Elder Law Commons^™

Unfulfilled Promise: Mental Disability Voting Rights And The Halving Of Hava’S Potential, Benjamin O. Hoerner

Benjamin O Hoerner

In 2012, the heated presidential election between President Barack Obama and Mitt Romney reanimated the debate surrounding the voting rights of mentally disabled citizens in the United States. A decade earlier, in October 2002, President George W. Bush signed into law the Help America Vote Act of 2002 (HAVA), aiming to protect the voting rights of the country’s disabled population. At the time of its enactment, legislators and commentators lauded HAVA as “the most important voting rights bill since the passing of the Voting Rights Act in 1965.” However, since its passage, HAVA has been subjected to a flurry ...

Tontine Pensions: A Solution To The State And Local Pension Underfunding Crisis, Jonathan B. Forman, Michael J. Sabin

Jonathan B. Forman

Tontines are investment vehicles that can be used to provide retirement income. Basically, a tontine is a financial product that combines features of an annuity and a lottery. In a simple tontine, a group of investors pool their money together to buy a portfolio of investments, and, as investors die, their shares are forfeited, with the entire fund going to the last surviving investor. Over the years, this last-survivor-takes-all approach has made for some great fiction. For example, on the television show “Mash,” Colonel Sherman T. Potter, as the last survivor of his World War I unit, got to open ...

Healthcare Decision-Making For Mentally Incapacitated Incarcerated Individuals, Scott Smith, Laura Anne Taylor, Andrew Wake

Scott T. Smith

Around the United States, the number of elderly prisoners steadily increases, creating challenges of all kinds, in particular how to provide appropriate medical care to this population who are often distanced from family members and other traditional support structures. Within this context, there arises the particularly delicate issue of how to provide medical care to prisoners who lack healthcare decision-making capacity. The State of Utah is used as a case study to explore this issue. The authors examine the common law right to avoidance of unwanted care and contrast that right with the prison system’s requirement to avoid cruel ...

Conceptualizing Capacity: Interpreting Canada’S Qualified Ratification Of Article 12 Of The Un Disability Rights Convention, Nicholas Caivano

Western Journal of Legal Studies

During the negotiations leading up to the United Nations Convention on the Rights of Persons with Disabilities (CRPD), States Parties vigorously debated the scope of Article 12, which establishes legal capacity for persons with disabilities “on an equal basis with others in all aspects of life.” The ambiguity of Article 12 has led to many interpretations that have been the subject of debate among human rights activists and academics. Developments in the jurisprudence and legislative reforms across several jurisdictions indicate that governments and courts have begun to grapple with what recognizing the right to legal capacity for persons with disabilities ...

Nursing Home Advocates Challenge Treatment Law - Prof. Mort Cohen, Bob Egelko

Articles About Faculty

Advocates for nursing home patients are challenging a California law that allows doctors to decide when a patient is mentally incompetent to refuse treatment.

A lawyer for California Advocates for Nursing Home Reform, which filed the suit Tuesday in Alameda County Superior Court, said doctors have used the 1992 law to administer mind-altering drugs, put patients in physical restraints and, in one case, remove a feeding tube.

Letter Regarding Pbgc Request For Information On Missing Participants In Individual Account Plans, Federal Register, Vol. 78, No. 120, June 21, 2013, Ellen A. Bruce, Brian Reilly

Pension Action Center Publications

On August 19, 2013, the Pension Action Center wrote to the Office of the General Counsel of the Pension Benefit Guaranty Corporation in response to their request for comments on the implementation of a new program to deal with benefits of missing participants in terminating individual account plans.

What's Wrong With A Federal Inheritance Tax?, Wendy Gerzog

Wendy Gerzog

Scholars have proposed a federal inheritance tax as an alternative to the current federal transfer tax system, but there are serious flaws with that idea. Those problems include: (1) different tax rates and exemptions based on the decedent’s relationship to the beneficiary; (2) the lack of a tax on lifetime gratuitous transfers, including gifts with retained interests or control; (3) the persistence of most current valuation distortion abuses; and (4) significantly decreased compliance rates and increased administrative costs inherent in a system that taxes transferees on transactions that may be largely unmonitored.

This article reviews common characteristics of existing ...

What's Wrong With A Federal Inheritance Tax?, Wendy Gerzog

Wendy Gerzog

Scholars have proposed a federal inheritance tax as an alternative to the current federal transfer tax system, but there are serious flaws with that idea. Those problems include: (1) different tax rates and exemptions based on the decedent’s relationship to the beneficiary; (2) the lack of a tax on lifetime gratuitous transfers, including gifts with retained interests or control; (3) the persistence of most current valuation distortion abuses; and (4) significantly decreased compliance rates and increased administrative costs inherent in a system that taxes transferees on transactions that may be largely unmonitored.

This article reviews common characteristics of existing ...

Protecting Those Who Need It Most: A Call For Change To The Tax Application Of Qualified Domestic Relations Orders When Placed Into Special Needs Trusts, Conor Francis Linehan

Conor Francis Linehan

This note calls for a change to the way the Internal Revenue Code is applied towards qualified domestic relations orders when used to fund or partially fund special needs trusts, specifically irrevocable (d)(4)(B) trusts created under § 1396p.

The current status of the law is that an individual can roll over a qualified domestic relations order into a new retirement account in a tax-free transfer. If an individual elects to not roll over into a new retirement fund, some additional exemptions to various early termination penalties and lump sum payments have already been carved out of the Code.

This ...

Testimony Before The Erisa Advisory Council, Ellen A. Bruce

Pension Action Center Publications

I am the director of the Pension Action Center of the Gerontology Institute at the University of Massachusetts Boston. In that capacity, I run the New England Pension Assistance Project (NEPAP), a U.S. Administration on Aging (AoA)-funded pension counseling project, and the Illinois Pension Assistance Project (IPAP) funded by the Retirement Research Foundation. Both of these projects represent low- and moderate-income plan participants who are having difficulty claiming their employer-sponsored retirement income. The AoA funds six pension counseling projects covering 29 states; all of which represent clients in much the same way we do at the Pension Action ...

Special Populations: Mobilization For Change

Touro Law Review

This Article is based on a transcript of a break-out discussion which took place at An Obvious Truth: Creating an Action Blueprint for a Civil Right to Counsel in New York State, held at Touro Law Center, Central Islip, New York, in March 2008. The discussion was moderated by Karen L. Nicolson, Michael Williams, and Toby Golick.

This Article assesses the needs of various special populations and the possible strategies and solutions to create change through enacting a civil right to counsel. The Article is intended to capture information and viewpoints of the people who participated in the break-out discussion ...

A Right To Active Ageing For All? On The Status Of The Elderly In Social Services And Health Care, Titti Mattsson

Titti Mattsson

No abstract provided.

There But For The Grace Of God Go I: The Right Of Cross-Examination In Social Security Disability Hearings , Bradley S. Dixon

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Cost Of “Choice” In A Voluntary Pension System, Jonathan B. Forman

Jonathan B. Forman

Unlike our mandatory universal Social Security system, America’s private pension system is replete with choice: choices about the type of pension plan, choices about the amount and timing of contributions, choices about investments, and choices about the timing and nature of distributions. It takes time to make all these choices, and sometimes employers and workers just throw up their hands and don’t make any choices at all. This “choice overload” or “analysis paralysis” imposes significant costs on employers, workers, and government; and this article recommends a variety of ways to reduce those costs.

The Shifting Focus Of Federal Intervention In Retiree Health Benefits, Susan E. Cancelosi

Nevada Law Journal

No abstract provided.

Death Panels And The Rhetoric Of Rationing, Elizabeth Weeks Leonard

Nevada Law Journal

No abstract provided.

Implications Of Rhode Island’S Global Consumer Choice Compact Medicaid Waiver For Block Granting Medicaid And Other Retrenchment, Edward Alan Miller, Divya Samuel, Susan Allen, Amal Trivedi, Vincent Mor

Gerontology Institute Publications

On January 16, 2009, the Federal government approved Rhode Island’s application for a Global Consumer Choice Compact Medicaid Waiver whereby the state became the first granted permission to operate its entire Medicaid program under the state plan and a single 1115 “research and demonstration” waiver. The Global Waiver has been implemented in the context of Republican proposals to turn Medicaid into a block grant which would give states substantially more flexibility administering the program in exchange for receiving an upfront allotment from the Federal government. Proponents have held up the Global Waiver as a successful example of what might ...

Implications Of Rhode Island’S Global Consumer Choice Compact Medicaid Waiver For Rebalancing Long-Term Care Under The Affordable Care Act, Edward Alan Miller, Divya Samuel, Susan Allen, Amal Trivedi, Vincent Mor

Gerontology Institute Publications

Federal approval of Rhode Island’s Global Consumer Choice Compact Global Waiver in 2009 provided Rhode Island with greater flexibility to modify its Medicaid program. Because 96% of long-term care expenditures in Rhode Island were directed toward institutional settings, a primary goal was to facilitate the state’s efforts to shift the locus of long-term care to non-institutional settings. This study draws lessons from Rhode Island’s experience with the Global Waiver for the long-term care rebalancing provisions of the Patient Protection and Affordable Care Act of 2010. Data derive from 325 archival sources and 26 semi-structured interviews. Results suggest ...

Implications Of Rhode Island’S Global Consumer Choice Compact Medicaid Waiver For Designing And Implementing State Health Reform, Edward Alan Miller, Divya Samuel, Susan Allen, Amal Trivedi, Vincent Mor

Gerontology Institute Publications

Provisions in the Medicaid statute permit states to apply for waivers from traditional program requirements. On January 16, 2009, the federal government approved Rhode Island's Global Consumer Choice Compact Waiver. In exchange for a cap on combined federal and state spending of $12.075 billion through 2013, Rhode Island received greater flexibility to adopt certain Medicaid program changes. This study analyzes the design and implementation of the Global Waiver to draw general lessons for health reform at the state-level, a key concern given ongoing state discretion to improve their health care systems under the Patient Protection and Affordable Care ...

The Not-So-Golden Years: The Legal Response To Elder Abuse, David P. Mathews

Pepperdine Law Review

No abstract provided.