Monday, April 13, 2015
On April 13, the fourth day of the trial of State of Iowa v. Henry Rayhons, the prosecution continued presenting evidence in the state's case-in-chief. Here are links to news sources covering the day's events, including:
- From KIMT.com: Testimony of a physician from the care facility regarding his opinion regarding Donna's mental capacity, plus a description of video surveillance of the husband on the night in question, in which "you can see Donna being redirected to her room by Henry, after she had wandered through the halls. Nearly 30 minutes later, Henry is seen leaving the room [and depositing her underwear in a hamper]."
- From KIMT's Twitter feed: Excerpts of testimony from nurses and several staff members at the care center, including a report that a Care Center physician testified that "Just like an infant, a person can respond to stimuli. That doesn't involve any consent given."
- From the Des Moines Register: Reporting that a total of three doctors testified today and that "Dr. John Brady, who is medical director of Concord Care Center, testified that Donna Rayhons had severe dementia caused by Alzheimer's disease. He said any positive reaction to her husband's affectionate advances could be termed a 'primal response,' not a conscious decision to reciprocate."
Further, from the Des Moines Register, an account of the testimony of one of the physicians, a neurologist: "One of the doctors, neurologist Alireza Yarahmadi, disputed any notion that such an Alzheimer's patient could vary greatly in her ability to understand what was going on around her. 'When they're severe, they're going to stay severe,' Yarahmadi testified."
The trial is expected to continue on Wednesday, April 15 (corrected, after learning no proceedings on Tuesday).
April 13, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, April 10, 2015
Web-Cameras in Nursing Homes: Do They Invade Privacy (and Whose Privacy or Interests are Paramount)?
In Philadelphia, the decision of a nursing home to remove the compact video camera attached to a computer owned by a 59 year-old disabled resident has triggered a debate about legal issues associated with the resident's broadcasts. On the one hand, the resident, who had lost the ability to speak and who had limited mobility associated with cerebral palsy, used the camera to facilitate communications with his family. But, to the nursing home:
... where he has lived for decades, the camera was a watchful eye, scrutinizing its staff's every move and capturing images of people whose privacy they're responsible to protect.
Stu's computer equipment was abruptly removed in mid-December, and he was asked to write a note defending his access to it. Family members called it a "cruel hurdle" for a man with limited mobility who selects each letter by pushing the back of his head against a switch.
In another note pleading for his webcam to be returned, Stu, 59, wrote: "WE ARE NOT SPYING ON ANYBODY!" The Sandersons unwittingly became part of a splintered national debate about the role of video cameras in long-term care facilities.
Additional coverage, outlining the delicate case, and suggesting broader issues, is available here and here. Part of the background for the current issues includes a 2012 investigation of suspected abuse of a resident in a different nursing home in Pennsylvania, where a web camera reportedly led to criminal charges against nursing home employees.
April 10, 2015 in Crimes, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, April 9, 2015
On February 27, Pennsylvania's new governor, Tom Wolf, issued Executive Order 2015-05 regarding "participant-directed home care services."
The order reportedly reflects the Governor's interest and support for home care for seniors and persons with disabilities, while also recognizing potential issues such as low wages or absence of benefits, high turnover, inconsistent quality or lack of standards. The order:
- Creates a Governor's Advisory Group to advise the administration on "ways to improve the quality of care delivered" through publically funded home care service programs;
- Recognizes a "representative for Direct Care Workers for the purpose of discussing issues of mutual concern," while also authorizing a procedure for "election" of the representative; and
- Establishes a "Direct Care Worker List" of all workers paid through state programs, and further permits "an employee organization that has as one of its primary purposes the representation of director care workers" to petition the state to represent a particular unit of direct care workers.
As set forth in recent media reports, the Executive Order has met with resistance from some quarters, including those who are challenging the order as unlawfully permitting "unionization" of home care workers. On April 6, 2015, a complaint seeking injunctive relief from implementation of the executive order was filed in the Pennsylvania Commonwealth Court by a home care worker and his long-time client, a "quadriplegic adult with muscular dystrophy receiving care from the [state administered] Attendant Care Services Act.." The complainants are reportedly represented by "The Fairness Center, a conservative public-interest law firm."
April 9, 2015 in Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 8, 2015
Day one of the sexual abuse trial of State of Iowa v. Henry Rayhons was Wednesday, April 8. News report of the first day here. Coverage of pretrial motions here, with the husband's lawyer describing potential expert testimony about how individuals with Alzheimer's could be capable of consent, while the prosecution argues consent is impossible as a matter of law, making an analogy to sexual contact with a minor or an individual who was unconscious or passed out. More background here.
Today, April 8, is the scheduled day for jury selection to begin for the trial of State of Iowa v. Henry Rayhons. We've written about the charges here and here, but to summarize, Mr. Rayhons, now age 79, was charged last year with "sexual abuse" of his wife, Donna Rayhons (78 at the time), who was residing in a nursing home with Alzheimer's. Iowa law has several different ways in which a "sexual act without consent" between a "husband and wife" can constitute "sexual abuse in the third degree." See Iowa Code Section 709.4(2).
Here, because the husband and wife were not "cohabitating," a conviction would appear to depend on the state's ability to prove that the sex act was with a person suffering from a "mental defect or incapacity which precludes giving consent." It appears the state takes the position that "consent" was impossible because Mrs. Rayhons had been diagnosed with a mental defect, the advanced stages of Alzheimer's. Further, it appears the state expects to prove that her husband was aware of the diagnosis, and further, that at some point before the evening in question, he "agreed" she was incapable of giving consent because of her condition. But at the core, isn't there still an essential question about whether, assuming the state can prove those statutory elements, the law is intended to prevent a married couple from having "consensual" relations because one partner has Alzheimer's?
There apparently was no evidence of physical or emotional damage to Mrs. Rayhons, including no evidence of cries for help or protestations on her part. It appears there will be testimony about the close and loving relationship the couple had before the night in question. It will be interesting -- and sad -- to hear whether there is evidence of a "sexual act."
The Washington Post's Sarah Kaplan has drawn together a history on the case to this point, including details first reported by Bryan Gruley for Bloomberg News. At one point the prosecution tried to get a change of venue for the trial -- a very unusual request from a prosecutor -- which the trial court denied.
I've been hearing from a lot of folks lately about this case, including several medical professionals. I think that after the charges were first announced in August 2014, many people expected the case to quietly disappear, especially as Mrs. Rayhons has passed away, and her husband, then a state legislator, had retired from office.
Yesterday, I had the interesting experience of being interviewed for a KABC radio show in Los Angeles by "Dr. Drew." It was pretty clear that with his background, board certified in internal medicine and a clinical professor of psychiatry at USC, Dr. Drew Pinsky was troubled by the possibility that a medical diagnosis could, without more, be treated as prohibiting legally effective consent to sexual relations. (A guardian was appointed for Mrs. Rayhons, but those proceedings were begun after the night in question.) As Dr. Drew commented during the radio show, even in advanced dementia, there may be core functions that a person continues to be able to enjoy and therefore seek, including eating, drinking and ... intimacy.
April 8, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Tuesday, April 7, 2015
St. Louis University's Journal of Health Law and Policy has recently released a theme issue, focused on "Health Care Reform, Transition and Transformation in Long-Term Care." A great line-up of articles and authors, including:
- Home & Community-Based Long-Term Services and Supports: Health Reform's Most Enduring Legacy? by Marshall B. Kapp
- Care Coordination for Dually Eligible Beneficiaries, by Katie M. Dean and David C. Grabowski
- The Challenge of Financing Long-Term Care, by Judy Feder
- Rationalizing Home and Community-Based Services Under Medicaid, by Laura D. Hermer
- The Broken Promise of OBRA '87: The Failure to Validate Survey Protocol, by Malcolm J. Harkins III
In addition, there are two relevant Notes written by SLU students:
- Short-Stay, Under Observation. or Inpatient Admission? How CMS' Two Midnight Rule Creates More Confusion and Concern, by Rachel A. Polzin
- Disclosure for Closure? Why the Self-Referral Disclosure Protecol Process Paired with the 60-Day Overpayment Rule Creates More Headaches than Solutions, by Peter J. Eggers
April 7, 2015 in Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1) | TrackBack (0)
Monday, April 6, 2015
From KTVZ.COM news in Oregon, a report that the state's top prosecutor, joined by citizen groups, is calling for appointment (and funding) of a special prosecutor to pursue elder abuse cases:
"Ten organizations wrote letters or testified Monday before the Subcommittee on Public Safety of the Oregon Legislature’s Committee on Ways and Means in support of funding for the state's first statewide Elder Abuse Resource Prosecutor. The position would be housed within the Oregon Department of Justice’s Criminal Division, and would increase Oregon’s capacity to stop elder financial and physical abuse by providing training, technical assistance and legal expertise to district attorneys, law enforcement and others who work with seniors.
If funded, Oregon would be the second state in the country with a statewide prosecutor devoted to elder abuse.
'Oregon has specific laws that criminalize the abuse, neglect and exploitation of older adults. However, these cases can be difficult to prosecute. Many involve the victimization of older adults by family members or others with whom they have an ongoing relationship. Victims may also be slow to recognize and report abuse, and reluctant to cooperate with criminal justice professionals,' said Attorney General Ellen Rosenblum.
Elders in Action, the Office of the Long-term Care Ombudsman, AARP, Legal Aid Services of Oregon, the Oregon State Bar, Alzheimer’s Association, the Oregon Department of Veteran Affairs, the Governor’s Commission on Senior Services, Campaign for Oregon’s Seniors & People with Disabilities, and the Residential Facilities Advisory Committee all voiced their support for the new position."
If this position would be the "second" in the country, which state already has a special prosecutor for elder abuse?
Saturday, April 4, 2015
When it becomes impossible for a loved one to stay at home without help, one decision that families made need to face is whether to use an agency, or hire one or more individuals outright. Agencies are usually more expensive (at least on paper). But direct hires of home aides can raise other questions, including how to handle state and federal income taxes and documentation, insurance, transportation (read: more insurance questions), coverage for holidays, sick leave, overtime, and more. You start off thinking this is short term help; the reality is it can last much longer....
But there is still one more question that may not be on the family's radar screen, until it is too late.
If the informal home care arrangements eventually don't suffice, perhaps because of increasing frailty and care needs, what happens when the individual's money is gone and there is a need for Medicaid-paid care?
As explained in a recent Michigan Court of Appeals case, "informal" arrangements for home care may trigger ineligibility for Medicaid-paid care based on state rules or policies implementing federal law.
April 4, 2015 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
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)
Wednesday, April 1, 2015
On Tuesday, March 31, the Supreme Court in a 5-4 decision rejected "private" rights of action for services providers to challenge under-funding of Medicaid programs by states. The ruling potentially impacts availability of services to all Medicaid-eligible beneficiaries, if doctors, home care agencies and similar private health care providers decline to participate in Medicaid funded service programs. The decision in Armstrong v. Exceptional Child Center, was delivered by Justice Scalia, joined in part by Justices Roberts, Thomas, Alito and Breyer. Justice Sotomayor dissents, joined by Justices Kennedy, Ginsburg and Kagan.
This one is going to take a bit of time to digest.
Here is the Washington Post coverage of the opinion.
Here is Kaiser Health's News Links to early reactions.
Tuesday, March 31, 2015
When I ask real or prospective law students what television programs they watch, I often get two answers: "The Big Bang" or "Suits." I have to admit I love to use Big Bang's "roommate contract" for my contracts class examples. But, Suits is a bit more problematic -- until now.
The key character in Suits is "Mike Ross," a college dropout, and the back story is that he's brilliant, with a superb memory, and stumbled into being a "lawyer" after a life of petty crime that somehow included taking the LSAT exam for others. I would like to think that the appeal of the program is the law, but I am realistic enough to suspect the "charm" is the idea that you can succeed in law without knowing the law, indeed without being a "real" lawyer. A little fantasy, right?
Now we have a report -- and I wish this wasn't true -- from my own state of Pennsylvania, of a 45-year-old woman who allegedly posed for 10 years as an estate planning lawyer, even making partner in a law firm, who may have faked her attendance at a specific law school. In fact, she may have faked everything that should have happened afterward, such as being licensed to practice law.
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)
Tuesday, March 24, 2015
Has Acceptance of Same Sex Marriage Created Opportunities for Recognition of Other "Family Relationships?"
Columbia Law Professors Elizabeth S. Scott and Robert E. Scott have a new article, "From Contract to Status: Collaboration and the Evolution of Novel Family Relationships." They describe the successful movement to achieve marriage rights for LGBT couples as creating potential opportunities for recognition of other legal relationships that do not depend on "traditional" notions of marriage or family, such as "cohabiting couples and their children, voluntary kin groups, multigenerational groups, and polygamists."
In analyzing relationships that may gain greater legal recognition, the authors examine the possible influence of statutory obligations, including Pennsylvania's filial support laws used to impose care obligations on adult children, or more recent statutes granting visitation rights to grandparents:
"Probably the strongest candidate for full family status is the linear family group composed of grandparent(s), parent(s), and child(ren). It is clear that this familiar type of extended family can function satisfactorily to fulfill family functions. Further, the genetic bond among the members, together with well-defined family roles, reinforces already existing norms of commitment and caring. The primary challenge for these extended families may be the creation of networks with other similar families pursue their goals of increasing public support and attaining official family status.More complex multigenerational groups pose a greater challenge because they are less familiar to the public and less likely to be bound by family-commitment norms than are linear family groups. Partly for this reason, regulators may find it more difficult to verify the family functioning of these unconventional multigenerational groups."
The article was published in the Columbia Law Review, March 2015.
Sunday, March 22, 2015
The New York Times ran an editorial on March 14, 2015 regarding efforts in states to pass aid in dying legislation. Offering a Choice to the Terminally Ill reports that DC & 15 states are considering such legislation. The editorial describes two recent cases, reviews the opposition, and considers the safeguards provided in the Oregon statute as an example. It also describes situations where doctors provide patients with lethal dosages of medications despite laws to the contrary, noting that "these unregulated practices put patients and doctors on dangerous terrain." Referencing the case of radio host watching her husband who had stopped eating over a period of days, the editorial board says about that case "[h]er inability to help him die humanely is a situation no spouse should have to face."
Friday, March 20, 2015
Have you seen the number of articles that have been released about ABLE accounts? Here's a chance to learn more: the ABLE National Resource Center has announced a free webinar on ABLE on March 26 from 2-3:30 edt. This is a collaboration between ARC, National Disability Institute, Autism Speaks, National Down Syndrome Society, and the College Plan Savings Network. According to the website, Understanding ABLE will cover the facets of ABLE, implementation updates and time for Q&A. To register, click here.
Thursday, March 19, 2015
Can an Attorney for a Nonprofit Disclose Info re Unlawful Diversion of Charitable Assets to Attorney General?
The Pennsylvania Supreme Court has agreed to consider an interesting legal ethics issue:
"When counsel for a nonprofit corporation believes that charitable assets are being unlawfully diverted, may counsel disclose this information to the Attorney General's office, as parens patriae for the public to whom the charity and its counsel owe a fiduciary duty?"
The case? Well, that is a bit of a mystery, as the parties' names have been redacted, and the factual basis for the petition has been deleted from the publically available record. The court permits amicus briefs by 3/23/15. If you wade past blank pages 2 through 11 of the Petition for Permission to Appeal, there are a few tantalizing clues about the context on pages 12 through 14.
Wednesday, March 18, 2015
The IRS has released a notice about a proposed regulation for ABLE accounts. Notice 2015-18 notes that some states are already moving forward with setting the framework for ABLE accounts and the notice acknowledges
The Treasury Department and the Internal Revenue Service (IRS) have been advised that several state legislatures currently are in the process of enacting enabling legislation in order to ensure that their citizens may create ABLE accounts during 2015. While the Treasury Department and the IRS currently are working on section 529A guidance, it is anticipated that ABLE programs may be in operation in some states before such guidance can be issued.
Not wanting to delay the states' progress, the notice allows the states to move forward
The Treasury Department and the IRS do not want the lack of guidance to discourage states from enacting their enabling legislation and creating their ABLE programs, which could delay the ability of the families of disabled individuals or others to begin to fund ABLE accounts for those disabled individuals. Therefore, the Treasury Department and the IRS are assuring states that enact legislation creating an ABLE program in accordance with section 529A, and those individuals establishing ABLE accounts in accordance with such legislation, that they will not fail to receive the benefits of section 529A merely because the legislation or the account documents do not fully comport with the guidance when it is issued.
The notice notes that a grace period will be provided to those states where ABLE accounts are being used to make any needed changes to comply with the IRS guidance. The notice goes on to explain how the IRS expects the ABLE guidance will differ from those for 529 plans.
In particular, the Treasury Department and the IRS currently anticipate that, consistent with section 529A(e)(3), the guidance will provide that the owner of an ABLE account is the designated beneficiary of the account. In addition, the Treasury Department and the IRS currently anticipate that the section 529A guidance will provide that, with regard to the ABLE account of a designated beneficiary who is not the person with signature authority over that account, the person with signature authority over the account of the designated beneficiary may neither have nor acquire any beneficial interest in the account and must administer that account for the benefit of the designated beneficiary of that account.
Monday, March 16, 2015
Proposal to Increase Anti-Impoverishment Protections for Community Spouses Introduced in Connecticut
One of the declared purposes of modern federal law setting threshold standards for eligibility for Medicaid for long-term care is "protection of the community spouse" from impoverishment. At least that's a declared objective of amendments to federal law, passed by Congress in 1988. As one of Dickinson Law's Elder Protection Clinic clients once observed, "slower" impoverishment isn't the same as protection. States have choices to make within federal guidelines about minimum and maximum sums, about how much money community spouses can keep when their loved ones apply for Medicaid for long-term care.
In Connecticut, there is new legislation proposed, aimed at increasing the level of protection of community spouses in that state. As described in a recent article from the Hartford Courant:
Allowing the spouse of a person in a nursing home to keep enough money to live on independently is, in many ways, a moral issue. But in a tight budget year in Connecticut, it's a fiscal issue.
A proposal that would increase the minimum assets that a spouse living in the community can keep - from $23,844 to $50,000 – in order for his or her partner to be eligible for Medicaid nursing home care is being backed by elder advocates, who say the increase would help seniors, especially women, remain able to live independently. But the move is being opposed by the Department of Social Services on the grounds it will shift millions in costs to the state-funded Medicaid program.
The proposal would affect couples with combined assets of between $23,844 and $100,000....
It will be interesting to see whether this bill has traction, and whether other states are also willing to step up to the financial plate.
GW Law Professor Naomi Cahn and Amy Zeittlow, affiliate scholar with the Institute of American Values, have collaborated on a new article that is fascinating. In "Making Things Fair: An Empirical Study of How People Approach the Wealth Transmission System," to be published in a forthcoming issue of the Elder Law Journal, they ask fundamental questions about whether traditional laws governing testate and intestate wealth transmission reflect and serve the wishes of most Americans. Professor Cahn previews the article as follows:
Based on an empirical study of intergenerational care for Baby Boomers, the article shows how the inheritance process actually works for many Americans. Two fundamental questions about the wealth transfer system guided our analysis of the data: 1) does the contemporary inheritance process respond to the changing structure of American families; and 2) does it reflect the needs of the non-elite, who have not traditionally been the focus of the system?
Our study shows that the formal laws of the inheritance system are largely irrelevant to how property is transferred at death. While the contemporary trusts and estates canon focuses on the importance of planning for traditional forms of wealth in nuclear families, this study focuses on the transmission of wealth that has high emotional, but low financial, value. We illustrate how the logic of “making things fair” structured how families navigated the distribution process and accessed the law. Consequently, the article recommends that law reform should be guided by the needs of contemporary families, where not only is wealth defined broadly but also family is defined broadly, through ties that are both formal and functional. This means establishing default rules that maximize planning while also protecting familial relationships.
The article is part of a new book by the authors titled "Homeward Bound," with planned publication in 2016, and the authors welcome comments and suggestions.
March 16, 2015 in Books, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 11, 2015
Julie Childs, Project Manager for the U.S. Department of Justice's Elder Justice Website shared with us the resources now available to researchers, students and advocates. Some of the highlights:
Here, victims and family members will find information about how to report elder abuse and financial exploitation in all 50 states and territories. Simply enter your zipcode to find local resources to assist you.
Federal, State, and local prosecutors will find three different databases containing sample pleadings and statutes.
Researchers in the elder abuse field may access a database containing bibliographic information for thousands of elder abuse and financial exploitation articles and reviews.
Practitioners -- including professionals of all types who work with elder abuse and its consequences -- will find information about resources available to help them prevent elder abuse and assist those who have already been abused, neglected or exploited.
This website is intended to be a living and dynamic resource. It will be updated often to reflect changes in the law, add new sample documents, and provide news in the rapidly evolving elder justice field.
It will be interesting to watch this site develop.
March 11, 2015 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Statutes/Regulations, Statistics | Permalink | Comments (1) | TrackBack (0)