Elder Law Commons^™

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 …

Cognitive Decline And The Workplace, Sharona Hoffman

Faculty Publications

Cognitive decline will increasingly become a workplace concern because of three intersecting trends. First, the American population is aging. In 2019, 16.5 percent of the population, or fifty-four million people, were age 65 and over, and the number is expected to increase to seventy-eight million by 2025. Dementia is not uncommon among older adults, and by the age of eighty-five, between twenty-five and fifty percent of individuals suffer from this condition. Second, individuals are postponing retirement and prolonging their working lives. For example, about a quarter of physicians are over sixty-five, as are fifteen percent of attorneys. The average age …

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

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 …

Old Age As The Hidden Sentencing Factor, Adam M. Gershowitz

Faculty Publications

Imagine two doctors who illegally sold opioids in exchange for cash. Both doctors sold roughly the same quantity of pills, had no prior criminal convictions, and accordingly faced the same sentencing guidelines range. The major difference was that one doctor was in his sixties and considerably older than the other doctor. The Federal Sentencing Guidelines provide that judges should consider a defendant's age only in atypical cases. Yet, this Article demonstrates that older defendants received sentencing discounts far more often than younger defendants convicted of the same crime.

This Article gathers sentencing data for almost 130 doctors convicted in federal …

Deciding For Others, Thomas Simmons

Faculty Publications

No abstract provided.

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

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

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.

Portable Medical Order Sets (Polst®): Ethical And Legal Landscape, Sharona Hoffman

Faculty Publications

Anyone who has observed the dying of a loved one or who has thought about medical care in the final months of life may be concerned about end-of-life care. How can individuals ensure that their care fits their needs and preferences if they cannot express these because of dementia, confusion, or other frailties? Some worry that they will receive care that is painful and aggressive in the last stages of disease even though they would prefer comfort care only. By contrast, others worry that physicians will withhold therapeutic care because they assume that such care is unwanted by patients who …

Dispensing (With) Electronic Wills, Thomas Simmons

Faculty Publications

No abstract provided.

The Perplexities Of Age And Power, Sharona Hoffman

Faculty Publications

The elderly population in the United States is growing dramatically and is expected to reach over seventy-two million, or twenty percent of the citizenry, by 2030. But serious legislative and regulatory gaps leave the surging population of older adults with many unmet needs. Many Americans are aware of the Social Security and Medicare funds’ financial woes. This Article emphasizes that these challenges are only the tip of the iceberg. In addition, the elderly face under-funded Older Americans Act programs, unaffordable long-term care, inadequate driving regulations that fail to identify and protect at-risk drivers, and a significant shortage of geriatricians, among …

To Authorize Sex With Oneself Via Proxy Or Advance Directive, Thomas Simmons

Faculty Publications

No abstract provided.

Actuarial Soundness, The Meaning Of "Commensurate," And A "Sniff Test", Thomas Simmons

Faculty Publications

No abstract provided.

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.

Wills Above Ground, Thomas Simmons

Faculty Publications

The widespread adoption of electronic court filing systems allow for easier and more efficient views of the rich data of probate proceedings. Wills Law on the Ground by Professor David Horton, published in the UCLA Law Review, highlights both the potential and some of the inherent limitations of empirical research in the law of wills. Wills law has been the battleground of formalists and functionalists over the last half century, with both sides bearing the banner of testator intent, but neither backing up their proposals or counterproposals with much hard data about which better achieves their common aim. Professor Horton …

Book Review: International And Comparative Law On The Rights Of Older Persons, Thomas Simmons

Faculty Publications

No abstract provided.

"Granny Goes To Jail" Redux, Thomas Simmons

Faculty Publications

No abstract provided.

A 360 Degree View Of Roles And Responsibilities Concerning Diminished Capacity: Financial Advisers’ Obligations To Clients, Lawyers Representing Clients, And Lawyers Preparing Their Practices, Elissa Germaine, Nicole G. Iannarone, Teresa Verges

Faculty Publications

(Excerpt)

Aging is inevitable and impacts everyone. The risk of a person developing cognitive impairment or some other incapacity affecting daily life increases with each passing year. While some will live long lives without suffering from cognitive decline, others will not be so fortunate. One thing is clear: seniors have the greatest risk of developing some form of impairment that will impact their ability to make their own decisions and that will put them at risk of fraud by predators or of harm by well-intentioned but ill-informed persons seeking to help them. As lawyers representing clients in FINRA proceedings, PIABA …

Lawyers’ Obligations When Representing Clients With Diminished Capacity, Elissa Germaine

Faculty Publications

(Excerpt)

Lawyers have a significant role to play in protecting clients with diminished capacity from financial exploitation. PIABA members, in particular, see the issue from a unique vantage point – usually after a person with diminished capacity (or a family member or concerned third party) notices a drop in value in his or her brokerage account and approaches the lawyer to help figure out what happened in the account and, if appropriate, to pursue a claim to recover damages. As such, members must understand their own obligations as lawyers to clients with diminished capacity, obligations that apply in the context …

The Intersection Of Agency Doctrine And Elder Law: Attorney-In-Fact Authority To Arbitrate Nursing Home Claims, Thomas Simmons

Faculty Publications

With the popularity of durable powers of attorney to manage the estates and personal affairs of individuals with diminished capacity, construction of the scope of powers with which agents are acting is of increasing importance. Some acts should be seen as so inherently personal or so dramatically inconsistent with the expected role of any agent as to be simply outside the scope of agency altogether. Others, such as those involving gifts, self-dealing transactions, or constitutional rights, should be never implied but honored when located within the express terms of an agent's authority. The remaining powers should be construed and mapped …

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

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

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.

Financial Abuse Of The Elderly, Christine Lazaro

Faculty Publications

(Excerpt)

As of 2010, 13% of the population is over age 65; 16% is over age 62. Another 27% of the population falls into the “Baby Boomer” category, aged between 45 and 64.

As Americans approach retirement, the question is raised, “are they prepared?” A study published earlier this year found, “a substantial fraction of persons die with virtually no financial assets—46.1 percent with less than $10,000—and many of these households also have no housing wealth and rely almost entirely on Social Security benefits for support. In addition, this group is disproportionately in poor health. Based on a replacement rate …

Deception, Decisions, And Investor Education, Jayne W. Barnard

Faculty Publications

Tens of millions of dollars each year are spent on investor education. Because older adults (those aged sixty and older) are disproportionately victims of investment fraud schemes, many educational programs are targeted at them. In this Article, Professor Barnard questions the effectiveness of these programs. Drawing on recent studies from marketing scholars, neurobiologists, social psychologists, and behavioral economists examining the ways in which older adults process information and make decisions, she offers a model of fraud victimization (the "deception/decision cycle") that explains why older adults are often vulnerable to investment fraud schemes. She then suggests that many of the factors …

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

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 …

Privatizing Social Security, Jerry W. Markham

Faculty Publications

The 2000 presidential election focused attention on an idea that has been surfacing for some time--the privatization of Social Security. Although opposition remains fierce, proposals for privatization have been gradually gaining acceptance as the inadequacy of benefits from the present system become more apparent, and bankruptcy becomes certain in the absence of additional onerous funding. Resistance to privatization largely centers on concerns that existing participants will lose their contributions and that private accounts may result in investment losses, which would leave future pensioners penniless. The disability and survivor benefits of the present Social Security system also raise concerns for the …

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.