Elder Law Prof Blog

Five Big Myths of Advance Care Planning and How to Stay Anchored in Reality

Check out this Complimentary Teleconference sponsored by the ABA Health Law Section and the ABA Commission on Law and Aging

Tuesday, April 13 at 2:00pm Central

This complimentary teleconference will address the five biggest myths that plague advance care planning and how to steer clear of them and make advance care planning more effective.

Myths:

--People should use their state's official advance directive form
--Advance directives are legally binding so doctors have to follow them;
--An advance directive should include as specific instructions as possible;
--Doing everything possible for dad means keeping dad alive at all costs;
--A written advance directive is better than talk.

Since the mid-1970s, health care advance directives have become the central legal tool to make sure one's health care wishes are known in a formal way and, it is hoped, followed. However, clinical realities and the medical-social sciences literature over the last 30 years cast doubt on the effectiveness of advance directives. The reality is that directives are just a part of a process of advance care planning that requires more than just a form and a signature. Sometimes forms get in the way.

Panelists:

    * Richard Payne, MD, Professor of Medicine and Divinity,
    * Esther Colliflower Director, Duke Institute on Care at the End of Life, Duke University Divinity School
    * Charles P. Sabatino, J.D., Director of the American Bar Association's Commission on Law and Aging

To participate please contact Simeon Carson, Membership, Technology and Publication Specialist, at:
[email protected] or (312) 988-5824.

Please note: The ABA is not requesting CLE accreditation for this program. However, if interested, you may be able to apply for credit directly with your state bar(s). Please contact your state bar for regulations and guidelines. A complete listing of states that require mandatory CLE is available at http://www.abanet.org/cle/manstates.html

Advancing Equality for LGBT Elders -- a New Report

Authored by LGBT Movement Advancement Project (MAP) and Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders (SAGE); and developed in partnership with the American Society on Aging (ASA), Center for American Progress (CAP), and National Senior Citizen’s Law Center (NSCLC).

For the full report:  Download Advancing Equality for LGBT Elders

FOREWORD

As America’s 65+ population continues to grow in ways challenging our social and economic fabric as never before, this insightful report reveals the conditions facing America’s LGBT seniors. The clear understanding of these challenges provided in Improving the Lives of LGBT Older Adults will aid policy makers striving to make sure all Americans can age successfully.

Even as our country moves closer to insisting on fair treatment and full opportunity for all of our people, the effects of long-standing discrimination against the LGBT community remind us of how far we still have to go.

Myths about LGBT persons have long been an obstacle to justice. Even as our society has overcome some damaging stereotypes, other myths linger and hold back progress. Importantly, the report notes the mistaken belief that “LGBT people are more affluent than other Americans.”

In fact, a lack of financial security is the fearful reality for a large percentage of LGBT older adults. This report makes a thoughtful and nuanced contribution to the public policy dialogue through its depiction of issues involving financial security, health and health care, and social and community support. The report provides depth to a steadily growing pool of information.

The special challenges facing many LGBT older adults must be kept in mind. Whether it’s the problem of aging in isolation or the treatment of residents in institutionalized settings or other issues, many LGBT older adults often face special challenges. This report can help government and nonprofit organizations address some of those challenges.

From a holistic perspective, the report makes it clear that LGBT individuals and the LGBT community at-large have a major role to play in determining the degree to which policy and advocacy issues that affect LGBT older adults are given appropriate consideration. Advocacy with and on behalf of LGBT older people will make a significant difference.

While many members of AARP are members of the LGBT community, the issues raised in this report extend beyond our membership and our organization. It is not only a question of LGBT fairness—the issues raised involve the fair treatment of all Americans, and how our society will promote a secure retirement.

This report will help to inform our country as we move forward to fulfill our highest ideals, appreciate our diversity, take care of each other, and ensure that all our citizens can age with dignity and purpose.

Contact Information

LGBT Movement Advancement Project (MAP)
2215 Market Street
Denver, CO 80205
720-274-3263
http://www.lgbtmap.org

Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders (SAGE)
305 7th Avenue, 6th Floor
New York, NY 10001
212-741-2247
http://www.sageusa.org

SSRN: ELDER LAW STUDIES ABSTRACTS

Table of Contents

(Browse ALL abstracts for this journal)

Losing it? Losing What? The Law and Dementia

Jonathan Herring, University of Oxford - Faculty of Law

 

Legal Issues in Aging Families

Marshall B. Kapp, Florida State University - College of Law, Southern Illinois University School of Law

 

Surrogate Selection: An Increasingly Viable, But Limited, Solution to Intractable Futility Disputes

Thaddeus Mason Pope, Widener University Law School - Health Law Institute

 

Asking Too Much: Autonomy and Responsibility at the End of Life

Lois L. Shepherd, University of Virginia Center for Biomedical Ethics and Humanities, University of Virginia - School of Law

 

Age Discrimination in the Delivery of Health Care Services to Our Elders

Phoebe Williams, Marquette University

 

Sponsored by Syracuse University College of Law
Vol. 2, No. 7: Mar 09, 2010 
NINA A. KOHN, EDITOR
Associate Professor, Syracuse University - College of Law
[email protected]

 

Senate passes reconciliation bill

 

Breaking News Alert

The New York Times

Thu, March 25, 2010 -- 2:26 PM ET

-----

Senate Passes Reconciliation Bill, 56-43

 After running through an obstacle course of Republican amendments and procedural objections, the Senate on Thursday afternoon approved of a package of changes to the Democrats' sweeping health care overhaul, capping a bitter partisan battle over the most far-reaching social legislation in nearly half a century.

Republicans, raising procedural challenges, identified flaws that struck out minor provisions to the bill. Because of those changes, it now goes back to the House for one more vote, though passage seemed virtually assured.

Democrats said they were confident the measure would soon be on President Obama's desk for his signature. The vote, just after 2 p.m., was 56 to 43, with the Republicans unanimously opposed.

Via the New York Times.

 

New Publication from the Alliance on Aging

The Silver Book: Chronic Disease and Medical Innovation--Diabetes

Type:	Document, Report
Date:	March 2010
Related Topics:	Aging Research, Diabetes, Health, Medical Innovation, Policy, Research

 

The first volume of The Silver Book was launched in 2006 and has quickly become a trusted resource for health policy practitioners. The Silver Book®: Diabetes is the latest volume in this important collection. Each section in the volume includes charts, statistics, and key findings that together paint a comprehensive picture of the burden of diabetes and the tremendous potential of innovation. Much of the data focuses on the older population.

 

» Download - Adobe Acrobat (PDF), 855 KB

German pensioners convicted of kidnapping financial advisor

Four German pensioners have been found guilty of kidnapping the financial adviser they blamed for US property investments that went awry.  The court found that the four, aged 61 to 80, abducted James Amburn and tried to force him to refund 2.5m euros (£2.25m; $3.4m) in lost investments.  They took him from his home in western Germany and drove him 450km (280 miles) to southern Bavaria.  He was freed after hiding a message to call police in a fax to his Swiss bank.  Te defendants had argued that they had invited Mr Amburn for a short holiday in upper Bavaria.  But the judge in Traunstein, Bavaria, ruled that it was a "spectacular case of self-justice" and that in Germany, people could not take the law into their own hands.

Source/more:  BBC, http://news.bbc.co.uk/2/hi/europe/8583222.stm

Let this be a lesson, "senior specialists"!

Save the Date: World Congress on Adult Guardianship Oct. 1-4, 2010

The World Congress Adult Guardianship 2010 Organizing Committee and 8 other organizations invite you to participate in the First World Congress on Adult Guardianship. 

"In light of the current situation of Japanese Adult Guardianship Law implementation, and considering the need to debate how it should be going forward, we are convening our first World Congress on Adult Guardianship Law in Yokohama, in October of 2010. We have invited scholars and professionals interested in issues concerning Adult Guardianship Law from around the world to join in a frank exchange of ideas with the goal of improving the system of Adult Guardianship Law in Japan.

Although there have been previous international meetings and gatherings on Adult Guardianship Law, this world conference is the first to span the entire world. We earnestly invite you to join in this congress with colleagues from around the world to consider the future of Adult Guardianship Law in Japan, in the context of learning about the world of Adult Guardianship Law.

We humbly request your valued participation in order to make this first World Congress on Adult Guardianship Law most meaningful.""

Co hosts: 

• Japan Adult Guardianship Law Association (JAGA）
• Max Planck Institute for Foreign and International Social Law
• International Conference on Public Trustees and Public Guardians (PTPG)
• International Guardianship Network (IGN)
• Legal-Support Adult Guardian Center
• Tokyo Bar Association
• Japanese Association of Certified Social Workers
• Japan Federation of Certified Public Tax Accountants' Associations

More information is available at:  http://www.wcag2010.org/index.html

Is Long-Term Care More Important to Women Than Men?

From our friends at the Kansas and Missouri Elder Law Blog:

 

I could hear the panic in Mary’s voice. Her husband Joe’s health had been steadily declining for years, and Mary has been his primary caregiver. But last week he fell at home, breaking his hip, and now he’s in a subacute facility. The recovery process hasn’t gone well, in part because of Joe’s age and partly because of the toll that Alzheimer’s has taken on his mind. Mary is now facing the prospect of either long term care at a cost of $11,000 per month or, in an effort to keep the cost down, trying to bring him home and provide much of the care herself, supplementing it with a few hours of home aide assistance. “Joe never wanted to talk about long term care and so we never did plan for this,” she tells me. It’s a classic scenario and one that, so often, is more damaging to the wife than the husband. How so?

Mary’s situation is a typical one. At 72, she’s six years younger than Joe. Add the fact that women have a longer life expectancy than men and chances are that the husband will need long term care first. And if the couple hasn’t planned for it, they’ll likely spend most of their savings on his care. Mary and Joe have $400,000 of assets plus their house. Without any guidance Mary could be left with as little as $109,000 and the house before the State will help pay for Joe’s care.

What about their income? Mary will lose much of that towards Joe’s care. He has Social Security of $1,500 and a pension of $2,500 while Mary has only Social Security of $500 because she spent many years tending to the needs of her family. She’ll get to keep approximately $1,500 of Joe’s income when he qualifies for Medicaid, not enough to meet her expenses. Then, when he dies, she’ll take another hit, because Joe chose the maximum pension for his life. There is no survivor option for Mary. Add to that the fact that she will only receive one Social Security check (Joe’s because it is the larger of the two) and her income will drop to $1,500. It, therefore, is so important for Mary to protect as much of their assets as she can to replace the income she loses.

And when Mary does need care it will likely be more expensive and difficult to administer. Why? Because she won’t have a healthy spouse living with her to care for her at home. Chances are she’ll need to hire more care, and she’ll be more likely to need nursing home care earlier. Her children will need to take on a greater role to fill the void.

One more thing. Mary’s concern about keeping costs down is causing her to take on more of the caregiver role herself. That can take a physical and emotional toll and may contribute to a more rapid decline in Mary’s health. Had the couple planned for this possibility well in advance, tapping into available sources of payment such as long term care insurance or government benefits, Mary would be more inclined to pay for additional help.

To read more, go to:  http://www.kcelderlaw.com/blog/kansas-and-missouri-nursing-homes/is-long-term-care-more-important-to-women-than-men/

Survey will gauge "aging preparedness"

A new national online survey is underway to gauge how prepared Americans are to age. Intended for adults over the age of 18, the survey will examine concerns Americans have about aging, expectations they have about who will provide for their needs in their later years, and how they expect those needs to be met. The survey will be available online throughout the month of March, and it is accessible at http://www.surveymonkey.com/s/areyoureadytoage. The results are expected to be released during Older Americans Month* (May 2010).Designed by CommonHealth ACTION, a national non-profit in Washington, DC, in collaboration with BETAH Associates, Inc., a Bethesda, MD-based management consulting firm, the survey is being promoted through national organizations, print and online media, and social marketing tools. CommonHealth ACTION conducted a similar survey in 2004 that will provide some benchmark comparisons for the current survey. BETAH Associates is assisting with national promotion and dissemination of results.

When asked why a survey of this kind is important now, Natalie Burke, Principal of CommonHealth ACTION said, “It is critical that we begin a national dialogue that serves as a catalyst for individuals and communities to collaborate on effective aging strategies. Without those strategies, we are in danger of devaluing our seniors, further crippling our economy and communities, and creating an unbearable strain on the ‘sandwich generation’ that may be the final undoing of the American family.”

Based on the work her organization has done on behalf of the U.S. Administration on Aging, Michelle Taylor (BETAH’s president) has noted that our rapidly growing older population is living longer, more productive lives which highlights the need for all Americans to plan for their future. In her view, “The survey data could help us to identify specific issues and develop better strategies affecting older Americans. The ultimate goal would be for our society to be equipped with the systems to support an aging population, ensuring they have relatively independent and healthy lifestyles.”

Read more or take the survey:  http://www.commonhealthaction.org/PR_Survey.pdf

R.I.P. off? Pre-need regulations have increased, but critics say not enough

By Kaija Wilkinson from gulflive.com

JACKSON, Miss. -- Since Secretary of State Delbert Hosemann took office, his agency has seized five Mississippi cemeteries for mismanaging funds, a scenario that's playing itself out across the country.

Critics of the pre-paid industry contend that's because oversight has been poor, and despite states' efforts to beef up laws, there is still plenty of room for fraud.

Hosemann said he is working to prevent it.

"Misapplying trust funds from someone's funeral arrangements is literally grave robbing," Hosemann said. "It is unfortunate that we have to go after these companies in court to recoup the money that is missing."

That, he pointed out, costs taxpayers.

He said a law the state Legislature passed last year provides greater industry oversight. Mississippi providers must now not only report to their districts' chancery courts, but to the Secretary of State's office.

The law, among other things, says the Secretary of State's office must:

• Read and approve any pre-need contracts before they are sold.
• Approve trust agreements.
• Allow only cemeteries or funeral homes to be licensed providers.
• Require providers to file an annual report on trusts showing the balance and investments.
• Raise the maximum penalty for violations from $5,000 to $10,000.
• Establish a fund that takes $10 for each pre-need contract sold after July 1, 2009 to go into a last-resort fund to pay the claims on insolvent cemeteries.
• Raise the required amount to start a perpetual care cemetery from $5,000 to $25,000
     

Josh Slocum, director of the nonprofit Funeral Consumers Alliance, said state laws, including Mississippi's, still give providers the upper hand. Although he acknowledges that many people have had good experiences buying pre-need plans, it's just not worth the risk, he said.

for the rest of the piece, go to:  http://blog.gulflive.com/mississippi-press-news/2010/03/rip_off_pre-need_regulations_have_increased_but_critics_say_not_enough.html   

"'They Keep it All Hid': The Ghettoization of Mental Disability Law and its Implications for Legal Education"

St. Louis University Law Journal, Symposium Issue, Vol. 54, No. 3, 2010
NYLS Legal Studies Research Paper No. 09/10 #16

MICHAEL L. PERLIN, New York Law School
Email: [email protected]

The Supreme Court has, since 1972, decided more than fifty cases involving persons with mental disabilities, a docket spanning virtually every aspect of constitutional law and criminal procedure. These cases have dealt with the substantive and procedural limitations on the commitment power, the conditions of confinement in psychiatric institutions, the application of the Americans with Disabilities Act to persons institutionalized because of mental illness, the substantive and procedural aspects of the criminal incompetency inquiry and the insanity defense, the relationship between mental disability and sexually violent predator laws, and all aspects of the death penalty. Thousands of cases have been decided in every state in the nation dealing with similar issues. In fact, in the Supreme Court’s first modern mental disability law case – finding that the due process clause is implicated in all decisions related to both the "nature and duration" of the commitment process – it expressed surprise that there were not more mental disability law cases brought to its attention.

However, a study of constitutional law, criminal procedure, civil rights and/or federal courts casebooks reveal virtually no mental disability law cases. Policies and practices of exclusion are not unique. By way of example, more than a decade ago, Toni Massaro pointed out that constitutional criminal procedure has been treated as a subject "separate from basic constitutional law materials and courses."

Mental disability law has been "ghettoized" in the same way that criminal procedure has been ghettoized. It is a ghettoization that in some ways is far more troubling than the criminal procedure ghettoization, since all law schools offer courses in basic criminal procedure, and these courses are regularly well-subscribed. On the other hand, there are courses in "mental disability law" offered only at about half of all American law schools, and, at many schools, those courses are offered infrequently and only by adjuncts (who often have no legal training).

This ghettoization reflects a hard truth that has passed under the radar of most civil rights teachers and civil rights students. Mental disability law is simply not a topic taken seriously as a civil rights topic (or as a constitutional law topic or as a federal courts topic). And this failure of inclusion goes directly to the heart of the challenge of teaching mental disability law. It is hidden (nearly totally hidden) from the traditional law school curriculum. It is not in the curriculum at many law schools. It is largely invisible to students and professors alike.

I believe this ghettoization is a reflection of the invidious sanism that permeates the legal academy in the same way it permeates the rest of society. Law teachers are not immune to sanism – "an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry."

In this essay, I reconsider this ghettoization from four overlapping vantage points. First, I consider how "mental disability law" became a part of the law school curriculum, growing out of and largely supplanting courses in "psychiatry and the law" (and why this title change is not just a question of phraseology). Second, I discuss the significance of the notion that "mental disability law" can be cabined in one 2- or 3-credit course (implying that "all" mental disability law can be surveyed in that period of time, in a way that law school faculty would never think "all" tax law or real estate law or securities law could be so taught), and the significance of the reality that so many schools offer no course or only one course sporadically (often, without any involvement of a full-time faculty member). Third, I examine the Online Mental Disability Law program at New York Law School (where I teach) from four different perspectives: (a) the pedagogy, (b) the range of subject matters taught, (c) the interdisciplinarity of the students and the faculty, and (d) the internationality of the students and intersectionality of our course offerings. Finally, and most importantly, I explain why it is absolutely essential for any mental disability law course (or sequence of courses) to consider the concepts of sanism and pretextuality, the significance of "ordinary common sense" (OCS) and heuristic reasoning, and the impact of therapeutic jurisprudence.

Call for Papers: The Future of Elder Law

Call for Papers – Future of Elder Law Practice

William Mitchell Law Review, Vol. 37, Issue I (Fall 2010)

 

The William Mitchell Law Review is proud to dedicate its first issue of the 2010-11 academic year to Elder Law in its upcoming Volume 37 (Fall 2010). We are currently seeking papers that examine the future of elder law practice. Submissions may either take the form of shorter commentaries or longer law review articles. The deadline for submissions has been set for July 1, 2010.

 

The William Mitchell Law Review is highly regarded both regionally and nationally. Our Law Review recently ranked twenty-second in citations by judges and ranked fifty-seventh in citations by other law journals, culminating in an overall ranking of seventieth. Over the years, the William Mitchell Law Review has featured the works of various scholars and practitioners such as Congressman Tim Penny, and former Vice President Walter Mondale. The William Mitchell Law Review has also published nationally known legal experts ranging from Philip Bruner, to Supreme Court Justices Sandra Day O’Connor, Byron White, and Harry Blackmun. Now, we would like to invite you to join us to publish in our upcoming volume.

 

Please direct inquiries to Executive Editor Sanjee Weliwitigoda at [email protected]. Please send submissions to [email protected] or mail them to our Editorial Office. Please note that the Law Review prefers electronic submissions.

 

NAELA Student Journal now online

The 2009 NAELA Student Journal is now available online. Click here to start reading the top eight papers submitted to the 2009 Student Writing Competition.

Here’s what you’ll find:


Its All About the Money: Potential Repercussions of Denying Disabled Veterans the Freedom to Hire an Attorney
By Benjamin W. Wright

Sentencing Elderly Criminal Offenders
By Dawn Miller

Biting the Bullet: Applying the Objective Test for Terminating Treatment in Cases Involving Incompetent Patients
By Caroline Klosko

Reverse Mortgages and the Challenges of the Current Financial Crisis
By Paul V. Black
 
Interests in Stark Conflict: The Case for Congress to Close the Stark Law’s Whole Hospital Loophole
By Michael J. Ritter

What Happens to the Correctional System When a Right to Health Care Meets Sentencing Reform
By Stacy L. Gavin

The Current Challenges of Long-Term Care Insurance and Solutions for the Future
By Erin K. Ferris

State of Flux: Older Refugees in the United States
By Jennifer Harry


You can also access the 2009 NAELA Student Journal through the NAELA web site, http://www.NAELA.org. Log on to the site and look under Members>Communications>Publication for the 2009 NAELA Student Journal as well as the archives of NAELA News and NAELA Journal.

The NAELA Student Writing Competition is meant to encourage law students to focus on the issues of Elder and Special Needs Law as a legal specialty. Submissions can address any topic regarding legal issues affecting seniors or people with disabilities. For more information, go to http://www.NAELA.org and look under Professionals>Law Students>Student Writing Competition.

 

Elder law students and others assist Haitians

Students from the University of Miami School of Law’s Health & Elder Law Clinic and Florida International University are hosting other Spring Breakers from around the country who want to help Haitians gain Temporary Protected Status. This allows Haitians in the United States prior to the Jan. 12 earthquake to work and remain here legally.  The two Miami-based universities are working with students from Yale, Fordham, the University of Minnesota and City University of New York. UM and FIU students have been working on this project since shortly after the earthquake.  “As soon as word got out that we were working on Haitian TPS, law schools from around the country started calling to volunteer over Spring Break. It was very inspiring,” said Melissa Swain, a supervising attorney at the UM clinic, who has coordinated much of the Spring Break programming.  After training, visiting students will be paired with Creole-speaking interpreters drawn from an FIU-created database.

More: http://weblogs.sun-sentinel.com/educationblog/2010/03/spring_break_in_miami_means_helping_haitians.html

DOJ publication discusses rights of vets with disabilities

A new publication by the Civil Rights Division of the Department of Justice outlines the rights of returning service members with disabilities under the ADA.  Standards are different for vets and non-vets.  Here's the intro:

The ADA is a civil rights law that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life -- to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services. Modeled after the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, or national origin, the ADA is an "equal opportunity" law, not a benefit program entitling you to specific services or financial assistance because of your disability.

The ADA uses different standards than the military and the Department of Veterans Affairs in determining disability status. The ADA covers people with a physical or mental impairment that substantially limits one or more major life activities such as walking, speaking, lifting, hearing, seeing, reading, eating, sleeping, concentrating, or working. Major life activities also include the operation of major bodily functions such as brain, immune system, respiratory, neurological, digestive, and circulatory functions. Businesses and State and local government agencies must take reasonable steps to make it possible for people with disabilities to be their employees or customers.

Read the full publication here:  http://www.ada.gov/servicemembers_adainfo.html

New on SSRN: Wills, Trusts and Estates Law Abstracts

WILLS, TRUSTS, & ESTATES LAW ABSTRACTS Sponsored by The American College of Trust and Estate Counsel (ACTEC) Foundation Vol. 6, No. 6: Feb 25, 2010 ROBERT H. SITKOFF, EDITOR John L. Gray Professor of Law, Harvard Law School [email protected] Browse ALL abstracts for this journal

Links: Subscribe ~ Unsubscribe | Distribution | Network Directors | Submit ~ Revise Your Papers

Announcements Wills, Trusts, & Estates Law is sponsored by The American College of Trust and Estate Counsel Foundation (http://www.actec.org/) and is edited by Robert H. Sitkoff of Harvard Law School.

Table of Contents Hicks v. Dowd, Conservation Easements, and the Charitable Trust Doctrine: Setting the Record Straight Nancy A. McLaughlin, University of Utah S.J. Quinney College of Law W. William Weeks, Indiana University School of Law-Bloomington Art Deaccessions and the Limits of Fiduciary Duty Sue Chen, United States Court of Appeals for the Tenth Circuit

Registration Open for Stetson Special Needs Trust Administration Webinar

More info/register:  http://www.regonline.com/Checkin.asp?EventId=81947

REGISTER NOW! 
The Center for Excellence in Elder Law at Stetson University College of Law presents

The Fundamentals of Special Needs Trust  Administration

Half-Day Webinar for Special Needs Trust Trustees, Financial Planners, Money Managers and Attorneys involved in Special Needs Trust Administration

Date:  April 23, 2010

Schedule

12:00 p.m.
Welcome and Introduction
Rebecca C. Morgan
Program Chair
Boston Asset Management Faculty Chair in Elder Law
Stetson University College of Law, Gulfport, Florida

12:15 p.m.
Bumps in the Road of SNT Administration
Mary Alice Jackson
Boyer & Jackson, Sarasota, Florida

1:30 p.m.
Taxes and Accounting: Reporting Requirements for SNTs
Robert B. Fleming
Fleming & Curti, P.L.C., Tucson, Arizona

2:45 p.m.
What Every Trustee Needs to Know to Properly Administer a SNT
Craig C. Reaves
Reaves Law Firm, Kansas City, Missouri

4:00 p.m.

Adjourn

CLE Credit Pending Approval Approval is pending for 4.5 hours of general CLE credits with the Florida Bar. Those who are requesting credit outside of Florida will receive forms to apply for credit in those states. (Please note on registration form). CLE accreditation for some states may require an additional fee from registrants (payable to the bar associations of those states). For additional information, please contact Stetson's Office of Conferences and Events at 727-562-7312.

News of the Old: Skeletons found in mass grave are executed Vikings c. 1000 AD

Fifty-one decapitated skeletons found in a burial pit in Dorset were those of Scandinavian Vikings, scientists say.  Mystery has surrounded the identity of the group since they were discovered at Ridgeway Hill, near Weymouth, in June.  Analysis of teeth from 10 of the men revealed they had grown up in countries with a colder climate than Britain's.  Archaeologists from Oxford believe the men were probably executed by local Anglo Saxons in front of an audience sometime between AD 910 and AD 1030.  The Anglo Saxons were increasingly falling victim to Viking raids and eventually the country was ruled by a Danish king.  The mass grave is one of the largest examples of executed foreigners buried in one spot.

Source:  BBC, http://news.bbc.co.uk/2/hi/uk_news/england/dorset/8563377.stm

A Pitch for Privacy Rights

By John T. Brooks, partner, and Samantha E. Weissbluth,senior counsel, Foley & Lardner LLP, Chicago, from "Trusts & Estates, the Journal of Wealth Management"

Milwaukee pitcher Scott Schoeneweis is trying to keep prying eyes out of records detailing his dead wife’s demise. Problem is, he’s asking the Arizona courts to seal otherwise public records. The unlikely moral of this story, so far, for lawyers: in camera reviews just might provide needed relief.

On May 20, 2009, detectives from the Maricopa County Sherriff’s Office and Fire EMS personnel responded to a 911 call from the Schoeneweis residence in Fountain Hills, Ariz. The call was made by Gabrielle Dawn Schoeneweis’ 14-year-old daughter, who’d found her mother lying unconscious and unresponsive in the master bedroom.

Gabrielle was pronounced dead at the scene.  The coroner’s investigation found that Gabrielle, age 39, had died of an overdose of cocaine and lidocaine.  The coroner’s report indicated that Gabrielle’s cocaine use may have harmed another person, though no details were provided.

Gabrielle’s husband, Scott Schoeneweis—then an Arizona Diamondbacks relief pitcher—was appointed personal representative of Gabrielle’s estate and promptly requested that the probate court seal Gabrielle’s death certificate and related documents.

. . . 

The probate court—without conducting an in camera review—denied Scott’s request to seal documents related to Gabrielle’s death.  Although the probate court was not unsympathetic to Scott’s desire for privacy, it held that “personal concerns” do not constitute grounds for sealing a record. 

Scott filed a petition for special action relief and application for stay to the appellate court naming the probate court judge, Barbara Hamner, as a respondent along with various officials, including the medical examiner.

Upon review, the Arizona appellate court said the issue was whether Arizona’s Public Records required disclosure of the documents related to Gabrielle’s death. The court delineated a two-step analysis for finding an answer to this dilemma:

• First the court had to determine whether the records at issue are “public records.”

• Second, the court must perform a balancing test to determine whether privacy, confidentiality or the state’s best interests outweigh the policy of disclosure. Schoeneweis v. Hamner 221 P.3d 48 (Ariz. Ct. App. Dec. 1, 2009)

Conducting the first step, the court noted that three types of documents were involved:

(1) an autopsy report (including photographs),

(2) investigative records, and

(3) a death certificate. 

As to whether these documents qualify as “public records,” the court said that the state Public Records Act applies to records required to be kept by law or necessary for discharging a duty imposed by law.  Therefore, 

• Arizona statute requires medical examiners to direct a death investigation and reduce their findings to writing; so, the autopsy report qualifies as a public record. 

• Autopsy photographs document the steps in an autopsy and support the autopsy findings; thus, those also qualify as public records. 

• The investigative report, including photographs of the scene and witness interviews are prepared and maintained by a state entity in furtherance of its official duties; so, they also qualify as public records. 

• Finally, because the medical examiner is required by law to execute a death certificate; the death certificate also is a public record.

As for the second step, the balancing test, the court addressed Scott’s contention that the documents were privileged medical information.  In refusing to apply the privilege, the court noted the purpose behind the privilege: to foster open communication between patients and doctors.  This purpose does not apply to autopsies, the purpose of which is  “fundamentally different from the diagnosis and treatment of a living patient.”

The court added that death certificates may not be disclosed to the general public but rather only to those who have a “legal or vital interest” in the certificate (defined by statute as seven categories of people, none of which include the general public.)

Therefore, the court held that the probate court erred in refusing to prohibit the public release of Gabrielle’s death certificate.
   
Moreover, the appeals court held that, because the probate court failed to conduct an in camera review of the documents at issue, the probate court could not properly weigh privacy concerns against the policy in favor of disclosure.  The appeals court stated that, when the performance of important governmental functions is implicated, privacy interests must yield to public disclosure—but when records of government action are merely incidental to an otherwise private matter, privacy interests prevail. 

Gabrielle’s case involved a death and potential injuries to another that resulted from apparent unlawful conduct.  Thus, the appeals court found, privacy concerns, including those of living crime victims, must be weighed against the need for public awareness about the government’s performance of its law enforcement functions (which the court aptly distinguished from public curiosity given that Scott is a prominent sports figure.) 

In remanding the case for an in camera review, the appeals court stated that it was difficult to conceive of circumstances that would justify disclosure in this case.

To read the rest, go to http://trustsandestates.com/wealth_watch/privacy-rights-schoeneweis-wife0218/

CMS issues sanction warning to Missouri re: Home health care restrictions in Medicaid

From the Center for Medicare Advocacy:

The state of Missouri requires Medicaid beneficiaries to be "confined to the home" in order to receive home health services provided under its Medicaid program. While this so-called "homebound" rule has been required by statute for home health services in Medicare since the beginning of the program, the Medicaid statute has never had such a requirement. In fact, the absence of a "homebound" requirement in Medicaid has been an important feature of that program for those dually-eligible for Medicare and Medicaid who may be denied home health services under Medicare for failure to meet the homebound standard.

The Centers for Medicare & Medicaid Services (CMS) has informed the Director of Missouri's Department of Social Services that the state is out of compliance with Medicaid law and that it will be sanctioned by the withholding of a portion of the federal share of payments until it comes into compliance.

This Alert focuses on the homebound issue, on CMS's legal rationale for sanctioning Missouri and on the important role of the advocacy community in bringing pressure to bear on Missouri to change its policy and on CMS to press the state to act.

Read the rest of this CMA alert:  http://medicareadvocacy.org/InfoByTopic/MedicaidAndRelatedTopics/MedicaidandRT_10_03.11.MedicaidAndHomeHealth.htm