Elder Law Commons^™

Law School News: Transforming Adversity Into Advocacy 9-4-2024, Andrew Clark, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Silver And Old: How Emtala's Outdated Appropriate Medical Screening Standard Impacts The Aging Population, Madisyn Uekawa

Seattle University Law Review

With the U.S. elder population on the brink of booming, attention to the ramifications of legal standards that affect them is a must. In 2018, the Sixth Circuit split from its sister circuits and solidified an interpretation of the Emergency Medical Treatment and Labor Act’s (EMTALA) “appropriate medical screening” standard that will adversely affect aging individuals. Since older adults are the most likely demographic to use emergency care services, laws that impact emergency care will inevitably trickle down to this group of people. To protect already vulnerable older adults, EMTALA should be modified in such a way that (1) it …

Tax, Class, Women, And Elder Care, Nancy E. Shurtz

Seattle University Law Review

As the fastest-growing urban area in the United States—and due to its emerging national influence in commercial real estate development and leasing through transformational transactions such as Amazon’s recently completed national HQ2 search—the City of Seattle and related Washington State laws addressing the use of dual agency in commercial transactions present a unique backdrop for examining the findings and recommendations from a 2014 commercial real estate conflicts of interest research study and attendant report, described below, more than four years after its publication. In November 2014, a published research study report made a number of key observations about the existence …

The Pro Bono Collaborative Project Spotlight: Rwu Law Alums Providing Pro Bono Through The Pbc (September 20, 2018), Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.

Exploitation And Abuse Of The Elderly During The Great Recession: A Maine Practitioner's Perspective, Denis T. Culley, Hannah Sanders University Of Maine School Of Law

Maine Law Review

The practitioner often cringes on first exposure to elder abuse. Beating, cheating, or cynically misusing a parent or other beloved elder not only shocks and disheartens those who stumble upon it, but often leaves the practitioner, like the poet, with “a tighter breathing and Zero at the bone.” Nothing in our culture prepares us to behold the abused elder. The elder herself is often similarly shocked and ashamed. Many times, an abused elder is in denial and may feel that she has somehow allowed the abuse to occur. Or the elder may feel that the abuser—oftentimes a family member, trusted …

The Pro Bono Collaborative Project Spotlight, Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.

The Financial Exploitation And Abuse Of The Elderly, Christopher Hodges

Mahurin Honors College Capstone Experience/Thesis Projects

The criminal industry of elder financial fraud and exploitation (EFFE) is a growing concern among policy makers as well as researchers. This is due to the growing financial impact exploiters are having on their victims. EFFE is defined by the National Center on Elder Abuse as “the illegal or improper use of an elder’s funds, property, or assets (NCEA, 2017).” Following this definition, the quantity of wealth determined to have been lost due to EFFE is staggering. As the tangible capital loss has grown so has the need for more research into this topic. The research in this paper seeks …

Video: Elder Law For Beginners, Arlene Lakin, Gail Fisher

NSU Law Seminar Series

This particular seminar is designed to educate attorneys about how to be an elder law attorney. Practitioners will learn the various skill sets involved: estate and incapacity planning as well as protection of assets in order to qualify for, or remain qualified for, public benefits such as Medicaid and veteran’s pension with aid and attendance.

1. How to work with senior citizens and their families in a clinical as well as legal format
2. How to determine capacity of elderly clients to execute legal documents
3. How to analyze family relationships
4. How to design an estate and incapacity plan …

Selective Issues In Effective Medicaid Estate Recovery Statutes, Raymond C. O'Brien

Catholic University Law Review

Medicaid is a joint federal-state partnership program that provides medical care to the elderly, blind, and disabled poor. Unlike Medicare, Medicaid will pay for long-term care, leading millions of persons in need of such care to “spend-down” income or assets to qualify as sufficiently needy or poor. However, the state can eventually seek recovery of expenditures made through estate recovery programs following the death of both spouses. As it currently stands, states have no choice but to become increasingly vigilant in pursuing private funds in order to pay for Medicaid expenditures. As a result, elderly citizens and their families will …

Finding The Middle Ground On A Slippery Slope: Balancing Autonomy And Protection In Mandatory Reporting Of Elder Abuse, Benjamin Pomerance

Marquette Benefits and Social Welfare Law Review

Millions of older Americans suffer from physical, mental, emotional, or financial abuse. Frequently, their abusers are family members, close friends, or other individuals who occupy positions of trust in their elderly victims’ lives. Unfortunately, due to a variety of factors, elder abuse is a tragically underreported crime. Experts estimate that for every case of elder abuse revealed to law enforcement authorities, five more cases go unreported, allowing the abuse to continue unchecked.

To combat this secrecy surrounding elder abuse, federal and state lawmakers enacted statutes requiring certain people— or, in some jurisdictions, all people—to report instances of suspected elder abuse …

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 …

Health Care Decision Making In The Veterans Health Administration: The Legal Significance For Informed Consent And Advance Directives, Liliana Kalogjera Barry

Marquette Elder's Advisor

No abstract provided.

Confronting The Elder Care Crisis: The Private Long-Term Care Insurance Market And The Utility Of Hybrid Products

Marquette Elder's Advisor

No abstract provided.

Preventing Resident-To-Resident Abuse In Long-Term Care: Targeting Sex Offenders But Missing The Mark

Marquette Elder's Advisor

No abstract provided.

Filial Support Laws In The Modern Era: Domestic And International Comparison Of Enforcement Practices For Laws Requiring Adult Children To Support Indigent Parents, Katherine C. Pearson

Faculty Scholarship

Family responsibility and support laws have a long but mixed history. When first enacted, policy makers used such laws to declare an official policy that family members should support each other, rather than draw upon public resources. This article tracks modern developments with filial support laws that purport to obligate adult children to financially assist their parents, if indigent or needy. The author diagrams filial support laws that have survived in the 21st Century and compares core components in the United States (including Puerto Rico) and post-Soviet Union Ukraine. While the laws are often similar in wording and declared intent, …

Finding Internet Sites On Elder Issues: Health And Human Services, Robin C. Schard

Marquette Elder's Advisor

Have you ever heard the term information over load? Do you feel it every time you try to find an exact piece of information on the Internet? Here's the place to start.

Crafting A Better Power Of Attorney, Penny L. Davis

Marquette Elder's Advisor

This article deals with crafting effective powers of attorney that carry out an elder's wishes while simultaneously protecting the elder from potential abuses requires care and diligence. This review of some of the more critical issues, along with examples of how to address them, can help elder law attorneys to better serve their clients

Financial Abuses Of Elderly Clients, Alison Barnes

Marquette Elder's Advisor

This article identifies what is meant by financial abuse of the elderly, discusses who are the abusers and victims, and illustrates how to identify instances of financial abuse. The author then discusses the possible responses to identified financial abuse, including responses by attorneys, state agencies, and federally mandated programs and acts. She concludes that where an older person is dependent for care on a family member, financial abuse may be best controlled through oversight of the interaction between the caregiver and care receiver, as well as modification of financial arrangements to limit the exposure of the care receiver's assets.

From The Editor, Alison Mcchrystal Barnes

Marquette Elder's Advisor

The Editor has utilized this space to identify for the reader the current state of elder law and its continuing evolution. She then introduces the Elder's Advisor and its goals. Professor Barnes then explains the interactive nature of the Elder's Advisor and invites readers to participate.

The Communitarian Approach In The Elder Law Construct, A. Frank Johns

Marquette Elder's Advisor

Johns suggests that the proposed revisions to the Model Rules do not go far enough in their approach to multiple party representations in elder law issues. He discusses initial client contact, formation of the client-lawyer relationship, client confidences in multiple representation, and intergenerational conflicts. Three interesting case studies are included to highlight the problems that can arise.

Employment Tax Issues In Home Health Care Contracts, Ben A. Neiburger

Marquette Elder's Advisor

Seniors may receive care for which they pay the provider without realizing the tax implications if they are deemed the employer of the provider. Neiburger discusses the sometimes confusing differences between and independent contractor and an employee, and the various taxes and penalties, both federal and state (Illinois as an example) for which employers are responsible.

Older Adults And Addiction: Why We Should Care, Carol Colleran

Marquette Elder's Advisor

Colleran explains some of the causes of alcohol and medication dependence in older adults, such as voluntary or involuntary retirement, death of a loved one, a change of residence, or health problems such as pain or insomnia. Warning signs are detailed, and suggestions for approaching seniors with these problems, including intervention, are given. A list of additional resources is included.

Elder Law And Estate Planning For Gay And Lesbian Individuals And Couples, Ralph Randazzo

Marquette Elder's Advisor

This comprehensive article discusses the unique problems in estate planning encountered by gays and lesbians. Among the items explored are joint representation, advance directives, guardianship, long-term care planning and insurance, Medicare and Medicaid planning, nursing home care, exempt transfers, wills, revocable trusts, gift taxation, and the unique problems encountered which counselors must consider when representing gay and lesbian clients.

Grandparents' Visitation Rights: A Survey Of Reciprocal Kinship-Ties Based In Historical Common Law And Legislative Policies, Jane E. Atkinson

Marquette Elder's Advisor

This article presents an in-depth exploration of the view that family ties and relationships should play an important role in determining grandparent-grandchild visitation rights, based on the important role of the extended family throughout recorded history. Atkinson postulates that post-Troxel visitation decisions should include increased consideration of the value to the child of grandparent visitation.

The Rights Of The Elderly In The Arab Middle East: Islamic Theory Versus Arabic Practice, Radwa S. Elsaman, Mohamed A. Arafa

Marquette Elder's Advisor

No abstract provided.

Rethinking Guardianship (Again): Substituted Decision Making As A Violation Of The Integration Mandated Of Title Ii Of The Americans With Disabilities Act, Leslie Salzman

Articles

In every state, when an adult has a diminished capacity to make decisions about personal affairs or property management, a court may transfer the individual’s right to make decisions to a guardian. This Article argues that, in most cases, it would be preferable to support decision making rather than supplant it through guardianship, and then seeks to locate a right to receive such support as a less restrictive alternative to the substituted decision making that characterizes guardianship.

Building on the reasoning in Olmstead v. L.C. and subsequent decisions interpreting the Americans with Disabilities Act’s integration mandate, this Article argues that …

The Convicted Felon As A Guardian: Considering The Alternatives Of Potential Guardians With Less-Than-Perfect Records, Mike Jorgensen

ExpressO

Courts require discretion in appointing guardians. Oftentimes, the legislature prevents the courts from exercising discretion when statutes are enacted that prohibit felons from serving as guardians under any circumstances. Yet, the need for guardians is increasing and will continue to do so due to the exponential growth in the aging elder population.

At the same time, however, the pool of potential guardians is shrinking in size. Additionally, the same reducing pool of eligible guardians is being attenuated further by having a disproportionate amount of felonies.

The groups most impacted by these trends are the indigent and the minorities. The indigent …