Elder Law Prof Blog

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."

More on Supreme Court Nominee Neil Gorsuch on End-of-Life Issues

Paula Span, the thoughtful columnist on aging issues from the New York Times, offers "Gorsuch Staunchly Opposes "Aid-in-Dying." Does It Matter?"   The article suggests that the "real" battle over aid-in-dying will be in state courts, not the Supreme Court.

I'm in the middle of reading Judge Gorsuch's 2006 book, The Future of Assisted Suicide and Euthanasia. There are many things to say about this book, not the least of which is the impressive display of the Judge's careful sorting of facts, legal history and legal theory to analyze the various advocacy approaches to end-of-life decisions, with or without the assistance of third-parties.  

With respect to what might reach the Supreme Court Court, he writes (at page 220 of the paperback edition): 

The [Supreme Court's] preference for state legislative experimentation in Gonzales [v. Oregon] seems, at the end of the day, to leave the state of the assisted suicide debate more or less where the Court found it, with the states free to resolve the question for themselves.  Even so, it raises interesting questions for at least two future sorts of cases one might expect to emerge in the not-too-distant future.  The first sort of cases are "as applied" challenges asserting a constitutional right to assist suicide or euthanasia limited to some particular group, such as the terminally ill or perhaps those suffering grave physical (or maybe even psychological) pain....

 

The second sort of cases involve those like Lee v. Oregon..., asserting that laws allowing assisted suicide violate the equal protection guarantee...."

While most of the book is a meticulous analysis of law and policy, in the end he also seems to signal a personal concern, writing "Is it possible that the Journal of Clinical Oncology study is right and the impulse for assistance in suicide, like the impulse for old-fashioned suicide, might more often than not be the result of an often readily treatable condition?" 

My thanks to New York attorney, now Florida resident, Karen Miller for pointing us to the NYT article.

Professor Kaplan on Religion and Advance Medical Directives

University of Illinois Law Professor Richard Kaplan has a new article available, entitled Religion and Advance Medical Directives: Formulation and Enforcement Implications.

From the abstract: 

This Article examines the role of religion in the creation and enforcement of advance medical directives. It begins by setting out the principal similarities and differences between the two types of such directives—namely, living wills and health care proxies (or powers of attorney). It then considers the formulation of religiously oriented advance directives and their incorporation of religious doctrine and imperatives. The Article then addresses the impact that the religious views of an individual patient’s treating physician might have on such directives. Finally, the Article analyzes religiously based challenges to the enforcement of advance medical directives, paying particular attention to the Terri Schiavo case and its continuing significance.

This is an opportunity for us to remind readers to make sure you alert us to your forthcoming articles that touch on elder law topics.  Thank you, Dick.

The Honor Commandment & Women as Caregivers

Naomi Cahn, Harold H. Greene Professor of Law at GW Law sent me a link to an interesting article that she co-authored. Women, Eldercare, and the Honor Commandment appears in the Berkley Center for Religion, Peace & World Affairs.

Starting the article with the story of Naomi and Ruth, the article explains the authors' "work exploring modern expressions of the Honor Commandment – the Biblical command to honor one’s mother and father – ... [with] many stories of how daughters (and sons) honor their parents."  The article mentions that although the gender gap is closing as far as child care, there is still a significant gap for elder care, with the bulk of caregiving being provided by women. The article proceeds with summaries of several stories and includes quotes from the women caregivers.

"Overall, our research shows that the Honor Commandment not only continues to motivate the providing of elder care, but also reflects the full complexity of practical, emotional, and spiritual care of the family." But the caregiver dilemmas are not limited to the Jewish or Christian religions and are found throughout the world, regardless of religion.

As a society, we may be better off if a sense of honor is the motivation for care of our elders, rather than coercive or regulatory measures. The Honor Commandment and its analogues in other religions and cultures provide a moral framework and path forward that respects both individual wishes and family integrity. But the path of honor can become a “daughter track,” ...  where responsibility for caregiving falls disproportionately on women.  Providing more adequate support for caregiving would have a particularly significant effect for women, ensuring their ability to provide care while also making available the fullness of their services as equally respected worker-citizens.  Strengthening our secular laws to help support caregiving can profoundly affect how people live the Honor Commandment, improving the lives of those who receive and give family care—especially women...  (citations omitted)

The full article will appear in volume 30 of the Journal of Law and Religion (June 2015).  In addition, keep an eye out for a symposium volume in the Journal (co-editors Naomi and Amy Ziettlow) (forthcoming 2016) "will ... feature a slate of international, interdisciplinary, and interfaith scholars addressing the world-wide impact of the Honor Commandment."

Thanks Naomi!

California Court: Enforceability of Mandatory Arbitration Clauses in Trusts

On March 11, 2014, California's intermediate appellate court ruled that a mandatory arbitration clause in an inter vivos trust would not control, where the beneficiary challenging the trust "was not a signatory to the arbitration agreement."  The daughter who challenged the document alleged her mother lacked capacity to sign the newly revised agreement in question and contended the revisions were the product of "elder abuse" and undue influence.  The decision offers much to consider. 

In McArthur v. McArthur, the court noted enforceability of arbitration provisions in trusts was a question of first impression in California and turned to other states for guidance.  In Schoneberger v. Oelze, 96 P. 3d 1078 (Az. Ct. App. 2004), the Arizona court ruled that arbitration clauses contained in trusts agreements are generally not enforceable against nonsignatory beneficiaries, a decision that was later superseded by revisions to Arizona statutes.  In Rachal v. Reitz, 203 S.W. 3d 840 (Tex. 2013), the Texas Supreme Court relied on wording of the state's arbitration law in concluding a trust beneficiary can be bound to arbitrate, regardless of whether the trust document was analyzed as a contract.

In ruling against mandatory arbitration, the California court characterized one daughter's argument that "public policy" favored arbitration of trust disputes as more appropriate for the Legislature.  The Court concluded that "whatever the national trend might be, [the proponent of the trust and mandatory arbitration] fails to demonstrate that any other jurisdiction would compel arbitration under the facts of this case, where the [contesting] beneficiary has not either expressly or implicitly sought the benefits of a trust agreement containing the disputed arbitration provision."

The California decision also points to several law review articles addressing arbitration provisions in trusts disputes, including a 1995 article by Yale Professor John H. Langbein, and a 2012 article by University of Missouri Law Professor S. I. Strong.  By email, Professor Strong notes it will be interesting to see whether the McArthur case goes to the California Supreme Court. 

While not addressed in the opinion directly, the details of the trust history in the California case also suggest another potentially interesting question, about the use of particular "mandatory" dispute mechanisms or mandated organizations that could favor a certain result. 

The original McArthur trust, created in 2001, apparently granted the three daughters equal shares of their mother's estate.  The challenged 2011 amendment, however, allegedly favored one daughter and as described in footnote 2, added a "Christian Dispute Resolution" provision that described the mother and that same daughter as "Christians [who] believe the Bible commands them to make every effort to live at peace and to resolve disputes with each other in private or within the Christian church." The mother as "Trustor" and the mother and daughter as "Co-Trustees agree that any claim or dispute arising from or related to the Trust as amended shall be settled by biblically based mediation and, if necessary, legally binding arbitration before the Institute for Christian Conciliation (TM), a division of Peacemaker (R) Ministries...."  

So, if one challenges the very essence of the amended trust and the role of the new co-trustee, doesn't that suggest the challenger might have a uniquely steep uphill climb, whether or not a "member" of the faith or organization granted the power of enforcement?

Related articles

California Court Rules on Mandatory Arbitration Clauses in Trusts