Elder Law Commons^™

On Kamisar, Killing, And The Future Of Physician-Assisted Death, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

In a famous 1958 article, Yale Kamisar brilliantly examined the hazards of abuse and of slippery slope extensions that subsequently, for 46 years, served to thwart legalization of physician-assisted death (PAD). This paper shows that during the same period law and culture have effectively accepted a variety of ways for stricken people to hasten death, with physicians involved in diverse roles. Those ways include rejection of nutrition and hydration, terminal sedation, administration of risky analgesics, and withholding or withdrawal of medical life support.

If these existing lawful modes of hastening death were widely acknowledged, the pressure to legalize voluntary active …

Lawmaking By Public Welfare Professionals, Margaret F. Brinig

ExpressO

In an era of shrinking state and local resources for domestic violence prevention and detection, governments face a critical question of how to best allocate scarce funds. This paper suggests some answers for treating violence by caregivers and presents a model for evaluating other programs. To reach our conclusions, we analyzed data and survey results supplied by more than 1700 county-level adult protective services (APS) authorities.

We found that some expensive programs produce very few results in terms of reporting, investigating, and substantiating elder abuse. For example, requiring a specific education or experience level (and therefore guaranteeing higher salaries) or …

For The Rest Of Their Lives: Seniors And The Fair Housing Act, Robert G. Schwemm, Michael Allen

Law Faculty Scholarly Articles

America's population is growing older. According to the 2000 census, more than 35 million people in the United States (12% of the total population) are over 65 years old. These figures are expected to grow dramatically in the early decades of the twenty-first century as the "Baby Boom" generation reaches retirement age and as improvements in health care make it possible for more people to live to an advanced age.

Providing housing for this segment of the American population is already a massive industry and one that will certainly grow as the number of, older persons increases. One of the …

The Relation Between Autonomy-Based Rights And Profoundly Disabled Persons, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

“The Relation Between Autonomy-based Rights and Profoundly Mentally Disabled Persons” Competent persons have fundamental rights to decide about abortion, methods of contraception, and rejection of life-sustaining medical treatment. Profoundly disabled persons are so cognitively impaired that they cannot make their own serious medical decisions. Yet some courts suggest that the mentally impaired are entitled to “the same right” to choice regarding critical medical decisions as competent persons. This article discusses the puzzling question of how to relate autonomy-based rights to never-competent persons. It argues that while profoundly disabled persons cannot be entitled to make their own medical decisions, they have …

The Bane Of Surrogate Decision Making: Defining The Best Interests Of Never-Competent Persons, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

The medical fate of never-competent persons cannot be resolved according to the approach governing previously competent persons -- surrogate focus on self-determination via advance instructions or projections of what the now-incompetent person would want in the circumstances. For never-competent medical patients, the commonly stated approach to surrogate decision making is best interests of the incapacitated ward.

This article examines and questions the conventional wisdom regarding a "best interests of the patient" standard. When a parent is the surrogate decision maker, the medical course chosen need not be the best course, so long as it is a plausible medical option and …

The Responsible Thing To Do About "Responsible Party" Provisions In Nursing Home Agreements: A Proposal For Change On Three Fronts, Katherine C. Pearson

University of Michigan Journal of Law Reform

Nursing homes routinely seek the signature of a family member on nursing home agreements, calling the signer a "responsible party" or sponsor for the resident. Federal Medicare and Medicaid law provides that participating facilities must "not require a third party guarantee of payment to the facility as a condition of admission ...to, or continued stay, in the facility. "Nonetheless, if federal benefits prove to be unavailable, courts are holding responsible parties contractually liable for thousands of dollars for the care of their elders. This Article proposes private and public responses to the increasing likelihood that nursing homes will seek collection …

Still Part Of The Clan: Representing Elders In The Family Law Practice, Sy Moskowitz

Law Faculty Publications

No abstract provided.

Advising The Elderly Or Disabled Client, Melissa Brown, Lawrence Frolik

McGeorge School of Law Scholarly Books

Advising the Elderly or Disabled Client provides specific answers and solutions to legal and practical questions and problems that arise in daily practice when representing elderly or disabled clients. This resource offers coverage across the full range of elderly or disabled client concerns, including: planning for Medicare, Medicaid, and private insurance; medical decision-making and right-to-die issues; retirement and disability income planning; acute, chronic or changing medical conditions such as AIDS, Alzheimer's, strokes and mental illness. Includes practice aids such as official forms, model documents, detailed real-world examples, checklists for interviewing and planning, and a quick-reference glossary of technical terms, concepts, …

Lost Pension Money: Who Is Responsible? Who Benefits?, 37 J. Marshall L. Rev. 695 (2004), Ellen A. Bruce J.D., John Turner Ph.D.

UIC Law Review

No abstract provided.

In Search Of The Golden Years: How Compulsory Licensing Can Lower The Price Of Prescription Drugs For Millions Of Senior Citizens In The United States, Debjani Roy

Cleveland State Law Review

This article will show that compulsory licensing is the best remedy for the escalating cost of prescription drugs in the United States. Section II will provide a historical overview of American pharmaceutical patent law and will introduce the concept of compulsory licensing as a method to decrease the high cost of prescription drugs for senior citizens in the United States. Section III will look at the newly enacted Medicare Prescription Drug and Modernization Act, and state and local government plans to import cheaper brand-name prescription drugs from Canada. Section IV will look at the United States' international support for compulsory …

A Law And Social Work Clinical Program For The Elderly And Disabled: Past And Future Challenges, Toby Golick, Janet Lessem

Articles

This Article tells the story of our effort to establish an interdisciplinary law and social work program at Cardozo Bet Tzedek Legal Services (“CBT”), a law clinic at Benjamin N. Cardozo School of Law. The program is predicated on the belief that law and social work collaboration will benefit clients as well as students. The Article is primarily descriptive—telling what we did, why we did it, why we were disappointed with it, and how we changed the program. The Article also attempts to continue a constructive critique, on the assumption that even if something is not broken, it can be …

Hope We Die Before We Get Old: The Attack On Retirement, Patricia E. Dilley

UF Law Faculty Publications

The American institution of retirement has sustained numerous attacks over the last twenty years, to the extent that it may cease to exist by the time most of today's workers reach their midsixties. Professor Patricia Dilley describes how all of the components of the "three-legged stool" that represents private pensions, personal savings, and Social Security, have declined so significantly in recent years that the combination may not be able to provide support for the elderly in the future, particularly those retired seniors who are in the lower and middle classes. Changes in employment policies, the markets for retirement savings investment, …

Remembering The Forgotten Ones: Protecting The Elderly From Financial Abuse

San Diego Law Review

There is nothing new about fraudulently taking money from people, particularly the elderly. The elderly population is rapidly increasing, however, and is readily accessible by telephone and mail. As a result, the elderly are easy targets for financial abuse. Such abuse can emanate from several sources, including people the victims know and trust, particularly family and friends.

Perpetrators can be people upon whom the elderly depend for care. Abuse can also come from strangers with whom elderly victims have no direct contact. This Article focuses primarily on the financial abuse of the elderly by strangers.

Progress And Progression In Family Law, Martha Albertson Fineman

Faculty Articles

The process and nature of change in our family formation seems unlikely to be derailed. The policy question for those concerned with the institution of the family in today's world should not be how we can resuscitate marriage and thus save society, but rather how we can support all individuals who create intimate, caring relationships, regardless of the form of those relationships. Continued inattention to the social and economic dislocations and the emerging family needs produced in the wake of changes in family formation can be disastrous, not only to individual families, but also to society.

Of particular importance for …

The Public Choice Of Elder Abuse Law, Margaret F. Brinig, Gerald Jogerst, Jeanette Daly, Gretchen Schmuch, Jeffrey Dawson

Journal Articles

This interdisciplinary study finds that the way laws are written and treated by state regulators measurably affects bureaucratic performance: the care taken by legislatures and state agencies in developing domestic elder abuse law affects how lower-level bureaucrats investigate and report abuse. Perhaps more interesting, however, are two robust findings about state law making. Both legislator characteristics (here, being middle-aged or slightly older) and lobbying by seemingly the most important group (here, the American Association of Retired Persons [AARP]) sometimes have an unexpected effect. We surmise that these legislators and lobbyists find other issues both more politically attractive and more pressing …