Elder Law Prof Blog

Which is More Terrifying? "Dying Early" or "Living Long" (and Doing Financial Planning Necessary for the Latter)?

The New York Times recently carried a column that probably hit home with many -- if, that is, one could bring oneself to read it.  While some people keep postponing "the conversation" discussion about how they want to die, there is plenty of evidence many people are also avoidant of conversations about financial planning for a long life. 

Educating consumers to be better purchasers seems a sensible idea, but an example from recent history illustrates the problem with that. For a long time, the simple investment advice given to consumers has been “buy an index fund.” Index funds are such standardized products — mirroring the Standard & Poor’s 500-stock index does not require much management — that just about all of them were initially low cost while offering wonderful diversification.

 

Consumers have been buying index funds, and the market has responded by providing hundreds of them. Nearly all E.T.F.s are index funds.

 

But the market has also responded by charging high fees for this standardized product. In 2004, Ali Hortacsu and Chad Syverson, economists at the University of Chicago, found that index funds had as much variability in fees as their more labor-intensive actively managed counterparts. And these fees are nothing to be scoffed at — paying 1 percent more every single year in fees can compound over a lifetime to noticeably lower returns.

For more on the problem with financial advice -- with encouragement to "face up to something [you too] may have been dreading," read Why Investing Is So Complicated, and How to Make it Simpler, by Sendhil Mullainathan. 

My thanks to Prof. Laurel Terry and Jack Bennett, Esq. for sharing this column.

Update on Family Caregivers

AARP''s Public Policy Institute has released a new report that provides an update on the topic of family caregivers. Valuing the Invaluable 2015 Update: Undeniable Progress, but Big Gaps Remain is 25 pages long and available as a pdf. As the introduction notes:

In 2013, about 40 million family caregivers in the United States provided an estimated 37 billion hours of care to an adult with limitations in daily activities. The estimated economic value of their unpaid contributions  was approximately$470 billion in 2013, up from an estimated $450 billion in 2009.

This report also explains the key challenges facing family caregivers…The report highlights the growing importance of family caregiving on the public policy agenda. It lists key policy developments for family caregivers since the last Valuing the Invaluable report was released in 2011. Finally, the report recommends ways to better recognize and explicitly support caregiving families through public policies, private sector initiatives, and research.

The report reviews progress in policies, programs and services at the federal and state levels since the previous report and makes over 20 policy recommendations in a number of categories.

To both address the growing care gap as the population ages and lessen the strain in the daily lives of caregiving families, more meaningful public policies and private sector initiatives are needed now. Better strategies will assist those who need care and their families struggling to find and afford the supportive services to live in their homes and communities—where they want to stay. It is essential to the well-being of our health care and LTSS systems, our economy, our workplaces, our families, and ourselves.

Hospital "Observation Status" Medicare Bill Goes to President Obama for Signature

The legislation carrying the name Notice of Observation Treatment and Implication for Care Eligibility (NOTICE) Act, that has now passed both the House and Senate, goes to President Obama for signature. If signed by the president, it will still be another year before its official effective date.

Sadly, it doesn't actually fix the problem for the patients with the fact that hospitals frequently attempt to hold patients on a fictional "observation only" status.  Money is  still the issue. Hospitals want to avoid harsh potential Medicare penalties associated with readmissions of "admitted" patients.  At the same time, the lack of "admitted status" reduces the ability of patients to seek Medicare coverage for rehabilitation care post-hospitalization.  But now the patients get better "notice" of their status -- and the potential for it to affect Medicare coverage and therefor out-of-pocket expense for the patients.

ElderLawGuy Jeff Marshall has posted a good blog review of the new law, supplementing his earlier coverage of the problems.  See his Observation Status Bill Heads to President's Desk

California Lawsuit Over Alzhemier's Research Reveals Core University Funding Battle

As detailed in new stories in Southern California media, an important suit by University of California San Diego (UCSD) against University of Southern California (USC) highlights a battle between public and private research enterprises.  Control over millions of dollars is stake for Alzheimer's-related research.  From the San Diego Union-Tribune in a Sunday feature article by Larry Gordon, Gary Robbins and Bradley Fikes:

In the lawsuit, U.C. San Diego alleges that USC, [Alzheimer's researcher Paul] Aisen and eight colleagues conspired to take research data involving more than 1,000 patients and other assets, including an estimated $100 million in federal and private funding to a new Alzheimer's study center in the San Diego Area.  Aisen and USC deny any wrongdoing and contend that UC San Diego is trying to inhibit the freedom to move jobs and is threatening the data's security.

 

A Superior Court judge in San Diego last week denied USC's request to block UC San Diego's access to that data.

 

Richard Seligman, the associate vice president for research administration at Caltech who has more than four decades of experience dealing with grants, said he had never heard of such a lawsuit even though competition for grants and noted faculty has gotten more fierce.

Stakeholders interested in the outcome of the research are reported to be taking note of the suit, with Mary Carrillo, the chief science officer for the Alzheimer's Association quoted as saying the association wants a "speedy resolution" of the lawsuit to keep research going forward. 

Left in an uncomfortable middle ground are the National Institutes of Health and its subsidiary National Institute on Aging, which provides about $11 million per year to the UC Alzheimer's Center.  While confirming that UC San Diego still holds that grant, officials at those agencies said they must approve whether funding like that stays put or moves to another school with a principal investigator like Aisen.

For additional background on the lawsuit, see a related Los Angeles Times piece here.  Reporters from the Los Angeles Times and the San Diego Union-Tribune have collaborated on these stories.

On Friday, July 24, a California trial court ruled that the key research data must be returned to UCSD and therefore does not go "with" the faculty member, Aisen, recruited away from San Diego by USC.  Details here. 

As further evidence of the battle for primacy in southern California medical research, USC and UCSD have each courted the La Jolla Institute for Allergy and Immunology, with University of California-San Diego energing as the winning suitor for "affiliation."  Details here. 

What is Your Neighborhood's Livability Index?

Ever wonder how your neighborhood would measure up as a "livable community"?  AARP has released an interactive tool.  The Livability Index: Great Neighborhoods for All Ages explains: this is "[a]n interactive, easily navigated website, the Livability Index allows users to compare communities, adjust scores based on personal preferences and learn how to take action to make their own communities move livable."  The tool is easy to use and gives results quickly. The index rates communities in seven categories, including environment, health, engagement, transportation, housing, neighborhoods and opportunity.  Try it!

AARP & ABA Join Forces on "Checklist for Family Caregivers"

Sally Hurme, J.D., adds another useful book to her long list of consumer-friendly publications.  In Checklist for Family Caregivers, published and marketed jointly by AARP and the American Bar Association, offers "to do" and "action" checklists to guide family members as key providers of care and assistance for seniors.  Each topic is introduced by brief narratives of explanation, often with an emphasis on legal implications of decision-making.  For example Chapter 6 is on "Deciphering Contracts," and describes different components of family caregiver agreements, home care service agreements (whether directly or through an agency), assisted living agreements, and skilled nursing care contracts, plus a few points about long-term care insurance policies. 

Think of this book as the starting place -- and a wonderful opportunity to organize thoughts for meetings with doctors, agencies, social workers or lawyers.  More information about the book is available on the ABA webpages (with a member discount, and "bulk discounts are available"), on AARP's webpage, or directly through Amazon. 

ADA Turns 25

The Americans with Disabilities Act (ADA) was signed into law 25 years ago, on July 26, 1990, by President George H.W. Bush. According to the information on the ADA website

Twenty-five years ago, through the Americans with Disabilities Act (ADA), our nation committed itself to eliminating discrimination against people with disabilities. The U.S. Department of Justice’s Civil Rights Division  is proud to play a critical role in enforcing the ADA, working towards a future  in which all the doors are open to equality of opportunity, full participation,  independent living, integration and economic self-sufficiency for persons with  disabilities. In honor of the 25th anniversary of the ADA, each month the  Department of Justice will spotlight efforts that are opening gateways to full  participation and opportunity for people with disabilities.

The efforts that are spotlighted can be accessed here.  Concomitant with the anniversary, the Social Security Administration's July 27, 2015 blog, Supporting the Americans with Disabilities Act, focused on the ADA's anniversary. 

There were a number of articles highlighting the ADA's anniversary.  For example, the New York Times  ran a Room for Debate on the ADA, The Americans With Disabilities Act, 25 Years Later.  NPR did a story on the ADA's influence on other countries, How A Law To Protect Disabled Americans Became Imitated Around The World and the Washington Post ran an article by Professor Robert L. Burgdorf Jr., Why I Wrote the Americans with Disabilities Act.  President Obama spoke about the anniversary of the ADA and the White House website has a page devoted to issues facing Americans with disabilities. 

If you cover the ADA in your classes, there are many more useful articles and stories released as a result of the  ADA's 25th anniversary. 

Where There's a "Will," There's a Way....

I'm visiting family in the Southwest as I type this entry.  To say that I come from a family of pack rat readers is an understatement.  Every room in my parents' three story old house has stashes of books, even the bathrooms.  In one room, I think the bed is entirely supported by books stacked neatly underneath it.  (And this is a looooong family tradition; I can remember vacations in Wisconsin where the prized activity was digging through old books and ancient Saturday Evening Posts in a cousin's attic, to find the perfect text for reading on the screened- in porch on a rainy summer day).

This week's discovery was an article in the Winter issue of the Journal of the Southwest, a refereed journal  published quarterly at the University of Arizona.  "The Eclipse of the Century," tells the story of married scientists Cecile DeWitt-Morette and  Bryce Seligman Dewitt, who pursued greater understanding of Einstein's theory of relativity. A goal was to observe one of the longest total eclipses of the sun, taking the highest-quality possible photographs in order to measure and document "bending" of light caused by the pull of gravity.  The opening paragraph of the article by University of Texas PhD candidate David Conrad hooked me:

 Cécile DeWitt-Morette sat on a roof in a sandstorm in the Sahara Desert. It was 10:30 a.m. on June 30, 1973, and nearly 100 degrees Fahrenheit. If the storm did not let up soon, all was lost. A year and a half of preparation and approximately $100,000 in grants would be for naught, and a similar opportunity would not come for another 18 years. But Cécile had no power over the wind or sand or time. She could only wait. Beneath her feet, inside the structure she and her colleagues from the University of Texas (UT) McDonald Observatory built, her husband Bryce DeWitt—head of the expedition—and five other men waited for the storm to abate. The clock ticked off the seconds, and still the sand blew. All the money and effort spent to send these people here, to the oasis of Chinguetti in the Islamic Republic of Mauritania, could not alter the forces of nature.

You may be asking, "How on earth is this a topic for the Elder Law Prof Blog," right?  The answer comes from the fascinating start to UT's decision to develop a top-flight team of academic researchers.  It began with a "will."  The article continues...

Continue reading

Pop Culture in Your Classroom?

Professor Cynthia Bond at John Marshall Law is doing a survey on how law profs use pop culture in their classrooms. Here is her email providing more info and requesting responses to her survey:

Greetings Law Teacher Colleagues:  

I am working on an article this summer on uses of popular culture in the law school classroom.  I am defining popular culture broadly to include mass culture texts like movies, TV shows, popular music, images which circulate on the internet, etc, and also any current events that you may reference in the classroom which are not purely legal in nature (i.e. not simply a recent court decision). 

To support this article, I am doing a rather unscientific survey to get a sense of what law professors are doing in this area.  If you are a law professor and you use popular culture in your class, I would be most grateful if you could answer this quick, anonymous survey I have put together: 

https://www.surveymonkey.com/s/QH3GBZK 

Thanks in advance for your time and have a wonderful rest of summer!

Cynthia Bond

The John Marshall Law School

Chicago, IL

Law Reform: A Proposed Remedy for "Deeply Toxic" Damage to Higher Ed Caused by Abolition of Mandatory Retirement

Bentley University Professors  Beverley Earle and Marianne Delbo Kulow have a nicely provocative article in the Spring 2015 issue of the Southern California Interdisciplinary Law Journal, titled The "Deeply Toxic" Damage Caused by the Abolition of Mandatory Retirement and its Collision with Tenure in Higher Education: A Proposal for Statutory Repair.  From the introduction:

There are very few positions that offer the level of protection that tenure does. One such position is a federal judgeship, which is distinguishable because of the very public nature of the work. If a judge performs inadequately, community backlash may quickly develop that could usher in a publicly coerced retirement. For example, a state judge, who recently gave a lenient sentence to a convicted rapist of a minor who committed suicide, has announced his retirement following pubic outrage.Tenured faculty members, unlike judges, labor in the relative isolation of the classroom, where feedback comes at the end of the semester and then only via student evaluations. This creates the first of two problems for higher education in the United States stemming from the abolition of mandatory retirement: the difficulty of removing a tenured professor for poor performance.

 

In most universities, only egregiously poor performance by a tenured professor is flagged for termination; outdated, boring, or barely adequate, teaching may not sufficiently stand out to warrant a more intense review.  There is also a slow feedback loopdue to minimal, if any, post-tenure peer classroom evaluations and skepticism about student evaluations of teaching. Therefore, often many semesters pass before there is sufficient evidence to persuade a professor or her superiors that the tenured professor's employment status should be reevaluated. Inadequacies in scholarship can be even more difficult to discern, given the common time lag between research and publication, as well as the variations between disciplines in frequency, length, and format of publications.

 

The second distinct challenge faced by higher education caused by the coupling of the abolition of mandatory retirement with the institution of tenure is the prospect of stagnant departments: no new faculty may be hired because there are no vacancies....

The authors' proposed reforms include "expiration" of tenure for professors reaching age 70, while permitting continued employment opportunities on the same evaluative standards as non-tenured faculty. 

Register Now: Webinar on How to Resolve Common Nursing Home Problems

Justice in Aging has announced an upcoming free webinar on How to Resolve Common Nursing Home Problems. Here is a description of the webinar from the Justice in Aging website:

Many common nursing home practices are, in fact, illegal.  In order to receive the best possible quality of care, a resident or resident’s family member should be familiar with the protections of the federal Nursing Home Reform Law, and understand how to use the law effectively.

This free webinar, with Directing Attorney Eric Carlson, will detail the most common problems that crop up—from evictions to excessive medication—and provide practical, clear tips to help family members and advocates navigate solutions.

This webinar complements the re-release of an updated version of our popular guide, 20 Common Nursing Home Problems and How to Resolve Them. Look for it on our website starting on Thursday, July 23, 2015.

The webinar is set for August 4, 2015 at 2 p.m. EDT.  To register, click here.

New Book: Dry Bones in the Valley

With just a few weeks left before law school classes start again, I hope your summer writing and research projects are well underway, giving you time to relax a bit with a good beach read.  I've got one to recommend, too.  It's Dry Bones in the Valley by Tom Bouman. 

The mystery is set in northeastern Pennsylvania, where old time music haunts the air, mixing with the off and on whine of modern day fracking.  One of my favorite authors is Tana French, whose Dublin-based "police procedural mysteries" are an excuse for deep exploration of the human condition. Tom's debut novel is in that tradition, even bringing to bear an Irish spirit or two. I like it best when I can see, hear and "feel" the settings in a novel, as in this passage, where bone-tired Henry Farrell struggles to find balance while carrying out his official duties as the rural township's investigator:

I knew I wouldn't sleep and likely shouldn't with my head the way it was.  Went back inside, got out my fiddle, and rosined the bow....

 

I needed something I could rip into. "Bonaparte's Retreat" found me. . . . By the time I got to the modified part B Copland had made so famous, I had to stop and breathe.  I thought of George Ellis.  Got a piece of paper and curled it into a funnel, poured the rest of my whiskey back into the bottle, and went to bed, but never to sleep.

 

It's not hard to get up if you never go down.  Dawn brought a hint that the weather might get clearer.  With enough pain pills, my head would too.  The eastern sky was bright as a wild rose as I walked stiff-backed from my woodpile with an armload for the stove.  The snow had melted, and my boots left prints on a field that, newly bared, crackled underfoot and shimmered silver; it was a beauty that would not last another ten minutes, so I dropped the firewood and stood and watched the night's frost dissolve into morning mist.  Somewhere in the tree line, a bluebird burbled a tune, but I couldn't pick him out.  It was the first songbird I'd heard that spring....

Strong writing, yes? But, how does this particular book relate to the Elder Law Prof Blog?  Well, as you may have come to expect from me by now, one reason is a central character in the mystery, ol' Aub, may -- or may not -- be too old to remember the truths of what happened.

Another reason is the author is a current Penn State Dickinson law student, and his new book has already earned a 2015 Edgar Award for best first novel and a 2015 Los Angeles Times Book Award for best mystery/thriller. 

Congratulations, Tom! 

Huguette Clark Family Foundation Announces Grant for Study of Elder Exploitation

From the ABA Bifocal, details about the 2015 award of a $50k grant by the Huguette Clark Family Fund for Protection of Elders to develop model civil statutes covering elder financial exploitation:

The project will be managed by the National Center for Victims of Crime under the guidance of Executive Director Mai Fernandez. Lori Stiegel of the American Bar Association Commission on Law and Aging will serve as a consultant on the project. Ms. Stiegel, a senior attorney, joined the ABA Commission in 1989 and has developed and directed its work on elder abuse.

 

“Creating a template of civil statutory provisions for elder financial exploitation is a short- term, innovative project that can have a lasting impact,” Ms. Fernandez said. “It can give attorneys an effective tool for pursuing civil cases and provide victims with the greatest chance to recover stolen assets. We welcome the support of the Huguette Clark Family Fund for Protection of Elders on this important project.”

The news release explains the donor-advised fund was established by the family in 2013 to honor the late Huguette Clark, "who was victimized by her caregivers for more than two decades."  Previous recipients of grants from the Huguette Clark Fund include San Diego State University and the Philadelphia Corporation on Aging.

From SSRN: "Abuse of Elders with Mental Illness" by Prof. James T.R. Jones

Professor James T.R. Jones continues to bring his unique and important perspective to bear in his latest work available on SSRN.  In Abuse of Elders with Mental Illness: Generally an International and Specifically a United States Perspective, he highlights the ways in which various types of mental illness may contribute to unique vulnerability to abuse as the individuals age.  This is a chapter from a new book, International and Comparative Law on the Rights of Older Persons edited by Ralph Ruebner, Teresa Do and Amy Taylor published by Vandeplas Publishing in May 2015. From the SSRN abstract on Professor Jones' chapter:

Elder abuse is a major international problem, and scandal.  It is so important that both the United Nations (“UN”) and the World Health Organization (“WHO”) have focused on it.  Elder abuse occurs in a variety of ways.  It can be physical abuse due to either active injury or passive neglect.  It can be psychological abuse through fear and intimidation.  It can be financial abuse due to theft or fraud.  Abusers can be strangers; healthcare workers, too often in nursing home settings; and spouses, partners, children, grandchildren, or other relatives.  Abusers may be motivated by cruelty, laziness, or greed for quick profit or a premature inheritance.

While all elders can be abused, those with mental illness are particularly vulnerable.  This group can encompass both those with longstanding mental illnesses such as major depression, schizophrenia, and bipolar disorder and those psychiatrically debilitated by age, notably including those who suffer from Alzheimer’s disease or other forms of dementia.  Victims may be living in private residential settings both alone and with family or friends or in institutions such as nursing homes.

This chapter gives a brief overview of elder abuse and then focuses on the victim population of those vulnerable because of mental illness and how they face abuse.  It discusses possible ways to reduce the incidence of abuse of those with psychiatric conditions including, among other things, mandatory abuse reporting and enhanced focus on the problem by government, in particular law enforcement, authorities and primary care and mental health care providers.

The book is another important product from John Marshall Law's summer 2014 forum examining the rights of older persons, leading to the summer' "Chicago Declaration on the Rights of Older Persons" presented before the United Nations' working session on aging.   

 

Social Security & Medicare Trustees Annual Reports

On July 22, 2015 the Social Security Trustees issued its annual report about the Social Security Trust funds. According to the press release, the good news overall is SSA gained a year in solvency. The bad news, the disability insurance trust fund reserve runs out of money next year.

The combined asset reserves of the Old-Age  and Survivors Insurance, and Disability Insurance (OASDI) Trust Funds are  projected to become depleted in 2034, one year later than projected last year,  with 79 percent of benefits payable at that time.  The DI Trust Fund reserve will become depleted in  2016, unchanged from last year’s estimate, with 81 percent of benefits still  payable.

In the press release, Acting Commissioner Carolyn W. Colvin addressed the DI Trust Fund issue:

While the projected depletion date of the combined OASDI trust funds gained a year, the Disability Insurance Trust Fund's projected depletion year remains 2016. I agree with President Obama, we have to keep Social Security strong, protecting its future solvency. President Obama's FY 2016 budget proposes to address this near-term Disability Insurance Trust Fund's reserve depletion. By reallocating a portion of payroll taxes from Old Age Survivors to the Disability Trust Fund - as has been done many times in the past - would have no adverse effect on the solvency of the overall Social Security program....

The full report The 2015 Annual Report of the Board of Trustees of the Federal      Old-Age and Survivors Insurance and Federal Disability Insurance Trust Funds is available as a pdf here.

The Medicare Trustees report was also released on July 22, 2015. The news from Medicare was slightly better, with the trust fund solvency still in place through 2030.

[T]he Medicare Trustees projected that the trust fund that finances Medicare’s hospital insurance coverage will remain solvent until 2030, unchanged from last year, but with an improved long-term outlook from last year's report. Under this year’s projection, the trust fund will remain solvent 13 years longer than the Trustees projected in 2009, before the passage of the Affordable Care Act.

However, the press release notes an anticipated increase in Medicare Part B premiums for next year:

[A]pproximately 70 percent of beneficiaries are expected not to see a premium increase in 2016 because it is projected that there will be no cost-of-living increases in Social Security benefits. The remaining 30 percent of beneficiaries would pay a higher premium based on this projection. These include only individuals who enroll in Part B for the first time in 2016; enrollees who do not receive a Social Security benefit; beneficiaries that are directly billed for their Part B premium; and current enrollees who pay an income related higher premium. Decisions about premium changes will be made in October and depend on a variety of factors.

The full report is available as a PDF here.

Nevada Supreme Court's Commission Undertakes Review of Adult Guardianships

As we have posted in the past, serious concerns have been raised about the role of judicial appointment and review power over adult guardianships in Las Vegas, Clark County, Nevada.  In June, the Nevada Supreme Court appointed a 23-member commission to review and recommend any changes to existing practices; the proceedings before the panel began in July.

The concerns have largely focused on the use of a "private" guardianship company, with judicial oversight alleged to be minimal, perhaps connected to the fact that the company's founder was previously a county administrator and also the former "public guardian" for that county.  Families raised challenges in certain instances to the allocation of financial resources for alleged incapacitated persons, both seniors and other adults with disabilities, including allegedly improper use of the ward's financial resources to pay high administrative fees and attorneys fees. The individual who is a target of family ire, Jared Shafer, has vehemently denied all allegations. 

The commission's recent hearings have been "fiery" and the Clark County area news media are covering the proceedings in detail.  Here are links to recent news coverage, beginning with an editorial that appeared this week in the Las Vegas Journal-Review:  

• LasVegasReviewJournal - Editorial-Clark County Adult Guardianship Program Must Better Protect Wards  7/21/15

• KTNV ABC News-Sparks Fly at First State Guardianship Commission Meeting  7/15/15

• LasVegasReviewJournal-Ex Official of Clark County Guardianships says System "isn’t-bad"  7/15/15

• KTNV ABC News-State Guardianship Commission holds First Meeting  7/14/15

• KTNV ABC News - Newly Formed Guardianship Commission Members Announced  6/26/15

• LasVegasReviewJournal Panel Appointed Improve Clark County Troubled Guardianship System  6/26/15

• KTNV ABC News - Guardianship Judge Allows Daughter into Dads Life  6/25/15

Check Out Aging.gov

As part of the 2015 White House Conference on Aging, HHS posted a blog entry announcing the launch of a new website, aging.gov. According to the blog post from Nora Super, executive director of the WHCOA, "[o]ne of the lessons we learned through this journey is that older Americans, their families and other caregivers sometimes need help navigating the array of federal, state and local supports that are available." The website includes information on healthy aging, retirement security, and elder justice as well as links to various resources. Check it out!

Comparative Law: Practice Guide for Representing Vulnerable Clients in England & Wales

The Law Society of England and Wales recently issued a "Practice Note" for lawyers (or rather, "solicitors") on representing vulnerable clients, including but not limited to clients with dementia.  The guideline reflects research that demonstrated "solicitors need to adapt their practices to identify and meet the needs of vulnerable clients." The guide recognizes that "vulnerable" clients may include a range of persons, and may involve physical or mental capacity issues of varying degrees.

The guide warns that failure to "meet the needs of a vulnerable client" may trigger:

• A discrimination claim or a claim for a failure to make reasonable adjustments under the Equality Act 2010, which could result in sanctions including damages.
• A claim for damages or compensation against you or your firm if you act on the instructions of a client lacking capacity to make relevant decisions, having failed to satisfy yourself as to the client's capacity to instruct you or failing to document your assessment of the client's capacity, leaving the validity of the transaction open to challenge.
• A complaint against you to the Legal Ombudsman, which could result in your name being published and/or you having to pay financial compensation. The ombudsman will refer complaints about discrimination to the SRA.
• Reputational risk - your practice's reputation is inextricably linked to the way in which you treat your clients. Conversely, a practice with an inclusive ethos will not only attract a wider group of clients but also a more diverse workforce bringing benefits to the business.

The guide has a detailed discussion of mental capacity issues, including the attorney's need to consider the following four factors:

Continue reading

Long-Term Care Poll

The Associated Press and the NORC Center for Public Affairs Research are doing a series of polls on Americans' experiences and views of long-term care. As described on the website, the AP-NORC "is undertaking a series of major studies on the public’s experiences with, and opinions and attitudes about, long-term care in the United States."

Demographic projections show the population age 65 and over nearly doubling by the time the last baby boomers have reached 65. Specifically, while seniors made up only 12 percent of the U.S. population in 2000, they are expected to comprise about 22 percent by 2040, with roughly 82 million Americans over the age of 65. How to plan for and finance high quality long-term care will remain a key policy question for lawmakers in the years to come.

The AP-NORC Center, with funding from the SCAN Foundation, is conducting annual nationally representative surveys of Americans age 40 and older to monitor a series of long-term care issues. Future studies will continue to examine awareness of older Americans' understanding of the long-term care system, their perceptions and misperceptions regarding the likelihood of needing long-term care services and the cost of those services, and their attitudes and behaviors regarding planning for long-term care. 

The results from 5 polls, ranging from 2013 to 2015  can be accessed here. The most recent poll, conducted in April-May, 2015, focuses on Long-Term Care in America: Americans’ Outlook and Planning for Future Care which "explores new issues, including person-centered care experiences, the role of private health insurance plans in financing long-term care, and the special challenges faced by those who provide ongoing living assistance to elderly loved ones while also providing financial support to children. At the same time, the survey continues to track long-term care attitudes and planning behaviors." A quick take away summary from this

Five Things You Should Know From The AP-NORC Center’s Long-Term Care Poll Among adults age 40 and older:

• Nearly 1 in 10 are both supporting a child and providing ongoing living assistance for a loved one.
• Only a third say they are very or extremely confident in their ability to pay for ongoing living assistance they may need in the future.
• 54 percent report doing little or no planning for these needs.
• 1 in 5 do not know if private health insurance plans cover ongoing care in a nursing home, and over a quarter do not know if Medicare does.
• Majorities support a variety of policy options that would help Americans finance long-term care.

Book: One-Stop Guide to Dementia

A new book from the U.K. by June Andrews is titled Dementia: The One-Stop Guide, and it offers practical advice for families, professionals, and people living with dementia and Alzheimer's Disease. The Table of Contents suggests the scope:

1. What is dementia?
2. Getting a diagnosis
3. Adjusting to the news: for carers
4. Adjusting to the news: for people with dementia
5. What are friends for?
6. Managing care at home
7. Disturbing Behaviours
8. Your dementia-friendly home
9. What you should expect from the social care system
10. What you should expect from the NHS
11. The dangers of a hospital admission and how to avoid them
12. Some important legal issues
13. What to look for in a care home
14. Advice on complaints and sample letter

I wonder how Chapters  9 and 10 would be written from a U.S. perspective?