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Elder Law Commons™

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Articles 841 - 870 of 1207

Full-Text Articles in Elder Law

Keeping Peace In The Family While You Are Resting In Peace: Making Sense Of And Preventing Will Contests , Judith G. Mcmullen Aug 2012

Keeping Peace In The Family While You Are Resting In Peace: Making Sense Of And Preventing Will Contests , Judith G. Mcmullen

Marquette Elder's Advisor

Even the best intended wills may be challenged if beneficiaries feel slighted. McMullen discusses various challenges to wills which may be based on grounds of public policy, lack of formalities, undue influence, or lack of testamentary capacity. Reasons for disputes are explored and methods, both technical and non-technical, for avoiding challenges are suggested to help provide for the legacy of a peaceful family.

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Tax Planning For Retirement , Vada Waters Lindsey Aug 2012

Tax Planning For Retirement , Vada Waters Lindsey

Marquette Elder's Advisor

As increasing life expectancy and inflation diminish the purchasing power of retirement savings, careful tax planning to maximize funds available to seniors is necessary. Lindsey discusses the taxation of various types of retirement income including traditional and Roth IRAs and Social Security benefits, and explains how careful planning can reduce income and estate taxes. The disparate effects of state income and estate taxes are also explored.

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Table Of Contents Aug 2012

Table Of Contents

Marquette Elder's Advisor

No abstract provided.

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"Whenever Justice Requires": Examining The Elusive Role Of Guardian Ad Litem For Adults With Diminished Capacity, Donna S. Harkness Aug 2012

"Whenever Justice Requires": Examining The Elusive Role Of Guardian Ad Litem For Adults With Diminished Capacity, Donna S. Harkness

Marquette Elder's Advisor

Using several case studies, the author describes the possible difficulties in representing adult clients with diminished capacity, either as an attorney or as a guardian ad litem. Varying qualifications for a GAL, determination of when an appointment is proper, and guidelines for performance are discussed along with the different standards that may be employed for the decisions that are made.

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The Schiavo Odyssey: A Tale Of Two Legislative Reprieves , Miriam Rosenblatt-Hoffman Aug 2012

The Schiavo Odyssey: A Tale Of Two Legislative Reprieves , Miriam Rosenblatt-Hoffman

Marquette Elder's Advisor

Between the time that Terri Schiavo's husband received court approval to discontinue her life support systems and her ultimate demise more than five years later, contentious legal battles were waged and specific state and federal laws were enacted to prolong Terri's life. The author postulates and explains why both laws were unconstitutional, and decries the legislative interference in patient autonomy.

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To Be Or Not To Be, Should Doctors Decide? Ethical N Legal Aspects Of Medical Futility Policies , Maureen Kwiecinski Aug 2012

To Be Or Not To Be, Should Doctors Decide? Ethical N Legal Aspects Of Medical Futility Policies , Maureen Kwiecinski

Marquette Elder's Advisor

Who should decide when to discontinue life support when such treatment appears to be hopeless? This article explores withdrawal or withholding life-sustaining medical treatment when health-care providers and family members disagree on a course of action which is likely to be futile or inappropriate. Ethical, moral, and legal implications are raised, and the lack of and need for guidelines is discussed.

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Elder Mediation: Optimizing Major Family Transitions, Rikk Larsen, Crystal Thorpe Aug 2012

Elder Mediation: Optimizing Major Family Transitions, Rikk Larsen, Crystal Thorpe

Marquette Elder's Advisor

This article postulates that mediation may be an effective way for families to make difficult decisions on how to best care and provide for an elderly family member with declining abilities. Bringing all involved family members together and allowing all to be involved in the decision-making process invests each with a responsibility for decisions made from all the options available.

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Elders And End-Of-Life Medical Decisions: Legal Context, Psychological Issues, And Recommendations To Attorneys Serving Seniors , Ed De St. Aubin, Sheila Baer, Joan Ravenelli Miller Aug 2012

Elders And End-Of-Life Medical Decisions: Legal Context, Psychological Issues, And Recommendations To Attorneys Serving Seniors , Ed De St. Aubin, Sheila Baer, Joan Ravenelli Miller

Marquette Elder's Advisor

Much more than the disposition of worldly goods must be considered when preparing legal documents for end-of-life situations. This article stresses the necessity of client autonomy in preparing dispositional gifts as well as decision planning for medical care and treatment for senior citizens, and also explains the concept of Generatively: the desire to contribute to the well-being of . . . future generations.

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Aging Offenders In The Criminal Justice System , Ronald H. Aday, Jennifer J. Krabill Aug 2012

Aging Offenders In The Criminal Justice System , Ronald H. Aday, Jennifer J. Krabill

Marquette Elder's Advisor

As America is graying, so is the prison population. This article discusses the variable ways police treat elderly offenders, often depending on the nature of their infractions. Courts also vary in their treatment of elderly offenders. The greatest future challenges may be in the area of providing (and paying for) adequate health care programs for elderly inmates, especially those with mental health problems.

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Maximizing The Benefits Of Estate Planning Bet-To-Die Strategies: Clats And Private Annuities , Peter Melcher, Matthew Zuengler Aug 2012

Maximizing The Benefits Of Estate Planning Bet-To-Die Strategies: Clats And Private Annuities , Peter Melcher, Matthew Zuengler

Marquette Elder's Advisor

Because the IRS must normally use actuarial tables to determine life expectancy, particular persons whose life expectancy may be much shorter than projected may be able to preserve a much larger than usual portion of family assets through the use of Charitable Lead Annuity Trusts (CLATS) or private annuity sales. The advantages, disadvantages, and basic tax considerations of each are shown through several detailed examples.

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Table Of Contents Aug 2012

Table Of Contents

Marquette Elder's Advisor

No abstract provided.

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St. Ritas And Lost Causes: Improving Nursing Home Emergency Preparedness , Robert A. Mead Aug 2012

St. Ritas And Lost Causes: Improving Nursing Home Emergency Preparedness , Robert A. Mead

Marquette Elder's Advisor

This timely article explores the legally required emergency preparedness (or lack of it) at St. Rita's Nursing Home in Louisiana during Hurricane Katrina in 2005 when residents were not evacuated as was mandated. The operators were charged with thirty-four counts of negligent homicide. Issues studied include the dangers of evacuating versus not evacuating, varying emergency preparedness regulations and their enforcement, and the failure of legislatures to strengthen such regulations

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Unconscionable: Financial Exploitation Of Elderly Persons With Dementia, Matthew A. Christiansen Aug 2012

Unconscionable: Financial Exploitation Of Elderly Persons With Dementia, Matthew A. Christiansen

Marquette Elder's Advisor

Millions of people deal with the effects of dementia on an elderly family member. Individuals suffering from the effects of dementia are susceptible to financial abuse. This article chronicles the financial abuse of Gladys Smith, an elderly widow suffering from dementia, and the litigation that ensued. The article analyzes what had been done to protect Gladys's estate, what could have been done better, and provides suggestions for estate planning for vulnerable elderly to best prevent financial exploitation by 1) expecting the worst-case scenarios; 2) advanced planning; 3) periodic communication; 4) creating layers of protection to guard against the worst-case scenarios.

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Drivers' Licenses And Age Limits: Imposition Of Driving Restrictions On Elderly Drivers, Katherine Mikel Aug 2012

Drivers' Licenses And Age Limits: Imposition Of Driving Restrictions On Elderly Drivers, Katherine Mikel

Marquette Elder's Advisor

In today's world, most people perceive the ability to drive as a necessity for daily existence, and the elderly population is no exception. However, driving is a privilege and not a skill, not a fundamental right. Research indicates that there is a positive correlation between increased age and decreased physical and mental capacity to drive. Driving requires expeditious reflexes and acute awareness. Considering the research and skills required the question becomes at what age are people too old to continue driving and should age caps on licensing be instituted?

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Union-Negotiated Lifetime Retiree Health Benefits: Promise Or Illusion, William T. Payne, Pamina Ewing Aug 2012

Union-Negotiated Lifetime Retiree Health Benefits: Promise Or Illusion, William T. Payne, Pamina Ewing

Marquette Elder's Advisor

This article discusses the legal theories and causes of action that are commonly associated with claims for benefits of retirees. The authors begin by discussing the way contractual benefits are analyzed by the courts, including the determination of a governing document, the Yard-Man Inference, and the use of extrinsic evidence when governing documents are ambiguous. The authors then discuss several potential claims employees may raise in an attempt to secure benefits, such as promissory estoppel, equitable estoppel, and breach of fiduciary duty. The authors conclude by stating that although they have attempted to lay out the claims associated with retiree …

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Choices For Care: Consumer Choice And State Policymaking Courage Amid Medicaid's Shifting Entitlement To Long-Term Care, Tracy Bach Aug 2012

Choices For Care: Consumer Choice And State Policymaking Courage Amid Medicaid's Shifting Entitlement To Long-Term Care, Tracy Bach

Marquette Elder's Advisor

This author addresses questions about the efficacy of Choices for Care (CFC), a Section 115 waiver program that allows Vermont to encourage Medicaid-eligible state residences to receive long-term care in their homes rather than nursing homes. The article addresses questions about CFC's impact on Medicaid recipients who need skilled nursing care. It also addresses questions concerning the program's cost effectiveness, and whether CFC has created additional costs. Finally, the article addresses the question of whether CFC will radically change long-term care and influence other states.

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Bankruptcy To Thwart Responsibility For Financial Abuse Of The Elderly, Richard Aaron Aug 2012

Bankruptcy To Thwart Responsibility For Financial Abuse Of The Elderly, Richard Aaron

Marquette Elder's Advisor

In cases of financial abuse of the elderly, bankruptcy action has been pursued to thwart responsibility. This article is a brief map to the terra incognita of bankruptcy and suggests directions to consider and pits to avoid. The specific message is to plan for bankruptcy at the onset, step one. Whatever palliative path is chosen, it circles back to the beginning, alerting the representative of the victim to evasion efforts that might be headed off. Waiting to react with defensive steps when and if a bankruptcy out is threatened can destroy hopes of recovery.

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Involuntary Passive Euthanasia In U.S. Courts: Reassessing The Judicial Treatment Of Medical Futility Cases, Thaddeus Mason Pope Aug 2012

Involuntary Passive Euthanasia In U.S. Courts: Reassessing The Judicial Treatment Of Medical Futility Cases, Thaddeus Mason Pope

Marquette Elder's Advisor

In three sections, this author explores a comprehensive overview of futility cases over the twenty five year period from 1983 to 2008. This article begins by describing a futility dispute and the informal manner in which such a dispute is usually resolved. Next, the author differentiates three types of ex ante cases regarding replacing the authorized surrogate decision-maker, obtaining declaratory relief, and the withdrawal of life-sustaining medical treatment (LSMT). The final section evaluates the cases brought by surrogates after LSMT is withdrawn. Ultimately, this author concludes with practical implications of the author's reassessment of the judicial treatment of futility cases.

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Table Of Contents Aug 2012

Table Of Contents

Marquette Elder's Advisor

No abstract provided.

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Continuing Care Retirement Communities Versus The Fair Housing Act: Independent Living And Involuntary Transfer , D. Trey Jordan Aug 2012

Continuing Care Retirement Communities Versus The Fair Housing Act: Independent Living And Involuntary Transfer , D. Trey Jordan

Marquette Elder's Advisor

America's population is aging. The Baby Boomers are beginning to reach retirement age. The number and percentage of seniors is dramatically increasing, and the numbers will explode in 2011, as the Baby Boomers begin to reach age sixty-five. With an aging population, issues including Social Security, health care, Medicaid, and housing must be addressed. This article focuses on the issue of senior citizen housing and the Fair Housing Act (FHA). In particular, this article explores the applications of independent living requirements or active senior clauses in assisted living development housing contracts under the Fair Housing Act.

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Ensure Your Pet's Future: Estate Planning For Owners And Their Animal Companions , Rachel Hirschfeld Aug 2012

Ensure Your Pet's Future: Estate Planning For Owners And Their Animal Companions , Rachel Hirschfeld

Marquette Elder's Advisor

Pets are a central and vital part of their owners' lives, and it is statistically well-documented that seniors and people with health issues derive substantial benefits from their pets. However, pet owners often do not consider what will happen to their pets if they die or become disabled. Many older people do not have pets because they are concerned about who will care for their pets if they become disabled or die and their pet survives them. Often, older people would like to have a pet companion and would benefit from acquiring one or keeping the one they already have. …

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Fillial Responsibility: A Survey Across Time And Oceans , Andrea Rickles-Jordan Aug 2012

Fillial Responsibility: A Survey Across Time And Oceans , Andrea Rickles-Jordan

Marquette Elder's Advisor

In the United States, Medicare and Medicaid are helping fund the cost of caring for the elderly. However, long before these programs existed, several states enacted statutes requiring children to care for their elderly parents. These filial responsibility statutes still exist in many states today, although their effectiveness and use has been called into question by opponents. To understand the current need for these statutes, this article first looks at the reasons the statutes were created. The article then follows their growth throughout the history of the world and the United States. As further means of comparison, the article examines …

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Narrowing Medicaid's Ltc Coverage? The Inplications Of The Dra's Home And Community-Based Care Benefit , Gene Coffey Aug 2012

Narrowing Medicaid's Ltc Coverage? The Inplications Of The Dra's Home And Community-Based Care Benefit , Gene Coffey

Marquette Elder's Advisor

The first section of the article reviews the knowledge required to qualify for various levels of individual licensing. The second section of the article provides an overview of the financial products available in the market and attempts to analyze where the failures in investor knowledge are most apparent.

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What Is Wrong With The Long-Term Care Reforms In The Defecit Reduction Act Of 2005? , Ellen O'Brien Aug 2012

What Is Wrong With The Long-Term Care Reforms In The Defecit Reduction Act Of 2005? , Ellen O'Brien

Marquette Elder's Advisor

Cutting Medicaid is unlikely to substantially increase private sources of long-term care financing, and future financing reform needs to focus on the actual flaws in the current means-tested system of long-term care financing. In order to make this argument, this article briefly describes the goals of the DRA and the policy reforms that seek to limit eligibility for the middle-class elderly. Next, the article draws on a wide range of empirical studies conduct over the past two decades to demonstrate that the impact of Medicaid planning is not quantitatively significant, and that by and large, the elderly assume substantial personal …

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State Implementation Of The Optional Provisios Of The Deficit Reduction Act , Julia Belian Aug 2012

State Implementation Of The Optional Provisios Of The Deficit Reduction Act , Julia Belian

Marquette Elder's Advisor

No abstract provided.

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Reality Check: The Dra's Impact On Seniors With Disabilities And Their Caregivers , Kim Dayton Aug 2012

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 …

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Long Term Care In The Political Balance , Alison Barnes Aug 2012

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 …

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Table Of Contents Aug 2012

Table Of Contents

Marquette Elder's Advisor

No abstract provided.

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When Never Happens: Implications Of Medicare's Never-Event Policy, Hudson T. Rowland Aug 2012

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.

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The Death Of The State Death Tax Credit: Can It Be Resuscitated?, Patrick R. Thiessen Aug 2012

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 …

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