Elder Law Prof Blog

Do Tontines Have a Valid Role in Modern Retirement Planning?

Jeff Guo, writing for the Washington Post, recently offered a provocative look at "tontines" as a theoretical retirement planning alternative to "annuities." Apparently these are advocated by some modern legal and financial experts:

Economists have long said that the rational thing to do is to buy an annuity. At retirement age, you could pay an insurance company $100,000 in return for some $5,000-6,000 a year in guaranteed payments until you die. But most people don’t do that. For decades, economists have been trying to figure out why....

 

But there’s also some evidence that people just irrationally dislike annuities. As behavioral economist Richard Thaler wrote in the New York Times: “Rather than viewing an annuity as providing insurance in the event that one lives past 85 or 90, most people seem to consider buying an annuity as a gamble, in which one has to live a certain number of years just to break even.”

 

Here is where tontines come in.  If people irrationally fear annuities because them seem like a gamble on one's own life, history suggests that they irrationally loved tontines because they see tontines as a gamble on other people's lives.

 

A simple modern tontine might look like this:  At retirement, you and a bunch of other people each chip in $20,000 to buy a ton of mutual funds or stocks or whatever.  Every year, the group withdraws a predetermined amount and divides it among the remaining survivors.  You might get a bonus one year, for instance, because Frank and Denise died....

 Want to know more?  Read It's Sleazy, It's Totally Illegal, and Yet It Could Become The Future of Retirement.  Hat tip to David Pearson for sharing this story. 

Mark Your Calendars-Webinar on Social Security Fraud, Similar Fault & Penalties.

The Center for Elder Rights Advocacy (CERA) has announced their upcoming webinar on October 8th, 2015.  The webinar, Social Security Fraud, Similar Fault & Penalties will take place from 2 - 3:30 p.m. eastern.  According to the website

CERA presents a webinar regarding the issue of clients reporting an overpayment involving allegations by Social Security of “fraud or similar fault.” These cases present unique challenges for the hotline attorney. Social Security’s rules on overpayments differ when Social Security finds that the overpayment resulted from “fraud or similar fault.” Normal due process rules for overpayments do not apply, and Social Security can assess additional financial penalties when an administrative determination is made that “fraud or similar fault” is applicable. This webinar will address ways to advise clients who receive a notice from Social Security alleging an overpayment involving “fraud and similar fault,” or who have an overpayment on their record with such a determination. The webinar is particularly directed toward legal hotline advocates and managers.

This webinar addresses:

• A review of rules applicable to “fraud and similar fault” findings.

• A discussion of differences in normal overpayment collection cases vs. fraud cases.

• Giving competent advice to clients faced with an overpayment arising from fraud or similar fault.

To register, click here.

 

Does LegalZoom Compete with Law Firms? Co-Founder Brian Liu Says "No"

Over the weekend I caught an interview with Brian Liu, co-founder of LegalZoom, broadcast on From Scratch, a radio show about "entrepreneurial life."  The host, Jessica Harris, who has an interesting business background of her own, is a very good interviewer, encouraging guests to explore strengths and weaknesses of their ideas, moving from first inspiration to current goals.  She also asks "work/life balance" questions, often getting candid admissions of the private struggles some have to achieve balance.

I was intrigued with Liu's central premise, that his company does not compete, at least not directly, with law firms for business.  Rather, he believes that the vast majority of clients are drawn to his company precisely because they would never go to a lawyer, whether because of cost, unease about attorneys, or perceptions about value. 

It was also interesting to hear that Legal Zoom's first ten clients, accessing the company's on-line document portal on a Friday night, were seeking "living wills."  That fact tells us a lot about underserved legal and health care needs, doesn't it.  

A Village to Age in Place

My dear friend and colleague, Mark Bauer, sent me this article, Why More Seniors Are Forming Their Own 'Villages' . 

The story features the establishment of Beacon Hill Village, where twelve

like-minded neighbors ...  founded the Beacon Hill Village, a local group for independent seniors to meet and support one other through the elder years. By pooling yearly membership fees, members of the village pay for a small staff that helps them find services like drivers, cleaners, and handymen.

In 2002 they formally launched Beacon Hill village as a nonprofit (despite its name, the village doesn't own any property and has no physical housing component), and today count nearly 350 members. Their example has since spurred more than 170 other villages across the country, a growing experiment in how urban seniors can network with their peers—and empower themselves.

Members pay an annual fee which includes access to staff who assist residents in obtaining needed services (the village does not provide "direct services"). There are intangible benefits as well to this model.  The story discusses the sense of community provided by this concept and its benefit to residents.  The concept appears to be gaining fans.

In 2010 a national organization called the Village to Village Network emerged to help found new villages and connect existing ones. ... the network’s St. Louis-based director, said she expects the number of villages to double within two years. The average village has about 100 members, meaning such a rapid expansion would still only reach about 35,000 Americans in all. [The director] ... said lower-income members are underrepresented in the network at large, and that she and her colleagues hope to change that.

As the model expands across 40 states, managers ...  are trying to reconcile exponential growth with an emphasis on neighborhood-scale relationships. Fundraising, too, presents a challenge. By design, membership fees barely cover costs at many villages, including Beacon Hill, so grants and foundations often make up the rest. That presents future villages with a tough choice: commit to the fundraising grind and the uncertainty that comes with it, or raise membership fees and risk shutting out lower-income neighbors.

The Beacon Hill Village website offers this description

Beacon Hill Village, a member-driven organization for Boston residents 50 and over, provides programs and services so members can lead vibrant, active and healthy lives, while living in their own homes and neighborhoods.

Benefits include access to discounted  providers who can help you manage your household, stay active and healthy, and serve your driving needs. Our social and cultural programs are always changing to support member interests.

To learn more about Beacon Hill Village, click here.  The Village to Village Network website describes the village concept as "Aging's new frontier".  The website contains information about the various villages in the U.S., information about how to start a village, an interactive map, information about upcoming conferences, and more.  Click here to learn more about the network.  This is an interesting grass-roots effort that seems to be flourishing.

Student Writing Competition on Disability Law: Entries Due by January 15, 2016

Thomas Jefferson School of Law is hosting its second annual student writing competition focusing on disability law.  The Crane Writing Competition, named in honor of a Thomas Jefferson alum, Jameson Crane III, seeks to encourage student scholarship at the intersection of law and medicine, or law and social services.  A central purpose is to further development of legal rights and protections, and improve the lives of those with disabilities.

Who can enter?  The competition is open to currently enrolled law students, medical students and doctoral candidates in related fields, who attend an accredited graduate program of study in the U.S. 

Deadline for entries?  January 15, 2016 (by midnight, Pacific Standard Time) via electronic submission.  For details see the competition website at Thomas Jefferson School of Law: http://www.tjsl.edu/cranewritingcompetition

What will be your topic? The competition accepts papers on a wide range of topics related to disability law, including legal issues arising from employment, government services and programs, public accommodations, education, higher education, housing and health care.  This should integrate well with students currently taking or who have recently completed a seminar course, thus allowing that all important "double value" for good papers.

Prizes include cash ($1,500 to first place; $1,000 for each of two second place winners), plus potential publication.

My thanks to Professor Susan Bisom-Rapp for sharing news of this year's competition.  She is coordinating the competition and you can send questions directly to Susan. 

Keeping Track of Preventive Services

Trying to keep straight all of the preventive services available to individuals is daunting, but the Kaiser Family Foundation (KFF) has made it easy with their new tool, Preventive Services Tracker.   There are separate trackers for each condition including cancer chronic conditions, immunizations, sexual health, health promotions and preganancy-based.  Organized into easy-to-use charts,, each chart provides information on the required service, the target population, the recommendation, coverage clarifications and effective dates.  The charts also provide links for each required service to explain more details.

You might also want to check out their article on Preventive Services Covered by Private Health Plans Under the Affordable Care Act and the accompanying fact sheet.

 

Does An Inheritance Improve Your Retirement Security?

The Center for Retirement Research at Boston College released an issue brief this month on How Do Inheritances Affect the National Retirement Risk Index?

You might immediately conclude that receiving an inheritance would definitely improve one's retirement security, but the answer really is the classic law school "it depends" answer.  "The bottom line is that, while anything that boosts households’ assets is beneficial to their financial situation, inheritances are not likely to be decisive in determining retirement preparedness for many households."  The report notes that the very wealthy have achieved retirement security so an inheritance won't make much difference.

On the one hand, past research has shown that higher-income households – who are less likely to be unprepared for retirement – are more likely to receive inheritances and to receive larger amounts than their lower-income counterparts. On the other hand, the anticipated inheritance receipts of low- and middle-income households represent a much larger percentage of their current wealth, suggesting that inheritances could potentially be more influential in boosting their retirement security.

A pdf of the report is available here. Key findings from the report are available here.

 

 

Family Caregivers Show Support for Pennsylvania State Assistance at State Capitol

If you have worked in Elder Law long enough, you have probably received a panicked call from a family caregiver who is unprepared for a loved one to be discharged on short notice from hospital care.

On September 22, the Pennsylvania Capitol in Harrisburg was crowded with individuals wearing coordinated colors, showing their support for Pennsylvania Caregivers, including family members who are often struggling with financial and practical challenges in caring for frail elders. Here's a link to a CBS-21-TV news report, with eloquent remarks from Tamesha Keel (also pictured left), who has first-hand experience as a stay-at-home caregiver for her own aging mother.  Tamesha recently joined our law school as Director of Career Services.

AARP helped to rally support for House Bill 1329, the Pennsylvania CARE Act.  The acronym, coined as part of a national campaign by AARP to assist family caregivers, stands for Caregiver Advise, Record and Enable Act.  HB 1329  passed the Pennsylvania House in July 2015 and is now pending in the Pennsylvania Senate.

We have written on this Blog before about pending CARE legislation in other states.  A central AARP-supported goal is to achieve better coordination of aftercare, starting with identification of patient-chosen caregivers who should receive notice in advance of any discharge of the patient from the hospital.  Pennsylvania's version of the CARE Act would require hospitals to give both notice and training, either in person or by video, to such caregivers about how to provide appropriate post-discharge care in the home. 

I'd actually like to see a bit more in Pennsylvania. It is unfortunate that the Pennsylvania CARE Act, at least in its current iteration (Printer's Number 1883), does not go further by requiring written notice, delivered at least a minimum number of hours in advance of the actual discharge. AARP's own model act suggests a minimum of 4 hours, consistent with Medicare rules.

Under Federal Law, Medicare-participating hospitals must deliver advance written notice of a discharge plan, and such notice must explain the patient's rights to appeal an inadequate plan or premature discharge. A timely appeal puts a temporary hold on the discharge. See the Center for Medicare Advocacy's (CMA) summary of key provisions of Medicare law on hospital discharges, applicable even if a patient at the Medicare-certified hospital isn't a Medicare-patient. CMA's outline also suggests some weaknesses of the Medicare notice requirement.

AARP's original CARE Act proposals are important and evidence-based, seeking to improve the patient's prospects for post-hospitalization care through better advance planning. At the same time, there's some irony for me in reading the Pennsylvania legislature's required "fiscal impact" report on HR 1329, as it reports a "0" dollar impact.  That may be true from the Pennsylvania government's cost perspective, but for the hospitals, to do it right, whether in person or by video, training is unlikely to be revenue neutral.  I think we need to talk openly about the costs of providing effective education or training to home caregivers.

If passed by the Senate, Pennsylvania's CARE Act would be not become effective for another 12 months.  The bill further provides for evaluation of the effectiveness of the rules on patient outcomes.   

As is so often true, states are constantly juggling the need for reforms to solve identified problems, with the costs of such reforms.  Perhaps the current version of the Pennsylvania bill reflects some compromises among stakeholders. According to this press statement, the Hospital and Health System Association of Pennsylvania supports the current version of AARP's Pennsylvania CARE Act.

Technology to Age in Place

The Huffington Post blog recently carried a post from Paul H. Irving, of the Milken Institute Center for the Future of Aging and a Distinguished Scholar in Residence at the USC Davis School of Gerontology. Professor Irving opens his blog post, Why Technology Is The Catalyst For A New Era Of Aging In Place, with a reference to the movie, 2001 A Space Odyssey and a mention of a recent report from the Milken Institute with the finding that most older Americans want to age in place at their homes. "Technological advances may be an answer to that challenge."  Here's why he thinks so. Professor Irving writes

The proliferation of the "Internet of things" is in full swing, and older adults will be beneficiaries. Wearables and digital devices monitor health and movement data and enhance safety. Phones, computers and social networks provide connections to family, friends, physicians and caregivers, and almost instant access to a wide range of products and services. Virtual workplaces and distance learning elevate knowledge, productivity and purpose. Thoughtful architecture and computer-assisted design create new-generation homes that are built to accommodate aging, with navigable floors, doorways and rooms, counter heights for standing or sitting, thermostats that are easy to set and entertainment options that would have been unimaginable a generation ago. Older adults can look to technology for help in preparing meals and ensuring that the right medicine is taken at the right time. Tuned to particular needs and preferences, home environments will be customized and personalized as technological innovation brings out the best of both human and machine.

Recognizing as well that local governments play a role in successful aging in place, Professor Irving discusses the need for a community to provide services, transportation, etc. After noting that it will take time to move communities in this direction, he concludes that "[a]ll ages have a stake in this -- and the true beneficiaries of these advances may well be aging generations to come. In the meantime, as concerns about the impacts of technology weigh on some, we should celebrate technology's potential to empower older adults and brighten the future of aging."

Who Is On Line? Report on Internet Use.

Pew Research Center recently issued a new report examining internet use over the past 15 years.  Americans’ Internet Access: 2000-2015 looks at uses of the Internet by different groups, based on age, education, income, gender and other factors. More than half of elders are going on line, according to the findings published in the report ("[o]lder adults have lagged behind younger adults in their adoption, but now a clear majority (58%) of senior citizens uses the internet.") How fast are elders adopting Internet use? This figure puts it in perspective for us: "14% of seniors used the internet in 2000, while 58% do so today. Not until 2012 did more than half of all adults ages 65 and older report using the internet."

This is important information on several levels.  With the push for the use of "elder-tech" to help folks age in place and many government agencies placing information on the web, consider how comfortable digital immigrants are with various technologies.  The internet of things can be wonderful, if one does go online...

Another report from Pew notes that yes, there are those who do not go online!  15% of Americans don’t use the internet. Who are they?   Well if you are reading this blog, we know that you aren't among that 15%.  For our purposes, looking at the data on age and internet use, the report provides that "[s]eniors are the group most likely to say they never go online. About four-in-ten adults ages 65 and older (39%) do not use the internet, compared with only 3% of 18- to 29-year-olds."  As noted above, elders are adopting the internet at a faster rate in the past 15 years.  "Over time, the offline population has been shrinking, and for some groups that change has been especially dramatic. For example, 86% of adults 65 and older did not go online in 2000; today that figure has been cut in half."

 

Financial Exploitation-Robbing the Victim of Retirement too?

I was having a conversation recently with our elder consumer protection fellow at the College of Law about remedies for financial exploitation, so this headlline from US News & World Report Health certainly got my attention. Vanishing Retirement: the Hidden Epidemic of Financial Exploitation focuses on the ramifications of being a victim of financial exploitation.

Many Americans look forward to the day they'll be able to put their weekly routines aside and enjoy retirement. It takes decades to realize this goal – after putting kids through school, paying mortgages, making car payments and covering myriad other expenses, all while saving for a time when Mondays no longer mean a return to work. So much time and effort goes into building the nest egg – the target of so many schemes in recent years as more and more older Americans face financial exploitation.

Once someone’s income starts being depleted, many things have to be given up. Discretionary items fall to the wayside first: vacations, hobbies and leisure activities. One may lose the ability to leave an inheritance. Even basic travel becomes difficult when a person can’t afford auto insurance and fuel. Then, paying for basic utilities becomes a challenge, leading to late fees and threats power will be shut off.

Personal health becomes compromised as medication costs overtake retirement income. Even a person’s ability to stay in his or her own home becomes threatened, due to the loss of sufficient funds to pay for rent, taxes or water.

The article mentions Mr. Mickey Rooney's testimony before the Senate Special Committee on Aging.  I still remember his testimony, especially him noting if it could happen to him, it could happen to others.  The story turns to the lack of recognition that exploitation (or other types of elder abuse) is taking place. The article notes that there are many professionals who could be in a position to spot financial exploitation (such as a bank teller or pharmacist).

It should be a community responsibility to get to know our seniors, engage them regularly​ and recognize and address concerning changes. That’s why, in many states, mandated reporters for elder abuse include any individual, from the physician to the janitor working in a nursing home, who has contact with an older person. This acknowledges we all have the opportunity to identify abuse.

 It is so easy to pass off these clues and say, “It’s not my responsibility,” or “Someone else will take care of it.” But addressing the suspicion of wrongdoing can save a person from Mickey Rooney’s fate.

Wise Words on Cuba, Health Care & Aging

During the last few days, I've been part of a series of conversations (including this podcast from WITF-FM's Smart Talk) about Cuba, with topics magnified by the awareness of Pope Francis visiting in Havana.  I was often asked why I am interested in Cuba, and one person asked if I was "moving away" from a focus on aging.  Actually, my research interests in aging have drawn me to research in Cuba. 

Statistical information on mortality and positive health outcomes in Cuba rival that of so-called "first world" nations. For example, according to World Health Organization reports (WHO 2013), Cuban life expectancy at birth is 77 years for men and 80 years for women. For comparison, WHO reports USA life expectancy at 76 for males and 81 for women.  Costs of health care are quite startling, as Cuba reports $1,828 per capita spending, while the USA reports per capita spending as $9,146.  Of course, one must dig deeper, to look at health care costs as percentages of GDP and other factors, including quality of life in later years.

During an especially vibrant meeting with a group of interested-in-Cuba academics from around central Pennsylvania, I learned from a colleague at Dickinson College in Carlisle, Professor Susan Rose, about a fascinating book tracing the Cuban model for health care to Che Guevara.  It is easy for Americans to focus only on Che as a folk hero (or, for some, anti-hero), remembered for his bearded image and rifle, side-by-side with Fidel and Raul Castro as they fought their way to Havana. Professor Rose recommended to me a 2011 book by her husband Steven Brouwer, Revolutionary Doctors: How Venezuela and Cuba Are Changing the World's Conception of Health Care.  From the book:

Che never lost sight of his original aspiration -- combining the humanitarian mission of medicine with the creation of a just society. When he addressed the Cuban militia on August 19, 1960, a year and a half after the triumph of the revolution, he chose to speak about "Revolutionary Medicine" and the possibility of educating a new kind of doctor....

 

Since then Cuban medicine and health services have been developed in a number of unique and revolutionary ways, but only now, nearly fifty years later, has Che's dream come to full fruition. Today it is literally true that compesinos, along with the children of impoverished working-class and indigenous communities, are becoming doctors and running, "with unreserved enthusiasm, to help their brothers."  

We had a keynote presentation at Penn State's Dickinson Law by a Penn State-Berks professor, Dr. Belen Rodriguez-Mourelo, who writes with great sensitivity in her book Encounters in Exile about the experience of the Cuban diaspora. (Her photo, demonstrating one of the many contrasts in imagery from Havana, is above.) Belen reminded us of the need for great care in our thinking about Cuba, to avoid treating renewed diplomatic relations as merely opening the doors to a new theme park.  Esas son palabras sabias - wise words.

Related articles

Pope Francis arrives in Havana, Cuba ahead of US trip, in pictures

Long Term Care Insurance-Premiums On the Rise

The NY Times ran an article at the beginning of the month about the rising premiums for long term care insurance policies. Managing the Costs of Long-Term Care Insurance notes that New Yorkers with policies are seeing "double-digit increases in the premiums," not the first policy holders to do so.

Insurance regulators in many states have been approving large increases in long-term care premiums for older policies, as it became clear that insurers badly misjudged the pricing on the policies and are losing money on them. In particular, regulators say, insurers overestimated the number of consumers who would let their policies lapse before filing any claims. That means more people are holding on to the policies, raising the likelihood of more claims.

The story notes that some policy holders have received notices of premiums increasing by 48-60% although some lower increases are occurring, especially with changes to the existing policies.  Some companies no longer sell new policies, according to the story, but seek rate increases on existing policies.

Medicare Criminal Investigation? FBI Raids Home of CEO of Nursing Home Company

As we have frequently reported on this Blog (see e.g., here and here and here), the Obama Administration has been aggressive in pursuit of Medicare and Medicaid claims tied to unlawful reimbursement or kickback claims for companies involved in long-term care.  But even given that history, often tied to whistleblowing by current or former employees, it is unusual to see criminal investigations. Thus recent media reports about the FBI raiding the CEO of American Senior Communities was eye-catching, including this report from the Indianapolis Star:  

A cadre of federal agents raided the Carmel home of an executive of a chain of nursing homes Tuesday morning. But the most important question remains unanswered: Why?

The home is owned by James G. Burkhart, the CEO of American Senior Communities, according to Hamilton County property records. FBI investigators also were at the Southside headquarters of American Senior Communities, at 6900 Gray Road, according to reports.

American Senior Communities manages nearly 100 senior care facilities and is one of the largest nursing home management companies in Indiana. Among those are 60 sites, including skilled nursing facilities and assisted living facilities throughout the state, that the company manages under a contract with Marion County’s public health agency.

According to media reports, American Senior Communities (ASC) issued the following press statement following the raid:

"American Senior Communities’ most important priority is to continue to provide excellent care to our patients and residents. ASC has been contacted by the federal government in connection with an investigation into certain individuals or practices. ASC is fully cooperating with the government and is conducting its own review to ascertain the relevant facts. ASC is in compliance with all federal, state and local laws and regulations and will continue to conduct its business in accordance with the highest standards of integrity." 

Stay tuned...(but don't hold your breath).

Related articles

FBI raids residence of nursing home CEO

Raided nursing home company says it's cooperating in probe

Nursing Homes in Prisons

Last semester one of my students wrote a paper on the graying of prisons. So tThis article in Kaiser Health News (KHN), When Prisons Need To Be More Like Nursing Homes  caught my eye. 

Why do we see the graying of prisons? The article references the tough on crime lasts back in the 1980s and 1990s but there is more to it. "In 2013, about 10 percent of the nation’s prison inmates ... were 55 or older. By 2030, the [ACLU] report said, one-third of all inmates will be over 55. At the same time, it is widely accepted that prisoners age faster than the general population because they tend to arrive at prison with more health problems or develop them during incarceration."

The article also discusses the costs of caring for inmates who are elderly and reviews some state responses. For example the Fishkill Prison in New York has a unit for those prisoners with cognitive impairments:

This unit, the first of its kind in the country, is specially designed to meet the needs of inmates with dementia-related conditions. It is part of the state’s medical hub at Fishkill, a medium-security prison 70 miles north of New York City. The 30-bed unit, opened in 2006, is set up to resemble a nursing home more than a prison ward. The walls are painted white and the lights are bright, intended to elevate and stabilize mood. Inmates are allowed to walk freely around the unit (wandering is common for those with dementia or related conditions). The staff includes specially trained physicians, nurses, clinical psychologists, psychiatrists, social workers, and corrections officers. The average age of the unit’s 24 inmates is 62.

Care for prisoners in this unit costs almost twice as much as for those in the prison population outside this unit. In California inmates in "good standing" provide care for inmates who have dementia or other illnesses related to advanced age.

The Gold Coats — the caretakers wear gold-colored jackets — assist patients with daily tasks such as dressing, shaving, showering, and other personal hygiene. They escort patients to the dining hall, and to the doctor. They act as companions, protecting their patients from being bullied, and make sure they get food at meal time. The Gold Coats also lead exercise classes and activities designed to stimulate memory. There are Gold Coat programs at 11 California prisons.

Connecticut tried a completely different approach, basically building a nursing home for prisoners  and others who are "difficult to place" and in need of that level of care.  As noted in the article,that road hasn't been completely smooth.

The town has sued to shut it. Citing zoning restrictions, the town argues that 60 West should be considered a prison/penitentiary, rather than a nursing home. Rocky Hill says it also fears that if nursing-home care for inmates becomes more common, rules on admission will eventually be loosened to allow more dangerous patients to be admitted, potentially endangering neighborhood.

At the same time, the federal government has declined to certify 60 West as Medicaid eligible, because of the unlikely event that an ailing inmate could recover and be returned to prison. Inmates aren’t eligible for Medicaid, and with the prospect, however unlikely, that some patients could once again be incarcerated, the government is arguing that the patients are ineligible, and thus the entire facility is ineligible. The owners are considering an appeal.

Regardless of the approach taken by these 3 states, clearly state correctional officials need to think through the options to provide care for prisons' graying population.

Just fyi the  "[KHN]  story was written by Maura Ewing for The Marshall Project, a nonprofit news organization that covers the U.S. criminal justice system." Some additional stories from the Marshall Project include Do You Age Faster in Prison? , Older Prisoners, Higher Costs , Dying in Attica and Too Old to Commit Crime?

Quote of the Week?

This is the fourth week of the Fall semester at my Law School, and it has been a busy one.  Perhaps there are readers who will share my appreciation for the following observation, from E.O. Wilson:

"We are drowning in information, while starving for wisdom."

Of course there is much more to that thought, from his 1998 book, Consilience: The Unity of Knowledge.  My thanks to H.R. Moody, from the Association for Gerontology in Higher Education, for sharing E.O. Wilson's work.

Stetson's 17th Annual Special Needs Trust Conference

Thinking about attending Stetson's annual Special Needs Trust Conference, October 14-16, 2015?  Early bird registration ends tomorrow. For more information, the agenda and to register, click here.

Ward vs. Incapacitated Person? The Challenges of Labels in Modern Proceedings

Catching up on a bit of reading, I notice that the Uniform Laws Commission has a committee hard at work on drafting proposed revisions to the 1997 Uniform Guardianship and Protective Proceedings Act  (UGPPA).  University of Missouri Law Professor David English is Chair of that committee,  with many good people (and friends) on the working group.

In reviewing their April 2015 Committee Meeting Summary, available here, I was interested to see the following note under the discussion heading about "person-first language:"

Participants engaged in a lively discussion of the desirability of person-first language, and possible person-first terminology.  There was general agreement that the revision should attempt to incorporate person-first language.  For the next meeting, the Reporter [University of Syracuse Law Professor Nina Kohn] will attempt a draft that uses language other than "ward" or "incapacitated" to the extent possible and utilizes person-first language instead (precise wording still to be determined).  The Reporter will also attempt to use a single term that can describe both persons subject to guardianship and those subject to conservatorship.

I've struggled with "labels" in writing and speaking about older adults generally, and incapacitated persons specifically.  It will be interesting to see what the ULC committee recommends on this and even more daunting tasks, including how to better facilitate and promote "person-centered decision-making" and limited guardianships.

Great Infographic on the Pluses and Perils of Joint Accounts

I always spend some time in my elder law class discussing different methods of property ownership including the use of joint accounts.  Many of my students may themselves be named jointly with someone on a bank account.  In working through the pros and cons of the use of joint accounts, I strive for my students to understand why some clients may title their property jointly and the implications of doing so. I was please to find this easy to understand infographic on joint accounts.  Published by AARP and the American Bankers Association Foundation,  Look Before You Leap. Is a Joint Account Right for Me? packs a significant amount of information in one page. The infographic covers the reasons people choose joint accounts, what one needs to know before making the choice, and alternatives to joint accounts. 

It's a great tool for our classes!

BTW, the ABAF also has a campaign on educating elders and caregivers, Safe Banking for Seniors. You can sign up for email announcements for updates, etc. about the campaign.

New Mexico Appeals Court: No Physician Aid-in-Dying

The New Mexico Court of Appeals issued its opinion in August in the case of Morris, et al v.Brandenburg. The trial court had previously ruled that the statute in question, N.M. § 30-2-4 was unconstitutional.  The appellate court determined that "[t]he question presented is whether this statute may constitutionally be applied to criminalize a willing physician's act of providing a lethal dose of a prescribed medication at the request of a mentally competent, terminally ill patient who wishes a peaceful end of life (aid in dying) as an alternative to one potentially marked by suffering, pain, and/or the loss of autonomy and dignity." id. at ¶ (1). The trial court had found a fundamental liberty interest to have physician aid-in-dying under the state constitution, but the appellate court disagreed. id.

Aid in dying, the medical concept of dying with autonomy and dignity, is a relatively recent human phenomena and deserves appropriate public evaluation and consideration. However, as a new legal consideration, it must also be carefully weighed against longstanding societal principles such as preventing a person from taking the life of another; preventing suicide; preventing assisted suicide; promoting the integrity, healing, and life preserving principles of the medical profession; protecting vulnerable groups from unwanted pressure to considering aid in dying as the best alternative to other medical options; and promoting human life where aid in dying is not the appropriate medical option despite a patient's request for its use... The recent advances in life-prolonging medical care and the public acceptance of aid in dying in some states has not diminished the other longstanding societal principles and concerns regarding intentional killing, the dying process, the preservation of life, and the basic life saving principles embedded in the medical profession.

Id. at ¶ 37 (citations omitted). The appellate court goes on to note that the dying process itself and the resulting death are not included in the state's constitutional enumerated rights and " can only qualify as inferences that might exist within the categories of liberty or happiness." id. at ¶ 41. The court also had concerns regarding the narrow application of the right as it would only apply to certain citizens who are terminally ill, death within a certain time, etc.  id. at ¶¶ 45-47 After reviewing the remaining arguments of the plaintiffs, the majority ruled. 

We reverse the district court's ruling that aid in dying is a fundamental liberty interest under the New Mexico Constitution. Accordingly, we reverse the district court's order permanently enjoining the State from enforcing Section 30-2-4. We affirm the district court's determination that, for statutory construction purposes, Section 30-2-4 prohibits aid in dying. Separate from the Concurring Opinion, I would also remand this case to the district court to make any further findings it deems necessary, to conduct both an intermediate scrutiny and rational basis review of Section 30-2-4, as well as dispose of Plaintiffs' remaining claims.

Id.  at ¶ 54. The opinion includes concurring and dissenting opinions.