Elder Law Prof Blog

Adapting Family Law to Recognize Importance Of Older Members and Significance of Aging

Naomi Cahn of University of Virginia School of Law Law joins Clare Huntington, of Fordham Law  and Elizabeth Scott, Emerita Professor at Columbia Law, to propose needed changes in family law to reflect the impact of aging.  In their forthcoming article for Yale Law Journal (Vol. 132) titled Family Law for the One-Hundred Year Life, they contend family law must address the interests and needs of families across the life span, and not just those of younger people.  They point to three areas for focus: the dignity and autonomy interests of older persons, structural inequalities, and the need for legal mechanisms that are efficient and accessible.  An example of their calls for legal reform is the discussion of intrafamily personal care contracts:

The response of regulators and courts to intrafamily personal care contracts illustrates well the law’s failure to support family care, especially for low-income families. In arranging in-home care, older adults sometimes contract with service providers, but they also contract with family members. A care contract is especially helpful when an older adult wants to receive these services from a family member but the family member cannot provide care without compensation. But these agreements run into problems. If the older adult is trying to qualify for Medicaid, many states scrutinize the contracts to ensure they are not simply a means for transferring assets from the older adult to the younger relative, helping the older adult satisfy Medicaid’s means-tested eligibility requirements. Partly based on the assumption that familial care is provided altruistically, state regulators regularly find that the agreements are, indeed, fraudulent transfers. This is an example of class-based discrimination: intrafamilial contracts for care are not scrutinized by public authorities unless the care recipient seeks to qualify for public support through Medicaid.

Equally interesting is their discussion of "opt-in or opt-out" concepts for the definition of family.  All-in-all, this article looks to the future of judicial, regulatory and legislative legal systems, while also offering ways to challenge our students in the classroom now.  

 

Steps to Take When Moving Into Retirement

I found helpful this recent New York Times article, When You’re Tiptoeing Into Retirement, Take These Key Steps. I thought the setup to the article was spot-on "For many, getting to retirement age is not a simple matter of giving two weeks’ notice. You may want to extend a career or wind down work life or a business. If you’re able, you may want to keep working until you are 70 (and beyond), when you will receive the largest possible Social Security payment. These in-betweeners are slow-walk planning to arrive at the moment when they are not working anymore. What’s involved is a delicate jigsaw puzzle of decisions, nest egg bolstering and financial calculations. This transitory time also presents a meaningful time for reflection and short-term planning."  The article discusses "issues to consider' including the timing of taking Social Security Retirement (and some links to companies you can hire to help you with the decision), phased retirement, financing retirement, including tax planning, and whether to create a plan yourself, or with a professional. "More important, one of your key questions should be, “What do I truly want to do and how do I get there?” Whether you are envisioning partial or full retirement, it helps to have some specific goals."

Australian Discussion About UN Convention on the Rights of Older Persons

The Older Persons Advocacy Network has announced an upcoming roundtable,  Age with Rights: Advocating for a UN Convention for the Rights of Older Persons.  "The Older Persons Advocacy Network (OPAN) is participating in the #Agewithrights global rally by holding a roundtable conversation about rights, ageism, and the need for supporting a UN Convention on the Rights of Older Persons. You'll hear directly from Caroline Carroll, Robin Vote, Natalie Clements, and Kathy Mansfield members of our National Older Persons Reference Group, who each have their own stories and views to share."  Click here to register, but note that this is being held in Australia, so mind the time zone differences!

2022 Adult Guardianship Guide

The National Association for Court Management announced the release of the updated Adult Guardianship Guide.

The executive summary points out  the

Issues identified in this guide which are critical for planners to consider include: • Strengthening protections and enhancing rights of persons subject to guardianship • Identifying alternatives to guardianship including supported decision-making • Providing meaningful due process including access to counsel
• Identifying opportunities for modification, termination, and restoration of rights • Identifying, tracking, and documenting the number of guardianship cases and adoption of data standards • Implementing meaningful guardianship monitoring • Formalizing a process for bringing complaints or concerns to the attention of the court • Developing response protocols for abuse, neglect, or exploitation • Developing readily accessible materials for the public including clear, plain language forms and informational resources • Developing and institutionalizing training programs and materials for judges and court staff, judicial officers, managers, staff, and volunteers to include specialized training to recognize and identify abuse, neglect, and exploitation • Developing and institutionalizing training programs for guardians • Maintaining and strengthening relationships between the courts and the local probate bar while promoting the importance of court-community collaboration • Regularly evaluating guardianship processes and outcomes.

The guide includes several appendices and resources. The section on the future offers this "This Guide challenges court managers to make efforts that will lead to improvements in the way courts handle cases involving our most vulnerable adults. NACM underscores the need for prioritization and funding of the management of guardianship cases, while offering practices and models that can be implemented—some at little or no cost—to bring court practices in line with recommendations of the Fourth National Guardianship Summit and the NPCS."

If you go through the NACM website, although the guide is free, you may have to set up an account to download it. It will be posted on the National Center for State Courts website (I checked on 2/22/22 and the updated guide had not yet been posted).You can download the 76 page guide directly here.

 

On an unrelated note, University of Illinois College of Law is looking for a Dean of Students & Assistant Dean for Academic Administration.  For info about the position or to apply, "submit a resume, cover letter, and the names and contact information of three professional references at : https://jobs.illinois.edu/academic-job-board/job-details?jobID=159975&job=assistant-dean-for-student-services-dean-of-students-college-of-law-159975 by March 31, 2022. For assistance with the application system, please email [email protected]."

The cool part of the job-you get to work with elder law Rockstar, Professor Richard Kaplan!

 

Slam the Scam Day

What will you be doing on Slam the Scam Day? Being a safe and smart consumer?  The SSA Inspector General announced in a press release that Slam the Scam day will be held on March 10, 2022.

Slam the Scam Day is an initiative to raise public awareness of the pervasive scams that continue to plague the nation and is part of the Federal Trade Commission’s National Consumer Protection Week, (NCPW) happening March 6-12, 2022. The initiative, which began in 2020 to combat Social Security-related scams, is now expanding to include other government imposter scams. In a government imposter scam, someone claims to be an SSA, or another government employee, and may ask for personal information, demand payment, or make threats. These scams primarily use the telephone, but scammers may also use email, text messages, social media, or U.S. mail.

The focus of this year's initiative is spotting the scams. "SSA OIG provides resources on its website and posts tips and warnings on social media platforms.  There will be webinars and social media chats to give the public information that empowers them to Slam the Scam."

 

Another Impact of COVID: Apathy?

Kaiser Health News examined how COVID's continued presence is wearing folks down in As Covid Slogs On, Seniors Find Fortitude Waning and Malaise Growing.

Despite recent signals that covid’s grip on the country may be easing, many older adults are struggling with persistent malaise, heightened by the spread of the highly contagious omicron variant. Even those who adapted well initially are saying their fortitude is waning or wearing thin.

Like younger people, they’re beset by uncertainty about what the future may bring. But added to that is an especially painful feeling that opportunities that will never come again are being squandered, time is running out, and death is drawing ever nearer.

As the article notes, some older adults who are vaccinated and booster still can be at risk for serious illness from COVID. "The constant stress of wondering “Am I going to be OK?” and “What’s the future going to look like?” has been hard" for one older adult quoted for the article.  The article quotes several older adults who describe the impact this has had on them. 

And COVID isn't done with us yet.

"Dinobabies" at IBM? NY Times Article

The New York Times, among other publications, ran a recent article about an age discrimination case,  Making ‘Dinobabies’ Extinct: IBM’s Push for a Younger Work Force.   Here is a brief excerpt from the beginning of the article.  

In recent years, former IBM employees have accused the company of age discrimination in a variety of legal filings and press accounts, arguing that IBM sought to replace thousands of older workers with younger ones to keep pace with corporate rivals.

Now it appears that top IBM executives were directly involved in discussions about the need to reduce the portion of older employees at the company, sometimes disparaging them with terms of art like “dinobabies.”

A trove of previously sealed documents made public by a Federal District Court on Friday show executives discussing plans to phase out older employees and bemoaning the company’s relatively low percentage of millennials.

The documents, which emerged from a lawsuit contending that IBM engaged in a yearslong effort to shift the age composition of its work force, appear to provide the first public piece of direct evidence about the role of the company’s leadership in the effort.

The article is available here. The pleading referenced is one of the number of filings in the case, which is available on PACER. I found the pleading here. 

Has the Pandemic Made You Less Active? If So, You Are Not Alone.

The New York Times a couple of weeks ago ran an article noting that during the pandemic, many elders were less active than before. The Pandemic Has Made Many Seniors Less Active explains that some who work remotely or just cut back on outings found they experienced physical decline.  Those who had COVID in varying degrees experienced even greater physical decline..

Nearly half of those 65 and older who had contracted Covid reported less ability to engage in physical activity like walking and exercising than before the pandemic — but so did about one-quarter of those who did not become infected. Smaller proportions of those uninfected said their ability to move around the house, and to do housework like dishwashing and dusting, had also declined.

Although some of that decline might reflect normal aging, the study measured changes over only a nine-month period. In people who did not develop Covid, “the most plausible reason for the decline is public health restrictions during the pandemic....” 

But even those who did not contract COVID still suffered some physical decline. One study  "found that almost 40 percent of those over 65 reported both reduced physical activity and less daily time spent on their feet since the start of the pandemic in March 2020. In this representative national sample, those factors were associated with worsened physical conditioning and mobility."

Although I don't think we need this reminder, the article offers it to us: "Physical function is key to living independently — the future that a great majority of older people envision for themselves. A loss of mobility and function across a considerable proportion of the senior population could mean increasing disability, a greater need for eventual long-term care, and higher Medicare and Medicaid costs.'"

Now-get up and take a walk!

Free Webinar: Social Security Overpayments

Mark your calendars for this upcoming webinar from the National Center on Law & Elder Rights,  on Social Security Overpayments and Low Income Adults. set for February 23, 2022 at 2 eastern.  The webinar will cover the following: "An overpayment of Social Security or Supplemental Security Income (SSI) benefits occurs whenever an individual receives more money for a month than the amount that should have been paid by the Social Security Administration (SSA). This training will review the options individuals have when they receive a notice of an overpayment from SSA. Presenters will cover the steps advocates can take to ensure the accuracy of an overpayment claimed by SSA, to reduce or eliminate the amount taken by SSA, and to enforce clients’ due process rights. Participants will also learn about recent changes SSA has made to address some of the problems with the overpayment appeal and waiver processes, and how advocates can be part of the efforts to tackle these problems. "  To register, click here.

Maine Releases Elder Justice Roadmap

A couple of weeks ago Maine's Governor released the new Elder Justice Roadmap.

Two years of work went into developing the road map, resulting in "the 21-member Elder Justice Coordinating Partnership [identifying] challenges to the prevention of, detection of, and response to elder abuse in the State of Maine and [developing] strategic priorities across the public and private sectors to prevent and respond to elder abuse. These recommendations, contained in the Elder Justice Roadmap, range from improvements in direct victim services, public and professional education, public policy and data collection and evaluation." 

The snapshot of the roadmap leads off with noting that  "There is a health, justice, financial, and social crisis facing Maine: • Research shows that one out of ten adults aged 60 and older have experienced abuse in the past year. That means tens of thousands of older Mainers experience elder abuse every year. • Abuse is most often committed by a trusted person, including intimate partners, adult children, and other family members. • The adverse health and broad economic impacts of elder abuse are well documented."  The snapshot notes that "[t]he Roadmap contains recommendations to achieve three desired results: 1. Decrease the incidence of elder abuse; 2. Increase the number of elder abuse victims who seek and receive help in stopping abuse; and 3. Improve the multidisciplinary response to elder abuse."

The full 122 page roadmap is available here.

 

Podcast on Nursing Home Neglect

The National Consumer Voice for Quality Long-Term Care is offering a podcast with Dr. Laura Mosqueda on Nursing Home Neglect: Preventing It and Getting Help. Here's a description of the podcast:

The pandemic has renewed concerns about the quality of care that residents receive in some nursing homes, and many family members have reported significant decline in the condition of their loved ones. Neglect and abuse of older adults is a long-standing problem that is under-reported and has not received the necessary attention and response from policymakers, yet it results in needless and preventable suffering and harm.

In this episode with Dr. Laura Mosqueda, a professor of Family Medicine and Geriatrics at the Keck School of Medicine at the University of Southern California, we talk about neglect, which is the failure to provide goods and services to an individual that are necessary to avoid physical harm, pain, mental anguish, or emotional distress. Neglect may or may not be intentional.

The link to the podcast is here. You can subscribe to the podcast series from this page as well as find information about the Consumer Voice's YouTube channel.

Social Security Survivors Benefits for Those LGBTQ Who Could Not Marry

The New York Times reported a few weeks ago that SSA has agreed that those LGBTQ who were in a committed relationship and couldn't marry until marriage equality are entitled to survivors benefits. Social Security Opens to Survivors of Same-Sex Couples Who Could Not Marry

Challenging the policy that limited survivor’s benefits to married couples took years and a class-action lawsuit that bears Ms. Thornton’s name. In November, the agency dropped its Trump-era appeals against Thornton v. Commissioner of Social Security and Ely v. Saul, two federal lawsuits brought by surviving same-sex partners or spouses.

The Social Security Administration now allows gay men and lesbians to receive survivor’s benefits if they can show that they were in a committed relationship and would have married had that been possible. The change could mean greater economic protection for a population with higher poverty rates than American adults overall.

Important and good news!

Webinar on Housing Rights Post-Disaster

The National Center on Law & Elder Rights has announced the following upcoming webinar, Addressing Housing Issues Facing Older Adults Following A Natural Disaster on February 9 at 2 eastern.

Older residents in areas affected by natural disasters face a number of challenges, including issues related to housing security and obtaining temporary shelter. Legal assistance and aging services professionals play a critical role in identifying these needs and providing assistance before, during, and after a disaster. This training will discuss common housing issues faced by homeowners and renters following a natural disaster, with a focus on how advocates and providers working with older adults can assist them pre-disaster to head off these housing issues. The webcast will also discuss post-disaster resources available to older adults and advocates to help address housing recovery needs following a natural disaster. 

Click here to register.

Senior Abuse Financial Tracking and Accounting (SAFTA) Toolkit

The Department of Justice Elder Justice Initiative u has announced the release of Senior Abuse Financial Tracking and Accounting (SAFTA) Toolkit.

Guided by the adage “A picture is worth a 1000 words”, the Senior Abuse Financial Tracking and Accounting (SAFTA) tool provides elder justice professionals with a simplified forensic instrument for illuminating suspicious financial patterns and facilitating the prosecution of suspected elder financial exploitation.

Developed by a forensic accountant, the SAFTA tool is an Excel macro-enabled worksheet into which financial records are entered and pivot tables and graphs are automatically created to provide a visual depiction of financial data. The tool is downloaded onto the user’s computer to ensure a secure working environment.

SAFTA is not intended to turn law enforcement officers into forensic accountants. Rather, it is designed to enable law enforcement officers to gather financial records and convert those records into forensically relevant visual depictions of the financial records. SAFTA works best on cases of low to moderate complexity.

A short training video about the toolkit is available here.

Help in Choosing When to Claim Social Security Benefits

If you ever perused the Social Security website, you know there are a number of choices to make. Although SSA has a lot of info on its website, ever wish you could get some help? That's the subject of a recent article in the New York Times, To Get the Most From Social Security, Log On. "[T]he market for Social Security advice includes a variety of software tools that can analyze your circumstances and retirement income needs, and generate recommendations for getting the most out of benefits. A growing number of financial planners use software to advise clients on claiming, and some workplace retirement plans also offer such options."  The article mentions some of the more complex decisions that need to be made by individual beneficiaries, review some fee for use tools as well as free tools.  Check it out!

Thanks to Professor Naomi Cahn for sending me the link.