Elder Law Research Articles

Dementia training for lawyers: results from a pilot evaluation study and implications for building dementia capability in the legal profession

A growing number of Australians live with, or are at risk for, dementia. A diagnosis is a common prompt for people to seek legal advice to plan for their future. It is important that lawyers are equipped with up-to-date knowledge and resources to work effectively with clients in these circumstances. This article reports on a research project that involved the delivery of dementia-focused online training for lawyers and the piloting of an evaluation strategy. Legal practitioners in two Australian states were recruited for this pilot study. Wills/estates and elder law were common areas of practice. Data were collected through in-course activities (eg polls, discussion posts) and surveys administered at course completion and at four-month follow-up. The findings were positive both in terms of the suitability of the training and the feasibility of the evaluation model. This study also contributes insights into the role of the legal profession and lawyering practices in advancing the objectives of Australia’s National Dementia Action Plan.

SERVICE PROVIDER PERSPECTIVES ON ADVANCE CARE PLANNING USE IN RURAL DEMENTIA PATIENTS AND CAREGIVERS

Abstract Compared to urban areas, advance care planning (ACP) utilization remains very limited in rural communities. ACP earlier in the disease trajectory is particularly important for people with dementia (PWD) due to its progressive nature affecting their decision-making ability. Considering well-documented benefits of ACP in improving quality of end-of-life (EOL) care, the rural vs. urban disparity may indicate poorer EOL quality for rural PWD. Moreover, research on factors affecting ACP use among PWD has been primarily based in metropolitan/urban areas. To address the knowledge gap, this study aimed to explore barriers and current resources for ACP of PWD from perspectives of health and social service providers in rural Alabama. Using a qualitative approach, semi-structured face-to-face interviews were conducted with 10 health and social service professionals serving older adults and their caregivers in rural communities of Alabama. Thematic analysis was used to find recurrent themes and patterns from transcribed interview data. Our analysis revealed four areas of barriers to rural PWD’s ACP: (1) PWD’s and caregivers’ lack of knowledge about ACP, dementia, EOL care options, and available resources, (2) misconceptions of completing formal documentations, (3) emotional barriers, and (4) limited access to existing resources. Elder law clinic and local Area Agencies on Aging were the most prominent, existing resources for ACP in rural Alabama. Participants also showed a type of misconception that a lawyer and/or a notary is required for ACP. The study highlighted an urgent need for social policy in ACP education for both caregivers and service providers in rural settings.

Developing a Novel Advance Planning Tool for Dementia Patient Participation in Scientific Research.

AbstractResearch represents an avenue through which patients can contribute to the knowledge base surrounding their condition. However, persons with dementia cannot legally consent to participation in most scientific research. One possible avenue to preserve patient autonomy in the sphere of research is through an advance planning document. Scholars of medicine, ethics, and law have largely approached this topic from a theoretical angle, compelling the authors to develop and implement a tangible research-specific advance planning tool. In order to inform the creation of this novel legal instrument, the present study leveraged semistructured telephone interviews with cognitively intact older adults in the Upper Connecticut River Valley region of New Hampshire. Participants were prompted to reflect on their attitudes toward participation in scientific research, should they develop dementia. They were also asked to consider the possibility of incorporating research into their advance planning regime, their preferred format for a research-specific advance planning tool, and the potential relationship between an advance planning tool and their surrogate decision maker in the context of research participation. Qualitative analysis was employed to extract themes from interview responses, revealing a pervasive desire for an advance planning tool that embraces specificity, flexibility, practicality, and the integral role of the surrogate decision maker. Ultimately, through collaboration with physicians and an elder law attorney in the region, these findings were translated into a research-specific advance planning component within the Dartmouth Dementia Directive.

But Wait, There’s More--Commentary on “Training Students, Conducting Research and Engaging with Public Policy at the University of Hawai`i Elder Law Program”

This is a commentary and update related to an article published in the Public Policy & Aging Report, (PPAR) which provided “an overview of the University of Hawai`i Elder Law Program (UHELP), a program at the William S. Richardson School of Law at the University of Hawai`i that trains students, conducts research, provides service to the university and the community, and engages directly with public policy, with a focus on aging.”

Training Students, Conducting Research and Engaging with Public Policy at the University of Hawai`i Elder Law Program

Training Students, Conducting Research and Engaging with Public Policy at the University of Hawai`i Elder Law Program

Long-Term Care Services and Inter-American Human Rights in Argentina

Abstract Currently, long-term care services are considered socially accepted alternatives that meet the need for assistance and accommodation of older persons, especially in situations of dependency. Their design and expansion are conditioned by a new phenomenon: global aging and the multi-generational society. This article looks at the current situation of long-term care services in Argentina. It identifies the new standards of Elder Law set by the Inter American Convention on the Protecting of Human Rights of Older Persons and contrasts them with the Argentinian legal system on long-term care. It then analyses the clash between the way these services are currently provided and the new human rights approach, and considers the pioneering Argentinian judicial criteria concerning long-term care facilities. Finally, it points out the main aspects that need to be considered in order to implement the necessary social change and legal reform in Argentina.

Exploring Caregiver Challenges And Coping Mechanisms In The Midst Of Covid 19

This paper reports on the the challenges faced and coping strategies employed community-based care providers in a mid sized city in the Pacific Northwest in the midst of the Covid 19 pandemic. Researchers from a Palliative Care Institute conducted six online focus groups using the zoom platform. The project aimed at gathering important information on the experiences of caregivers as well as providing a virtual space where caregivers could support each other. A purposive sampling technique was used to gather data where participants were not chosen randomly but because they could best answer the research question. Membership of the focus groups included representatives from skilled nursing facilities, home-care agencies, elder law services, memory-care facilities, adult family homes, medical supply facilities, chaplains and nutritionists. Data gathered from the focus group were transcribed. A constant comparison method of analysis were employed and categories and themes were created from open coded data. Six key themes were identified which included: dealing with the impact of social isolation on caregiver-client relationships, assessing personal risk when dealing with clients living with dementia, facing challenges seeking continuing employment, struggling with social support and self care, using technology for professional and personal support and grappling with the challenges reentering a face to face environment once the pandemic is controlled.. Findings point to the importance developing and sustaining technological innovations that support workforce retention, fostering communication between the larger community, care providers and clients in various care settings and planning for safe reentry into a post Covid world.

Access to Justice and the Elderly: A Look at End-Of-Life Care Planning and Law Tech

The access to justice movement has grown immensely in the last century. With an emphasis on equal legal representation for all, the movement has incorporated technology to boost efficiency in providing quality legal services to underserved populations. The need for efficiency does not come as a surprise; the justice gap in the United States is vast. Every year, millions of Americans face significant civil legal problems without assistance from counsel and receive little to no legal advice. What is more troubling is that these Americans often qualify, usually based on income, for some type of civil legal aid, but they do not have access to such services. In particular, Elderly Americans face unique barriers to access to legal services not only based on income, but also on many other factors related to their health and status in American society. One facet of elder law that sees these unique barriers quite frequently is end-of-life care planning. The fields of law and technology must work together to (1) understand these unique barriers to the elderly, (2) develop and implement new technologies to provide civil legal services with flexibility, and (3) support the technology developed and implemented with unique user input.

Forensics in Geriatric Psychiatry Fellowship: Evolution and Practice Value

There are over 50 million adults aged 65 or older in the United States, representing 15% of the U.S. population (United States Census Bureau, 2018). There are too few geriatric psychiatrists to serve this population. Annually, small numbers of psychiatrists are choosing to pursue careers in Geriatric Psychiatry, with fewer than 60 individuals completing subspecialty training in Geriatric Psychiatry each year (ACGME, 2019). To meet the needs of this diverse population, clinical training in Geriatric Psychiatry must be comprehensive and evolve to ensure trainees graduate with requisite practical competence in areas within their purview. Medicolegal issues arise in the routine care of older individuals across different settings and situations, necessitating a firm understanding, knowledge and assessment skill of relevant medical, psychosocial and cognitive factors that may have legal importance. The teaching of forensic aspects of Geriatric Psychiatry varies across fellowship programs and Forensic Psychiatry fellowships often do not have an elder law component or explicit curriculum addressing the forensic needs of the older adult. Thus, Geriatric Psychiatry fellowship training is the ideal place to educate the future cohort of geriatric psychiatrists serving the older population in forensic matters. UCLA has developed an interdisciplinary curriculum involving integrative encounters combining the education of Geriatric Psychiatry fellows and law students and ending with the practical experience of a mock trial. Participants of this symposium will gain knowledge necessary to develop an integrative educational curriculum for Geriatric Psychiatry fellows that results in procurement of skills to serve as an expert witness, to write expert reports and to testify for probate or conservatorship hearings.

Security for Older Persons

Everyone has a right to social protection including access to social security and a standard of living adequate for the health and well-being of themselves and their families. Among the issues that fall within the umbrella of this chapter are the rights of older persons to an adequate standard of living including food, housing and investment in age-friendly infrastructures for cities and rural areas; income and social security including access to healthcare and related support services (e.g., geriatric services); access to work and productive resources; participation in political, cultural, educational and community activities; and a safe and secure living environment including protection from financial exploitation and other forms of elder mistreatment, violence and neglect. Social protection overlaps with other issues and topics related to older persons’ civil and human rights including eradication of poverty; caregiving and strategies for providing affordable high-quality long-term care; and elder law and access to justice. Social protection is not only important for older persons, but also for their family members and the rights and aspirations of older persons on this topic are aligned with those of other vulnerable groups within society including children and disabled persons and all persons who suffer from the adverse impacts of discrimination and exclusion.

FORENSICS IN GERIATRIC PSYCHIATRY FELLOWSHIP: EVOLUTION AND PRACTICE VALUE

There are over 50 million adults aged 65 or older in the United States, representing 15% of the U.S. population (United States Census Bureau, 2018). There are too few geriatric psychiatrists to serve this population. Annually, small numbers of psychiatrists are choosing to pursue careers in Geriatric Psychiatry, with fewer than 60 individuals completing subspecialty training in Geriatric Psychiatry each year (ACGME, 2019). To meet the needs of this diverse population, clinical training in Geriatric Psychiatry must be comprehensive and evolve to ensure trainees graduate with requisite practical competence in areas within their purview. Medicolegal issues arise in the routine care of older individuals across different settings and situations, necessitating a firm understanding, knowledge and assessment skill of relevant medical, psychosocial and cognitive factors that may have legal importance. The teaching of forensic aspects of Geriatric Psychiatry varies across fellowship programs and Forensic Psychiatry fellowships often do not have an elder law component or explicit curriculum addressing the forensic needs of the older adult. Thus, Geriatric Psychiatry fellowship training is the ideal place to educate the future cohort of geriatric psychiatrists serving the older population in forensic matters. UCLA has developed an interdisciplinary curriculum involving integrative encounters combining the education of Geriatric Psychiatry fellows and law students and ending with the practical experience of a mock trial. Participants of this symposium will gain knowledge necessary to develop an integrative educational curriculum for Geriatric Psychiatry fellows that results in procurement of skills to serve as an expert witness, to write expert reports and to testify for probate or conservatorship hearings.

Elder Law and Its Justifications: A Hybrid Vision Inspired by Family Law Jurisprudence

Abstract This Article calls for a departure from the ‘positivist–professional’ definition of Elder Law. It offers a new definition that demands answers regarding the justifications for this legal area and the normative base that should guide its content. The paper draws on findings from a qualitative study with grown children who have an elderly parent in need. These findings point toward a) a preliminary theoretical framework that justifies a special area of Elder Law, embracing and transcending that of anti-ageist law, and b) the relevance of Family Law jurisprudence as a normative inspiration for this legal area.

25 Years of Elder Law: An Integrative and Historical Account of the Field of Law and Aging

Abstract Twenty-five years have passed since my first exposure to the field of “elder law.” From a “young” master’s student I have become a law professor and a gerontologist who specializes in law and aging. The journey I have personally experienced in the last quarter-century provided me with some perspective regarding the field of elder law (or, as I prefer to call it, law and aging). In this Article, I try to summarize my experience and share some personal insights on the field. This is naturally a very personal and subjective experience. However, it may be constructive to others in shaping the next twenty-five years of the field. Hence, the goal of this Article is to provide both an integrative description of the developments in the field and some propositions for possible future directions.

A Framework for Theoretical Inquiry into Law and Aging

Abstract With populations aging worldwide, the need for appropriate and just public policy related to old age is critical. Elder law scholars can support the creation of such policy by advancing the theoretical understanding of the relationship between law and aging — understanding that can help policymakers identify and prioritize goals, and evaluate potential interventions. This Article aims to provide a framework for this work by distilling the core theoretical questions at the intersection of law and aging. It also challenges common assumptions that could pose a barrier to developing a more robust theory of law and aging. Specifically, it argues that scholarship in this area will be most fruitful if it recognizes that the study and practice of “elder law” are intertwined but not a single unified field, that “preferential” treatment of older adults can be a form of discrimination, and that old age is not a universal human experience.

Elder law and its subject: the contextualised ageing individual

AbstractElder law is often approached in terms of a ‘body’ of law. In this article, I argue for a contextualised and externalised perspective on the ageing individual as the subject of elder law. Elder law relates to the implications of law as an institutionalisation of society seen through the lens of older persons. The aged subject is a contested and differentiated social construct to be studied in relation to an externalised social ‘problem’ and properly contextualised. Whereas the ageing individual in the context of labour law and anti-discrimination regulation turns out to be remarkably young, the specific history of LGBT persons in society comes to the fore in cases where age intersects with a ground such as sexual orientation. The ‘ageing’ worker must thus be understood in relation to work as the dominant distributive order in society, and in relation to institutions and developments associated with work. Due to the role of age as a traditional social stratifier, the prohibition against age discrimination has been given a weaker format than have prohibitions against other kinds of discrimination, and the ban on ageism has failed to achieve a clear legal status. Deficiencies in the measures taken against age discrimination are also evident in their incapacity to address situations where age intersects with other grounds, resulting in a compartmentalised application and interpretation of discrimination bans, leaving vulnerable sub-groups without protection. In sum, elder law is very much a field in process and – although arguing for the added value of a contextualised perspective – it may for the time being suffice to say that ‘elder law is what elder law researchers do’.

To Legislate Filial Piety: Is the Elderly Rights Law a Panacea?

Abstract With the life expectancy being steadily increasing, caring for an ageing population presents a paramount challenge in China. The article explores the traditional value of filial piety which is perceived to underpin social norms and beliefs about caring for aged parents. Apart from state and social institutions, a particular regard is given to the reshaping of relationships between aged persons and their family members. Given filial piety being a core value in Chinese cultures, there is a societal interest in protecting a healthy relationship between parents and children in the twenty-first century. In terms of the relational dimensions of current theories, it remains unclear whether an individual rights-based approach would have traction in the Chinese context, or represents an unintended disseverance from the Chinese traditional core values. More critically, a new law requires adult children to visit their elderly parents regularly. With the ongoing attempts to theorize and reconceptualize elder law across jurisdictions, the research further examines emerging legal issues that have arisen in China, and seeks to ascertain the extent to which the law addresses the above inquiry.

Dismantling the Trusts and Estates Canon

This article steps back and reflects on how new perspectives from gender, race, class, and sexual orientation have challenged existing trusts and estates canonical narratives on a number of different levels, both in terms of deepening trusts and estates but also expanding it—that is, challenging core concepts of the field. Part I celebrates how new perspectives have challenged the core trusts and estates canonical narratives. These new perspectives challenge basic concepts of wealth and do the following: 1) bring in alternative conceptions of wealth and of inheritance; 2) question the biases of inheritance law as they reflect conventional social norms; and 3) contextualize the whole field so that it encompasses elder law, history, sociology, socioeconomics, and other areas. The second Part turns to the structure of wealth and its intergenerational transmission, drawing on sociological and demographic data to show just who is wealthy and how wealth transmission perpetuates inequality, Finally, based on asking what I call “the wealth question,” I suggest future directions that might lead to reexamination of some of the core tenets of trusts and estates: for example, wills may not be appropriate for everyone, and class differences in families show the need to include (or be more deliberate in excluding) alternative families.

'Said I, 'But You Have No Choice'': Why a Lawyer Must Ethically Honor a Client's Decision About Mental Health Treatment Even if It Is Not What S/He Would Have Chosen

This paper addresses a remarkably under-considered topic: the ethical standards for lawyers representing persons with mental disabilities. Although there is an extensive body of literature endorsing “zealous advocacy” as the standard for the criminal defense lawyer in “ordinary” cases, there is virtually no literature (or case law) on this question in this context. Our thesis is simple. We reject the model of “paternalism/best interests” that is regularly substituted for a traditional legal advocacy position, and a substitution that is rarely questioned. We believe this presumption flies in the face of statutory law, constitutional law, and international human rights law, and must be rejected. It also is contrary to the principles of the school of therapeutic jurisprudence with which we both firmly align ourselves. Moreover, this presumption is also contrary to all the valid and reliable empirical evidence that has been available for decades. When it comes to mental disability law, the law is clear: if there is an issue as to the client’s capacity to engage in autonomous decision-making, then the lawyer must aid the client in supported decision-making, rather than impose substituted decision-making. In our analysis, we also discuss how sanism, pretexuality, heuristic thinking, and false “ordinary common sense” contaminate the practice of mental disability law, and look at the implications of criminal law, elder law, juvenile law, caselaw implementing the Americans with Disabilities Act, and international human rights law (especially, the UN Convention on the Rights of Persons with Disabilities), and how the ethical obligations in these types of cases are no different than in mental disability law. And we discuss the multi-textured meanings of “competency” and “capacity” and how they affect the resolution of these issues, especially in the context of forced medication, psychiatric advance directives, and sexual autonomy.We conclude that client autonomy must be in the forefront of any client-attorney relationship, and an attorney must thus always follow their clients wishes except for in very limited cases (where there is a pre-existing finding of civil incompetency), that, if an attorney feels that a client is unable to make a decision completely on her own, the attorney should seek out others who might assist in supported decision-making; an attorney should never substitute her own judgment for “what is best”. We underscore that persons with mental disabilities have the same civil rights as all other persons; the existence of a question as to competency does not do mean that a person is stripped of all their decision-making power, or that the person’s expressed needs/desires are not valid.We acknowledge that pressure to ignore the client’s wishes will likely be the greatest in cases that involve the exact controversies (cases involving such civil rights as the right to refuse medication or the right to sexual autonomy) that create the most dissonance and are likely of the greatest importance to the client. Finally, we urge lawyers to take seriously international human rights law that mandates such supported decision-making, and to embrace the principles and tenets of therapeutic jurisprudence as a means of best ensuring the dignity of their clients and of maximizing the likelihood that voice, validation and voluntariness will be enhanced.

Elder Law Issues and Recent Developments 2018

These CLE materials provide an overview of the recent developments in Elder Law that occurred between 2017-2018. Topics include legislative and jurisprudential developments in consumer protection, crimes against the elderly, mandate and interdiction, and medical law changes. Attention is also given to the Tax Cuts and Jobs Act.

My Animal, My Support, and My New Home in a Retirement Village: Disability Discrimination, Assistance Animals and Old Age

The inequalities confronting older Australians have attracted considerable public attention, and significant attention in this journal (Elder Law Review). One issue that has not been addressed is how a decision by an older person not to be identified as a person with a disability has important implications for the options they then have to begin or continue to use animals to manage their medical conditions.