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Elder Law
University of Illinois School of Law
Kaplan, Richard L.

Elder Law
 
I.                   What is Elder Law?
A.      Three primary issues of elder law
1.       Financial Resources – What will the person live on?
2.       Housing – Where will the person live?
3.       How will the person pay for medical care?
B.      §1.1 The Development of Elder Law as a Specialty
1.       Distinct origins:
a.       People are living longer due to medical advances, better nutritional habits, and improved living conditions generally
b.      Increasing age usually means increasing medical costs
c.       Increasing age usually means increased caregiving burdens
d.      Older Americans have more accumulated wealth than ever before, and their level of education is increasing steadily
2.       Point is that Americans face an increasing number of legal questions involving entitlement to public benefits, protection of property interests, utilization of medical resources, health care decisionmaking, and interaction with legal and financial institutions of various sorts
C.      §1.2 Scope of Elder Law
1.       Special challenges faced by those who advise older persons
2.       Ethical conflicts when faced with advising more than one generation
3.       A client’s legal “capacity” or the mental ability to make legal decisions
4.       Deciding which medical procedures should be employed when a person is no longer able to make decisions or to communicate the decisions made
a.       Living will
b.      Health care proxies
c.       Powers of atty for healthcare
d.      Other forms of advance directives
5.       Mechanisms for financing health care
a.       Medicare
b.      Medicaid
c.       Private insurance
6.       Nursing homes
a.       Admission contracts and criteria
b.      Rights of patients
c.       Responsibilities of the institution to the patient
d.      Liability for mistreatment
7.       Housing alternatives
a.       Continuing care retirement communities
b.      Subsidized older-adult apartments
c.       Reverse Mortgages
d.      Federal tax consequences of these arrangements
8.       Control of financial affairs
a.       Guardianship process
b.      Alternatives available to those who can plan ahead of necessity
i           Joint tenancy
ii         Durable powers of atty
iii        Revocable or living trusts
9.       Issues of older persons’ income
a.       SS and their tax benefits
b.      Supplemental Security Income
c.       Veteran’s benefits
d.      Pension Plan benefits
10.   Elder abuse and neglect
D.      Supplemental Material
1.       Increase in the study of elder law in law schools
a.       Estate planning provides a bulk of money for practitioners
b.      Elderly tend to pay quickly
2.       How to Take Care of Aging Parents
a.       Need to plan ahead for parents’ old age
b.      Caregiving creates a second full time job
c.       Difficult to bring up the subject
d.      Parents should give their power of atty to someone they trust
e.      Discuss possible future housing arrangements
i           Deciding ahead of time opens more options
f.        Use of private care managers
i           Can be costly but can really help with planning
3.       Employers and Elder-Care Problems
a.       Don’t know how to respond to the aging population
b.      Only 43% of employers provide elder care insurance
4.       Profile of the Elderly
a.       Some fit in the fat cat retirement community stereotype
i           Median elderly income has doubled in relation to generations past
ii         Overall, today’s elderly do have higher living standards than any 65+ generation in history
b.      BUT there are many still living in poverty, about 12%
i           Much depends on sex, race, and marital status
ii         Poverty statistics don’t reflect the huge numbers of elderly people pushed barely above the threshold by SS payments
iii        Experts say this middle group is often more vulnerable than the downright poor b/c they can’t qualify for govt assistance programs like Medicaid. 
c.       Often have more assets than their children or grandchildren
i           BUT the bulk of their net worth comes in the form of a house
ii         Creates worth but not income
d.      Elderly spend more on healthcare than other households
i           Although they are better insured than the rest of the population, they need it to cover the increased need for medical care
5.       Statistics
a.       Elderly (65+) comprise 12.4% of the population = 35 million
i           20.6 million women and 14.4 men à 143 to 100 ratio
b.      Since 1900, the percentage of elderly has more than triples (4.1% to 12.4%) From 3.1 million to 35.0 million
c.       In 2000, persons reaching age 65 had an average life expectancy of an additional 17.9 yrs (19.2 for women and 16.3 for men)
d.      Life expectancy is 76.9
e.      The older population will continue to grow significantly
i           It will begin to burgeon between the yrs 2010 and 2030 when the baby boom generation reaches age 65
ii         By 2030 there will be about 70 million older persons, more than twice their number in 2000. Will comprise 20% of the population
f.        Minority populations are projected to represent 25.4% of the elderly population             
i           Between 1999 and 2030, the white elderly population is projected to increase by 81% compared with 219% for other minorities
g.       Marital status
i           Older men much more likely to be married than older women – 73% of men and 41% of women
ii         Almost half of all older women in 2001 were widows. There were 4x as many widows as widowers
iii        Divorces has increased, although, they represent only 10% of all older persons
h.      Living Arrangements
i           80% owners, 20% renters
ii         41% of owners spend ¼ of their income on housing expenses
i.         In 2000, 16.4% of older persons were minorities
II.                Ethics in Context
A.      §2.1 Ethics in Context
1.       In elder law, most of a lawyer’s revolve under 2 critical questions:
a.       Who is the client? and,
b.      Is the client competent?
B.      §2.2 Who is the Client?
1.       A clear determination of who is the client is imperative to avoiding, or at least minimizing, ethical difficulties
2.       Older persons often appear before a lawyer in the company of some other person
3.       The inquiry is necessitated, in part, by a lawyer’s duty of loyalty to the client. A lawyer may not generally represent someone whose interests conflict with the older person’s interests. Ant yet this pretext seems somewhat contrived when the older person’s family is often supportive, cohesive and motivated by honorable intentions
4.       A lawyer can represent an older person even though the fees are paid by someone else
a.       Must make clear to the person paying about the conflicts that may arise
5.       The possibility of undue influence must always be considered
C.      §2.3 Client Competency
1.       The ability of the putative client to understand what is being discussed, to comprehend the need for a particular document, and to understand its general operation is essential if that document is to have any legal effect
2.       In an elder law context, capacity must be understood as not simply a yes-or-no question. Some clients may be losing capacity slowly, but irreversibly, due to a degenerative disease. Some times of the day may be better than others. Some people experience periods of relative lucidity and confusion.
3.       Determining a client’s capacity is not easy. There is no standardized procedure or even a universally accepted information
a.       Some lawyers prefer to administer simple “mental state” examinations that test a person’s attention span, memory recall, elementary reading and writing skills and language comprehension.
b.      Others prefer to have mental health professionals assess the older person’s mental capacity
4.       A lawyer with an impaired client faces several options:
a.       (1) A guardianship may be sought, but that process entails a major diminution of the client’s autonomy and risks alienating the client from the lawyer
b.      (2) A lawyer may simply follow the client’s instructions as long as this action does not harm some other person or the client’s interests
c.       (3) Can consult with the client’s relatives and friends and get an informal sense of what the client would want under the circumstances à Such procedures have no lawful sanction despite their likely widespread utilization
d.      (4) Lawyer can act as the “de facto” guardian
i           Suggested by the Model Rules but does not define
ii         No legal sanction
e.      In any case, the Model Rules require that the lawyer should “as far as reasonably possible maintain a normal client-lawyer relationship.”
f.        In an emergency when a person’s “health safety or financial interest is threatened with imminent and irreparable harm,” a lawyer may act on the person’s behalf, even though the person is “unable to establish a client-lawyer relationship.”
i           In that situation, the lawyer can act “only to the extent reasonably necessary” to prevent the “imminent and irreparable harm.”
III.             Controlling One’s Medical Destiny
A.      As long as the patient has capacity and the ability to communicate, the following is irrelevant
B.      Why does anyone need an advance directive?
1.       Medical technology has prolonged “life”
2.       Changing perceptions of life/quality of life
3.       High price of health care
4.       Personal autonomy as a medical value
5.       Aging à More sick people
6.       Litigation à Medical malpractice
7.       Relieve anxiety and pressure on friends, relatives and doctors à They don’t have to make the tough choice about life and death
a.       Often physicians have no prior hist

be lower on the priority list
4.       Can be used to cease nutrition or hydration
5.       Person can limit what the agent can do
6.       Provides some guidance
7.       Form can be used to indicate a cost-benefit analysis, limit it to comas or try to extend life as long as possible
8.       Becomes effective at the time signed and until death unless you say otherwise
9.       If your agent dies or loses capacity or refuses to abide by the terms set out within it, allows you to name successors
I.        Access to advance directives
1.       A concern that people have is that they won’t have the form with them when it’s needed
2.       There are some online advance directives registries
3.       Bad idea to keep the form with their lawyer, religious registry or even in the doctor’s office
J.        Portability
1.       IL accepts living wills from any other state, this is the minority position
K.      Enforceability
1.       Only 4 jurisdictions have criminal penalties for failing to follow advance directives, 4 have civil penalties – 40 of the 48 jurisdictions where advance directives are available have no penalty for failing to follow them
2.       Nursing homes may recover for unwanted treatment
a.       In 3 different cases in 3 different jurisdictions, nursing homes have neglected to follow living wills and still able to collect for the unwanted treatment
L.       Physician Assisted Suicide
1.       Hypo statute: Issues
a.       Criteria for suicide
b.      Competency
c.       Notification
d.      Methodology
e.      Waiting period
f.        Autonomy/advisory board
g.       Money –conflicts of interest
h.      Counseling
2.       Majority of Americans and physicians support assisted suicide
a.       BUT most physicians uncomfortable performing it
b.      As a result, only Oregon now has the best pain management in the nation
3.       Reasons for wanting assists suicide
a.       Loss of independence
b.      Poor quality of life
c.       Ready to die
d.      Wanted to control circumstances of death
e.      Saw continued existence as pointless
f.        Physical pain
g.       Loss of dignity
h.      Viewed self as burden
i.         Fatigue
j.        Unable to perform personal care
k.       Unable to pursue pleasurable activities
l.         Wanted to die at home
m.    Dysonea
n.      Confusion or unconsciousness
o.      Incontinence
p.      Life tasks completed
q.      Financial burden
r.        Nausea
s.       Lack of social support
M.    §3.1 The Doctrine of Informed Consent
1.       The essence of the doctrine of informed consent is that the patient must be provided with sufficient information to be able to give meaningful consent to proposed medical care
2.       To date, the Supreme Ct has yet to hold specifically that informed consent is constitutionally guaranteed
a.       However, several state constitutions specifically protect the right to privacy. In these states, individuals enjoy state constitutional protection of the right of informed consent
3.       Enforcement of the doctrine of informed consent rests upon the patient’s right to sue a physician or other medical care provider who fails to obtain the patient’s consent prior to providing medical treatment
4.       The need for informed consent is not absolute, may give way in cases of emergency
5.       Informed consent is also waived if the physician invokes “privilege” based upon the belief that the disclosure of the info necessary to obtain consent would so upset the patient that he would be unable to make a rational decision
N.      §3.2 The Mentally Incapacitated Patient
1.       Mental capacity is a legal term that refers to the capability of an individual to make a reasonable decision based upon an understanding of reality
a.       The law presumes that all adults are competent, a presumption that can only be rebutted by clear and convincing evidence of a lack of mental capacity