Tuesday, August 1, 2017
Over the weekend, I caught an interesting episode of "On Being," with public radio host Krista Tippett. While the nominal topic was "the good, bad and the ugly" of the internet, and especially of internet-based social media sites, I found the conversation with her guest relevant on a number of levels, including questions about the importance of healthy relationships and intellectual stimulation for individuals as they age.
The guest speaker, Danah Boyd, a researcher, book author and pro-technology blogger, especially internet technology, talked about concerns that many parents may have, that their children are negatively affected by the amount of time they spend on the internet, whether in the form of Facebook, emails, chatrooms or simply surfing. "Why don't they just go outside and play together like we did as children, especially in the summer?"
In response, Boyd pointed out that there is a "tremendous amount of fearmongering that emerged in light of 24/7 news...." She continued:
We created this concern that public spaces like the park were a terrible, terrible place. We were worried about latchkey children. We were worried about school buses. We clamped down on young people, and we started, especially in middle to upper class environments, structuring every day of their lives.
She drew upon examples, including some from Eric Klinenberg, a sociologist who wrote Going Solo to examine the implications of living a "single life," to suggest a possible explanation for young people retreating into the internet is the need to escape the pressures of overly structured daily lives.
If true, wouldn't the need to escape increase as you get older and encounter more pressure to work, be on time, succeed, and to multi-task? The need to detach from one-on-one relationships might be greater.
While the program did not talk directly about the upper ages of such a trajectory, as I listened to the program I couldn't help but think there is some greater truth here. I see some people continue to want to stay engaged in one-on-one social relationships as they move into the "older" of older ages, but I also see many, including some of my own family members, do the exact opposite. No, they aren't retreating into the internet, but they are retreating from what they might see as pressures to communicate, to be articulate, to "chat" with long time friends or family members. Perhaps for some it is the television, rather than a cell phone or iPad that serves as the protective shield.
But, for future generations of elders will the internet still be intriguing and continue to offer escape routes?
One of the things that I liked about the "On Being" discussion was the discussion of the importance of striving for balance in the midst of technological changes. Boyd said:
From my perspective, it’s about stepping back and not assuming that just the technology is transformative, and saying, okay, what are we trying to achieve here? What does balance look like? What does happiness look like? What does success look like? What are these core tenets or values that we’re aiming for, and how do we achieve them holistically across our lives? And certainly, when parents are navigating this, I think one of the difficulties is to recognize that this is what your values are, and they may be different from your child’s values. And so how do you learn to sit and have a conversation of “Here’s what I want for you. What do you want? And how do we balance that?” And that’s that negotiation that’s really hard. And so I think about it in terms of all of us — how do you find your own sense of grounding?
She concludes, suggesting internet technology is an important tool for making connections and having relationships, but "reflection" about life goals is also important. Or as Boyd says, "There are so many opportunities out there to connect, to communicate, to get information. We need to be more thoughtful about what we want to achieve and how to articulate that in our lives and how to achieve it collectively, individually, and as a community."
Tuesday, May 30, 2017
Last week I received an email from the Hastings Center with the subject line "What Do We Owe the Frail Elderly?" This intrigued me because I often have a conversation with my students about what, if anything, we "owe" the generation before us. I typically have this conversation in the context of discussing funding of public benefits and other programs specifically for America's elders. Here is the information about the casebook
A woman juggles caring for her aged father at home and going to work. A volunteer cares for an 83-year-old man who lives alone and wonders why the man’s son doesn’t take more of an interest. Staff members at a nursing home, discussing a patient with dementia who hits staff members, consider whether it’s acceptable to control his behavior with antipsychotic medication, knowing that antipsychotics increase the risk of stroke in people with dementia. These are three of the 10 cases in Caring for Older People in an Ageing Society, the second edition of an online bioethics casebook launched this week. The casebook aims to support professional and family caregivers by helping them recognize and respond to situations that pose ethical uncertainty... The bioethics casebook was the product of a project with the National University of Singapore Centre for Biomedical Ethics, The Hastings Center, and Oxford University’s Ethox Centre. Explore the Casebook.
Additional information about the book is available from The Hastings Center website: "an innovative web-based casebook that focuses on ethical challenges of caring for people in an aging society. It is geared to those who provide community-based care to frail or chronically ill people living at home, in a family member’s home, or in a nursing home. The casebook will include fictional cases along with ethics commentaries, clinical perspectives, reflection and discussion questions, and other resources...."
This second volume of the casebook focuses on elders while the first volume focuses on difficult decisions. For more information, click here.
Tuesday, April 18, 2017
I had mentioned a new book on Monday at the bottom of my post, congratulating the authors, Naomi Cahn and Amy Ziettlow. The book, Homeward Bound: Modern Families, Elder Care, and Loss is published by Oxford University Press (April 2017) and runs 240 pages. The book is available to order from a number of book sellers. Last week the authors wrote on the Institute for Family Studies blog explaining the background of and catalyst for this book. Homeward Bound: Lessons on Modern Families and Elder Care
In 2010, we began the Homeward Bound project, hoping to study the intersection of modern families and elder care because we saw, all around us, how elder care is changing. Seven years later, it is exciting to see the results of the project in the form of a published book, Homeward Bound: Modern Families, Elder Care, and Loss, and to share some of what we learned in this post.
The catalyst for the project was a conversation with a dear friend of ours, Julie, whose Baby Boomer parents are divorced; each parent then remarried and divorced again. One of Julie’s ex-stepparents—her ex-stepmother Tina—was about to undergo critical surgery, and Julie didn’t know what to do. Tina had been married to Julie’s father for 15 years, starting when Julie was a toddler. While Julie was growing up, she spent holidays with her father and Tina. After the divorce, Julie no longer visited Tina, but they remained in regular contact by phone and email over the years. Julie fondly remembers how Tina mothered her during childhood illnesses and crises, and she felt some responsibility for Tina, especially since Tina had no children of her own. However, Julie felt overwhelmed as she thought of handling all of the medical, financial, and legal caretaking that her parents, stepparents, and ex-stepparents would need from her as they aged. Julie, who also has two young children, explained that she simply was not prepared financially or emotionally to care for all the people who might need her—and she felt alone in her worries, with few resources and little support.
So that explains the reasons and inspiration for the book. As far as what the authors learned, they explain the 3 lessons:
- Families shape the quality of the elder care and grieving experience of grown children...
- Formal planning helps facilitate a positive experience.... and
- Families rely on medical, legal, and religious professionals to begin and guide the decision-making conversation in a way that is catered to their unique structure....
But, overall they learned there is room for hope but a need for action. "Many family members showed great resilience in finding ways to understand each other, to work together to each contribute something to the care process, and to decide that they would remain a family after the death of one of its members. In other families, the lack of shared norms and an absence of experienced professional support meant that caretaking and grief became a time of division, rather than unity. But, as we also learned, the time to plan is now."
Congratulations Naomi and Amy!
Wednesday, March 29, 2017
The National Academies Press has released a new book, Strengthening the Workforce to Support Community Living and Participation for Older Adults and Individuals with Disabilities: Proceedings of a Workshop. The book can be downloaded for free as a pdf or purchased as a hard copy .It can also be read online. Here is the description of the publication:
As the demographics of the United States shift toward a population that is made up of an increasing percentage of older adults and people with disabilities, the workforce that supports and enables these individuals is also shifting to meet the demands of this population. For many older adults and people with disabilities, their priorities include maximizing their independence, living in their own homes, and participating in their communities. In order to meet this population’s demands, the workforce is adapting by modifying its training, by determining how to coordinate among the range of different professionals who might play a role in supporting any one older adult or individual with disabilities, and by identifying the ways in which technology might be helpful.
To better understand how the increasing demand for supports and services will affect the nation’s workforce, the National Academies of Sciences, Engineering, and Medicine convened a public workshop in June 2016, in Washington, DC. Participants aimed to identify how the health care workforce can be strengthened to support both community living and community participation for adults with disabilities and older adults. This publication summarizes the presentations and discussions from the workshop.
Friday, August 19, 2016
I'm always just a bit suspicious of books that promise to make me laugh. I think it is because I like to be surprised by humorous moments, rather than feel duty-bound to chuckle, guffaw or giggle.
Nonetheless, I succumbed to the promise in the blurb for Michael Kinsley's 2016 book, Old Age: A Beginner's Guide, that it was a "surprisingly cheerful book ... and a frequently funny account of one man's journey to the finish line."
And I'm glad I did. I did indeed laugh, and at the most surprising of moments, as when he described the need to avoid the doors of his refrigerator because of the magnets that might interfere with the technology in his brain used to keep symptom of Parkinson's Disease at bay. He has the knack of making wry observations about his own mortal state to think broadly about what it is for all of us to age. I can see the short essays that make up this book being useful in a class on elder law or estate planning.
His words are perhaps most poignantly relevant to boomers. For example, on a goal of living longer, he writes:
Even before you're dead, you may want to ask yourself whether this is what you really want. Is being alive all that desirable if you're alive only in the technical sense? Millions of boomers are watching their parents fade until they are no longer there. As they approach their seventies, they start observing their own peer group losing their collective marbles, one at a time. And they reasonably conclude that the real competition should not be about longevity. It should be about cognition.
But he doesn't stop there, exploring other, potentially more important goals for the competitive boomer generation to consider.
This is a short, deep book. And I recommend it, not least of all because it gives readers welcome opportunities to smile.
Monday, July 25, 2016
Last week, Lancaster Pennsylvania was host to the 19th Annual Elder Law Institute, co-sponsored by the Pennsylvania Bar Institute and the Pennsylvania Bar Association's Elder Law Section. As the image of the two, fat volumes of course materials demonstrates, there was a lot of content for participants to digest. More than 400 professionals attended,not counting walk-ins. (And yes, the course materials will be available for purchase eventually, from the PBI catalog here.)
I had the privilege of welcoming two new speakers to the Pennsylvania conference, Stephen J. Maag, J.D., Director of Residential Communities for LeadingAge and Brad C. Breeding, President of My LifeSite. Both speakers addressed options available for senior living, and focused on trends affecting Continuing Care Retirement Communities (CCRCs), now also known as Life Plan Communities.
Steve noted that with close to 2,000 communities across the nation identifying under the CCRC or Life Plan label, a majority are "still" nonprofit, especially in so-called "Type A" operations, but that there is clearly a trend in the direction of change to "for profit" ownership or management. Communities are coping with what he termed "unprecedented" change on many fronts, including changing consumer demographics, the impact of health care reform, and use of technology that can affect or delay timing of decisions to move into a Life Plan Community.
Brad outlined the development of his company as a site for comparative information for consumers considering CCRC or Life Plan communities. The company has a data bank with detailed, comparative information on over 400 communities, offering consumers a fee-paid option of getting side-by-side statistics on contract options, pricing, services available and more. But he also said that collecting the information is not easy, as some state regulators, including Pennsylvania, do not "share" information in a transparent way. Remember Medicare.gov's Nursing Home Compare? Brad's company is working to provide consumers with comparative information beyond that narrow focus on skilled nursing care. One of the hot topics Brad identified is the extent to which consumers can use "long-term care insurance" in the CCRC setting, and we all discussed whether such insurance should be paying a pro-rata share of entrance fees, especially in Type A life-care contracts.
My special thanks to Steve and Brad for traveling from D.C. and North Carolina, respectively, to share their knowledge and predictions.
Tuesday, June 21, 2016
On June 15, I logged into the National Consumer Law Center's webinar on Financial Frauds and Scams Against Elders. It was very good. Both David Kirkman, who is with the Consumer Protection Division for North Carolina Department of Justice, and Naomi Karp, who is with the federal Consumer Financial Protection Bureau, had the latest information on scamming trends, enforcement issues, and best practices to avoid financial exploitation. Here were some of the "take away" messages I heard:
- "Age 78" -- why might that be important? Apparently many of the organized scammers, such as the off-shore sweepstakes and lottery scams, know that by the time the average consumer reaches the age 78, there a significant chance that the consumer will have cognitive changes that make him or her more susceptible to the scammer's "pitch." As David explained, based on 5 years of enforcement data from North Carolina, "mild cognitive impairment" creates the "happy hunting ground" for the scammer.
- "I make 'em feel like they are Somebody again." That's how one scammer explained and rationalized his approach to older adults. By offering them that chance to make "the deal," to invest in theoretically profitable ventures, to be engaged in important financial transactions, he's making them feel important once again. That "reaction" by the older consumer also complicates efforts to terminate the scamming relationship. David played a brief excerpt of an interview with an older woman, who once confronted with the reality of a so-called Jamaican sweepstakes lottery, seemed to make a firm promise "not to send any more money." Yet, three days later, she sent off another $800, and lost a total of some $92k to the scammers in two years.
- "Psychological reactives." That's what David described as a phenomenon that can occur where the victim of the scam continues to play into the scam because the scammer is offering the victim praise and validation, while a family member or law enforcement official trying to dissuade the victim from continuing with the scam makes him or her feel "at fault" or "foolish." An indirect, oblique approach may be necessary to help the victim understand. One strategy to offset the unhelpful psychological reaction was to show the victim how he or she may help others to avoid serious financial losses.
- "Financial Institutions are increasingly part of the solution." According to Naomi, about half of all states now mandate reporting of suspected financial abuse, either by making banks and credit unions mandatory reporters or by making "all individuals" who suspect such fraud mandatory reporters. Both David and Naomi said they are starting to see real results from mandatory reporters who have helped to thwart fraudsters and thereby have prevented additional losses.
The federal Consumer Financial Protection Bureau has several publications that offer educational materials to targeted audiences about financial abuse. One example was the CFPB's 44-page manual for assisted living and nursing facilities, titled "Protecting Residents from Financial Exploitation."
June 21, 2016 in Books, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (2)
Thursday, May 5, 2016
Ever think humans need to come with a user's manual to explain the aging process? According to the Washington Post article on April 22, 2016, help is on the way. ‘Old Age: A Beginner’s Guide’: What you really need to know about life’s later years reviews “Old Age: A Beginner’s Guide.” The article describes the author
Kinsley is both realistic and remarkably cheerful in writing about aging, death and his own health in this brief collection of essays, some of which have appeared in Time, the New Yorker and elsewhere. The book is framed as a guide to old age for Kinsley’s contemporaries. “Sometimes I feel like a scout for my generation,” he writes, “sent out ahead to experience in my fifties what even the healthiest boomers are going to experience in their sixties, seventies or eightes.”
He describes the Boomers as wanting longevity but really wanting cognition. The Post describes the book as a fun and informative read.
Whether offering a final set of goals for achievement-oriented boomers, describing his DBS (deep brain stimulation) surgery, debating stem-cell research or defending his decision after the Parkinson’s diagnosis (“I chose denial”), Kinsley, a contributing columnist to The Washington Post, is refreshingly straightforward and often wickedly funny.
Tuesday, April 12, 2016
Huffington Post's Huff/Post 50 ran a story with an accompanying video, Millennials Show The World What They Believe ‘Old’ Looks Like. Not unexpectedly, their initial impressions involved some stereotypical perceptions of those who are older. Then watch the video to see what they have learned and how their views changed. Show the video to your class!
Wednesday, March 9, 2016
This week is Spring Break for our law school and I've had a bit of time to catch up on my stack of "must read" books. Here are two that caught my attention:
Settling In: My First Year in a Retirement Community, by Richard L. Morgan (2007):
"At age seventy-four, I left my home in the state of North Carolina, which I dearly loved and where I had lived for fifty years, to come to a retirement community in Pennsylvania. In a real way, I left my identity, forged over years of hard work and experience, to start a new life as a relative nobody. At times I endured sleepless nights, worrying if I had made the right decision."
With that beginning, the writer tracks his evolution in thinking about a retirement community, candidly describing excitement and depression, while achieving a growing sense of engagement with his new environment. A retired Presbyterian minister, the writer uses both religious and non-religious texts to supplement his thinking. There's a real honesty here that transcends any religion, and the book seems useful not just for new or prospective residents but also for adult children and care-givers.
What's the Deal with Retirement Communities?, by Brad C. Breeding, Certified Financial Planner (2014):
I met the author a few years ago while he was in the development phase of a project to provide consumer-friendly internet materials on continuing care retirement communities (and more on that in a few days!). But he also has a helpful little book that offers objective information on how to assess a community, including chapters on understanding various types of contracts and financial viability factors. A good place to start for someone who wants to ask the right questions.
Tuesday, March 8, 2016
Recently I answered my office phone at the end of a long day. The caller was upset, but eventually I learned that part of the concern was about something the caller thought I had said. As I tried to make heads or tails about what the caller was saying, I realized the concerns were triggered by a book I knew nothing about. Nonetheless, the caller was telling me I "was in the book." How could that be true?
With a bit of research after the phone call, I was able to find the book in question. It turned out it was someone's 2016 self-published book, advertised on Amazon. When I reviewed a copy of the actual book, I was surprised to find that a rather lengthy comment I had written for the Elder Law Prof Blog appeared in this book, right down to a missing period in my original post. Indeed, much of the book appeared to me to be this sort of "cut and paste" effort. Only occasionally did the author identify an item in the book as "reprinted with permission."
I had never heard of the author of the book and I had not been asked permission to use my Blog item. In addition, although the author of the book said nice words about my work, the context in which my item appeared was not acceptable to me. I have asked the book's author to delete my piece from all future printings of the book.
Folks, to state what I thought was obvious, this blog is copyrighted. While copyright symbols are not necessary to protect creators' rights, the notice -- "(c) Copyright 2004-16 by Law Professor Blogs, LLC. All rights reserved." -- appears at the bottom of every webpage for each of the blogs appearing on the Law Profs Network.
Speaking for myself, it is, of course, permissible to quote my blog items, with proper attribution. As long as you use common sense about the length of any quote, you don't need permission to do that. You can also use hyperlinks from your blogs to our blog. But we draw the line at you copying our posts into your own publications. For reprint or republication rights you need to ask and get permission.
People often do request permission to reprint our posts. I get this request most often when my posts analyze a new law, a new case or discuss a legal trend I'm seeing emerge. My co-blogger, Becky Morgan, and I frequently give permission for appropriate republication or reprinting. We are authorized to do so by the company that holds the copyright. Personally, I like to make sure that the version to be used is updated, and I look for misspellings or typos. (Those pesky problems can creep into a Blog all too easily with the fast-pace involved in creating this daily, ongoing commentary.) More importantly, sometimes I also say "I'm sorry, but no," especially if I feel that the intended use is inconsistent with my thinking on the topic, or with my plans for the Blog post in question. The "rights" of a copyright holder are about more than just compensation!
Please respect the copyright on this Blog! Write or call if you want permission to reprint an item. If you have general questions about Blogs and copyrights, here is a useful discussion by Mark Fowler, an experienced copyright attorney in New York.
Thursday, February 18, 2016
Professor Sharona Hoffman of Case Western Law is featured in a ten minute video podcast that focuses on her book, Aging with a Plan: How a Little Thought Today Can Vastly Improve Your Tomorrow. According to the website promoting the video, "[t]he book is a concise but comprehensive resource designed to help people who are middle aged and beyond plan for their own aging and for taking care of elderly loved ones."
Here is the abstract from the book:
This book offers a concise, comprehensive resource for middle-aged readers who are facing the prospects of their own aging and of caring for elderly relatives — an often overwhelming task for which little in life prepares us.
Everyone ages, and nearly everyone will also experience having to support aging relatives. Being prepared is vital to being able to make good decisions when challenges and crises arise. This book addresses a breadth of topics that are relevant to aging and caring for the elderly, analyzing each thoroughly and providing up-to-date, practical advice. It can serve as a concise and comprehensive resource read start-to-finish to plan for an individual's own old age or to anticipate the needs of aging relatives, or as a quick-reference guide on specific issues and topics that are relevant to each reader's circumstances and needs.
Using an interdisciplinary approach, Aging with a Plan: How a Little Thought Today Can Vastly Improve Your Tomorrow develops recommendations for building sustainable social, legal, medical, and financial support systems that can promote a good quality of life throughout the aging process. Chapters address critical topics such as retirement savings and expenses, residential settings, legal planning, the elderly and driving, long-term care, coordinated medical care, and end-of-life decisions. The author combines analysis of recent research on the challenges of aging with engaging anecdotes and personal observations. Readers in their 40s, 50s, and beyond will greatly benefit from learning about aging in the 21st century and from investing some effort in planning for their own old age and that of their loved ones
Monday, January 11, 2016
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!
Friday, October 16, 2015
Memories of my childhood include two now classic television moments, watching my mother do her morning exercises with Jack LaLanne and all of us laughing with Dick Van Dyke. So it seems appropriate today, as we prepare to celebrate my Mom's 90th birthday with friends and family, that I will be able to give her Dick Van Dyke's new book, Keep Moving: And Other Tips and Truths About Aging. The title is apt. Mr. Van Dyke is just a couple of months younger than my mother. And, of course, my mom doesn't need Mr. Van Dyke's reminders -- she's figured it out on her own -- but we both enjoyed his previous memoir, My Lucky Life.
Friday, October 9, 2015
In a convergence of my teaching, research and public outreach work, this week I've found myself in several overlapping conversations about whether adult children have obligations -- moral or legal -- to care for or financially support their parents.
This week, following my Elder Law Prof Blog post recommending Hendrik Hartog's fascinating book, Someday All This Will Be Yours, which I also recommended to my Trust & Estate students, I had a nice series of virtual conversations with Dirk about his book. What a thoughtful historian he is. We were talking about his research-based observation in the book about adult children and needy parents:
Adult children were not legally bound to remain and to work for their parents. Nor were they obligated to care for the old. Adult children were, paradigmatically and legally, free individuals, "emancipated," to use the technical term. . . . Furthermore, there was little -- perhaps nothing-- to keep an uncaring or careless adult child from allowing a parent to go over the hill to the poorhouse.
I asked, "what about filial support laws?" Turns out that was a timely question because Professor Hartog had just been interviewed for a Freakonomics Radio episode, "Should Kids Pay Back Their Parent for Raising Them?" The program became publically available, via podcast or written transcript, on October 8, 2015. In the interview Professor Hartog was asked to comment on filial support laws. He said in part:
Filial responsibility statutes are very weak efforts to ensure that the young will support the old if they are needy.... They rarely are enforced. Very, very, very, very rarely. So, you know, in a sense, every time they are enforced they become a New York Times article or they become an article in the local newspapers.
Professor Hartog was speaking in large measure from the perspective of his important historical research, including review of a body of case reports from New Jersey spanning some 100 years from the mid 1880s to the mid 1900s. And based on my own historical research, I would also say that in the U.S., filial support laws have been rarely enforced, although I would characterize the enforcement as often "episodic" in nature, especially after the growth of Social Security and Medicaid benefits. But...
I think the modern story is quite different in at least one state -- Pennsylvania. Part of this difference is tied to the fact that Pennsylvania's filial support law permits enforcement by commercial third-parties, including nursing homes, as I discussed in my 2013 article on Filial Support Laws in the Modern Era. Other U.S. jurisdictions with "modern" enforcement cases are South Dakota and Puerto Rico.
Indeed, I'm speaking on October 9, 2015 at the invitation of a Bench and Bar Conference in Gettysburg, PA about "The Festering Hot Topic" of Filial Support Laws in Pennsylvania. In the presentation, I report on controversies arising from recent, aggressive collection efforts by law firms representing nursing homes, as well the latest examples of successful enforcement suits by nursing homes and family members. I also analyze a disturbing additional claim, where Germany is seeking to enforce its filial support law to compel a U.S. resident to pay toward the costs of care for an ailing father in Germany.
Ultimately, I think that Professor Hartog and I agree more than we disagree about the lack of behavioral impact flowing from filial support laws. As demonstrated by Professor Hartog in his book, much care and support is provided by children, but flowing from complicated moral or personal inclinations, rather than statute-based lawsuits.
This seems a more realistic paradigm, although not without opportunities for misunderstanding and disappointment. But, as I often observe, the very last person I would want involved in my care would be someone who is doing it "only" because a statute -- much less a court -- is telling them they must care for me.
October 9, 2015 in Books, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, International, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, October 6, 2015
We have mentioned Hendrik Hartog's book, Someday All This Will Be Yours: A History of Inheritance and Old Age, (Harvard Press 2012) on this Blog as we did on this post outlining a recent symposium law review with articles inspired by the book. I've been remiss, however, in not recommending the book directly.
So let me correct that oversight now. If you haven't read Princeton Professor Hartog's book, or if (as was true for me for too long) you have allowed the book to sit on your "to read" stack, it's time to get to it. The book is a treasure of analysis, commentary, legal history, critique and provocation arising from the simple proposition that in many relationships, someone often utters (or thinks they have heard) words to the effect, "when I'm gone, someday, all this will be yours." The underlying legal question is what happens when no document (such as a will, a trust, or a contract) puts that pledge into writing.
I find much to talk about when reading Hartog's words. One curious item he describes is a poem, "Over the Hill to the Poor House," published by Will Carleton in 1872. Hartog explains that the poem is the source for the now common saying "over the hill" to refer to persons of a certain age. But Hartog points out that the poem's poignancy comes from its all-too-true narrative by one woman about what it can be like to grow old, frail and widowed, even if you have a large family of loving children.
From the closing lines of the poem:
An’ then I went to Thomas, the oldest son I’ve got,
For Thomas’s buildings’d cover the half of an acre lot;
But all the child’rn was on me—I couldn’t stand their sauce—
And Thomas said I needn’t think I was comin’ there to boss.
An’ then I wrote to Rebecca, my girl who lives out West,
And to Isaac, not far from her—some twenty miles at best;
And one of’em said’twas too warm there for any one so old,
And t’other had an opinion the climate was too cold.
So they have shirked and slighted me,an' shifted me about-
So they have well-nigh soured me,an' wore my old heart out;
But still I've borne up pretty well, an' wasn't much put down,
Till Charley went to the poor-master, an' put me on the town.
Over the hill to the poor-house--my chil'rn dear, good-by!
Many a night I've watched you when only God was nigh;
And God 'll judge between us; but I will al'ays pray
That you shall never suffer the half I do to-day.
And for a colorful "sung" version of the poem, with a change in gender for point-of-view, go to Lester Flatt and Earl Scrugg's version of Over the Hills to the Poorhouse.
Over 140 years later, we still hear the phrase "over the hill" in less-than-kind contexts, but one hopes the prospects for care and assistance are not quite as grim as described in these verses.
Thursday, September 10, 2015
A New York ethics opinion issued July 27, 2015 is a useful reminder of the possibility -- indeed probability -- that law firms well known for specializing in elder law or estate planning may be approached by successive generations of family members, thus creating potential issues of confidentiality (and more).
In the matter under consideration, involving a small law firm that practiced "primarily in the fields of estate planning and administration, trusts and elder law," two of the lawyers had a long relationship with a "father," including representation of the father in a contested adult guardianship case.
Later, a different lawyer in the firm met with a "son" of the father to discuss personal estate planning following a "public seminar" hosted by the firm. That lawyer did not conduct a "conflict check" before a first meeting, one on-one, with the son. (One can see how a law firm might be tempted to skip or delay a step in conflict-checking when organizing these kinds of business-generating efforts, a potential not directly addressed in the New York opinion. Would disclaimers or warnings about "client relationships" not forming immediately remedy potential problems -- or perhaps make them even more complicated?)
The law firm, upon discovering the potential for concerns, made the decision not to go forward with representation of the son, and then asked the New York State Bar Association's Committee on Professional Ethics for guidance on whether rules either "required" or "permitted" the law firm to disclose to the father the son's request for representation, or whether the firm was prohibited from further representation of the father.
For the New York ethics committee's interesting analysis, see New York Ethics Opinion 1067. For a contrasting "multi-generational" representation problem involving a husband's undisclosed "heir," see A. v. B., decided by the New Jersey Supreme Court in 1999, a case that is a good springboard for discussion of professional responsibilities for attorneys in the course on Wills, Trust & Estates (as I discovered in the Dukeminer/Sitkoff textbook).
Wednesday, August 26, 2015
Recently I was listening to satellite radio while on the road, and caught a Fresh Air interview with Robert Price, celebrated author of hardscrabble crime fiction, including Clockers (2008)and his most recent novel The Whites (2015). Is it my imagination, or are "older adults" appearing more and more often in mainstream fiction and movies? Apparently a central character in The Whites is just such an "senior." In Price's interview, I was struck by the humor of his observations about how growing older himself has influenced his writing, but also about much his grandparents' lives affected his fiction. And I couldn't help but laugh when he observed that no one likes the "math" as you get older, although he is now the first to admit that "65 is the new 64." Here's a link to the 44 minute podcast with Terry Gross.
Wednesday, July 29, 2015
Sally Hurme, J.D., adds another useful book to her long list of consumer-friendly publications. In Checklist for Family Caregivers, published and marketed jointly by AARP and the American Bar Association, offers "to do" and "action" checklists to guide family members as key providers of care and assistance for seniors. Each topic is introduced by brief narratives of explanation, often with an emphasis on legal implications of decision-making. For example Chapter 6 is on "Deciphering Contracts," and describes different components of family caregiver agreements, home care service agreements (whether directly or through an agency), assisted living agreements, and skilled nursing care contracts, plus a few points about long-term care insurance policies.
Think of this book as the starting place -- and a wonderful opportunity to organize thoughts for meetings with doctors, agencies, social workers or lawyers. More information about the book is available on the ABA webpages (with a member discount, and "bulk discounts are available"), on AARP's webpage, or directly through Amazon.
Tuesday, July 28, 2015
I'm visiting family in the Southwest as I type this entry. To say that I come from a family of pack rat readers is an understatement. Every room in my parents' three story old house has stashes of books, even the bathrooms. In one room, I think the bed is entirely supported by books stacked neatly underneath it. (And this is a looooong family tradition; I can remember vacations in Wisconsin where the prized activity was digging through old books and ancient Saturday Evening Posts in a cousin's attic, to find the perfect text for reading on the screened- in porch on a rainy summer day).
This week's discovery was an article in the Winter issue of the Journal of the Southwest, a refereed journal published quarterly at the University of Arizona. "The Eclipse of the Century," tells the story of married scientists Cecile DeWitt-Morette and Bryce Seligman Dewitt, who pursued greater understanding of Einstein's theory of relativity. A goal was to observe one of the longest total eclipses of the sun, taking the highest-quality possible photographs in order to measure and document "bending" of light caused by the pull of gravity. The opening paragraph of the article by University of Texas PhD candidate David Conrad hooked me:
Cécile DeWitt-Morette sat on a roof in a sandstorm in the Sahara Desert. It was 10:30 a.m. on June 30, 1973, and nearly 100 degrees Fahrenheit. If the storm did not let up soon, all was lost. A year and a half of preparation and approximately $100,000 in grants would be for naught, and a similar opportunity would not come for another 18 years. But Cécile had no power over the wind or sand or time. She could only wait. Beneath her feet, inside the structure she and her colleagues from the University of Texas (UT) McDonald Observatory built, her husband Bryce DeWitt—head of the expedition—and five other men waited for the storm to abate. The clock ticked off the seconds, and still the sand blew. All the money and effort spent to send these people here, to the oasis of Chinguetti in the Islamic Republic of Mauritania, could not alter the forces of nature.
You may be asking, "How on earth is this a topic for the Elder Law Prof Blog," right? The answer comes from the fascinating start to UT's decision to develop a top-flight team of academic researchers. It began with a "will." The article continues...