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

ELDER LAW – Professor Kaplan
I.                   What is “Elder Law”
A.     The Development of Elder Law as a Specialty
1.      People are living longer due to medical advances, better nutrition habits, and improved living conditions
2.      Increasing age usually means increasing medical costs
3.      Increasing age usually means increased care-giving burdens: more care by third party providers, which raises legal questions about the right of care, responsibility of care providers, monitoring of these services, and financing
4.      Older Americans have more accumulated wealth and education than ever before, resulting in increased political visibility
B.     Scope of Elder Law
1.      Ethical conflicts, client’s legal capacity, deciding which medical procedures should be employed, Medicare/Medigap/Medicaid, private insurance, housing alternatives, financial organization, income and Social Security, elder abuse
II.                Ethical Considerations in Dealing With Older Clients
A.     Ethics in Context
1.      Two critical issues:
a.       Who is the client? Raises issues of confidentiality, conflicts of interest, fees
b.      Is the client competent? Issues include legality of the attorney-client relationship formed or the scope of the representation
B.     Who is the Client
1.      Generally, the older person is the client; accordingly, the attorney owes duties of diligence, communication, and confidentiality
2.      Issues arise when older persons meet with the attorney in the company of others
3.      The Model Rule of PR permit representation of multiple persons, or even multiple generations, if there is no apparent conflict of interest
a.       MR 1.7 requires that each party must consent to such representation, after consultation with the lawyer, and that the lawyer must reasonably believe that such multiple representation will not adversely affect his representation of the older client
b.      The lawyer is directed to explain the implications of the common representation and the advantages and risks involved
4.      One solution is disclosure – a lawyer may represent the older person even though fees are paid by someone else, if the older person is so informed and consents; the payment must not interfere with the lawyer’s independence of professional judgment
5.      Undue Influence – ongoing behavior patterns may be sufficient to manifest undue influence, or even abuse
6.      The attorney can withdraw, if the withdrawal will NOT have a material adverse effect on the interests of the family members involved
C.     Client Competency (Legal Capacity)
1.      Definition – 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
a.       The necessary legal capacity to perform a task depends on the nature of such task (i.e. a different level of legal capacity is necessary to make a will than needed to reinvest dividends)
2.      Sufficient legal capacity is necessary to form the attorney-client relationship
3.      There is no standardized procedure used in assessing legal capacity
a.       A lawyer may depend on observation of the older person, along with comments by third parties (although these comments may be biased)
b.      Mental State Examinations – test a person’s attention span, memory recall, elementary reading and writing skills, and language comprehension
4.      Legal incompetency must be distinguished from a pattern of making decisions that the lawyer believes are unwise or inappropriate
5.      Options if a client is legally incompetent:
a.       Guardianship
b.      A lawyer may follow the client’s instructions as long as this action does not harm some other person or the client’s interests
c.       The lawyer may consult with a client’s relatives and friends to get an informal sense of what the client would want under the circumstances (but this raises issues of confidentiality if the client has not consented)
d.      The attorney can act as a “de facto guardian”
(1)   MR 1.14 – in an emergency when a person’s health, safety, or financial interest is threatened with imminent and irreparable harm, a lawyer may act on that person’s behalf, even though the person is unable to establish a client-lawyer relationship; the lawyer can act only to the extent reasonably necessary to prevent the imminent and irreparable harm
D.     Articles
1.      Ethical Considerations in Advising and Representing the Elderly (pg. 2-1)
a.       An elderly client is likely to be heavily dependent upon family or others for personal care; the attorney must determine whether services contemplated for the client are in fact desired by the client
2.      Ethical, Spiritual and Cross Cultural Implications (pg. 2-6)
a.       Sensitivity to nuances in a client’s cultural background and values is vital, as the cultural context of a person’s life has a great influence in how specific decisions are made. Lack of consideration of cultural diversity may cause an attorney to misread a situation, and the client may feel devalued because their views are not adequately heard. Cultural, ethnic, and religious diversity may dictate who is the decision-maker when it come to an elder family member
3.      When Clients Have Catastrophic Illnesses (pg. 2-15)
a.       Decision Making capacity requires: possession of a set of values and goals; the ability to communicate and understand information; the ability to reason and to deliberate about one’s choices. A constant level of competence is not a prerequisite to providing legally adequate informed consent. Capacity is subjective. Suggestions for the elder law attorney: Presumption that an elder person is competent; Keep good notes/records on a client’s behavior while executing documents; Family members who know the client’s behavior should be present when documents are signed to very client’s competence; Schedule meetings when the client is most together; Leave enough time per appointment in case of complications; Go to client’s home if they function better there; Be clear and specific; don’t overwhelm a client; Consider the client’s condition when presenting materials (font size, etc.); Maybe ask yes/no type questions
4.      Determining Competency (pg. 2-21)
a.       The Mental State Exam (MSE) and neuropsychological testing are systematic methods to evaluate behavior, emotional and cognitive processes. Lawyers may use the Mini-MSE: Orientation – awareness of time and place; Registration – say a series of words and see if the client can repeat them; Attention & Calculation – count backwards from 100 by 7; Recall – have client repeat something said earlier; Naming – have client name surrounding objects; Repetition – repeat sentences; Three-Stage Commands – give client 3 commands (hold paper, fold, put down); Reading – client reads a command then performs it; Writing – have client write a sentence; Copying
III.             Health Care Decision Making: Controlling One’s Medical Destiny
A.     The Doctrine of Informed Consent
1.      Definition of Informed Consent – the patient must be provided with sufficient information to be able to give meaningful consent to proposed medical care
2.      The right of patients to control their medical care arises from the doctrine of informed consent, which has as its goal patient autonomy and self-determination
a.       Personal autonomy reflects individual’s ability to control their own bodies; individuals must be able to freely control their bodies by having the right to initiate or refuse medical care treatment
b.      To make a meaningful decision, the patient must have enough information to understand the consequences, its risks and benefits, and the possible alternatives
3.      Enforcement of the doctrine of informed consent rests upon the patient’s right to sue a physician who fails to obtain the patient’s consent prior to providing medical treatment
4.      A competent adult may refuse medical treatment even that decision results in death
5.      Exceptions to the requirement of informed consent (i.e. consent is implied):
a.       emergency
b.      if the patient is incapable of giving consent or receiving information, and yet is in serious danger and need of immediate care
c.       if the physician invokes “privilege,” based upon a belief that the disclosure of the information necessary to obtain consent would so upset the patient that he would be unable to make a rational decision
d.      waiver by the patient of the right to informed consent, which allows the physician to make the treatment decisions 
B.     The Mentally Incapacitated Patient
1.      Two issues: how to determine who is capable of giving informed consent, and for an incapacitated individual, who makes the decisions
2.      Mental Competency (or mental capacity) – the capability of an individual to make a reasonable decision based upon an understanding of reality
a.       Presumption that all adults are competent; rebuttal must be by clear and convincing evidence of a lack of mental capacity
b.      Competency is situational, so the degree of mental capacity required for legal competence depends on the proposed act
3.      In order to give informed consent, the individual must understand the supplied information, comprehend the consequences of acting on that information, be able to assess the relative benefits and dangers of the proposed action, and be able to provide a meaningful response to the question of what should be done
a.       In assessing capacity, must determine whether the patient has the mental ability to make a choice that is based either on rational reasons or on personal values (not on phobias, panic, or depression) 
b.      Patients must also be able to understand what they are told
C.     Surrogate Decision-making for the Incapacitated Patient (the doctrine of informed consent requires that for every patient, there be a decision-maker)
1.      Guardian
a.       Upon the filing of a guardianship petition with a court, a hearing is held to determine whether the patient is legally incapacitated; if the patient is found incapacitated, the court will appoint a guardian to make medical decision treatments
2.      Advance Health Care Directive (or health care proxies or durable powers of attorney)
a.       Written directives (signed by patient) that give direction as to an individual’s future medical care in the event of mental incapacity
(1)   They can specifically state the kind of treatment the patient wants, and/or it can appoint a surrogate decision-maker
b.      In case a patient does not have an advance directive, many states have passed acts under which family members, in a listed order, may act on behalf of an incapacitated person
D.     Living Wills
1.      A document by which individuals attempt to control their medical care in the event they become mentally incapacitated (a competent patient can make decisions despite the existence of a living will); usually contain treatment instructions (including termination of life sustaining treatment) for situations if the individual becomes either terminally ill or in a persistent vegetative state
*patient needs to give notice to the medical provider of the living will’s existence*
**only apply after a patient is said to have a terminal illness or permanent unconsciousness; if an individual has a hope for recovery, the living will is generally not applicable**
a.       Terminal Illness – a situation in which the patient will die “shortly” regardless of the continuation of medical treatment
b.      Permanent Unconscious (persistent vegetative state) – a partial death of the brain, from which an individual can never recover or awake
2.      Contents:
a.       Statement regarding the form of treatment desired if the patient is incapacitated
b.      Statement that life-sustaining treatment should be terminated if patient found to be terminally ill or in a vegetative state
3.      Formalities of Execution: in writing and signed by the patient (maybe need a witness and notarization)
4.      Duration: some state say termination occurs after a number of years; others say until revoked and notification given to the physician
5.      Portability: each state has its own requirements; no general rule of reciprocity
E.     Termination of Life Sustaining Treatment Without a Formal Advance Directive
1.      In Re Quinlan – a legal guardian (like a parent) is permitted to assert a patient’s right to privacy and request termination of life support; upon concurrence of the guardian and her family, the life support could be terminated if the attending physicians concluded that there was no reasonable possibility of her ever emerging from her comatose condition
2.      Termination Based Upon Prior Statements of the Incompetent Patient (and a lack of a written document)
a.       In Re Conroy – life-sustaining treatment could be withdrawn if it was clear that the patient would have refused the treatment under the circumstances or if there is some trustworthy evidence that the patient would have refused the treatment–> “Best Interests” Test
3.      Termination of Life-Sustaining Treatment When the Patient Has Not Made Prior Statements of Intent
a.       Some courts will allow a guardian to terminate life-supporting systems under the Doctrine of Substituted Judgment or under the Best Interests Test
(1)   Under these tests, the guardian terminates treatment on the theory that, but for the incapacity, the patient would have requested termination of life-sustaining treatment given the circumstances
4.      Euthanasia–>illegal in US
a.       The goal is to put a consenting individual painlessly to death who is suffering from an incurable disease
b.      Desired Elements: competent patient (possibly self-administered); voluntariness (possible waiting period); checks on depression (waiting period); terminal illness; family considerations (?)
F.      Articles
1.      Delaying Death: At What Price?(pg. 3-1)
a.       Health care providers are more concerned about overtreatment than undertreatment (obviously want to increase revenues, but also want the patient to suffer less pain)
2.      The Purpose of Advance Medical Planning (pg. 3-2)
a.       Advance planning is a method to avoid excessive and undesired medical treatment. Confusion between advance planning and as a method to find out what the patient wants and advance planning as a mechanism to reduce medical care and thereby contain costs represents a clear danger to the goals of informed consent and autonomy for patients. The perception that physicians are zealots in the cause of prolonging biologic life is the chief reason why advance directives are viewed as tools to prevent doctors from extending life against the wishes of patients or their surrogates, rather than a neutral means to ensure that medical care is guided by patients’ preferences . It is far more frequent for patients and their families to demand aggressive treatment against the advice of their physicians than for doctors to press to continue therapy that patients or their families want to discontinue. As managed care comes to dominate medical practice, broad social concern about excessive expenditures becomes even more forcefully and sharply focused through the numerous economic and administrative pressures that managed-care health plans can exert on physicians. The principles of informed consent and patient’s autonomy require doctors to be as ready to make older patients aware of the possible benefits of vigorous treatment as to advise those patients no likely to benefit from such treatment to forgo it.
3.      Proxy (i.e. Surrogate) Decision Making for Incompetent Patients
a.       Two justifications for proxy decision-making: 1) the incompetent patient’s right to refuse medical care can be exercised through a proxy decision; 2) knowing the patient’s wishes well, the proxy will make the decision that the incompetent patient would make if he or she were competent. Proxy decision-making is based on “Substituted Judgment” (usually of a family member). Advantage: Living wills are completed months/years in advance. Proxy decision-making is done in “real time”–>flexible and responsive to the current situation. Disadvantage: 1) But, the decision-maker is only guessing at the patient’s wishes and takes into account his own biases/beliefs, and not those of the patient; 2) the proxy decision-maker may have a conflict of interest (financial gain upon death); 3) making life or death decisions is physically stressful; 4) patient and proxy may have never discussed specific circumstances, so the decision-maker may be just guessing
4.      Illinois Health Care Surrogate Act (pg. 3-10)
a.       The Act was meant to address a gap between those who had a living will or durable power of attorney and those that did not
b.      The statute establishes a private decision-making process under which a surrogate is chosen from a hierarchical list of potential surrogates to make life-sustaining medical treatment decisions ONLY for those who lack decision-making capacity and have not executed an applicable living will or power of attorney for health care
c.       The following must be satisfied before a surrogate is authorized to make life-sustaining decisions: 1) the pat

$780) –> even if the worker earns $3480 in one month, this counts as 4 quarters of coverage
(2)   To get a quarter of coverage resulting from self-employment, must make $400 for the quarter
b.      Wages must be earned in covered employment (very liberal definition)
(1)   Federal government workers hired before 1984 are not part of the system
(2)   Employees of state and local governments are not covered, unless their governments have elected to be covered
(3)   Students who work for schools are not covered
(4)   Wages earned by a person under 18 working for their parent is excluded
(5)   Person under 18 performing domestic services w/i home is excluded
C.     Worker’s Retirement Benefits
1.      If a worker has completed 40 quarters of coverage, he or she is entitled to a monthly benefit at ‘full retirement age’ equal to his ‘primary insurance amount (PIA)’
a.       Full retirement age is based on that person’s date of birth (about 65 years old; see pg. 279 for table )
b.      Early Retirement Options
(1)   A worker can choose to begin receiving retirement benefits as early as age 62, but at the cost of permanent reduced monthly benefits
(2)   The early retirement penalty = reduction of monthly benefits by 5/9 of 1% for EACH month before full retirement age (65 years old)
(a)    If the full retirement age is more than 65 years old, reduction = 5/9 of 1% per month for the first 36 months + 5/12 of 1% for each additional month
(3)   Once a person reaches the full retirement age, the benefits do not increase; they stay at this reduced rate
c.       Deferred Retirement Options
(1)   Deferring benefits results in a bonus in the form of permanent ‘delayed retirement credits’
(2)   The size of the annual bonus percentage depends on one’s year of birth. see pg. 281 for table
D.     The Primary Insurance Amount (PIA)
1.      Application of a 3 part formula to a worker’s Average Indexed Monthly Earnings (AIME) = the Social Security Benefit
2.      The formula recovers 90%, 32%, and 15% of a workers AIME, with the three percentages applying at two ‘bend points’ that are adjusted annually
3.      The bend points applied are those that are in effect during the year in which the worker becomes 62 years old
4.      Example (with the old PIA numbers): If the X turns 62 in 1998 and the bend points were $477 and $2875 and AIME was $3000. PIA is the following:
                        90% of the first $477 = 429.30
                       32% of $2875-477 = 767.36
                       15% of AIME over $2875 (or 125) = 18.75
                        PIA = 1215.40
5.      New PIA numbers = 90% bracket ends at $592; 30% bracket ends at $3567; 15% beyond $3567
6.      Remember, PIA is adjusted up or down depending on “early retirement” or “deferral”
7.      Average Indexed Monthly Earnings (AIME)
(a)    For each year after 1950, a worker’s wages are indexed by comparing the national average of wages for that year to the national average of wages for the year in which the worker became 60.
(1)   Example: is Sam turned 62 in 1998 and his earnings for 1960 were $4500:
          $4500 x (national average of wages in year Sam turned 60/national average of wages in year trying to be indexed, i.e. 1960) = indexed wage for 1960
(b)   From this array of adjusted earnings (capped at $84,900), the 35 largest figures would be selected and totaled, and then divided by 420 (35 years x 12 months) = AIME
(c)    There is a wage cap on the amount that can be indexed for each year = $84,900 currently
E.     Derivative Benefits
1.      Spousal Benefits
a.       Spouse of a retired worker is eligible for a benefit equal to ½ of the worker’s PIA
(1)   Worker-spouse needs to be receiving such benefits for the spouse to qualify
(2)   Spouse must be at least 62 years old OR have in her care a child of the worker who is < 16 years old, AND (3)   Worker and spouse married for 1 year (4)   There is a penalty if the worker receives “early retirement benefits” b.      When a worker dies, a person receiving a spousal benefit that is based upon that worker’s account succeeds to that worker’s actual benefits (1)   Need to be married for 9 months before worker’s death, unless the death was accidental (2)   Surviving spouse cannot be re-married, unless surviving spouse is 60 years old (3)   If the spouse has not reached “full retirement age,” her benefits will be actuarially reduced c.       “Mother’s” or “Father’s” benefit, if the surviving spouse has in his or her care a child of the deceased worker who is either under 16 years old or disabled (1)   benefit is 75% of the deceased worker’s PIA d.      $255 one-time-payment to a surviving spouse 2.      Children’s Benefits a.       Children of a retiree can receive benefits if they are under 18 years of age, under 19 years of age and still attending elementary or high school, or over 18 years old but became mentally or physically disabled prior to reaching 22 b.      Children must be unmarried and dependent upon retiree for support c.       Benefit = ½ PIA (1)   there is a total family cap = 150% of first $609 PIA + 272% of PIA b/t 609 and 880 + 134% of PIA b/t 880 and 1147 + 175% of PIA over 1147 d.      Upon the retiree’s death, the child’s benefits = 75% PIA 3.      Divorced Spouse’s Benefits a.       Benefit = ½ PIA b.      Must have been married for 10 yrs.; spouse must be 62 yrs. old (reduction in benefits if less than 62); must be unmarried 4.      Parent’s Benefits a.       Benefit = 82.5% of PIA, if an older person who receives at least ½ of his/her support from a son or daughter who has died and who has not married since the child’s death F.      Effect of Earnings After Retirement 1.      “Retirement Earnings” Test on recipients who continue to perform compensated work while receiving retirement benefits; test limits the amount of earnings that a retiree can receive before his benefits are reduced 2.      APPLIES ONLY TO PEOPLE AGES 62-64; DOES NOT APPLY AFTER 65-70 YEARS OLD a.       Looks ONLY at income from wages, salaries, bonuses, commissions, and net earnings from self-employment b.      Persons younger than “full retirement age” can earn up to $11,280 (used to be $10,080); thereafter, benefits are reduced $1 for every $2 of excess earnings G.    Taxation of Benefits 1.      Generally, no federal income tax is paid on Social Security Benefits; but income tax may be assessed on “provisional income” 2.      Provisional Income = AGI + tax-free interest income + ½ Social Security benefits > 2 thresholds
a.       First Tier Threshold
(1)   $25,000 for single persons (up to $34K), $32,000 if married filing jointly (up to $44K)
(2)   ½ of excess = taxable income
b.      Second Tier Threshold
(1)   $34,000 for single persons, $44,000 if married filing jointly
(2)   85% of excess = taxable income
** the resulting number is NOT the tax due, but the amount that WILL BE TAXED**
H.    Disability Benefits