Join us for our 5th annual National Voices of Medicare Summit & Senator Jay Rockefeller Lecture! Connect with leading experts and advocates to discuss best practices, challenges and successes in efforts to improve access to quality health coverage and care. Be a part of the conversation on health care activism, civic engagement, and efforts to preserve (and enhance) the Affordable Care Act, Medicare, and Medicaid. We're honored to have Senators Chris Murphy and Jay Rockefeller present to help participants think about building a healthy future for all Americans.
Wednesday, May 23, 2018
The 2019 conference will have a strong focus on critical and emergent topics facing the field of aging, as well as cutting-edge and responsive programmatic, research, policy and advocacy efforts. Potential interest areas include: emergency/disaster readiness, housing and transportation access, caregiving, substance use/opioid crisis, multiple aspects of dementia, technology and aging, intergenerational models, population health, and shifting policy and legislative issues affecting older adults. Additionally, we welcome proposals spanning the theme of aging that offer innovative policies, programs, practices, models, businesses and learning.
Tuesday, May 22, 2018
NAELA celebrated its 30th year with its annual conference in New Orleans, LA on May 17-19, 2018. The conference consisted of three tracks: legal tech, advocacy and public benefits. The well-attended conference packed in a great amount of programming in two and a half days. Speakers included leaders from the field of elder law, consultants, cyber security experts, researchers and more. NAELA members unable to attend may check the NAELA website for more information.
In addition, Michael Amoruso was sworn in as the next NAELA president by outgoing president Hy Darling. Congrats NAELA!
(In the interest of full disclosure, I'm a former president of NAELA and co-chair of the planning committee for this conference.)
May 22, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, May 16, 2018
Last Sunday, CBS' 60 Minutes ran an extended feature story on the role of grandparents as primary caregivers for grandchildren, often because of untrustworthy parents with opioid or other addiction problems. The story reported that "stoked by the opioid crisis, 21,000 children -- just in Utah -- live with their grandparents."
The feature also suggested some of the financial consequences for the extended family, as grandparents were exhausting their own retirement savings in order to provide for the younger children. Nonprofit programs, such as Grandfamilies, sometimes are able to provide informal support for the grandparents.
Along the same lines, Pennsylvania's Governor Wolf signed new laws, Senate Bill 844 (Printer's No. 1531), which became Act No. 21, on May 4, 2018. The law recognizes expanded standing for grandparents to seek physical or legal custody for grandchildren, if they can show "clear and convincing evidence" of all of the following:
(I) The individual has assumed or is willing to assume responsibility for the child.
(II) The individual has a sustained, substantial and sincere interest in the welfare of the child.
In determining whether the individual meets the requirements of this subparagh, the court may consider, among other factors, the nature, quality, extent and length of the involvement by the individual in the child's life.
(III) Neither parent has any form of care or control of the child.
Pennsylvania estimates that there are 82,000 grandparents acting as sole caregivers for roughly 89,000 grandchildren. Other related bills still pending in Pennsylvania include support for creation of a "Kinship Caregiver Navigation Program," and a means to appoint a temporary guardian when a parent enters drug or alcohol treatment.
Additional history on the shifts in thinking on grandparent rights can be important. For example see this Pennsylvania law firm's blog post from 2013 on amendments that removed "automatic" standing for grandparents to seek custody.
The Pennsylvania Bar Institute, responding swiftly to the latest changes, is offering a Webinar tomorrow (May 17, 2018) on the new laws.
Thursday, May 10, 2018
This summer I will attend (and be a speaker for) the two-day Elder Law Institute hosted by the Pennsylvania Bar Institute (PBI). It is the 21st time the annual institute has been offered and I think I've attended 20 of them. Many of the movers and shakers in elder law from the national scene, including my blogging colleague Stetson Law Professor Becky Morgan and Justice in Aging's Eric Carlson, just to name two, have been keynote speakers over the years. I find the Elder Law Institute to be not only educational in the traditional sense of classroom learning, but an important place to catch up with the informal ways that our profession is changing and moving on.
So, it was with a real dose of surprise when I was catching up on local news today and learned that PBI's parent organization, the Pennsylvania Bar Association (PBA), voted in mid-April to "dismiss" the governing body for PBI and to, in essence, shut it down as the educational arm of the bar association. Financial problems are cited in one article from Law360 as the motivating reason:.
... Dennis Whitaker, a partner at Hawke McKeon & Sniscak LLP who was removed as the president of PBI's board of directors as a result of last month's vote, told Law360 on Thursday that the takeover plan had come as both a complete surprise and despite what he said were viable plans to right the institute's finances.
"The action was unexpected and we all felt it was unwarranted," he said. "We were on a path to turn the organization around."
Whitaker said that the bar association's move to dissolve and absorb the institute, which has provided continuing legal education programming as an independent entity for more than half a century, was unveiled at a meeting between the leadership teams of the two organizations on April 11.
"We had no notice this was coming," Whitaker said.
That news was supplemented by the Pennsylvania Bar Association's announcement via email today that PBI will become "a department" of PBA, and will continue producing live programs and publications.
Signs of the times -- including a sign of what seems to be the legal profession's impatience with traditional formats for mandatory CLE. In my experience, the demand for modular, portable education is growing -- but that type of product isn't necessarily more cost effective to produce.
Sunday, May 6, 2018
As is true for many states, Maryland is increasing the education, support and supervision for guardians appointed by the Maryland courts. In connection with this, beginning on January 1, 2018, prospective guardians must watch a video-based "orientation program" before they are appointed guardian of a minor or disabled person. The 9-minute video introduces the "roles, duties and responsibilities" of a guardian and explains mch of what to expect if appointed by the Maryland Courts. Here is a link to the video.
What I particularly like about this video is the message "You Are Not Alone as a Guardian," and the emphasis that Court-appointed guardians are subject to the ultimate authority of the Court. I think that many courts are still struggling with their own roles in this regard, but here the lines of responsibility are explained clearly.
The balance here is delicate, requiring careful thought about how to provide threshold information essential for a candidate to make an informed decision about whether to serve, but without making the information so overwhelming that good candidates decline the role. The Maryland courts caution that this particular orientation and the related training requirements do NOT apply to public guardians or guardianships that terminate parental rights.
In my opinion, this type of video is a good first step. But just a first step.
May 6, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, Property Management, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (0)
Thursday, May 3, 2018
Hard to believe, but this summer will mark the 21st annual Elder Law Institute in Pennsylvania. It functions as both a gathering of the clan and an educational update, and I always walk away with new ideas for my own research and writing. On the second day of the event (which runs July 19 and 20), Howard Gleckman will give the keynote address on "Long Term Care in an Age of Disruption." Doesn't that title capture the mood of the country?!
Practical workshops include:
- Using Irrevocable Trusts in Pre-Crisis and Crisis Planning - Ms. Alvear & Ms. Sikov Gross
- Guardianship for Someone Who Is 30/30 on the MMSE (Advanced Mental Health Capacity Issues) - Ms. Hee & Mr. Pfeffer
- Medicaid across State Lines: Pennsylvania vs. New Jersey - Mr. Adler
- Medicaid Annuities in Practice - Mr. Morgan & Mr. Parker
- Business Succession Planning for Elder Law Practices - Ms. Ellis, Mr. Marshall, Mr. Pappas & Ms. Wolfe
- Social Security Disability: What Elder Law Practitioners Need to Know - Mr. Whitelaw
- Drafting Trusts for Beneficiaries with Behavioral Impairments and Mental Health Problems - Mr. Hagan & Dr. Panzer
- Being a Road Warrior Attorney: Staying Organized and in Touch While Out of the Office (ETHICS) - Ms. Ellis
Mark your calendars and join us (Linda Anderson, Kimber Latsha and I are hosting a session on Day 1 about "new" CCRC issues). Registration is here.
May 3, 2018 in Books, Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, May 1, 2018
My thanks to Dickinson Law Professor Laurel Terry for pointing us to an upcoming seminar offered by the American Bar Association on "Competency and Cognitive Decline in the Legal Profession: Ethical Pitfalls Encountered by Lawyers with Diminished Capacity," on May 9, 2018, from 1 to 2:30 p.m. (ET).
The promotional materials are a bit lean, but discussion topics are described as follows:
- Understanding the effects of aging on the human brain
- How to recognize some of the signs of diminished capacity
- The practical and ethical considerations for intervention
- Advice on how to facilitate discussion with the impaired person (or others who can help)
- Resources and ways to locate assistance in your area
- The importance of succession planning, and resources to help you develop or review your own succession plans
The speakers include Dr. Doris Gunderson, a psychiatrist in Colorado.
Co-sponsors of the program including the ABA Center for Professional Responsibility, its Commission on Law and Aging, the Commission on Lawyer Assistance Programs, the Section for Civil Rights and Social Justice, the Senior Lawyers Division, and the Solo, Small Firm and General Practice Division.
For more information on registering, see here.
Thursday, April 26, 2018
Happy Friday! If you haven't read the latest issue of BIFOCAL, the publication of the American Bar Association Commission on Law & Aging, check it out here. This issue contains 6 articles, including the implications of the tax bill on older Americans, POLST issues to avoid, the new Medicare cards, a book review, and a preview of the 2018 NALC conference. Access the latest issue here.
April 26, 2018 in Advance Directives/End-of-Life, Books, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Programs/CLEs | Permalink | Comments (0)
Wednesday, April 18, 2018
The National Center on Law & Elder Rights has released an issue brief, Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation. The issue brief offers 4 key lessons:
- Extra care in the creation of advance care planning documents can reduce the risk of abuse and exploitation.
2. Requiring accountability, additional checks and balances, and limited authority are drafting tools lawyers can utilize to limit risk of abuse.
3. Attorneys should advise clients to be extra diligent when selecting the agent(s) named in advance planning documents.
4. Authorizing revocation by third parties can help to limit the damage done by named agents who start to abuse or exploit the client.
I was intrigued by #4-the idea of naming a third party who could step in. The section, Five Safeguards to Consider Adding to a Financial POA discusses that among others. Here's how the issue brief explains the third party revocation provision: "Grant a power to revoke the agent’s authority to a trusted third person. This is a serious power to give any third person, so it requires an exceptional level of trust and reliability in the third person. But, if the agent’s actions prove seriously out of line, this can be a last resort. Some powers of attorney also authorize law enforcement or adult protective services to revoke the authority of the agent if they believe abuse or exploitation is taking place." Sample language is also included for each of the 5 Safeguards.
The brief discusses selection of agents and drafting health care directives in addition to drafting POAs. Practice tips are included as well as case examples. The issue brief is available here.
To learn more about the corresponding webcast click here. To download the PowerPoint for the webcast, click here.
April 18, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Other, Programs/CLEs, Property Management, State Statutes/Regulations, Webinars | Permalink | Comments (0)
Sunday, April 8, 2018
During Dickinson Law's recent program on Dementia Diagnosis and the Law, one of our panelists, Elder Law practitioner Sally Schoffstall raised an issue planning professionals are seeing more often, families who are concerned about the long-range needs of children with developmental disabilities. I know that over the years I have often had law students whose interest in disability and estate planning law began with a brother or sister with special needs, and they are thinking about their own future roles in helping the family plan.
The good news is that better early health care often means an extended life for disabled children, but that very fact raises the probabilities on living longer than the people who have been primary caregivers, especially their parents. As we heard from medical professionals at our conference, individuals with Down Syndrome, for example, are now less likely to succumb to physical impairments such as developmental heart problems, but still face a significant risk of early onset of dementias, with an estimated 30 percent of those in their 50s already experiencing symptoms similar to Alzheimer's Disease.
On May 21-22, a St. Louis-based nonprofit organization, Association on Aging with Developmental Disabilities (AADD) will hold its 28th annual conference. The conference draws an audience of professionals from a wide range, including social workers, nurses and other service providers. As with most people, individuals with disabilities want to "age in place," and that takes extra planning to manage financial assets. Pamela Merkle, executive director for AADD explains:
"Sessions will focus on giving them the tools they need to successfully support people with developmental disabilities who are aging,” says Merkle.
She explains that many of the issues faced by older persons with developmental disabilities mirror those of aging individuals in general, such as isolation, depression and how to handle retirement. “Like most people, they want to ‘age in place,’ not spend their golden years in a nursing home. Given that living within the community is more cost-effective, it’s important to both the seniors and our communities that there be more public programs to support that choice,” she continues. . . .
For individuals who are 50 or older, AADD offers retirement services. While some of the participants have held community-based jobs, others spent decades in sheltered workshops. As with many members of the general population, they often tend to define themselves through the jobs they held for so many years. “So we focus on identity: ‘I’m a volunteer” or “I’m active in my church,’” explains Merkle. “If you don’t have something in place to fill the void after retirement and to maintain the skills you’ve developed, you’ll retire to your couch. You won’t be an active part of the community, and will most likely spend your “golden years” alone.”
For more, see this commentary from the Special Needs Alliance, and look for related links. My thanks to Sally for providing links to this conference information!
April 8, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Programs/CLEs | Permalink | Comments (0)
Friday, April 6, 2018
The Aging & Law Section of AALS has issued a call for papers for its meeting in January, 2019 in new Orleans as part of the 2019 AALS annual meeting. The program is being co-sponsored by the Family & Juvenile Law, Minority Groups, Trusts & Estates, and Women in Legal Education Sections.
The topic for the program (and papers) is The Legal Consequences of Living a Long Life: The Differential Impact on Marginalized Communities
Here's a brief description, prepared by Section Secretary Naomi Cahn.
Thanks to advances in health care people are living longer. Longevity has legal consequences. People can outlive their family, friends, and finances. Longevity has differing impacts for women, people of color, low-income people, and LGBT individuals. Statistically, women make less money than men and they live longer than men. People of color are less financially secure than Americans as a whole. In the United States, approximately 80 percent of long-term care for older people is provided by family members, such as spouses, children, and other relatives. This places an undue financial burden on low-income persons. LGBT individuals may face conscious and unconscious discrimination when seeking long-term care and other assistance, and they have historically formed various kinds of family structures. This panel will explore the intersection of the legal system and longevity, examining systems that are in place or should be in place to help people plan for living longer. Topics might include: paying family caregivers, working conditions of nursing home assistants, and differential patterns of wealth accumulation. This call for paper seeks authors of published or unpublished papers that consider law and longevity.
To be considered, submit a one-two page proposal by email to Naomi at firstname.lastname@example.org Deadline is May 1, 2018. BTW, those accepted to present may also have their papers published in the Journal of Health Law and Policy at Cleveland State University.
Don't wait-submit your proposal!!!
Monday, April 2, 2018
During the Continuing Judicial Education program on "Dementia Diagnosis and the Law" at Dickinson Law on March 29, I offered a list of developments potentially affecting the future of guardianships. One item on my list could have been a stand-alone session in and of itself -- the concept of supported decision-making. I promised the audience I would post some additional materials on the topic here.
For background, as we discussed with the judges, under most states' laws governing guardianships, courts are obligated to search for the least restrictive alternative to a plenary guardianship. Courts sometimes struggle with this issue, especially for older adults, if the incapacitating issue proves to be any of the forms of progressive neurocognitive disorders associated with dementia. If a judge makes a finding of incapacity, and if there is an appropriate, trustworthy guardian available, the judge may feel that it is better to leave it up to the appointed individual to strike the right balance between protection and autonomy on individual issues such as choice of housing or daily activities. The court might find that granting full powers, but trusting the guardian to exercise the powers appropriately, is better than requiring the parties to return to the court for a series of orders, as the incapacity advances, conferring new directions for the guardian to follow.
During the conference we confronted the issues driving the recent calls for reform of guardianship systems, including the latest well-publicized incidents of abuse of authority by an appointed guardian or a private guardianship agency, in locations such as Las Vegas, Nevada and New Mexico.
During the last several decades, guardianship has been the subject of continual calls for reform, often spurred by revelations of guardian malfeasance and other abuses in the system. Recent developments in international human rights law and disability rights advocacy, however, pose a more fundamental challenge to the institution. Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), with its declaration that everyone, regardless of mental disability or cognitive impairment, is entitled to make decisions and have those decisions recognized under the law, offers no less than a promise to end adult guardianship as we know it.
So, what exactly is "supported decision-making?" Professor Diller explains:
The support can take the form of accessible formats or technological assistance in communication. Or it can take the form of "supported decision-making" arrangement, in which "supporters" assist individuals with decision-making in relationships of trust. In whatever form, the support is an appropriate accommodation that enables the individual to enjoy the right to legal capacity.
The author warns there is no single model for supported decision-making. Ideally, the individual designates in advance his or her desired supporter, and the movement behind this approach believes this selection can be recognized even if the individual might not be found to have the requisite capacity to enter into a contract or to execute a formal power of attorney.
In 2015, Texas became the first state in the U.S. to pass a supported decision-making statute, and the Texas statutory approach views this option as a better alternative for individuals who need assistance in making decisions about activities of daily living, but who are not considered to be "incapacitated" as that concept is defined in guardianship law. The Texas statute contemplates an individual who can act voluntarily, in the absence of coercion or undue influence. Information about Texas' law is available here.
In 2016, Delaware became the second state to enact legislation enabling the option of Supported Decision-Making, with Senate Bill 230.
In 2012, the ABA Commission on Disability Rights and the ABA Commission on Law and Aging, working with U.S. government representatives, hosted a round table discussion on supported decision making for individuals with "intellectual disabilities." The ABA captured a host of materials related to this discussion on this website.
In 2017, the ABA House of Delegates adopted a resolution on supported decision-making and endorsed its possible use as a less-restrictive alternative to guardianship, including use of this approach as grounds for termination of an existing guardianship and restoration of rights.
Earlier this year, on February 15, 2018, the ABA hosted a webinar on "Supported Decision-Making as a Less Restrictive Alternative: What Judges Need to Know." While the webinar appears to have been offered only as a one-time "live" option, perhaps a recording will become available in the near future. Here's an ABA webpage providing details.
My special thanks to Pennsylvania Elder Law Attorney Sally Schoffstall, who served as a panelist at the Dickinson Law event last week, for providing me with a copy of The Arc's information on the Texas Supported Decision-Making law, linked above. Additional thanks to Dickinson Law James Adams for photographing the conference!
April 2, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, Property Management, State Statutes/Regulations | Permalink | Comments (0)
Thursday, March 22, 2018
The National Center of Law & Elder Rights has announced their next webinar, Legal Basics: Protecting Older Adults Against Fraudulent Schemes and Scams. The webinar is scheduled for April 10, 2018 at 2 edt. Here's a description of the webinar:
With savings and assets accumulated over a lifetime, older adults are attractive targets for individuals promoting fraudulent schemes and scams. Scammers use deception, misrepresentation and threats to convince older adults to send money or provide personal financial information. Most frauds and scams go unreported.
This webcast will provide an overview of the frauds and scams aimed at older adults, discuss legal protections, and provide resources to aid older adults defrauded by the individuals and business that promote these scams. The webcast will also focus on efforts by the Federal Trade Commission to prevent older adults from falling victim to these scams.
To register for this free webinar, click here.
March 22, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink | Comments (0)
Wednesday, March 21, 2018
With World Elder Abuse Awareness Day just a few months away, it's time to think about any events your organization might offer. According to the USC Center on Elder Mistreatment NCEA email, a microsite has been created that offers suggestions, helpful hints, events and more. Want to take some kind of action? Check the information here for 13 ideas in a number of categories. Planning an event? List it there. It's never too early to start planning! And let others know using #WEAAD.
Friday, March 9, 2018
The U. of Illinois College of Law will be holding the Ann F. Baum Memorial Elder Law Lecture on March 12 from noon-1. Professor Anne Alstott of Yale will speak on Law and the 100-Year Life. Here's a bit of info about the lecture. "Children born in the United States today are projected to live to 100 years, on average. How should we think about adjusting elder law in light of the social and economic changes that will result?"
Wednesday, February 28, 2018
On Feb. 13, Kaiser Health News hosted an informative and important discussion about improving care and services for people with dementia and supporting their caregivers. It was opportunity to learn from experts in the field about the challenges and difficulties facing the patient, the caregiver, the community and policymakers. Topics included understanding the stages of dementia from a medical, social, psychological and environmental perspective (it’s not just memory loss); how to find help; how to manage difficult behaviors; and understanding medications for people with dementia.
The 90 minute discussion can be viewed by clicking here.
Monday, February 26, 2018
Registration is open for the Center for Medicare Advocacy's 5th Annual National Voices of Medicare Summit & Sen. Jay Rockefeller Lecture on March 22, 2018. The conference runs from 8:30 a.m. to 5 p.m. at the Kaiser Family Foundation, 1330 G Street, NW in Washington, D.C. Here's a brief description about the program
Sunday, February 25, 2018
I had the honor of attending and speaking at Australia's 5th Annual National Elder Abuse Conference, held recently in Sydney. Speakers at the two day conference included many government dignitaries, a series of concurrent sessions and a number of abstract presentations. The conference offered a multi-disciplinary, multi-cultural focus and included a wide-range of topics over the conference. I found the energy level and interest at this conference to be high. I moderated a panel of law enforcement and community activists and their efforts are outstanding. One of the interesting points to me was that the problems they're facing here are so similar to those in the US. Exchanging information about prevention and responses was very useful. Post-conference information about recordings of the sessions will be available soon on the conference website. This is a conference well worth attending, even though Australia is a bit of a trek from the US. The conference rotates locations within Australia, so the website will also have information about dates and locations for the 2019 conference.
Wednesday, February 7, 2018
Mark your calendars for this webinar from the Elder Justice Initiative scheduled for February 22, 2018 at 2 est, on MDT Member Recruitment and Retention: Building Trust and Traction Here are the learning objectives from the website
Understanding the best practices for recruitment and ongoing engagement of team members.
Exploring real-world examples of relationship- and trust-building strategies.
Thursday, January 25, 2018
Kaiser Health News ran a very interesting story, Postcard From California: Alzheimer’s ‘Looks Like Me, It Looks Like You’. The article opens with the story of an attorney who has early onset Alzheimer's who recounts her experiences as part of a panel discussion. "Sponsored by Northern California and Northern Nevada Chapter of the Alzheimer’s Association, the event was part of an initiative to highlight the disease’s impact on women, who account for two-thirds of people living with Alzheimer’s and two-thirds of those caring for them... About 630,000 people have Alzheimer’s disease in California, and women in their 60s have a 1 in 6 chance of developing the disease — almost twice as high as the risk of developing breast cancer." One of the most compelling quotes in this story came from a panelist who said this "'“Alzheimer’s looks like me, it looks like you, it looks like everyone,'" [she] ... said." The story closes with advice from one of the panelists about the importance of doing what makes one happy. Good advice.