Elder Law Prof Blog

Don't Fall for this (or any other) Scam

The Social Security Administration posted on its blog about a Social Security scam involving phishing.  According to the post, the scam focuses on "protecting" yourself from identity theft and financial fraud.  "The subject line says “Get Protected,” and the email talks about new features from the Social Security Administration (SSA) that can help taxpayers monitor their credit reports, and know about unauthorized use of their Social Security number. It even cites the IRS and the official-sounding “S.A.F.E Act 2015.” It sounds real, but it’s all made up." The post offers a couple of tips to suss out a scam. If the email ended up in your junk folder, it could be a scam. Also, mouse over the URL and see if it is really from SSA, or from a .com site instead.

Always remember-if in doubt, don't click on the link and don't provide personal information.

Radio Interview on Filial Responsibility Laws in the U.S. (by South Korea)

Following up on my post last week about the surge of interest in filial responsibility laws in South Korea, including the alternative concept, "filial duty contracts," recently I was interviewed as part of a English-language radio news broadcast in South Korea.  The host asked for a comparative, international perspective. I thought the host's reaction to hearing about U.S. cases was interesting -- suggesting that lawyers (or perhaps law professors) aren't sufficiently tuned into the family emotions involved in the topic!   Here's the podcast (about 10 minutes) from the live radio program.  

Home Care & The Fair Labor Standards Act

Earlier this month, CMS published a CMCS information bulletin with the subject, Options for Medicaid Payments in the Implementation of the Fair Labor Standards Act Regulation Changes .  This is a re-release of the informational bulletin originally published in early July of 2014. Why? Because this informational bulletin is intended 

to assist states in understanding how they may ament their current 1915(c) waivers and state plan (1905(a), 1915(i), 1915(j), and 1915(k)) personal care services to implement Fair Labor Standards Act (FLSA) changes in a timely way, and in understanding Medicaid reimbursement options that will enable them to account for the cost of overtime and travel time during the workday that are likely compensable as the result of the DOL home care final rule.

CMS stands ready to help by providing "technical assistance to states seeking to adjust Medicaid reimbursement and other program policies to appropriately support FLSA compliance in home and community based LTSS. Additionally, DOL is continuing to provide extensive, individualized technical assistance." The focus of the bulletin is on home-care services that are use "self-directed service options" but  the bulletin also notes "that FLSA implications also exist for services furnished through agency-delivered models."

 

If The Issue Is Accountability, Which Is Better? Power of Attorney or Guardianship?

Here are two recent appellate cases that offer views on issues of "accountability" by surrogate-decision makers.  

In the case of In re Guardianship of Mueller (Nebraska Court of Appeals, December 8, 2015), an issue was whether the 94-year-old matriarch of the family, who "suffered from moderate to severe Alzheimer's disease and dementia and resided in a skilled nursing facility," needed a "guardian."  On the one hand, her widowed daughter-in-law held "powers of attorney" for both health care and asset management, and, as a "minority shareholder" and resident at Mue-Cow Farms, she argued she was capable of making all necessary decisions for her mother-in-law.  She took the position that appointment of another family member as a guardian was unnecessary and further, that allowing that person to sell Mue-Cow Farms would fail to preserve her mother-in-law's estate plan in which she had expressly devised the farm property, after her death, to the daughter-in-law.  

The court, however, credited the testimony of a guardian-ad-litem (GAL), who expressed concern over the history of finances during the time that the daughter-in-law and the mother-in-law lived together on the farm, and further, expressing concerns over the daughter-in-law's plans to return her mother-in-law to the farm, even after a fall that had caused a broken hip and inability to climb stairs.  Ultimately, the Court of Appeals affirmed the lower court's appointment of the biological daughter as the guardian and conservator, with full powers, as better able to serve the best interest of their elder.  

Despite rejection of the POA as evidence of the mother's preference for a guardian,  the court concluded that it was "error for the county court to authorize [the daughter/guardian] to sell the Mue-Cow property.... There was ample property in [the mother's] estate that could have been sold to adequately fund [her] care for a number of years without invading specifically devised property." 

In an Indiana Court of Appeals case decided January 12, 2016, the issue was whether one son had standing to request and receive an accounting by his brother, who, as agent under a POA, was handling his mother's finances under a Power of Attorney.  In 2012, Indiana had broadened the statutory authority for those who could request such an accounting, but the lower court had denied application of that accounting to POAs created prior to the effective date of the statute.  The appellate court reversed:

The 2012 amendment did confer a substantive right to the children of a principal, the right to request and receive an accounting from the attorney in fact. Such right does apply prospectively in that the child of a principal only has the statutory right to request an accounting on or after July 1, 2012, but not prior to that date. The effective date of the powers of attorney are not relevant to who may make a request and receive an accounting, as only the class of persons who may request and receive an accounting, and therefore have a right to an accounting, has changed as a result of the statutory amendments to Indiana Code section 30-5-6-4. Therefore, that is the right that is subject to prospective application, not the date the powers of attorney were created

These cases demonstrate that courts have key roles in mandating accountability for surrogate decision-makers, whether under guardianships or powers of attorney.

Learning for Learning's Sake?

Isn't that a great thought. Students learning for thee sake of learning!  The New York Times ran at article on January 1, 2016 on that exact topic. Older Students Learn for the Sake of Learning explains those "the 150,000 men and women nationally who participate each year at more than 119 Osher Lifelong Learning Institutes. The institutes, affiliated mostly with colleges and universities, are among the best-known advanced adult educational programs in the country. Along with an array of other such programs fitting under the “lifelong learning” umbrella, they tend to attract educated, passionate people who are seeking intellectual and social stimulation among peers who often become new friends."

The article distinguishes this type of learning from the more traditional adult ed classes, since "lifelong learning programs position themselves as communities where the participants not only take on challenging subjects but also seek to engage more deeply with their fellow students."  The article runs through the research on the advantages to ongoing education to a sharp brain.

Keep on learning everyone!

More on the Right to Die

Mother Jones, in the January/February 2016 issue, ran a story, My Right to Die: Assisted Suicide, My Family, and Me by Kevin Drum. This story starts with a personalized account of an individual who was terminally ill but didn't have the option of physician-aided dying.  The story provides an in-depth look at the laws of physician-aided dying and the arguments, both for and against.  The article then becomes even more personal when the author reveals his diagnosis of cancer for which there is no cure.  He reviews his options for the future and remarks that the California law on physician-aided dying now provides an option he didn't have until the law was signed.

The author speculates: is "assisted suicide is the next big civil rights battle? The fact that four states have approved assisted suicide in just the past seven years suggests momentum may finally be reaching critical mass. What's more, if Gallup's polling is to be believed, the word "suicide" has finally lost its shock value. Still, legislation continues to fail more often than it passes, even in blue states like Massachusetts and Connecticut. Right now, it's just too early to tell." The article can serve as a good foundation for a classroom discussion.

Presidential Politics: Is There an "Aging Rust Belt" Effect Ahead?

As we (finally) get to the early primary and caucus stages of this Presidential election year, I'm struck by how much the pundits are talking about changing demographics, including the potential impact of growing diversity of race and national origin among potential voters.  At the same time, it will be interesting to see whether "aging" of the population, including the growing share of older voters, will play an equally significant role.  At least one early evaluation of swing state voting compares growing diversity of the Sun Belt states with aging in Rust Belt states:

Di­versity is also spread­ing, but much more slowly, in the six Rust Belt swing states (Iowa, Michigan, New Hamp­shire, Ohio, Pennsylvania, and Wis­con­sin). Com­pared with 2008, the mod­el pro­jects that by 2016 the white eli­gible voter share will drop in a range from Pennsylvania at the high end (3.1 per­cent­age points), to New Hamp­shire at the low end (1.2 points). Be­hind strong Obama turnout ef­forts, from 2008 to 2012, minor­it­ies in Ohio and Pennsylvania grew even faster as a share of ac­tu­al voters than as eli­gible voters. That helped Obama win Ohio in 2012, des­pite at­tract­ing ex­actly the same share of the white vote (41 per­cent) that Gore did and less than Kerry did (44 per­cent) when each lost the state in 2000 and 2004 re­spect­ively. (Obama also held Pennsylvania, des­pite win­ning con­sid­er­ably less of the white vote than either Gore or Kerry, who both car­ried the state.) But, over­all, ra­cial change is not nearly as big a factor in these brawny battle­grounds as in the Sun Belt swing states.

 

In those crit­ic­al Rust Belt states, the key demo­graph­ic change is the one cap­tured in the second chart: the pop­u­la­tion’s aging. In all six Rust Belt swing states, the mod­el pro­jects that adults 50 and older will con­sti­tute at least 45 per­cent of eli­gible voters by 2016; for each state ex­cept Pennsylvania, that would be an in­crease of at least 2.3 per­cent­age points since 2008. New Hamp­shire leads the list with an in­crease of 3.6 per­cent­age points in the over-50 share of eli­gible voters; the mod­el pro­jects Pennsylvania, which star­ted with the old­est eli­gible pop­u­la­tion, to in­crease the least at 1.8 per­cent­age points. (The Sun Belt swing states are also aging, but gen­er­ally not quite as fast as the Rust Belt battle­grounds.)

For more charts and analysis of historical facts and trends, read The Most Valuable Voters of 2016 by Robert Brownstein for the National Journal (February 2015).

My own sense is there is at least one major commonality among many older voters and younger non-white voters:  fear that they haven't earned enough -- or won't be able to earn enough --  to survive or thrive in a constricted economy.  Is it easier for the candidates to talk about terrorism or national security than it is to talk about social security through the lifespan?  

Stopping Alzheimer's?

Earlier this month I read an article about the role of brain inflammation in Alzheimer's.  Scientists May Have Just Discovered the Key to Halting Alzheimer's  was published on January 11, 2016 in Huffington Post Science.  "Researchers at the University of Southampton in England conducted a series of experiments showing a chemical that reduces neuroinflammation may have the potential to protect against the memory and behavioral changes associated with the disease that affects roughly 5.3 million Americans."  The article explains the research and notes that "[a]n overactive immune system can result in chronic inflammation, which previous research has linked to Alzheimer's. These new findings makes it increasingly apparent that inflammation is not a result of Alzheimer's as much as a key driver of the disease." Further research will be taking place.  Exciting!

Science, Elder Law and Genetic Counseling...

I think I might like winter better, if it always happened "conveniently" and with plenty of notice, as did Saturday's snow in Pennsylvania.  For once, I was prepared to be at home, with a stack of good reading materials for catching up when the joys of house-cleaning and snow shoveling faded. 

I am intrigued by the Fall 2015 issue of the NAELA Journal that focuses on how advances in genetic testing and medicine may be reflected in the roles of lawyers who specialize in elder and special needs counseling.  A leading article in the issue introduces the three primary uses of modern genetic testing -- for diagnosis of disease, for determination of carrier status, and for predictive testing -- while reminding us there are limits to each function.  In looking at age-related issues, the authors note:

 

Genetic testing is beginning to reveal information regarding susceptibilities to the dis­eases associated with old age: Alzheimer’s disease, Parkinson’s disease, diabetes, and cancer. Genetic test results showing a higher risk of such diseases can result in a cascade of conse­quences. Francis Collins, mentioned at the beginning of this article, responded to his test results thoughtfully by making lifestyle changes to reduce the probability that the increased genetic risk would be expressed in actual disease. It is important to note that, for some con­ditions, lifestyle factors’ influence on disease risk is understood; however, for many of the conditions that affect seniors, this influence is not yet known.

 

Other reactions to a high-risk test result may be more aggressive than diet and exer­cise changes. A well-publicized example is Angelina Jolie’s bilateral mastectomy. She was cancer-free but learned that she carries a BRCA1 mutation, which increases her lifetime risk for breast and ovarian cancer. She chose to undergo prophylactic mastectomy to reduce her breast cancer risk, whereas other women choose to increase breast cancer surveillance, such as undergoing more mammograms and breast MRIs. Both options are available to women who carry a BRCA1/2 mutation.

 

Will those found to be at elevated risk for more complex conditions such as Alzheimer’s disease or Parkinson’s disease make premature life choices, such as early retirement or mar­riage, based on perceived risk? Earlier in this article it is explained that an individual’s geno­type rarely determines his or her medical destiny. For example, many people with a higher genetic risk for Alzheimer’s disease will not actually develop it, while many with no apparent higher genetic risk will. Is the risk that members of the general public will misunderstand and overreact to the results of a genetic test sufficient reason to prevent them from obtaining the information gleaned from such a test? Should we be ensuring that those undergoing genetic testing are aware of its benefits and limitations through individualized genetic counseling? This, of course, presents its own challenges of access and availability.

In reading this, it seems likely that lawyers may encounter complicated issues of confidentiality, especially when counseling "partnered" clients, while also increasing the significance of long-range financial planning and assets management.  

For more, read Genetic Testing and Counseling Primer for Elder Law and Special Needs Planning Attorneys, by CELA Gregory Wilcox  and Rachel Koff, Licensed Certified Genetic Counselor. 

Natural Disasters Know No Season

It seems that no matter the season, there is some type of natural disaster that occurs (example-tornados the week before last in Florida, a major snow storm in the Northeast a few days ago).  We all need to be prepared for natural disasters, and it is important to realize that elders may be disproportionally affected in some cases.  The New York Times on January 8, 2016 ran an article on the importance of being prepared. "Natural disasters, which appear to be on the rise in part because of climate change, are especially hard for older adults. They are particularly vulnerable because many have chronic illnesses that are worsened during the heat of a fire or the high water of a flood. And many are understandably reluctant to leave homes that hold so much history."  The article references studies that reveal a disproportionate number of some natural disasters have been elders. 

One key to survival, as the article notes, is advance planning.  A number of resources, state specific or national, are available online to help prepare.  Every year in Florida, the media alerts us to the approach of hurricane season and we purchase our hurricane supplies and prepare.  Friends in California have told me about their earthquake kits.  The article notes that local governments may have registries for those with special needs or may need assistance in an evacuation.   Preparing in advance for shelter for pets in emergency evacuations is important, since not all emergency shelters take 4-footed family members. The article notes there is even an app for help when disaster strikes!

The article has some good ideas that are valuable to all of us. Here are just a few of my favorite websites for information.

Red Cross Disaster Preparedness for Seniors by Seniors.

Ready.gov  Seniors

CDC  Personal Preparedness for Older Adults and their Caregivers

FEMA  Elderly Special Needs Plans To Be Ready for Disaster

AoA  Keeping Older Americans and People with Disabilities Safe and Healthy During Emergencies

 

Filial Friday: South Korea Recognizes "Filial Duty Contracts"

In South Korea, "filial duty" is apparently a hot topic, as reflected by a recent Korean Supreme Court ruling and a public survey.  And it is more than a theoretical concept or moral obligation, with "contract" law principles now coming into play.  As reported in English by the Korea Herald, published on December 30, 2015:

More than 75 percent of South Koreans surveyed by a local pollster think “filial duty contracts” -- a legal document that makes it mandatory for all grown children to financially and emotionally care for their aged parents -- are necessary should they receive any gifts such as real estate or stocks from them.

The survey results were released two days after the Supreme Court ruled in favor of an elderly father who filed a suit against his son, who, in spite of signing a filial duty contract, did not care for his ill mother as promised after receiving a personal estate. The court acknowledged the legality of the document and ruled the son must return the property to his father, as the property was gifted in exchange for his support.

Although "filial duty" has long been considered an important, traditional value in Korea, "the nation's changing family structure" and high costs for housing and education apparently have made it more difficult for elderly Koreans to rely on their children for voluntary care.  The survey, of 567 Koreans, showed strong support for greater enforcement of "filial duty contracts."  

Under the current law, a donor may rescind a gift contract if the recipient committed an act of crime against the donor, or if “the beneficiary is obliged to support the donor but does not do so.” However, the law also states that rescinding a gift contract does not have any effect once the gift has already been given to the beneficiary.

For more details, including a report on a pending bill that would give "Korean parents the right to sue their children in case of mistreatment and to ask them to return any gifts," read "77% of South Koreans See Need for 'Filial Duty Contracts.'" 

A Closer Look at Goal Setting in Public Health: The Cuban Experience

I spent the first week of 2016 in Cuba with Dickinson Law students -- and it was an energizing experience (even as I fear I will never catch up on my other responsibilities this semester!).  The students' studies in Cuba were wide-ranging, with opportunities to engage with experienced legal professionals while discussing historic principles and modern plans for Cuba, including a close look at laws adopted just in the last two years that will affect economic development, international investment in Cuba, employment, property ownership and taxes.  For a full report on the course coverage and special events (including great photos by the students), see "Experience Beyond the Classroom Proves Invaluable."

For me, it especially interesting to hear directly about Cuba's health care system, which is highly regarded throughout the world, especially for its success in primary care for pregnant women.  From Dr. Yoandra Adelá (depicted left) we learned core principles that guide Cuba's plans for health care, including a goal of universal coverage, free and equally accessible to all Cubans.

Our professors freely admitted challenges that Cuba faces in trying to meet health care goals in a struggling economy, with international partners important in order for Cuba to maintain access to medicines, technology and even credit needed to improve buildings and make necessary repairs at treatment sites.

Since 1985, Cuba has recognized a medical specialization in "comprehensive care" -- which emphasizes preventative medicine and community-based contacts.  We saw this in action, where doctors from a local polyclinic spend half of their appointment days meeting patients in the office and half of those days seeing patients in their homes.   We learned that for the elderly, many of the problems addressed by Cuban health care professionals mirror what is seen in the U.S., with hypertension and diabetes being significant health care risks; on the other hand, Cuba reports low incidence of infectious disease in their population.

I still need to learn more -- especially as I did not have time to fully explore "elder care," which reportedly includes some 380 hogares de ancianos and casas de abuelos, in addition to primary care offices that specialize in geriatric medicine. To the right is Corey Kysor, one of our law students visiting a Havana area polyclinic, the middle level of three components of health care available to all Cubans.  (And yes, our law school does plan to return to Cuba in the next academic year to offer additional opportunities for comparative legal studies.)

If you would like to read more, from the perspective of a law student who had already experienced foreign legal systems such as China before traveling for her first time to Cuba this January, read Joy Lee's "Inside Cuban Law and Culture: A Law Student's Perspective."  

JAMA Current Issue Death, Dying and End of Life

The January 19, 2016 issue of the Journal of the American Medical Association (JAMA) is a theme issue on Death, Dying and End of Life.  There are 15 articles and opinion pieces on a range of topics, including several on physician-aided dying, as well as an audio of the editors' summary.  Check it out!

Teaching an Elder Law Seminar This Semester?

Are you teaching an elder law this semester?  If so, and your students are interested in sample papers to help them think about approach, scope, organization and how to provide support for their thesis statements, I've found this batch of articles helpful, even though they are now almost 10 years "old."  

The nine short articles by law students (including two former students from my own law school) were published in a student journal following a competition sponsored by the National Academy of Elder Law Attorney (NAELA) and are nicely introduced by my Blogging collaborator, Becky Morgan.  They demonstrate an array of topics and writing styles, and thus are useful to discuss in a writing and research class. I'm sorry that the NAELA competition is no longer available to students, as was a very nice way for students to get further mileage from their classroom research on elder law topics, and helped encourage them to revise and polish drafts!

University of California-San Diego Rebuilds its Alzheimer's Research Program

Last summer, I blogged on news about the University of Southern California's controversial challenge to University of California-San Diego's position in Alzheimer's research, including USC's successful lure of top researchers (and their money).  Lawsuits were unsuccessful in blocking the move, an attempt to avoid the loss of key research dollars.  

However, the latest news is that UC-San Diego has "recruited a prominent Canadian neurologist to rebuild and lead" its Alzheimer's disease research program.  From the news coverage:

Dr. Howard Feldman comes to La Jolla from the University of British Columbia in Vancouver, where he achieved international acclaim for his examination of dementia and for carrying out large-scale drug trials. A science journal nicknamed him the “master of dementia.” He’s also known as a rainmaker for his ability to raise money for research.

 

Feldman, 61, is receiving a recruitment package that includes $10 million to set up his laboratory and support his research program. His annual salary is $390,000.

Let's hope this means that there are now two stronger sites for research into diagnosis, treatment and cure for this dreaded disease.  

Ageism in Social Media?

I recently ran into an article published in December of 2015 that I thought was interesting.  Fighting Ageism in the Twitter Era (Getting Old Isn't All That Bad) was published in the Arizona Republic/New America Media.  The December article followed up a late November opinion piece titled, Valdez: Getting old isn't all that bad by Linda Valdez that opened with this:

The baby boomers, AKA the nation’s silver tsunami, had better pay as much attention to changing attitudes about aging as they did to shaking up all those previous social norms.

In our culture, old things get replaced with something nice and new. Like the latest smart phone.

Apply the concept to people, and it’s called ageism.

It’s as current as Twitter.

A team of researchers at Oregon State University took a look at tweets about people with Alzheimer’s disease and found ridicule, stigma and stereotypes.

In the December article, the author, reporting on the Gerontological Society of America's annual scientific meeting in November, was in attendance as a Journalist in Aging Fellowship.  After generally reviewing topics covered in the conference, the author notes that the Boomers wish to age in place, yet many may not be physically able to do so and blame themselves for their own inability to do so.  Enter negative thoughts about aging:

Meanwhile, society does its best to accent the negative.

Asked to characterize the aging, some people recorded during on-the-street interviews dredged up cliches about spry retirees on vacation, but most talked about decline, disease, dependency.

“Society isn’t betting on them,” said one man.

These interviews were done as a result of a project with 8 of the national aging organizations, who were looking for metaphors for aging because how we look at something is crucial to how we apply information about it.  The article concludes

[T]he way information is framed has an impact on how people use the information, which should come as no surprise to those who reframed cultural norms about race, gender, sex, the environment and entertainment.

The baby boomers have a lot at stake, and that includes [the author] me. I’m no fan of euphemisms, but I’m all for promoting a fine-wine view of life. It should get better with age. We should feel better about aging.

If some creative wordsmithing and mass marketing helps our society recognize that aging doesn’t diminish value or humanity, it would be a real contribution to our collective understanding of who we boomers are.

Turning to the researchers at Oregon State U who did the analysis of tweets, their article, Portrayal of Alzheimer's Disease on Twitter is available in volume 55 of the Gerontologist, the publication of the Gerontological Society of America.

The Rising Impact of Unpartnered Older Adults and "Gray Divorce"

Recently, several attorneys pointed me to an interesting report on "Marital Biography, Social Security Receipt and Poverty," by sociology researchers at Bowling Green State University.  The abstract explains:

Increasingly, older adults are unmarried, which could mean a larger share is at risk of economic disadvantage. Using data from the 2010 Health and Retirement Study, we chart the diverse range of marital biographies, capturing marital sequences and timing, of adults who are age eligible for Social Security and examine three indicators of economic well-being: Social Security receipt, Social Security benefit levels, and poverty status. . . . Among singles, economic well-being varies by marital biography and gender. Gray divorced and never-married women face considerable economic insecurity.

From the body of body of the study more information emerges about the phenomenon of "gray divorce," those occurring after age 50, which has "doubled since 1990 even though the overall U.S. divorce rate remains stable."  The authors continue (with citations omitted here): 

The timing of marital dissolution in the adult life course may have implications for postdivorce adjustment, including late life economic well-being. Divorce tends to be more normative at younger ages whereas widowhood becomes increasingly likely with age. From a life course perspective, the timing of an event can magnify or reduce its influence on well-being. Off-time events are associated with poorer outcomes than on-time events. Thus, divorce prior to age 50 may be less detrimental to economic well-being than divorce after age 50. Those who divorce earlier in adulthood have more time to recoup the financial losses divorce usually entails. In contrast, those who divorce later have fewer years of working life remaining and may not be able to fully recover economically from a gray divorce. Indeed, gray divorce appears to diminish wealth more than an earlier divorce. Similarly, widowhood prior to age 50 is an off-time event that is not a normative life course experience. Young widows are more likely to become poor compared with older widows. Couples tend to be overly optimistic about the likelihood they both will survive to an old age. Thus they may not have adequately planned for this unlikely possibility and ultimately may be less able to recover fully.

Ultimately, from their research it appears that comparatively higher rates of poverty are associated with unmarried status as you age, but, particularly for women, late-in-life divorce may further increase the likelihood of poverty.

Living Closer to Mom?

How close do you live to your mom? If you are within 20 minutes, then you are a typical American.  The New York Times ran a story on December 23, 2015 that discusses how many miles away adult  kids live from their moms. The Typical American Lives Only 18 Miles From Mom explains that     "[t]he typical adult lives only 18 miles from his or her mother, according to an Upshot analysis of data from a comprehensive survey of older Americans. Over the last few decades, Americans have become less mobile, and most adults – especially those with less education or lower incomes — do not venture far from their hometowns."  The article discusses the importance of physical proximity of families when an elder needs caregiving. "Over all, the median distance Americans live from their mother is 18 miles, and only 20 percent live more than a couple hours’ drive from their parents. (Researchers often study the distance from mothers because they are more likely to be caregivers and to live longer than men.)"

The article discusses the factors that impact the distance the kids live from mom, including education, geographic location, marital status and culture. The article notes that caregiving goes both ways, with elders providing child care for their grandchildren.  The article also covers the challenges of caregiving, and the future needs for caregiving.

Do Lawyers "Hear" their Older Clients?

Professor Debra Lyn Bassett at Southwestern Law School has an interesting new article, Silencing Our Elders, in a recent issue of the Nevada Law Journal.  She begins:

We do not think much about silence, perhaps especially in law school and as lawyers. In the law, we tend to ignore silence, typically referring expressly to silence in one of two contexts: (1) the right to remain silent (in the criminal law context) and (2) silence as constituting consent (in the contract law context).  Silence is an overlooked area with tremendous potential for facilitating the practice of law and helping clients.

From this broad introduction to the potential significance of silence, in the second half of her article Professor Bassett focuses more specifically on older clients, and the subtle ways in which "age bias" can influence an attorney-client relationship. For example, she writes:

When lawyers quickly fill in silences by asking additional questions, one risk is that the lawyer’s questions may reflect inaccurate assumptions or even stereotypes. Suppose, for example, that a client seeks legal advice about drafting a will, and the client briefly stops talking. Uncomfortable with the silence, the lawyer rushes in to fill that silence by asking, “Do you want your children to receive everything?” That question reflects an assumption—a common assumption, but an assumption nonetheless—that parents always want to bequeath everything to their children. Perhaps the client indeed does want to leave everything to his or her children, but the lawyer’s preemptive question may cause the client to feel uncomfortable expressing a contrary desire.

Good fuel for discussion in a variety of courses.  

My thanks to Dickinson Law Professor Laurel Terry for sending the link to this article.

Revisiting the Saga of Dr. Gerald Klooster

My Blogging colleague Becky Morgan suggested that our faculty readers share hot topics or videos they are using in Elder Law courses.  Along that line, I'm using an excerpt from a Dateline NBC program (archived in part by NBC, although special arrangements appear to be required for copies) from several years ago, that provides a dramatic introduction to a number of age-related legal issues. 

The program tells the story of Dr. Gerald Klooster and his family.  In 1995, friends of the family became concerned when they learned that Dr. Klooster, once a practicing obstetrician in California who was forced to retire early from his practice as the result of a diagnosis of Alzheimer's, had an appointment with his wife to meet with Dr. Kevorkian, of "assisted suicide" fame.  One son, also a physician, became so concerned that he made the decision to whisk away his father to the son's own state of Michigan, for safeguarding.  That triggered a two-state custody battle, initially resulting in inconsistent court rulings.  Eventually, however, Dr. Klooster was returned to California where he resumed living with his wife, Ruth, and regularly saw his other children and grandchildren.  The NBC program shows Gerald swimming and interacting with his family members.

One night, however, emergency personnel were summoned to the Klooster home, when it was learned that Gerald had ingested as many as 60 sleeping pills and alcohol in the middle of the night. Ruth is the one who called the emergency personnel, but then also reportedly directed them not to provide certain life-saving treatments.  She was relying on her husband's pre-dementia living will.

Gerald Klooster did survive, and the NBC program provides fascinating interviews with family members, and shows the couple sitting hand-in-hand.  Did he knowingly attempt to take his own life? Did he do so because he was a physician and, as his wife put it, "didn't want to live the disease through?"  Or did Alzheimer's prevent him from having the capacity to make any such decision?  The saga was also detailed in a New York Times article, linked here.

Lots of food for discussion with this story.  It introduces the limitations of advance directives or living wills; it encourages discussion about Alzheimer's as a "real" phenomenon; it provides a stage for discussing powers of attorney, guardianships and family caregiver roles, just to name a few topics still "hot" today.  Plus, it offers historical perspective on recent changes in laws, including uniform laws on jurisdiction for protective proceedings for adults, and assisted-suicide laws, including the California law that became effective on January 1 of this year.

The Klooster Saga lasts several years beyond the NBC Dateline story itself, as Dr. Klooster did live with his wife in California for additional  years, before spending his last 18 months in a nursing center. According to this San Francisco news report, he passed away at the age of 72 of natural causes, but, sadly, the break in the relationship between his physician-son and the rest of the family had not healed.