Elder Law Commons^™

Introduction, John S. Clardy Iii

St. Thomas Law Review

The practice of elder law covers many legal subjects and is considered a horizontal rather than a vertical practice of law. A criminal law attorney representing a client accused of shoplifting will look to the same section of the criminal code whether the client is 18 or 81. An elder law attorney will rely on many different laws and procedures based on the needs of a particular client. Elder law is defined by the client to be served. The elder law attorney does not focus on a particular law or statute, but a segment of the population. The problems affecting …

Advance Health Care Directives: Problems And Solutions For The Elder Law And Estate Planning Practitioner, Brooke M. Benzio

St. Thomas Law Review

"Remember that what you possess in the world will be found at the day of your death to belong to some one else; but what you are, will be yours forever. "' -Henry Van Dyke.

Since the modem movement for patient autonomy began gathering steam in the 1900s, individual concerns about the purpose, nature, and quality of medical care have become a larger component of the practice of medicine. However, state and federal law has been relatively slow to respond, and establishment of the relevant legal framework is relatively recent. New Jersey courts led the charge with their decision in …

Standards And Basic Principles Of Examining And Evaluating Capacity In Guardianship Proceedings, Stephanie Villavicencio, Alex Cuello

St. Thomas Law Review

In the realm of guardianship law, an elder law attorney is well aware that a declaration of incapacity may strip an individual of more rights than that of a convicted felon. The concept of whether capacity is a matter of fact or law is often debated. The framework for establishing standards governing which rights warrant removal is tenuous and complex. A factual determination of incapacity requires a finding, by clear and convincing evidence, that the Respondent, or alleged incapacitated person, is both functionally unable, either wholly or partially, to care for their person (self) and/or property. This determination culminates in …

Medicaid Managed Long-Term Care: Is Florida Ready, Rebecca C. Bell

St. Thomas Law Review

Medicaid is a nationwide health insurance program, created in 1965 as Title XIX of the Social Security Act for the poorest and sickest individuals. The Medicaid program operates through a federal and state partnership with the Centers for Medicare and Medicaid Services ("CMS") providing federal oversight. States must provide coverage of certain groups and services in order to receive federal funds for their Medicaid programs. However, states may include additional "optional" groups and services in each state plan. States use different methods of service delivery to Medicaid beneficiaries. In July 2011, a national average of 74.22% of Medicaid beneficiaries were …

Filial Responsibility: Breaking The Backbone Of Today's Modern Long Term Care System, Twyla Sketchley, Carter Mcmillan

St. Thomas Law Review

This article will briefly discuss the development of filial responsibility in the United States, the government programs that have displaced it, and its modem day application, including the ambiguity that creates problems for indigent elders' family members and care providers. This article will outline the current long term care system, including its costs and the government and private programs that primarily assist consumers with these costs. It will end by arguing that enforcement of filial responsibility unfairly targets the informal caregiving structure that is the backbone of today's modem long-term care system, which is why filial responsibility is unsustainable today. …

Long-Term Care Insurance: A Life Raft For Baby Boomers, Enrique Zamora, Deborah Nodar, Krista Ogletree

St. Thomas Law Review

This article begins in Part I by giving a brief introduction to the historical development of long-term care. Part II focuses on what "long-term" care entails and describes the types of individuals who are in need of it. Part III investigates the various costs of long-term care and the sources responsible for paying those costs. Part IV provides a general overview of long-term care insurance. Part V argues that other alternatives to long-term care insurance are not viable options to pay for long-term care. Part VI discusses the implications of the Patient Protection and Affordable Care Act. And finally, Part …

Therapeutic Jurisprudence And Preventative Law In The Thomas M. Cooley Sixty Plus, Inc., Elder Law Clinic, Cindy E. Faulkner

St. Thomas Law Review

Gertrude Smith phones the SixtyPlus, Inc., Elderlaw Clinic ("Clinic") to schedule an appointment. She informs the receptionist that she wants to come to the Clinic so she can "get a trust." Ms. Smith is scheduled for an intake appointment to meet with two student legal interns ("interns"). Ms. Smith arrives for her appointment, is introduced to the interns, and agrees to be interviewed. The senior intern (a student in her second term at the Clinic) begins the interview by asking Ms. Smith what brought her to the Clinic. Ms. Smith reiterates that she "wants a trust because it is the …