The Elder Law Journal

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In this note, Ms. Aeschleman explores the cultural, social, and economic barriers faced by elderly minorities in need of nursing home care. Ms. Aeschleman argues that minority elders face greater economic barriers to nursing home access than Whites because of factors such as lower average incomes and a lack of access to and assistance with government programs. Culturally, Ms. Aeschleman argues that minorities face barriers to nursing home care because of language differences, the location of nursing homes within communities, traditions, and both overt and indirect acts of discrimination from nursing home staff, administrators, and White clients. Following a discussion of these barriers, Ms. Aeschleman suggests options to give elderly minorities equal access to nursing homes through federal and state incentives, as well as community-based activism and awareness campaigns.
 
As as the elderly population continues to grow, so does a subgroup of that population--elderly persons living with HIV infection and AIDS. In her article, Professor Waysdorf, a nationally recognized AIDS law expert who has taught, published, and practiced in this area for over a decade, introduces statistics and studies that show just how quickly the HIV/AIDS-infected elderly population is growing. She analyzes which groups within the elderly population are hit hardest by this epidemic, paying particular attention to women and minority groups. The article also considers how much larger these subgroups will become in the following years. Professor Waysdorf then examines existing and proposed legislation that may help this population address the health and legal concerns it faces every day. She recommends additional measures that governmental, medical, professional, and social service agencies can take to further address the needs of the HIV/AIDS infected elderly population. Professor Waysdorf concludes that while some legal safeguards do exist, much more is needed to protect these individuals.
 
Physician-assisted suicide is one of the most controversial issues in society today. We live in an age where medical technology has developed so fast and so far that those who would have swiftly succumbed to deadly diseases in the not too distant past are now living, or, rather, being kept alive long past the point of meaningful existence. Although everyone sympathizes with the painful plight of the terminally ill, the specter of physician-assisted suicide gives many pause, and rightfully so: one need only think of the carbon monoxide contraption in the back of Dr. Death's infamous van to realize that society must address the issue of the right to die. Is there any solution to this great debate? In this note, Mr. William Tarnow passionately answers in the affirmative. Mr. Tarnow analyzes the constitutionality of state statutes which either criminalize or legalize physician-assisted suicide under both the Due Process and Equal Protection Clauses of the Constitution of the United States. The note also considers the case law, largely from the federal Ninth Circuit Court of Appeals, invalidating and upholding such statutes under the Constitution. Arguing that there is indeed a constitutional liberty interest in physician-assisted suicide, Mr. Tarnow concludes by suggesting that state legislatures can and must create legislation that legalizes physician-assisted suicide and passes constitutional muster.
 
This article provides a general introduction to the specific challenges facing LGBT elders. In addition to the general burdens of aging, LGBT elders are disadvantaged by a number of LGBT-specific concerns, most notably: the legal fragility of their support systems, high levels of financial insecurity compounded by ineligibility for spousal benefits, and the continued prevalence of anti-LGBT bias on the part of their non-LGBT peers and service providers. Part I outlines the ways in which LGBT elders differ from their non-LGBT peers in terms of demographics and their reliance on “chosen family,” as well as some of the particular issues confronting transgender elders. Part II turns to two issues that loom large in the lives of LGBT elders: the closet and the constant threat of anti-LGBT bias. It contends that pre-Stonewall history continues to inform the behavior and beliefs of LGBT elders, and that the prevalence of anti-LGBT bias and violence distorts their view of the aging process. Part III discusses the extent to which LGBT elders can use traditional estate planning tools to safeguard their interests. A brief conclusion summarizes the types of reforms that are necessary to ensure dignity and equity in aging regardless of sexual orientation or gender identity. It argues that the limitations of existing planning tools should serve as a powerful reminder that many elder law issues require a wider lens and that the reach of elder law ultimately extends well beyond the finer points of estate planning and the spousal impoverishment rules. Aging in the U.S. is first and foremost a civil rights issue that implicates fundamental issues of justices and fairness. In this regard, the isolation and fear experienced by LGBT elders should strike a universal chord, as should their call for dignity and equity in aging.
 
The COVID-19 pandemic has disproportionately affected the elderly. This Article provides a detailed analysis of those effects, drawing primarily on individual-level mortality data covering almost three million persons aged 65+ in three Midwest states (Indiana, Illinois, and Wisconsin). We report sometimes surprising findings on population fatality rates ("PFR"), the ratio of COVID to non-COVID deaths, reported as a percentage, which we call the "Covid Mortality Percentage," and mean life expectancy loss ("LEL"). We examine how these COVID-19 outcomes vary with age, gender, race/ethnicity, socio-economic status, and time period during the pandemic. For all persons in the three Midwest areas, COVID PFR through year-end 2021 was 0.22%, mean years of life lost ("YLL") was 13.0 years, the COVID Mortality Percentage was 12.4%, and LEL was 0.028 years (eleven days). In contrast, for the elderly, PFR was 1.03%; YLL was 8.8 years, the COVID Mortality Percentage was 13.2%, and LEL was 0.091 years (thirty-four days). Controlling for gender, PFR and LEL were substantially higher for Blacks and Hispanics than for Whites at all ages. Racial/ethnic disparities for the elderly were large early in the pandemic but diminished later. Although COVID-19 mortality was much higher for the elderly, the COVID Mortality Percentage over the full pandemic period was only modestly higher for the elderly, at 13.2%, than for non-elderly adults aged 25-64, at 11.1%. Indeed, in 2021, this ratio was lower for the elderly than for the middle-aged, reflecting higher elderly vaccination rates.
 
The House of Lords Post-Legislative Scrutiny Committee on the Mental Capacity Act 2005 reported on 13 March 2014. This paper considers the findings and recommendations of the Committee, and in particular its two key recommendations – the establishment of an independent oversight body to co-ordinate implementation of the Act, and the need to develop a replacement for the present deprivation of liberty safeguards (DOLS).
 
With increasing frequency, members of the nation's elderly population are being diagnosed as substance abusers. In this note, Ms. Abrams explores why the rate of such diagnoses is increasing, as well as possible means of preventing this "epidemic" from becoming any worse. Ms. Abrams suggests that the causes of the current substance abuse problem among the elderly range from inadequate training in the medical community to a general shift in societal attitudes toward substance abuse. It is argued that, because the elderly do not engage in the same type of social interaction as the vast majority of the country's adult population, it is substantially more difficult to identify those in need of treatment for substance abuse problems. The proposed solution to the problem is to educate those that have regular contact with the elderly about this unique class's substance abuse so that afflicted individuals can be identified and treated. Moreover, Ms. Abrams argues that, with evolving professional customs, physicians and pharmacists may be subject to liability if they fail to adequately diagnose, monitor, and treat substance abuse in their elderly patients.
 
This Article addresses end-of-life decision-making by guardians of older adults. First, the Article presents current definitions of hospice and palliative care and describes several common end-of-life disease trajectories. This background information introduces the diverse contexts in which guardians may find themselves when making end-of-life care decisions. The next section sets forth results of our recent research focusing on end-of-life care for unbefriended adults subject to guardianship. "Unbefriended" adults are thoses who lack decision-making capacity, have no advance directive, and have no family or friends to serve as a surrogate decision-maker. As such, professional guardians may be appointed when health care decisions are needed. Making health care decisions for such adults, particularly end-of-life care decisions, can be challenging. Little to nothing may be known about the person's values prior to guardianship and the patient may be unable to convey his or her wishes and goals to the guardian. The third section provides practical guidance to guardians. We discuss the assessment of values-with some thoughts about what to do when it is not possible to assess values. Finally, we discuss several common end-of-life health care decisions that may confront guardians-a code status change, a do not transfer order, and deescalating care within an intensive care unit. For these situations, we provide information from the perspective of our interdisciplinary team for the purposes of supporting guardians who face these challenging decisions.
 
The growing Muslim American population has led to greater diversity within the elderly demographic. This change has created the need for culturally appropriate care for the elderly in the United States. Ms. Al-Heeti explores the current state of nursing home care through Medicaid and Medicare and illustrates its inadequacies in meeting the needs of the Muslim American elderly population. With Islam placing a strong emphasis on caring for one's parents in the home, along with cultural barriers, Medicaid and Medicare's focus on nursing homes is not a viable option for Muslim Americans. The author proposes modifying Medicaid and Medicare to allow elderly who have cultural or religious reservations against nursing homes, like Muslim Americans, to receive government support for home care or community-based services. Ms. Al-Heeti's resolution takes into consideration the growing ethnic and religious differences within the elderly population and proposes a solution that offers individualized choice and access to services that would allow Muslim Americans to receive proper medical care.
 
Caraviello "Aging in place" refers to the desire of older people to stay in their own homes and communities in spite of encroaching infirmities, and it is an increasingly important aspect of public policy. This movement has gained impetus from the Supreme Court's decision in Olmstead v. L.C., which requires states to make community-integrated support programs more widely available for persons with disabilities. The aging in place movement, however, is hindered by the general unavailability of accessible and supportive housing. Legislation, such as the Fair Housing Amendments Act, which V OLUME 16 applies only to multi-unit housing, has been the subject of weak implementation and homebuilders have generally resisted its extension to single family housing. In order to age in place, older people often have to modify their environment to accommodate their changing abilities. The challenges of finding age-friendly housing in their communities or of retrofitting existing homes, can present frail older people with an all-or-nothing decision. This acts to funnel them towards institutional settings, such as nursing homes, in spite of their contrary desires. To make aging in place a reality for older people, Professor Pynoos in his Ann F. Baum Memorial Lecture on Elder Law, argues that new policies are needed to provide help modifying existing housing, mandate the creation of housing based on principles of universal design, and provide a range of housing types in communities.
 
Law, discusses the dynamics of allocating the scarce supply of transplantable organs and the various schemes for doing so that have developed over the years. Upon providing the historical context for dialysis and organ donation, Dr. Satel and Dr. Hippen examine the specific issue of renal failure as a major problem affecting older people and explain how donated Dr. Sally Satel is a resident scholar at the American Enterprise Institute and the staff psychiatrist at the Oasis Clinic in Washington, D.C. Dr. Satel was an assistant profes-sor of psychiatry at Yale University from 1988 to 1993. From 1993 to 1994, she was a policy fellow with the Senate Labor and Human Resources Committee. Dr. Satel has written widely in academic journals, popular magazines, and books on topics in psy-chiatry, medicine, and the cultural aspects of medicine and science. Dr. Benjamin E. Hippen is a transplant nephrologist at the Carolinas Medical Center in Charlotte, North Carolina. Dr. Hippen serves as an at-large member of the Ethics Committee of the United Network for Organ Sharing, serves on the editorial advisory board of the Journal of Medicine and Philosophy, and is a regular reviewer for Transplan-tation and the American Journal of Transplantation. He has written extensively in de-fense of a regulated market in organs and lectures widely on the subject. V OLUME 15 kidneys can ensure better clinical outcomes for the affected elderly compared with dialysis. The authors consider the implications of organ donation for Medicare, which funds the costly End Stage Renal Disease program. The authors also evaluate current efforts to restructure the allocation system of donated kidneys that tends to discriminate against older candidates on the basis of age. Dr. Satel and Dr. Hippen conclude that allowing some form of compensation for organ donors would be an effective way to increase the supply of transferable kidneys.
 
Although a robust economy and generous government assistance programs have decreased the incidence of poverty among elderly Americans, single, nonmetropolitan elderly women have not shared in this good fortune. Widowed or divorced, these women struggle to enter the work force late in life, and remain highly susceptible to lives of poverty and isolation. In this note, M. L. Reig uncovers and explains the reasons for the vast disparities in poverty levels of the elderly, and focuses on the plight of single elderly women living in rural America. The author considers the obstacles that plague this vulnerable population and concludes that increased research and funding, coupled with more access to transportation and social networking, will remedy this sad situation.
 
Recent misconduct has turned the national spotlight on the crematory industry, prompting many legislators to reevaluate state and federal laws governing the industry. Lawmakers have been forced to acknowledge that regulatory gaps exist, which leave the general public inadequately protected from potential wrongdoing. This oversight is particularly harmful to the elderly, who are more frequently subject to exploitative practices within the industry. In this note, Keith E. Horton examines the existing federal and state regulations that govern the industry, including the proposed Federal Death Care Inspection and Disclosure Act. Mr. Horton also examines the crematory industry's self-regulation through death care industry associations that generate standards of conduct. He proposes increased regulation and oversight, recommending that Congress substantially adopt the proposed Act. In addition, Mr. Horton suggests that states promulgate laws with more severe punishments to deter misconduct. He also encourages families to take practical, proactive steps to avoid potential misconduct or mishaps during the cremation process. These added safeguards are necessary, Mr. Horton advises, to ensure that consumers are adequately protected.
 
Recently, the Union Parliament has passed three agriculture related Acts which is commonly known as Farm Acts,2020 which gave rise to a big controversy among all the stake holders particularly the Union, the States and the Farmers because of the various socio-economic, political ,legal and constitutional issues which involved within these three controversial Acts. Validity of any law, whether passed by Union or State, is judged with reference to their respective jurisdictions as defined in the Constitution under the Chapter 11 & 7th Schedule. The paper argues that such unwarranted acts of the Center government is constitutionally and legally not tenable and it would leads to the breakdown of the Federal structure which shall ultimately affects the basic structure of Indian Constitution and Constitutionalism.
 
The growing need for hospice care in end-of-life scenarios has led to an increase in for-profit hospice providers receiving Medicare hospice benefit reimbursements. Though governed by the False Claims Act, these reimbursements carry a problematic risk of fraud due to the nature of hospice care. Many providers have been charged under the False Claims Act, as analyzed in this Article, however the systemic problems presented by for-profit hospice care will continue to plague the system and burden taxpayers until large-scale changes are made to the law. Such changes must include increased oversight of reporting standards, a reconsideration of the hospice care standard itself, and a reduction in for-profit provider certification.
 
REPORTING RATES BY POTENTIAL MALTREATMENT TYPE AND CAREGIVER TYPE
OTHER PERSONS BESIDES THE POLICE WITH WHOM THE BEHAVIOR WOULD BE DISCUSSED BY POTENTIAL MALTREATMENT TYPE AND CAREGIVER TYPE
This Article examines state statutes providing for the mandatory reporting of older adult maltreatment. These statutes are important in protecting older adults from potential victimization at the hands of both formal and informal caregivers. Nevertheless, Professor Brank, Ms. Wylie, and Mr. Hamm argue that these statutes undermine older adults’ autonomy and individual decision making because the statutes are modeled off the parens patriae framework of child maltreatment statutes. The authors believe these statutes effectively disempower older adults because older adults, unlike children, should be considered competent decision makers unless adjudicated otherwise. The authors contend that this system is the product of improperly tailored models as well as ageism. To cure this ill in state maltreatment statutes, the authors argue that states could amend their statutes to place responsibility on older adults to self-report abuse. To further this contention, the authors developed a novel empirical study to examine how likely a sample of older adults would be to self-report maltreatment, under what circumstances they would be more likely to report, and to whom they would report. The study results demonstrate that older adults are capable of recognizing and willing to report abuse in both formal and informal caregiver situations. The authors posit that this is strong evidence that older adult maltreatment could be better addressed through empowerment of older adults rather than borrowing from the child abuse system that further disempowers them.
 
Making decisions about life-prolonging treatment involves the consideration of moral values, bioethical principles and personal beliefs. Yet, physicians, patients and their relatives who are involved in these decisions operate within a legal framework that principally confines the decisions they make. The purpose of this article is to examine the influence of the law on physicians who face decisions about ventilation at the end of life. Such an examination is hardly discussed in the existing legal discourse, so this article proposes to fill this gap. To fulfill the purpose of the article, findings from an empirical study of qualitative interviews with Israeli physicians are presented. These findings are analyzed in relation to the position of the Israeli Dying Patient Act 2005, which regulates end of life. The analysis shows that there are differences between the practice of physicians and the legal rules that set limitations on the withdrawal of ventilation. These differences are particularly evident when physicians have to deal with a patient's request to 294 The Elder Law Journal V OLUME 24 withdraw ventilation, when a decision has to be made on whether to provide ventilation to a dying patient in emergency circumstances, and when family members are involved in the decision-making process. These findings lead to a discussion about the reasons for these differences, their possible implications and the means to bridge the gaps between practice and law. The discussion in this article has implications for jurisdictions that regulate end-of-life decision-making. The gaps detected between law and practice in this study and the methods physicians adopt when dealing with real-life situations within a legal framework that limits their professional judgment raise questions about how law-and policy makers should deal with discrepancies between law and practice. Furthermore, these gaps lead to a jurisprudential question regarding the role of law in society where end-of-life issues are subject to an ongoing public debate.
 
The author contextualizes the effects of public funding constraints on the creation (by the legislator) of elderly healthcare and on potential for its judicial review, examining the relationship between economic issues and the conflicts that arise because the healthcare that is actually provided for by law and covered by the public budget and administrative procedures falls short of individuals’ expectations and demands. The paper observes that the shortage of funds and public budgetary resources, although it creates a risk of a restricted scope of judicial protection of rights, is not necessarily an obstacle to judicial review of healthcare cases, nor does it prevent the exercise of any other statutory rights; to admit otherwise, would be an insult to the Rule of Law. Finally, the paper points out the need for a better understanding of the expression the ‘‘existential minimum’’ (Existenzminimum) of healthcare for the elderly, as guidance for legislators, based on the financial realities of nations in such a way as to make commitments only to such services as are actually possible, without generating frustrations in society.
 
Old people still have sex. This topic is largely avoided, or else treated as a source of base comedy, but the growing incidence of sexually transmitted disease among the elder population necessitates substantial, mature discussion. Elders are often under-educated about the risks of unprotected sex, and many do not even understand the diseases to which they are inadvertently exposing themselves. Although various state and federal regulations address the problem of disease and infection in nursing homes and similar communities, few cases have been decided regarding sexually transmitted illnesses. In order to combat a real and growing problem among our elder population, we must increase sex education for elders and begin to hold nursing homes civilly liable for the spread of infection among their populations. The combination of education and enforced liability would lead to a more comprehensive, proactive approach, ensuring the health and comfort of our elder population.
 
As a result of the Supreme Court's decision in P (By His Litigation Friend the Official Solicitor) v Cheshire West and Chester Council and Another; P and Q (By Their Litigation Friend the Official Solicitor) v Surrey County Council [2014] UKSC 19, [2014] COPLR 313 (‘Cheshire West'), we are presently witnessing something very unique, something historical. And that is the mass authorisation of deprivation of liberty of a significant proportion of the disabled population. Tens of millions of pounds are being diverted from health and social care budgets to enable such authorisations on an industrial scale. Up and down the country – as Art 5 ECHR takes hold – an additional layer of legal procedures are now required to oversee health and social care. We are in the throes of what might be called a great confinement. Whether the Supreme Court was right to lower the threshold for deprivation of liberty beyond that presently recognised by the European Court of Human Rights remains to be seen. No one will ultimately know unless and until Strasbourg is presented with a similar set of facts. This article does not question the policy behind the decision. No one would argue against the need for vulnerable people to have independent periodic checks on their welfare. Instead, and drawing upon an historical parallel, this article calls into question whether the right to liberty is likely to be the most effective means of achieving that policy aim. After all, it did nothing to prevent the torture of Winterbourne View. The legal landscape may well look very different in years to come, following the Law Commission's welcome intervention. But, in the meanwhile, the consequences of the acid test must be addressed. And there are lessons to be learnt from history to avoid what might otherwise turn out to be a not-so-great confinement.
 
Scholars have long called for elder law to become part of the larger study of gerontology. The authors conducted a qualitative, empirical study to determine the extent of connections between the fields of gerontology and elder law and to identify strategies for bridging gaps between the fields. As reported in this Article, we found that although both elder law academics and gerontologists indicate that both fields would benefit from research collaboration and cross-disciplinary teaching, the fields remain distinct with limited interaction. Based on these findings, we identify five key strategies for fostering meaningful connections between the fields. Finally, drawing on the expertise of the elder law academics and leading gerontologists interviewed as part of this study, we discuss how fostering such connections could work to the mutual benefit of the two fields and, potentially, improved policy-making in the area of aging.
 
Since the nineteenth century, the world’s population of older persons has increased dramatically. Older persons now comprise nearly twenty percent of the world’s population, and will likely comprise nearly thirty percent of it by 2040. Because of this increase, there has been a surge of interest in the development of Composite Indicators aimed at measuring the well-being of older persons. However, there has not yet been an effort to create an index that attempts to measure, compare, and evaluate the rights of older persons on a global-scale. In this Article, Professor Doron and Dr. Spanier justify the need for, and the process of developing, an index which looks at these rights. Their index is to be named the International Older Persons’ Human Rights Index, or “IOPHRI”, and it will be the first of its kind.
 
SOCIAL SECURITY RETIREMENT BENEFITS RULES FOR CLAIMANT AND NON-CLAIMANT SAME-SEX AND OPPOSITE-SEX PERSONS IN NMLRS 
The Supreme Court’s landmark decision in Obergefell v. Hodges gave same-sex couples the right to marry in all fifty states, correcting the injustice that non-marital legal statuses like domestic partnerships were intended to remedy. Now that same-sex couples can marry nationwide, the federal government and states that created domestic partnerships are considering how to treat couples in those statuses — specifically, whether to treat domestic partners like spouses and whether to continue to offer non-marital legal statuses at all. Three states face a particularly thorny question post-Obergefell: what should be done with domestic partnerships made available to elderly same-sex and straight couples at a time when same-sex couples could not marry. This Article examines why California, New Jersey, and Washington opened domestic partnerships to elderly couples. Although domestic partnerships in these states primarily responded to the needs of gay couples who could not marry, legislators also saw the elderly as sympathetic: unfairly prevented from remarrying for fear of losing benefits from a previous marriage. This Article drills down on three specific obligations and benefits tied to marriage — receipt of alimony, Social Security spousal benefits, and duties to support a partner who needs long-term care under the Medicaid program — and shows that entering a domestic partnership rather than marrying does not benefit all elderly couples; rather, the value of avoiding marriage varies by wealth and benefit. The Article concludes that as pressure mounts to fold domestic partners into marriage after Obergefell, legislators should examine whether domestic partnerships have become a province of the wealthy, undercutting the impetus for maintaining a second, collateral status.
 
The emergence of consumer-purchased monitoring devices in shared, intimate spaces presents new challenges to privacy and its protection. Web-enabled video cameras, which allow family members to monitor one another in the name of care, are among the most prevalent technologies in this vein. These cameras have recently gained traction for remote monitoring of vulnerable relatives in nursing homes, where they are intended to detect and deter abuse and neglect in residents’ rooms. But in so doing, cameras can create new privacy vulnerabilities for residents (many of whom have dementia and lack capacity for consent), frontline care workers, roommates in shared rooms, and others. State policymakers are grappling with these issues as they craft laws governing electronic monitoring in these complex public/private spaces, in which policymakers must balance competing—and sometimes irreconcilable—privacy and security interests.
 
Available for download at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3157134 The emergence of consumer-purchased monitoring devices in shared, intimate spaces presents new challenges to privacy and its protection. Web-enabled video cameras, which allow family members to monitor one another in the name of care, are among the most prevalent technologies in this vein. These cameras have recently gained traction for remote monitoring of vulnerable relatives in nursing homes, where they are intended to detect and deter abuse and neglect in residents’ rooms. But in so doing, they can create new privacy vulnerabilities—for residents (many of whom have dementia and lack capacity for consent), frontline care workers, roommates in shared rooms, and others. State policymakers are grappling with these issues as they craft laws governing electronic monitoring in these complex public/private spaces, in which they must balance among competing—and sometimes irreconcilable—privacy and security interests. This paper presents a comparative analysis of six state regimes that regulate the use of monitoring systems in nursing home resident rooms. We find that states attempt to protect privacy through a variety of interlocking privacy constraints: social, technical, and institutional safeguards that restrict how monitoring devices can be introduced and operated. Further, we map key relationships within which stakeholders hold specific privacy interests vis-à-vis one another, and describe how legal regimes do (and do not) address such interests. We consider implications for how privacy is conceptualized and regulated in multi-relational social contexts, in which the privacy and security interests of certain stakeholders necessarily impact the privacy experiences of others. Keywords: privacy, surveillance, monitoring, cameras, ethics, law, nursing homes, assisted living, public health, consent
 
Top-cited authors
Caroline Cicero
  • University of Southern California
Jon Pynoos
  • University of Southern California
Christy Mnishita
  • University of Hawaiʻi at Mānoa
Nancy J. Knauer
  • Temple University
Joseph A Hamm
  • Michigan State University