Elder Law Commons^™

Incapacity And The Infancy Illation, Ralph C. Brashier

Arkansas Law Review

As the population of elderly Americans swells in coming decades, growing numbers of citizens will experience some degree of cognitive incapacity and require the assistance of surrogate decision-makers. Consequently, the decisions of guardians, conservators, and agents will become increasingly important. Experts have frequently noted that, despite modern reforms, doctrines concerning surrogate decision-making are problematic and often do not result in outcomes that maximize autonomy and promote respect for the unique personhood of the adult with diminished capacity. Unlike other writings that seek to refashion or clarify surrogate decision-making statutes and standards, this Article suggests that a more fundamental problem lies ...

The Pro Bono Collaborative Project Spotlight: Rwu Law Alums Providing Pro Bono Through The Pbc (September 20, 2018), Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.

Ageism, Human Rights, And The European Court Of Human Rights: A Critical Analysis Of The Carvalho V. Portugal Case (2017), Eugenio Mantovani, Dr. Benny Spanier, Prof. Israel (Issi) Doron

DePaul Journal for Social Justice

No abstract provided.

Avoiding Prolonged Dementia, Norman L. Cantor

Norman Cantor

End Of Life And Autonomy: The Case For Relational Nudges In End-Of-Life Decision-Making Law And Policy, Megan S. Wright

Maryland Law Review

Autonomy is a central principle in many areas of health law. In the case of end-of-life decision-making law and policy, however, the principle of autonomy requires revision. On the whole, law conceptualizes autonomy at the end of life as an individual making private, personal decisions based solely on their interests and values, and independent of others. But ordinary people understand autonomous decisionmaking at the end of life differently, in a way that acknowledges the importance of their interpersonal relationships. Social science research has documented that strengthening relationships with others, sharing responsibility in the decision-making process with healthcare providers, and taking ...

“Who Will Judge The Many When The Game Isthrough?”: Considering The Profound Differencesbetween Mental Health Courts And “Traditional”Involuntary Civil Commitment Courts, Michael L. Perlin

Seattle University Law Review

For forty years, we have known that involuntary civil commitment hearings are—in most jurisdictions—“charades.” When the Supreme Court noted, in Parham v. J.R., that the average length of a civil commitment hearing ranged from 3.8 to 9.2 minutes, the reaction of many who had done these cases was, “What? So long?!” The characterization of such hearings as being a “greased runway” to a state institution has never been disputed. Lawyers representing these individuals were bored or contemptuous; judges simply wanted to get cases moving; opposing counsel looked at their wrist watches to see when the ...

Removing Obstacles To A Peaceful Death, Kathy L. Cerminara, Barbara A. Noah

Faculty Scholarship

We all will die, but the American health care system often impedes a peaceful death. Instead of a quiet death at home surrounded by loved ones, many of us suffer through overutilization of sometimes-toxic therapeutic interventions long past the time when those interventions do more good than harm. This article proposes revisions to health professional training and payment policy to eliminate as much as possible physical and existential suffering while progressing through the terminal phase of illness. The solution lies in seamless progression from treatment with integrated palliative care to hospice before death, but provider attitudes and payor practices must ...

Texas Leads In Penalized Nursing Homes, Joanne Doroshow

Other Publications

No abstract provided.

Dispensing (With) Electronic Wills, Thomas E. Simmons

Thomas E. Simmons

No abstract provided.

Caring For Humanity: Non-Profit Elderly Law, Sierra Samp

Capstone Projects and Master's Theses

This Capstone was an internship that focused on care in Humanity at Legal Services for Seniors. There is a journal that includes the observations of care in the law office. I focus on how attorneys care for each clients humanness while they are working on their cases. Attorneys may be doing work that can be quite intimidating, but the care they give is quite extraordinary.

Prevention Of Illness, Paul Bernstein

Paul Bernstein, MD, JD, FACC

No abstract provided.

Exploitation And Abuse Of The Elderly During The Great Recession: A Maine Practitioner's Perspective, Denis T. Culley, Hannah Sanders University Of Maine School Of Law

Maine Law Review

The practitioner often cringes on first exposure to elder abuse. Beating, cheating, or cynically misusing a parent or other beloved elder not only shocks and disheartens those who stumble upon it, but often leaves the practitioner, like the poet, with “a tighter breathing and Zero at the bone.” Nothing in our culture prepares us to behold the abused elder. The elder herself is often similarly shocked and ashamed. Many times, an abused elder is in denial and may feel that she has somehow allowed the abuse to occur. Or the elder may feel that the abuser—oftentimes a family member ...

Table Of Contents

Marquette Benefits and Social Welfare Law Review

No abstract provided.

Activation Measures In Social Security: Lessons From The Dutch Case

Marquette Benefits and Social Welfare Law Review

Dutch social security has undergone important changes since the 1990s, in that the focus shifted from predominantly compensating the loss of income into giving incentives for claimants and benefits recipients to stay in or get back to work. While still providing a relatively high level of benefit if there is no chance to work (to the full extent), the legislature has been quite creative in adopting conditions that stimulate persons to do their best to be in work. For this purpose, this is interesting for an American audience, since the USA system is far less generous out of fear that ...

An Intersectional Approach To Homelessness: Discrimination And Criminalization

Marquette Benefits and Social Welfare Law Review

The purpose of this essay is to address discrimination against homeless people. First of all, the theory of intersectionality will be explained and then applied as a method of analysis. The complexity of defining homelessness will be tackled, focusing on the difficulties encountered when approaching this concept. I will discuss notions of protected ground and immutability of personal characteristics, then outline an intersectional approach to homelessness. Intersectional discrimination has not yet been applied by many courts and tribunals, but Canada has proven to be a vanguard in this area. For this reason, Canadian case law has been chosen as the ...

The Prosecution Of Climate Change Dissent

Marquette Benefits and Social Welfare Law Review

A May 2015 op-ed in the Washington Post by Sen. Sheldon Whitehouse (D. RI) accused the fossil fuel industry of funding a campaign to mislead Americans about the environmental harm caused by carbon pollution. The Attorney Generals of New York and Massachusetts began investigating Exxon Mobil. We look at these two investigations through the lenses of the federal mail and wire fraud statutes (at issue in the racketeering case against big tobacco), and the First Amendment.

We analyze the difficulty of prosecuting someone under the federal mail and wire fraud statutes for expressing an opinion, and discuss why scientific statements ...

Comment: The Flint Water Crisis: A National Warning Of Failing Infrastructure

Marquette Benefits and Social Welfare Law Review

I look at the Flint, Michigan Water Crisis from a combined perspective that broadens the scope of one of the worst manmade environmental disasters in the history of the United States. The goal of this examination is to bring attention to preventable environmental catastrophes, and put a spotlight on the policies and governing philosophies, which aggregated into neglect to the health of the people of Flint. I briefly analyze Michigan’s emergency manager law’s role in fostering the poor oversight that allowed the crisis to spiral out of control. I then pivot to the nation’s water infrastructure and ...

Aging Policy Design: Building From Anne Alstott, Katharine B. Silbaugh

Shorter Faculty Works

In her intriguing lecture, Professor Anne Alstott reminds us that legal scholarship enjoys a unique niche between justice and policy. Political scientists and philosophers evaluate justice, while legal scholars ask where and how justice can be achieved pragmatically. Alstott calls this our comparative advantage, the merging of justice and practicality. This introduction perfectly frames the work Alstott does in evaluating S ocial Security and other income and savings support programs for the aging and retire d population, such as tax benefits given in support of private pensions.

A Principled Approach To Separating The Fusion Between Nursing Homes And Prisons, Mirko Bagaric, Marissa Florio, Brienna Bagaric

Pepperdine Law Review

Elderly people are a far lower risk to community safety than other individuals. Despite this, elderly prisoners are filling prisons at an increasing rate. The number of elderly prisoners in the United States has increased more than fifteen-fold over the past three decades—far more than the general imprisonment rate. This trend is empirically and normatively flawed. Older offenders should be treated differently from other offenders. The key reason for this is that elderly offenders reoffend at about half the rate of other released prisoners, but the cost of incarcerating the elderly—due to their more pressing health needs—is ...

Distinctive Factors Affecting The Legal Context Of End-Of-Life Medical Care For Older Persons, Marshall B. Kapp

Georgia State University Law Review

Current legal regulation of medical care for individuals approaching the end of life in the United States is predicated essentially on a factual model emanating from a series of high-profile judicial opinions concerning the rights of adults who become either permanently unconscious or are clearly going to die soon with or without aggressive attempts of curative therapy.

The need for a flexible, adaptable approach to medically treating people approaching the end of their lives, and a similar openness to possible modification of the legal framework within which treatment choices are made and implemented, are particularly important when older individuals are ...