Elder Law Prof Blog

This Blog is Copyrighted. Now, what does that mean?

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. 

Check Out This Video from Professor Hoffman

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

 

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!

Dick Van Dyke's Lucky Life "Keeps Moving"

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.   

Here's a recent NPR Interview with Dick Van Dyke.

And here's a link to a Podcast of Diane Rehm's recent interview of Dick Van Dyke. 

Filial Friday: Freakonomics Asks "Should Kids Pay Back Parents for Raising Them?"

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.

"Over the Hill" as an Evolving History Lesson

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. 

New York Ethics Opinion Addresses Potential Conflicts in Elder Law Practice

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). 

"Sixty-five is the New Sixty-four!"

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. 

AARP & ABA Join Forces on "Checklist for Family Caregivers"

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. 

Where There's a "Will," There's a Way....

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...

Continue reading

New Book: Dry Bones in the Valley

With just a few weeks left before law school classes start again, I hope your summer writing and research projects are well underway, giving you time to relax a bit with a good beach read.  I've got one to recommend, too.  It's Dry Bones in the Valley by Tom Bouman. 

The mystery is set in northeastern Pennsylvania, where old time music haunts the air, mixing with the off and on whine of modern day fracking.  One of my favorite authors is Tana French, whose Dublin-based "police procedural mysteries" are an excuse for deep exploration of the human condition. Tom's debut novel is in that tradition, even bringing to bear an Irish spirit or two. I like it best when I can see, hear and "feel" the settings in a novel, as in this passage, where bone-tired Henry Farrell struggles to find balance while carrying out his official duties as the rural township's investigator:

I knew I wouldn't sleep and likely shouldn't with my head the way it was.  Went back inside, got out my fiddle, and rosined the bow....

 

I needed something I could rip into. "Bonaparte's Retreat" found me. . . . By the time I got to the modified part B Copland had made so famous, I had to stop and breathe.  I thought of George Ellis.  Got a piece of paper and curled it into a funnel, poured the rest of my whiskey back into the bottle, and went to bed, but never to sleep.

 

It's not hard to get up if you never go down.  Dawn brought a hint that the weather might get clearer.  With enough pain pills, my head would too.  The eastern sky was bright as a wild rose as I walked stiff-backed from my woodpile with an armload for the stove.  The snow had melted, and my boots left prints on a field that, newly bared, crackled underfoot and shimmered silver; it was a beauty that would not last another ten minutes, so I dropped the firewood and stood and watched the night's frost dissolve into morning mist.  Somewhere in the tree line, a bluebird burbled a tune, but I couldn't pick him out.  It was the first songbird I'd heard that spring....

Strong writing, yes? But, how does this particular book relate to the Elder Law Prof Blog?  Well, as you may have come to expect from me by now, one reason is a central character in the mystery, ol' Aub, may -- or may not -- be too old to remember the truths of what happened.

Another reason is the author is a current Penn State Dickinson law student, and his new book has already earned a 2015 Edgar Award for best first novel and a 2015 Los Angeles Times Book Award for best mystery/thriller. 

Congratulations, Tom! 

From SSRN: "Abuse of Elders with Mental Illness" by Prof. James T.R. Jones

Professor James T.R. Jones continues to bring his unique and important perspective to bear in his latest work available on SSRN.  In Abuse of Elders with Mental Illness: Generally an International and Specifically a United States Perspective, he highlights the ways in which various types of mental illness may contribute to unique vulnerability to abuse as the individuals age.  This is a chapter from a new book, International and Comparative Law on the Rights of Older Persons edited by Ralph Ruebner, Teresa Do and Amy Taylor published by Vandeplas Publishing in May 2015. From the SSRN abstract on Professor Jones' chapter:

Elder abuse is a major international problem, and scandal.  It is so important that both the United Nations (“UN”) and the World Health Organization (“WHO”) have focused on it.  Elder abuse occurs in a variety of ways.  It can be physical abuse due to either active injury or passive neglect.  It can be psychological abuse through fear and intimidation.  It can be financial abuse due to theft or fraud.  Abusers can be strangers; healthcare workers, too often in nursing home settings; and spouses, partners, children, grandchildren, or other relatives.  Abusers may be motivated by cruelty, laziness, or greed for quick profit or a premature inheritance.

While all elders can be abused, those with mental illness are particularly vulnerable.  This group can encompass both those with longstanding mental illnesses such as major depression, schizophrenia, and bipolar disorder and those psychiatrically debilitated by age, notably including those who suffer from Alzheimer’s disease or other forms of dementia.  Victims may be living in private residential settings both alone and with family or friends or in institutions such as nursing homes.

This chapter gives a brief overview of elder abuse and then focuses on the victim population of those vulnerable because of mental illness and how they face abuse.  It discusses possible ways to reduce the incidence of abuse of those with psychiatric conditions including, among other things, mandatory abuse reporting and enhanced focus on the problem by government, in particular law enforcement, authorities and primary care and mental health care providers.

The book is another important product from John Marshall Law's summer 2014 forum examining the rights of older persons, leading to the summer' "Chicago Declaration on the Rights of Older Persons" presented before the United Nations' working session on aging.   

 

Book: One-Stop Guide to Dementia

A new book from the U.K. by June Andrews is titled Dementia: The One-Stop Guide, and it offers practical advice for families, professionals, and people living with dementia and Alzheimer's Disease. The Table of Contents suggests the scope:

1. What is dementia?
2. Getting a diagnosis
3. Adjusting to the news: for carers
4. Adjusting to the news: for people with dementia
5. What are friends for?
6. Managing care at home
7. Disturbing Behaviours
8. Your dementia-friendly home
9. What you should expect from the social care system
10. What you should expect from the NHS
11. The dangers of a hospital admission and how to avoid them
12. Some important legal issues
13. What to look for in a care home
14. Advice on complaints and sample letter

I wonder how Chapters  9 and 10 would be written from a U.S. perspective?

 

What If Harper Lee Published a Third Novel...?

George Washington Law Professor Naomi Cahn observes that it is hard to find humor in the drama that appears to underlay the publication of Harper Lee's second novel.  Professor Cahn passes along The Onion's ability to do just that with a satirical prediction of Harper Lee's third novel:  "Shocking the literary world once again, acclaimed author Harper Lee announced through her publisher Tuesday the surprise release of her third novel, My Excellent Caretaker Deserves My Entire Fortune...."

A rueful smile here... 

California State Bar Offers On-Line Guide for "Seniors and the Law"

The State Bar of California offers an on-line "guide for maturing Californians," available in PDF format.  This is an updated, 2015 version. At first I was a bit dubious, as the length is just 12 pages and the print is small. However, on closer look (and with the help of that little built-in magnifying class for reading PDF documents on line), I found it fairly comprehensive and a good starting place. It works not just for seniors but the whole family. 

Written in a logical Q & A format, often starting with "yes or no" answers before offering a more detailed explanation and suggested resources, the brochure covers topics such as:

 

• What is Supplemental Security Income?
• Can my landlord evict me for any reason at all?
• Can I install grab bars, lower my counters or make other needed modifications over my landlord's objections?
• How is Medi-Cal different from Medicare?
• How can I help ensure that my affairs will be handled my way if I become incapacitated?
• If my elderly mother gives away her assets, will Medi-Cal pay for a nursing home?

In addition, the brochure describes more subtle topics such as how "assisted living communities," may differ (and be covered by different regulations ) than "continuing care retirement communities," or why "living trust mills" are something to avoid.  It warns that insurance brokers and agents other investment advisors are prohibited in California from using "senior specific" certificates or designations to mislead consumers. 

According to the July 215 issue of the California Bar Journal, the senior guide is available in both Spanish and English, although I could only find the English version on-line.  Free print copies are available for order (although donations to offset costs are accepted!)  

Thank you to Professor Laurel Terry for sharing this resource! 

Washington Post Op-Ed: Summer Reading Suggestions for Law-Students-To-Be

George Mason University Law School Michael Krauss offers an list of books for newly admitted law students to read over their summer vacation.  Interesting selections, both expected and unexpected.  Here are a few of his recommendations from his recent Washington Post Op-Ed:

1. Truman Capote, “In Cold Blood,” 1966. Capote’s masterful account of the 1959 murders of Herbert Clutter and his family in Holcomb, Kan., “In Cold Blood” is a study in evil. It is also a provocative examination of our criminal justice system and capital punishment.

 

2. Brooke Goldstein and Aaron Eitan Meyer, “Lawfare: The War Against Free Speech,” 2011. “Lawfare,” the use of litigation as a weapon to silence and punish an opponent, is a significant challenge to free speech and rule of law today. Bad lawyers created lawfare; good lawyers must combat this subversion of the goals of our profession.

 

3. Harper Lee, “To Kill a Mockingbird,” 1960. Read this high school favorite again, and this time focus on the jurists: the judge, the prosecutor and defense attorney Atticus Finch himself. Did Atticus react ethically to the racism of the system? How should you behave, as a lawyer, when presented with a case of flagrant injustice?

At least a couple of the selections, including the Federalist Papers and the reasons for suggesting B.F. Skinner's Walden Two, strike me as uniquely consistent with George Mason Law's approach to "law and economics."   But I also suspect that even seasoned law professors could benefit from any of these relevant, if perhaps unusual, summer "beach" reads. 

Symposium Issue Responds to Hartog's "Someday All This Will Be Yours"

The Spring 2015 issue of the ABA publication Law & Social Inquiry has a great symposium review section offering a broad array of essays, commenting on Hendrik Hartog's important book Someday All this Will Be Yours: A History of Inheritance and Old Age (Harvard University Press: 2012). 

The impressive list of contributors includes:

• Naomi Cahn (George Washington Law), Continuity and Caregiving: Comments on Someday All This Will Be Yours
• Mary Anne Case (University of Chicago Law), When Someday is Today: Carrying Forward the History of Old Age and Inheritance into the Age of Medicaid
• Nina A. Kohn (Syracuse Law), The Nasty Business of Aging
• Dorothy E. Roberts (University of Pennsylvania Law), Race, Care Work, and the Private Law of Inheritance

Plus, historian Hendrik Hartog provides his own commentary and response! 

• Hendrik Hartog (Princeton), Somedays I Have Second Thoughts.

Suffice it to say if you appreciated Hartog's book, you will thoroughly enjoy his additional musings on how he came to write it and what it might mean for the future. 

The comments are engaging and relatively brief -- but should still keep you busy on a summer weekend.

On the Importance of "Being Mortal"

During the last six months, the book most often recommended to me has been Being Mortal, written by Boston surgeon (he's more than that...) Atul Gawande.  Now I too can recommend this book to others.

What is unusual about this book is that it reminds us how deeply doctors themselves are affected by the strengths and limits of their profession, while also helping everyone think more deeply about key issues of living and dying.  The author is a candid, persuasive writer.  Early in the book, Dr. Gawande explains:

"You become a doctor for what you imagine to be the satisfaction of the work, and that turns out to be the satisfaction of competence.  It is a deep satisfaction very much like the one that a carpenter experiences in restoring a fragile antique chest or that a science teacher experiences in bringing a fifth grader to that sudden, mind-shifting recognition of what atoms are.  It comes partly from being helpful to others.  But it also comes from being technically skilled and able to solve difficult, intricate problems.   Your competence give you a secure sense of identity.  For a clinician, therefore, nothing is more threatening to who you think you are than a patient with a problem you cannot solve.

 

There's no escaping the tragedy of life, which is that we are all aging from the day we are born.  One may even come to understand and accept this fact.  My dead and dying patients don't haunt my dreams anymore.  But that's not the same as saying one knows how to cope with what cannot be mended.  I am in a profession that has succeeded because of its ability to fix.  If your problem is fixable, we know just what to do.  But if it's not?  The fact that we have no adequate answers to this question is troubling and has caused callousness, inhumanity, and extraordinary suffering. 

 

This experiment of making mortality a medical experiment is just decades old.  It is young.  And the evidence is it is failing...."

Pretty potent stuff, right? 

Related articles

Being Mortal by Atul Gawande - A Scrub Notes Review

New York Times Best Sellers at ACLS for June 7, 2015

A Time for Heart to Heart Conversations With Family and Caregivers

An essay I read when it was first published in the New York Times Magazine in 2010, "What Broke My Father's Heart," has stayed with me.  It is the deeply personal tale of a journalist-daughter's observation of her father's last years, as his pacemaker kept his heart pumping while dementia destroyed his quality of life.  The daughter, Katy Butler, later turned the story, supplemented by impressive research, into a book, Knocking on Heaven's Door: The Path to a Better Way of Death. 

In the essay, one of the key moments in the chronology was when Katy's father faced the prospect of surgery for a painful inguinal hernia, which doctors were not willing to perform unless his weak heart was first aided by implementation of a pacemaker.  Earlier, his father, while still competent, had rejected a pacemaker, but the decision was now in the hands of his wife because of his dementia:

"When [Dr.] Rogan suggested the pacemaker for the second time, my father was too stroke-damaged to discuss, and perhaps even to weigh, his trade­offs. The decision fell to my mother — anxious to relieve my father’s pain, exhausted with caregiving, deferential to doctors and no expert on high-tech medicine. She said yes. One of the most important medical decisions of my father’s life was over in minutes."

Ms. Butler makes it pretty clear that if the decision had been hers alone, she would not have made the same choice as her mother.  Additional research demonstrates the medical, moral and legal dilemmas faced by all parties in considering the use of pacemakers for the elderly.  For example, in "Pacing Extremely Old Patients: Who decides -- the doctor, the patient, or the relatives?," two physicians in the U.K. report on a three-case study where individuals, family members and doctors were not in agreement about implantation of pacemakers for patients aged 101, 90, and 87.

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Thinking About Fiduciary Duty As A Core Concept for "Elder Law"

I tend to think of "Elder Law" as a subset of "Laws and Policies of Aging."  Given what appears to me to be a steady increase in public concern about ways in which some older persons are exploited financially, it occurs to me that we may be at a point where "fiduciary duty" is becoming a central -- perhaps even the central -- concept for the future practice of Elder Law, overtaking even Medicaid planning and end-of-life health care planning. Seasoned practitioners already know that the "million dollar question" in Elder Law is "who is my client?" -- a question intimately tied to carrying out fiduciary duties as an attorney.

Along that line, I've been digging into my stack of "must read" books, a stack that is always a threat to my safety as it gets taller and taller no matter how fast and furiously I read. I'm very much enjoying a book by Boston University Law Professor Tamar Frankel titled, simply enough, Fiduciary Law (Oxford University Press, 2011). 

Early in the book, the author, whose teaching and research interests include corporation governance and regulation of financial systems, proposes a definition of "fiduciary relationships," which I find both intriguing and conducive to discussion.  I don't think it is taking too much away from her full book, to repeat the four features Professor Frankel proposes as triggering fiduciary duties.  She writes:

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