Thursday, March 27, 2014
- Get a copy of medical records, which every patient has a right to under federal law. These records can provide important information about what happened -- and what might have gone wrong.
- If the patient has died, order a forensic autopsy, which includes toxicology tests. Autopsies -- though not always 100 percent accurate -- are the most reliable means of finding out what happened in an unexpected death. Hospitals do not routinely conduct autopsies, but the family has the right to get one.
- Consider calling an attorney. Be aware that the standards for proving medical malpractice are much higher than most patients expect. Attorneys take few cases because they're expensive to pursue and difficult to win.
Monday, March 24, 2014
From January through March, the ABA Journal has run an interesting series of articles on retirement planning for lawyers, with clear messages for all age groups. Following that series, the ABA is hosting a live Webinar on "Retirement Expectations and Trends for 2014" on Wednesday, March 26. The program is scheduled to begin at noon Eastern time. The faculty, including Sally Hurme from AARP, Dean Deanell Reece Tacha from Pepperdine School of Law, and financial planning consultants, will
"...go beyond the basics of retirement and financnial planning to discuss other factors that can make your retirement what you want, including goal-setting; making the actual transition to retirement; determining whether a second or part-time post-retiremetn career is right for you; and dealing with the emotions of being retired. Faculty will also provide guidance on the ethics of transitioning out of your practice, transitioning your clients, and selling your practice."
The 90 minute program is free for ABA members and $50 for the general public; no CLE credits are attached to the program. Registration is here.
Tuesday, March 11, 2014
National Healthcare Decisions Day (NHDD) is April 16th, the date set aside each year to encourage everybody over age 18 to discuss and plan ahead of a serious illness. Five Wishes makes it easy because it is written in everyday language and deals with the things people care about most: their comfort, maintaining their dignity and other personal, spiritual and family matters.
Interested in $25 worth of free resources?
If you send us a photo and short account of your NHDD event or family gathering we'll give you a $25 credit for Five Wishes resources. Use this credit for a free DVD or to get copies of the 26 language translations of Five Wishes, pediatric documents, discussion guides, presenters guides, or access to Five Wishes Online. Get more information and tell us about your event here. Submit before May 15 to receive your credit.
NHDD buttons and stickers = more visibility for your good efforts:
If you're thinking about doing a community event, we want to help ensure it is a success, so we're again offering you a limited number of free "Five Wishes - Have You Signed Yours?" buttons and stickers. Just send us a message here, and we'll get the buttons and stickers to you.
NHDD Five Wishes
Five Wishes can deliver your message. Don't miss the chance to customize the back cover of Five Wishes with your organization's logo and message. To receive your customized documents in time for NHDD, please complete your request by March 14 (that's the end of next week!).
Wednesday, February 26, 2014
Following up on Becky's post of Feb. 25 regarding some recent CRS Reports--I'm using a number of CRS reports in a class I am designing for Valparaiso's new health management and policy master's program. These include:
Medicare, A Primer Download Medicare Primer CRS
Medigap: A Primer Download Medigap CRS
Medicaid, An Overview (referenced by Becky) Download CRS Medicaid an Overview
Medicaid Coverage of Long Term Services and Supports Download Medicaid LTC CRS
Health Care Fraud and Abuse Laws AffectingMedicare and Medicaid: An Overview Download Fraud and Abuse CRS
Medicare Secondary Payer:Coordination of Benefits Download Fraud and Abuse CRS
Overview of Private Health Insurance Provisions in the Patient Protection and Affordable Care Act (ACA) Download Private Health Insurance ACA CRS
CRS reports aren't generally made available to the public, but I have had great luck over the years in obtaining them simply by contactiing one of the authors and requesting a copy.
Monday, February 17, 2014
Via the ABA Journal:
Asking would-be lawyers standard questions about their mental health, including their history of diagnosis and treatment, could violate the Americans with Disabilities Act, according to the civil rights division of the U.S. Department of Justice. In a lengthy Feb. 5 letter (PDF) to the Louisiana Supreme Court, its committee on bar admissions and the state attorney disciplinary board that is likely to reverberate throughout the country, the division says some, but not all, of the questions asked in a standard National Conference of Bar Examiners questionnaire are unduly broad and violate the ADA. The DOJ also found that the state violates the ADA in evaluating bar applications from individuals with a history of mental health issues and admitting them to practice conditionally.
Tuesday, February 11, 2014
The Borchard Foundation Center for Law and Aging reminds us that the application window is now open to apply for 2014-15 Borchard fellowship funding. The program provides three law school graduates the opportunity to pursue their research and professional interests for a year in law and aging.
The fellowship is $42,500 and is intended as a full-time position only. The fellowship period runs from July 1 to June 30 each year, or for the calendar year beginning the month after the fellow’s completion of a state bar examination.
Examples of activities and projects by Borchard Fellows:
· Working with an established legal services program to enable vulnerable, isolated, low-income seniors to age-in-place by addressing their unmet legal needs;
· Providing holistic services to older clients facing consumer debt and foreclosure-related concerns;
· Implementation of a courthouse project to help elderly pro se tenants achieve long-term housing stabilization through the interdisciplinary use of legal representation and social services, allowing more elderly tenants to “age in place” at home;
· Development of a non-profit senior law resource center providing direct legal services and public education;
· Development of an interdisciplinary elder law clinical program at a major public university law school;
· Development of a mediation component for a legal services program elder law hotline;
· Development of an interdisciplinary project for graduate students in law, medicine, and health advocacy to foster understanding and collaboration between professions.
For more details on how to apply before April 15, 2014 deadline, see details here.
Thursday, February 6, 2014
What are "limited license legal technicians" or LLLTs? As defined by the Supreme Court of Washington in an order issued in June of 2012, LLLTs are individuals who achieve certification through a new state program, authorizing them to provide specific legal services within specific substantive areas of law and law-related practice.
Why create the LLLT alternative, especially in a country and during an economy where there are, arguably, more than enough underemployed lawyers? As the Washington Supreme Court carefully details, the current civil legal system "is unaffordable not only to low income people but, as a [2003 state study] documented, moderate income people as well...." For low income people, the "underfunded civil legal system is inadequate" to meet their very real needs. For many who are moderate in income, "existing market rates for legal services are cost-prohibitive." A new means of meeting public need is warranted, says the Court.
Why is a system of licensing LLLTs in the State of Washington potentially very significant to the practice of Elder Law? Washington has identified four areas of unmet civil law needs: Family Law, Immigration, Landlord/Tenant, and... yes, Elder Law.
Very interesting! The first practice area to be certified in Washington will be "Domestic Relations," with the Limited License Legal Technician Board expecting to begin accepting applications for a licensing examination in late summer or early fall of 2014. No indication yet on when "Elder Law" LLLTs might be certified. In the roll-out design, applicants must first satisfy threshold educational standards, including holding at least an associate level degree, plus 45 credit hours at an ABA-approved program (which, for the moment at least, means an ABA approved law school). Details on the certification process are available on the Washington State Bar Association's website, here. The University of Washington's School of Law has announced its "inaugural program" for LLLTs in family law to begin in the winter quarter of 2014.
While I suspect this movement might make existing Elder Law attorneys a bit nervous, my own research points to the very real need for more widely available, trustworthy legal advice. For example, Penn State Dickinson law students, with financial support of the Borchard Foundation's Center on Law and Aging, helped me to conduct focus groups drawn from a wide range of income, race, ethnicity and gender orientation, from locations all across Pennsylvania. In English and in Spanish, in inner cities and rural senior centers, we asked about their views and experiences with accessing legal assistance with Social Security, Medicare, Medicaid, insurance and other legal questions of concern to older persons. As summarized here, fear of the cost of seeing a lawyer, and the difficulty in finding free or affordable attorneys who were "trustworthy," were concerns clearly raised in each of the focus group sessions. That study pointed to the need for elder law specialists -- but not necessarily to a need for "just" Elder Law attorneys.
Big thanks go to Penn State Dickinson Professor Laurel Terry, our in-house guru on all things cutting edge in the practice of law, for sharing with me the latest materials on Washington's LLLT program.
Wednesday, January 22, 2014
Recently, a long-time friend, a successful business person, sent me a link to an Inc. article about an interesting course at the University of Chicago called "Entrepreneurial Selling." The course was taught in the Business School and the Inc. article included the course syllabus. My friend asked "should lawyers -- and by extension law students -- be taking this kind of course?" Reading the first line of the article made me shudder just a little, because it made the distinction between learning "how to sell," versus mere "marketing," especially for small businesses. But, the more I read, the more I was intrigued. My friend (a non-lawyer) argued that selling is the art of effective communication and lawyers are or should be all about effective communication.
That got me thinking, and I realized that some of the most effective "sellers" of law are Elder Law attorneys, who regularly engage with the public in social and business contexts, always with their eyes open for new relationships and new clients. As examples, I've witnessed (and participated in) an interesting variety of educational seminars for the public or other professionals that were sponsored by Elder Law firms or Elder Law attorneys.
Elder Law is still a relatively young (and evolving) field. Most members of the public have little understanding of what might be covered by the term. Indeed, two summers ago, a group of law students and I were sharply reminded of that fact while doing a state-wide research project with focus groups of older adults and their families, asking them to talk about access to trustworthy legal advice and information. We frequently encountered people who thought of Elder Law as "writing wills for old people," or similar amusing, if worrisome, definitions. Thus, "selling" the field is perhaps especially important and necessary.
But, of course, that leads to more questions. Is there an ethical model for "selling" a particular field of law, particularly a field that may not be well understood by the potential client base? Is so, what are the elements of that model?
What is necessary, for example, to avoid the Consumer Financial Protection Bureau's concerns about manipulation of potential clients, as addressed in an earlier post on this blog about investment products marketed to seniors? I'm tempted to say that one possible element of an ethical model would be to de-couple the educational programming from the client-retention meetings, but perhaps I'm being very naive, trapped in my ivory tower.
Silvia Hodges, who runs a blog subtitled The Legal Firm as a Business, recently published "I Didn't Go to Law School to Become a Salesperson -- The Development of Marketing in Law Firms." in the Georgetown Journal of Legal Ethics. She argues that "lawyers [often] mature in their professions without marketing training and therefore are ... ill-prepared to handle both the business and the professional part of their profession simultaneously." She refers to the problem as "market disorientation," where lawyers "consistently underrate the importance of clients' selection clues and criteria." She concludes that law firms "need to aspire to have marketing embedded in their firm culture, independent of whether the firm is a professional partnership or a managed professional business."
Perhaps the first step to that culture change should occur in law school, and thus "selling law" should also be addressed specifically in Elder Law classes.
Tuesday, January 21, 2014
Recently, a Pennsylvania friend was describing her aging father's situation in one of the sunshine states. When her father, a widower, began to show signs of diminishing capacity, the adult children discussed options, including moving Dad closer to one of them. But, he liked his retirement spot in the sunshine, had friends, and, in fact, there were more care options where he was living.
Eventually, my friend hired a local geriatric care manager in the sunshine state, with the cost shared by her and two siblings. In our most recent conversation, my friend described that decision as perhaps the best move the family made. She said that at first she had a hard time getting her father's facility to accept the fact that they should call the care manager first. But having an informed person -- an experienced advocate for her father -- in the community has often been essential, as questions arose over insurance, level of care, medications, transfers between facilities, nutrition and whether to hospitalize. My friend still makes regular trips to visit her father, but the local manager meant there were fewer emergency trips.
Geriatric care managers, sometimes called care coordinators, elder care coordinators, or professional care managers, could -- and perhaps should -- be an increasingly important part of planning. One of the questions about this emerging profession is credentials. At least two national trade groups exist, including the National Association for Professional Geriatric Care Managers (NAPGCM) and the National Academy of Certified Care Managers (NACCM).
In addition, law firms specializing in elder law frequently offer care management services, often employing non-lawyer professionals as part of the team.
Geriatric care management may be very important to "elder boomers," both as they become seniors caring for their even-more-senior-aged parents, and as future care-needing individuals themselves. Unfortunately, a big question may be cost. Medicare and Medicaid -- and most insurance -- does not cover the cost of care management. As reported by the New York Times a few years ago in "Care Coordination: Too Expensive for Medicare?," attempts to secure public funding for care managers has been stymied by studies that show care management does not necessarily reduce the costs of care.
Nonetheless, such coordination may be particularly important in a nation where family members often live far apart. In my friend's situation, she expected the need to last for a couple of years, but in fact, her father is approaching age 98, and the "healthy" relationship between the children, their father and his care coordinator has lasted for more than 10 years.
January 21, 2014 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Medicare | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 7, 2014
I love book stores, and at the AALS Annual Meeting the next best thing is the book publishers' booths. I always ask representatives about "what's new" in aging. This year the answer was a book I should have read already, especially as it is co-authored by Elder Law Prof Blogger Becky Morgan and her Stetson colleague, Roberta Flowers. It was great to have my new copy with me for my train ride home through the frozen mid-Atlantic corridor.
Their book, Ethics in the Practice of Elder Law, published in 2013 by the American Bar Association, is an important reference book for students and practitioners. It also strikes me as the kind of book that could support an entire day of CLE programming and discussion on professional responsibilities, not just for elder law attorneys but for lawyers in family or corporate practices, where there is a clear potential for questions of conflict of interest. The organization of the book is interesting, too, with short opening fact patterns and highlighted questions introducing each chapter. The topics include:
- Where to Go for Guidance
- Who Is the Client?
- Who Can I Talk To?
- Who Can I Represent?
- Representing Clients Who May Have Diminished Capacity
- Ethical Issues in a Guardianship
- Whom Do I Represent in Complex Fiduciary Representation?
- To Litigate or Not to Litigate - That Is the Question
- Ancillary Services and Marketing
That last chapter is a good example of an important discussion topic for practicing lawyers. One of the trends in U.S. elder practice is the one-stop shop, where a lawyer might also offer ancillary services or products, such as annuities used by families in Medicaid planning. The authors caution that an attorney must be careful to identify and carefully disclose whether the attorney has a "financial interest" in a service or product recommended for a client. Throughout the book, they provide state-specific sources of ethics analysis. For example, they cite and quote from state ethics opinions regarding various ancillary services or marketing practices (and it could be important to expand this topic in future editions).
Roberta and Becky also offer useful checklists and draft letters (including engagement letters); the paper-back text is accompanied by a CD-ROM.
Wednesday, November 27, 2013
Earlier this month I sent three of my students to NALI. NAELA members and others were welcoming, and the students learned so much there! I've asked the students to write some blog posts about their experiences, and will be posting these over the next few days. This one is by my RA Regan Bovee, who will graduate in December with a JD from William Mitchell and a Health Compliance certificate from Hamline.
My Experience at the NAELA National Aging and Law Institute
On November 7th-9th I had the incredible opportunity to attend the NAELA National Aging and Law Institute as a third-year law student. The conference began with a discussion on the budget and policy landscape and what can be expected in the next year. From there, I attended a whirlwind of sessions about everything from designing an elder friendly office to a funny and informative panel featuring staff from the Center for Medicare Advocacy playing “Wait, Wait Don’t Tell Me.”
Jonathon Blum, the Deputy Administrator of the Centers for Medicare and Medicaid Services and Director of the CMS Center for Medicare spoke about Medicare’s ‘observation status.’ Among other topics, he discussed accountable care organizations (ACOs), which are groups of health care providers accountable for quality and cost of healthcare for beneficiaries in traditional fee-for-service care. Service quality is tied to an ACO’s rating.
Mr. Blum said that prior to the implementation of the Affordable Care Act (ACA), fifteen percent of Medicare beneficiaries were in four or five star plans. It is now more difficult to meet the requirements of being labeled a four or five star plan, but CMS projects that by 2015 more than half of beneficiaries in private plans will be in a high ranking plan.
My highlight from the conference was the large amount of content that involved the ACA. Almost every session I attended mentioned the ACA in one way or another, whether it be transitioning from a healthcare exchange to Medicare or the impact the ACA is having on long term care services. The final session, given by David Lillesand, focused solely on the ACA and addressed many common complaints such as, “my insurance plan is skyrocketing” and “why do men have to have maternity coverage?”
Mr. Lillesand also discussed the impact the ACA will have on personal injury law, since a large percentage of personal injury claims often goes toward future medical costs associated with having preexisting conditions and no longer being able to find coverage. With preexisting conditions no longer affecting coverage, the amount awarded in personal injury suits may decrease drastically.
It was such a wonderful experience being surrounded by elder law experts and having the opportunity to listen to them speak about topics that are so relevant. I left the conference feeling very inspired and excited to enter the field of elder law.
--by Regan Bovee (JD expected December 2013, William MItchell College of Law)
Tuesday, November 26, 2013
Man, how very cool is this!!! Via the Pittsburgh Tribune:
The Pittsburgh region's top prosecutor and one of its top businesswomen have created a $1 million endowment that will support the University of Pittsburgh's Elder Law Clinic.
U.S. Attorney David Hickton and his wife, Dawne Hickton, president and CEO of RTI International Metals named the endowment in honor of David Hickton's late mother, Gloria McDermott Hickton.
Gloria McDermott Hickton was an actress, a South Hills real estate agent for 35 years and one of the first members of the Pittsburgh chapter of the National Organization for Women, according to her obituary. She died in April 2013.
David and Dawne Hickton met while they were students at Pitt's law school.
The clinic's law students represent low-income senior citizens facing legal problems. William M. Carter Jr., dean of Pitt's law school, said the endowment helps meet the school's goals of providing students with practical experience and providing community service.
And to learn more about Pitt's elder law clinic, go here.
Wednesday, November 13, 2013
Last spring, Student Lawyer magazine published an article on three rapidly growing areas of legal specialty. One of these was elder law. An excerpt from the article is below.
Exploring Growing Areas of LawVol. 41 No. 6
ByFact #1: The population of Americans who are getting older and living longer is growing dramatically. As lawyers try to make sense of all the issues related to elder law, they need a keen sense of the broad policy issues, an up-to-date understanding of all the regulations of their state and the federal laws, and a patient understanding of the unique needs and desires of their client.
Elder Law: Includes More Than You Might Think
Before James Barnes started law school, he got a valuable piece of advice from a respected large firm lawyer that stuck with him as he angled for good internships and tried to map out his future: “Learn how to work with people and solve their problems,” Barnes recalls.
The advice couldn’t be more relevant for the practice area Barnes concentrates in today. An elder law attorney at Burke & Casserly, P.C. in Albany, New York, Barnes, a shareholder at the firm, relies on his people skills as much as his legal skills to help families navigate a growing maze of estate, health care, financial, and other issues that are important to the fastest growing segment of the US population. He cannot do it with a dry understanding of regulatory schemes like Medicare, Medicaid, trusts and estates law alone, although he certainly must keep up to date on all relevant federal and state legislation. He has to develop a special relationship with the elderly client and family members caring for the client and patiently guide everyone toward an understanding of the legal realities and their best options.
“It takes a very special personality to be in elder law,” says JulieAnn Calareso, a shareholder at Burke & Casserly, who practices with Barnes. “You are not just sitting there and reading the rules of evidence. You are applying some very detailed rules in an emotional and crisis-filled situation.” This can get particularly tricky, Calareso explains, when you have family members who live in different states than the client (some states have different regulations, for example on Medicaid, which is a combined federal/state program), or who think that because their neighbor’s insurance policy covered a certain amount of home health care or nursing home care, that’s what their loved one will be entitled to.
And a side note--when the article came out, I posted a copy of it on my bulletin board. Coincidently, enrollment in my elder law class peaked at 52--considerably higher than normal enrollment of 28-30. Most of these students say they are interested in specializing in elder law.
Monday, November 11, 2013
In my experience, the Elder Law Bar -- those lawyers who work hard to help older adults and family members through the maze of options in deciding how to handle long-term care needs and end-of-life planning -- are also a warm, generous group of professionals to hang out with. When you need an answer to a tough question on one of your cases, someone always takes that call. When you need a speaker for a meeting, conference, or classroom, someone always volunteers, and then goes above and beyond, to provide a little something extra in terms of value for the audience.
Another example of the generosity of the bar occurred this semester in my Elder Law class, when a graduate of our law school, Robert C. Gerhard, Esq. stepped forward to teach a class for me when I was called out of town. The topic was "setting up your own elder law practice," and Bob was full of practical advice, including both encouragement and appropriate warnings. Bob is one of many great practitioners who have shared experiences with our students.
But Bob went above and beyond, providing each of the students in the class with a copy of the latest edition (2013) of his treatise, Pennsylvania Medicaid: Long-Term Care (Bisel Co.)
I had a chance to review the book over the weekend. It is a practical "bonanza," in the sense that it offers both narrative explanations of Medicaid law as practiced in Pennsylvania, and all of the key forms and hard-to-find informal state guidelines about the process. It is the kind of book that is useful both to the public as a "first step" and fellow practitioners who need reminders about the many next steps. Chapters 4, 5 and 6 are golden, using clear language to explain "achieving resource eligibility," the application process, and the ever-more challenging "estate recovery" rules.
I hope all elder law and estate planning professors have alums and colleagues in practice who are both generous AND good writers. Thanks, Bob!
The November 7 issue of the Chronicle of Philanthropy provides great coverage on the importance of Legal Aid organizations in disaster relief. But what first caught my eye were the photos that accompanied "A Nonprofit Pushes to Make Legal Aid Key Part of Disaster Services," by Nichole Wallace, depicting a mobile "Legal Help Center" operated by New York Legal Assistance Group.
The article explains:
"Less than a year old when [Hurricane Sandy] struck, the 41-foot vehicle is a joint project with the New York State Court's Access to Justice Program. The idea is to take legal services into neighborhoods to reach people who have trouble getting assistance because they lack transportation or child care, have a disability, speak little English, or fear coming into the office because of their immigration status.
The Mobile Legal Help Center can accomodate up to 17 people at a time, and has videoconferencing capabilities that allow access to judges for emergency proceedings, such as unlawful evictions and orders for protection in domestic-violence cases."
What a creative approach! And wouldn't mobile units be useful in providing legal services for older clients, with or without a natural disaster as the reason?
Wednesday, November 6, 2013
With unprecedented distractions at our fingertips, the ability to focus and finish a project before moving on to the next has become a more valuable skill than multitasking.
In Why Focus Should Really Be the Next “Big Thing,” Dr. Gottschalk suggests that the ability to multitask is more of an illusion, than a bona fide skill. That in reality, we should be on a mission to break our multitasking obsession, since, while we have the ability to switch between tasks — we do not have the ability to attend to all of them effectively.
Plan to do less – There are few things more discouraging than an endless to-do list. It’s a productivity killer. Limit your daily tasks to 5: 3 big things and 2 small things. Of course, it’s wistful to assume that you’ll have only five tasks on any given day, so create a “Back Burner” list where you throw less urgent tasks or brilliant ideas as they occur. When you’re done with your five tasks, then drag a few of the “Back Burner” tasks over.
This works like a charm for me: during daily “agile” stand-up morning meetings I limit the reporting of core tasks to five. I often end up completing many more tasks as priorities shift during the day. But starting out with a manageable number of tasks lessens the burden and stress and allows me to focus on each task to completion. Like researching and writing this post...
Tuesday, October 22, 2013
This semester, I have had several practitioners as guest speakers in my Elder Law class at Penn State Law. (The students have been loving this -- real world advice!) More than one speaker has mentioned that he or she does not handle litigated issues for clients. One guest lawyer mentioned "no longer handling" contested guardianships. Along the same line, I recently ran into a former student who has an Elder Law practice and who told me that most of his work is handling contested matters, including litigation over what he described as financial abuse.
That started me thinking. Is the specialized practice of Elder Law now branching into two subspecialties, litigation and planning?
If so, there could be a variety of reasons for the split, including:
- a growth in client base means the traditional Elder Law practitioner is too busy with "planning" clients, and can afford to turn away litigation;
- challenges to state restrictions on Medicaid eligibility or other benefits can require litigation, including knowledge of class action suits;
- there is more demand among individual clients for "litigated" outcomes, requiring courtroom skills (although I suspect that does not necessarily mean the disputes will result in actual trials, given the overall downward trend nationally in any civil case going to trial).
Of course, money is probably at the heart of the growth of both sides of the practice. Some people use advance planning to address allocation of financial resources. Other people may be taking "after the fact" routes to address lack of planning or, even, bad planning.
Your thoughts? Is there a growth in Elder Law practice -- is there a split between lawyers who do or don't handle litigation?
Friday, September 27, 2013
For example, I just finished teaching a series of cases that ask students to evaluate the voidability of large end-of-life gifts made by older individuals, usually to persons who appear to be caregivers or recent "befrienders." Were the transactions voluntary even if unwise, or were they the product of an unstable mind or undue influence? Close calls on most of the cases.
The cases that interest me most were the ones where an attorney represented the older person during execution of the documents. In one case, the court commented that the attorney who completed the transaction met with the new client for an hour on a Sunday afternoon and performed a series of "tests" that satisfied the attorney about the client's capacity to complete transfers of the bulk of his real estate. However, a geriatric psychiatrist who later evaluated the same individual, found the individual to have advanced dementia of an Alzheimer's Disease type and concluded the individual would not be able to understand the significance of the deed transfers signed earlier, even though he appeared to be "oriented as to time, place, and person."
Which professional's testimony carried the day? The court credited the attorney's testimony that his client was "lucid" while completing the documents in question, and pointed to the fact the doctor "conceded" that the individual had "moments of lucidity."
Exactly what "tests" does a lawyer, any lawyer, use to evaluate cognitive function? Perhaps every seasoned lawyer has a series of tried and true questions or techniques. But I suspect that many lawyers rely more on instinct than tests, and certainly most transactions by older adults are not challenged.
Should lawyers go further to assess capacity? To help frame the discussion on whether and when to go more deeply into questions of capacity, guidelines are available. Members of the American Bar Association (ABA) and the American Psychological Association (APA) participated in an interdisciplinary task force, which led to three separate documents, including worksheets that may be useful in any assessment of capacity:
- Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers
- Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists
- Judicial Determination of Capacity of Older Adults in Guardianship Proceedings: A Handbook for Judges
The good news is that all three documents are available on the internet. The less good news is the documents are copyrighted and permission is needed to make additional copies for distribution to a group or audience. The handbooks have been available since 2006. Nonetheless, I suspect most attorneys, many psychologists, virtually all other medical professionals, and a heck of a lot of judges have never heard of the handbooks.
Any opinions about the usefulness of these handbooks to practitioners?
Monday, September 9, 2013
Recently a colleague described an estate planning dispute. After the death of the first spouse, it came out that the surviving spouse had never read the couple's estate plan, but had signed the documents in the attorney's office when they were presented. The individual failed to realize the documents were not entirely consistent with what the survivor believed to be the couple's plan. The problem may be hard to solve now that the first spouse has passed. Why would someone sign estate planning documents without reading them?
In this instance, the individual in question, a successful entrepreneur, was dyslexic; reportedly it would have taken the individual hours to read the will or trust carefully, and although the individual planned to read the documents upon returning home, that did not happen.
I suspect this happens far more often than lawyers would like to believe.
As explained by the International Dyslexia Association (IDA), dyslexia is a "language-based learning disability." According to the IDA, an estimated 15 to 20% of the population has a language-based learning disability, with some estimates suggesting one in nine individuals can be classified as having a severe disability. Dyslexia can involve a cluster of symptoms, but is most commonly associated with difficulty in reading.
According to some researchers, dyslexia may also by associated with problems in oral communication. For example, IDA advises:
"People with dyslexia can also have problems with spoken language, even after they have been exposed to good language models in their homes and good language instruction in school. They may find it difficult to express themselves clearly, or to fully comprehend what others mean when they speak. Such language problems are often difficult to recognize, but they can lead to major problems in school, in the workplace, and in relating to other people. The effects of dyslexia reach well beyond the classroom."
It is possible that by the time people get to the estate planning phase of life, they have developed or learned individual strategies for coping with dyslexia. Or, they may have become experts in hiding the fact of their dyslexia.
As lawyers, perhaps it is incumbent upon us to inquire tactfully about each client's comfort level in reading, especially in reading often-complex estate planning documents. Lawyers can offer alternatives to a formal "signing" session that puts pressure on even the strongest readers to sign without informed understanding of the documents.
Strategies may include remembering to provide all clients with quiet time to read the documents, before any signing session is planned. The lawyer can also "chart" the estate plan, to provide a pictorial image of the plan for clients. Lawyers and their staff can be patient in reviewing each aspect of the plan carefully, also involving the clients with conversation and dialogue (rather than monologues). I'm sure experienced practitioners and academics have developed a whole host of key strategies that can assist not only those with dyslexia, but those with other common barriers to understanding. Is dyslexia an understudied phenomenon in attorney-client relations? "Comments" open below.
And before anyone brushes off the topic as not relevant to "their" clients, let's remember that dyslexia can be present with highly successful people, and thus there is the potential for impact on families with significant estates.
Monday, August 26, 2013
The Veterans Advocacy Clinic provides representation to veterans appealing decisions of the Department of Veterans Affairs concerning benefits, including but not limited to disability compensation. As part of Stetson’s Veterans Law Institute, the clinic provides outreach to the bar and the veteran community in addition to direct legal representation. Stetson’s Veterans Law Institute also conducts a pro bono initiative, promotes policy and scholarship advances on military and veterans issues, and provides services to student veterans.
The Director of the Veterans Advocacy Clinic will be responsible for directing all aspects of the legal work of the clinic, including the assumption of professional responsibility for all cases. He or she will also be responsible for the field supervision of students, teaching the classroom seminar, and promoting the clinic so as to maintain a flow of cases appropriate for student representation. As a key member of the Institute’s leadership, the Professor of Legal Skills will work with the Director of the Institute and the Director of Clinical Education to develop new initiatives, establish policies and procedures for the clinic, and participate in other work of the Institute.
After the first year, the professor will be expected to teach one course per year, open to any student enrolled in Stetson University College of Law. Faculty on the Programmatic Tenure track, or with Programmatic Tenure, attend faculty meetings, serve on and/or chair various faculty governance committees, vote on matters of policy with all other tenure-track or tenured faculty, and are expected to produce legal scholarship consistent with programmatic faculty status that recognizes skills-course teaching requirements. The College of Law may also consider alternative arrangements for the structure of the position based on a candidate’s interest and experience.
Located in Florida’s Tampa Bay region, the nation’s nineteenth largest metro area, Stetson was established in 1900 and is Florida’s oldest law school. Our main campus is in Gulfport, just outside St. Petersburg, with a satellite campus in downtown Tampa. Stetson has earned a national reputation for its advocacy, elder law, legal writing, and higher education programs, and has Centers for Excellence in Advocacy, Elder Law, Higher Education Law and Policy, and International Law. Stetson nurtures a vibrant intellectual community, situated on a beautiful campus. We encourage applicants to visit our website at http://www.law.stetson.edu to learn more.
Stetson encourages applications from women, minorities, LGBTQO candidates, and all others who will contribute to our stimulating and diverse cultural and intellectual environment. All applicants must have a strong academic record and be committed to outstanding teaching, scholarship, and service. The Appointments Committee expects to conduct interviews in Washington, D.C., as part of the AALS 2013 Faculty Recruitment Conference but it also willing to make other arrangements in time and location of interviews as necessary. Interested applicants who are not registered with the AALS Faculty Appointments Register should send a letter of interest and current c.v. to:
Professors Mark Bauer & Ann Piccard
Co-chairs, Faculty Appointments Committee
Care of: Jessica Fehr, Faculty Support Services
Stetson University College of Law
1401 61st Street South
Gulfport, FL 33707
The Faculty Appointments Committee began reviewing applications on August 22, 2013, and will continue to do so until the position is filled.