December 2007

The mission of the ABA Commission on Law and Aging is to strengthen and secure the legal rights, dignity, autonomy, quality of life, and quality of care of elders. It carries out this mission through research, policy development, technical assistance, advocacy, education, and training.

The 15-member Commission is composed of lawyers, judges, academics, and advocates, bringing an interdisciplinary perspective to a wide range of legal issues, including (1) long-term care; (2) delivery of legal services; (3) use of home equity as an income source; (4) health benefits programs; (5) assisted living and nursing homes; (6) dispute resolution; (7) pain management; (8) protective services; (9) elder abuse; (10) ethical issues; (11) health care decision-making; (12) end-of-life care; (13) guardianship and surrogate decision-making; and (14) individual rights. In 2005, the Commission added for the first-time an international perspective, with a new Commissioner from Canada who is a leader in elder law in that country. The Commission, assisted by a professional staff of six lawyers with years of elder law experience, exercises leadership in the areas of law and policy for older persons, and advocates for them within the ABA and the larger community.

At the August Annual Meeting, the Committee on Resolution and Impact Review selected the Commission as the first ABA entity to spotlight for a special in-depth profile to be distributed to the members of the House of Delegates. The selection was based not only on the stand-out number of Commission-sponsored resolutions taken to the House in the last five years, but on the broader policy impact those resolutions have had.

The Commission receives approximately 60 percent of its nearly $1.4 million budget from a variety of sources outside the ABA, via the ABA Fund for Justice and Education. These include grants and contracts from the Administration on Aging, U.S. Department of Health and Human Services, the AARP Public Policy Institute; Alzheimer’s Association; Blaustein Foundation; Borchard Foundation; Harvard Medical School; Retirement Research Institute; Stetson Law School; and the U.S. Department of Justice. The Commission also benefits from the ABA’s Marie Walsh Sharpe Endowment. Additional funding is obtained from consulting contracts and sale of educational material. In fundraising and in substantive content, the multi-disciplinary expertise of the Commission members and staff has been a key to moving ahead the work of the Commission.

The work of the Commission focuses heavily on three activities: scholarly policy and practice research and development; education (both professional and public); and technical assistance. Within the ABA, the Commission has liaisons from several sections and divisions, and seeks to support the work of all ABA entities that have an interest in aging-related legal issues. From outside the ABA, the Commission has worked collaboratively with AARP, the American Psychological Association, the Arc, the National Academy of Elder Law Attorneys, and the National College of Probate Judges, and scores of other groups to advance the legal rights, dignity, autonomy, quality of life, and quality of care of elders.

Commission work in the past year has focused on multiple areas of law and aging, as the following overview explains:

Legal Services Delivery

• Emeritus Rules. In connection with the Second Season of Service Commission, the Commission has focused on advancing and implementing limited practice rules that allow qualified retired or otherwise inactive lawyers to provide pro bono legal services under the auspices of experienced legal services or other non-profit programs. In June 2007, the ABA Standing Committee on Client Protection, in partnership with the ABA Commission on Law and Aging, was awarded a two-year ABA Enterprise Fund Grant for its proposed emeritus pro bono legal services for client protection claimants program. The purpose of the program is to connect a client who has suffered a financial loss due to the dishonest conduct of their lawyer with a retired or “emeritus” lawyer or an otherwise qualified inactive lawyer. The lawyer would assist the client, on a pro bono basis, in presenting a claim for reimbursement with the jurisdiction’s lawyers’ fund for client protection and perform the legal services necessary to complete the client’s underlying legal matter
• National Legal Assistance Support Work. The Commission continues to receive funding from the U.S. Administration on Aging as a National Legal Assistance Support Center. The grant supports administration of the Elderbar and Collaborate listserves; legislative updates on guardianship and health decisions; BIFOCAL, the Commission’s bi-monthly journal, which is distributed six times a year at no charge to ABA members and others on a subscription basis; research, support, and technical assistance on issues for which the principal work may have been completed under other grants that are now ended; work on the National Aging and Law Conference; time spent administering and reviewing proposals for the Partnerships in Law and Aging Program; educational programs for bar associations and aging services organizations; and other projects or publications.
• Partnerships in Law and Aging Program. In December, the Commission announced the RFP for the 2008 Partnerships in Law and Aging Grant Program. The Commission and the Albert and Elaine Borchard Foundation Center on Law and Aging, with additional funding from the Marie Walsh Sharpe Endowment of the ABA Fund for Justice and Education, co-sponsors the program, which is designed to encourage new, collaborative, community-based projects to enhance the legal awareness of older persons and to improve their access to the legal system. In 2008, the program offers eight year-long grants of $10,000.

Capacity Issues

• Symposium: In December, the Pacific McGeorge Law Review released its special issue containing the commissioned articles and recommendations of symposium sponsored by the Commission and others, entitled “Facilitating Voting as People Age: The Implications of Dementia.” The other sponsors were the Borchard Foundation Center on Law and Aging and the University of the Pacific McGeorge School of Law. The groundbreaking symposium commissioned seven papers and involved about 50 invited experts in law and aging, medicine, long-term care, voting technology, and elections administration. The symposium addressed critical issues of growing importance in light of the country’s exploding elderly population and the increased incidence of dementia and other cognitive impairments. The group fashioned a number of recommendations intended to protect voting rights of people with legal capacity and provide necessary assistance in voting, while protecting the integrity of the voting process. Key elements of the symposium recommendations were adopted by the House of Delegates at the August 2007 Annual Meeting. The Commission is working actively to promote implementation.
• Capacity Assessment Handbook Series: The Commission has partnered with the American Psychological Association to develop a series of handbooks on capacity assessment, one for lawyers and one for judges. Currently, the ABA/APA working group is developing a new capacity handbook geared towards psychologists. In a related collaboration with Rush University Medical Center, the Commission is developing a handbook as well as an online curriculum module for physicians on capacity assessment of older persons.

Guardianship and Conservatorship

• In addition to monitoring federal and state activities, staff responds to a steady stream of requests for information, education, and technical assistance regarding guardianship law and practice. Several concurrent guardianship projects are also in progress.
• Uniform Guardianship Jurisdiction Act. Since 2005, Commission staff served as observer/liaison to the National Conference of Commissioners on Uniform State Laws drafting committee on a proposed uniform guardianship jurisdiction act, which was approved by the Uniform Commissioners in August 2007. The proposed act will be brought before the House of Delegates at the Midyear Meeting in February 2008.
• Court Guardianship Files Study. Commission staff collaborated with Commissioner Dr. Jennifer Moye on a study of guardianship files in three states to collect data on the contents of the reports that judges receive in these cases. Publication is pending in The Gerontologist.
• Public Guardianship Study. A major study of public guardians and their wards has been completed. The first phase of the study, conducted last spring in tandem with the University of Kentucky and funded by the Chicago-based Retirement Research Institute, was the only comprehensive study of public guardianship since the late 1970s. The specific goals of the study were to gather baseline information on public guardianship administration and clients in all 51 jurisdictions; to conduct in-depth study of public guardianship systems in seven states and to compare the findings with those from the study of 25 years ago; to investigate differences in administration and client characteristics among five different models of public guardianship (social service agency, public administrator, court model, single state agency, and none); to compile state statutory provisions of public guardianship or guardianship of last resort in all U.S. jurisdictions; and to develop recommendations for policymakers and identify promising practices for public guardianship programs. Phase II of the project examined public guardianship in six additional states, completing the comparison with the states examined 25 years ago. The research involved two tiers of data collection—an in-depth survey with telephone follow-up interviews with public guardian offices in the six selected states, and site visits to gather data from key informants. The full report and executive summary of the Phase II project were published in December.
• Guardianship Monitoring Project. The Commission has completed its work with the AARP Public Policy Institute on a national guardianship monitoring project. Phase I of the project was a national survey, released in July 2006. Briefly, the study found that, despite progress, monitoring has significant deficits, including widespread lack of verification that incapacitated adults are cared for appropriately, minimal use of technology, lack of guardian training and inadequate funding. The second phase involved the conducting of site visits to four selected courts to learn about promising approaches to court oversight of guardians. The last phase was an invitational symposium held in February 2007, which brought together experts to review, discuss, evaluate and add to a menu to oversight techniques culled from the site visits, interviews, and previous writings. The final report, which highlights effective monitoring strategies intended to make a significant difference in guardian accountability, was published in December.
• Volunteer Guardianship Monitoring Programs. Also in December, the Commission published its report on volunteer guardianship monitoring projects. The report, titled Volunteer Guardianship Monitoring Programs: A Win-Win Solution, was supported by a grant from the AARP Foundation. The study aimed to determine the extent to which the AARP volunteer guardianship monitoring projects are still functioning, and to examine their experience and effectiveness in the 10 years since AARP discontinued support.
• Guardianship Data Study. Funded by a grant from the Administration on Aging through the National Center on Elder Abuse, Commission staff gathered baseline information about existing guardianship data; identified barriers to consistent data collection; and will provide a foundation for the later development of a working model for uniform data collection to aid in guardianship monitoring, policy, and practice. With the assistance of the National Court Statistics Project of the National Center on State Courts, the Commission developed a brief 7-question survey for the 57 state court administrators, and received 47 responses. A draft report is complete, and currently is under review by the Conference of State Court Administrators and the National College of Probate Judges.
• Representative Payee Project. In November 2006, the Commission assisted the AARP Public Policy Institute in conducting a policy forum on issues relating to Representative Payee accountability under the Social Security system and the Veterans Administration and their relationship to guardianship laws and proceedings. Commission law intern Nisha Thakker also conducted research and drafted a paper on veterans’ fiduciary affairs, which will be published in the December 2007 issue of the Commission’s journal Bifocal.

Elder Abuse

• National Center on Elder Abuse. After nine years, the Commission’s role ended as a partner organization of the National Center on Elder Abuse, funded by the U.S. Administration on Aging. Significant accomplishments for the NCEA included: creation of the elder abuse listserve (which has over 1750 members), technical assistance and training to thousands of professionals, review of products developed by other partners, analysis of state and federal laws related to elder abuse, and important papers, books, curriculums, and other publications on issues ranging from financial exploitation by bank personnel, national sources of data about elder abuse, guardianship data collection, abuse of powers of attorney, and neglect.
• Completed Projects. In the field of elder abuse prevention, the Commission recently completed its work on a number of projects, including: a model-training curriculum on undue influence for law enforcement and prosecutors; the development of elder abuse fatality review teams and a corresponding promising practices/replication manual; as a subcontractor to the Stetson University College of Law’s Consumer Protection Education Project, a replication manual for law schools to help them implement programs to educate older consumers, their families, and professionals about consumer fraud; and, as a subcontractor to the American Probation and Parole Association, the Commission completed its work with Justice Solutions, a nonprofit national victim services organization, to develop a national model curriculum on elder abuse for probation and parole officers.
• Durable Power of Attorney Study. Commission staff are currently working on a grant from AARP’s Public Policy Institute to address durable power of attorney abuse by studying the consumer protection provisions of the new Uniform Power of Attorney Act and comparing them to existing provisions in state statutes

Health Decisions

• The Commission is working with several other groups to create a National Health Care Advance Planning Day, this year set for April 16, 2008. The Board’s Operations Committee is considering a request for ABA co-sponsorship as of this writing. The vision for the day is that, throughout the country, healthcare providers, professionals, chaplains, lawyers, and others will participate in a massive effort to highlight the importance of advance healthcare decisionmaking and promote the completion of advance directives.
• The Commission continues to respond to a steady stream of inquiries on end-of-life policy and practice issues. Related efforts include a project to support replication of the Commission’s health proxy guides, first developed in Maryland in collaboration with the Maryland Attorney General. To date, North Dakota and New Hampshire have replicated the proxy guides for use in their states and several other states have the project under consideration.
• POLST Study. Commission staff completed work as a principal investigator on a 50-state survey of legal and regulatory barriers to end-of-life decision-making medical orders of the type first developed in Oregon under the name “Physician Orders for Life-Sustaining Treatments” or POLST. The study was conducted by the POLST Paradigm Initiative Taskforce through a collaborative partnership among West Virginia University, Oregon Health & Science University, the ABA Commission on Law and Aging, and the National Hospice and Palliative Care Organization. Publication is pending in the Journal of Law, Medicine and Ethics.
• Rand Report. The Commission completed a legal background paper for Rand, in connection with a report to Congress on the status of health care advance directives. The report is being prepared under the oversight of the Office of the Assistant Secretary for Planning and Evaluation, DHSS.

Mediation

• The Commission has long been involved in promoting the use of mediation and other forms of dispute resolution to address conflicts common to elders—including problems in long-term care, guardianship, caregiver relationships, consumer disputes, disability disputes, bioethics, and health care. In April 2007, staff served as faculty at the First National Symposium on Ethical Standards for Elder Mediation, in Philadelphia.

Housing

• The Commission’s work in this regard continues to focus on consumer legal issues in housing options for older people, including assisted living, continuing care retirement communities, fair housing for frail elders, and reverse mortgages.
• Housing Guide. Commission staff wrote, in collaboration with Eldercare Locator, a national referral service funded by the Administration on Aging under a grant to the National Association of Area Agencies on Aging, Housing Options for Older Adults: A Guide for Making Housing Decisions. Staff is currently working on an instructor guide that may be used by professional staff when training case managers, consumers, and others on housing options.
• Matthew Bernt, a Commission intern, wrote a paper titled “Securing Residents’ Fair Housing Rights: A Survey of State Assisted Living Facility Laws Incorporation of the Provisions of the Fair Housing Act.” The paper was published in the November issue of the Commission’s journal Bifocal. A presentation was made on its findings at the 7th Annual National Aging and Law Conference, with another planned for the conference of the National Council on Aging/American Society on Aging in March.

Medicare

• Alzheimer’s/ABA Medicare Advocacy Project. Since 1998, the Commission has received funding from the Alzheimer’s Association to conduct a Medicare Advocacy Project to address Medicare coverage issues for people with Alzheimer’s disease and to respond to Alzheimer-related Medicare inquiries from local Alzheimer’s Association chapters and advocates throughout the country. The project advocates on behalf of beneficiaries with Alzheimer’s disease to educate the Centers for Medicare and Medicaid Services, carrier medical directors, and policy makers on the barriers to Medicare coverage for this population. For the last two years, the project has focused much of its efforts on implementation of the new Medicare drug benefit.

Medicaid

• Estate Recovery. Under a contract with the AARP Public Policy Institute, the Commission published this year the results of an extensive study in connection with Medicaid Estate Recovery, titled Protections in Medicaid Estate Recovery: Findings, Promising Practices, and Model Notices. The study examines several key aspects of consumer protections under estate recovery policies and practice, including notice; public information; hardship waivers; collection procedures outside of probate; and data collection. The report summarizes the relevant provisions in federal statutory law and guidelines and details aspects of notice, consumer protection, and promising practices for replication.

National Aging and Law Conference

• The Commission continues in its role as co-sponsor of the National Aging and Law Conference, held this year on October 10-13, 2007, in Arlington, Virginia. Staff contributed significantly to the planning and implementation of the conference, which provides an opportunity for lawyers and other professionals across the country, and internationally, to come together and discuss the many issues surrounding legal problems of older persons and to learn about the latest issues and trends. Confeence follow-up will include the release of podcasts of selected sessions from this year’s conference will be made available free-of-charge on the ABA Website, funded by a grant awarded to the Commission from the ABA Standing Committee on CLE’s Underserved Lawyer’s Fund.

Social Security

• The Commission continues to monitor federal policy, legislation and regulation, and other developments affecting the Social Security and Supplemental Security Income programs as they may impact older persons who are retired or who have disabilities.
• Mock Social Security Disability Hearing. On September 6, 2007, the ABA sponsored a Mock Social Security Disability Hearing at the U.S. Capitol. The program was designed to educate Congressional staff and members of Congress about the practical side of Social Security disability law and give attendees the opportunity to observe what happens at Social Security Disability Hearings, which are generally closed to the public.
• The cumulative expertise of Commission staff and members has continued to be in great demand during the past year. In 2007, the professional staff have provided background on an increasingly regular basis to the media and to policy-makers on a broad range of law and aging issues; presented at more than twenty continuing legal education programs and spoken at more than two dozen national and regional meeting of professional groups in the field of aging; and continued to serve advisory functions to more than two dozen cross-disciplinary projects nationally and regionally.
• The Commission recently received its three-year evaluation by the Committee on Scope and Correlation, which found that “the Commission is active and is not engaging in a function that unnecessarily overlaps or duplicates the activities of other ABA entities.” The Commission looks forward to continuing success in helping to shape the response of the legal profession in meeting the law-related needs of older individuals.

Respectfully submitted,
Joseph D. O’Connor
Chair, ABA Commission on Law and Aging
December 2007

Staff Contact: Charles P. Sabatino
Phone: 202-662-8686
E-mail: Sabatinoc@staff.abanet.org