Elder Law Fall

I. AGING IN AMERICA
“An Aging Population”
Gerontology- the social science of aging p.1
Geriatrics- medicine for elderly patients p.1

Generally (and this text) will use the age 65 to determine if a person is referred to as
elderly or old. P.2

Medicare is health insurance for the elderly

And
Medicaid is insurance for the poor and nursing homes

Social security is paid out of current wage earners taxes

What do we do about the social security problem of the aged population being more than
the young who are paying into it?:
Privatization: putting money in a private account and the individual gets to decide
what to do with it
Increase productivity
Decrease cost of Medicare

Physical Effects of Aging page 11:

o Decline in physical vigor: bones gradually lose calcium, become
weakened and fracture easily
o Loss of vision: including a loss of ability to see close objects, sensitivity
to glare, loss of peripheral vision and difficulty adjusting from light to
dark
o Decline/ loss of hearing: around age fifty there is a gradual loss of
perception of higher and lower frequencies. This permanent loss of
hearing, called Presbycusis, is the result of a gradual physical deterioration
of structures in the inner ear.
o Memory loss: is a sign of illness, some mild memory loss is common
among some of those in their seventies or eighties. Loss of function is
attributed to changes in the way information is transmitted from one part
of the brain to the other and actual reduction in activity is confined to
specific regions.

Chronic Condition: a permanent or long term condition, such as diabetes, heart disease,
arthritis, or deafness, rise with age p.12

Acute Condition: a temporary departure from physical or mental well-being, decline with
age p.12

Because the general decline in physical vigor coupled with a greater incidence of chronic
illness affects the outlook of many elderly individuals, their physcological profile differs
from that of the younger population. Some experience a loss of self esteem and may
begin to feel dependant and less in control of their lives or experience a loss of mastry
over their environment. Page 13

Death can make an elderly persons problem moot . . . urgent to get to elderly clients
cases- the elderly who seek legal assistance need help now, not in the distance future or
when it is convenient for the lawyer- p.14

The elderly suffer more often from loss of mental capacity then any other age group
because they are susceptible to dementia, a generic term for decline in memory and
cognitive function sufficient to affect the daily life of an alert patient. P.15

In the past the answer for a patient who has dementia or who is incapacitated is a
guardianship p.15

Responses to eliminate guardianships page 15:

Durable power of attorney (durable powers of financial management)
Advanced directives for health care (living will)

Chronic illnesses, which are disproportionately experienced by the elderly, include

atherosclerosis, cancer, emphysema, diabetes, cirrhosis, and osteoarthritis. Page 16

The treatment of chronic illness is very expensive. Page 16

In general the elderly poor are older, widowed, living alone, and female. There are also
many racial disparities in the elderly poor. Page 17

Elderly are often economically vulnerable because their cost of care often exceeds their
income. In particular, chronic illness increases an individual’s dependency and cost of
living. P.17

The impairments caused by chronic illness and the need for long term care increases
directly with age.

Some say long term care insurance could be a possible solution to these problems.

The elderly are vulnerable because they are often economically dependant on the non
elderly.- like a son or daughter, or government assistance page 18

The elderly find support in both formal and informal networks. The need for a formal
network is great when an elderly individual is functionally impaired or in poor health
with limited informal network resources. Formal support and resources are provided by
institutions, agencies, and their representatives. Page 18
Federal and state benefit programs provide a crucial margin of income and healthcare
access for many elderly persons, yet the continuation of these programs depends greatly
on the willingness of the non elderly to continue to assist the elderly. Page 18

To avert shortages in the social security trust fund, the current retirement age will
gradually rise until it reaches age 67 in the year 2022.

Because federal financial support of social services has been severely reduced, the
original mandate of the Older Americans Act to make assistance available to all older
people regardless of means has been subsumed in subsequent mandates to target services
to the neediest elders. Page 18

Formal assistance for poor elderly:

Medicaid
Area agency on the aging p.18

See Second paragraph on page 18!!!

The great majority of the elderly who live in the community are linked into social support
networks that enable them to cope psychologically, emotionally, and physically with the
vagaries of life. Such support can range from help with household chores to intervention
on account of a health crisis. Page 19

Wives are four years younger on average than husbands, and because women outlive men
an average of seven years, married women can expect an average widowhood of eleven
years. The result is more years of dependence, economic deprivation, and
institutionalization. Page 19

The elderly most commonly turn to a female for help. Page 19

The use of informal, non family support systems also depends upon the individuals
attitude toward self reliance, an attitude that is often culturally as well as indicivually
based. Page 20

FAMILY SUPPORT STATUTES

Filial Responsibility Statutes, two types:
1. An adult child with the financial means support a parent who is in need
without reference to the parents’ duty.
2. the adult child, upon suit for support of a needy parent, to offer evidence that
the parent failed in fulfilling the duties of parenthood and thus is not worthy of
support by the child.

8/20/07 Class
Elderly means 65 and older
Chronically age measures the passage of time
Personal Autonomy: the right of an individual to act independently to promote ends and
purposes that need to satisfy only the actor. P.23

Autonomy: elevates the rights of the individual over the wishes or opinions of others
because the autonomous individual acts only in response to his or her own values and
imperatives. P.23

To reduce elderly people’s dependency we must recognize and expand their rights. Page
23

Even a healthy aging individual experiences a decline in physical capabilities that results
in diminished autonomy. At a minimum, the elderly tire more easily. Page 24

As an initial reaction many individuals would endorse the general idea that the elderly
should be protected from the unkind vicissitudes of life. They should be protected from
economic want, poor health, abuse and neglect, social isolation, and anything else that
might detract from their lives. Page 24/25

Protection is often antithetical to autonomy p.25

The more we help the elderly the more we take away their autonomy.

There is a need to balance the right to be autonomous while protecting the elderly.

Lawyers, who should by training be sensitive to the balancing of competing values, have
a major role to play in the sorting out of the proper mix of protection and autonomy.
Page 25

Tension between the competing goals of autonomy and protection often arises in
questions of the elderly and the law. Typically policy makers must choose between cash
grants or special services such as homemaking programs which supply commodities or
meals on wheels. Page 25

Promoting autonomy requires permitting the elderly to live as they will, even if that
results in their exposing themselves to risks that society considers unwise. Emphasizing
protection means guarding the elderly from unnecessary risks even if that requires
overruling their wishes. Page 25

Economic security for the elderly retiree is not controversial; everyone is for it. Debate
centers not on the goal but on the means. Page 26

Three legged stool of elderly economic income p.26:

Social security
Private savings
Pension plans
More recently, however, a new theme has emerged: “general justice.” Many now ask,
“How much do the young owe the old?” page 26

Whether in the form of greater federal benefits, such as increased social security
payments, or more assistance from state and local governments, such as property tax
relief or subsidized housing, the elderly have reaped a steadily increasing share of
governmental benefit programs. These benefits of course, are largely paid for by the
taxes of the young. Page 26

In the 1980’s, however, the public’s acquiesescent tone began to change as all levels of
government felt budget constraints, and taxpayers demanded lower taxes and more fiscal
discipline. Page 26

Some have begun to claim that the elderly are unduly favored under government aid
programs. Page 27

Social justice, such advocates argue, demands that the elderly lose their preferential spot
so that others more needy, such as children living in poverty, can be served. Page 27

Much of the impetus for the generational justice argument comes from a belief that many
of the elderly are reasonably financially secure and do not deserve the degree of
assistance that they receive. Certainly statistics show that the elderly poverty rate is
below the national average. Page 27

While some of the benefits enjoyed by the elderly came as a result of the concern of the
young for the well-being of the elderly, some are due to the elderly’s vigorous political
activity. Not only are the elderly more likely to vote than younger persons but they are
politically very well organized. Page 27

The two largest aid programs for the elderly, Social Security and Medicare, are available
without regard to need. The rich stand in line with the poor. Page 30

PAGE 30/31
Case one: Care and Feeding. The most familiar context in which questions of duty
between one generation and another arise is that of parents’ duties to care for their
children. Care and feeding for the most part is an easy part of care

Case two. Nursing and Elderly. In the above instance its obvious that parents have a
duty to care for their children. The obvious corollary is the duty that children may have
to care for their elderly parents. How far should this go? Do children have a duty to take
their elderly parents into their homes? Etc.

Case three: Social Security. The baby boomer generation has more people than both
generation x and generation y combined. Which means that members of generations x
and y will be required to pay a substantially greater share of current income for the social
security benefits of the baby boomers than the baby boomers paid for the social security
benefits of their parents and grandparents. Distributive justice: Is it fair for one
generation to bear a larger burden than another?

Case four: Legacies and Bequests. Intergenerational wealth transfers. Do parents have a
duty to save during their lifetimes and transfer some of this wealth to their children or
other descendants? As a matter of distributive justice, however, it might be argued that
intergenerational wealth transfers are unjust, insofar as they operate to perpetuate
inequalities of wealth and income.

AGE DISCRIMINATION
We all “know” that “discrimination” is bad. Yet the first dictionary definition of the word
“discriminate” is to make or perceive differences, which is a natural and possibly useful
act. Page 31

However, if age discrimination were always bad, how could we defend social security
retirement benefits that are limited to those ages sixty two or older? The answer, of
course, is that we find age discrimination very desirable when distributing governmental
benefits. In a large sense we approve of discrimination that favors the elderly (positive
discrimination) but condemn it if it disadvantages them (negative discrimination). Page
31

The elderly are selected as the favored group because old age has historically been
associated with economic need.

The elderly are favored because of our collective perception that they are a sympathetic
group who deserves our assistance. Page 31

Negative age discrimination is wrong because it allows individuals to be judged by a

largely irrelevant criterion over which they have no control. Conversely, positive age
discrimination as a basis for governmental assistance is sensible because it is the least
demeaning, most efficient method of identifying aid recipients. Page 32

FINANCIAL JUSTIFICATIONS FOR POSITIVE AGE DISCRIMINATION

Traditionally, the economic needs of the elderly have justified their special treatment.
Although Americans are not particularly sympathetic to the elderly poor, many of whom
seem “deserving.” Page 32

The countervailing attitude, however, is that the elderly ought to save for their old age.
After all, old age is not an unexpected event. Page 32

In short, the argument goes, elderly poverty is less a social problem than an example of
individual responsibility. Page 32
Social security benefits have always enjoyed a wide support because the public thinks of
them as something earned in the form of insurance rather than a welfare payment. Page
32

Are they a group who deserve special support, or are they more like those active, affluent
individuals so frequently portrayed in advertisements? The two views likely will never
be completely harmonized but will continue to be the yin and yang of the debate over
what is the proper public policy towards the elderly. Page 33

HEALTH JUSTIFICATIONS FOR POSITIVE AGE DISCRIMININATION

The elderly are not as healthy as the rest of the population. Page 33

The question is not whether society has cause to provide health care for the aged through
taxpayer subsidies. The arguments in favor are compelling though the precise mix of
personal responsibility to pay and public obligation are always up for debate. Page 33

Given the modest retirement incomes of the elderly with their need of costly medical
care, Medicare represents an attempt to safeguard the old from financial ruin in their later
years. Rather, the question is why the elderly are favored when only half of the poor are
eligible for assistance. Page 33

Should high tech medical intervention with high risks of failure and limited benefits with
success be limited? We need to identify assumptions about the value to society of an
extremely old person’s continued life and about the value of life for the very disabled. A
partial response of the law has been authorization for advance directives to enable the
patient to refuse treatment. The further responsibility of the law is to assure such
directives do not establish a standard for withholding potentially effective treatments
from the aged. Page 33

As the number of very elderly people grows, the need for long term care similarly
increases. Page 34

Medicare only covers about 5% of nursing home expenditures, which cost approximately
$60,000 annually for a single resident. Page 34

The ongoing question with regard to long term care is what portion of care should be
subsidized from public funds and what responsibility the individual should bear. Page 34

For the most part the issues are at the level of “I need” and “I can’t afford.” Though the
country has enacted massive medical aid programs for the elderly, it has not debated the
values upon which these programs rest. As a result complaints about the cost of
Medicare are trivialized into questions about the amount of physician and hospital
charges rather than about what is an appropriate share of our national wealth to devote to
medical care for the elderly. We quibble about the size of the Medicare deductible
instead of asking what medical care should be available to all who can benefit from it.
Page 34

THE RIGHT OF THE ELDERLY TO BENEFITS

Our interest is in how the existence of these programs has created a rapidly expanding
need for legal assistance. Page 35

Benefit programs create entitlements, which in turn create rights. Page 35

When those benefits are withheld or disputed the beneficiary needs a lawyer. Page 35

In turn, benefits create entitlements, making lawyers happy about elderly having so many
benefits, because it gives then work!

As a result of their expanded knowledge of laws that effect the elderly many lawyers
have begun to call themselves elder law attorneys. Just as academics have begun to
organize courses around the legal needs or the elderly, “elder law attorneys” have
emerged to advertise their ability and willingness to serve an elderly clientele. Generally,
the practice of elder law centers on estate planning, Medicare and Medicaid, nursing
home placement and patient rights, planning for possible incompetencey, health care
decision making and right to die issues, and employment discrimination. Page 35

Ageism: an attitude- a negative evaluation that serves to orient individuals toward old
people as a group. P.36 aka a negative attitude towards old people as a group

II. ETHICAL USSUES AND LEGAL ASSISTANCE

THE LEGAL NEEDS OF THE ELDERLY
Legal Issues elderly people face p.39:
Age discrimination
Obtaining federal benefits such as social security and supplemental security
income
Appeals from denial of Medicare benefits
Establishing Medicaid eligibility
Housing problems, including landlord and property tax exemptions and
assessments
Mental incapacity and guardianship
Abusive or poor quality nursing home care

They also may have a greater need for protective services to guard them from physical,
financial, or emotional abuse or self- neglect. On the other hand, various consumer
scams are more likely to target older persons with more resources. Page 39

The result is that every state bar now has an elder law group or section. Page 39

ELDER LAW PRACTICE

Elder law specialties encompass estate planning, property management, healthcare
planning and public benefits p. 39

DEVELOPING EXPERTISE
A practitioner may also become a specialist in the field by doing pro bono work for
clients of such providers of health and social services to the elderly as senior centers,
Area agencies on aging, food banks, government advisory boards, public interest law
firms, nursing homes and hospitals. Page 39

FIRM STRUCTURE
Elder law three types of law “firms” p. 40:
1. Traditional firm: usually approaches elder law from its background in trusts
and estates, emphasizes financial and property management
2. Clearing house firm: offers expertise on community and social service
resources in addition to traditional legal assistance. It includes at least one
staff member, often a social worker or specially trained paralegal whose
function is to refer clients to service providers in the community.
3. Umbrella firm: also provides services beyond traditional legal counsel and
financial management. Monitors services, more individualized services

RELATIONSHIP BETWEEN ATTORNEY AND ELDERLY CLIENT

When a client is referred for services from a specific outside provider, the firm assumes
responsibility for making certain these services are provided safely, economically, and
efficiently. Page 41

An attorney who specializes in the problems of the elderly is aware of their special needs
and issues and can, at a minimum, counsel the client to seek specified, non legal
assistance from identified sources. Page 41

The client with multiple, ongoing problems is the mainstay of the elder law firm. Page
41

Perhaps the single greatest impediment to a sole practitioner’s assuming broad

responsibility for elderly clients with complex service needs is the necessity of a 24 hour
a day, on call system for the firm. Page 41

LEGAL EDUCATION AND FINANCIAL PLANNING: PREPARATION FOR THE

MULTIDICSIPLANARY PRACTICE FUTURE
At present, a pressing, widespread threat to the legal profession arises ominously from
banks, which now offer a variety of fresh planning products and services. Page 42

Multidisciplinary practice for lawyers may be defined as a partnership or entity

encompassing attorneys and non-attorneys with one (yet not all) of its purposes being that
of delivering legal services to a client (other than itself), or holding itself out to the public
as a provider of non legal, in addition to legal services. Page 42
The more fully integrated versions of MDPs present services include accounting,
auditing, consulting, and legal assistance. Page 42

Much speculation has surrounded the possibility of lawyers partnering and sharing fees
relative to divorce with psychologists and financial planners. Page 42

Under the MDP model, a client could discuss estate planning with an attorney, consult a
financial advisor within the same on investments, and then hire an in house accountant to
prepare a tax return. Page 42

The American bar association has resisted any steps in the direction of allowing non-
attorneys (except under specific and limited circumstances) to deliver routine legal
services to the public. Page 43

LIMITED PURPOSE, DISCRETE TASK REPRESENTATION

Lawyers may also be asked to participate in a less than comprehensive form of legal
services delivery for the client who wants to save money or be active in his or her own
representation. Page 43

The concept of “unbundling” or discrete task legal representation seeks to make access to
legal services affordable by explicitly providing the client with the option of choosing a
single legal service. Page 43

Unbundling: making services available individually for a discount rate

An often discussed example is the client who engages in a lawyer for advice and
document preparation for a cause the client will argue pro se. Page 43

Attorney-centered concerns about unbundling include the absence of an ongoing

attorney-client relationship, fear of ethical violations, court censure if the judge is critical
of a clients self representation; and worry about the clients success as a pro se litigant.
Page 44

The rules of ethics for every bar call for competent, diligent and zealous representation.

Model rule 1.1 states that competent representation, for example, requires the knowledge,
skill, thoroughness, and preparation reasonably necessary for the representation.

The standards of diligence and zeal are no less problematic. The principle issue is likely
to be when the duty of diligence and the attorney client relationship ends. Page 44

There is no prohibition on representation for limited purposes. Page 44

MANAGED LEGAL ASSISTENCE

The task of making legal assistance accessible has paralleled the trend toward managed
health care: private organizations of professionals, advocates, and insurers have devised
plans that offer the services individuals want most and assure that those services are
available for a reasonable fee to the client. Page 45

An alternative is to offer seniors legal services at a discounted, fixed cost.

It is wise to limit the scope of pre paid legal services to avoid hazards, by agreeing about
what types of claims are covered. Page 45

THE USE OF PARALEGALS

Paralegal personnel can conduct initial interviews, discuss general options, gather facts
and obtain signatures. Page 46

Once hired a paralegal must be trained in unfamiliar areas at firm expense. Page 46

Paralegals with a background in social services are particularly valuable in law offices
because their expertise compliments, rather than duplicates, the attorneys legal skills.
Page 46

STAFFING AND EXPANSION

The struggle is spawned by the pressures continually building against the boundaries that
define who lawyers are and what they do. Page 47

In time, the case manager will develop cases with complex or intensive financial
management needs. Page 47

If a client’s assets are very substantial, financial management can be referred to a bank
trust department or other corporate fiduciary. Page 47

Initially, the most economic way to purchase services is through a consulting contract or
part-time department officer or financial planner. Page 47

BONDING AND INSURANCE

Elder law firm workers who provide in-home services should be bonded by the firm in
case of allegations of loss or theft. In most jurisdictions court appointed fiduciaries are
required by law to post a surety bond, although in some circumstances (generally family
guardians) that requirement may be waived. Page 48

The attorney either must be appointed as a fiduciary or must personally guarantee the
actions of the firm as fiduciary. Page 48

4 tasks that can be completed by paralegal assistants:

1. Identifying client needs
2. Informal client advocacy
3. Serving as an intermediary by informing clients of issues raised by their claim
and making a referral for them
4. Acting as a group or community spokesperson
PRO BONO ASSISTANCE
Most state bars maintain referral panels of attorneys who volunteer to provide free and
discounted legal assistance to older clients. Page 49

If more complex legal assistance is needed the attorney and client can negotiate a reduced
fee.

There are never enough volunteers, and those who do volunteer may be caught in a bind
between the time demands of paying clients and the needs of the pro bono client. Page
49

Pro bono and discount assistance also raises questions about the quality of service. Page
49

COUNSELING OF OLDER CLIENTS

A thorough initial interview is fundamental to the development of a plan for effective
counsel.

For example, the information gleaned from a thorough interview allows the attorney to
assess any financial or housing choices in terms of that client’s likely future. Medical
information may be important. Page 50

Clients with smaller estates are sometimes tempted to give away their assets in order to
qualify for Medicaid, although such action, if discovered by state authorities may cause
the client to be ineligible for benefits. Page 50

PRACTICAL CONCERNS:
o House calls
o Good, indirect lighting
o Some elderly people are suspicious of attorneys
o Some elderly may be confused or paranoid which may be the
direct result of medication
A VIEW FROM ADVANCED AGE
A sophisticated financial distribution plan may minimize taxes, maximize returns, and
avoid probate costs but also leave the elderly person with no more gifts to give and no
opportunities to stay involved in business or professional roles which were an important
part of that individual’s identity. Page 51

Lawyers must be cognizant of the stress of working with elderly clients who, perhaps
more than others, may fear their own mortality or feel anger, or regret at their experiences
and behavior. Page 51

ETHICAL ISSUES FOR ATTORNEYS WITH OLDER CLIENTS

The lawyer must fulfill for each client the duties of diligent representation, zealous
advocacy, and communication to enable the client to make informed choices. Page 51
SOURCES OF ETHICAL STANDARDS
-The Canons: which state the standards of conduct normally expected
-The Ethical Considerations: based on the Canons, which provide
guidance toward ideal conduct or goals the attorney should strive for
-The Disciplinary Rules: which state the conduct necessary to avoid
disciplinary action

The model rules consist of mandatory statements (the rules) that the attorney must abide
by or be subject to disciplinary action. Page 52

WHO IS THE CLIENT: FAMILY REPRESENTATION

Frequently, an elderly person’s family is involved in advising, assisting, and even
directing financial and practical arrangements for care and property management,
particularly during extreme old age of disability. Page 52

The attorney must, first, identify the client, who may be the elderly individual or other
family members (one or more of them). The attorney who undertakes to represent only
the elderly person must explain fully to other family members the limitations this will
impose on interactions with them, including the confidentiality if the attorney-client
relationship. Page 53

In Re Guardianship of Lillian P. v. Cavey- PAGE 53

THE ETHICS O FINTERGENERATIONAL REPRESENTATION

Responding to the clients’ desires for multiple representation by counsel with whom the
family is familiar, and to avoid the increased costs and contentiousness that involvement
of multiple lawyers might bring, many lawyers agree to represent multiple family
members. Page 59

Will substitute: joint tenancy, trusts, life insurance

Guardian ad litem: friend of the court

Annual report: guardians must file at the end of each year

2 types of representation
Joint- when representing co-plaintiffs or co-defendants
and
Intermediation- one attorney representing two or more clients with potentially conflicting
interests. Page 59

A key factor in defining the relationship is whether the parties share responsibility for the
lawyer’s fee, but the common representation may be inferred from other circumstances.
Page 59
A lawyer acts as intermediary seeking to establish or adjust a relationship between clients
on an amicable and mutually advantageous basis. Page 59

Under this construction intermediation involves assisting clients in establishing or

adjusting a relationship between them. It entails representation of multiple clients who
have “sought the services of one lawyer to help them resolve differences or execute a
transaction between or among themselves.” Page 59/60

Before a lawyer may act as intermediary, four conditions must be met:

1. must obtain informed consent from each client
2. reasonably believe that the matter can be resolved on terms compatible with
the clients best interests
3. that each client will be able to make adequately informed decisions in the
matter and that there is little risk of material prejudice to the interests of any
of the clients if the contemplated resolution is unsuccessful
4. the lawyer must be impartial as to the competing interests of the individual
clients and must avoid any improper effect on other responsibilities the lawyer
has to any of the clients. Page 60

Disadvantages inherent in the intermediary model include the absence of any external
check upon the fairness of the result, and the possibility that intermediation will result in
a compromise of individual interests that would not have occurred with individual
representation. Page 60

Additionally, should intermediation fail, each individual must seek new counsel.

JOINT REPRESENTATION OF MULTIPLE INDIVIDUALS

Joint representation occurs when multiple clients seek representation in adjusting or
creating a relationship with non-clients. Page 61

A lawyer shall not represent a client if the representation of that client may be materially
limited by the lawyer’s responsibilities to another client or to a third party or by the
lawyer’s own interests, unless:
1. The lawyer reasonably believes the representation will not be adversely
affected, and
2. The client consents after consultation.

Possible advantages of joint representation are:

1. the presumption of harmonious objectives after the initial determination that
the common objective predominates
2. pooling of information and resources relevant to attaining desired objective
3. complete coordination of individual legal positions
4. reduced legal fees
5. a limited right to continued representation if one member of the group
terminates representation
Possible disadvantages of joint representation include:
1. release of the attorney’s duty of confidentiality and waiver of any evidentiary
privilege between clients
2. withholding of relevant information by the attorney if an individual family
member discloses information adverse to the common objective
3. failure to consider options other than the common goal due to a mis
perception of unswerving commitment to a common objective
4. Loss of independent judgment by the attorney due to fear of creating
disharmony or prejudicing individual family members.

An actual conflict of interest . . . . Ordinarily means that the substantive improprietary

that the conflict of interest rule was designed to prevent has in fact taken place. Page 62

The attorney’s ability to represent various family members depends upon whether the
attorney can fulfill his or her obligations to each individual which include:
o Loyalty
o Competency and diligence
o Zealous advocacy
o Communication sufficient to enable the client

CONFLICTS IN SPOUSAL REPRESENTATION

The Real property section of the American bar association has endorsed a substantial
departure in the form of two recommendations:
1. That the lawyer may assume that each spouse will fulfill the ethical
obligations of the marriage commitment and
2. That the ethics rules should be construed to “provide appropriate delivery of
legal services without excessive cost or duplication of services and fulfillment
of client expectations about the lawyer’s role whenever possible.” Page 64

Husbands and wives may have different opinions and interests relating to a number of
estate planning decisions.

When an estate planner is asked to represent both a husband and a wife who have already
executed a prenuptial agreement, the existence of the agreement should alert the estate
planner that there are contractual obligations between the parties that may raise a
potential conflict of interest. Page 65

While there is no prohibition on representing husband and wife in these circumstances,

the lawyer must be sure to fulfill ethical obligations of loyalty and confidentiality to the
clients. Page 65

CONFIDENTIALITY AND WITHDRAWAL

The majority opted for protecting one partner’s confidence and withdrawing from the
representation, despite the nature of the disclosure and its potential for significant harm to
the other partner. Page 65
In absence of a clear rule, a balancing test has been suggested:
L should weigh the known harm from non disclosure (at least a partial defeat of
H’s testamentary intentions) against the uncertain harm flowing from disclosure-
at the extreme, a possible marital rupture or divorce.

Generally the attorney may withdraw if continued representation is likely to result in a

breach of another ethical provision. Page 66

A lawyer shall not represent a client if the representation of that client may be materially
limited by the lawyer’s responsibilities to another client . . . . Unless:
1. The lawyer reasonably believes the representation will not be adversely
affected; AND
2. The client consents after consultation.

MEDIATION AND OLDER CLIENTS

Mediation is increasingly institutionalized in the health care field as insurers and
managed care providers supply mediators for patients seeking services which may not be
covered. Page 66

The aged are more likely to agree to mediation and accept any proposed settlement
because time is usually on the side of the opponent.

MEDIATION IN ESTATE PLANNING: A STRATEGY FOR EVERYONE’S BENEFIT

In the estate planning process, mediators are uniquely positioned to help planners with
the preparatory work of clarifying the real needs and interests of the spouses and adult
children, thereby increasing the likelihood that everyone will be comfortable and satisfied
with the plan that is developed. Page 67

The mediators are neutral and work for the common good of all the people involved.

PROMISES AND PROBLEMS IN ALTERNATIVE DISPUTE RESOLUTION FOR

THE ELDERLY
They must be willing to accept the mediators techniques, which are likely to include open
disclosure and treating the situation as a problem to be overcome rather than a contest to
be won. Page 67

THE ETHICS RULES page 68

The responsibilities of a lawyer may vary according to the intelligence, experience,
mental condition or age of a client . . . or the nature of a particular proceeding. Examples
include the representation of an illiterate or incompetent . . .

Any mental or physical condition of a client that renders him incapable of making a
considered judgment on his own behalf casts additional responsibilities upon his lawyer .
..

The lawyer also should always safeguard and advance the client’s interests.
The attorney only has two choices” advocate the express desires of the client, regardless
of how those desires are effected by the client’s disabled condition, or determine what the
attorney believes are the “best interest” of the client and advocate them, regardless of the
desires of the client. Page 68/69

The model rules promise to be more enlightening because they do include a rule
addressing the relationship between the lawyer and a client of questionable competency.
The rules reflect a trend since the 1970s to favor advocacy for the wishes of disabled
clients rather than the paternalistic, non adversarial role similar to guardian ad litem.

Recognizing that maintaining a normal client lawyer relationship “as far as reasonably
possible” may be insufficient, the rule continues:
The lawyer may take reasonably necessary protective action, including consulting
with the individuals or entities that have the ability to take action to protect the
client and in appropriate cases, seeking the appointment of a guardian ad litem,
conservator or guardian.

The lawyer is impliedly authorized under rule 1.6(a) to reveal information about
the client, but only to the extent reasonably necessary to protect the client’s
interests.

Lawyer can only request a guardian in limited circumstances- only when the lawyer
believes the client cannot adequately act in his or her own interest.

The lawyer is never required by the rule to seek a guardian. Page 69

DETERMINING CLIENT CAPACITY

Informal evaluation of capacity to make a decision is often based , at least in part, on
circular reasoning: the individual’s choice is considered evidence of a condition of
mental impairment, which is the basis for a prediction that the individual needs assistance
to make other decisions. Page 70

Decision making capacity requires, to a greater or lesser degree:

1. possession of a set of values and goals
2. the ability to communicate and to understand information, and
3. the ability to reason and to deliberate about one’s choices
This definition emphasizes the individual’s thinking process rather than the outcome of a
decision. Page 70

A low degree of understanding is required to make a contract in which the subject matter
and value are trivial. A higher degree is needed for the testamentary disposition of a
person’s assets.

DETERMINING DECISIONAL CAPACITY: A MEDICAL PERSPECTIVE

Recognizing a clinical syndrome is even more important in psychiatry because this is the
principle and in some cases the only- means of validating the presence of a condition;
there is no biopsy, blood test, or x ray to do the job. Page 71

The purpose of the psychiatric history and mental status examination is to obtain
information relevant to decisions about diagnosis and functional capacity. Page 72

The mental status examination is the formal process by which physicians discover the
presence of signs and symptoms of specific psychiatric disorders.

IS IT PERSONAL AUTONOMY OR A PERSONALITY DISORDER?

The principle of clinical practice is that a physician’s diagnosis of physical and mental
illness will identify the cause of cognitive and functional impairment. Page 74

In the process of assessing a client/patients decision making capacity and autonomy, there
are four common pitfalls:
1. underestimating the patients ability
2. relying solely on a diagnosis
3. lack of independent assessment
4. failure to consider the patient’s life history

A benchmark in assessing personality is constancy in the person that current decision

making is consistent with the processes and abilities used in the past, that there is a life-
long pattern of behavior. Page 75

Personality disorders are distinguished from recent changes in personality by the

persistence and exaggeration of those personality traits resulting in difficulties in personal
relationships, impulse control, and impaired social and occupational functioning. Page
75

CONFIDENTIALITY AND THE INCAPACITATED CLIENT

III. Health Care

1. Health Care Policy
a. Medicaid-universal government subsidized health care for the poor
-includes the elderly poor
b. Medicare-universal government subsidized health care
-65+
-Disabilities
-Pays more then 80% of the costs of care in the categories it covers
-1/2 of all health related costs
-Does not cover prescription drugs
2. History
-Developed during The Great Depression
-Roosevelt’s committee (COES)
-guarantee income to the aged and disabled
 -rejected government national health insurance, modeled after private health
insurance
3. Government Health Care Coverage- founded in 2 ways
a. Medicare: social insurance model-payments from recipients go into a fund
accounted for separately from other revenues
b. Medicaid: welfare based model-revenue from general taxes

4 . Financing
i. Part A- funded by mandatory payroll tax- FICA and SECA
-funds are put into a trust fund (also supports OSADI)
-1.45% of wage income matched by employers
-don’t pay any extra, you get for working

ii. Part B- funded by monthly premium by beneficiary (93.50 deducted from SS)
and general govt. revenue
-monthly premium charged to all, regardless of age, to spread the risk of harm
(“community rating”)

5. Eligibility
i. Part A
-Over 65 and have paid FICA or SECA for a min. of 40 quarters OR
-Disabled as determined by SS, for at least 24 months OR
-End stage renal disease who need dialysis or transplant
-Over 65 but ineligible for SS b/c not enough quarters BUT they elect to buy part
A coverage (monthly premium lessens according to how many quarters you have)

ii. Part B
-Over 65 regardless of employment history
-Disabled persons eligible for Part A
-Persons with end stage renal disease who are eligible for Part A
-also available to people with RR or pensions at a higher monthly rate

6. Benefits-doesn’t directly provide medical care, REIMBURSES provides

i. Three Parts
1. Part A- Hospital Insurance
2. Part B- Supplemental Medical Insurance- physicians, outpatient, supplies, etc.
3. Medicare + Choice-incorporates managed care into the Medicare program

Parts A- Inpatient Hospital- room and board routine nursing, diagnostic and thereputic
services, supplies, and equipment- where this is required it will cover RX drugs.
-Also includes skilled nursing facility care (SNF)
-only pays after a 3 day hospital stay
-w/in 30 days of the hospital discharge
-ACUTE care, not long term
Part B- wide range of non-institutional services- physicians(office or hospital),
disagnostic studies performed in office, outpatient diagnostic services, rural health
services, durable medical equipment (wheelchairs)
DOES NOT cover- RX drugs, routine physical, eye, hearing aids, dental services.
-only limited by the medical necessity of the patient
-annual 100 deductible and co-insurance payments

Medicare Managed Care

Health Maintenance Organization (HMO)- Contains costs by shifting some of the risk
of high cost health care to the provider
-this provides incentive to choose cheaper care
-Pays provides a predetermined amount- “capacitated payment” per patient, per
month
-If cost of care is less, the dr. keeps the surplus- if more then the dr. covers it
-problem with managed care is that the companies know that old people will cost
too much money

Preferred Provider Organization (PPO)-

-network of affiliated but independent providers
-patients encouraged to go to a PPO b/c they will payer a higher portion of costs
-PPO will pay some of cost to go to dr. outside of the network
-can bypass evaluation and go straight to a specialist

Home Health Care

Medical technology can now be done at home-less expensive then a nursing home
Home- skilled nursing care, physical and occupational and speech therapy
-typical recipent, female, unmarried, 75+, low income

Part A- visits limited to “spell of illness”- 100 per spell

-no co payment

Part B-triggers the annual deductible

-co-payment of 20%
-no prior hospitalization requirement
-no limit on the number of visits

4 requirements for home health care

1. be confined to home and under a physician’s care
-what does confined to home have to be
2. Intermittent skilled nursing care or therapy
-can’t be continuous care
The services must be furnished by:
3. Plan of treatment under a physician, established and renewed periodically
4. Given by a Medicare home health care agency
Example of the required plan of treatment in McDonald v. Shalala
- Judge says that case law and Medicare regulations require concentration on the
aggregate of services and the condition as a whole, the nurses here did more then just
hand out pills

Part time or Intermittent Requirement (#2)

Definition: skilled nursing care that is
1. needed or given fewer then 7 days/wk OR
2. less then 8hr/day for 21 days

Once you are eligible the standard changes (once you receive the care)
-Less then 8 hrs/day AND
-Less then 28hrs./wk.

Homebound Requirement (#1)

-basis for many denials/appeals
Definition: has a condition, due to illness or injury, that restricts the ability of the
individual to leave his or her home, EXCEPT
1. w/ the assistance of another individual
2. w/ the aid of a supportive device- walker, wheelchair, crutches
3. if the individual has a condition that is contraindicated

Don’t have to be bedridden, should be a considerable and taxing effort of the individual
If you do leave it has to be:
1. Infrequent OR
2. For the need for medical care

Prospective Payment
Problem: Abuse of home health providers for billing the system for services not rendered
Solution: Fixed payment for 60 day period 60% up front, then the rest at the end

Hospice Care- Under Part A- assist the terminally ill

-life expectancy 6 months or less
-home health, drugs for pain control, physician, counseling, inpatient care, SNF
-delivered at home, set daily rate
-only palliative care- not treatment of disease

Mental Health Benefits

Inpatient
-Caps services at 90 days, lifetime reserve of 60 is available
Outpatient-will pay 50%
-Problem-a lot of mentally ill are indigent
-can not pay half of treatment as a co-pay

Medically Necessary Care and Exceptions

Part A does not cover for care that is not reasonable and medically necessary
-what is medically necessary?
Wood v. Thompson
Man need heart surgery, can’t do surgery until his diseased teeth are removed. Infection
goes away, and he has the surgery, but Medicare wont pay for the removal.
ALJ- congress has excluded dental care, 3 exceptions:
1. prep for radiation of the jaw
2. performed when the same physician does the dental work
3. exams in prep for a kidney transplant
ALJ- no dispute of medically necessary, just said he didn’t fall into the exceptions
-Convinced that the exceptions are vague
-the rationale behind kidney exception applies to hearts, it is a logical extension
Ct said this is the statute, you don’t have an exception, lobby in the legislature, ct
can not help

Medicare will also not cover experimental investigative, or unproven procedures.

Goodman v. Sullivan
Claims MRI will help fix speech impediment. He knew that Medicare part B would not
cover it. Has it anyway, 9 months later it is amended and MRI’s are covered.
Argues: 1. Requires Medicare to cover for ALL medically necessary services
-doesn’t provide, atty says should
2. allows the Medicare system to control the practice of medicine by a physician
Ct says:-statute not meant to pay for all medical services
-Medicare won’t pay for experimental,
-it does not regulate the practice of medicine, dr can recommend and he can pay.
Level of Care-Wants to provide the least costly treatment to meet all the needs of the
patient.
-determined by a medical professional
Medicare will reimburse acute or skilled care, but not custodial
Actue Levels of Care
1. The care must be medically required and ordered by a physician
2. It can only be provided in an inpatient hospital setting
3. The beneficiary must require daily or frequent physician visits
4. The condition must require the constant availability of services or equipment found in
a hospital setting
5. Required services can’t be furnished on an outpatient basis, or in a lesser care facility.
Acute care is necessary (examples) surgery injury from trauma, seizure, stroke, or heart
attack.

Rehabilitative in nature, and must be performed by someone specially trained.

Custodial Care (not covered) examples-admin of meds, general maintance of colostomy,

dressing changes, incontinence care, feeding, bathing, or dressing.

Spell of Illness (nothing to do with the time of the illness)

Admin regulation, when benefits and co-payments deductibles are due
Begins on 1st day of hospitalization and ends 60 days after discharge from the hospital
(or SNF)
During Spell Part A pays for up to 90% of hospital cost. (1st 60 days full after
deductable)
After the first 60 days there are 60 lifetime reserve days- only use them once, then
they are gone
-copay of 490 dollars after 60 days
If discharged and then readmitted before the spell of illness ends, and all reserve days are
gone the patient is not covered.

Payments and Cost Containment

Retrospective- paying back full costs just didn’t work, too expensive
Hospitals: Hospital Prospective Payment System- Patient is put into a diagnostic
related group (DRG) which sets and amount that providers are going to get paid for
different treatments
-incentive for care to be provided more cheaply, to try and make money
Shifted the costs to private insurance co., now HMP or PPO negotiate
-now all the hospitals are locked
-all the high profit procedures- bypass, nuero, orthopedics have to make enough
money to offset their losses
-now there are specialty hospitals, they are owned by physicians, they take away
the profitable procedures

Physicians: Physician Prospective Payment- Resource Based Relative Value Scale

RBRVS-also replaced retroactive reimbursement
-now based on the resources that go into the provision of various physician
services
-Examples: amt. of time, training, and skill for the treatment, overheard costs, etc.
-Physician chooses whether or not to participate in Medicare
-if they participate Medicare sends 80% reimbursement to them, patient pays 20%
co-pay
-if they don’t participate, dr. can charge 115% of an approved RBRVS rate, the
patient will pay 20% co-pay, and Medicare will reimburse the patient, who will be
billed directly from the dr.

Primary and Seconday Payers

Medicare is secondary payer, not primary payer
If a person has other insurance, and it looks like the other insurance will pay, Medicare
can pay for the treatment and then seek reimbursement
-Medicare will advance the pay, to prevent harm to the person
-it is condition, if the primary comes back, they want a refund

Provider Appeals
A provider has the same appeal rights as a beneficiary.
Providers choosing not to participate in Medicare must pay back costs of services to
patients if Medicare finds that they are not reasonable and necessary. BUT the provider
can appeal if they did not know Medicare would not pay for the service.
Warder v. Shalala
Co. had device to help people with disease, had wheels and braces
If Medicare determines it a DME- no reimbursement
If it is a brace- then reimbursed
The manufacturer calls it a brace, Medicare calls it DME
CA- sides with Medicare
Grijalva v. Shalala
HMO turned down, not adequate notice, Is this state action?
-Medicare argues that it is the HMO that provides the benefits, so no state action
-other argue: no, this is state action
Ct sides with patient, it is a joint venture, Medicare writes the checks and HMO does the
work, It is state action
This expedited Medicare + Choice

Expedited Admin Review

Medicare proves for expedited appeals which are needed for patients that are terminally
ill
-If dr. certifies that it needs to be expedited, then decision w/in 72 hrs.

Medigap Supplemental Insurance-insurance offered by private companies to

supplement benefits that Medicare will not provide for
-Covers what Medicare doesn’t- out of pocket costs, some include extended
nursing home or hospital days.
-Highly regulated by Medicare, sets exactly what they can offer
-Problem: Fraud and Abuse
-Salesmen target old people, buy policies they can’t afford
-the way they are sold is shady

Medicare fraud and abuse

Fraud in government health programs
Defined: obtaining payments or other benefits to which the provider or beneficiary was
not entitled through misrepresentation or withholding information.
Abuse of a program- activities which are not fraudulent, but which result in an
inappropriate expenditure of program funds
Ex- Physician submits claim for surgery not performed=fraud, if the surgery is
performed but is unnecessary= abuse

In class example: Columbia Hospital-

For profit hospital, they went through an expansion, largest in world b/c they were
abusing Medicare
10 yr FBI investigation found
-intentionally made fraudulent claims for Medicare
-schemes
Columbia settled… paid a lot back, changed name, lost everything

Kickbacks and Self-dealing

Law also prohibits kickbacks and referral fees- payments to induce the physician to
prescribe more services or to refer to another health care provider.

In class example: Cardiologist and entrepreneur

Made device it monitors heart and prints out a tape, wear 24 hrs, see if you have heart
problems, wants other doctors to refer their patients to use the device
-Decided he would bill Medicare, then send 40% of the payment back to the Dr.
who reffered- A kickback
Dr. argues that doctors are performing services, and they consult him
Ct said they may be performing services, but a portion of the 40% IS A KICKBACK

IV. Long-Term Care-concept defined in benefit terms

-includes: non skilled nursing home care, non medical residential facilities, home
assistance that is not “medical enough” to be covered by Medicare.

Government long term care benefits are limited to the poor through Medicaid.
Medicaid- federal-state program providing health benefits to the poor.

A. Long-Term Care: The Larger Picture

Custodial Care-Activities of daily living (ADL)
-dressing, bathing, restroom help
Where provided w/out Medicaid?
-home, assisted living, nursing home, or community

1. The Overall Cost of Long-term Care

Policy Issues-Access and Quality
Ideally, there would be necessary and effective care w/out cost limitations.
-How do we pay for a system of services?
-tax incentives, private sector insurance, public insurance programs, and
direct public subsidy
Paying For Long Term Care
-Family support- close family usually takes care of it
Three ways to pay:
1. -Personal savings-save own money for it
2. Long term care policy-usually middle/upper class, college educated, single,
female
3. Medicaid-for the poor

Long Term Care Insurance-

Many policies pay for whether it is delivered in a nursing home or in an assisted living
center, most will also cover the cost of home health care.
There are limits on the amount covered and the number of days covered.
1. -Rarely pay the whole cost, rather they pay a per diem dollar benefit
 -less than the actual cost for institutionalized care(ex- insurance pays $130/day-
actual cost $170/day)
-Home health care is usually covered less than institutionalized- 50%
2. -many place a limit of 2, 3, or 5 years of care
-indefinite policies cost more

What triggers payment of benefits

-when the insured mental or physical condition triggers
Common Conditions:
1. Medically necessity- ex- stroke
2. Severe cognitive impairments-ex- Alzheimer’s
3. Failure to perform a specified number of ADL’s

Other Conditions- require a physical, will not take if too sick, will not pay for pre-
existing conditions (or at least after a period of time after purchasing the policy)
-Most policies guarantee that an individual premium will not go up (for getting older or
sicker)
-Premiums can go up across a class of policies, and often do

Tax Treatment of Long Term Care Policies

Up to a certain limit, benefits paid under a policy are excluded from income.
-Max daily benefit is $250
HIPA- premiums are tax deductible-
-Healthcare deductions must total threshold of 7 1/2 gross income, most people
don’t get to this threshold.
States can offer more generous exemptions
-if they offer no other protection then long term care (and life ins.)
-be guaranteed renewable
-must provide case surrender to the right to borrow money against it

-Employers sometimes offer long term insurance as a benefit package, that is not taxable

Medicaid- nationwide health care program for the poor. Each state has own.
-Federal government does a match what the states put in, but the bulk of the money is
paid by the federal
-The state administers the program
-most are run by a managed care entity
If they want to reduce benefits they must provide
1. statement of the proposed action
2. reasons for taking the action
3. citations to regulations supporting the action
4. explanation of the circumstances
5. an explanation of the existing benefits

Scope of Benefits Medicaid offers

-vary considerably from state to state
 -all states require payment for acute care and nursing homes
In order to receive federal funding a state must offer
1. inpatient hospital services
2. outpatient hospital services
3. lab and X-ray services
4. SNF care for those 21 and older
5. physician services
6. rural health care
7. early and periodic screening
8. diagnosis and treatment for those over 21
9. gynecological services
Can offer many other services.

Class Notes: (?)(OK?)

1. healthcare for children under age 19
2. adults with children under the age of 18
3. pregnant
4. 65 or older, or blindness, or disabled

Medicaid Nursing Home Discrimination

-no law against not taking a Medicaid patient , can refuse to take them
-the cost of the payment to the provider is less then the cost of care
-Medicaid recipients end up in bad facilities, have trouble getting in anywhere
-Nursing homes will illegally expel Medicaid patients

Eligibility-2 groups of the poor that qualify

1. Categorically needy- individuals with income low enough to qualify for SSI
2. Medically needy-people with income above cash assistance, but medical bills are
higher then their income and assets

1. Categorically Needy-mandatory, state must offer them Medicaid

-Asset level is $2000 per individual, $3000 per couple
-13 state require more restrictive requirements for SSI (meaning even if you
qualify for SSI, you won’t qualify for Medicaid)
-OK is poor, not good benefits for Medicaid

2. Medically Needy
-States do not have to offer this category, but can offer it
-OK does not offer
Requirements:
1. Meet SSI resource test
2. Have income that is insufficient to pay for medical care
3. Have to be over 65, blind, or disabled
Income Tests
2 different income tests to use in evaluating eligibility for medically needy
1. Spend down- spend down their income on medical expenses until a criteria is met
 -individual income is Less then 133% of the monthly payment for a family of 2
EX- AFDC= 600/mo. Spend down level is 800. (600 X 133%= 800)
EX 2- PNA= personal needs allowance- keep 40 dollars
1350/mo- keep 40, 1310 left- Medicaid will pay the rest

2. Income Cap test

-Individual monthly income can be no more then 300% of SSI monthly benefit
-Hard to qualify- people cant’t qualify, but can’t afford nursing home care
Solution:
-Miller trust- people can put their excess money in trust, then you qualify, that
money cant be used for nursing home, but can be used for other expenses
-when you die, the money left in the trust has to reimburse Medicaid
Countable Income
Income- anything received in cash, or in kind which can be used to meet needs for food,
clothing, or shelter. Income must be available for use of the applicant.
-Some income is not available, even though the recipient did not receive it.
-Creyes court held you have a responsibility to get your income

Ceryes v. St. Louis County Welfare

Property sold for 35 dollars per month
Medical assistance recipients receive a monthly allowance, other income gets paid over
for care.
The county added 35 to her SS and it was 471.00, her personal needs was 40, she owes
431.00 to her nursing home
-Son doesn’t pay her the 35$, this means she has 5$
-Other son guardian, challenges this b/c the other son doesn’t regularly pay it.
Ct says that someone should have forced son to pay, the government will not cover that
difference

Treatment of Resources-Must be very limited for Medicaid- 2,000/ind or 3,000/couple

2 tests to be eligible for Medicaid
1. Income
2. Resource
-exempt items are not counted
Exempt Assets
1. Home- value excluded up to 500,000 some 750,000
2. household/ personal effects
3. Car

Medicaid goes after estates under asset recovery

-When the person dies, the states must pursue the estate of the people who die,
this includes the home.
-they file a lien on the house when the person is alive, then when they die they
enforce the lien.
-they can not get the lien if the 1. spouse, 2. child under 21 or disabled, or 3.
sibling lives there.
Available Resources-Non exempt resources must be sold at fair market value to generate
funds to pay for care.
-Value of unsold property generates controversy

Jackson v. Missouri Department of Social Services

Jackson needs medical assistance benefits, he can’t have over 2,000 in resources
Has land listed for 4,000, it isn’t selling and the dept. denied the application
-ct said she didn’t qualify even though there was some question to what the land
was worth

Medicaid Planning-some try to preserve their estate and pass it on to reach eligibility.
Trying to do 2 things
1. Allow clients to pass along as much estate as possible
2. Qualify for Medicaid

Criminal Charges for Medicaid Planning

Any attorney who charges a fee to assist in disposing assets for Medicaid, gets
criminal charges
NY bar association- sued, enjoined b/c this is a con infringe on atty client -
consultation
-US dept of justice agrees not to prosecute it. BUT congress never repealed it.

Spending Excess Resources- can spend to create eligibility

-ex- pay mortgage, repair home, clothes, car, medical bills
Rules Governing Gifts- transfers create periods of ineligibility
-State can deny if they transfer for below fair market value
-length of ineligible time is by dividing the amount of the gift by the cost of one
month stay in a nursing home
-period begins on the first day of the first month after the transfer of assets and
that does not occur during another period of ineligibility
-“Look back period” only consider gifts made 36 months prior to the application

Disclaimer- disclaiming an inheritance is considered a transfer and will result in

ineligibility.
Troy v Hart
Man renounces inheritance and the court says this is not ok

Transfers to Trusts-any amount of income distributed by the trust is income

-can cause ineligibility if it creates excess
-certain trusts are ok- SS, pension, put in the Miller trust, and after death they will
access it
Non Grantor Trusts-set up by a 3rd party (not applicant), fewer restrictions on them
-assests are considered available only to the extent in which they are used for
applicant’s support
 -trust itself is not a countable resource b/c the person does not control the
distribution
Supplemental Trust Needs
-funded by someone other than the applicant
-pays for comforts like food, clothing, and shelter
-ex- toilet articles, transportation, gifts for holidays
-if the trust states the granter has no intent for support, it will cause loss of
eligibility

Spousal Impoverishment- the old policy was to look at the income of both spouses to be
available to pay the nursing home of one
-if the resources as a couple were above 3,000, the person was ineligible
-This hurts the “community spouse”- one not going to the nursing hom

Treatment of income-
When in the community, spouses income are available to support each other
Once a spouse goes to a nursing home, only the institutionalized spouse’s income may be
considered.
-“Name on the check rule”- determines ownership of the income
-if community spouse has own SS check, pension, etc. not counted for the
Medicaid

What if the community spouse will not have enough money to live on?
MMMNA- 2007- $1650
-then the state will reallocate funds from the institutionalized spouse to the
community spouse

Treatment of Resources- assessment of resources is made at the time one spouse begins
continuous period of institutionalization, defined as more than 30 days
-called a “snapshot”- determines the value of the resources that can be attained by
the community spouse
-Half of the value of the total resources owned by the spouses indidually and
jointly is allocated to each spouse
-regardless of how it is titled- no name on check rule
-Can retain max up to 90,660, and a min of 18,132
Can keep more then maximum only by court order
Blumer- shows the difference between the income and resource tests…

Wisconson Dept. of Health and Family Services v. Blumer

-admitted to nursing home 1994, applies for Medicaid in 1996
Transfer some income of the institutionalized spouse and transfer it to the
community spouse
If they had used to resource test first, she would have been immediately eligible
Argued that the statute- spousal impoverishment language mandates that you use the
resource test first.
-SC says the apostrophe didn’t mean anything
 -WI can use whatever test they want
The two tests created substantially different incomes
Now there is no option- all states must use the income test first.

Medicaid estate recovery program-(not in book)

People think Medicaid is free- it is not.
After you die, Medicaid will come after your estate and exempt assets
They can file liens-
2 ways to define the estate
State has the option of which to use

1. Probate estate – passes by will, or by intestate succession- if Medicaid is limited to

probate, this allows for Medicaid planning joint tenancy or a trust. Just don’t leave the
assets in the probate estate
Life estates- convey to kids, reserve a life estate- the title is already with the children
-5 yr look back for inadequate consideration

2. Overall estate- this covers all the estate, not just probate

Law- when you apply for Medicaid, you have to be told that there is a Medicaid estate
recovery program
Policy- shifts the burden of payment from tax payers to the person
-can expand the program to help others

Criticisms: This hurts the poor only, people that can’t afford an attorney to do estate
planning,
-clashes with intergenerational legacies- people die and want to give their
property to their family

This threat of Medicaid estate recovery makes people who need it not want to apply
-discourages adult children to help their parents apply for Medicaid

Appropriate Care and Quality Assurance-

-hard to choose the types of services that meet the needs of a recipient and their
preferences.
Nursing Facility Quality Assurance
-notoriously poor care tied to profit taking
-for profit homes disregard interest of residents
Licensing Requirements for Facilities, Operators, and Administrators
State licensing is important
-all states regulate and license nursing homes
Requirements include:
-physical plant, staffing, sanitation, nutrition, etc.
Also license nursing home administrators- must be appointed by governing body of the
facility and is responsible for the management of the facility.
Quality of Care Legislation-
Survey and Certification- purpose is to monitor whether or not homes provide care and
services that meet federal standards
-Done by surveys 9-15 month cycle
-reviews the quality of medical care, nursing, rehabilitation, diet, and social
-Also use Resident Assessment- provides the faculty of the facilty w/ information
of the needs of the residents to alter care plans so they can better develop and
implement plans of care.

Staffing- Major difference in higher and lower levels of care is the number and
qualifications of staff.
OBRA requires all facilities to have an LPN or an RN 24 hrs/day
-an RN must be there 8 hrs/day 7 days/wk
However there are waivers for these requirements if:
1. facility demonstrates it can’t obtain the personnel
2. state determines waiver will not endanger the health or safety of the individuals
3. State finds that there an RN or Dr. can respond immediately when called

Nurse Aide Training

OBRA sets minimums for health care aid training and education
-min of 75 hrs of training, 16 hrs of classroom instruction prior to hands on
-communication skills, infection control, safety/emergency procedures,
independence, and resident rights
-state must have a registry of quality nurses aides- to show abuse, neglect, etc.

Residents Bill of Rights-(see book 373)

Autonomy-to choose physician, to participate in care and treatment planning, to
reasonable accommodation of needs, to voice grievances and receive response w/out
reprisal, to organize w/ other residents and family.
Information-informed of resident rights upon request, receive a written copy informed of
facility inspection results, informed in advance to room/roommate changes, of rates and
charges, of Medicaid benefits and applications.
Privacy and Communication
Limitations on Transfers or Discharges

Use of Physical and Chemical Restraints-sometimes used in response to agitation,

delusions, wandering, falling out of bed- homes fear liability
-too frequently used
-causes stress to residents
Ombudsman-(see Adam’s handout)
Investigates and resolves complaints made by or on behalf of residents, relating to action,
inaction, decisions of providers, and services, which may adversely affect the health
safety, welfare, or rights of the individual.
Goal is consumer advocacy- they are not limited to responding to complaints about care.
-Establish a presence in the home to generate trust and credibility
Contracts for Nursing Home Care-states the conditions under which care is provided,
and terms of payment.
-many provision unfairly burden rights and impose obligation on family that is contrary
to public policy.
-restrictions on the use of certain provisions

3rd Party Guarantees-common to require a 3rd party to sign and assume responsibility
for payment.
-OBRA Prohibits clauses in K with nursing home that uses Medicaid or Medicare
-Cant require a 3rd party to sign the admission and agree to be financially
responsible
-can’t even require 3rd signature if it doesn’t make the person financially
responsible

Solicitation of contributions- A nursing home is prohibited from requiring a gift, money,

or donation of any kind as a condition for admission or continued stay.
-shortage of nursing home spaces, more people need them so places would
“suggest” a voluntary donation to “hold” a bed
-outlawed now
-Illegal for a gift or contribution that will reserve a place.

Durations of Stay Clauses-formerly found in K, require the family or person seeking

admission to guarantee a certain time period that care will be privately paid for w/out
Medicaid.
-OBRA prohibits
-also prohibited from requiring any additional payment other then Medicaid
-Oral agreements continue to be made

Waivers of Liability-many K include waivers of liability for loss or damage to personal

property, personal injuries caused by negligence, or set a time limit for such recovery.
-contrary to tort law
Also gives broad consent to medical treatment- deprives the right to give informed
consent.

Unfair Trade Practices-Many K provisions not expressly prohibited can still be

challenged as unfair trade practices
-P can recover actual and punitive damages or injunctive relief
-also applies to K terms that are vague or misleading
-K can be illegal if too difficult to read

Slovik v. Prime healthcare

Stepson-Representative payee-SS will appoint someone to receive a check when the
person can’t handle the funds
-nursing home informed that payments going up, he refused
Nursing home sued the stepson asserting hat he had breached a K that he would be
personally responsible to pay the nursing home out of the SS check
TC- for nursing home, then they send notice to kick out step dad
Circuit ct- favor of nursing home
1. party to original promise to pay
2. not a promise of guarantee
3. promise not is Statute of frauds
In many states- promise of guarantee must be in writing
This was not paying someone else’s debt, paying for stepdad with stepdad’s SS

AC- no written agreement with Slovak (son)

One document signed- just showed personal representative
No proof, no written K, no basis for liability

Must have been an oral agreement, he had been an original party to that

Sole proof- Tells us why it is that Slovak owes the money

A- b/c he has charge of the SS check
Q- The stepfathers money?
A- yes

Holding: Ac said there is no substantial evidence, no judgment for nursing home, favor of
Slovak
-Nursing home had illegal agreement that they could not enforce.

Nursing home quality of care litigation-When a person is injured or dies there is a

potential lawsuit against the nursing home.
First question: Who has standing to sue?
-Resident- if alive, if incapacitated then the guardian can sue in the resident’s
name
-Resident’s spouse can have independent cause of action
-Family and heirs of the resident
-If death, the estate of the resident can claim for wrongful death
Nursing home can be liable for intentional torts.
Negligence is more common
Action for simple negligence
1. Duty
2. Breach of duty
3. Actual harm/damages
-Nursing home did not as a RPP should have
Obviously there is a duty, obviously there are damages
-they will defend that they met the standard of care
-standard of care- level of care that a reasonable nursing home would have
provided.
-industry standards
-federal and state regulations
State law determines whether it is a medical malpractice or negligence.
-Malpractice is harder to prove

The specific injuries that give rise to successful suits are: bed sores, dehydration,
inadequate food, dysphagia, sexual assault, falls, struck by staff, struck by staff, injury or
death by physical or chemical restraints

Others are staff related- faiure to hire enough staff, not properly trained, not supervising,
hiring violent staff or with criminal backgrounds

-can also sue for violating the K of admission

It is hard to figure out who to sue- you have to go up the ladder because usually multiple
people own the nursing home

In Montgomery- the court found that evidence of past deficiency reports are admissible if
the deficiencies proximately caused the injury

Montgomery Health Care Facility v. Ballard

No bedsores when admitted- then w/in a week she had multiple
-Died from complications from the bedsores
Sued the nursing home and corporation and the physician
-Found in favor of P, nursing home appeals
-There were survey reports about the previous reports that showed they had notice
of this condition
SC- evidence of notice of dangerous conditions is admissible IF
-the deficiencies reported about were the condition proximately that caused the
accident in your case
-also evidence that nurses weren’t trained that sores could be fatal

Important-the previous reports can be admitted to show notice- goes to forseeability

Bankruptcy- D nursing home argued that punitive shouldn’t apply, b/c it is to deter, and
they are out of business
-the insurance will pay, so no adverse affect on them
Ct says punitive damages are ok, it will deter other nursing homes.

Parker v. Illinois Masonic Warren Barr Pavilion

Fall- admitted to get physical therapy to help her walk
-proper incidents, told her to next time use the call button
-Falls, alleges that a nurse told her that she would be transferred, no one came to
help
Jury found for P, contributory negligent
Ct said circumstantially- reasonable jury could have inferred and found negligence
 -She was “at risk” even before the first fall, her Dr. had ordered supervision and
the nurse didn’t know what standby assist meant

Schneck v. Living Centers-East, Inc.

Sues for breach of Contract
Mom was resident in nursing home
P-daughter- transferred to hospital for broken bones- so often that they amputated
both of her legs
Mother was in nursing home from 1988-93, case is filed 3 yrs after she had left
Breach of K- violated admission agreement- promised reasonable care, protect the rights
of the residents
SOL- had already run
Cause of action for tort- 1 yr
Breach of K- 10 yrs
Nursing home argued this is a tort to dismiss the claim
Ct said no, there was a K here.
-Count 3- alleged a violation of fiduciary duty in the inadequate care the nursing
home provided
Fiduciary-legal relationship, can’t do anything unless in the best interest
Highest level of care allowed, complaint alleged violation
D tries to sum judgment- Whether there is a fiduciary relationship is a question of law
-No statute or case precedent for fiduciary relationship
-ct said it is a factual determination, and allowed it to be in there

McLeod v. Plymoth Court Nursing Home

Woman fell out of wheelchair the aide left it unlocked and unstable
D argued that the case should be dismissed b/c P didn’t give 180 written notice before
you file (required for medical malpractice)
P said this was a negligence claim
Ct said a fall in MI can be either, what determines is what you plead
-Test for negligence is whether it is w/in the common knowledge and experience
of the jury.
-Test for malpractice requires medical judgment
Court says this is obviously common experience and is negligence

Many nursing home claims are now brought under state elder abuse statutes because
many state medical malpractice statutes have a cap on non-economic damages such as
pain and suffering.

V. Housing
Housing is critical to the quality of life of an elderly person.

A. Planning for choices in housing

-Asses a client’s values and wishes with their needs and economic possibilities.
1. The continuum of care-a system of appropriate lodging and services that maximize
independence and minimize dependency and unnecessary costs.
-Ranges least services to most services
From home: informal support, house/maintenance assistance, housesharing, send $,
Reverse Mortgage, adult day care then
Moving out of home-
SRO’s/urban hotels, Naturally occurring retirement community, assisted living,
nursing home, Acute Hospital Care

2. Spending assets prudently for quality assisted living-

-Most elders rely on after tax income- their SS and earnings on savings
-Article Recommends not spending more then 80% of after tax income on assisted
living
Hypothetical: widow, 83 frail, heart attack, 22,500/yr, 1875/mo. Assisted living will cost
2,500/ mo.
-She should sell the house and use the 100,000 to pay for the living center for 8
years, her life expectancy is 6 yrs.
Long term care policy- does apply to assisted living

B. Aging in Place
Most elders wish to remain where they have lived when they were younger.
-Home has memories, neighbors, familiarity
Must weigh the benefits of staying at home with the balance that the house is too much
work.
Determine whether there is:
1. Satisfactory quality of life
2. Access to needed help
3. Enough money to provide for support

1. Payment Sources for in-home services

a. Reverse Mortgage- Borrow against the value of the home

-Go to a lender, borrow money, house is paid for, you borrow the money from the
lender and the house is collateral
-Non recourse loans- lender doesn’t have to personally pay back, the money is
with the house
With a Reverse Mortgage you can:
1. Take out a specific loan- same amount every month
2. Establish a line of credit- take out different amounts

Banks factor in how old the borrower is, gamble for the bank b/c they will not collect the
loan until the person dies
-they place a lien on the property and do not recover the loan until the person dies.

Drawback- Sometime old people get hit with high interest rates and fees, it is a
complicated concept for older people, it requires lots of paperwork
b. Sale and Leaseback- sell to 3rd party (family member)
Then the seller will lease it back for the lifetime of the occupant
-pay some sort of fair market rental or IRS problems
If child can’t buy it in full, the parent can loan the money and the buyer pays in
installments
c. Housesharing- Get someone else to come live in your house (friend, family, other)
This can help with social interaction, but it is bad if you have a bad roommate
-most are brokered by church or community service to try and make a match
Helps financially with the payment of rent, and also functionally by maintenance of the
house.

Q 2. (412) Thelma (77) wants her niece to Nancy (43) to come live with her. Thelma
wants to know if Nancy should be made power of attorney.
- look to potential for abuse, look to the quality of the relationship

d. State property tax relief

1. Homestead Exception-reduces the property tax on owner-occupied housing.
-Usually fixed percentage reduction in the assessed value of the home or a fixed
reduction in the tax bill
-income is not used for the determining the amount of relief, but can be used for
eligibility.
- Every homeowner is entitled to a homestead exemption
-Each 1,000 off your home value is $84-132 off your property tax/yr.
-OK provides for a double homestead exemption

2. Circuit Breaker- designed to protect families from property tax overload.

-if property tax exceeds a set % of their income, then the tax will “freeze” at that
level.

Senior Valuation Limitation- some states freeze the tax at a constant rate after the
applicant reaches a certain age (usually 65)
-if house goes up in value, your prop tax goes up, if your income is fixed, you can
lock in prop tax for the rest of your life
OK- 65+, income 52,500/yr

2. Accessing Quality in-home services- identifying needs and coordinating the delivery
of care.
a. Geriatric Care Managers- asses the older person’s needs and plan for service delivery
in coordination with the family and the client.
-Functional Assessment- Inventory of the individuals capabilities and losses

b. Employment of Caregivers-
If you hire a caregiver to come into the home, you are an employer for tax, SS, and other
purposes.
-You must pay at least minimum wage
Options
Hire and Agency to rotate people or hire one person- full time
-they must get an employee identification number
-employers must verify employee’s citizenship
c. Retirement Housing
1. Restricted Communities-offers homogeneity and security b/c it is closed off from the
rest of the community.
-offers security and stability

Age restricted communities come in many forms:

-apartments, hotels, condos, mobile homes, subdivisions, villages, or towns

Congresses Fair Housing Act allows a discrimination exemption for communities for
older persons if:
1. Housing is specifically designed and operated to assist elders
2. Housing intended for and solely occupied by persons 62+
3. Housing intended for and solely occupies by persons 55+

2. Low Cost Housing

a. Mobile Homes and Manufactured Housing

Elderly people are a desirable population for mobile home parks
-they bring economic and social stability
-can either buy or rent a lot for their manufactured home

b. Single Room Occupancy Hotels

-vary in size and degree, but most offer housekeeping and lobby with a t.v.
-most have small cooking facility, bath is possibly down the hall
-offer help in the form of a manager, desk clerk, and maids
-informal support networks

3. Supportive Housing-housing with the provision of services needed and access to a

range of other services.
Profiles for Residences of Assisted Living- 90% single
-Married couples tend to care for each other at home
-70% female
-Now the average stay is 3 years
-1/3 hearing and/or visual impairment

1. Prescription
2. Bathing (AOL)
3. Laundry (IAD)

1. Non Medical Residential Facilities

a. Assisted Living-for elders who need help with normal life activities, but not need
health care that would require a nursing home.
 -support services
-modest health care
-common meals and recreational activities

2. Admissions Contract-written K, agree to pay a monthly fee, often an entrance fee

Issues that arise: Interpretation of the K, what are the parties rights under the K,
whether the quality of goods and standards meet what is provided in the K,
disclaimer’s on injury, disputes on rent or eviction

Board and care homes-community based residences for older adults who need
supportive assistance.
-range from mom and pop to institutional size
-offer room and board, 24 hr supervision, housekeeping, laundry, personal care
-charge less than assisted living facilities
Continuing Care Retirement Communities (CCRC)- Guarentees residents lifetime
appropriate care that includes independent living, assisted living, and nursing home care.
-very expensive, mainly middle and upper income residents
-high admission fee, sometimes refundable
-helps support capital costs of facility, and is insurance that you will pay
for your stay
Benefits:
1. Guarantee that you will be taken care of for life
2 Benefit- never have to move again

Residents sign a K- Issue: When can they force you from one level to the next?
Issue: What do they do with your entrance fee if you die very soon after entering?
Bower v. The Estaugh
-She enters into a life care agreement, Nonprofit- provided entrance fee of 16,750
Monthly fee of $360
She lives there and dies 34 days later, they will not refund the money
K:- 3 mo probationary adjustment period- can terminate w/ written notice
-if you die in the period, the terminate right ceases
-upon death, all entry fees become the permanent property of the community, no
right of refund
Ct favors facility
State argues- facility will be unjustly enriched
Ct says the ct is charity corporation, they ran the risk that if she outlived her resources,
they would have to subsidize
Void against PP- ct said no, case law supports the facility
Life care agreements are not void against PP, PP should encourage facilities like this

Legal Constraints on Living with Assistance-most communities in the U.S. have

controls on land use and the nature of residents allowed in their neighborhoods.
-Usually single family zoning will not permit multi family dwellings

1. Restrictions on Group Homes-must find a location that will not violate zoning laws.
Many group homes wish to be in single family zoned neighborhoods. But laws restrict
based on the definition of family.
People complain based on:
-decline in prop values
-increase in traffic
Another way to enforce zoning is to put a cap on a number of unrelated individuals that
can live in a home.

Rowatti
People remodel their home, and made an apt with their home for mom- gave her privacy
and independence
-Ct ruled for the zoning law
Not ok to turn single family into multi-family dwelling
Ct upheld the zoning board
Design and physical appearance can impair the neighborhood

Subsidized Housing for the Elderly-national policy addressed problems posed by the
needs of poor aging population.

Basic Eligibility-Federal-programs are administered by the Department of Housing and

Urban Development (HUD)
Local- administered by public agency, usually called the public housing authority or
agency (PHA)
Family qualifies for low income if adjusted income down not exceed 80% of the median
for the area in which they live and as “very low income” their income does not exceed
50% of the area median.
-income included is total- all sources for the 12 months prior
-includes SS, pension, disability, assets but not gifts

Demand Side Section 8 Rent Subsidaries-How are low income people going to afford
housing?
-Sec 8 housing subsidies are vouchers- qualify economically- if you get a voucher
you then go to any housing, and w/ your income + fair market rates, you can get
an apt.
-This way poor people don’t congregate in one area, protects the poor
from bad neighborhoods
-Landlords have to agree to accept it though

Supply side- Government assistance programs-How much housing is out there?

-public housing
Older people in public housing are subject to harsh conditions.
-crime and substance abuse problems in those neighborhoods
-more likely to live alone
Section 202 Housing Assistance- Federal funds are given for building or rehabbing a
building just for old people.
-gives funds based on projected capital costs of improvement
-most section 202 housing is apartments
-these have special features for elderly
-provide affordable, safer housing for the elderly

VI. Guardianship
A. The need for Guardianship for the elderly-When an individual can no longer make
all the decisions necessary to manage property and personal affairs, someone else must
make those decisions on his or her behalf.
-usually financial decisions and personal decisions-healthcare, living
arrangements, etc.
Guardians
1. Agent under durable power of attorney-
-recommend to do this in advance
-too late once they aren’t thinking clearly
-they can’t sign a durable power of atty if they are incapacitated
Guardianship is last resort- This is very drastic, they make all decisions

2. Set up trust- for financial decisions

-will vs. trust
-death vs. incapacitated
-In a trust a successor trustee can come in and make financial decisions
-they can not make healthcare decisions
-so you still need a durable power of attorney
If an elder is already incapacitated a court must appoint a guardian.
-Adults are presumed competent so only a court can take their rights away

Dementia and Alzheimer’s are the most common reasons for a guardian to be appointed.
2 types of dementia
1. Alzheimer’s- diagnosis is now more accurate
-The only way to confirm is through an autopsy
-Alzheimer’s has certain RX, and needs a certain environment
2. Cerebral Vascular- physical condition
-can be reversible
-treatable
-clinical indicia is an abrupt onset

B. Development of Guardianship Law

Pre reform and Post Reform
Pre-Reform there was little concern about the rights of the individual being incapacitated
Post guardian statutes- in 1980 the modern guardian statutes were enacted
-All about protecting the rights of the individual
 -OK law- §1-103- Purpose and Intent of the Legislature- establish a guardianship
for the protection of rights and to provide for the participation of the person in
decisions that will affect them (want participation, as much as possible)
In post reform statutes, the court will appoint a guardian only to the extent needed
-Use the least level you can, to try and lessen the effect on the ward’s life

The guardian is supposed to ensure the rights are protected, that the ward can participate
in decisions

There is no history of Rome or England, but guardianships were heard in courts of equity
US has only one court system
-Courts of equity try to follow the law and take into account the best interest of
the people before them
-There the State created an obligation to protect the vulnerable older citizens

C. Fundamental Liberties and Guardianship-Guardianship removes the fundamental

interests which are protected by the United States Constitution.
-The right to privacy is lost.
-also lose all control of their personal lives- travel, place to live, health care
-right to vote
-enter into contracts
-can’t make gifts of property
-they lose every right that you can have, b/c the guardian makes the decisions

There is a stigma associated with being declared judicially incapacitated

-society thinks less of them
-can’t make decisions for themselves
-people think for them, pity them

Dale v. Hahn (and the Vocabulary of Guardianship)

Issue: was there a cause of action to appoint a guardian?
Ct recognizes a distinction between incompetent and incapacitation
-In pre reform- you never heard incapacitated, it was incompetent
Incompetent was defined- if they are “insane”, “imbecile”, “drugs”, etc.
-very harsh
Incapacity- reason of physical or mental infirmity, can not make own decisions
-much nicer

Vocabulary of Guardianships- Definitions:

Guardian or Conservator/ship
Guardian- appt by ct. to make decision for them
Ward- person who is under the guardian

Petitioner- asking that himself or herself be appointed guardian

Respondent- person getting the guardian
You can have a guardian over property, person, or both.

Due Process and Guardianship Proceedings-

Pre reform- Non adversarial proceeding- The law did not perceive adverse interests
between the petitioner and the respondent.
-due process rights of wards are disregarded
-Easy to get a guardianship- letter from dr. (one sentence, not a letter)

Post Reform-Try to go see the individual and evaluate in person

Question(from class)- in a non adversarial action (benevolent) how much is due process
worth?
Would you want a trial? Ex- your mother
Would you want her to defend her right?
Would you want to confront her with examples of why she can’t make decisions.

Must weigh competing interest

State- interest that people are protected
Individuals- want their rights
Post reform the favor is in protecting the rights of the individual
-this is why durable power of attorney is so important

Due Process in Guardianship Proceedings

In Proceedings you must have notice.
-there are many problems in providing meaningful notice to the ward who needs
to be able to understand it.
-if they have cognitive impairments, this will not comprehend what is at stake.

1. Notice- you have to give notice to the ward

Pre-reform- notice is given of time and place of the hearing
-no personal service
-just sent in the mail
-the petition didn’t have to be attached
Post-reform-
2 separate notices are sent
1. mail- goes to spouse and children
2. specific notice to the ward- different from the family notice
-specific, more explanation
-lists rights

2. Expert Testimony- to prove incompetence usually requires expert testimony.

-Evidence of the ward’s incompetence
Pre reform- just a letter from the doctor would suffice, one sentence was enough.
-could be any doctor, did not have to be a specialist
Post reform- expert medical evidence, functional assessment by a geriatric psychiatrist
 -In OK a court or any party can request an evaluation
-physician or psychologist, or other specialist
-not mandatory though
-The evaluation should consist of 3 parts
1. A mental examination- to rule out possible psychiatric disorders
2. A physical evaluation to determine whether there is a treatment for the
dementia, and lab testing or brain imaging.
3. A functional assessment must take place to see how much the person is
actually impaired.

3. Presence and participation at the hearing

Pre-Reform- It was rare for the ward to show up
Post-Reform- ward is required to be at the hearing
-can be waived if it would be detrimental to the respondent
-Must be medically necessary
-must have doctor’s letter that it would be physically or
emotionally harmful

4. Burden of Standard Proof

The burden of proof to prove incompetence rests on the Petitioner.
-The expert testimony and other evidence tend to shift the burden to the
respondent to show they are in fact competent
Most statutes will specify the burden of proof:
-Low-any reason
-High- (criminal standard) beyond reasonably doubt
-Intermediate- clear and convincing evidence
-OK uses the intermediate standard

5. Representation and Advocacy

Post Reform- State will either require or give an option of representation by an
attorney or a guardian ad litem. (GAL- person appointed by ct to go out and be a
disinterested party and make a report of the best interest of the ward.)
-OK does not require representation
-The Court can make an inquiry, but doesn’t have to appoint anyone
-if person is present in ct, then they will appoint
-if they are not present, they will evaluate an attorney or
GAL
Class example: OK appoints more GAL’s than attorneys Is this a problem?
-Judges get too comfortable, and only go along with the report of the GAL
Ex- TU clinic case
-Someone sued, but the judge ruled that a court always has the
power to appoint a GAL
There is some confusion on the difference between an attorney and a GAL.
-Attorney’s must be zealous advocates
-GAL’s collect evidence and form opinions not always what their client wants.
Ongoing oversight by the Courts
A Guardian will often serve until the ward’s death or until they regain capacity (rare). The
ward is incapacitated so they can not oversee what the guardian is doing. This creates a
high potential for abuse.
-How do the courts make sure a guardian is doing what they are supposed to?
-States require a yearly status report where physical and financial
information is submitted.
-The courts in most states do not have the resources to look at
guardianship reports
-Law in most state requires it to be mailed out to those who got the
original notification of guardianship (places burden on the family)
-this doesn’t realistically happen- no one wants to look them over

Mediation and Guardianship

Loss of capacity can cause many family disagreements. (care and financial decisions)
Fundamental issues involved in Guardian disputes:
1. Is the respondent incapacitated?
2. Who should be the guardian?
-This is what is fought over
-Motives can sometimes just be to protect their inheritance rights
-don’t want to spend the parent’s money on care
Others- child lives out of state and feels guilty and want to have a
guardianship to take the risks away from being unable to oversee
them
-intentions are good, but can upset the ward b/c it is taking their
rights b/c of guilt
Mediation can be a good solution:
Pros- Many times the ward doesn’t want to cause problems, and want to maintain
good family relationships
Cons- Be sure keep in mind the personal autonomy of the ward
-if they can not participate in the mediation, this isn’t a good
choice
-reveals motives of the family members involved

Determination of incapacity-
A critical question in determining incapacity is how do you define it?
-Should advanced age alone be a determination?
-No, not by itself, in most states it has been deleted as a requirement.
What are other factors?
-In Shamblin the court held that past physical ailments and giving gifts to
grandchildren are not reasons for incompetency.

Shamblin v. Collier
Man contesting guardianship- daughter just said he was incompetent b/c of his age, and
that his health had deteriorated
 -at the TC GAL and daughter testified
Daughter- dad cant read or write- BUT he could never read or write
-he also had given gifts to his grandchildren (50 or 100) bad decisions on a fixed
income
-her overriding concern was the cost of care for her father
-dad was not there b/c he couldn’t read, he didn’t know about it.
The GAL said that he could not manage affairs b/c of age, inability to read/write, and his
weight had dropped
-affidavit from doctor- not present- just checked boxes on a sheet
AC- not sufficient evidence to appoint a guardian
Holding: Past physical ailments and giving gifts to grandchildren are not reasons for
incompetancy.

Functional Concepts of Impairment

A person can counter evidence of mental incapacity by showing functional capacity.
-Ability to function is more susceptible to objective evidence than mental status.

Traditionally people looked at mental state

-Many have moved to functional impairment- Determination of what the person
can actually do- based on independent tests

In OK- to show incapacity, you must show person is impaired (subjective), plus the part
which is test for incapacity (objective)
Part 1
- “incapacitated”- person who is impaired by:
-mental illness, retardation, physical illness or disability, drug abuse, other
similar cause
-does not mention mental problems (dementia)
Part 2
Ability to receive and evaluate information effectively
1. Person lacks the capacity to meet essential health or safety
2. Person is unable to manage financial resources

Assessing mental capacity-many states require more then one person to assess and
individual’s need for a guardian. Most often they call for a medical professional, mental
health profession, and a community health professional.
1. Medical Assessment-60+ conditions can cause dementia (vitamin deficiency,
strokes, etc.)
2. Psychological- 2 tools are used for a psychological evaluation:
-assessment interview
-standardized test- general appearance and behavior, mood and affect,
perception of self and world, thinking: including intellectual
functioning, memory, attention, concentration, insight, and judgment
Questions: day of the week, President, etc.
3. Functional
 -Basic inventory of Activities of Daily Living (ADL’s)- eating, walking,
talking, dressing, appointments, paying bills, etc.
-How well a person take care of themselves

Quality of Respondent’s decision making

How bad does decision making have to be before a guardian is appointed?
If a person exhibits a pattern of unwise or apparently irrational choices, they will likely
be found incompetent.
-Older people still have to right to make bad decisions
-Rational decisions vs. decisions

Tennesee Dept. of Human Services v. Northern

Woman had to make decision whether doctors needed to amputate her feet.
-Woman was choosing death over amputation.
Ct- found she was lucid, but she refused to recognize her feet were dead
She could not accept that her feet were rotten or to consider the fact that this would cause
her to die
-she wanted to live, but couldn’t understand that she could not keep her feet and
live.
Ct decided to give consent to 3d party.

Candura-
Woman refuses to consent to same operation as Tennesee, but court lets her choose to
keep her feet.
In this case hospital files for guardianship
Ct said that she had a right to make a competent, unwise choice
-She showed the ct that she understood the consequences of her decision
-so they let her make that decision

Capacity to make a K or execute a will (class)

The capacity the law requires to enter a K is higher then the law allows for executing a
will
Why is this?
-A K has a 3rd party, so for the purposes of certainty they don’t look as
much to personal autonomy
-A will it is more an issue of personal autonomy

Testamentary Capacity- lowest standard for the execution of any document

-even if you have a guardian appointed and you are incapacitated, you can still
execute a will
-in OK this is ok if one of the witnesses is a judge
-this can still be challenged later

Vulnerability-guardianship can be sought when someone appears to be vulnerable.

Deffenbaugh v. claphan
Daughter appeals the rejection of her guardianship from the ct
She claims that her nephew (dad’s grandson) stole checks
-dad had to press criminal charges
-father had given her power of atty
-after a convo with the other family, he revoked it
-dad had will, left everything to daughter
-then he transferred a deed to house to the grandson who had stolen from him

Evidence for incapacity

-his health was worse
Dr testified that dad was not ok with health or personal affairs
-He said that 90% of the assessment was what the daughter had told him
-court said he should have met with him personally

Dad testifies about personal info, they did a mini mental exam on the stand
-said when he discovered that grandson had stolen, he sat down with him
-said he wanted to transfer the house to the grandson to keep the house in the
family, this would assure that, the daughter who would have sold it

Dad argues that he doesn’t need a guardian

TC- no clear and convincing evidence that he needed a guardian
AC- TC got to observe everyone, especially the dad, so AC will not overturn

Question: Should someone ever be incompetent for giving away money if they have
enough money to keep up an ok standard of living? –it depends upon the extent.

Allocation of powers between guardian and ward

Traditionally law divides decision making into 2 forms, property and personal affairs.
Guardianship reforms created a limited guardianship- only to the extent necessary
-tries to protect personal liberties
Pre reform- incompetent or not
-complete guardianship, makes every decision
Post reform- Limited, do least restrictive
-only authority of discrete areas of their life
-allow to retain capacity over small areas

Doctrine of least restrictive alternative- provides that the least restrictive assistance
should be applied, to protect that person’s rights.
-court would have to look to other sources of help, like family or community,
before appointing a guardian

Limited guardianship-is a means of implementing the doctrine of least restrictive

alternatives.
-Under this, the guardian is granted specific, limited powers
-authorized only to act in the areas in which the ward can not
-rarely, if ever, used.
In re Boyer
 Woman argues that the statute provision which specifies the powers of a guardian is
unconstitutionally overbroad, because the full powers of a guardian are not needed in
every case.
-she urges the state to adopt the doctrine of least restrictive alternatives
-this would more narrowly tailor the law to a legitimate end
The court concludes that the statute is not overbroad.

Representative Payee: government often appoints someone without even having a face to
face interview

Usually when you get a representative payee for a social security check, that’s usually the
only asset they have

Conservatorships: in a lot of states this is used interchangeably with the word guardian
Conservatorship vs. guardianship: conservatorship the person does not have to be deemed
incompetent and conservatorship gains control over the property of somebody, has
nothing to do with the person

Harvey v. Meador
-what is the appropriate standard should consider when appointing conservator
-four elderly uncles
-each uncle owned 1/8 interest in farm in another state
-not long before nephews petitioned court, uncles sold the land
-at the hearing, testified that uncles sold the land for way below value
-all uncles had health problems
-court held not enough evidence to appoint conservator
-so what is the appropriate standard?
 Provides that a conservator can be appointed for any person who:
• Advanced age
• Physical incapacity
• Mental weakness
-Court has to look at statues
 Advanced age alone not sufficient
 Physical incapacity not sufficient alone
 Mental weakness:
• Developed management competency test
o Incapable of understanding and acting within ordinary affairs of
life
 Unable to manage property etc.
 By the time got to appeal three of the four uncles had died
 He had advanced age, mental weakness by selling property for too cheap, and he
denied that the attorney was his attorney
• Attorney paid by buyers of the property
• Conflict of interest?
o Found trial court was wrong and that he needs conservator
o Court struggled to separate guardianship and conservator

Conservatorship: directed at elderly people

 Social control over elderly people transfers property to younger people from older
people late in their life

What can a conservatorship do that a guardian cannot?

Limited guardianship: partially incapacitated- fine line for judges to decide a lot of
guardianships are health care issues, very rarely used

Voluntary Guardianship and Guardianship

Voluntary assistance is less restrictive alternative than any type of involuntary assistance
because the stigma associated with incompetence is absence

Guardianship diversion: guardianship petition is filed then prior to person being found
incapacitated then meeting is held and agreement is made for certain services needed, do
not have to adjudicate person incapacitated
Agreement just involves petitioner to the case and social services worker

Bryan v. Century National Bank

-98 year old woman with bank petitioned court for voluntary guardian
-florida law does provide for voluntary guardian
-by reason of advanced age or physical infirmity
-must be accompanied by doctor certificate
-she wants to delegate to the bank to be guardian for her
-she must be mentally capable to do so
-woman signed deed to her home over to Reed Bryant
-he petitioned court to confirm conveyance but did not confirm before her
death
-so he petitions bank because he did not get court approval
-trial court rules, absent any finding of incompetence, law did not require
court approve
-appeals court says yes must prove competency
-the supreme court affirmed appellate court, need confirmation of court, if
under control of voluntary guardian
-court says even in a voluntary guardianship still need approval

H. Scope of the Guardians Authority

The guardian may exercise any powers given by the court so long as he or she acts in
good faith as a fiduciary for the ward

When the guardian makes decisions about the personal lifestyle of the ward, the guardian
is held by state statutes to either a best interests standard (deciding for the ward in a
way that favors health, safety, and financial security) or a substituted judgment
 standard (deciding for the ward as the ward would most likely have decided if the ward
were able).
The best interest’s standard may be inappropriate for adults because an adult can
choose to deviate from the norm
Best interests is objective standard
Substituted judgment is when make decision they would have made

Managing a wards property: have to management it prudently, how a prudent person

would act under similar circumstances when managing another’s property

In re Medworth
-there remains insufficient evidence to show relocation was in Medworht’s best interests
or essential to provide for her care
-conservator failed to consider seriously any additional housing alternatives for
Medworth
-no evidence as to cost of making home safer
-conservator made only one telephone call
-Medworth is capable of living at home
-Proper care could be provided
o In practice the best interest standard and the substituted judgment standard nearly always
reach the same conclusion

Financial Duties and Property Planning

Martin Case
-Conservator, looking old law in Nebraska
-Manage property prudently old standard
-New probate code, must manage wards property with respect to how they
would manage someone else’s
Anthony Case
-Can manage someone’s property too conservatively
-Bank ordered guardian, court ordered to pay $500 per month to attorney
for daily expenses
-When bank submitted expenses they only paid like eight or ten dollars a
day
-Its bad that wealthy man who has no duty to support anyone- sad he has
to live so badly
-Court took away bank as conservator

Supplement case:
There are some decisions a guardian can make that require court approval which includes
committing your ward to a psy hospital/ mental institution- need court permission for this

In some states need to get permission before committing your ward to a nursing home
even

Guardianship of Agnes
-Voluntarily admitted herself to nursing home
-County DHS applied to appoint themselves
-Guardian ad litem objected saying before guardian can submit ward to nursing home
must have a hearing- protective placement hearing
-County argued don’t need to do that because she voluntarily was already in the nursing
home for the past 16 years
-Trial judge appointed guardian but did not require hearing
-App ct said wrong-
 Its such an important decision and she cannot now consent because she is
currently incompetent, therefore need the hearing

Supplement Case:
-DNR case- 79 year old man, alone no friends or family
-Has bad medical and health conditions
-Health and human services appointed guardian
-Court said must include court in all no code orders
-Guardian filed motion because they wanted to execute DNR order on behalf of this man
-He had advanced dementia, pulmonary disease etc.
-Only person who testified at the hearing was his doctor
-He testified chance of actually bringing him back if necessary was 1 in 100
-To do cpr on Lea would be cruel, futile and un ethical
-Court found by clear and convincing evidence guardian should be able to execute DNR
-Then Leo died
-App court said the lower ct did not error

Priorty of Appointment
Usually starts with closet family member
Can also include someone that the person has indicated in writing while they were
competent

Holloway Case- Supplement

-Sometimes all guardian options are bad, but have to choose the least bad
-Lady was 86 years old and was doing fine on her own
-Had her own money etc.
-She had a big family and one of the sons got durable family of his mom and closed out
her cd’s and put her money into trust and invested his moms money into the stock market
-The two daughters come in and remove mom from home without telling the sons
-Police are called, missing persons report is filed
-File new guardianship petition and invalidate the one her sons have set up
-She is in nursing home, falls and breaks her hip and daughters won’t consent to surgery
-Emergency guardianship had to be filed
-Judge appoints state agency to be guardian and says none of the kids are qualified
-Good cause was shown that non of the children were appropriate to be her guardian

Removal of Guardians and Termination of Guardianship

Someone has to come in and petition the court and say my capacity has come back and I
am competent and no longer need a guardian

Most guardians are terminated by death- when ward dies powers as guardian ceases

In re Harris
-Removal of a guardian case
-Situation of older woman
-Nephew is appointed her guardian
-Then the ward starts making complaints, that she has no money they never come visit
her, her house has mice, home and yard are run down and she had little food
-Guardian didn’t live in the same state as the ward
-And one of the public health nurses petitioned the court to have the guardian removed
-Guardian said he was trying to do a good job but ward would not cooperate
-Court terminated the guardian and appointed the public nurse as guardian

Generally for a guardian to be removed there has to be evidence that something really
wrong has been done

Most states find any one concerned has standing

VII. Property Management:

Durable Power of Attorney- can provide a substitute decision makes for property
decisions
Principle in agent: written document, in writing person authorizes agent to make
decisions for them

Durable- recent term, power that endures beyond the incapacity of the principle
All states have statute authorizing durable power of attorneys
We have it title 58, 1071 to 1071
General requirements: must be in writing, signed by principle, witnessed and dated- some
require notarization
Somewhere it has to say that it endures after the incapacity of the principle

Death terminates the power of attorney- once principle dies power ceases

Delegating powers: broader powers are broader risk for abuse

Person cannot execute power of attorney unless they have capacity to do it

Most attorneys error on the side of letting the person sign

Potential for abuse

Formalities of execution: need to be in writing, dated, signed by principle, witnessed etc.
Most requirements in most states are the same- but if you move from home state to
another state should execute another one just to make sure it complies with the new state
Agent can be compensated if put in the document
And agent is entitled to reimbursement for reasonable expenses

Can be revoked by the principle at any time as long as the principle is competent

Until the agent is aware that their agency has been revoked any acts they do as an agent
are still valid until they receive notice

Who decides if mom is competent to revoke power of attorney?

You would have to file guardianship and litigate the issue
Rudabaker case:
Old age not enough to find incapacitated
Really sons were trying to resolve family feud
Sons did not get to be appointed guardian

Immediate powers: durable goes into effect immediately unless other wise specified-
once signed the durable power of attorney goes into effect

Springing powers: goes into effect at time specified- like one the principle is deemed
incapacitated, but again who is going to decide if the person has become incapacitated
Clause: personal physician can write letter or two independent physicians can
certify that the person is incapacitated

Springing powers can also be triggered by letter from the agent

Medical release can also be included

Can also specify if you want someone to be your guardian

Don’t need multiple original copies

Uniform durable power of attorney act: if you put it in the for witness to sign and sworn
statement- this is a presumption of capacity

Gifts by an agent: in most of farris’ documents he does not authorize the agent to make
gifts

May be good reason for agent to make gifts out of principles money
Can give up to $12,000 each calendar year to anyone you want

Moewr v. Eddie:
Lady was 103
Niece and nephew moved into help her because she broken her hip
Became agent for her
Transferred tons of money from her to them
And they spent the money
This is major danger with durable power
safe deposit boxes- some banks do not authorize this or honor it- solution to this would be
to have trust

joint tenancy: common to try and use joint tenancy as poor mans will
drawbacks:
can take money out for themselves
joint tenancy trumps a will

Joint tenancy:
Often a widow adds child
Joint tenancy accounts have right of survivorship
Potential for abuse but the joint tenant
Can clean the account out
Account can be attacks by childs creditors
Upon death the child is legally owner of all of the account

Often times the elderly person does not want to give the child ownership, just wants to
give them management of the account

Joint tenancy trumps will

Kitchen v. Guarisco
Husband dies
Woman buys four different joint tenancy cd’s for $1000 each
Her name and her daughters name
One is mother or daughter
She noted money is to pay her bills
Mom dies
And daughter takes all the money
And sister objects
Saying mom never intended joint tenancy just doing it for convenience
Never intended to create survivorship and daughter needs to pay money back
However, daughter probably already spent it

Better way is POD, payable upon death accounts-

No rights to take money out of account just get what is left in the account at the
time of death

Can put all four children on pay on death account

RECVOCABLE TRUSTS
Another way people transfer their property at death is through a trust
It is another way to avoid a guardianship
Another way to have property managed while alive instead of having a
guardianship
Once trust is created
 Then transfer property and assets into the trust account
Names self as trustee to continue to manage own property
Then successor trustee steps in while alive if became incapacitated and they also
step in on death
Still have the problem of how do you trigger it? How do we determine if the
mom is incapacitated?
Mom can resign as trustee also
Then determination of incapacity is not needed
Another problem is when you say you must select successor trustee who you trust
. . .. .

Co trustees are responsible for what the other trustee does

Need to make sure the trustee is trust worthy

Some banks do not honor durable power of attorneys

Banks are much more comfortable with trusts

VIII. Health Care Decision Making

DOCTRINE OF INFORMED CONSENT
Who determines what kind of health care treatment they are going to get?
Themselves
Right to choose healthcare comes from doctrine of informed consent
Patient should have autonomy
Informed consent- people need to make intelligent decisions

Medical informed consent/ or informed refusal:

Somebody usually the doctor needs to explain risks of the procedures and
consequences of procedures
And the alternatives

Scot v. Bradford case

-Operated on without informed consent- which is a battery
-Mrs scott had tumors on her uterus
-She signed routine consent form to surgery
-Had hysterectomy
-Then went to another surgeon and took three other surgeries to fix the problem
-She files medical malpractice claiming she did not receive informed consent
-Did not know the consequences or alternatives of procedures
-Court said did rule with doctrine of informed consent
-Must inform patient of all risks and alternatives
-Three things need to show and prove as plaintiff:
 Physician failed to adequately inform risks before consent
 If had shown risks patient would not have signed consent
 And show that injury of risk that wasn’t explained was actually suffered
Three exceptions doctors can argue:
1. emergency care exception- in emergency no need for informed consent
 2. therapeutic privilege exception- not used really anymore
3. patient waiver-

informed consent: in some cases it is a myth, doctor would rather just make the decision
themselves

The right of a competent patient to die:

Superintendent of Belchertown v. Siakewicz
Preservation of human life
Protect interest in innocent third parties
Inetrest in preventing suicide
Interest in protecting medical field integrity
Refusal of medical treatment is not result of suicide, it is death from the underlying
illness
Do we have a constitutional right to die?

Cruzan v. Director
No constitutional right to die, close

Informed consent for mentally incapacitated patient:

Still protected, their proxy decision maker has to give informed consent

Payne v. Marion General Hospital

She didn’t want brother to be resuscitated if he died
Doctor no code entry
Doctor sued patient for fee
Estate turned around and sued the doctor for malpractice
Saying the man was competent when he authorized the dnr

Will- upon death

Living Will- a document dealing with death and dieing; to allow somebody while still
competent about future treatment they do or do not want later
Living Trust-
Advance Directive for Health Care- this is used just for life and death
Durable Power of Attorney for Health Care- normal medical decisions, not life and
death

INCAPACITATED OR JUST ECCENTRIC?

In re Milton:
-woman has malignant tumor and is refusing treatment
-she is refusing because she believes in faith healing
-and she incorrectly believes she is married to a faith healer- which is not really her
husband
-doctor said she was unable to give informed consent and doctor wanted her ordered the
treatment
-one doctor testified that she was awake and alert and fine
-another doctor testified her stated reason constituted a psycho illusion
-she has never been deemed incompetent
-they never tested her capacity
-supreme court said she does not have to submit to the treatment based on the freedom of
religion
-because she is a competent adult then its her decision

Incapacitated and informed consent:

Proxy decision maker still must give informed consent
Doctors have to consult with family or alternative decision maker/ proxy

Unless there is an advanced directive for health care

Or sometimes doctors ask hospital atty to ask the ct for permission

Terminal illness, Brain Death, permanent vegetative state:

Terminal Illness: everyone is gonna die sometime, just don’t know when
Terminal illness is irreversible or incurable
Which means patient is going to die relatively soon
But how soon?
Some states specify in statutes

What is death?
Cessation of all circulation and respiration- traditional death
As long as they have respiration then circulation continues then still alive-
respirators

Brain Death: irreversible cessation of all function including the brain stem page 571
Uniform Definition Death Act

Flat line indicates person is brain dead

Living wills don’t deal with brain death only permanent vegetative state or terminally ill

Persistent vegetative state not the same as brain death: two parts of brain is divided,
persistent vegetative state only one part of the brain dies

Presisant vegetative state- permanently unconscious, unaware of surroundings etc

This occurs when the body is deprived of oxygen for 4 to 6 minutes
This is called hypoxia
And this patient will never regain consciousness
No way to determine if someone is in a persistent vegetative state

Estimated to be anywhere from 50,000 to 40,000 people in persistent vegetative state

If in a persistent vegetative state if you are denied nutrition and hydration they will die

Oklahoma Statute: Oklahoma Advanced Directive Act

Advanced directive three parts:
Proxy
Health care decisions
Organ donation portion

Federal law- any patient that accepts Medicaid or Medicare then they are offered the
chance to sign a living will- no matter what the are being admitted for- even a hang will,
because so few people have those documents

Two primary situations for advanced directives:

Terminally ill
Persistent vegetative states
Doctor and another physician would have to determine the above
Oklahoma only allows you to refuse artificial nutrition and hydration if either vegetative
state or terminally ill or end stage condition- (used to be unconstitutional, but added the
third)

Durable power of atty: Have to be in writing, signed by Declarant, have to be witnesses,

ok doesn’t require notarization
Valid in other jurisdictions?
If valid in place where executed then valid in new state
Should also prolly execute a new one too when you move to a new state if they are not
incapacitated

A living will becomes operative when its communicated to the attending physician that
you have one
And then its only operative if the patient is incapacitated and the patient cannot
voice their own decisions
What if the dr or hospital wont comply with the persons living will?
Some drs. Have their own moral viewpoints
Most all state living will statutes provide that if dr of hospital will not or
cannot honor living will then patient must be transferred to a hospital that
will
Two main types of docs for surrogate decision maker in case person becomes
incapacitated
Farris says:
Living will/ health care proxy- death and dying document end of life decisions/
advanced directive
Durable powers of atty- deals with other health care decisions-
**Health care proxy form can be used in lieu of the durable power of atty- because that
would cover everything
Oklahoma’s advanced directives for death and dieing is limited to what the person
specified

Traditionally durable powers were limited to prop decisions- but in ok we have durable
power of atty act

Fed government in 1990 passed self determination act- required by law to offer advanced
directive and your right to sign one each time you go to hospital

Very few patients sign because they are not required to

If a person is incapacitated and cant make own decision and no durable power or
advanced directive some states have default surrogate decision maker
Have a priority list
Who ever they specified orally
Then spouse
Then adult children
Parents
Adult siblings

When someone is terminally ill- persistently unconscious

Don’t have to get a guardian
Because if all family agrees that this is a situation where there is no hope
for the patient and the patient would have not wanted to be kept alive then they
can withdraw treatment
But need guardianship if everyone doesn’t agree

Should a durable power of atty for health care be valid indefinitely?

Meaning never have to sign another one?
The prob is in the financial area- the older the less likely to honor
What if you named your spouse as an agent and then you get a divorce?
In Oklahoma: If you sign a will and name spouse as beneficiary then they
are treated as they pre deceased you- this does not specifically say durable powers
but does say for contracts so hopefully this would fall under contract

Adviosory decision that don’t want to be kept alive in persistent vegetative state- wont
work in OK
What if surrogate refuses to terminate health care?
Health care proxy language?
Dr could ask the court
Error on the side of life b/c death is final

Termination of life sustaining treatment with out an advanced directive: even if no

advanced directive- if all parties agree and it’s the appropriate medical decision then
that’s what will happen
But if there is a dispute then you can ask court
Karen Quinlon case
Put on respirator
Dad wants to take her off
She was only 22 years old
Finally he gets a ruling that if the ethics committee of the institution agrees she is never
going to emerge from her situation and no civil or criminal liability then it would be ok
She was taken off the respirator but she lived for another few years

Terry Schivo Case:

So much publicity
Persistent vegetative state, not coma

Cruzan case:

What about terminating life sustaining treatment based on a best interest test?
Explain based on substituted judgment (objective factors) versus surrogate
decision maker (subjective test)

Woods v. Kentucky
Disabeled individual

Test: Only 2 hours- so cant be very long

Want to have big picture view of medicare and Medicaid social security problem
At least give opinion on that
Easy solutions and whether they make sense
Multiple choice dealing with prop management health care decision making durable
powers decision making etc.
Problem on Medicaid planning with numbers and figures to determine if someone is
eligible or not
What rules are etc.
Prop management health care decision making elder abuse multiple choice

Open book and open note

Can bring all the stuff off his twen page in too

IX. Elder Abuse

Big picture about Medicaid and medicare social security dilemma

May ask to comment on the typical solutions or political realities of it

Elder abuse and neglect: no national statistics about elder abuse

State elder abuse statutes vary pretty widely
No national data base
National center on elder abuse- Americans on aging
SEE HANDOUT ON DEFINTIIONS
1 to 2 million people are subject to elder abuse
elder abuse is committed by people who are supposed to be protecting the elder
people

1 in 14 incidents of home domestic elder neglect and self neglect come to authorities
two types:
by a third party
self neglect
financial exploitation: only one in 25 cases reported- 5 million cases a year

for every one elder abuse case that’s reported, 5 more go unreported

elder abuse not isolated incidents but something that happens over and over again

Have to have a duty to be guilty of neglect- see handout definition

Neglect largest area of elder abuse page 636 58.5% of elder abuse
Self neglect- own behavior threatens their own health and safety

Victims: typically it’s a female and she is 75 years or older and she is being abused by
someone who is living with her, dependant on the abuser for her care or protection
Women most subject to abuse

Who abuses older people?

Most likely adult children, then other family, then spouses- text book
Website says now by far most likely person is a spouse, then adult children most
likely to commit elder abuse

Person who commits elder abuse is usually a care giver

Domestic caregivers: family most likely to be abusers

Abusers can and are male and female

Family stress- elder use in a family situation- like the stress of caring for the elderly
person is the one who does the abusing

Other reasons:
Are revenge or retaliation: if you were abused when you were little then you are
likely to abuse
Drugs or alcohol
Or financial dependence on the victim is another reason
Form of control: intimidate the victim so they do everything the care giver says

Institutional caregivers:
Three reasons why abuse:
Under staffing
Low wages
Inadequate training

Most frequent type of institutional setting is physical restraints- tying the person to the
bed to make their job easier

Also hitting, slapping, yelling and anger, placing in isolation- all happens in nursing
homes

SELF NEGLECT
Issue is does this person still have the capacity or the competency to make these
decisions?

Concept of self neglect: an older person who fails to meet his or her basic needs for food,
shelter, clothing, or health care

Balancing elderly person’s autonomy vs. states interest to protect the person

In Re: Herbert Byrne and Re: Norma Turner Case

Social worker visited them at their home naked
And living in filth and inhumane
Filed petition for emergency order of custody
Court issued the order
And appointed counsel for these people
Their attorney filed motion to dismiss
Then judge found there was insufficient evidence
Then the attorney still appealed the motion to dismiss saying emergency procedures were
unconstitutional:
Said it violated for three reasons:
1. Violated due process
2. statute is unconstitutionally vague
3. the state lacked authority under doctrine to impose services and
treatment on competent elderly persons
State is ultimate guardian of its citizens
When old age leads to deterioration of competency then state can intervene
Court threw all their arguments out saying state had obligation to protect people

Adult protective services

All have a couple of primary functions
1. go out and investigate potential elder abuse
a. some are self reported others are tips that come in
2. if some type of abuse is found to be going on then they offer protective
services to the person
a. the person has to consent to these services
 b. if they do not consent then they need to determine whether or not the
person is competent enough to make that choice
bias is to protect the person

NON CONSENSUAL AND EMERGENCY INTERVENTION

Ideally you would get involved much earlier but the reality is that most don’t have the
resources until its an emergency

Under emergency can take the people out of the home immediately
Then have like 24 to 72 hours to file a petition with the court
If they feel the person is incapacitated then court can appoint guardian
Guardian can be family member or adult protective services worker
Or can let the people go home if they are found competent

MANDATORY REPORTING
If they suspect elder abuse, then they are required to report it
But that is controversial because we are assuming we are dealing with a competent adult
who could report for themselves if they wanted to

FINANCIAL ABUSE
With physical abuse, you see bruises or injuries, etc. but how do you see financial abuse?
You don’t unless the financial abuse leaves the elderly person destitute, like they
are not getting enough to eat etc.
Really not many ways to find out about it

Est of Gasparac v. Schunk

Classic example of financial abuse
Daughter was care taker
Daughter took $180g of her mother’s money
When her mother died the other siblings found out what was going on and then pressured
her to resign
So that the estate could sue her for conversion
Her defense was typical defense when people do this: “mom wanted me to have that
money”
She did not make a prima facie defense
Sent back to the trial court

Judge Hogue Case- Tulsa world article

He and his wife as trustee’s embezzled money
He was an atty and a judge
At some point the woman asked the judge and his wife to take over as trustees
Judges are not allowed to be trustees of any trust, but he didn’t know that
Then the lady was moved out of her home
Furniture was sold
Then a lady neighbor down the street saw all this happening and found two attorneys to
look into the matter
They took up the case and eventually filed a civil suit against the judge
His defense was that he didn’t know anything about this and that his wife did it all
A trustee has same duty to beneficiaries- whether active or passive
Both got judgment against for $175,000
Then criminal case
Wife plead guilty and was found guilty
Judge plead not guilty and was acquitted
Woman was able to go back to her home because of lawsuit
And a lot of people donated money and furniture to her
Then she died happily at home for a couple years after the case
This caused a task force to be formed in Tulsa in 1999
Since task force has been disbanded

IX. Elder Abuse-Repeated abuse or neglect or ongoing psychological abuse.

-One time Crimes (like mugging and scams) are not considered elder abuse.
There are no good stats on elder abuse but the number of incidents is shocking.
Defining Abuse and Neglect-Statutes vary and define abuse differently- see handout from
Farris (National center on elder abuse website)

Who are the Victims of Elder Abuse?

Victims- may vary, but mostly female, 75+, abused by someone living in the home with
them, they are dependant on the abuser for care and protection.

Who Abuses the Elderly and Why?

Most abuse is committed by the people who elders depend on for their care and protection
Transgressors are in a position of power and trust over the elderly and the abuser
violates a duty of care or fiduciary responsibility to the victim.
Old Studies on who commits the most abuse- adult children, other family, spouses
New- Spouses, adult children, other family

Abusers share some attributes and motives

-it is an exercise of power and control
-sometimes trying to regain control, sometimes just evil intent.

Some Stats
Only 1 in 14 incidents come to authorities
-this includes self neglect
There are 2 categories
-neglect by a 3rd party
-self neglect- big part of abuse
Financial exploitation-1 in 25 cases reported- 5 million abuses/ yr
For every 1 case of abuse which is reported, 5 more go unreported- big problem

Domestic Caregivers-
1. The biggest factor for abuse is family stress.
 -this comes from the strain of financial and emotional support
-creates an intolerable burden when resources are strained
2. Retaliation or Revenge- many elder abusers were abused themselves as children
3. Substance Abuse Problems-most abuse occurs when the abuser is drunk or on drugs
4. Occasionally abusers suffer from mental illness which is triggered from the stress.
5. A caregiver that is financially independent on the abused- this creates hostility and
resentment
6.Control- all abusers try to control- some to make their job easier-this usually comes
in the form of psychological abuse

Institutional Caregivers-Nursing home

1. Under staffing- not enough resources, no training, high turnover, past criminal records
-abuse is used to gain control of the residents
-Most frequent: Physical restraint (tying to bed), Hitting, slapping,
threatening,
isolation, deny privileges, take away food, etc.- to gain control and make
job easier

Self Neglect-older person that fails to meet their basic needs for food, shelter,
clothing, or health care.
A big issue is individual autonomy vs. the power of the state to provide for the citizen
Also competency: if they have competency- they can deny voluntary services
If a person chooses to neglect themselves it is their will. You can not force standards
of living on someone else.

Herbert Byrne
Legal arguments about when the state comes in. Here a social worker visits finds man
naked, living in filth, bad conditions. A cop took him to a hospital and the social
worker got an emergency order and appointed counsel.
His Atty- filed to dismiss- emergency procedures were unconstitutional and Insufficient
evidence to establish need for services. The TC denied so the atty- appealed.
Are the procedures constitutional? Argued:
1. deprived of due process- likened to commitment proceeding or incarceration- so need
notice, hearing. The ct says no- purpose is to protect, not punish, limited to emergency
use and state has obligation to preserve life
2. Unconstitutionally vague- could lead to indefinite commitment- ct says
3. State is ultimate guardian of citizens- in no circumstances can the state force it,
but when old age leads to deterioration of competency they can.

Adult Protective Services- every state has one which is similar but not identical and
they all have the same primary functions:
-to prevent abuse and provide supportive services
-if necessary they will remove from home
1. Procedures- investigate reports of abuse and voluntary or involuntary interventions
-can come from self reporting or 3rd party reports
-victim must consent to help or a ct must make a determination of incapacity
If there is abuse- they offer protective services- LOTS of services (health, social,
psychological, medical, and legal assistance.
-bottom line- states offer and they have to have consent

2. Consent to Services
For incapacity-Should look for REASONED decision- not reasonable
Social workers- fast track to guardianships- bias to protect the person- hard for a 3rd
party to objectively look at the person

3. Non Consensual Emergency Intervention

-under funded and under staffed
-so they only get involved in the worst cases

-authorized to take out of home and then have time period to file petition with ct for
emergency order
1. extreme- if they are incompetent- can result in guardian- family or APS worker
2. dismissal- no emergency and they go back to their home

Mandatory Reporting- certain people required by law- close contact-Dr., social worker,
etc.
-Pros: helps for those who are scared to report for themselves
-Cons: Controversial- dealing with competent adult- treating them like a child-
not ok
-no stats, don?t know if its even effective

Financial Abuse-Identify the abusive acts, categorize as fraud, then correct w/ restoring
funds
Differences:
-Not as visible as physical abuse
-Problem: don?t unless it gets so bad that they are not fed, or clothed anymore
-or poor hygiene
Financial- if they just take most money they don?t get found out

Schunk
Mom moves in with adult daughter, 1st she makes her executor of her will, next POA
Then over 9 yrs- daughter took 180,000 of her money out of moms acct. Other siblings
brought suit-sued for conversion
Defenses- SOL- couldn?t look at some of the money she took
Looked at part- defense was mom wanted her to have to money and she had permission
mom was dead so no way to confirm
Ct ruled- she didn?t make the prima facie defense- sent back to TC- don?t know result

Judge Hogue OK case

Judge was embezzling money from client, she mentally declined and named him as a
trustee,
but Judge can?t be trustee of any trust- they moved women from home- sold
furniture-neighbor found 2 attys to take the case
Filed civil- defense was that wife did it all- a trustee cant defend with delegation of
duties- so this was no defense
-175K judgment
Criminal- embezzlement- wife plead guilty-
He plead not guilty- was acquitted-
Woman died- went back to her home
Led to state recognition- task force- have not prosecuted anymore cases