June 2008

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, and where possible a cross-national perspective, to a wide range of legal issues, including (1) health and long-term care; (2) delivery of legal services (3) elder law ethical issues; (4) income maintenance programs; (5) retirement housing, assisted living and nursing homes; (6) dispute resolution; (7) elder abuse and protective services; (8) capacity, guardianship and surrogate decision-making; (9) health care decision-making and end-of-life issues; and (10) disability and individual rights. The Commission, assisted by a professional staff of six lawyers, exercises leadership in the areas of law and policy for older persons, and advocates for them within the ABA and the larger community.

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 U.S. Department of Justice, the AARP Public Policy Institute; the Alzheimer’s Association; the Albert and Elaine Borchard Foundation, and others. The Commission also benefits from the ABA’s Marie Walsh Sharpe Endowment. In fundraising and in substantive content, the multi-disciplinary expertise of the members and staff has been a key to moving ahead the work of the Commission.

The work of the Commission focuses heavily on three modes of activity: 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, the National College of Probate Judges, the Alzheimer’s Association, and scores of other groups to advance the legal rights, dignity, autonomy, quality of life, and quality of care of elders. The Commission is increasingly called upon to serve as an advisor to federal agencies, such as the Social Security Administration, Centers for Medicare and Medicaid Services, National Institute of Justice, Centers for Disease Control and Prevention, Housing and Urban Development, and others.

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

Social Security

• In April 2008, the ABA Board of Governors approved the Commission’s request, cosponsored by the Administrative Law Section and Judicial Division, for an expedited policy resolution to address the Social Security Disability claims backlog crisis. The resolution calls for sufficient administrative funding for the SSA “that permits the [agency] to provide its mandated services in a timely manner, promptly and fairly adjudicate applications for disability insurance and supplemental security income benefits, overcome significant disability claims processing times and backlogs, and build the infrastructure necessary to manage the expanding workload challenges presented by serving the aging baby boomers filing disability and retirement claims.” Since the adoption of the resolution, the ABA has established a task force to work with the SSA to address these issues.

Legal Services Delivery

• Emeritus Rules. In connection with the Second Season of Service Commission, staff 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. As this project winds down, its two primary products have been: (1) a Web site and (2) a brochure that the Commission produced on emeritus attorney programs. The Commission continues to track and provide technical assistance concerning state activities on emeritus attorney rules and programs; continues work on two ABA Enterprise Fund proposals involving emeritus attorneys; and participates on an Access to Justice Chairs group.

• 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 and publications.

• Partnerships in Law and Aging Program. In May 2008, the Commission awarded six project proposals with year-long grants of $10,000 each as part of the 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-sponsor the program. The program 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 successfully transitioned to an online application process.

Capacity Issues

• In December 2007, the Pacific McGeorge Law Review released its special issue containing the commissioned articles and recommendations of a 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 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 forged a number of recommendations, key elements of which were adopted by the House of Delegates at the August 2007 Annual Meeting. The Commission is beginning a new project July 1, 2008, to create a clearinghouse of best voter assistance practices and to conduct a “mobile polling” demonstration project in Vermont in connection with the November 2008 election.

• Capacity Assessment Handbook Series: The Commission has partnered with the American Psychological Association to develop a series of handbooks on capacity assessment. To date the partnership has published two books, one for lawyers and one for judges. The books are available in print and electronic formats. 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 and an online curriculum module for physicians on capacity assessment of older persons.

Guardianship and Conservatorship

• In addition to monitoring federal and state activities, staff respond 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 and the ABA in February 2009. The Commission is actively seeking funding to launch a national education initiative to promote adoption of the Act in all states.

• Guardianship Studies. Three major studies and reports on critical aspects of guardianship were completed:

• Guarding the Guardians: Promising Practices for Court Monitoring, AARP Public Policy Institute (Dec. 2007).
• Public Guardianship After 25 Years: In the Best Interest of Incapacitated People? (Jan. 2008).
• Volunteer Guardianship Monitoring Programs: A Win-Win Solution, ABA Commission on Law and Aging (December 2007)

• U.S. Senate Special Committee on Aging.  The Commission chair, Senator Gordon Smith, and an AARP spokesperson, spoke at a joint press conference December 13, 2007, in conection with the release of the above noted studies and a new report of the Committee on Aging, entitled: Guardianship for the Elderly: Protecting the Rights and Welfare of Seniors with Reduced Capacity.

Elder Abuse

• Elder Justice Act. There was important progress on the “Elder Justice Act” (EJA) – H.R. 1783 and S. 1070 – just last week.The Commission submitted a statement on behalf of the ABA in support of the Elder Justice Act bill, H.R. 1783, at a hearing before the Subcommittee on Crime, Terrorism and Homeland Security of the House Judiciary Committee on April 17, 2008.

• National Institute of Justice Assessment of Court-Focused Elder Abuse Initiatives.  Staff continue work with former Commissioner Pam Teaster on a project to assess the five existing court-focused elder abuse initiatives. As part of the research, staff will interview key stakeholders, including judges, court administrators and other personnel, prosecutors, criminal defense attorneys, civil lawyers, law enforcement personnel, adult protective services professionals, victim services professionals, and aging/ disability service providers and advocates, as well as review case files and conduct site visits.

• Durable Power of Attorney Study. Commission staff recently completed the report for the AARP Public Policy Institute comparing consumer protection provisions of the new Uniform Power of Attorney Act with existing provisions in state statutes.

• Staff continue to consult and act in and advisory capacity in the elder abuse field, including participation on a technical advisory group for a Congressionally-mandated study of the feasibility of developing uniform national definitions on elder abuse, and on a project of the Centers for Disease Control and Prevention to develop definitions of elder abuse for purposes of public health surveillance.

Health Decisions

• The ABA, through the Commission, worked with several other groups to create the first National Health Care Advance Planning Day, which took place on April 16. 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. In its first year, there was participation in all 50 states, including activities sponsored by 75 national organizations and 375 community organizations. A few days before the event, the ABA and the American Medical Association posted a joint op-ed piece on their Web sites.

• The Commission continues to respond to a steady stream of inquiries on end-of-life policy and practice issues. Related efforts include an annual update of health decisions laws in the 50 states, and a project to support replication of the Commission’s health proxy guides, first developed in Maryland.

• POLST Study. Commission staff, with co-authors, completed work 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 Commission has submitted a recommendation calling for legislative and policy support for POLST, which will be considered at the 2008 annual meeting.

• Rand/ASPE 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 (ASPE), U.S. Department of Health and Human Services.

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.

Health Care

• 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 past two years, the project has concentrated on implementation of the Medicare drug benefit. Currently, the focus has shifted to the Medicare hospice benefit, notably how it has changed from a benefit primarily for individuals with cancer to a benefit for individuals with chronic illnesses, significantly increasing the costs of providing the benefit.

• N.Y. State Compact. The Commission worked with the New York State Bar Association to achieve successful adoption of their recommendation before the House of Delegates in February 2008, promoting the development and assessment of innovative long-term care programs such as the “Compact for Long-Term Care” as a reasonable and fair solution to long-term care financing.

National Aging and Law Conference

• The Commission continues in its role as co-sponsor of the National Aging and Law Conference. Following the 2007 conference, the Commission posted on its Web site a series of podcasts of selected sessions, made available free-of-charge by a grant awarded from the ABA Standing Committee on CLE’s Underserved Lawyer’s Fund. These complimentary CLE programs can be downloaded in an MP3 format, with the accompanying written course materials in PDF, and the self study CLE certificates. Currently, planning is underway for the 2008 conference, scheduled for December 3-6, in Arlington, Virginia. The Commission contributes significantly to both 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.

The cumulative expertise of Commission staff and members continues to be in growing demand. In the first five months of 2008, the professional staff have been engaged in ten substantive grant-funded projects; presented at twelve CLE program in ten states; gave presentations at five national professional association meetings and five local/regional meetings; and served in an advisory capacity to ten federal governmental agencies.  Additionally, they respond to issue background requests from the media and policy-makers on a range of law and aging issues on a fairly regular basis.   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
June 2008

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