CHAPTER 1 – AGING IN AMERICA
A. Aging in America: An Overview
® U.S. Department of Health and Human Services, Administration on Aging A Profile of Older Americans: 2005
– The Older Population; Future Growth
– Marital Status; Living Arrangements
– Racial and Ethnic Composition; Geographic Distribution
– Income; Poverty
– Housing; Employment; Education
-Health and Health Care; Health Insurance Coverage
-Disability and Activity Limitations; Caregiving; Computer and Internet Access
® Federal Reserve Board Remarks by Federal Reserve Board Chairman Alan Greenspan at a Symposium Sponsored by the Kansas City Federal Reserve Bank
B. Interdisciplinary Aspects of Aging
®Excerpts from the Written Testimony of Robert N. Butler, M.D. Before the U.S. Senate Special Committee on Aging
– Ageism – a systematic stereotyping of and discrimination against people simply because they are old
®National Institute on Aging Portfolio for Progress
® Administration on Aging The Many Faces of Aging: Serving Our Hispanic American Elders
® NY State Office for the Aging Project 2015 The Future of Aging in New York State Brief: Lesbian and Gay Issues
C. Social Policy and Aging: Selected Issues
1. Crime and Fraud
-U.S. Department of Justice Office of Justice Programs Elder Crime and Victimization
-Statement of Dennis M. Lormel Chief, Financial Crimes Section FBI Before the United States Senate Special Committee on Aging
D. The Practice of Elder Law
® Bureau of Labor Statistics
® Amelia E. Pohl, What is Elder Law Anyway?
– Commission on Legal Problems of the Elderly
-3 major categories of elder law:
(1) Estate planning and administration, including tax questions
(2) Disability, Medicaid, and other long-term care issues
(3) Guardianship, conservatorship, and commitment matters, including fiduciary administration. Other areas included retirement benefits, Medicare, disability benefits, litigation in the areas of elder abuse and fraud.
– The National Academy of Elder Law Foundation (NAELF), an organization created by the Board of Directors of NAELA, is offering board certification upon meeting the requirements set up by NAELF
– Rather than being defined by technical distinctions, elder law is defined by the client to be served
® National Academy of Elder Law Attorneys Questions & Answers When Looking for an Elder Law Attorney
-Fields of law encompassed by Elder Law
– Finding an elder law attorney
CHAPTER 2 – SPECIAL ETHICAL PROBLEMS WHEN REPRESENTING THE ELDERLY
A. Joint or Multiple Representation (not recommended, but practiced routinely)
1. The Spouse
® It is important for the responsible attorney to deal directly with the person whose legal problem is prompting the contract, if at all possible
® A client may consent to joint representation notwithstanding a potential conflict
® Model Rule 1.7 contemplate a two-part test
– The lawyer must reasonably believe that the client will not be adversely affected, AND
– The client must consent after consultation
® The lawyer must disclose that multiple representation is sought and the implications of common representation (including risks and advantages)
® When more than one client is involved, the question of conflict must be resolved as to each client
® There may be circumstances where it is impossible to make the disclosure necessary to obtain consent
® Key issue in joint representation with respect to married people: whether effective representation of one spouse precludes effective, loyal representation of the other
®See Rules 2.2 Intermediary
® Scope of Representation (Rules 1.2 Scope of Representation and 2.1 Advisor)
-If a lawyer perceives that the client expects assistance that would be improper or illegal for the lawyer to provide, the lawyer has duty to clarify the limitations on the scope of the lawyer’s conduct
– The lawyer should outline the scope of representation on the representation agreement or employment contract in as much detail as practicable, and provide a signed copy to the client
2. Adult Children
® Medicaid planning as practiced by Elder Law attorneys is ethically justified in the present economic environment
® Unless the person approaching the elder law attorney brings with her the power to transfer the Elder’s assets, the Elder law attorney cannot transfer those assets without the Elder’s consent
® If the plan is not structured to address the elder’s long-term care needs, in our view the attorney has ignored the spirit, if not the letter, of Rule 1.14
® Rule 1.14 as far as reasonably possible, the attorney should maintain a normal attorney-client relationship with clients who suffer from diminished capacity
® MRPC Rule 2.1 and 1.2(a) define the lawyer’s duties to her client
® Principlism – a weighted approach to health care decision making that takes into account four central principles:
(1) Autonomy – the individual’s freedom from controlling interference by others and from personal limitations that prevent meaningful choices (i.e. diminished mental capacity that affects understanding); two conditions are essential: liberty (the independence from controlling influences) and the individual’s capacity for intentional action
(2) Nonmaleficence – an obligation not to inflict harm on the person to whom a duty of care is owed within a special relationship (i.e. attorney-client or physician-patient); it’s the minimum standard
(3) Beneficence – actions performed that contribute to the welfare of the patient
(4) Justice – fair, equitable and appropriate treatment in light of what is due or owed to a person
– Commutative justice – that which is owed between individuals (i.e. the relationship between principal and agent)
– Contributive justice – what individuals owe to society for the common good, including the rights and responsibilities of citizens to obey and respect the rights of all and the laws devised to protect peace and social order)
– Distributive justice – what society owes to its individual members
® Fickett v. Superior Court – the Arizona Court of Appeals employed a balancing test in determining whether there was sufficient privity between a guardian’s attorney and a ward to create a duty to the ward
® MRPC Rules 1.14 and 1.7(b) suggest that the principle of autonomy should be weighed against the principles of nonmaleficence, beneficence, and justice
® If the elder engages the attorney’s services, Rule 1.2 provides that the Elder guides the scope of the representation
®If a surrogate engages the attorney’s services, Rules 1.2(d) and 1.14 require that the lawyer prevent misconduct
® Rule 1.7(b) requires that elder law attorney’s weigh the interests in favor of the Elder
® Kansas Statutes Annotated § 59-605 Preparation of will or provision of will that gives any devise or bequest to writer or preparer
® A child who has been court-appointed Guardian/Conservator, either limited or otherwise, would generally have the authority to engage a lawyer on behalf of the ward/conservatee
3. Caregivers and Other Unrelated Third Parties
® In re Brantley – the Kansas Supreme Court held that attorney’s failure to provide competent representation, to abide by client’s decisions as to scope of representation, to keep client reasonably informed, or to communicate basis or rate of fee to client, representation of client despite conflict of interest, failure to maintain normal relationship with client believed to be under disability, and lack of candor toward tribunal warranted published censure and payment of restitution to client in amount of fees paid to attorney
– MRPC 1.1 – Competence
-MPRC 1.2 – Scope of Repr
he rules of professional conduct”)
® Withdrawal is permissible so long as it can be accomplished “without material adverse effect on the interests of the client” Rule1.16(b)
C. Lawyer’s Duty to Impaired Third Party
® Estate of Treadwell Ex Rel. Neil v. Wright
– In re Guardianship of Karan
-The general rule is that only an attorney’s client may file a claim for legal malpractice (Trask v. Butler)
-An attorney may owe a non-client a duty even in the absence of this privity (Strangland v. Brock)
– Six element test in Washington to determine whether a lawyer owes a duty to a non-client which then creates a standing to sue for malpractice
1) The extent to which the transaction was intended to benefit the plaintiff
2) The foreseeability of the harm to the plaintiff
3) The degree of certainty that the plaintiff suffered injury
4) The closeness of the connection between the D’s conduct and the injury
5) The policy of preventing future harm; and
6) The extent to which the profession would be unduly burdened by a finding of liability
CHAPTER 4 – PLANNING FOR RETIREMENT
A. Government Programs
1. Old Age, Survivor’s, and Disability Insurance (OASDI)
® Social Security Act created a social insurance program designed to pay workers age 65 or older a continuing income after retirement
a. Origins
® “The miracle” of the market
® The stock market crash and the Great Depression
® Radical Calls To Action
® The establishment response
– Do nothing
– Expand welfare (eligibility for which was based on financial need)
– Rely on voluntary charity
– Social insurance would address the permanent problem of economic security for the elderly by creating a work-related, contributory system in which worker would provide for their own future economic security through taxes paid while employed
– Social meaning the program is shaped in party by broader social objectives, rather than being shaped solely by the self-interest of the individual participants
b. Mechanics
® Social Security is partially a program of social insurance and partially a program of ensuring retirement income
® At some point, most current retirees are receiving funds in excess of what they had put into the system
c. Eligibility
® Insured Status
-An individual must meet the requirements for “fully insured” status
– Insured status requires the accumulation of a lifetime minimum number of OASDI quarters of coverage
– Individuals born 1929 or later need 40 quarters of coverage
® Full retirement age – the age at which individuals receive full retirement benefits (currently, it’s 65)
– Individuals retiring before full retirement age will have their benefits reduced by 5/9ths of one percent for the first 36 months and 5/12ths of one percent for each additional month
® Bona fide retirement
– Substantial services test – work-like activity more than 45 hours per month is presumed to be substantial services and defeats retirement; work-like activity totaling less than 15 hours per month is presumed not to be a substantial service
