper & Christin Hamel);
- A closing session opportunity, "Let's Ask the Department of Human Services Counsel" (with Addie Abelson, Mike Newell & Lesley Oakes)
There is still time to registration (you can attend one or both days; lunches are included and there is a reception the first evening).
I think this is the first year I have missed this key opportunity for networking and updates; but I'm sending my research assistant!
July 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)
Sunday, July 12, 2015
From the New York Times, Making Decisions about Elder Housing May Take a Team Effort, by John Wasik:
But for elderly people like Ms. Renninger, now 83, deciding what to do next can be an almost overwhelming task. Is it time to move to a nursing home or some other type of assisted living? Or will home care with a variety of support services work?
It is an issue millions of people — especially baby boomers and their parents — are grappling with now. The choices are so complex that more and more people are finding they cannot make the decisions alone. As a result, with the number of Americans age 85 and older growing faster than any other age group, as the Congressional Budget Office reports, so is the demand for elder care specialists.
Detailing what many Elder Law Attorneys also provide, the article gives several examples of professionals with multi-disciplinary skills, such as a geriatric care manager, or a doctor who is also a certified financial planner. Thanks to Professor Laurel Terry for sending this timely link.
Thursday, June 25, 2015
From the July issue of the ABA Journal, news that "Delaware Leads the Way in Adopting Legislation Allowing Estate Executors Access to Online Accounts." The article details the use of model legislation in permitting "Fiduciary Access to Digital Assets," and related or pending legislation in other states.
Hat tip to Professor Laurel Terry -- visiting in Hawaii -- for being the first to send this our way!
Monday, June 8, 2015
In Eades v. Kennedy PC Law Offices, decided June 4, 2015, the Second Circuit ruled that a federal court in New York has personal jurisdiction to address alleged unfair debt collection practices of a Pennsylvania law firm in seeking to collect unpaid nursing home fees totaling $8,000. The plaintiffs, New York residents -- the husband and adult daughter of a woman in a Pennsylvania nursing home -- challenged statements in correspondence and phone communications allegedly made by the Pennsylvania law firm. The claims against the daughter were based on Pennsylvania's filial support law.
As reported on this Blog in December 2013, the United States District Court for the Western District of New York dismissed the suit, finding no personal jurisdiction and further rejecting application of the federal Fair Debt Collection Practices Act (FDCPA). The Second Circuit's ruling concludes, however, that the law firm's "three purposeful contacts with New York," of mailing a debt collection notice to the New York family members, engaging in a debt collection phone call with the daughter, and mailing a summons and complaint to both the daughter and the nursing home resident's husband, are enough to establish personal jurisdiction under New York's long-arm statute. Further, the defendant law firm had not shown that exercise of such jurisdiction was unreasonable.
On the questions raised by the FDCPA claims, the Second Circuit rejected several key arguments by the plaintiffs, concluding that Pennsylvania's filial support law is not preempted by the Nursing Home Reform Act's prohibition on nursing homes requiring third party guarantees of payment:
June 8, 2015 in Consumer Information, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, May 20, 2015
ElderLawGuy Jeff Marshall has always been a bit ahead of his time, including being among the first to recognize that aging can carry with it a distinct set of legal issues. Not every lawyer is equipped to deal with families facing dramatic changes, whether in terms of temperament or legal knowledge. Jeff constantly stays on top of new developments, in both law and technology. For example, read here how Jeff uses "tweeting" as a tool, to help him stay current on the law, and engaged with the wider world. Jeff has often inspired me, from the moment of my first "big" meeting with him here in Pennsylvania almost 20 years ago, at a little conference on a very cold winter day in Wilkes Barre. It is hard to believe, but he's been a specialist in elder and estate law for 35 years! Here's part of the tale, from the Sun-Gazette.com:
When attorney Jeff Marshall returned home in 1980 his vision, according to a news release, was to found a law firm that would serve the needs of older adults. A native of Lock Haven, Marshall had graduated from Stanford Law School in 1972 and had remained in California for the rest of that decade. By 1980 he was ready to return to his roots in Pennsylvania.
At the time, there was no such thing as an "elder law firm." But Marshall recognized that his older clients faced a complicated array of legal, financial, and health care issues, the news release said. Their legal planning needed to be coordinated with non-legal concerns to best protect their dignity, comfort and self-determination. So he set about putting together a team of professionals with backgrounds in law, nursing, social work, and care management who were able to meet his client's broad needs.
Thirty-five years later the seeds he planted have grown into one of the most respected elder law and estate planning law firms in Pennsylvania with four offices in Williamsport, Jersey Shore, Wilkes-Barre and Scranton.... The firm celebrated its 35th anniversary at its 19th Annual Professional Updates held on May 6 in Williamsport and May 7 in Scranton.
Congratulations -- and thank you -- Jeff!
Thursday, April 30, 2015
I tend to think of "Elder Law" as a subset of "Laws and Policies of Aging." Given what appears to me to be a steady increase in public concern about ways in which some older persons are exploited financially, it occurs to me that we may be at a point where "fiduciary duty" is becoming a central -- perhaps even the central -- concept for the future practice of Elder Law, overtaking even Medicaid planning and end-of-life health care planning. Seasoned practitioners already know that the "million dollar question" in Elder Law is "who is my client?" -- a question intimately tied to carrying out fiduciary duties as an attorney.
Along that line, I've been digging into my stack of "must read" books, a stack that is always a threat to my safety as it gets taller and taller no matter how fast and furiously I read. I'm very much enjoying a book by Boston University Law Professor Tamar Frankel titled, simply enough, Fiduciary Law (Oxford University Press, 2011).
Early in the book, the author, whose teaching and research interests include corporation governance and regulation of financial systems, proposes a definition of "fiduciary relationships," which I find both intriguing and conducive to discussion. I don't think it is taking too much away from her full book, to repeat the four features Professor Frankel proposes as triggering fiduciary duties. She writes:
April 30, 2015 in Books, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Retirement | Permalink | Comments (1) | TrackBack (0)
Wednesday, April 29, 2015
After my blog piece earlier this week about "elder guardianship" concerns in Florida, I've received communications about similar concerns in other states, including Nevada.
According to a report by Contact 13 (ABC affiliate), on April 21 Commissioners in Clark County (Las Vegas area) conducted a "first-of-its-kind" hearing on alleged guardianship abuses that were described by some as "appalling, frightening and plagued by problems." At the heart of the complaints by individuals and family members was frequent court appointment of "private guardians" rather than family members, and an alleged absence of notice to family members about court hearings. A "blue ribbon" panel or expert may be appointed to audit Clark County's court-supervised guardianships. A recent statement by the Chief Judge for the district court, set forth in full on the Contact 13 website, pledges the court's commitment to "ensuring clarity and instilling public trust in the process of handling guardianship cases.
According to the Las Vegas Review-Journal, the Chief Judge's response follows a series of stories by the Review-Journal about "thousands of elderly and mentally ill in Clark County open to exploitation."
As reported by the Las Vegas media, the problems reported in Nevada are not unique to one county or even to one state, as demonstrated by an Associated Press series of articles in 1987 titled "Guardianships of the Elderly: An Ailing System." See also the national Center for Elders and the Courts for more information on guardianship reforms in state courts.
April 29, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 15, 2015
Justice in Aging (a 40+ year-old organization, until recently known as the National Senior Citizens Law Center) is "seeking a strategic, dynamic attorney" to join their health team in the Washington D.C. office. They are requesting applications by May 1, with a target start date of June 1.
- A J.D.
- At least 7 years of experience working for a consumer, legal, association, or other non-profit in a similar capacity
- Creative thinker with experience developing and implementing new advocacy projects to fill existing and emerging needs in underserved communities
- Capacity to manage multiple projects and people simultaneously
- Excellent interpersonal skills with demonstrated ability to lead, work as part of a team, and build external relationships
- Thorough understanding of both national and state legislative and regulatory processes
- Effective speaking, presentation, and writing skills
For more on the exciting opportunities in this position, see the full "job" posting on Justice in Aging's website.
Sunday, April 12, 2015
The Washington D.C. Bar Association has interesting CLE programs. The D.C. Bar is offering a session this week on Breaking the Silence: Depressing in the Practice of Law:
- Denise Perme, LICSW, Manager, D.C. Bar Lawyer Assistance Program, moderator
- Katherine Bender, PhD, NCC, Programming Director, The Dave Nee Foundation
- Dan Lukasik, Managing Partner, Bernhardi & Lukasik, PLLC
- Col. Brett Schneider, MD, Director of Behavioral Health Services, Walter Reed National Military Medical Center
The session is on Friday, April 17 from 4 p.m. to 5:30 p.m. Details about registration and location here.
It seems to me that I'm seeing more programming that explores mental health in the practice of law and that seems like a pro-active, healthy trend.
Thursday, April 2, 2015
Here is a recent ruling (February 2015), based on a fact pattern that many elder law attorneys will appreciate as both familiar and challenging.
In Runge v. Disciplinary Board, the Supreme Court of North Dakota reversed a disciplinary board "admonishment" of an attorney for "violating" the Rules of Professional Conduct, Rule 1.14. North Dakota's Rule 1.14, addressing representation of a "client with limited capacity," is similar to the ABA Model Rule 1.14 on clients with "diminished capacity."
At issue in the disciplinary proceeding was the lawyer's representation of a 79-year-old man who was residing in a "Care Center." The man wished to leave the nursing home, against "medical advice" and, apparently also in opposition to his daughter's apparent belief about what was best for him. The man had, before experiencing a heart attack, named his daughter as an agent under a durable POA.
By the time the attorney met with the man, the man had been living in the care center for several months. After meeting with the older man (and a female friend of the man), at the man's request the attorney prepared a revocation of the POA. The lawyer explained to the care center that absent someone holding a guardianship or custodianship for the man, and as long as the lawyer was persuaded his client had sufficient capacity, the revocation of the POA was effective and neither the center nor the daughter had grounds to prevent him from leaving.
Unhappy with this outcome, the daughter filed a Disciplinary Board complaint against the attorney, asserting the lawyer had acted improperly by failing to consult with her as her father's named agent, and taking the position her father's "incapacity" for purposes of an earlier "emergency care" statement was conclusive of his incapacity. The Court, however, observed:
"Here no guardianship or conservatorship existed that withdrew Franz's authority to act for himself. Rather, Franz shared his authority to act and he remained free to withdraw the authority conferred under that power of attorney, which, in any event, precluded anyone from making his medical decisions. This record reflects [Lawyer]Runge talked with Franz by telephone and in person to ascertain his wishes before Franz revoked the power of attorney. Runge's recitation of his conversations with Franz does not clearly and convincingly establish Franz was incapacitated in April 2013. This record does not reflect any subsequent attempt to obtain a court-ordered guardianship or conservatorship for Franz, which belies any suggestion that he was incapacitated in April 2013."
Therefore, the North Dakota Supreme Court dismissed the daughter's Disciplinary Board complaint.
Significantly, the Court observes that although the lawyer "could" have contacted the daughter before executing the revocation of the POA, the provisions of Rule 1.14 did not "require" him to do so.
Lots of potential lessons here. A key to the outcome seems to be the lawyer's persuasive testimony, showing the care he took in making the decision to represent the man and to prepare the revocation. As the court observed, "[The lawyer's] assessment of [the man's] capacity was within the range of a lawyer's exercise of professional judgment." This case is another demonstration that lawyers hold a lot of power -- and responsibility -- in matters involving client capacity.
Many thanks to Professor Laurel Terry at Dickinson Law for sending this decision our way.
April 2, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (2) | TrackBack (0)
Friday, March 27, 2015
As reported in the ABA Journal, "A New Jersey lawyer has been sentenced for 10 years in prison for her part in a scheme to steal $3.8 million from 16 elderly victims:"
Prosecutors say the group took control of the finances of their victims by forging a power of attorney or obtaining one under false pretenses. They then added their names to the victims’ bank accounts and transferred the victims’ funds into accounts they controlled. As part of a plea deal with prosecutors, Lieberman has agreed to pay $3 million in restitution and testify against her co-defendants.
Here are more details. And here. And here. And here. And according to one news source, the attorney actually served on the New Jersey Supreme Court's Ethics Committee while already engaged in misusing client funds. Hat tip to retired New York Attorney Karen Miller, now living in Florida, for sharing a link to the ABA Journal article on this sad set of facts.
Thursday, March 26, 2015
Pennsylvania's New Pro Rep Rules Target Financial Accountability for Lawyers, Including Restrictions re Sales of "Investment Products"
New rules supplementing Pennsylvania's Rules for Professional Conduct, adopted by the Pennsylvania Supreme Court in late 2014, are intended to require greater accountability by lawyers for handling of client funds, including sums temporarily deposited in IOLTA accounts. The rules became effective on March 1, 2015. As we reported on this blog earlier, including here and here, the changes were an important response to disturbing instances of individual attorneys who stole client funds -- in the aggregate amounting to millions of dollars -- that they had purported to "invest" for the clients.
On March 25, I had the interesting task of serving as a moderator for a meeting hosted by the Elder Law Section of the Pennsylvania Bar Association to explore the implications of the new rules. Panelists included attorneys Stephen K. Todd and David Fitzsimons who have each served on the Pennsylvania Disciplinary Board. They were involved in either the drafting or implementation stages for the new rules. Also helping to set the stage were two additional panelists, practicing elder law and estate planning attorneys, Linda Anderson from the east side of Pennsylvania and John Payne from the west side of the state.
The audience included attorneys from a range of practice areas around the state, as well as Pennsylvania Supreme Court Justice Debra Todd. The dialogue following the panelists' opening remarks was robust, demonstrating support for the increased standards for record-keeping and safe-keeping of property, as well as enhanced powers for the Disciplinary Board to investigate suspected misconduct and demand accountability and disciplinary compliance.
Many of the comments and questions focused on a single new rule, reportedly the first in the nation, that addresses the role of lawyers with respect to "investment products," defined to include annuity contracts, life insurance contracts, commodities, investment funds, trust funds or securities.
The key provisions of new Rule 5.8 provide:
March 26, 2015 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 25, 2015
In advance of his appearance and in preparation for his focus on "Special Needs Planning," Stephen Spano, who is board certified as an elder law attorney by the National Elder Law Foundation (NELF) and whose firm concentrates its practice on elder law, estate planning and special needs planning, asked the students to watch two very interesting -- indeed inspiring -- Ted Talk videos.
Here is his first assignment -- and I look forward to seeing how he uses both videos with our students:
His second assigned video "homework" is from Aimee Mullins, who talks about "My 12 Pairs of Legs."
Friday, March 6, 2015
Pennsylvania Bar Association Program on New Rules of Professional Conduct & Disciplinary Enforcement
On Wednesday, March 25, 2015 (1:30 to 3:30 p.m.), the Pennsylvania Bar Association (PBA)'s Elder Law Section is hosting a panel session at the annual PBA Section/Committee Day to discuss important changes in the Pennsylvania Rules of Professional Conduct and the Disciplinary Enforcement Rules.
Several of the recent changes, including rules mandating greater oversight for trust accounts, timelier handling of complaints, and specific new prohibitions or restrictions on attorney involvement in marketing of "investment products," were a response, at least in part, to serious cases of attorney misconduct resulting in tragic financial losses for individuals. In some instances the clients were older persons who entrusted large retirement assets to the care of a small number of attorneys.
In planning the program, Elder Law Section Chair Jacqui Shafer commented that the program reflects the continuing commitment of the Bar and the Section to take affirmative steps to address and prevent misappropriation of funds from any client, including vulnerable seniors and their families.
Panelists include experienced private practitioners in elder law or estate planning practices and representatives of the Disciplinary Board and PBA's Legal Ethics and Professional Responsibilities Section. Several participants were members of the Pennsylvania's recent Supreme Court Elder Law Task Force.
Here is the link for more details on the program, including the link for required registration (free, including lunch). The deadline for on-line registration is March 20.
March 6, 2015 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Tuesday, March 3, 2015
Heidi Rai Stewart, an attorney who concentrates her practice in "estate planning, estate and trust administration, special needs planning, elder law and Orphan's Court matters," has an interesting article in the March-April issue of The Pennsylvania Lawyer.
In "A Hit Between the Eyes - The Danger of Treating Legal Practice as a Commodity," Ms. Stewart takes on the hot topic of nontraditional providers of legal documents or legal advice, including lower-cost sources such as LegalZoom's partnership with Sam's Club or Avvo Advisor, an "on-demand service providing legal advice at fixed rates."
Ms. Stewart makes several points, including:
- "A fill-in-the-blank document program simply cannot address the possible eventualities that a skilled attorney will bring to a client's attention. Although attorneys use forms, a skilled lawyer does not simply fill in blanks."
- "Commoditization of legal services and documents induces the mindset of the cheaper the better."
- "There has long been a perception, reflected oftentimes in negative humor, that attorneys are solely concerned with making money.... That perception must change.... [A]ttorneys must better communicate the value of the breadth of their knowledge and wisdom if they want to remain competitive in the marketplace...."
Ms. Stewart asks "Are companies that provide DIY legal documents engaging in the unauthorized practice of law in Pennsylvania?" She observes that such a claim has not yet been heard in Pennsylvania.
Ms. Stewart outlines several recent cases from other states. She concludes by encouraging lawyers to engage in introspection and to think deeply:
"Do we distinguish ourselves by rising to the occasion with our integrity, skills, knowledge and wisdom? Or do we just continue on the path already trod while the public continues to search for the cheapest way to deal with life's most important issues?"
The issue containing the article is currently available only to members of the Pennsylvania Bar Association. Worth tracking down the full article!
Monday, February 23, 2015
On Saturday, I had the privilege of attending the 7th Annual Conference of the Pennsylvania Association of Elder Law Attorneys (PAELA), to give a presentation with Dr. Claire Flaherty, a Penn State Hershey Medical Center neuropsychologist with special expertise in frontal and temporal lobe impairments, on "Dementia Diagnosis and the Law."
Another speaker, Teepa Snow, an occupational therapist with long-experience in behavioral health, brain injury and dementia care, spoke on Sunday.
It was one of the rare times when I've been glad to be "snowed in" at a conference, as that kept me in place for both days of the presentations, rather than rushing home to work on some other task.
One of the topics that was discussed by attendees over the two days was the question of whether testimony by witnesses who observe "moments of lucidity" -- standing alone -- is proper support for a finding of "legal capacity." Context is important, of course, as both common law and statutory law increasingly recognize that capacity should be evaluated in terms of specific transactions.
My own takeaway from the health care experts was the need for some measure of caution in this regard. With many forms of dementia, especially at the early stages, unrecognized impairment of judgment may precede recognized impairment of memory. In other words, as I understand it, we may spend too much time being impressed by a client's ability to remember who is the president or the names of their children, and too little time asking more probing questions. Deeper inquiry may reveal or ameliorate concerns about judgment, including an individual's current abilities to make decisions, make reasonable, rational connections in formulating or following a plan, and related skills such as empathy or self-awareness.
Along this same line, it is a good time to remind readers that there are three useful handbooks on "Assessment of Older Adults With Diminished Capacity," one directed to lawyers, one to psychologists, and one for judges, that were created by experienced professionals working as a team on behalf of the American Bar Association and the American Psychological Association (APA). Individual copies can be downloaded without cost from the APA website.
Monday, February 16, 2015
ABA's Litigation magazine's Winter 2015 issue has an interesting theme -- "regrets" -- and I encourage all attorneys and law professors to track it down. Lots of gems here, offering plenty of stimulus for conversation.
Famed trial attorney Gerry Spence starts off one of the articles in this way:
"Like most old men looking back, I tend to forget the major regrets in my life. Mine may been becoming a trial lawyer in the first place. I learned how to try case by failing. I regret I wasn't taught in law school the first rudimentary principles of a jury trial. But how could that happen when most of the professors had never been in a courtroom?....
"In short, the justice system is broken.... I've labored in the system for over 60 years, and I regret, not winning, but in contributing to the myth that there's liberty and justice for all. I regret aiding and abetting the 'appearance of justice' that continues to defraud most Americans who have never awakened one day to find themselves crunched in the system...."
Abe Krash, with a 50 year career at D.C.'s Arnold & Porter law firm, shares his thoughts, thoughts that are on the whole, more positive that Spence's, but include:
"The bloom on the Washington legal rose began to fade somewhat in the mid-1980s during the era of deregulation. At about the same time, the legal profession began to change in significant ways. I applaud a number of the changes... such as the widening opportunities afforded to women and minorities. But like many others of my generation, I regret some of the changes, including the shift among large law firms from a partnership mode to a corporate mode."
Elder Law, which as a specialization is still relatively young, is now "old enough" to see a first generation of long-time practitioners contemplating their own retirements. I wonder how the theme of "regrets" might play out for these individuals?
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Monday, February 9, 2015
Recently Elder Law Attorney Bob Anderson from Marquette, Michigan, spoke to law students at Dickinson Law on the theme of "planning" and his presentation stressed the importance of understanding long-term care insurance or, because our world loves acronyms, "LTCI."
Bob used his thirty years of experience in counseling families to outline key points, and to explain factors that have impacted the LTCI industry. I asked the students to summarize what they found to be most interesting and important. Their "takeaway" highlights included:
- LTCI is an important consideration, part of the same evaluation for insuring against "unacceptable" losses, that should take place in deciding whether to insure against home fires or early death, recognizing that such events are "unlikely" to happen, but can happen to a significant percentage of the population;
- LTCI has a "cost of waiting," both in terms of the potential to become "uninsurable" because of a disqualifying medical condition arising, and because of the cost increase in first time premiums as you get closer to the age of potential need; and
- The cost of LTCI has several important variables, which lawyers can help families understand when advising about planning options, including the term of coverage (e.g., 1, 3 or 5 years), the "elimination" period, the interaction with Medicare's 100 day maximum for post-acute care, and the need to consider inflation protection for the daily benefit.
Bob also talked about "hybrid" insurance products, combining life insurance with an LTCI option. I think it is safe to say that regardless of their goals after graduation, all of the law students came away with an appreciation for the need to understand all available options, including LTCI, in planning or advising for post-retirement needs.
One of our students, who is thinking about general practice, said that he can see clients asking questions about LTCI. Bob was excellent at reminding all of us that effective elder law and estate planning attorneys address more than just what happens after death.
Bob, whose diverse interests include cross-country ski racing and hockey, also provided a bit of surprise during his visit when he began speaking Russian -- and, I think, Ukrainian -- with our Russian and Ukrainian Law expert, Bill Butler.
We especially appreciate Pennsylvania elder law attorney Amos Goodall and the National Elder Law Foundation (NELF) for their roles in making this interactive program possible; the recording will be available to practitioners in the future through NELF's educational arm. Amos also addressed our students, adding important Pennsylvania specifics to the discussion.
In a timely coincidence, AARP has a newly published Money Column, on "Should I Buy Long-Term Care Insurance?"