Elder Law Commons^™

Reality Check: The Dra's Impact On Seniors With Disabilities And Their Caregivers , Kim Dayton

Marquette Elder's Advisor

This article discusses the hardships on seniors with disabilities who are unable to qualify for Medicaid under the Deficit Reduction Act of 2005. The author argues for the repeal of the DRA and calls for policymakers and politicians to work towards a long-term care financing scheme that fairly distributes the costs of long term care across the broader population. The author begins by laying out the arguments that the nation cannot afford the cost of long-term care for the elderly and disabled, their entitlement to such care should be minimized, and individuals should plan for their own healthcare. The author …

Long Term Care In The Political Balance , Alison Barnes

Marquette Elder's Advisor

This article is a compilation of various observations from presenters at the Marquette University Law School's 2007 Health and Elder Law Symposium. The comments by the author connect the observations from the presenters at the Symposium with viewpoints from the various articles in the Marquette Elder's Advisor Volume 9, Article 1. The comments begin by discussing the Deficit Reduction Act of 2005 and its history of limiting Medicaid eligibility for elderly individuals who are disabled but are not destitute. The comments also discuss Medicaid planning, cost-of-living adjustments, and long term care insurance. The comments conclude by stating that the status …

When Never Happens: Implications Of Medicare's Never-Event Policy, Hudson T. Rowland

Marquette Elder's Advisor

This article discusses the Healthiest Wisconsin 2010 (HW2010) statute and its implementation to improve patient care through a denial of payment to hospitals when a selected condition takes place. The state of Wisconsin has created a program to improve the state's overall health through a partnership between the state department of health, universities, and other health providers. While the two programs have their differences, this article explores how the Centers for Medicare and Medicaid Services can learn from Wisconsin and HW2010 to create a more reasonable plan to improve patient safety.

The Death Of The State Death Tax Credit: Can It Be Resuscitated?, Patrick R. Thiessen

Marquette Elder's Advisor

This article provides an overview of the Economic Growth and Tax Relief Reconciliation Act of 2001's (EGTRRA's) estate tax reforms and how they have impacted the states. Additionally, this article examines the lessons that might be learned from the history of the state death tax credit, how the states developed their state estate taxation schemes based on the state death tax credit, the congressional decision to repeal the state death tax credit and the states' limited responses, two states' differing responses to EGTRRA, and the study of the possible impact of the evolving state estate taxation landscape on wealthy retirees …

Ptsd And Its Effects On Elderly, Minority, And Female Veterans Of All Wars, Craig M. Kabatchnick

Marquette Elder's Advisor

This article focuses solely on post-traumatic stress disorder (PTSD) in those soldiers who experienced combat during Korea, Vietnam, Afghanistan, and Iraq. Alarmingly, these veterans are aging without the proper care for PTSD. This article highlights the effects that PTSD has on aging veterans while offering solutions to promulgate a proper care facility for PTSD patients. There is also a focus on veterans who are unable to receive special care and ultimately commit a crime because of their PTSD. As a result, the concluding portion of this article focuses on those veterans who could possibly use PTSD as a viable legal …

The Normative Influence Of The Fifth Commandment On Filial Responsibility, Charlotte K. Goldberg

Marquette Elder's Advisor

Goldberg's article looks at the Fifth Commandment's obligation of honoring one's parents as one source of filial responsibility laws. The article's goal is to suggest how concepts from the Jewish Law regarding the Fifth Commandment can add intangible benefit to undertaking the obligation of financial and physical care of an elderly parent.

At The Crossroads Of Age And Disability: Can Practitioners Rely On The Amended Ada And The Adea To Provide Adequate Recourse For The Older Disabled Individual?, Christopher E. Pashler, Brian C. Lambert

Marquette Elder's Advisor

This article explores the interconnectedness of age and disability in relation to the Americans with Disabilities Act of 1990 (ADA) and the Age Discrimination in Employment Act (ADEA). The purpose of the article is to explore the impact of recent ADEA litigation and the ADAAA on practitioners who are considering pleading either an ADEA claim or an ADA claim relating to age and disability.

Elder Investments: A Critique Of Professional And Consumer Mediocrity, Errold F. Moody Jr.

Marquette Elder's Advisor

This article deals with the investing problems faced by many elderly today. Moody asserts that investor problems are primarily caused by a lack of knowledge in all levels of American financing, investing, and retirement planning. The article examines recent systemic failures that demonstrate how lack of knowledge continues to promote system failure, despite its grievous impact on the elderly who rely on their investments for income when they can no longer work.

Closing The Gap Between Knowledge And Practice In The U.S. Long-Term Care System, Larry Polivka

Marquette Elder's Advisor

The push for Medicaid reform is evident in the Deficit Reduction Act (DRA), which was crafted, in part, as a response to state-level dissatisfaction with existing waiver options. The DRA spells significant changes for Medicaid, as it institutes deep revisions of some of the program's core elements. The most significant components of the DRA's reforms include the expansion of state options and the simplification of the option approval process. This article examines the newly available options that will most notably affect Medicaid services to the elderly, especially long-term care, and it summarizes program revisions under consideration or active development.

Making Better Long-Term Care Decisions, Robert L. Kane Md

Marquette Elder's Advisor

No abstract provided.

Failing To Care: How Effective Compliance Prevents Institutional Elder Neglect, David R. Hoffman

Marquette Elder's Advisor

Hoffman discusses how criminal and civil action by way of state criminal statutes and the False Claims Act should be utilized against institutions that receive governmental funding to motivate them to provide residents with adequate services. The article outlines how elder care institutions can provide effective care for their residents through appropriate employment screening and on-boarding, reporting and monitoring and thorough investigative procedures

"Death With Dignity": A Recipe For Elder Abuse And Homicide (Albeit Not By Name), Margaret K. Dore

Marquette Elder's Advisor

Death with Dignity Acts in Oregon and Washington authorize physicians to write life-ending prescriptions for their patients. This article addresses various problems with the Acts, including the wording about who may administer the lethal drug and the fact that both Acts lack a consent requirement when the lethal dose is administered. This article also addresses counter arguments offered by proponents of the Acts.

International Rights Of Older Persons: What Difference Would A New Convention Make To Lives Of Older People?, Israel Doron, Itai Apter

Marquette Elder's Advisor

This article tries to answer the following question: What difference, if any, would a new convention on the rights of older persons make to the lives of older people in light of the previous experiences with the Convention on the Eliminations of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC)? In order to answer this question, the authors focus on the existing legal literature on international human rights law, with a particular focus on international human rights treaties. To better understand international human rights treaties, the article also discusses the CRC …

Power Of Attorney: Convenient Contract Or Dangerous Document?, Catherine Seal

Marquette Elder's Advisor

This article addresses the durable general power of attorney, tracing its evolution from general principles of agency law to the new Uniform Power of Attorney Act. The author also discusses the utility of the power of attorney as a tool to assist a senior who wishes to avail themselves of the services of an agent. From this perspective, the author addresses fiduciary duty and fiduciary liability, common problems with the power of attorney, and proposed methods of dealing with such problems.

International Human Rights And The Elderly, Jaclynn M. Miller

Marquette Elder's Advisor

This article argues that despite the international instruments that make reference to the rights of the elderly, steps still need to be taken to ensure that both laws and enforcement policies are being created internationally and nationally to protect the elderly, especially those who need institutionalized care. For this to occur, better enforcement mechanisms must be created, primarily an international treaty specifically designed to protect the rights of the elderly. In the course of this argument, the article discusses the definition of old age, the existing international legal framework for the protection of the elderly, and examples of elder abuse. …

Life, Liberty, And The Pursuit Of Death Of The Inconvenient Other , Jonathan Penn

Marquette Elder's Advisor

This article looks at end-of-life issues, focusing on physician-assisted suicide, whether the United States government's numerous responsibilities created by the Older Americans Act and other similar acts, such as the government's financial limitations, and a growing elderly population will lead to a deterioration of society's view of elders and a legitimization and acceptance of assisted suicide.

Bringing Age Discrimination And Disability Discrimination Together: Too Few Intersections, Too Many Interstices, Leslie Pickering Francis, Anita Silvers

Marquette Elder's Advisor

Old age and disability would seem to have adverse features in common. Membership in either group suggests depleted capability, decreased social contribution, significant fragility, and heightened susceptibility to maltreatment by other people. Yet some have argued that no wrong occurs when advanced age is made disadvantageous, for the elderly have had a fair chance at the goods of life. By contract, this argument goes, there is never a fair chance for people with disabilities. This article challenges the view that takes discrimination based on disability and discrimination based on age as so discrepant that they do not deserve similar efforts …

The Elderly With A Disability: Social Security And Representative Payment, Michael J. Churgin

Marquette Elder's Advisor

This article looks at the elderly with disability and how the intersection of social security.

The Tbi Impact: The Truth About Traumatic Brain Injuries And Their Indeterminate Effects On Elderly, Minority, And Female Veterans Of All Wars, Craig M. Kabatchnick

Marquette Elder's Advisor

Traumatic Brain Injury (TBI) is the signature injury of Operation Enduring Freedom (OEF) and Operation Iraq Freedom (OIF). This article examines the reasons for increased TBI injuries, calculates the costs associated with those injuries, and evaluates TBI at the Department of Veterans Affairs. This article discusses the current diagnosis challenges, and addresses the subsequent impact of TBI on special populations including military veterans, racial minorities, women, and the elderly.

Age Discrimination In The Delivery Of Health Care Services To Our Elders, Phoebe Weaver Williams

Marquette Elder's Advisor

This article examaines age discrimination by health care providers. The author provides suggestions and recommendations to remedy this type of discrimination

Due Process And The Guardian Ad Litem In Elder Law Disputes: Which Hat Will She Don With Her Cloak Of Neutrality?, Roger A. Eddleman, John A. Dinucci

Marquette Elder's Advisor

No abstract provided.

How America's Newest Consumer Credit Statute Fails To Protect Its Oldest Consumers: A Critique Of The Credit Card Act Of 2009, Michael A. Furlong

Oklahoma Law Review

No abstract provided.

Thinking Locally: Law, Aging And Municipal Government: Findings From A National Survey, A. Kimberley Dayton, Israel (Issi) Doron

Faculty Scholarship

Municipal law, which has been largely ignored in the body of elder-rights scholarship, often plays a far more important role in the everyday lives of older persons than the principally aspirational concepts of international law. Accordingly, this article examines how well modern cities have fulfilled their potential role in assuring the civil and human rights of older persons. The author concludes, based on the results of a national study, that local law is not currently fulfilling its potential as a means to expand the rights of older citizens. Few cities across the country appear to have taken more than minor …

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 …

Forgoing Drugs On Grounds Of Cost: A Perspective From Catholic Health Care Ethics And Social Teaching, Janine Marie Idziak

Marquette Elder's Advisor

No abstract provided.

The Rise In Elder Bankruptcy Filings And The Failure Of U.S. Bankruptcy Law, John A. E. Pottow

Articles

Recent empirical legal scholarship on the consumer bankruptcy system has uncovered a marked rise in the proportion of elder Americans filing for relief under the Bankruptcy Code. But these studies have not probed the reasons behind that rise, an omission this Article seeks to address. Professor John Pottow and colleagues recently assembled the new dataset of the Consumer Bankruptcy Project (CBP), the largest national sample of consumer debtors in this country, which he uses to explore the sources of elder bankruptcy. The findings are both striking and ominous. While multiple factors, such as health problems and medical debts, contribute to …

Regrettably Unfair: Brooke Astor And The Other Elderly In New York, Joseph A. Rosenberg

Pace Law Review

No abstract provided.

The Commerciality Doctrine As Applied To The Charitable Tax Exemption For Homes For The Aged: State And Local Perspectives, David A. Brennen

Scholarly Works

This essay examines the question of how state and local government officials should consider federal tax law principles, like the commerciality doctrine, when they challenge state and local property tax exemptions that rely, at least in part, on tax-exempt charitable status for federal income tax purposes. In particular, this essay uses the example of CCRCs [continuing care retirement communities] to consider tax-exempt law's commerciality doctrine in an attempt to discern distinctions between “homes for the aged” that are “charitable,” and thus entitled to exemption, and those that are too commercial, and thus not entitled to exemption. In fact, one might …

Social Security And The Low-Income Worker , Nancy J. Altman

American University Law Review

Social Security is important to all Americans, but, particularly, to low-income workers and their families. Financing the program partly through earmarked deductions from employees’ wages is an integral and vital part of Social Security’s design, and has been an important reason for Social Security’s success and broad public support over the program’s seventy-year life. At the same time, these contributions are harder to bear for those with lower wages. Just as the EITC has eased the burden of these contributions without undermining the basic structure and philosophy of Social Security, so the program’s long-range deficit, if eliminated properly, can help …

The Public Choice Of Driving Competence Regulations, Margaret F. Brinig

Journal Articles

Purpose: The purpose of this study is to describe and classify each state's driver's licensing laws and then test whether the licensing laws affect the percentages of over-64 persons licensed and the proportion of older drivers involved in accidents to determine an optimal level of driving.

Design and Methods: This paper evaluates state driving rules, obtained from laws, regulations, and driver's manuals, tests, based upon Department of Transportation data, whether the type of laws affects driving and accident rates for those over 64 and suggests a uniform scheme combining self-reporting of driving problems, on-the-road tests of drivers who fall below …