Saturday, March 10, 2018
Article on Due Process is Not Optional: Mississippi Conservatorship Proceedings Fall Short on Basic Due Process Protections for Elderly and Disabled Adults
Desiree Hensley recently posted an Article entitled, Due Process is Not Optional: Mississippi Conservatorship Proceedings Fall Short on Basic Due Process Protections for Elderly and Disabled Adults, Elder Law Studies eJournal (2018). Provided below is an abstract of the Article:
The basic civil rights of elderly and disabled adults are at risk of being violated by the very state court procedures that are supposed to protect these adults from abuse and neglect. Modifications of Mississippi law, including the adoption of a clear evidentiary standard, minimum notice and pleading requirements, separate consideration of the protections needed for financial management and personal decision making, and requiring the use of less restrictive alternatives than full appointments can achieve the dual goals of protecting vulnerable adults from abuse and neglect and protecting their fundamental civil rights.
Friday, February 9, 2018
The House recently passed H.R. 2255, a bill including the Senior Safe Act, which is designed to help prevent the financial exploitation of seniors. President and CEO of the American Council of Life Insurers, Dirk Kempthorne, believes that the passage of the Senior Safe Act “facilitates improved communication between insurance producers, life insurance companies and regulators in the event of suspected financial exploitation of senior citizens.” Paul Schott Stevens, CEO and president of the Investment Company Institute, noted that though “many states already shield financial institutions from liability when they disclose suspected elder financial abuse, this bill will provide such protection to all financial institutions, including all mutual fund transfer agents.”
See Melanie Waddell, House Passes Senior Safe Act, Think Advisor, January 29, 2018.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.
Thursday, February 8, 2018
Article on A View from the Bridge: A Brief Look at the Progression of Cases of Elder Financial Exploitation Prosecutions
Rebecca C. Morgan recently posted an Article entitled, A View from the Bridge: A Brief Look at the Progression of Cases of Elder Financial Exploitation Prosecutions, Elder Law Studies eJournal (2018). Provided below is an abstract of the Article:
Elder financial exploitation is a continuing problem in the United States, and the prosecution of elder financial exploitation has failed to keep up with modern problems and laws. In this Article, the Authors explore nearly three decades of appellate decisions from across the United States. In these examples, the Authors show how different courts have treated both victims and defendants through their appellate decisions. The Authors examine the basic elements that make up financial exploitation throughout the country. Cases from many courts, and of differing notoriety are explored, noting the difference in law and discretion across the United States. Finally, the Authors suggest resources for prosecutors and discuss how the United States can catch up with those who are taking advantage of an elderly population.
Monday, February 5, 2018
Article on Legal History of Medical Aid in Dying: Physician Assisted Death in U.S. Courts and Legislatures
Joel Nitikman recently posted an Article entitled, Legal History of Medical Aid in Dying: Physician Assisted Death in U.S. Courts and Legislatures, Elder Law Studies eJournal (2018). Provided below is an abstract of the Article:
Terminally ill patients in the United States have four medical options for controlling the time and manner of their death. Three of these are legally available to certain clinically qualified patients. First, all patients may withhold or withdraw life-sustaining treatment. Second, all patients may voluntarily stop eating and drinking. Third, patients with intractable suffering may receive palliative sedation to unconsciousness. In contrast, the fourth option is available in only seven U.S. jurisdictions. Only there may patients legally obtain a prescription for a lethal medication that they can later self-ingest.
Medical aid in dying (MAID) is not yet legally available in 49 of 56 U.S. jurisdictions. But its legal status has been in a state of rapid change across the country over the past ten years. Before 2008, MAID was legal only in Oregon. Today, it is legal in seven U.S. jurisdictions. Moreover, the rate and pace of legalization has been accelerating. Three of the now seven MAID jurisdictions enacted their statutes within only the past two years. Moreover, there are widespread and ongoing legislative and judicial efforts to legalize MAID in more than thirty other states.
I have designed this Article to help inform and guide these expanding law reform efforts. Because a page of history is worth a volume of logic, it summarizes earlier efforts (both successful and unsuccessful) to legalize MAID in the United States. In other words, this Article provides a descriptive legal history. It does not normatively assess either whether any efforts to legalize MAID were good public policy. Nor does it assess whether advocates grounded their arguments on solid legal analysis. Instead, this Article offers an objective, systematic, and thorough account of what those efforts were.
In Section One, I describe MAID. We must first understand what MAID is before examining attempts to legalize it. Once we grasp the nature of MAID, it starts to become clear why law reformers have concluded that they must legalize it. In Section Two, I explain that MAID falls within the prohibitory scope of criminal assisted suicide statutes in almost every state. In other words, MAID is “assisted suicide.” Assisted suicide is a crime. Therefore, MAID is a crime. Moreover, in addition to its actual legal status, MAID probably is illegal. It is at least widely perceived to be illegal. Therefore, both patients who want to access MAID and physicians who want to provide MAID have strong incentives to change (or at least clarify) its legal status.
In the remainder of the Article, I examine five different paths that reformers have taken to legalize MAID. In Section Three, I start with the most successful approach, statutory enactment. Six states have enacted MAID statutes: three through ballot initiatives and three through legislation. I discuss these six states. I also briefly discuss a few more states that have come close to enacting MAID statutes. Furthermore, more than one-half of the remaining states have recently considered legislation. They are likely to continue this deliberation and debate in 2018, 2019, and 2020.
In Section Four, I examine attempts to legalize MAID through federal constitutional litigation. Because the U.S. Supreme Court definitively rejected such arguments in 1997, advocates have since refocused their litigation arguments using state law theories. In Section Five, I review cases seeking to legalize MAID through state constitutional litigation. Unfortunately, like federal constitutional claims, state constitutional claims have also been uniformly unsuccessful.
In Section Six, I discuss attempts to legalize MAID through state statutory interpretation litigation. These lawsuits argue that MAID does not even constitute “assisted suicide” in existing criminal statutes. Finally, in Section Seven, I examine two final paths toward “legalizing” MAID: constraining prosecutorial discretion and jury nullification. Unlike other approaches, these do not change the legal status of MAID. Yet, they do change whether prosecutors will or can penalize patient or physician participants.
In sum, the expanded legalization of MAID seems inevitable. Surveys consistently show that more than 70 percent of the American public supports MAID. But the battle will be fought bill-by-bill and lawsuit-by-lawsuit in each state. I hope to inform these efforts with lessons from the legal history of MAID described below.
Friday, February 2, 2018
Husband with Alzheimer’s Forgot he Was Married To His Wife of 38 Years. He Proposed, and They Married Again.
Michael Joyce suffers from Alzheimer’s/Disphasia. The disease has progressed to the point that he forgot he was married to his wife, Linda Joyce, of 38 years. He did not forget, however, that he was in love with her. Michael, being an honorable man and deeply in love, asked Linda to marry him, again. Thinking he would soon forget the request, Linda happily acquiesced. The next morning though, Michael woke up and asked, “So, when are we doing this?” Linda sought help from locals and the sourrounding community responded enthusiastically. Linda was deeply moved by the celebration: “There’s been a lot of sadness and a lot of frustration. And despite all the fogginess, today has been pure joy.”
See Allision Klein, Husband with Alzheimer’s Forgot he Was Married To His Wife of 38 Years. He Proposed, and They Married Again., The Washington Post, January 25, 2018.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
Monday, January 29, 2018
Filial Friday on Monday: PA Supreme Court Agrees to Hear Further Appeal of "Reverse" Filial Support Case
Melmark Inc. v. Schutt involves a Pennsylvania residential facility that houses disabled children and adults and its continuing attempt to hold parents, both over the age of 70 and residents of New Jersey, liable for their autistic son's costs for care. The parents successfully argued at trail and on appeal that New Jersey law, not Pennsylvania law, controlled the issue. New Jersey statutes limit the support obligations of older adults (55+) strictly to spouses or minor children; Pennsylvania statutes do not share a similar limitation. In December, the Pennsylvania Supreme Court granted a further appeal on the facility's behalf. This case presents an interest issue relating to conflicts between the laws of these states.
See Katherine C. Pearson, Dickinson Law, Penn State, Filial Friday on Monday: PA Supreme Court Agrees to Hear Further Appeal of "Reverse" Filial Support Case, Elder Law Prof Blog, January 15, 2018.
Special thanks to Berry P. Turney for bringing this article to my attention.
Tuesday, December 5, 2017
Limiting State Medicaid Agency Attempts to Expand the “Any Circumstances” Test: An Analysis of Massachusetts’ Multiyear Legal Battle Over the Use of Irrevocable Trusts in Long-Term Care Planning
The use of irrevocable trusts as a tool for long-term care planning has historically been problematic. Though the federal Medicaid statute allows for the use of such trusts, Congress, along with state and federal courts, has not taken kindly to their real-world application. The past few years have seen increasing conflict between individuals wanting to use this planning measure and state Medicaid agencies. Trust litigation in Massachusetts, where appellate court decisions regarding Medicaid cases have a far-reaching impact, has shown that zealous advocacy on the part of elder attorneys may continue to push courts to more fairly and consistently apply federal law.
See Lisa M. Neely, Limiting State Medicaid Agency Attempts to Expand the “Any Circumstances” Test: An Analysis of Massachusetts’ Multiyear Legal Battle Over the Use of Irrevocable Trusts in Long-Term Care Planning, NAELA News, 2017.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.
Clients receiving settlements must consider the effect these incoming monies may have on their Medicaid, Medicare, Supplemental Security Income, or Social Security Disability Income. It falls to their attorney to warn these clients of the potential loss of certain benefits. Failure to do so can result in a malpractice claim. Stand-alone special needs trusts (SNTs) and pooled special needs trusts (PSNTs) may be used to preserve these benefits. SNTs may utilize a family or corporate trustee. The drawback to these options is that corporate trustees can be expensive, and family trustees can be incompetent. PSNTs are run by a non-profit organization that usually has extensive experience managing assets in special needs trusts. Because assets are pooled, PSNTs tend to have better investment opportunities along with lower fees.
See Joanne Marcus & Karen E. Dunivan, How the Elder Law Attorney Can Help the Personal Injury Attorney, NAELA News, 2017.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Wednesday, November 29, 2017
CLE on Planning for Incapacity: Financial Powers of Attorney, Health Care Directives, and Ethical Challenges
The American Law Institute is holding a conference entitled, Planning for Incapacity: Financial Powers of Attorney, Health Care Directives, and Ethical Challenges, which will take place on Wednesday, December 6, 2017, via telephone seminar and audio webcast. Provided below is a description of the event:
Why You Should Attend
Do you find yourself going to standard forms to draft durable powers of attorney and health care directives—after carefully constructing a customized will and/or trust to meet your client’s planning objectives? Are you aware of ethical obligations in connection with representing clients with diminishing capacity?
Protecting your client in life is just as important as easing the orderly disposition of property after death. Powers of attorney and health care directives are significant tools that ensure that the clients’ wishes are honored and financial assets are protected while they are incapacitated.
Join experienced estate planners for an in-depth exploration of how to effectively draft and use durable powers of attorney and health care directives. Faculty will also address ethical obligations of attorneys to protect clients’ financial interests and minimize their financial exploitation if clients become unable to conduct their own affairs.
What You Will Learn
Topics of discussion will include:
Financial Powers of Attorney
Health Care Directives
Ethical considerations, including interaction of Model Rules 1.6 and 1.14
Who Should Attend
Estate Planners who represent disabled and elderly clients will benefit from this focus on preserving and managing assets and preserving estate planning goals in the event of disability or other incapacity.
Tuition for the telephone seminar includes a set of electronic course materials and access to the telephone seminar.
Tuition for the webcast includes a set of electronic course materials and access to the webcast.
Sunday, November 12, 2017
The National Business Institute is holding a conference entitled, Protecting Assets While Qualifying for Medicaid, which will take place on Thursday, November 30, 2017, at the Omaha Marriott in Omaha, NE. Provided below is a description of the event:
Get the Latest on Medicaid Application and Asset Planning Tactics
Middle class Americans seeking asset protection cannot afford to ignore the potentially devastating costs of nursing home and other long-term care. Nursing homes are among the most common and largest creditors an average American is likely to face in his or her lifetime, but only about 10% of the population has long-term care insurance. For the other 90%, Medicaid is the primary source of payment, so a basic understanding of the Medicaid asset protection process is vital for all professionals who work with seniors and their families. This course will provide an overview of asset protection concepts and strategies that elder law attorneys can use to legally and ethically protect assets while facilitating earlier Medicaid eligibility; and a set of crisis-management tools to prevent and correct inadvertent loss of benefits. Register today!
- Learn what the income eligibility requirements are when applying for Medicaid.
- Protect your clients' interests by knowing what's exempt and what's not.
- Employ the most practical and effective asset transfer methods to comply with the spend-down requirement.
- Explore crisis planning methods to restore Medicaid benefits as quickly as possible.
- Guide clients through the Medicaid qualification process by knowing what's involved.
Who Should Attend
This basic-to-intermediate level seminar is designed for:
- Nursing Home Administrators
- Social Workers
- Geriatric Care Managers
- Trust Officers
- Accountants and CPAs
- Estate and Financial Planners
- Applying for Medicaid - The Four Eligibility Requirements
- Pre-Need Asset Planning
- Crisis Planning and Assistance
- Trust-Based Medicaid Planning in Detail
- Using Special Needs Trusts - Sample Trust Review
- Applied Legal Ethics
Continuing Education Credit
Continuing Legal Education – CLE: 6.00 *
Financial Planners – Financial Planners: 7.00
National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 7.00 *
* denotes specialty credits