Elder Law Commons^™

Public Perceptions Of Family Caregiving Of Children Versus Older Adults, Elizabeth S. Scott, Tamar Kricheli-Katz

Faculty Scholarship

The population of older adults in the United States is growing at a rapid rate, both because people are living longer lives and because older adults are an increasingly large share of the population as baby boomers age. It is predicted that by 2030, one in ¿ve adults in the United States will be of retirement age, and one in six people worldwide will be age 60 or older. By 2034 there will be more adults age 65 and older in this country than minor children under age 18.

Among the important consequences of this demographic trend will be a …

Silver Tsunami Or Silver Rush? Extracting Value From Elders, Andrew Milne

Suffolk University Law School Faculty Works

I examine how the United States finances elder care, arguing that the legal processes structuring elder care tend to widen economic inequality and divide the interests of lower-income people against each other along generational, gendered, and racialized lines. I begin with two case narratives drawn from my practice experience as a poverty lawyer for older adults. One narrative involves an elder homeowner, while the other involves an elder renter. Both face crises of unmet care needs, the threat of homelessness, and ultimately the outcome that many older people dread most: institutionalization in a nursing home. I use these narratives as …

Prescription Practices, Anti-Psychotics, And Covid-19: An Intersectional Examination Of The Long-Term Care Home Setting In Canada, Olivia Ramos

Dalhousie Journal of Legal Studies

Public discourse and concern over the state of long-term care homes in Canada has been ongoing over the last two decades. One of the main sources of these concerns is the off-label prescription of anti-psychotic medications to long-term care home residents. Off-label use of pharmaceuticals is common and can be beneficial in certain contexts, however, there is a risk of anti-psychotics being used as an inappropriate means of managing patients chemically in the long-term care home setting. This paper engages in three lines of inquiry: first, the regulatory landscape of on and off-label prescription in Canada; second, the off-label use …

The Age Of Fraud, James Toomey

Elisabeth Haub School of Law Faculty Publications

We think of scams primarily as a problem for older adults. Indeed, in the past few years, states and the federal government have undertaken a range of legal actions designed to prevent seniors, as a distinct class, from scams-- from more harshly punishing perpetrators of scams directed towards older adults to authorizing financial institutions to closely monitor and rapidly freeze the accounts of their older clients. But this successful, popular, and bipartisan law reform movement has taken place without a thorough empirical understanding of whether, in fact, seniors fall victim to scams more frequently than other age groups.

This study …

Narrative Capacity, James Toomey

Elisabeth Haub School of Law Faculty Publications

The doctrine of capacity is a fundamental threshold to the protections of private law. The law only recognizes private decision-making—from exercising the right to transfer or bequeath property and entering into a contract to getting married or divorced—made with the level of cognitive functioning that the capacity doctrine demands. When the doctrine goes wrong, it denies individuals, particularly older adults, access to basic private-law rights on the one hand and ratifies decision-making that may tear apart families and tarnish legacies on the other.

The capacity doctrine in private law is built on a fundamental philosophical mismatch. It is grounded in …

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 …

How To End Our Stories: A Study Of The Perspectives Of Seniors On Dementia And Decision-Making, James Toomey

Elisabeth Haub School of Law Faculty Publications

Because dementia can cause individuals to make decisions that they otherwise would not, the law needs a mechanism to determine which decisions are entitled to the respect of the legal system and which may be overridden by others. In the philosophical literature, three primary theories for how to make this determination have been offered. First, "Cognitivism" posits that whether a decision should be recognized is a function of the mechanical functioning of the individual's brain at the time the decision is made. Second, "Essentialism" holds that decisions should be recognized so long as they are consistent with the cluster of …

Wills Formalities In Post-Pandemic World: A Research Agenda, Bridget J. Crawford, Kelly Purser, Tina Cockburn

Elisabeth Haub School of Law Faculty Publications

The COVID-19 global pandemic has brought new focus to human mortality. The virus has reminded many people that they need to have a valid will or otherwise make plans for the effective transmission of their property on death. Yet stay-at-home orders and social distancing recommendations make it difficult or impossible to comply with the traditional rules for validly executing wills. Across most common law jurisdictions, the traditional requirements call for two witnesses in the physical presence of the testator. Because of the practical difficulties of safely executing documents during the pandemic with witnesses assembled in physical proximity, many jurisdictions internationally …

Holding The Therapeutic State At Bay? Balancing Autonomy And Protection In Singapore's Vulnerable Adults Act, Wing Cheong Chan

Research Collection Yong Pung How School Of Law

Abuse, exploitation and neglect of adults raise complex issues on the freedom of the individual to choose for themselves versus the powers of the State to intervene. The law has traditionally limited the scope of compulsory intervention to extreme situations only which can frustrate social workers who deal with such cases. On the other hand, it would be unacceptable to allow intervention simply because it is assessed to be in the adults’ best interests. A balance therefore has to be struck between autonomy and protection. This paper examines how Singapore’s Vulnerable Adults Act identifies the point for intervention and embodies …

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 …

Elder Law & Feminism: Moving Toward Equity In Aging, Emily M. Flesch

Student Scholarship

No abstract provided.

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.

1990 Guardianship Law Safeguards Personal Rights Yet Protects Vulnerable Elderly, Barbara Venesy

Akron Law Review

Therefore, this Comment will review the historical underpinnings of guardianship law, briefly examine nationwide excesses, and outline reform measures advanced by advocates for.the elderly and mentally disabled. Then the Comment will analyze key elements of Ohio's Guardianship Reform Bill including the court investigator's role, expanded powers provisions, reporting and revalidation measures, and the Indigent Guardianship Fund. Finally, this Comment will address areas of potential concern as Ohio's Probate Courts throughout the state implement the law

Unconscionability As A Contract Policing Device For The Elder Client: How Useful Is It?, Robyn L. Meadows

Akron Law Review

An elder law symposium provides an opportunity to consider ways that the various areas of the law provide protection for the older client. This raises the question of whether the Uniform Commercial Code (hereafter U.C.C. or the Code) protects the unique interests of the older consumer. Such consideration naturally leads to the contract policing device specifically included in the Code—unconscionability. The doctrine of unconscionability provides a way for courts to police grossly unfair contracts and contract provisions. It is found not only in the U.C.C. but also in the tenets of general contract law. However, its application is not limited …

Should Attorneys Have A Duty To Report Financial Abuse Of The Elderly?, Carolyn L. Dessin

Akron Law Review

This Article will therefore put the efficacy issue aside and focus on whether an attorney can and should report suspected abuse under a mandatory reporting statute. Part Two of this article will examine the various states’ approaches to mandatory reporting of abuse. Part Three will explore the various states’ rules governing attorney conduct. Part Four will analyze the interaction of the mandatory reporting provisions with the rules governing attorney conduct. Finally, Part Five will discuss whether requiring attorneys to report suspected elder abuse is desirable.

Setting Up A Non-Profit Trust Company: The Special Needs Trust Company In Singapore, Hang Wu Tang

Research Collection Yong Pung How School Of Law

Persons with special needs are in an extremely vulnerable position where they are potentially subject to financial abuse by criminals or other untrustworthy people. In Singapore, this concern has led to the setting up of a non-profit company called the Special Needs Trust Company (SNTC). This article traces the formation of SNTC, the infrastructure and legal documentation required for setting up such a non-profit company and how the special needs trust is currently used in Singapore. The Singapore experience may provide a useful starting point to policy makers and non-governmental organisations from other jurisdictions which may be looking into the …

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 …

Elder Law-Related Organizations On The Internet, Robin C. Schard

Marquette Elder's Advisor

Almost all organizations now maintain Web sites, which enable them to increase their membership and provide current information about the groups to members, prospective members, and the public. This article explores how to navigate these sites and introduces some of the best sites related to elder law information.

Elder Law: General Practice With A Niche, Jane Rupprecht Mulcahy

Marquette Elder's Advisor

This article provides an overview of elder law practice and the importance of a client centered practice. Developing an elder law practice requires specialized marketing to the growing aging population. The elder law attorney must be knowledgeable in broad areas of law included in that practice. Expertise in property law and health care law are two of the most common areas of law practiced by elder law attorneys.

Pain Management In Long-Term Care: Update On Guidelines And Jcaho Standards, Jayne E. Pawasauskas, Andrea F. Luisi

Marquette Elder's Advisor

The authors, both Doctors of Pharmacy, discuss the different levels of pain management in the elderly population. The dangers of side effects of both prescription and non-prescription medications must be considered when evaluating dosing for pain relief or pain prevention. Updated guidelines for patient involvement in pain management protocols in long-term care facilities are examined.

What Is A Certified Elder Law Attorney?, Andrew H. Hook

Marquette Elder's Advisor

Hook gives an overview of the inception and development of the Certified Elder Law Attorney (CELA) certification program. The article includes discussions on required education, the application process, cost, the application of legal malpractice standards of care, review classes, and the actual examination. (Samples of previous exam questions are included.) Court decisions on communications of specialty certification and modification of pertinent Model Rules (and state adaptations) are included.

Web Site Review: Elderlawanswers.Com Provides Services To Attorneys And Seniors, Kathryn Hensiak

Marquette Elder's Advisor

No abstract provided.

Elderlaw: The Top Ten Social Security Questions, Andy Landis

Marquette Elder's Advisor

No abstract provided.

Physical Therapists As Consultants To Elder Law Attorneys And Clients, Ron Scott

Marquette Elder's Advisor

Physical therapists can act as valuable consultants to attorneys practicing elder law and their clients. This article presents an overview of this profession, including areas of practice, certification, ethics code, and information on contacting physical therapists.

Private Sector Long-Term Care Planning, Timothy M. Vogel

Marquette Elder's Advisor

America's long-term care future is fraught with risks and opportunities for a better old age. Elder law attorneys and financial professionals who understand this complex and evolving world will better serve their older clients. This author draws upon his forthcoming book to answer key questions about professional planning that will harness clients' resources to achieve private sector choice in long-term care