Elder Law Prof Blog

Register Now-Webinar on Guardianship Systems & Practices

The National Center on Law & Elder Rights has announced a webinar on Thursday September 22, 2022 at 3 eastern on Strengthening Rights & Ensuring Accountability in Guardianship Systems & Practice.   Here's a description

Improvements to state court adult guardianship systems can include the promotion of less restrictive options, strengthening rights, and ensuring accountability. Making significant changes in practice and systems requires the commitment of many parties, including courts and the legal, aging, and disability communities.

Join us for Part 1 of this training series to learn about models and promising practices to reform guardianship being implemented by three “highest state court” recipients of the ACL Elder Justice Innovations Guardianship Improvement grant program (Maryland, Minnesota, and Oregon).

This training will also preview Part Two of this series, which will focus on strategies for legal advocacy for proposed protected persons and protected persons.  

Presenters will share strategies they are implementing to:

1. Address diversion from, alternatives to, and revocation of guardianship;
2. Redress occurrence and risk of abuse, neglect, and exploitation in guardianship; and
3. Enhance the fairness, effectiveness, timeliness, safety, and integrity of adult guardianship or conservatorship proceedings.

Speakers:

• Hilary Dalin, Office of Elder Justice and Adult Protective Services, Administration on Aging Administration for Community Living
• Nisa C. Subasinghe, Maryland Judiciary
• Jamie Majerus, Minnesota Judicial Branch
• Christian Hale, Oregon Judicial Department
• Jeffrey Petty, Oregon Judicial Department
• Jessica Brock, Indiana Legal Services

Closed captioning will be available on this webcast. A link with access to the captions will be shared through GoToWebinar’s chat box shortly before the webcast start time.

This training will be presented in a WEBCAST format to accommodate more participants. Due to the high volume of participants, computer audio will be the only option to listen to the presentation. No telephone call-in number will be provided. Please plan accordingly. Thank you. 

This webcast will be recorded and available on our website shortly after the presentation. The recording and training materials will also be emailed to all registrants within a few days after the training.

The webcast will take place on Thursday, September 22, 2022, at 12:00 p.m. P.T./3:00 p.m. ET and will run for 75 minutes.

To register, click here.

Planning for Your Special Needs Child and Retirement

The New York Times ran this article last week. Planning for Your Retirement, and for a Child’s Special Needs, All at Onceexplains "[f]or parents of children who have serious disabilities or special needs, the challenges of growing and preserving their wealth are magnified exponentially, and the stakes are much higher. While they are trying to plan for their own retirements, these parents need to simultaneously secure the ‌ stability of a son or daughter who will be dependent on them‌ until — and even  after — their deaths." The article does a good job of framing and discussing the issues and options and provides good examples.

Hearing Loss, Cataracts, and Dementia

There seem to be a lot of articles in the media currently discussing the statistical relationship between hearing loss and dementia.  Of course, we need to remember the axiom that "correlation does not necessarily mean causation."  Still, recent studies and informed observations are intriguing.  For example one study underway is looking at whether treating hearing loss can reduce the risk of cognitive decline.  

Johns Hopkins is leading a large National Institute on Aging study to see if hearing aids can safeguard seniors’ mental processes. The study has multiple locations and has recruited nearly 1,000 people ages 70–84 with hearing loss. One group is provided hearing aids, while another group receives aging education. By early 2023, the study should provide definitive results on whether treating hearing loss will reduce the risk of cognitive decline. In essence, we’ll know whether the use of hearing aids can potentially reduce brain aging and the risk of dementia.

Some of this research is going beyond examining the potential for common causes for the two processes (such as poor diet and inadequate exercise, as well as uncontrolled blood pressure or weight).  Researchers are asking whether a failure to hear clearly can actually damage the brain's function.  NPR's Sunday Edition (8.21.2022) includes  a five minute interview with Dr. Frank Lin, at John Hopkins Bloomberg School of Public Health, who addresses three "major brain mechanisms" that may be affected by untreated hearing impairments: (1) the potential impact of the load on a brain from having to work harder; (2) the potential for hearing loss to actually affect the integrity of the brain's structure  because of atrophy of an essential function, and (3) the potential for loss of hearing to contribute to social isolation, further reducing engagement that keeps people (and their brains) interacting with the world around them. 

Dr. Lin is also pleased about the FDA finally opening access for Americans to purchase over-the-counter hearing aids, a change he's worked on and supported for some eight years.  He points out that currently only some 15 to 20% of Americans who could benefit from hearing assistance are getting the help they need, probably because of high costs and reluctance to see doctors. Dr. Lin says that any theoretical risks from over-the-counter sales (such as over- or under-amplification) is significantly outweighed by the benefits. 

Oh, and while I'm at this, the research suggesting that older people who have cataracts removed may be "nearly 30% less likely to develop dementia" is also interesting.

Hearing Loss, Cataracts, and Dementia

There seem to be a lot of articles in the media currently discussing the statistical relationship between hearing loss and dementia.  Of course, we need to remember the axiom that "correlation does not necessarily mean causation."  Still, recent studies and informed observations are intriguing.  For example one study underway is looking at whether treating hearing loss can reduce the risk of cognitive decline.  

Johns Hopkins is leading a large National Institute on Aging study to see if hearing aids can safeguard seniors’ mental processes. The study has multiple locations and has recruited nearly 1,000 people ages 70–84 with hearing loss. One group is provided hearing aids, while another group receives aging education. By early 2023, the study should provide definitive results on whether treating hearing loss will reduce the risk of cognitive decline. In essence, we’ll know whether the use of hearing aids can potentially reduce brain aging and the risk of dementia.

Some of this research is going beyond examining the potential for common causes for the two processes (such as poor diet and inadequate exercise, as well as uncontrolled blood pressure or weight).  Researchers are asking whether a failure to hear clearly can actually damage the brain's function.  NPR's Sunday Edition (8.21.2022) includes  a five minute interview with Dr. Frank Lin, at John Hopkins Bloomberg School of Public Health, who addresses three "major brain mechanisms" that may be affected by untreated hearing impairments: (1) the potential impact of the load on a brain from having to work harder; (2) the potential for hearing loss to actually affect the integrity of the brain's structure  because of atrophy of an essential function, and (3) the potential for loss of hearing to contribute to social isolation, further reducing engagement that keeps people (and their brains) interacting with the world around them. 

Dr. Lin is also pleased about the FDA finally opening access for Americans to purchase over-the-counter hearing aids, a change he's worked on and supported for some eight years.  He points out that currently only some 15 to 20% of Americans who could benefit from hearing assistance are getting the help they need, probably because of high costs and reluctance to see doctors. Dr. Lin says that any theoretical risks from over-the-counter sales (such as over- or under-amplification) is significantly outweighed by the benefits. 

Oh, and while I'm at this, the research suggesting that older people who have cataracts removed may be "nearly 30% less likely to develop dementia" is also interesting.

Can We Hear You Now? FDA Gives Final Approval for Over-the-Counter Hearing Aid Sales

The Food and Drug Administration issued its final ruling today permitting over-the-counter sales of certain types of hearing aids. The ruling takes effect in 60 days. As FDA explains:

This action establishes a new category of over-the-counter (OTC) hearing aids, enabling consumers with perceived mild to moderate hearing impairment to purchase hearing aids directly from stores or online retailers without the need for a medical exam, prescription or a fitting adjustment by an audiologist. 

 

The rule is expected to lower the cost of hearings aids, furthering the Biden-Harris Administration’s goal of expanding access to high-quality health care and lowering health care costs for the American public. It is designed to assure the safety and effectiveness of OTC hearing aids, while fostering innovation and competition in the hearing aid technology marketplace. . . . 

 

Concurrently with issuing the final rule, the FDA also issued the final guidance, Regulatory Requirements for Hearing Aid Devices and Personal Sound Amplification Products (PSAPs), to clarify the differences between hearing aids, which are medical devices, and PSAPs, consumer products that help people with normal hearing amplify sounds.  

This could be "huge" for helping older adults.  I know that for many adults, not just the older adults I've worked with, it is terribly frustrating to be unable to hear properly.  Plus, I think that for some people, the ability to "try" a wider range of devices, without the time and expense of visiting specialized doctors, may facilitate "realism."   

At the same time, I worry that for some older adults, who actually are willing to see their hearing aid doctor, sometimes it was this doctor or specialist who caught the "real" problems, including the potential for mild cognitive impairment.  Could we miss those opportunities for more holistic health evaluations? 

 

Upcoming in November before USSC: Do Residents have Private Rights of Action for Violations of Federal Nursing Home Reform Act?

For those teaching Elder Law, Health Law, and Disability Law Courses this semester, there is a unique opportunity for students to hear relevant oral arguments before the United States Supreme Court.  One of the important federal laws that arguably changed -- for the better -- the standards for care in nursing homes was the Federal Nursing Home Reform Amendment of 1987 (FNHRA, adopted as part of OBRA '87).  But a long-festering central issue for the provisions known as the "Residents' Bill of Rights" is whether the law provides residents a privately enforceable right of action for alleged violations of the standards.  On November 8, 2022, the United States Supreme Court is scheduled to hear oral argument on two key concerns:

1. Whether in light of historical cases to the contrary, the Court should reexamine its holding that Spending Clause-related legislation confers a implied right to privately enforceable rights under 42 U.S.C. Section 1983; and
2. Whether, assuming Spending Clause statutes ever give rise to enforceable private rights under Section 1983, there are private rights of action for alleged violations of the Federal Nursing Home Reform Act's transfer and medication rules.

The case in question is Health & Hospital Corp. v. Talevski, originally filed in the United States District Court (Northern District) of Indiana.  Mr. Talevski, who has dementia, through his wife, alleges that while living in a nursing facility, he was prescribed powerful medications despite his family's objections, which functioned as prohibited "chemical restraints imposed for purposes of discipline or convenience rather than treatment." Further, he alleges he was improperly transferred over their objections away from the local care facility to a different, more distant facility.  Federal spending laws are at issue because the state's long-term care facilities are eligible for federal dollars and the state receives federal funding, including Medicaid funding, for such nursing care.  In this case, the District Court held that there was no private right of action. 

The U.S. Court of Appeals for the 7th Circuit reversed, at 6 F.4th 713 on July 27, 2021, finding that in the Act, "Congress spoke of resident rights, not merely steps the facilities were required to take.  This shows an intent to benefit nursing home residents directly." (emphasis in the original).  In reaching this decision, the 7th Circuit joined rulings by the 9th (2019) and 3rd (2009) Circuits directly confirming private rights of action under FNHRA. 

The Petitioner Nursing Facility seems to be playing to the newest justices on the Court, arguing that a long line of Spending Clause cases willing to recognize a cause of action under Section 1983, including Blessing  v. Freestone, 520 U.S. 329 (1997), are incorrectly decided or too generous in their willingness to recognize or infer fact-specific, private rights of action.  The Petitioner's argument is supported by an amicus brief, including one submitted on behalf of twenty-two states, resisting the financial implications of accountability asserted by individual patients.   The United States has submitted an amicus brief that expresses general support for individual actions, but argues against such a cause of action for nursing home residents. 

But, as one legal studies student observed in 2013 about what happens when minimum standards are not adequately enforced by authorities: 

Even though conditions in nursing homes have improved since the passing of the Federal Nursing Home Reform Amendment of 1987, the existence of substandard care in nursing homes, which Congress attempted to correct with the statute, still exists today. . . . [A case such as Grammer v. John J. Kane Reg'l Ctrs-Glen Hazel, 570 F.3d 520 (3d Cir. 2009) recognizing the right of residents to bring private actions under 1983] does open the door for state-run nursing homes to be held accountable for abuse and substandard care. . . . Considering that most of us at some point in our future will live the nursing-home experience first-hand, we should keep this topic on our radar.

Susan J. Kennedy, "Conflict in the Courts: The Federal Nursing Home Reform Amendment and Section 1983 Causes of Action,"  3 Law Journal for Social Justice 195, 209 (2013).  Some ten years later, the resident's case before the Supreme Court appears to have strong amici support, with amici briefs due in mid-September, arguing that without residents' ability to enforce their legal rights, "they will lose a powerful weapon for their protection.  This puts them at risk of harm and even death, as abuse, neglect and poor care are rampant in many facilities." Id. 

Horse Therapy Provides Boost to Elders with Dementia

Ending the week on happy note due to this Washington Post article, A ‘magical’ treatment for seniors with dementia: Horse therapy.

Painting [on the horses] is not mandatory in this equine-assisted learning program, but it is one of the many ways participants are taught to engage with horses, with the goal of stimulating their minds and bodies. Since 2017, Simple Changes Therapeutic Riding Center in Mason Neck, Va., has teamed up with Goodwin Living, a senior living and health-care facility in Alexandria, to introduce residents with cognitive impairment and anxiety to the residents of its barn.

Up to six people at a time participate in the four-week sessions, which include horse identification, grooming, feeding, leading, discussing equine literature, poetry and haiku writing, and making horse treats. The collaboration began when Barbara Bolin, a social worker at Goodwin House Alexandria and a lifelong rider and horse owner, reached out to Corliss Wallingford, the nonprofit equine therapy organization’s executive director.

Read the article and look at the accompanying photos. Doing so will end your week with a smile.

Questions Arise About Validity of 2006 Alzheimer's Study?

Last month, Science magazine published an article, BLOTS ON A FIELD? A neuroscience image sleuth finds signs of fabrication in scores of Alzheimer’s articles, threatening a reigning theory of the disease.   One researcher recently noted that there were concerns about the 2006 study, including concerns about "image tampering"  There is no smoking gun and the article explains how this one expert became concerned. The article has technical materials in it, so read it and form your own opinion.

New Videos from Center for Elders & Courts

The Center for Elders and the Courts has released some new videos you will want to view. First is the Probate Court staff video series which

Provides information and tools for probate court staff that wish to implement more rigorous conservatorship and guardianship monitoring. The series emphasizes important aspects of case management, report tracking, responses to potential fraud and abuse, and financial monitoring, including comparing assets, expenses and budgets over time and highlighting common problem areas to look out for. Intended for courts across the country and thus necessarily general in nature, the videos are particularly helpful to courts that currently lack local training resources. A separate series of videos for conservators helps them understand their role and how to prevent misuse of resources.

Next is a series for conservators.

In this short five-part video series, [the National Center for State Courts] provides information and tools for those who are thinking about becoming a conservator or conservators who have already been appointed by a court. The series gives an overview of what conservatorships are, the conservator’s responsibilities and role in protecting assets, why courts monitor expenses, and which expenses are allowable. Intended for the public and courts across the country and thus necessarily general in nature, the videos are helpful as an additional training resource but do not replace specific requirements and guidelines set by the local court.

 

 

7th World Congress on Adult Capacity 2022

I have heard that the 7th World Congress on Adult Capacity 2022 was quite successful. I was excited to see that the conference organizers have published a link to download the various presentations.  The link is available here and then choose the presentations you wish to download.

When Was the Last Time You Had Your Eyes Checked?

You may be thinking to yourself, what does that have to do with elder law?  Well, read this article from the New York Times,  New Dementia Prevention Method May Be Behavioral, Not Prescribed. Here's the crux of the article: "[p]ublic health experts and researchers argue that it is past time to turn our attention to a different approach — focusing on eliminating a dozen or so already known risk factors, like untreated high blood pressure, hearing loss and smoking, rather than on an exorbitantly priced, whiz-bang new drug."  So now, about getting your eyes checked....

The latest modifiable risk factor was identified in a study of vision impairment in the United States that was published recently in JAMA Neurology. Using data from the Health and Retirement Study, the researchers estimated that about 62 percent of current dementia cases could have been prevented across risk factors and that 1.8 percent — about 100,000 cases — could have been prevented through healthy vision.

What other risk factors should we conside?

The influential Lancet Commission began leading the modifiable risk factor movement in 2017. A panel of doctors, epidemiologists and public health experts reviewed and analyzed hundreds of high-quality studies to identify nine risk factors accounting for much of the world’s dementia: high blood pressure, lower education levels, impaired hearing, smoking, obesity, depression, physical inactivity, diabetes and low levels of social contact.

In 2020, the commission added three more: excessive alcohol consumption, traumatic brain injuries and air pollution. The commission calculated that 40 percent of dementia cases worldwide could theoretically be prevented or delayed if those factors were eliminated.

So let me add to my initial question: when was the last time you had you had your vision and hearing checked?  No time like the present...

Advice for Caregivers

The New York Times recently published a guide for caregivers, How to Be a Caregiver.

The article contains 6 tips from caregivers: "1. Let the patient lead... 2. Focus on comfort...3. Listen to the experts. ..4. Talk to other caregivers...5. Take care of yourself...6. Shed the guilt."  Don't think you will find yourself caregiving? Consider this information from the article: "21.3 percent of U.S. adults are caregivers, according to Caregiving in the U.S. 2020, a report from the National Alliance for Caregiving and AARP. The report defines a caregiver as someone who has provided care to an adult or a child with special needs at some time in the past 12 months. The number of caregivers is growing, and now totals about 53 million adults, up 20 percent from 43.5 million caregivers in 2015."

The article provides these facts

• Most caregivers (about 90 percent) take care of a relative, usually a parent or spouse, while 10 percent care for a friend or neighbor.
• Women are more likely to be caregivers than men, and make up about 60 percent of unpaid caregivers.
• While most caregivers of adults take care of just one person, nearly one in four (24 percent) takes care of two or more people, up from 18 percent in 2015.
• More young people are taking on caregiving roles. About a third of caregivers are 39 or younger, and 6 percent of them are from Generation Z — age 23 or younger.
• Caregiving is time consuming. On average, today's caregivers provide about 24 hours of care each week. And most of them (61 percent) have another job.
• Caregiving takes a toll on health. More Americans (23 percent) say caregiving has made their own health worse, up from 17 percent in 2015.

The article includes suggestions on how to prepare, what you need to organize, and where to find help. Bookmark the article!

Two Hundred Years of Guns.... What if you knew the outcome when you were writing the Second Amendment?

Alexander Merezhko, a good friend since he was a visiting Fulbright Scholar at Dickinson Law from his home country of Ukraine, is now a member of Ukraine's parliament and a senior legal advisor to President Zelenskyy.  We email regularly about events in our respective countries; of course, there is a lot for us to discuss.  Recently, Alexander mentioned that discussions were underway about legalizing individual gun ownership in his country.  Suffice it to say, Professor Merezhko is worried about what happens after the war.  It seems likely the assault by Russian forces motivates those debates in Ukraine, but what about the future?  A similar struggle, America's own then-recent war for independence, was part of the context for the language of the Second Amendment to the U.S. Constitution, beginning with the words, "A well regulated Militia, being necessary to the security of a free State...."  

Could America's Founding Fathers have dreamed that the contextual phrase would be dismissed as significant and the remaining words of the Second Amendment would be treated as a mandate that permits unrestricted sales of weapons to individuals who are not part of any well-regulated system?  There is a very interesting article with historical  details I've never considered in The New Yorker, titled How Did Guns Get So Powerful?From the article by Phil Klay:

We wonder how we got here. How did guns grow so powerful—both technically and culturally? Like automobiles, firearms have grown increasingly advanced while becoming more than machines; they are both devices and symbols, possessing a cultural magnetism that makes them, for many people, the cornerstone of a way of life. They’re tools that kill efficiently while also promising power, respect, and equality—liberation from tyranny, from crime, from weakness. They’re a heritage from an imagined past, and a fantasy about protecting our future. It’s taken nearly two hundred years for guns to become the problem they are today. The story of how they acquired their power explains why, now, they are so hard to stop.

Why am I writing about guns (again) in the Elder Law Prof Blog?  The need for better support for mental health for youth and elders is part of what needs to be addressed.  Sadly, guns are part of a larger story not just for 18 year-olds in New York or Texas, but also for older Americans, as "firearm suicides are one of the leading causes of death for older Americans."  See Firearm Suicides in the Elderly: A Narrative Review and Call for Action, published in 2021 in the Journal of Community Health.  

Webinar on Person-Centered Decision-making as Alternative to Guardianship

Here's one more webinar to close out this week.  Pathways to Person-Centered Decision-Making and Alternatives to Guardianship is scheduled for June 21 at 3 eastern. Here is the description:

Person-centered practice is grounded in the idea that people with disabilities are the decision makers in their own lives. Supporting people to make choices is a priority for person-centered systems. Too often people with disabilities are appointed guardians. When people have guardians, their ability to make choices may be significantly constrained in the name of keeping them safe.

This webinar will explore how disability systems are expanding alternatives to guardianship, such as supported decision-making where people choose supporters to help them make important decisions in their lives. Current efforts across the country and internationally to implement supported decision-making and other alternatives provide an historic opportunity to help people take control of their lives. In this webinar, national experts, state representatives, advocates, and people with lived experience of disability from Colorado, Georgia, and Wisconsin, will outline strategies for systems and a new NCAPPS resource to expand supported decision making so that more people can benefit from these alternatives to guardianship.

To register, click here.

 

When It Comes to Guns, Age Matters

I suspect I'm not alone in thinking about guns this morning in the wake of the Texas shooting at a grade school in Uvalde Texas.  This post reflects matters I've been thinking about for a long time.  Indeed, thirty years ago I considered making gun violence a core academic research topic, until I realized how potent is the lobby supporting gun sales, and therefore gun ownership.

First, this morning I listened to a young man, David Hogg, speaking to an NPR interviewer about his own frustrations in opposing gun violence.  He urged legislators at state and national levels to do at least "one thing" to move forward on gun safety legislation.  My first reaction was "one thing?"  How is that going to help?  

Second, I heard a bit more about the background of the 18 year old shooter in Texas, as well as the background of the similarly-aged shooter in Buffalo New York.   More memories.  In one of my previous lives, I volunteered for a neighborhood tutoring program in New Mexico.  My first two students, in high school, had been sent to the program by judges trying to help youths in crime-related incidents.  One young man attended once -- and then disappeared.

I managed to have a good session with the other student, a junior in high school, who at my request wrote a short essay about what he saw as his future.  The 500 word piece was quite well written, and gave us something we could definitely use to gently work to improve his reading and writing skills.  The focus, however, proved to be a window into the bleak outlook of a young man who was involved in a so-called gang.  To put it simply, he saw no future for himself after high school.  He said with utter confidence that his high school "had" to graduate him regardless of whether he did any more work, as long as he merely attended class.  I didn't want to believe that, but he had plenty of evidence to support his hypothesis. He didn't have any post graduation plans.  He had equal confidence that he probably wasn't going to make it to age 21.  The following week during our tutoring session, he was creative in his resistance to my role as a tutor.  He turned in his next essay, but it was written entirely in what was some sort of "tagger's script," the stylized script he used when spray-painting his messages on public building.  Tagging was his only crime at that moment.  

I eventually decided to volunteer for younger students, and in fact I had a two-year working student-tutor relationship with a grade school boy who was in the program at his mother's insistence.  Actually, I got to know the whole family, including his parents and a sister who also sometimes attended our reading sessions (and she helped turn reading into a competitive adventure).  To mark the success of his "graduation" from the program, we went to a Phoenix Suns basketball game, because the opposing team that day had a player much admired by my student.  At his comparatively "youthful" age, he had written about his plans for the future, including somehow, against all genetic odds, planning to "grow" tall enough to be a professional basketball player, like his idol, Nate Archibald.  We talked about coaching as an alternative -- just in case.

I remember the difference in these individuals as I listen to the troubled histories of the two "boys" who bought guns as part of their 18th birthday celebrations.  I don't know what happened to most of the other the students involved in the tutoring program.  The second student dropped out of the program for reasons I never learned, but I later saw his name in the newspaper when he was accused of being the driver in a car-jacking where his "friend" shot the woman who resisted having her car taken.  Sadly, that student's essay was prophetic, as any true dreams for a future may have ended with that crime.

So, if we are going to do at least "one thing," could we -- should we -- focus on raising the threshold age for gun ownership?  Should we give young people in their late teens more  time to grow older (and "taller" or more mature) and thus to reach a point where the future seems brighter?  I'm not suggesting they cannot participate in shooting sports, hunting, and the military, where we hope their use and skill building would be supervised by knowledgeable people. I am suggesting making it unlawful for them to "own" or at least to purchase guns until they are older. Research suggests that substantially more crimes of gun violence against others are committed by individuals between the ages of 17 and 21.  There is research to support restricting gun ownership (and therefore gun sales) to individuals over 21 as one step forward in terms of safety. 

For example, in June 1999, a "collaborative report" under the auspices of the U.S. Department of Justice noted in part:

In 1996, 26,040 people in the United States were killed with guns.  In 1997, offenders age 18, 19, and 20 ranked first, second, and third in the number of gun homicides committed.  Of all gun homicides where an offender was identified, 24 percent were committed by this age group, which is consistent with the historical pattern of gun homicides over the past 10 years.  

Other statistics suggest that gun-related suicide death rates are highest for females age 45 to 64 and for males age 75 and older, statistics that point to another form of age-specific gun tragedies. Age matters.

That first boy who "disappeared" after the first tutoring session?  I later learned he had been killed in a neighborhood shooting.  Would younger adults support delayed lawful-ownership as one form of protection against gun violence?   Certainly, more is needed on so many other levels including mental health supports. But could "one thing" -- at least -- include blocking gun sales to people who are still in the process of learning to plan for the future, for their futures?  

 

National Guardianship Network New Video

The National Guardianship Network [Has Released A] New Video with Recommendations for Reforming Guardianship System.This video 

showcases the highlights of the Fourth National Guardianship Summit and the 22 recommendations to reform and improve state guardianship systems. The video also addresses the history of these national summits, the importance of the Fourth Summit and the main topics discussed during the Summit:

• Rights of Persons Subject to Guardianship

• Supported Decision-Making

• Limited Guardianship, Protective Arrangements, and Guardianship Pipelines

• Rethinking Monitoring and Addressing Abuse by Guardians

• Fiduciary Responsibilities and Tensions

• Developing a Guardianship Court Improvement Program

To view the video, click here.

What's A Neighbor to Do? When friends need assistance....

This tends to happen in waves, but I've been receiving a lot of calls lately from people who are concerned about an aging neighbor or a casual friend. 

For example, in one communication, the caller was worried about a neighbor lady in her 80s who had stopped her on the sidewalk recently to ask for a recommendation for an attorney to come to her house.  She seemed to want help "working out a proper arrangement" for a younger person to live in her house on a rent-to-own type of contract.  The older neighbor didn't seem to have money to maintain the house.  A complication -- more than a solution -- was the fact the woman had adult children, but didn't want to "bother" them and they lived out-of-town.

In the second situation, it was an early morning text, asking for help for a friend, where an agent, operating under a "new" Power of Attorney, was denying permission for the live-in Significant Other to visit the friend now that she was in assisted living.  Apparently the SO was raising objections about  the quality of care (or maybe just the lack of appropriate care) in AL.  Suddenly a POA surfaced, purporting to give authority for an out-of-state relative to direct the AL to deny the SO's visits because they were disturbing the patient.   

Red flags everywhere in these fact patterns.

Both of these fact patterns are variations on a theme.   Protective service units (if they have sufficient staffing) and long-time Elder Law attorneys can often respond effectively.  But one of the biggest changes I've found since the pandemic is finding "live" people who might be available and willing to help. Shortages of staff, overworked solo attorneys, budget cutbacks -- all play a part of the challenges to find effective services to assist older adults.

All of this puts a premium on advance planning -- for more than "just" wills or trusts.

When we wait until we are already seriously ill or until we are in our 80s, we are running a huge risk that we won't get the advice and counsel we need to make sound, effective choices.  We need to make these plans while we still "clearly" have capacity.  If the person with cancer had added instructions and her preferences about visitors before surgery, it would be less likely she is denied time with someone who cares enough to seek better care.  

 

What's A Neighbor to Do? When friends need assistance....

This tends to happen in waves, but I've been receiving a lot of calls lately from people who are concerned about an aging neighbor or a casual friend. 

For example, in one communication, the caller was worried about a neighbor lady in her 80s who had stopped her on the sidewalk recently to ask for a recommendation for an attorney to come to her house.  She seemed to want help "working out a proper arrangement" for a younger person to live in her house on a rent-to-own type of contract.  The older neighbor didn't seem to have money to maintain the house.  A complication -- more than a solution -- was the fact the woman had adult children, but didn't want to "bother" them and they lived out-of-town.

In the second situation, it was an early morning text, asking for help for a friend, where an agent, operating under a "new" Power of Attorney, was denying permission for the live-in Significant Other to visit the friend now that she was in assisted living.  Apparently the SO was raising objections about  the quality of care (or maybe just the lack of appropriate care) in AL.  Suddenly a POA surfaced, purporting to give authority for an out-of-state relative to direct the AL to deny the SO's visits because they were disturbing the patient.   

Red flags everywhere in these fact patterns.

Both of these fact patterns are variations on a theme.   Protective service units (if they have sufficient staffing) and long-time Elder Law attorneys can often respond effectively.  But one of the biggest changes I've found since the pandemic is finding "live" people who might be available and willing to help. Shortages of staff, overworked solo attorneys, budget cutbacks -- all play a part of the challenges to find effective services to assist older adults.

All of this puts a premium on advance planning -- for more than "just" wills or trusts.

When we wait until we are already seriously ill or until we are in our 80s, we are running a huge risk that we won't get the advice and counsel we need to make sound, effective choices.  We need to make these plans while we still "clearly" have capacity.  If the person with cancer had added instructions and her preferences about visitors before surgery, it would be less likely she is denied time with someone who cares enough to seek better care.  

 

Victoria Law Foundation Hosts International Access to Justice and Legal Services Forum in Australia March 30 through April 1

I had the unique privilege of joining an interdisciplinary team of professionals discussing timely concerns about access to justice for older persons, not only in the host country of Australia but around the world.  Our session, entitled Legal Need, Empowerment and Older People, began with Susannah Sage Jacobson and Eileen Webb, academics from the University of South Australia, who addressed ageism and specific examples of abuse, followed by Frances Batchelor, Acting Director of the Australian National Ageing Research Institute, discussing new consumer-based research on quality of residential care.  The International Access to Justice Online Forum is hosted by the Victoria Law Foundation and the UCI Law Civil Justice Research Initiative, with panelists across the three days of programming from Australia, the U.S, Canada, New Zealand and the U.K.  There is still time -- depending on which side of the international date line you reside -- to catch more presentations as the event runs through April 1, 2022.

In addition, research papers and reports and video captures of the program are being posted online.  Take a good look!  

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 rietz@illinois.edu."

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