Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Keyword
-
- Guardianship (4)
- Medicaid (3)
- Elder law (2)
- Adult care (1)
- Advance directive (1)
-
- Annuities (1)
- Arbitration (1)
- Benefits (1)
- CMS (1)
- COVID-19 (1)
- CSMIA (1)
- California (1)
- California health care decisions law (1)
- Covid-19 (1)
- Cruzan v. Director (1)
- Disabilities (1)
- End-of-life decisions (1)
- Finances (1)
- Financial scams (1)
- Health care law (1)
- Health careadvance directives (1)
- Hospice (1)
- IRAs (1)
- Income tax (1)
- Job loss (1)
- Limited guardianship (1)
- Long-term care (1)
- Long-term care facilities (1)
- MQA (1)
- National Guardianship Summit (1)
- Publication Year
- Publication Type
Articles 1 - 14 of 14
Full-Text Articles in Elder Law
Jurisdictional Conflicts In Adult Guardianship, David M. English
Jurisdictional Conflicts In Adult Guardianship, David M. English
Faculty Publications
The case of Britney Spears has shined a spotlight on guardianship, a subject area in which there has been increasing interest in recent years. The events surrounding Ms. Spears s case all occurred in a single jurisdiction, California. But with Americas increasingly mobile population, an individual for whom a guardianship is sought may have contacts with multiple states and, in some cases, foreign countries. Furthermore, following the appointment of a guardian, the guardian or individual subject to guardianship may move to another jurisdiction; it may become necessary to transfer the guardianship proceeding to another jurisdiction or seek ratification of a …
The Fourth National Guardianship: An Introduction, David M. English
The Fourth National Guardianship: An Introduction, David M. English
Faculty Publications
This issue of the Syracuse Law Review contains the proceedings of the Fourth National Guardianship Summit, an interdisciplinary online conference with some 125 participants which was held in May 2021 and hosted by the Syracuse University College of Law. In addition to this Introduction, this issue of the Law Review contains the Recommendations approved by the Summit attendees, and the articles prepared for the Summit. The theme of the Fourth Summit was Maximizing Autonomy and Ensuring Accountability. The Recommendations fit this theme, including Recommendations to enhance the rights of persons subject to guardianship, to improve and increase the use of …
Protective Orders And Limited Guardianships: Legal Tools For Sidelining Plenary Guardianship, David M. English, Nina Kohn
Protective Orders And Limited Guardianships: Legal Tools For Sidelining Plenary Guardianship, David M. English, Nina Kohn
Faculty Publications
By encouraging use of limited guardianships and protective orders instead of full guardianships, states can reduce the likelihood of unnecessarily stripping adults of their civil rights. Yet, although such less restrictive alternatives have long been available to most courts, in practice, their use remains limited and sporadic. This article argues that this lack of use suggests that it is not sufficient for the law to state a preference for these less restrictive alternatives, it must actually create systems that incentivize their use and actively discourage the use of full guardianships. This article then shows, using the Uniform Guardianship, Conservatorship, and …
So Many Have Died: Covid-19 In America's Nursing Homes, David M. English
So Many Have Died: Covid-19 In America's Nursing Homes, David M. English
Faculty Publications
As of the date of this writing in late September 2020, over 77,000 residents and staff of long-term care facilities have died of COVID-19 with more to come. This article will describe the reasons for this mass wave of death and provide practical suggestions for attorneys who represent a resident or family members of residents.
Two More Plumbers Look At The Leak: Purchasing An Annuity In An Institutionalized Spouse's Ira That Is Irrevocably Payable To The Community Spouse May Work For Medicaid Purposes But Runs A Risk Of Adverse Tax Treatment, David M. English, Ron M. Landsman
Two More Plumbers Look At The Leak: Purchasing An Annuity In An Institutionalized Spouse's Ira That Is Irrevocably Payable To The Community Spouse May Work For Medicaid Purposes But Runs A Risk Of Adverse Tax Treatment, David M. English, Ron M. Landsman
Faculty Publications
A recent article in NAELA ]ournal addressed the problem of how to maximize Medicaid benefits and minimize the tax burden for an institutionalized spouse who has a substantial individual retirement account (IRA) in a state where the account is not exempt. The primary problem is that most strategies require that the IRA be cashed out, triggering income tax liability for the entire withdrawal for that tax year. Once the IRA is cashed out, the proceeds can be spent down in any number of ways; one option is for the community spouse to purchase a Medicaid qualified annuity (MQA). The proposed …
Covid-19 And Its Impact On America's Retirement System, David M. English
Covid-19 And Its Impact On America's Retirement System, David M. English
Faculty Publications
There is a long-standing debate over whether America's retirement system is in crisis. The COVID-19 pandemic has resolved the debate. Perhaps the system was merely challenged prior to March 2020, but it is certainly in crisis now. The pandemic has negatively impacted all four of the principal pillars of retirement: Social Security, employer-sponsored retirement programs, earnings from part-time work, and the worker's own savings. This short article will discuss the impact of the pandemic on the retirement system and discuss possible ways to restore the system to health or at least ameliorate the damage.
Seeking Justice For Grandma: Challenging Mandatory Arbitration In Nursing Home Contracts, Andi Alper
Seeking Justice For Grandma: Challenging Mandatory Arbitration In Nursing Home Contracts, Andi Alper
Journal of Dispute Resolution
This Comment advocates against the use of mandatory arbitration in nursing home admission contracts and discusses various legal theories available to refute such clauses. Part II discusses mandatory arbitration in general and its use in nursing home admission contracts. Part III summarizes some of the common arguments made in favor of and against arbitration in nursing home admission contracts. Finally, Part IV addresses how courts analyze these agreements and possible approaches to avoid arbitration of disputes arising out of the nursing home contract.
Amending The Uniform Guardianship And Protective Proceedings Act To Implement The Standards And Recommendations Of The Third National Guardianship Summit, David M. English
Amending The Uniform Guardianship And Protective Proceedings Act To Implement The Standards And Recommendations Of The Third National Guardianship Summit, David M. English
Faculty Publications
The Third National Guardianship Summit, which was held in 2011, recommended the adoption of 70 standards and recommendations relating to guardianship law and practice. This article analyzes the standards and recommendations that might best be implemented by statutory change. The article focuses in particular on how the standards and recommendations might be applied in the current project to amend the Uniform Guardianship and Protective Proceedings Act (UGPPA), various versions of which have been enacted in numerous states.
The Home: Where Our Heart Resides, David M. English
The Home: Where Our Heart Resides, David M. English
Faculty Publications
Helping a client maximize the use of his or her home for these purposes is no simple task. It requires knowledge of options and resources across many domains. But stepping back and taking a broader look at these strategic opportunities and pitfalls is useful in appreciating the knowledge and skill set needed to competently counsel and represent aging clients. This article looks first at a variety of consumer protection issues, examines the interrelationship between the home and a variety of government benefits, and concludes with a discussion of technology that may enable an elderly person to remain in the place …
Selling Hospice, Sam F. Halabi
Selling Hospice, Sam F. Halabi
Faculty Publications
Americans are increasingly turning to hospice services to provide them with medical care, pain management, and emotional support at the end of life. The increase in the rates of hospice utilization is explained by a number of factors including a “hospice movement” dating to the 1970s which emphasized hospice as a tool to promote dignity for the terminally ill; coverage of hospice services by Medicare beginning in 1983; and, the market for hospice services provision, sustained almost entirely by governmental reimbursement. On the one hand, the growing acceptance of hospice may be seen as a sign of trends giving substance …
Financial Decision-Making For Adults Lacking The Capacity To Make Their Own Decisions, David M. English
Financial Decision-Making For Adults Lacking The Capacity To Make Their Own Decisions, David M. English
Faculty Publications
A significant percentage of individuals lack sufficient mental capacity to make financial, health, and personal-care decisions for at least some period during their lifetimes. For those who die suddenly, that period may be brief. For those with Alzheimer’s Disease or other forms of dementia, the period of incapacity may last many years.
Income Tax Planning For Long-Term Care, David M. English
Income Tax Planning For Long-Term Care, David M. English
Faculty Publications
Planning for long-term involves more than the preparation of powers of attorney and counseling on possible asset transfers to qualify for Medicaid reimbursement. Steps should also be taken to make certain that the person receiving care continues to file an income tax return and does so at a minimum possible income tax cost. Practitioners should be familiar with the procedure for filing a return on behalf of an incapacitated individual. The medical expense deduction, while of little importance for most taxpayers, is critical for many elderly, particularly for those receiving long-term care. Long-term care insurance and life insurance may be …
The Uniform Health-Care Decisions Act And Its Progress In The States, David M. English
The Uniform Health-Care Decisions Act And Its Progress In The States, David M. English
Faculty Publications
Over the past decade, planning for health care decision making through the making of an advance directive has become a routine part of personal counseling. Public interest in the subject has been fueled by well-publicized cases such as Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990). In response to this interest, most states authorize their citizens to make at least one form of advance directive: all states statutorily authorize powers of attorney for health care, and all but Massachusetts, Michigan and New York authorize living wills. State legislation has been a mixed blessing. Although intended to facilitate …
Nursing Home Residents And The New California Health Care Decisions Law, David M. English, Rebecca C. Morgan
Nursing Home Residents And The New California Health Care Decisions Law, David M. English, Rebecca C. Morgan
Faculty Publications
This article explores issues involving advance directives made by nursing home residents, both prior to and during their stay in a facility, including the frequency of making directives, the reasons why residents fail to make directives, and the reasons why facilities often fail to honor them. Specifically, this article examines these issues in light of the 1999 California Health Care Decisions Law, effective July 1, 2000, and focuses on how this new statute can be used to empower nursing home residents, and adults more generally, to take control of decisions regarding their own health care.