Elder Law Prof Blog

Canada Medically-Assisted Death

The New York Times recently ran this article, Is Choosing Death Too Easy in Canada? "Last year, Canada changed its assisted death law, permitting people with chronic, “grievous and irremediable” conditions and physical disabilities to commit suicide, even if they are not terminally ill."  As far as how Canada compares to other countries, "Canada is among 12 countries and several American states where assisted death is permitted in certain circumstances. Since last year, it has been one of at least three — including Belgium and the Netherlands — that allow an assisted death if the person is suffering from a chronic painful condition, even if that condition is not terminal."  Part of what is causing debate, according to the article, is a change that takes effect in March of 2023, when "the law will expand again, to apply to people with some mental disorders. A Parliamentary committee of lawmakers is studying what standards should govern those cases; its report is expected in the fall."  The article discusses views of opponents and proponents and includes some stories of Canadians. Read the article. It will be great for a basis for class discussion!

 

 

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.

World Elder Abuse Awareness Day 2022

Tomorrow is the day-World Elder Abuse Awareness Day 2022. Lots of activities are happening in observation of the day.  Here are just a couple.  Register for the 8th Global Summit here. Or check out the Connecticut program, "On World Elder Abuse Awareness Day, June 15, Danbury Age Well Community Council presents a panel of experts to identify, prevent, and address financial exploitation of older adults in our community." To register for this Connecticut zoom program, click here. (Thanks to Judge Yamin (one of the speakers) for alerting me to the Connecticut program).  What are you doing to observe the day?

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.  

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!  

Australian Discussion About UN Convention on the Rights of Older Persons

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

Roundup of Articles Part 2

Here are the rest of the news items I mentioned in yesterday's post.

Nursing Homes Bleed Staff as Amazon Lures Low-Wage Workers With Prime Packages

National Guard Empties Bedpans and Clips Toenails at Nursing Homes

Why Older Women Face Greater Financial Hardship Than Older Men

From my friend Morris Klein, Increasing Medicaid’s Stagnant Asset Test For People Eligible For Medicare And Medicaid Will Help Vulnerable Seniors

Nursing Hone Visitation FAQ ( CMS updated January 6, 2022).

A Catch-22 Trips Up Some in Legal Guardianship Who Try to Regain Independence

Man becomes first person in Colombia with non-terminal illness to die by legal euthanasia

and

Colombian woman dies by euthanasia after historic legal fight

and finally from my friend Professor Richard Kaplan, Richard L. Kaplan (Illinois; Google Scholar), When the Stepped-Up Basis of Inherited Property Is No More, 47 ACTEC L.J. 77 (2021) (see Tax Law Prof Blog for synopsis)

Now we are all caught up.  More next week!

 

 

Breakthrough in Alzheimer's Research?

My dear friend and colleague, Professor Feeley, sent me a link to this recent article, Likely cause of Alzheimer’s identified in new study.

Here's a brief bit of info about the study

[S]cientists in Australia have recently discovered an additional factor that may be responsible for the development of this neurodegenerative condition.

Lead study author Dr. John Mamo, Ph.D. — distinguished professor and director of the Curtin Health Innovation Research Institute at Curtin University in Perth, Australia — explained to Medical News Today the conclusion from the new research...

“This study,” he added, “shows that exaggerated abundance in blood of potentially toxic fat-protein complexes can damage microscopic brain blood vessels called capillaries and, thereafter, leak into the brain, causing inflammation and brain cell death.”

The findings were published here. This is the abstract from the article

Several lines of study suggest that peripheral metabolism of amyloid beta (Aß) is associated with risk for Alzheimer disease (AD). In blood, greater than 90% of Aß is complexed as an apolipoprotein, raising the possibility of a lipoprotein-mediated axis for AD risk. In this study, we report that genetic modification of C57BL/6J mice engineered to synthesise human Aß only in liver (hepatocyte-specific human amyloid (HSHA) strain) has marked neurodegeneration concomitant with capillary dysfunction, parenchymal extravasation of lipoprotein-Aß, and neurovascular inflammation. Moreover, the HSHA mice showed impaired performance in the passive avoidance test, suggesting impairment in hippocampal-dependent learning. Transmission electron microscopy shows marked neurovascular disruption in HSHA mice. This study provides causal evidence of a lipoprotein-Aß /capillary axis for onset and progression of a neurodegenerative process.

Highlights from Touro Conference on Aging, Health, Equity, and the Law (9.13.21)

Touro College's Jacob Fuschberg Law Center hosted a fabulous half-day, interdisciplinary program on Aging, Health, Equity and the Law.  Among the highlights:

• A perfect kickoff with opening remarks on the theme of the conference from Syracuse Law Professor Nina Kohn, who outlined the civil rights of older persons, reminding us of existing laws and the potential for legal reforms;
•  A unique "property law" perspective on the importance of careful planning about ownership or rights of use, in order to maximize the safety and goals of the older person, provided by Professor Lior Strahilevitz from University of Chicago Law School;  
• Several sessions formed the heart of the conference by taking on enormously difficult topics arising in the context of Covid-19 about access to health care, including what I found to be a fascinating perspective from Professor Barbara Pfeffer Billauer  from her recent work in Israel. She started with an interesting introduction of three specific pandemic responses she's identified in her research. She then focused on how "Policy Pariah-itizing" has had a negative effect on health care for older adults, with examples from Israel, Italy, and China.  I was also deeply impressed by the candid presentations of several direct care providers, including nursing care professionals Esperanza Sanchez and Nelda Godfrey, about the ethical issues and practical pressures they are experiencing; 
• Illinois Law Professor Dick Kaplan offered  timely perspectives on incorporating cultural sensitivity in Elder Law Courses.  His slides had great context, drawing in part from an article he published about ten years ago at 40 Stetson Law Review 15;
• Real world examples about tough end-of-life decisions involving family members and/or formally appointed surrogates, with Deirdre Lock and Tristan Sullivan-Wilson from the Weinberg Center for Elder Justice leading breakout groups for discussions.

I know I'm failing to mention other great sessions (there were simultaneous tracks and I was playing a bit of leap-frog).  But the good news is we can keep our eyes out for the Touro Law Review compilation of the articles from this conference, scheduled for Spring 2022 publication.  I know it was a big lift to pull off the conference in the middle of the fall semester.  Thank you!

Bringing Voices of the Public into Classrooms: Lessons from Ireland and 9/11

A number of years ago, I had an especially wonderful sabbatical experience with the help of  the U.S. Fulbright Program that provided opportunities to conduct research in both Northern Ireland and the Republic of Ireland. Queen's University Belfast was my host institution, and there I met Professor Joe Duffy (on the left), who was working in social work, aging services and law.  We have become forever friends, as well as co-workers on several projects.  

One of the key educational concepts I learned from Joe's work was the importance of involving service users in the classroom, as well as in research.  I experienced this as a "student" in Northern Ireland as I listened to speakers with Loyalist (Unionist) and Republican (Nationalist) perspectives on the historic "Troubles" in Ireland.   I'd been working for years with U.S. law school clinics, which are inherently involved with "user" (client) voices, but when I returned from my time in Belfast I began to more actively include older adults in my doctrinal classes, usually as guest speakers about a particular case or experience.  I confess, however, that I've drifted away a bit from that, but today I have a fresh reminder of why it is important to bring clients into the classroom.

Joe Duffy did his own Fulbright-sabbatical in the U.S. recently, and as part of that experience he worked at NYU with social work students and survivors of 9/11.   This week, Queen's University offers Joe's detailed written account of how the NYU team planned carefully for including survivors as speakers in the classroom, and how the experiences were valuable for everyone.  We can -- and I believe should -- remember to make time for similar outreach and listening exercises with students in law school.  Here's a brief taste from Joe's experience with bringing 9/11 survivors into the classroom:

I knew from the beginning that trust building was at the heart of this process. I was indeed mindful of this throughout, where would I start in terms of asking people to share such difficult and personal experiences? The answer was to start with the people themselves and to create a safe environment where people felt valued and respected.  In planning, we met as a group over a number of weeks and decided how the programme would evolve. Every aspect was therefore co-produced and together we agreed the following questions as the basis for the Conversation:

1. Can you share with these students a summary of your experiences from 9/11?
2. To what extent does the aftermath of such a traumatic event still impact on your life today and others close to you?
3. How has this experience affected your identity?
4. What sort of help did you receive to support you after these experiences?
5. What are the skills that these students need to focus on when helping an individual cope with trauma related issues and also what are the behaviours they should avoid?
6. What are the students take away messages from today.

The 90-minute classes ran for three consecutive weeks with two/three group participants joining me each week with the students. The students listened attentively and respectfully to the dialogue and there was total silence in the classroom, such was the emotional magnitude of the atmosphere. After each class we gathered for a coffee at a nearby café which helped the group support each other and reflect on what we had learned from the process.

I encourage you to read Joe's full article, Changed Lives: Voices from 9/11 in the Classroom.  The voices of both survivors and students are captured succinctly here -- and provide wonderful reminders of the importance of a simple (or, perhaps not-so-simple) skill that all lawyers need to cultivate, the ability to listen.  That seems especially relevant as a reminder during the 20th anniversary of 9/11.  

Nurse Robots?

There have been stories of late about shortages of nurses, for various reasons. For example, NPR reported, Hospitals Face A Shortage Of Nurses As COVID Cases Soar. So, then a dear friend and colleague of mine today sent me a link to this story: Meet Grace, the ultra-lifelike nurse robot.  Grace, developed by a robotic company in Hong Kong, is "a humanoid robot it hopes will revolutionize healthcare.... Designed as an assistant for doctors, Grace is equipped with sensors, including a thermal camera to detect a patient's temperature and pulse, to help doctors diagnose illness and deliver treatments....The android is a companion for patients, too. Specializing in senior care, Grace speaks three languages -- English, Mandarin, and Cantonese -- and can socialize and conduct talk therapy."  The company expects to start large scale production of this robot and another robot by year's end. The article notes that this robot is attended to assist, not supplant, health care providers.  There's an accompanying video, which includes a brief clip of the robot showing Tai Chi moves to the reporter.  The robot at one point responds that her specialization is in "senior care." I don't know what the cost will be of such a robot and what patient load it can handle. Plus, I'm not sure about the lack of human connections in caregiving.  We'll have to wait to see whether the robot is at least a partial solution to the caregiving and nursing shortages.

 

As Covid-19 Eases, Is Germany Again Seeking "Filial Support" (Elternunterhalt) Payments from Children?

It has been a while since I've written a "Filial Friday" post.  After more than a year of no calls or requests for information about "Elternunterhalt" payments in Germany, in the last 45 days I've heard from three sets of American citizens who recently received requests for financial contributions to the care of an aging parent in Germany.  In each of the instances, the adult children had never heard of Germany's parental maintenance laws before receiving the demand.   

Since last writing about elternunterhalt on this Elder Law Prof Blog (see here and here), I've learned about some changes to the German laws.  

First,  Germany adopted a threshold annual income for a potentially obligated child of at least 100,000 Euros, effective for claims after January 1, 2020.

Second, it appears that Germany has also clarified that only the adult child's income is considered in determining the amount of the potential support obligation.  In the past, the German authorities would routinely ask for "all" income and asset information for the child and any spouse or partner.  

For more on this, see this article and another article, from Germany, describing these changes as "reforms."  Germany's renewed use of filial support laws began with a ruling by the Federal Court on June 23, 2002.  "The legal basis is mainly Section 1601 and 1602 Paragraph 1 BGB," according to a third article.  

While I've often seen "claim letters" submitted to adult children living in the U.S., I've never seen a formal administrative proceeding or court proceeding to enforce such a claim if not paid voluntarily. In some instances, I've seen German authorities agree to drop the claim, usually because there is strong evidence that the now needy-parent neglected or mistreated the child while the child was a minor.  I have also sometimes seen a voluntary settlement between the U.S. child and the German authorities.  But, have  any of our readers seen a litigated outcome in a cross-border claim?  Do we have any attorneys reading this blog with experience with cross-border claims between the U.S. and Germany?   

Elders in China Have to Delay Retirement?

A few weeks ago the New York Times ran an article regarding the need for delayed retirement on the part of many Chinese elders. A Graying China May Have to Put Off Retirement. Workers Aren’t Happy, notes that the "Chinese government said it would raise the mandatory retirement age, which is currently 60 for men."  Why, you ask, did China announce this unpopular plan? Because, according to the article, this phased-in "delay [of] the legal retirement age” over the next five years, [is] an attempt to address one of the country’s most pressing issues. Its rapidly aging population means a shrinking labor force. State pension funds are at risk of running out. And China has some of the lowest retirement ages in the world: 50 for blue-collar female workers, 55 for white-collar female workers, and 60 for most men."  The article notes other countries that have taken a similar approach and the bumpy road in doing so.  It also notes that this was a problem decades in the making.  There are ramifications of this approach (beyond unhappy workers), including "[the risk of] undermining another major government priority: encouraging couples to have more children, to slow the aging of the population."

Stay tuned.

Global Report on Ageism

The World Health Organization released the Global Report on Ageism, which "outlines a framework for action to reduce ageism including specific recommendations for different actors (e.g. government, UN agencies, civil society organizations, private sector). It brings together the best available evidence on the nature and magnitude of ageism, its determinants and its impact. It outlines what strategies work to prevent and counter ageism, identifies gaps and proposes future lines of research to improve our understanding of ageism."

The executive summary is available here, discussing nature, scale, determinants, and impact of ageism, as well as strategies to reduce it and suggestions for actions. The entire 202 page report is available here.

Roundup on Nursing Home Articles

First, have you read this article from the New York Times? Maggots, Rape and Yet Five Stars: How U.S. Ratings of Nursing Homes Mislead the Public

Twelve years ago, the U.S. government introduced a powerful new tool to help people make a wrenching decision: which nursing home to choose for loved ones at their most vulnerable. Using a simple star rating — one being the worst, five the best — the system promised to distill reams of information and transform an emotional process into one based on objective, government-blessed metrics.

The star system quickly became ubiquitous, a popular way for consumers to educate themselves and for nursing homes to attract new customers. During the coronavirus pandemic, with many locked-down homes unavailable for prospective residents or their families to see firsthand, the ratings seemed indispensable.

But a New York Times investigation, based on the most comprehensive analysis of the data that powers the ratings program, found that it is broken.

Then, a couple days later, another article from the New York Times, this time about California, California Sues Nursing Home Chain, Saying It Manipulated Ratings System

California prosecutors sued the country’s largest chain of senior living communities on Monday, accusing the company, Brookdale Senior Living, of manipulating the federal government’s nursing-home ratings system.

* * * 

The lawsuit is among the first of its kind to accuse nursing homes of submitting false information to Medicare’s ratings program. The system assigns stars — one being the worst, five being the best — to the nation’s more than 15,000 nursing homes.

Health News Florida explained that COVID Cases Plummet 83% Among Nursing Home Staffers Despite Vaccine Hesitancy, "Federal records show a steep decline in staff cases since December, when health care workers at thousands of nursing homes began getting their shots. Still, many are reluctant to get vaccinated."

Then, this New York Times article from Canada,  Elderly, Vaccinated and Still Lonely and Locked Inside

Long-term care homes, as they are called in Canada, were prioritized for the first precious doses of vaccines, to few objections — they were ground zero for the pandemic’s cruel ravage. Around 66 percent of the country’s terminal Covid-19 victims lived in nursing homes, among the highest rates in the world.

But while the vaccines have given the majority of nursing-home residents protection from death by the virus, so far they have not offered more life....

Vatican: Rethink How Care for Elders

Recently released: The Vatican wants the world to rethink how it cares for the elderly after Covid-19 ‘massacre’.

The Vatican is calling for a new paradigm of care for older people after what it calls the "massacre" wrought by the coronavirus pandemic, which has disproportionately killed people living in nursing homes.

The Vatican's Pontifical Council of Life issued a position paper Tuesday that made the case for a global rethink of how to care for people in their final years, including resisting any rush to institutional care in favor of adapting home environments to the needs of people as they age.

Calling for visionary thinking to develop a new way of providing care for elders,  "[t]he document praised new models of assisted living that provide companionship and care where needed but, in preserving autonomy and independence, fall short of an institutional facility. And it called for greater assistance to families who are able to care for their loved ones at home for as long as possible."

Santa's Grandkids Reach Out to SNF Residents

We all need good news these days.  So here's one story for the holidays that should make you smile. Santa’s ‘Grandchildren’ Spread Joy In Italian Nursing Homes explains the Santa's grandkids project:

Despite a grim year marked by death and loneliness, the holiday spirit is descending on the Zanchi nursing home, one of the first in Italy to shut its doors to visitors after a COVID-19 case was confirmed in the nearby hospital on Feb. 23.

The bearers of glad tidings were the so-called “grandchildren of Santa Claus,” people who answered a charity’s call to spread cheer to elderly nursing home residents, many of whom live far from their families or don’t have any family members left.

The program, in its third year, continues to grow in popularity, with  almost 6000 gits distributed to 228 SNFs.  The featured nursing home had 43 residents participating which included virtual visits with Santa's grandkids, during which the SNF residents opened presents.  It is worth noting that the volunteer grandkids also benefited from participating in the project.

Well done everyone!

 

 

Hugs in Time for Christmas

A couple of days ago, the Washington Post ran an uplifting article about a hug room in a SNF.  After months of isolation, a ‘hug room’ lets Italian nursing home residents touch family for the first time tells us about "a 7-foot-tall piece of plexiglass, molded into a three-sided booth. It had four cutout holes, where protective sleeves would be added for arms. It was known, in the strange language of the pandemic, as a “hug room,” but it was less a room than a barrier: residents on one side, relatives on the other."  Although not as ideal as living in a COVID free world (or at least a vaccinated one), this "plexiglass represented the sort of modest step some nursing homes are now taking in a year when they have faced excruciating decisions about how protective to be and how best to reduce their risks."  The article references similar efforts taken by other SNFs.

A  little bit of good news, then, for Christmas.

PS: Florida announced that the second round of vaccines will go to those 70 and older, and Texas, to those 65+ and older.

PPS-remember to thank first responders, health care professionals and all who keep us safe and going through this trying time. Stay safe and stay healthy.

 

Spain's Parliament Votes to Legalize Euthanasia

According to a story yesterday in the AP news, Spain’s parliament vote[d] to legalize euthanasia. The bill provides for medical aid-in-dying or euthanasia "for long-suffering patients of incurable diseases or unbearable permanent conditions." The bill next goes to their Senate. The article notes that                       "[e]uthanasia — when a doctor directly administers fatal drugs to a patient — is legal in Belgium, Canada, Colombia, Luxembourg, the Netherlands and Switzerland. In some U.S. states, medically-assisted suicide — where patients administer the lethal drug themselves, under medical supervision — is permitted." The bill requires multiple requests by the patient, the first 2 of which must be written and made with two weeks between the requests.  Medical professionals must be involved and requests are reviewed and granted by a regional oversight board. Only adult Spanish residents or citizens who can make rational decisions would be able to make such requests.

 

 

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Taking Grandma Home; But What Happens When Grandma Goes Back to the SNF?

Last week with Thanksgiving, some families took their elders from the SNFs to be home for the holiday.  But if grandma then goes back to the SNF, is she bringing a hitchhiker with her (COVID).  The Tampa Bay Times discussed this in their article a few days before Thanksgiving, Residents may leave Florida facilities for Thanksgiving, could bring coronavirus back reminds us that "[a]state executive order issued in October mandates that facilities allow residents to visit their families’ homes. Experts and advocates worry that the state has not simultaneously put in place more safety protocols."  Since the state doesn't require testing of residents,  so as residents return to facilities and aren't tested, we just don't know how this is going to play out.  "[T]he Florida Health Care Association ...  reminded its member facilities that families should take coronavirus precautions if they bring their loved ones home ...  [and while] not required, some facilities may test residents upon their return or isolate them,...  and all homes will screen residents for coronavirus symptoms and potential exposure."

And on a somewhat related note, the following story from Canada examines the situation of elders who were taken home at the beginning of the pandemic. Pulled from care homes during pandemic, these seniors thrived — highlighting 'urgent' need for change: expert, 

notes that some elders have improved when taken home, but the decision to do so has many things to consider, such as the family members' ability to provide the needed care. Two of the folks interviewed for the story express frustration with what they see as elected officials' failure to resolve the problems in long-term care.  

Thanks to my dear friend and colleague Professor Feeley for sending me the link to the second story.