Law Commons^™

Comment: The Project Of Freedom, Alexandra L. Klein

Washington and Lee Law Review

A person’s status may change over time and people should have the right to maximize their autonomy and learn and grow from their experiences. Legal structures must encourage autonomy and growth, rather than producing a static environment that prevents people from challenging external controls imposed upon their lives. Law can create legal structures that sustain an individual’s right to live according to their values. As Ms. Rosen writes, “[i]f an individual is capable of valuing, the wishes stemming from those values should dictate how the individual ought to be treated.” By protecting those values, Ms. Rosen’s Note advises us how …

Comment: Further Consideration On The Relationship Between The Americans With Disabilities Act, Supported Decision-Making, And Medical Aid In Dying, Amitai Heller

Washington and Lee Law Review

As Ms. Rosen’s Note explains in further detail, the use of supported decision-making creates an opportunity for persons with cognitive impairments to participate more fully in their end-of-life care. While this Comment focuses on the legal requirement for healthcare providers to serve people with cognitive impairments at the end of life, the tenets of patient autonomy, self-determination, and the dignity of risk must be integrated into end-of-life practice to provide guidance where legal requirements are absent or ambiguous. The use of the supported decision-making model in end-of-life care will only succeed when healthcare providers participate in an open-minded manner. It …

Supported Decision-Making And Merciful Health Care Access: Respecting Autonomy At End Of Life For Individuals With Cognitive Disabilities, Brenna M. Rosen

Washington and Lee Law Review

Supported decision-making is a relatively new, powerful, and quickly developing alternative to restrictive guardianships and other draconian surrogate decision-making arrangements for individuals with cognitive disabilities. Its power lies specifically in the protection and affirmation of their autonomy, allowing these individuals to remain central in the planning of their lives and affairs. Despite supported decision-making’s theoretical promise, it is often unclear whether and how the model interacts with other legislation presiding over how one may make crucial life choices, such as those at end of life.

This Note attempts to bridge the gap by analyzing how supported decision-making may be a …

Intersectional Complications Of Healthism

Marquette Benefits and Social Welfare Law Review

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Subminimum Or Subpar? A Note In Favor Of Repealing The Fair Labor Standards Act's Subminimum Wage Program, Melia Preedy

Seattle University Law Review

This Note argues for the repeal of Section 14(c) of the Fair Labor Standards Act (FLSA), which continues to perpetuate a system allowing employers to pay less than minimum, or “subminimum,” wage to certain employees with disabilities. The Section 14(c) program is a relic of policy leftover from the 1930s and does not help the disabled community, but rather rests on the presumption that persons with disabilities never progress. In light of recent House Resolution 3086, Congress went against the current trend of encouraging maximum independence and equal opportunities for persons with disabilities and instead upheld the subminimum wage program; …

Guardianship Mediation, Janice Grant

Marquette Elder's Advisor

Court guardianship proceedings are designed to determine the need for a guardian. Mediation may be used to rather substitute voluntary services by allowing interested parties to offer suggestions for appropriate care. Grant discusses which cases may be appropriate or inappropriate for mediation and outlines a suggested mediation process. The advantages of maintaining greater autonomy and independence for the elderly are elaborated.

Special Needs Trusts To Safeguard Disability Benefits In Personal Injury And Divorce Settlements And Estate Planning, Lawrence A. Friedman

Marquette Elder's Advisor

To avoid disqualifying a disabled person from government aid, amounts should not be paid outright to the person or to a trusts for his support. Instead, the author suggests it is best to use a Special Needs Trust.

A Guardianship Jury Trial Case Study, Steven C. Perlis

Marquette Elder's Advisor

An attorney relates his recent experience with guardianship jury trials. Perils shares his insight gained and explains why the jury system can serve as an effective tool for advocating on behalf of elderly

A Quick Survey Of The Americans With Disabilities Act

Marquette Elder's Advisor

The Americans with Disabilities Act provides a wide range or protections from discrimination for elders who have physical and mental disabilities. The following article, the first of a series, provides an overview of the structure and principles of the ADA, concentrating on the protections provided for senior citizens seeking to remain on the job.

Consumer Preferences For A Consumer Directed Cash Option Versus Traditional Services, Sharon M. Desmond, Kevin J. Mahoney, Lori Simon-Rusinowitz, Dawn M. Shoop

Marquette Elder's Advisor

This article examines the findings of a telephone survey inquiring into the preferences of Florida elders and adults with physical disabilities with regard to various options for receiving assistance and service.

Disabled Adult Children, Thomas E. Bush

Marquette Elder's Advisor

This article discusses under what circumstances a disabled adult child can collect Social Security benefits, the applicable Social Security regulations, the complex rules for re-entitlement, and the relationship between Medicare and Medicaid benefits. Bush gives advice on how an attorney can navigate this system. A lengthy chart summarizes standards and requirements, and gives citations for a variety of relationships.

Reconciling Definitions Of "Disability:" Six Years Later, Has Cleveland V. Policy Management Systems Lived Up To Its Initial Reviews As A Boost For Workers' Rights?, Daniel Korhman, Kimberly Berg

Marquette Elder's Advisor

This extensive article identifies many of the difficulties in bringing an action under the Americans with Disabilities Act (ADA) while receiving SSDI benefits. The conflicts of claiming disabilities while also claiming the ability to work with accommodations are explored. The decision in Cleveland v. Policy Management Systems was supposed to set guidelines for evaluation these situations, but interpretation of these guidelines still varies

Veteran's "Pension": Non-Service Connected Veteran's Benefits For The Elderly And Disabled, Alice Reiter Feld

Marquette Elder's Advisor

Veteran's benefits can be service connected or non-service connected. A non-service connected benefit available to certain war-time veterans or their dependents is an improved pension for those disabled and in financial need. This article delves into service requirements, disability requirements, net worth requirements, and income requirements, and gives several examples to determine if funding would be available for non-covered expenses, such as long-term care.

Guardianship As A Cultural System: Reflections On The Illinois Guardianship Reform Project, Morris A. Fred

Marquette Elder's Advisor

This article discusses the reasons for and the problems encountered in setting up the Illinois Guardianship Reform Project. Investigative newspaper articles detailing widespread abuses aroused public demand for reforms. Fred postulates that a change in attitudes and behaviors in regard to the disabled and aging is necessary to balance the widely differing points of view of the various care-givers and court systems in order to both protect the rights of self-determination and provide necessary care

Ensure Your Pet's Future: Estate Planning For Owners And Their Animal Companions , Rachel Hirschfeld

Marquette Elder's Advisor

Pets are a central and vital part of their owners' lives, and it is statistically well-documented that seniors and people with health issues derive substantial benefits from their pets. However, pet owners often do not consider what will happen to their pets if they die or become disabled. Many older people do not have pets because they are concerned about who will care for their pets if they become disabled or die and their pet survives them. Often, older people would like to have a pet companion and would benefit from acquiring one or keeping the one they already have. …

Reality Check: The Dra's Impact On Seniors With Disabilities And Their Caregivers , Kim Dayton

Marquette Elder's Advisor

This article discusses the hardships on seniors with disabilities who are unable to qualify for Medicaid under the Deficit Reduction Act of 2005. The author argues for the repeal of the DRA and calls for policymakers and politicians to work towards a long-term care financing scheme that fairly distributes the costs of long term care across the broader population. The author begins by laying out the arguments that the nation cannot afford the cost of long-term care for the elderly and disabled, their entitlement to such care should be minimized, and individuals should plan for their own healthcare. The author …

At The Crossroads Of Age And Disability: Can Practitioners Rely On The Amended Ada And The Adea To Provide Adequate Recourse For The Older Disabled Individual?, Christopher E. Pashler, Brian C. Lambert

Marquette Elder's Advisor

This article explores the interconnectedness of age and disability in relation to the Americans with Disabilities Act of 1990 (ADA) and the Age Discrimination in Employment Act (ADEA). The purpose of the article is to explore the impact of recent ADEA litigation and the ADAAA on practitioners who are considering pleading either an ADEA claim or an ADA claim relating to age and disability.

Bringing Age Discrimination And Disability Discrimination Together: Too Few Intersections, Too Many Interstices, Leslie Pickering Francis, Anita Silvers

Marquette Elder's Advisor

Old age and disability would seem to have adverse features in common. Membership in either group suggests depleted capability, decreased social contribution, significant fragility, and heightened susceptibility to maltreatment by other people. Yet some have argued that no wrong occurs when advanced age is made disadvantageous, for the elderly have had a fair chance at the goods of life. By contract, this argument goes, there is never a fair chance for people with disabilities. This article challenges the view that takes discrimination based on disability and discrimination based on age as so discrepant that they do not deserve similar efforts …

The Elderly With A Disability: Social Security And Representative Payment, Michael J. Churgin

Marquette Elder's Advisor

This article looks at the elderly with disability and how the intersection of social security.

Disability And Aging: Historical And Contemporary Challenges, William N. Myhill, Peter Blanck

Marquette Elder's Advisor

This article discusses the challenges that elderly with disabilities face in the work place. The article explores the theme historically and today as they impact qualify of life for persons with and aging into disability.