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Abstract:
In Anglo-American law, the concept of mental "capacity" is used to measure the degree to which an individual has the "mental ability to understand the nature and effects of one's acts" as determined by a medical or cognitive assessment of an individual's mental ability. Based on an individual's mental capacity, the law decides whether the individual had sufficient capacity to engage in the action in question. The legal concept of mental capacity, therefore, is the basis for "when a state legitimately may take action to limit an individual's rights to make decisions about his or her own person or property." Different actions require different levels of mental capacity.

The more complex the act or decision, the greater the level of capacity required; the requisite level of capacity varies with the situation. The required degree of legal capacity can be thought of as existing on a spectrum so that the legal capacity sufficient to perform certain acts may be considered insufficient to perform others. For example, the legal capacity required to make a will ("testamentary capacity") is lower than that required to enter into a valid contract. Consequently, in many jurisdictions, even though an individual has been found to lack the capacity to contract, the individual may still be found to have the requisite capacity to make a valid will.

This article discusses the levels of capacity required to undertake a variety of legal acts, including executing valid wills, trusts, gifts, powers of attorney and contracts. This article also explores a doctrine that is closely related to the determination of testamentary capacity, the doctrine of "undue influence." Undue influence lies in the shadow land between testamentary capacity and the capacity to contract and is used by probate courts to invalidate the will of an individual whose capacity level is high enough for testamentary capacity, but too low to enable the testator to resist the importuning of another.

sufficient capacity, mental capacity, competency, doctrine of undue influence, legal capacity, testamentary capacity, contractual capacity, wills, trusts, gifts, powers of attorney, autonomy, probate law

Abstract:
A guardian has a fiduciary relationship to the ward, but what exactly does that mean? Certainly a guardian is expected to act in the best interests of the ward, but how are those interests determined? Guardians are encouraged to act just as the ward would, but that implies that a guardian is closer to being an agent of the ward than a fiduciary. Yet a guardian must reconcile that agent like duty with obligations to the court who appointed him. In light of the perceived value of implementing the wishes of the ward, increasingly, appointing courts have come to treat guardians less as agents of the court and more as agents of the ward.

agent, attorney-in-fact, best interests, fiduciary, guardian, reasonable person, substituted judgement, surrogate, ward

Abstract:
Insurance scams often target older people, who may fall prey to misleading sales pitches and false promises of a secure future. Trial lawyers can help.

insurance fraud, elderly, lawsuits, insurance companies, life insurance, annuities, viatical settlements, ballooning premiums

Abstract:
Estate planners are accustomed to clients who own property in more than one state and consequently are familiar with the planning exigencies required by the multistate estate. Now, however, estate planners increasingly find themselves encountering clients who own property located outside of the United States, who present multinational planning concerns. This article highlights some factors to consider and problems to avoid when creating an estate plan for a client who owns "foreign" assets.

international estate planning, multinational estate planning, property, multinational property, foreign assets, jurisdiction, United States clients, real property, personal property

Abstract:
Guardianship comes within the special province of judges. In the great majority of guardianship hearings, there is no jury. The presiding judge is the sole arbiter of whether the alleged incapacitated person meets the legal standard of mental incapacity and whether that person would benefit from the appointment of a guardian. If a guardian is appointed, the judge determines the type and extent of the powers granted to the guardian. Of course, the judge is not simply free to follow his or her own instincts or desires, for the judge is bound to determine the facts carefully and apply the law faithfully. Still, as the saying has it, "reasonable persons can disagree," and the judge has some latitude in how he or she responds to the facts and circumstances that arise during the guardianship hearing. Within that zone of discretion, the judge may have a range or set of choices, any of which is defensible on legal and ethical grounds. No matter which course of action the judge takes, his or her decision is unlikely to be overturned on appeal. How, then, does a judge decide what to do? Put another way, what motivates a judge who presides at a guardianship hearing and how do those motivations translate into judicial action?

guardianship, power of attorney, judicial power, judicial discretion, elder law, aging, mental incapacity, Seniors' Rights

Abstract:
In devising programs to assist the elderly, the United States has, for the most part, rejected the social welfare model, which is premised on a belief that the government has an obligation to care for the elderly. Many Americans believe that beyond a minimum safety net, the government should not, and likely cannot, save everyone from every bad outcome. Individuals must accept personal responsibility and care for themselves.

As a result of this conflict in values, the United States does not usually operate programs modeled on social insurance, but rather provides care to those identified as 'needy'. The degree of economic assistance that the government ought to provide to the elderly is a political question open to challenge and debate. Even the premise that the government might want to assist the elderly is open to question in the minds of some.

Consequently, the fundamental question is not, 'How much should the government assist the elderly?' but rather, 'Should the government assist the elderly?' The answer to the question of whether the government should assist the elderly is almost always 'yes,' but merely asking the question colors the debate as to who the government should assist, in what way, and how much assistance should be provided.

With subsidies for the elderly open to challenge, advocates for the elderly must be prepared to provide answers to the three basic questions: 'Who among the elderly should the government assist?' 'What form should the assistance take?' and 'How much assistance should be provided?'

elderly, economic assistance, Medicare, federally subsidized health-care, subsidized healthcare, social welfare, social insurance, Medicaid, long-term care insurance, Social Security, social-insurance programs, economic security, reform

Abstract:
Current attempts to ameliorate nursing home market failure have proven inadequate. What is needed is a more dramatic economic empowerment of nursing home residents. Enhanced use of regulation, encouraging advocacy for nursing home residents, better dissemination of information about nursing home quality, and more aggressive ombudsmen programs would help. In the end, however, the only true solution to market failure is to attack it head-on by creating meaningful consumer choices for long-term care.

nursing home reform, nursing home care, long-term care, elder care, market failure, quality of care, substandard care, public relations, costs, Medicaid, Certificate of Need program, competition, Center for Medicare and Medicaid Services

Abstract:
Nursing home residents, their spouses, family members, and advocates who are dissatisfied with the quality of care provided by a facility have several options. they may complain to the nursing homes, threatening to or actually moving out of the nursing home, file a complaint with the state nursing home ombudsman or, most dramatically, sue the nursing home. As residents and their families increasingly conclude that the best option is to sue nursing homes, the effect of that litigation will help determine the manner in which nursing homes operate, their financial well-being and , quite possibly, even their very existence.

Every time a resident successfully sues a nursing home, the standard of what is acceptable care is modestly redefined. Because the common law is the recorded expression of what courts have found in prior cases, each new case is akin to adding yet another brick to the wall of the common law of nursing homes (Madden, 1996). The interpretation of statutes and regulations is also fleshed out in the context of the individual facts and circumstances of each reported case. . . .It is the hope of improving the quality of care for other residents that energizes some residents to sue for negligence and to endure the stress and delay of litigation. For these litigants, the lawsuit serves to bring some measure of value to what they have endured. Yes, they have suffered, but by suing they help save other nursing home residents from negligent care. Out of the despair of their pain and suffering comes hope for others. The hope for reform supports litigation.

nursing home reform, nursing home litigation, nursing home care, long-term care, elder care, quality of care, substandard care, public relations, costs, nursing homes, litigation, statutes, regulations

Abstract:
With an estimated 33 million Americans age 65 and older and more than 4 million age 85 and older, paying for long-term care is a national concern. In 2004, there were over 1.4 million nursing home residents. The demographics point to ever increasing numbers of older adults in need of care and assistance. The need for long-term care seems certain to increase in the years to come. While age alone does not equate with poor health, still, over 770,000 individuals age 85 or older reside in nursing homes. And adults age 85 or older are the most rapidly growing elderly age group. This article explores the various ways in which older individuals can pay for long-term care, including both public and private sources of payment.

Long-term care, payment, expense, nursing home, assisted living facility, in-home care, later life planning, savings, retirement savings, annuities, family assistance

Abstract:
In 1993, Professor Frolik helped initiate The Elder Law Journal's first issue with his essay, The Developing Field of Elder Law: A Historical Perspective. Today, with the publication of the tenth volume of the Journal, Professor Frolik looks back over the past decade to reflect on the changes that have occurred within the field. In the past, he writes, Medicaid planning was thought by many to be the core of an elder law practice. This was not the case ten years ago, however, and it is certainly not true in the twenty-first century; elder law attorneys must practice in multifarious areas that, taken together, constitute late life legal planning. In his essay, Professor Frolik examines some of the fields that interface with elder law, such as estate planning, retirement planning, and health care. He concludes by describing some of the reasons that elder law's acceptance in the academy has been slow, despite its growth in private practice, and notes the difficulties young attorneys face in receiving elder law training.

elder law practice, development, legal education, training, estate planning, retirement planning, health care, health insurance

Abstract:
The phrase “aging in place” is not just an idiosyncratic choice, not just an ideal that must give way to “practical” realities. For staying “in place” is for most elderly not a luxury, not a mere preference, but a silent cry to be recognized as a person. For too many elderly, to be asked or forced to move is not just an inconvenience or an unfortunate event; it is the first large step towards oblivion. Conversely, to “age in place” or just to “stay put” continues the arc of life, which although drawing to end, is not yet completed. A move to a nursing home is the loss of those little freedoms such as when and what to eat, that so erode personal autonomy that make the nursing home seen as the waiting room of death. Conversely, to stay “at home” means that life continues no matter how diminished or reduced in scope.

Thus it is that helping clients to age in place must be an essential aspect of elder law planning. For if our legal advice does not support, encourage and ultimately succeed in enabling the client to age in place, or in the vernacular, to stay put, then our planning has fallen short. While we may not have failed our client, we have done less than our best.

aging in place, elderly, elderly client, nursing home, assisted living community, sense of self, identity, elder law planning, legal responsibility, elder law attorneys, ageism

Abstract:
Because of our aging population, attorneys will be dealing increasingly with clients age 65 or older. Pennsylvania, with almost 16 percent of its population age 65 or older, is second only to Florida in the percentage of older residents. While older persons have a variety of concerns, one of the essential elements in the quality of their lives is the cost and appropriateness of their housing.

Attorneys with older clients, particularly attorneys practicing elder law, can expect to find themselves involved in assisting the client to select appropriate housing. But what is “appropriate housing"? And what are the options?

This article examines the varied housing choices available to the elderly, and what attorneys should consider as they guide elderly clients who are facing these decisions.

housing choices, elderly, aging in place, assisted-living, quality of life, nursing home, continuing care retirement community, CCRC, physical health, mental capacity

Abstract:
Imagine yourself in a room with 100 persons, all age sixty. Of the group, fifty-three are women and forty-seven are men. Racially and ethnically they mirror the population of Americans age sixty. Now answer the question: "Before the 100 die, how many will require long-term care and, on the average, for how many days and at what cost?" Give up? So do I. While it is common knowledge that many of us will need long-term care, no one seems to know how many will need such care or for how long. And some of you will ask, 'What do you mean by 'long-term care?'" Here again, there is no consistent answer. Certainly, care provided in a nursing home and probably in an assisted living facility qualifies as long-term care, but are all residents of board and care homes receiving long-term care?

And what of those receiving assistance from a spouse? How much assistance is needed to be considered long-term care? What of the elderly who live with a child or a relative? Surely some do so because of the need for care, but not all. We have no knowledge of how many elderly who live with another do so primarily to receive assistance or care. Other elderly live alone and contract for care in their home, but here too we have no idea of the number. Other forms of care may or may not qualify as providing long-term care. For example, is adult day care long-term care? Are the elderly, who spend some or all of the day at a senior services center, recipients of long-term care or just lonely individuals in search of companionship and a good meal?

There they are, those 100 persons, without a clue as to whether they need long-term care or how much it might cost them. All they know for certain is that they face a potential risk that could bankrupt many of them. In this essay I address the dire need for and obvious advantages of subsidized, mandatory long-term care insurance as a solution for their dilemma - and for yours and mine.

long-term care insurance, mandatory, subsidized, health care, health insurance, Medicaid, aging, elder law

Abstract:
America’s retirees are faced with a potential financial disaster. Economic security in retirement has long depended on Social Security, private savings and employer provided retirement plans. While much attention has been paid to the financial problems of Social Security and the lack of private saving for retirement, little attention has been paid to an alarming development in employer provided retirement plans: the likely inability of retirees during the long years of their retirement to successfully manage their retirement funds accumulated in 401(k) and similar accounts. We as a society have set up a funding system for retirement that assumes retirees will be able to successfully manage their IRAs for the 20 or 30 years of retirement. We know, however, that most will not. Some will lack the basic intelligence or knowledge of finance take on the risk, oversight and planning. Some will be fine managing an IRA at age 65, but lose the ability due to physical decline. Finally, millions of aging IRA owners will lose the ability to manage their finances because of the lost of mental capacity, primarily because of dementia. Asking individuals to husband a lump-sum payout from a 401(k) retirement account for the 20 to 30 years of retirement as they physically and mentally decline is a recipe for disaster. Unless we provide a more secure way to stretch retirement dollars into the twilight of retiree lives, we can expect to see more and more elderly retirees slide into poverty. The solution is to create federally guaranteed life-time annuities that retirees can purchase with the funds accumulated in their 401(k) retirement accounts.

retirees, retirement plans, pension plans, economic security, 401(K), lifetime annuities, federally guaranteed lifetime annuities, estates, IRA, Individual Retirement Account, ERISA

Abstract:
The undue influence doctrine paradoxically supports freedom of testation by permitting individuals of marginal mental capacity to write valid wills by providing courts with an alternate avenue of intervention. If the doctrine did not exist, courts could invalid wills in these cases only by finding that the individual lacked testamentary capacity. But to do so would raise the level of capacity needed to write a will and so invalidate many more wills than are currently voided by a finding of undue influence. The doctrine operates as a safety valve by establishing a rule that allows courts to invalidate wills, which contain plans of distribution that the court finds shocking or objectionable. It permits a very low standard of testamentary capacity while simultaneously providing a means to nullify suspect wills of marginally capacitated testators. In the words of Gilbert and Sullivan, "A most engaging paradox."

This article was published in International Journal of Law and Psychiatry, Vol. 24, Larry H. Frolik, The Strange Interplay of Testamentary Capacity and the Doctrine of Undue Influence: Are We Protecting Older Testators or Overriding Individual Preferences?, p. 253-266, Elsevier (2001).

estate planning, probate estate, mental capacity, marginal capacity, doctrine of undue influence, testation, intestacy, probate, Uniform Probate Code, will, forced share, contest, challenge, revocation, decedents, rights, court intervention