Elder Law Prof Blog

Get Your ZZZZs

We all know how important it is to get the appropriate amount of sleep. But it may be more important than we realize.  According to an NPR story on January 4, 2016, Lack Of Deep Sleep May Set The Stage For Alzheimer's, we need that deep sleep to help us fend off Alzheimer's.  The story focuses on the work of the Oregon Health & Science University scientists. One of the scientists explains why this deep sleep is so important to us: "[t]he brain appears to clear out toxins linked to Alzheimer's during sleep, [the scientist] explains. And, at least among research animals that don't get enough solid shut-eye, those toxins can build up and damage the brain."  The story notes that there is definitely a link between sleep and Alzheimer's since many of those with Alzheimer's have some kind of sleep disorder. The OHSU scientists are about to start a study of "that should clarify the link between sleep problems and Alzheimer's disease in humans."  The study described is fascinating (let's just say it involves sleeping in an MRI) and will be so important.  Read more about the study here.  Now, take a nap!

Beginning of the Semester

It's time for the new semester!!! Always such an exciting time for all of us.  I wanted to see if anyone is doing anything new or innovative in your classes that you wanted to share.   Are you assigning any movies or books (other than law school books) to your students? One of the books I'm considering suggesting is On Pluto: Inside the Mind of Alzheimer's.  I'm also thinking of an assignment where the students research various technologies that are designed to help an elder age in place or stay safe.  I'm happy to share results with those of you interested.  Let us know your ideas and suggestions!

Another Must Read from Professor Kaplan

Our good friend and elder law guru, Professor Dick Kaplan from Illinois has released a new article, Reflections on Medicare at 50: Breaking the Chains of Path Dependency for a New Era.  (In my opinion, anything Dick Kaplan writes is a must-read).  The article is available for download on SSRN here.  The abstract explains more:

On the occasion of Medicare’s 50th anniversary, this Article examines the evolution of this essential program from its enactment in 1965 through implementation of the Affordable Care Act. Persons who are, or soon will be, newly enrolled in Medicare may be especially interested in the first part of this Article, which addresses the coverages, exclusions, and costs of Medicare’s constituent parts and concludes (on pp. 20-21) with seven critical questions that every new beneficiary must consider before enrolling. The Article then proffers policy recommendations to better align Medicare with current models of health insurance and provide more appropriate coverage of long-term care expenses.

WSJ: Self-Protection Tips for Avoiding Financial Exploitation

Illinois Law Professor Richard Kaplan alerted us to an article providing tips useful to consumers of any age on avoiding financial abuse and misuse of personal financial information.  The Wall Street Journal's article is titled "Protect Your Future Self from Financial Abuse." The advice begins:

To start, financial advisers and other experts suggest creating an inventory of assets—including retirement, brokerage and bank accounts, along with other investments.

 

“Whether it’s on your own or with a financial professional, you need to make sure you are aware of all the different financial accounts you have,” says Gerri Walsh, senior vice president of investor education at the Financial Industry Regulatory Authority, or Finra, the brokerage industry’s self-regulator.

 

This way, she says, an investor knows what he or she needs to keep track of and can provide an easy record for a trusted individual to consult should the investor become incapacitated or compromised.

 

Others suggest looking for opportunities to simplify your financial affairs. For instance, consolidate brokerage accounts spread across multiple firms and consider rolling 401(k) accounts from previous employers into your current plan or an individual retirement account.  

 

Identifying a trusted individual who could help with your affairs is the next step....

 

 

"Fighting Alzheimer's" As An Election Campaign Platform

I've been intrigued by Hillary Clinton's December 2015 campaign announcement of a plan to focus on prevention, treatment and a cure for Alzheimer's disease if elected President.  Certainly there is plenty of data to document the need for such a plan.  Her announcement seems to be attracting attention -- support? -- as demonstrated in this piece from Lois Bowers, Senior Editor at McKnight's Senior Living, an industry-focused publication. 

Our Aging Internal Clocks--Slowing Down?

NPR ran an interesting story on December 22, 2015 on how our internal clocks may begin to lose time, but we have backup clocks ready to start ticking!  As Aging Brain's Internal Clock Fades, A New Timekeeper May Kick In notes that

We all have a set of so-called clock genes that keep us on a 24-hour cycle. In the morning they wind us up, and at night they help us wind down. A study out Monday in Proceedings of the National Academy of Sciences found that those genes might beat to a different rhythm in older folks.

One of the authors of the study refers to the genes as the conductors of a person's orchestra and somehow for elders, "[t]heir orchestras seem to go off the beat, but it isn't known why." Before worrying about being "out of tune", take heart that the study found that elders have a back-up clock that starts keeping time when the main internal clock begins to get out of tune.  The researchers are particularly interested in how this affects individuals who sundown because of dementia.  The NPR story includes an audio version of the story in addition to the print version.

The abstract of the study is available here.  The full article requires a subscription. Click here for more information.

More on Opposition to Misuse of Conservatorships & Guardianships

As I reported frequently in 2015, in several jurisdictions around the U.S., family members are organizing to challenge abusive guardianships or conservatorships and to seek better accountability from court systems.  Here are interesting video resources that examine issues, and which may provide useful opportunities for classroom discussion of this emerging movement. 

See: Conservatorship: Legalized Elder Abuse (offering a perspective from California, by the Coalition for Elder and Dependent Adult Rights)

See also: Guardianships Under Fire (a 30 minute Contact 13 special, aired by KTNV on December 28, 2015, from Las Vegas, Nevada).   

SSA releases ABLE POMS

SI 01130.740 Achieving a Better Life Experience (ABLE) Accounts was released December 18, 2015. The POMS has six sections, including an explanation of ABLE accounts, definitions, what is excluded, what is countable, and verification/documentation of the account balances and of the distributions. Check it out! Oh and by the way, it's a good time to explain the POMS to your students. Check out SSA's explanation of the POMS on the POMS home page here.

Racing Alzheimer's

Runner's World magazine ran the story,  Outrunning the Demons on December 15, 2015.  We all know about sundowning. But have you ever heard it described so eloquently:

I could hear their screeching howls through the canopy of oak and red maple trees that enshroud Lower Road in Brewster, Massachusetts, on the Lower Cape. They were gaining, ready to pounce—I had to sprint to avoid capture at sundown. I felt them closing in as the spring afternoon gave way to dusk and a spectral fog crept over me, first in misty sprays that tingled, then in thick blankets that rose slowly from the base of my neck to my forehead, penetrating my mind and disorienting my senses. Alone, I was soon enveloped in fear and paranoia.

The demons kept advancing as the blazing red sun sank into Cape Cod Bay, doused like a candle. Faster and faster they chased, and faster and faster I ran. I was 61 that day, two years into my diagnosis, and with every ounce of my will, I made it home. But I knew the demons would be back—with a vengeance. My life, once a distance run, has become a race for survival. That’s the way it is with early onset Alzheimer’s. It’s like a death in slow motion, like having a sliver of your brain shaved every day. Alzheimer’s stole my maternal grandfather, my mother, and my paternal uncle. Now, at age 65, it’s coming for me.

This personalized account of one man's fight to hold on in face of a relentless disease is a compelling read.  Photos of the author accompany the story. The author, Greg O'Brien, wrote On Pluto: Inside the Mind of Alzheimer's.  Read the  article. It's worth it.

Elder Abuse Laws: Are They Merely Scarecrow or White Hat Laws?

When researching laws that purport to serve the interests of a target population, such as the elderly, I look to see whether there is an effective enforcement mechanism attached to the law.  Without enforcement, the laws may serve merely as "scarecrows" to deter bad guys (who presumably are reading the laws… right?) or, perhaps, as a means by which legislators can proudly wear their "white hats," to show they are the good guys.  One possible example could be Colorado's civil penalties for violation of the state's consumer protection laws where the victim is "elderly."  C.R.S.A. Section 6-1-112 provides that:

"Any person who violates or causes another to violate any provision of this article [on consumer protections], where such violation was committed against an elderly person, shall forfeit and pay to the general fund of the state a civil penalty of not more than ten thousand dollars for each such violation. For purposes of this paragraph (c), a violation of any provision of this article shall constitute a separate violation with respect to each elderly person involved."

In a recent pro se Colorado case, Donna v. Countrywide Mortgage, the federal district court dismissed all counts of the complaint filed by the borrower, including the count alleging a violation of “Colorado elder law,” concluding that such a private claim must fail because only the attorney general and district attorneys are authorized to seek civil penalties under that law.

Of course, there could be other sources of effective, private rights of action for elder abuse in Colorado law. 

Gloomy -- but Interesting -- Statistics about Holiday-Season Deaths

Over the holidays in December, I spent time with family in a hospital,  responding to an emergency health situation.  One of the staff told me it is "always" busier at the holidays, and she attributed this to family members gathering together and "realizing" that a loved one's health was declining.  However, there may be more to it than that.  Former New York Administrative Law Judge Karen Miller shared a very interesting Wall Street Journal article reporting on the trends in deaths at the holidays.  While some of the information is, perhaps, expected, as you think about stress and weather contributing to health risks, the spike in deaths in early 2015 was unusual, when "nearly a third more senior citizens died than normal in the first two weeks of the new year."  For more data, read "Why Death Doesn't Take a Holiday This Time of Year."

Thankfully, in our family we weren't dealing with a death! Thanks for sharing this article, Karen.  

Portraits of Aging in Cuba

During this first week of January, I am in Cuba with a group of Dickinson Law students who are part of an introductory course on "Cuban Legal Systems."  While we are in the country -- my second time here in less than 12 months -- I hope to continue to learn more about Cuba's demographics, including their reported successes on infant mortality, longevity and health care.  

In the meantime, I came across an interesting photo essay from the National Geographic, providing a window into aging in Cuba.  A key observation from Looking Into the Eyes of Cuba's Elderly, On the Verge of Change, is that Cubans "want tourists to come and experience their country but not just for salsa dancing, cigars and to see those amazing old cars -- but also to share stories about their countries, family, and lives...." 

Japan's Aging Population

Aging populations is something faced in every country.  The Wall Street Journal is examining demographics in 2050 as part of Demographic Destiny 2050. WSJ explains it

The year 2050 is right around the corner, and yet it​ is hard to imagine the sweeping changes the world will confront by then. In a multimedia series, The Wall Street Journal helps readers ​envision how we will work, how we will age and how we will live.

Graying Japan Tries to Embrace the Golden Years, an article focusing on Japan,  is accompanied by 360 video as well as the ability to watch in virtual reality. Examining trends and past history of demographics leads some in Japan to be pessimistic about the graying of the population, while others take a different view,

Pessimists say the only way to keep Japan from inexorably drifting into bankruptcy is radical change, like a sudden, sharp influx of immigrants—an unlikely prospect given Japan’s history as one of the world’s most homogeneous cultures.

But a growing number of Japanese executives, policy makers and academics challenge that proposition. They are exploring whether modest adaptations can ease the woes of an aging society, or even turn the burdens into benefits… start[ing] with steering the growing number of healthy 60- and 70-year-olds from retirement into work… point[ing] to new aging-related growth engines, including an automation spending boom to stretch Japan’s declining labor force, and a growing “silver market” of elderly consumers drawing down savings from a lifetime of hard work and thrift….

The article discusses the ups and downs of an elder workforce and the potential of technologies to help workers. It also covers how the increasing aging population impacts the consumer goods market. It's a fascinating read and I think it would be useful to assign to students.

Jimmy Carter, Nonagenarians and Health Care

In a recent Associated Press article, Jimmy Carter Shows 90+ Age Not a Barrier to Major Surgery, the writers cite several examples of successful surgeries or advanced treatments for the most senior of senior citizens.  

Irwin Weiner felt so good after heart surgery a few weeks before turning 90 that he stopped for a pastrami sandwich on the way home from the hospital. Dorothy Lipkin danced after getting a new hip at age 91. And at 94, William Gandin drives himself to the hospital for cancer treatments.

 

Jimmy Carter isn't the only nonagenarian to withstand rigorous medical treatment. Very old age is no longer an automatic barrier for aggressive therapies, from cancer care like the former president has received, to major heart procedures, joint replacements and even some organ transplants.

 

In many cases, the most senior citizens are getting the same treatments given to people their grandchildren's age — but with different goals.

 

"Many elderly patients don't necessarily want a lot of years, what they want is quality of life," said Dr. Clifford Kavinsky, a heart specialist at Rush University Medical Center in Chicago. "They want whatever time is left for them to be high quality. They don't want to be dependent on their family. They don't want to end up in a nursing home."

The article makes the point that "some 90-year-olds" are fitter than some 60-year-olds" and that age alone should not be the deciding factor.  Indeed, in my own family we have faced major surgery questions with both my father and, more recently, my mother, and the result was a "different" decision in each instance, based on a whole host of factors.  These can be tough calls. 

Long Term Care Insurance-the Choices Are Complex

The New York Times on December 18, 2015 ran an article about LTC insurance. Long-Term Care Insurance Can Baffle, With Complex Policies and Costs opens with this compelling statement: "[insuring] for long-term care is a lot like trying to cover the future financial impact of climate change. It’s a universal problem that looms large, is hard to predict and will be costly to mitigate."  The article provides a critical look at the need for long term care insurance and the hurdles that are faced by those considering the need for long term care.

[I]t is a notoriously confusing and not always reliable product. That’s why few people turn to such insurance. Some 70 percent of those over age 65 will require some form of long-term care before they die, but only about 20 percent own a policy.

Instead, millions of those who end up needing long-term care pay for it out of pocket or, after impoverishing themselves, turn to the government for support.

The article takes a look at the costs of the policies, when coverage kicks in, and the limitations of such insurance.  The article offers some suggestions for those considering such a policy and concludes with  some food for thought:

As if these questions weren’t difficult enough, there are also estate planning considerations. You may want to leave something to your heirs and not want to see your estate consumed by long-term care expenses in your final years.

Several newer products called hybrids add on long-term care benefits to life insurance and annuities that may address this concern. But they add even more layers of cost and complexity.

For those in such situations, experts advise consulting an elder law attorney and fee-only financial planner who doesn’t make money from recommending the policies. That’s the best way to receive an objective — and nuanced — evaluation on whether this product makes sense for you.

Webinar: "What It Really Means to Practice Elder Law"

ElderCounsel CEO Valerie Peterson and practitioner Cary Moss are offering what looks to be a free 30 minute webinar on Wednesday, January 6 on "Debunking Myths: What It Really Means to Practice Elder Law."

Intriguing and perhaps a good introductory assignment for law students taking an elder law course?  

A Little Inspiration for "Right Now" in the New Year

While flying across the country and marveling that I can work on Blog entries from 32,000 feet in the air, I came across a nice jewel about time -- and perfectionism -- to start the new year.  The essay, "Right Now," is by Kristin Carpenter, an equestrian who blogs for The Chronicle of the Horse magazine.  She is writing from Sri Lanka, where memories of the tragic 2004 tsunami encourage her introspection about past, present and future and ...  a role for realism in goal-setting.