N A E L A - National Academy of Elder Law Attorneys
N A E L A - National Academy of Elder Law Attorneys
N A E L A - National Academy of Elder Law Attorneys
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N A E L A<br />
NEWS<br />
<strong>National</strong> <strong>Academy</strong> <strong>of</strong> <strong>Elder</strong> <strong>Law</strong> <strong>Attorneys</strong><br />
Volume 18 - Issue 1 - 2006<br />
Are You Ready for Your<br />
2:30 Appointment?<br />
Tales <strong>of</strong> NAELA<br />
Address Medicaid’s<br />
Institutional Bias,<br />
and Expand<br />
Your Practice<br />
Divorce<br />
<strong>Elder</strong> <strong>Law</strong><br />
Style
a d v e r t i s e m e n t
N A E L A<br />
NEWS<br />
<strong>National</strong> <strong>Academy</strong> <strong>of</strong> <strong>Elder</strong> <strong>Law</strong> <strong>Attorneys</strong><br />
Contents<br />
Volume 18 - Issue 1 - 2006<br />
The NAELA News is published by the<br />
<strong>National</strong> <strong>Academy</strong> <strong>of</strong><br />
<strong>Elder</strong> <strong>Law</strong> <strong>Attorneys</strong>, Inc.<br />
1604 N. Country Club Road<br />
Tucson, AZ 85716-3102<br />
520/881-4005<br />
520/325-7925 Fax<br />
www.naela.org<br />
Articles appearing in the NAELA News<br />
may not be regarded as legal advice.<br />
The nature <strong>of</strong> <strong>Elder</strong> <strong>Law</strong> practice makes<br />
it imperative that local law and practice<br />
be consulted before advising clients.<br />
Statements <strong>of</strong> fact and opinion are the<br />
responsibility <strong>of</strong> the author and do not<br />
imply an opinion or endorsement on<br />
the part <strong>of</strong> the <strong>of</strong>ficers or directors <strong>of</strong><br />
NAELA unless otherwise specifically<br />
stated as such.<br />
Publications Chair<br />
Edwin M. Boyer, Esq.<br />
Sarasota, FL<br />
Editor<br />
Judith D. Grimaldi, CELA<br />
Brooklyn, NY<br />
Associate Editor<br />
Bridget O’Brien Swartz, Esq.<br />
Phoenix, AZ<br />
Publications Coordinator<br />
Jonathan D. Boyle<br />
Tucson, AZ<br />
Graphic Designer<br />
Kristin L. Hager<br />
Tokyo, Japan<br />
© Copyright NAELA 2006<br />
Features<br />
4 . . . . . . . . . . . . . . . . . . . . . . .Are You Ready for Your 2:30 Appointment?<br />
11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Tales <strong>of</strong> NAELA<br />
12 . . . . . .Address Medicaid’s Institutional Bias and Expand Your Practice<br />
15 . . . . . . . . . . . . . . .Memoirs <strong>of</strong> a Counsellor: “After So Much Time . . .”<br />
17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Vermont’s Long-Term Care Waiver<br />
21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Discussions <strong>of</strong> Fees<br />
22 . . . . . . . . . . . . . . . . .The Case Against Court Certification <strong>of</strong> Guardians<br />
27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Using Off-Site Staff<br />
29 . . . . . . . . . . . . . . . . . . . . . . . . . . .Marketing with Legal Resources, LLC<br />
32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Divorce <strong>Elder</strong> <strong>Law</strong> Style<br />
36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .NAELA Journal Update<br />
Every Issue<br />
7 President’s Message<br />
9 Executive Director’s Message<br />
26 NAELA Member Discount Partners<br />
31 Members in the News<br />
36 Calendar <strong>of</strong> Events<br />
38 New CELA’s
cover story<br />
Are You Ready for Your<br />
2:30 Appointment?<br />
Allan D. Bogutz, CELA<br />
I am your new client. I turn<br />
sixty this year at the head <strong>of</strong> the<br />
Baby Boomer parade.<br />
Here are the numbers:<br />
There are 78.2 million <strong>of</strong> us<br />
born between 1946 and 1964.<br />
In 2006, we will turn 60 at the<br />
rate <strong>of</strong> 7,918 per day. That’s<br />
about 330 per hour.<br />
Fifty-one percent <strong>of</strong> us are<br />
women.<br />
Until now, my legal affairs<br />
have been pretty mundane. Home<br />
purchases, a couple <strong>of</strong> minor auto<br />
accidents and a divorce. But over<br />
the course <strong>of</strong> my life, I have accumulated<br />
some assets, raised a<br />
family, looked forward to retirement,<br />
worried about my medical<br />
care and paid my bills. I have also<br />
pretty much ignored what has<br />
been happening with Social<br />
Security, and I cannot tell you the<br />
difference between Medicare and<br />
Medicaid but I am pretty sure that<br />
all my medical needs will be covered<br />
when I retire by one <strong>of</strong> them.<br />
I have an IRA but cannot tell you<br />
if it is a Roth IRA. I have a retirement<br />
plan at work, a 401(k), but<br />
don’t really know how that operates.<br />
I am thinking <strong>of</strong> moving to<br />
Great News<br />
for Veterans<br />
The <strong>National</strong> <strong>Elder</strong> <strong>Law</strong> Foundation<br />
is pleased to announce that they<br />
have been <strong>of</strong>ficially approved by the<br />
Department <strong>of</strong> Veterans Affairs.<br />
Veterans who sit for the CELA exam<br />
can have their exam fee reimbursed.<br />
The exam may be taken as many<br />
times as necessary, pass or fail, the<br />
exam fee will be reimbursed.<br />
another state when I retire. My<br />
children are 22 and<br />
28; one is married<br />
and has a two-yearold.<br />
The other is<br />
still in school. My<br />
wife is 52 and she<br />
has two children <strong>of</strong><br />
a prior marriage,<br />
ages 24 and 27, and<br />
both are employed<br />
and self-supporting.<br />
My wife and I are<br />
both healthy, but<br />
both <strong>of</strong> our families<br />
have histories <strong>of</strong><br />
cancer and my<br />
wife’s mother has<br />
Alzheimer’s and is in<br />
a nursing home. My<br />
father is still alive at<br />
87 and I have had<br />
concerns about his driving and his<br />
ability to live alone; financially, my<br />
father is a bit precarious and lives<br />
on his Social Security, his only<br />
source <strong>of</strong> income. There are<br />
times when I have to help him<br />
with his bills.<br />
I have life insurance but don’t<br />
know whether I have too much or<br />
not enough. I have heard <strong>of</strong> long<br />
term care insurance but don’t see<br />
why I might need it.<br />
I have a will and so does my<br />
wife. These were drafted 11<br />
years ago when we married, but<br />
we have not looked at them since.<br />
I am not sure what they say<br />
exactly, but I think we leave<br />
everything we have to each other.<br />
I have no other estate planning<br />
documents. We have our tax<br />
returns prepared by a commercial<br />
tax service and last year we had a<br />
combined income (my wife is a<br />
4<br />
Why am I here?<br />
I am not sure. My<br />
wife went to a<br />
seminar at the<br />
hospital about<br />
retirement<br />
planning and<br />
living trusts and<br />
she thought we<br />
should see<br />
someone about<br />
our estate plan.<br />
nurse) <strong>of</strong> about $180,000. If I<br />
were to add everything up, my wife<br />
and I probably have total assets <strong>of</strong><br />
about $2,000,000 including our<br />
house which is now free and clear.<br />
I might be able to retire in the next<br />
couple <strong>of</strong> years, but I am not sure.<br />
Why am I here? I am not sure.<br />
My wife went to a<br />
seminar at the hospital<br />
about retirement<br />
planning and<br />
living trusts and she<br />
thought we should<br />
see someone about<br />
our estate plan.<br />
You were recommended<br />
to us by a<br />
woman my wife<br />
works with, but I<br />
don’t know why I<br />
need an <strong>Elder</strong> <strong>Law</strong><br />
attorney; I am not<br />
an elder.<br />
If you are prepared<br />
for 2006, and<br />
if you define <strong>Elder</strong><br />
<strong>Law</strong> inclusively, this<br />
man and his wife<br />
are your new perfect clients. If you<br />
are concerned about the diminution<br />
<strong>of</strong> <strong>Elder</strong> <strong>Law</strong> practice resulting from<br />
changes in Medicaid laws, these are<br />
clients you want to cultivate.<br />
Certainly we are there to serve the<br />
substantially older client as well;<br />
the client who is facing current<br />
issues <strong>of</strong> incapacity, abuse, neglect,<br />
(continued on page 5)<br />
Allan Bogutz, CELA, is a Past President <strong>of</strong><br />
NAELA and a Fellow <strong>of</strong> the <strong>Academy</strong>. As<br />
the second president <strong>of</strong> NAELA from<br />
October 1988 to October 1989, Allan published<br />
the very first edition <strong>of</strong> the NAELA<br />
News. From Volume I, Number I, published<br />
in the fall <strong>of</strong> 1989, to this issue,<br />
Volume 18, Number I, the NAELA News<br />
has been an important tool to inform and<br />
educate NAELA Members. During Allan’s<br />
presidency, NAELA’s membership<br />
increased from 35 to 350 members. The<br />
first conference was also held during his<br />
presidency in Tucson, Arizona. Allan currently<br />
practices <strong>Elder</strong> <strong>Law</strong> in Tucson,<br />
Arizona, with Bogutz and Gordon, PC.
Are You Ready for Your<br />
2:30 Appointment?<br />
(continued from page 4)<br />
exploitation, housing concerns,<br />
financial issues concerning payment<br />
for acute and long term<br />
care, or facing issues <strong>of</strong> end-<strong>of</strong>-life<br />
estate planning. A myriad <strong>of</strong> <strong>Elder</strong><br />
<strong>Law</strong> issues specific to the old-old<br />
client and the family <strong>of</strong> the old-old<br />
client exist. Medicaid is, <strong>of</strong><br />
course, only one <strong>of</strong> the many<br />
important legal issues facing aging<br />
clients.<br />
What should this<br />
sixty-year-old client<br />
expect from an <strong>Elder</strong><br />
<strong>Law</strong> attorney? Is he<br />
indeed seeing the right<br />
type <strong>of</strong> attorney? Are<br />
<strong>Elder</strong> <strong>Law</strong> attorneys’<br />
skills and training<br />
appropriate to meet his<br />
needs as he contemplates<br />
retirement and<br />
prepares for the legal<br />
and financial issues he<br />
must face as he enters<br />
this entirely new stage<br />
<strong>of</strong> his life?<br />
Let’s look at what<br />
this client needs. First,<br />
he needs to have his<br />
estate plan reviewed.<br />
His life has changed, since his<br />
children are now grown, and his<br />
father has some financial dependence<br />
upon him. Being in a second<br />
marriage, he may need consultation<br />
about ways to provide for his<br />
spouse while still protecting his<br />
estate for the ultimate benefit <strong>of</strong><br />
his own children. He knows nothing<br />
about estate taxes, although<br />
he has heard the number<br />
$600,000 somewhere. His current<br />
will provides for an outright gift to<br />
his spouse <strong>of</strong> his entire estate<br />
with no tax planning, no provision<br />
for his father and no provision for<br />
any ultimate gift to his own children<br />
other than as beneficiaries in<br />
equal shares if his wife does not<br />
survive. Indeed, his wife’s will<br />
provides that the residue <strong>of</strong> her<br />
estate is divided equally among<br />
her children if her husband does<br />
not survive.<br />
Second, he would certainly<br />
benefit from durable powers <strong>of</strong><br />
attorney for health care and financial<br />
management as well as from a<br />
living will that sets forth his personal<br />
preferences for end-<strong>of</strong>-life<br />
care. The counseling you provide<br />
regarding the selection <strong>of</strong> agents<br />
will be invaluable to your client.<br />
Third, he would benefit from<br />
an assessment <strong>of</strong> his financial<br />
resources in terms <strong>of</strong> his possible<br />
retirement, a review <strong>of</strong> his life<br />
insurance, and advice on whether<br />
his investments are appropriate<br />
for a person facing fixed-income<br />
living in retirement. The man’s<br />
need for life insurance, for example,<br />
has probably changed substantially<br />
from the time it was<br />
bought to put his children through<br />
school, a goal now mostly met.<br />
Fourth, he will likely appreciate<br />
information about what to<br />
expect with his father’s care<br />
needs, the coverage available for<br />
his expenses under Medicare and<br />
potentially Medicaid. Helping him<br />
understand available community<br />
5<br />
resources to assist with his<br />
father’s declining abilities will also<br />
be helpful, as well as consideration<br />
<strong>of</strong> powers <strong>of</strong> attorney from<br />
his father to him for future use if<br />
needed.<br />
Fifth, discussion <strong>of</strong> the benefits<br />
<strong>of</strong> long-term care insurance,<br />
what to look for in a policy, what<br />
to avoid and what to insist upon<br />
as basic coverage will help him to<br />
work better with the insurance<br />
salespersons he will undoubtedly<br />
encounter, each<br />
with his or her<br />
own preferred<br />
product and each<br />
with less-thancomplete<br />
advice.<br />
Sixth, and<br />
finally, and perhaps<br />
most important,<br />
this client<br />
should be advised<br />
that you are now<br />
his lawyer for all<br />
matters as he<br />
enters the retirement<br />
stage <strong>of</strong> his<br />
life, that you are<br />
experienced and<br />
skilled in all <strong>of</strong> the<br />
issues that we<br />
face in later life,<br />
including issues <strong>of</strong> estate planning,<br />
paying for long-term care,<br />
prescription drug coverage under<br />
Medicare, protection <strong>of</strong> resources<br />
in the event <strong>of</strong> long-term care<br />
expenses, managing issues <strong>of</strong><br />
mental or physical disability within<br />
the family, and issues <strong>of</strong> housing<br />
options if the current home<br />
becomes inappropriate for extended<br />
periods. Furthermore, you are<br />
there to advise on insurance questions<br />
or refer him to trusted advisors<br />
who <strong>of</strong>fer quality advice. He<br />
can ask you for a referral to an<br />
advisor who can evaluate his<br />
investments for appropriateness<br />
for retirement. You are there for<br />
him, for his wife, for his father, for<br />
(continued on page 6)
Are You Ready for Your<br />
2:30 Appointment?<br />
(continued from page 5)<br />
his children if they need help as<br />
well. His entry point may have<br />
been estate planning but his real<br />
focus is on the later part <strong>of</strong> his life<br />
and you serve as a central<br />
resource for all <strong>of</strong> the issues he<br />
may face. Can you do it all? Not<br />
necessarily. But you<br />
can be there for him<br />
for all <strong>of</strong> his legal<br />
issues for the rest <strong>of</strong><br />
his life. You are<br />
there to be General<br />
Counsel to aging<br />
persons and, as<br />
General Counsel, you<br />
may not necessarily<br />
handle all matters<br />
but you are there to<br />
make the appropriate,<br />
tested and<br />
proven referrals that<br />
will serve your client<br />
best. And you are<br />
there to coordinate<br />
all <strong>of</strong> the services<br />
that he may need as<br />
he lives this part <strong>of</strong><br />
his life.<br />
The mission<br />
statement <strong>of</strong> NAELA<br />
anticipated this type<br />
<strong>of</strong> broad practice. It states:<br />
Who We Are<br />
The NAELA membership is comprised<br />
<strong>of</strong> attorneys in the private and<br />
public sectors who deal with legal<br />
issues affecting individuals who are<br />
elderly and/or disabled. Members also<br />
include judges, pr<strong>of</strong>essors <strong>of</strong> law, and<br />
students.<br />
Some <strong>of</strong> the issues NAELA members<br />
assist their clients with include,<br />
but are not limited to: public benefits,<br />
probate and estate planning,<br />
guardianship/conservatorship, and<br />
health and long-term care planning.<br />
NAELA’s vision is to be the recognized<br />
leader inspiring and empowering<br />
attorneys to enhance the quality <strong>of</strong><br />
life for individuals who are elderly or<br />
disabled.<br />
NAELA has<br />
not really given<br />
a specific definition<br />
to the word<br />
“<strong>Elder</strong>.” And,<br />
indeed, it should<br />
not. Rather than<br />
a chronological<br />
definition,<br />
perhaps we are<br />
really discussing<br />
a stage <strong>of</strong> life<br />
following the<br />
traditional<br />
working years.<br />
This particular client has<br />
many questions concerning his<br />
pension and his other qualified<br />
plans. One <strong>of</strong> the benefits he<br />
gets from your advice is that you<br />
are not selling any particular<br />
product, be it annuity or mutual<br />
fund or some other product. You<br />
are simply advising him on what<br />
his options might be. You are<br />
able to advise him<br />
objectively about<br />
possible gifts to<br />
his children or<br />
possible 529 Plans<br />
for his current and<br />
future grandchildren.<br />
He will have<br />
many other questions<br />
as time goes<br />
by – these might<br />
include possible<br />
continuing care<br />
retirement communities,<br />
changes<br />
in tax law, and<br />
changes in<br />
Medicare benefits.<br />
And whatever the<br />
issues may be that<br />
arise for him, he is<br />
comfortable, from<br />
this first visit, that<br />
you are up-to-date on issues concerning<br />
<strong>Elder</strong> <strong>Law</strong> and aging. You<br />
are building a long-term relationship<br />
with your 2:30 appointment.<br />
NAELA has not really given a<br />
specific definition to the word<br />
“<strong>Elder</strong>.” And, indeed, it should<br />
not. Rather than a chronological<br />
definition, perhaps we are really<br />
discussing a stage <strong>of</strong> life following<br />
the traditional working years.<br />
In any event, your 2:30 appointment<br />
at sixty years <strong>of</strong> age is<br />
clearly one <strong>of</strong> the new elders and<br />
part <strong>of</strong> your practice. The demographics<br />
are clearly in favor <strong>of</strong><br />
great growth in the practice <strong>of</strong><br />
<strong>Elder</strong> <strong>Law</strong>.<br />
Board<br />
<strong>of</strong> Directors<br />
2005-2006<br />
PRESIDENT<br />
<strong>Law</strong>rence E. Davidow, CELA<br />
Islandia, NY<br />
PRESIDENT-ELECT<br />
Donna R. Bashaw, CELA<br />
Laguna Hills, CA<br />
VICE PRESIDENT<br />
G. Mark Shalloway, CELA<br />
West Palm Beach, FL<br />
TREASURER<br />
Craig C. Reaves, CELA<br />
Kansas City, MO<br />
SECRETARY<br />
Ruth A. Phelps, CELA<br />
Pasadena, CA<br />
PAST PRESIDENT<br />
Stuart D. Zimring, Esq.<br />
North Hollywood, CA<br />
EXECUTIVE DIRECTOR<br />
Susan B. McMahon, Esq.<br />
Tucson, AZ<br />
MANAGING DIRECTOR<br />
Deborah J. Barnett<br />
Tucson, AZ<br />
DIRECTORS<br />
Edwin M. Boyer, Esq.<br />
Sarasota, FL<br />
William J. Brisk, CELA<br />
Newton Center, MA<br />
Martha C. Brown, CELA<br />
Saint Louis, MO<br />
Gregory S. French, CELA<br />
Cincinnati, OH<br />
Bradley J. Frigon, Esq.<br />
Englewood, CO<br />
Doris E. Hawks, Esq.<br />
Los Altos, CA<br />
Barbara S. Hughes, Esq.<br />
Madison, WI<br />
Michael F. Loring, Esq.<br />
Scituate, MA<br />
Kerry R. Peck, Esq.<br />
Chicago, IL<br />
Stephen J. Silverberg, CELA<br />
East Meadow, NY<br />
Timothy L. Takacs, CELA<br />
Hendersonville, TN<br />
Lauchlin T. Waldoch, CELA<br />
Tallahassee, FL<br />
Wesley E. Wright, CELA<br />
Bellaire, TX<br />
Edward E. Zetlin, Esq.<br />
Falls Church, VA<br />
CONSULTANTS<br />
Brian W. Lindberg, Public Policy<br />
Washington, D.C.<br />
Hugh K. Webster, Legal Counsel<br />
Washington, D.C.<br />
6
President’s Message<br />
By <strong>Law</strong>rence Davidow, Esq.<br />
This has been a very interesting<br />
year for NAELA and its members.<br />
The Deficit Reduction Act <strong>of</strong><br />
2005 (DRA 2005) and all its negative<br />
implications certainly grabbed<br />
our attention, and a full-scale effort<br />
was mobilized to stop the legislation.<br />
While the vote did not go the<br />
way we wanted, we can still be<br />
very proud <strong>of</strong> what our organization<br />
was able to accomplish. We<br />
now have a “seat at the table”<br />
when discussing legal issues <strong>of</strong> the<br />
elderly and people with disabilities.<br />
We testified at congressional hearings<br />
and we are now a highly<br />
regarded player<br />
among the<br />
national aging<br />
network.<br />
NAELA members<br />
became<br />
the “go-to people”<br />
to analyze<br />
the law. We<br />
must now continue<br />
to build<br />
on these successes.<br />
DRA and<br />
Medicaid<br />
Win or<br />
lose, this was a<br />
cause worth<br />
fighting for.<br />
DRA 2005 is<br />
bad for<br />
America and<br />
bad for its middle-class<br />
citizenry. The truth is<br />
that the middle class are once<br />
again the losers here, not <strong>Elder</strong><br />
<strong>Law</strong> attorneys. We will be busy<br />
explaining this confusing law to our<br />
concerned clients for many years<br />
to come. Over the past twentyfive<br />
years, the middle class claimed<br />
a larger part <strong>of</strong> the Medicaid budget<br />
to pay for their long term care,<br />
which they could not otherwise<br />
hope to afford without losing<br />
everything they worked a lifetime<br />
to acquire. During<br />
this time, our government<br />
allowed<br />
<strong>Law</strong>rence Davidow<br />
this approach to become a mainstream<br />
practice; a defacto Medicaid<br />
policy in the place <strong>of</strong> comprehensive<br />
long term care reform. Today,<br />
without giving a thought to such<br />
comprehensive long term care<br />
reform, the government has chosen<br />
instead to pull the rug out<br />
from under the middle class. This<br />
new law, which makes it harder to<br />
access the Medicaid program, is<br />
nothing more than a harsh TAX on<br />
the middle class, especially the<br />
lower income<br />
middle class.<br />
Eliminating a<br />
benefit, while<br />
asking middle<br />
class<br />
Americans to<br />
spend their<br />
entire life<br />
savings for<br />
their care, is<br />
a TAX on<br />
them. It’s an<br />
unconscionable<br />
tax.<br />
Please spread<br />
the word and<br />
let people<br />
know what is<br />
really happening<br />
to<br />
Americans.<br />
The middle<br />
class are<br />
being taxed once again—and the<br />
tax could cost them their entire life<br />
savings!<br />
Our Mission<br />
Our mission now is to educate<br />
Congress, the aging network, and<br />
the press on the direction <strong>of</strong> long<br />
term care reform in this country.<br />
First we must focus on DRA 2005<br />
and why it needs to be changed.<br />
We must also be vigilant in our<br />
state and local efforts as this new<br />
law is implemented throughout<br />
the country. NAELA Chapters<br />
will be critical for this local advocacy,<br />
and thus, I urge you to get<br />
involved with your local chapter<br />
or start one immediately if your<br />
state does not have a chapter.<br />
Secondly, we must make it<br />
clear that while we wholeheartedly<br />
support the purchase <strong>of</strong> private<br />
long term care insurance, it<br />
is naive public policy to believe<br />
that such insurance is affordable<br />
for more than a small minority <strong>of</strong><br />
current upper middle class seniors.<br />
Furthermore, many seniors<br />
today have preexisting conditions<br />
disqualifying them from the purchase<br />
<strong>of</strong> such insurance.<br />
Insurance will play an important<br />
role, but only the insurance companies<br />
and their lobbyists believe<br />
that long term care insurance<br />
alone will solve the long term<br />
care crisis in this country.<br />
2006 Charitable Recipient<br />
While DRA 2005 has<br />
demanded much <strong>of</strong> our focus, I<br />
would like to call your attention<br />
to something very positive that<br />
each NAELA President gets the<br />
privilege to do each year. Many<br />
years ago, the NAELA Board<br />
authorized $1000 for each<br />
President to give to a charity <strong>of</strong><br />
his or her choosing in recognition<br />
and appreciation <strong>of</strong> the efforts <strong>of</strong><br />
our committee chairs. There is<br />
no question that our committee<br />
chairs all worked very hard for<br />
NAELA this year; for that reason,<br />
I am particularly proud to report<br />
that, in their honor, I have chosen<br />
THE LONG ISLAND COMMU-<br />
NITY FOUNDATION (LICF) to be<br />
the 2006 charitable recipient. I<br />
am choosing my local community<br />
foundation to highlight community<br />
foundations throughout the<br />
country who are, in my opinion,<br />
unsung heroes—who everyday<br />
help identify and meet the critical<br />
needs <strong>of</strong> people in our local<br />
communities, including the<br />
important needs <strong>of</strong> seniors and<br />
people with disabilities.<br />
Community foundations are<br />
(continued on page 8)<br />
President’s message<br />
7
President’s Message<br />
(continued from page 7)<br />
particularly knowledgeable about<br />
local grass- roots charities and<br />
their relative merits, good and bad.<br />
<strong>Elder</strong> <strong>Law</strong> attorneys are known for<br />
being extremely generous and<br />
should thus be aware <strong>of</strong> this community<br />
resource and the good that<br />
they provide our clientele.<br />
The Long Island Community<br />
Foundation<br />
The Long Island Community<br />
Foundation, a division <strong>of</strong> The New<br />
York Community Trust, is one <strong>of</strong><br />
650 community foundations across<br />
America. Each community foundation<br />
is a tax-exempt public charity<br />
made up <strong>of</strong> four types <strong>of</strong> charitable<br />
funds that have been established<br />
by individuals, families, and businesses<br />
to meet certain philanthropic<br />
goals.<br />
The first type <strong>of</strong> charitable<br />
fund is called a “community<br />
response fund;” the income <strong>of</strong><br />
which is granted, through a competitive<br />
grants process, by its<br />
board (with help from its pr<strong>of</strong>essional<br />
staff) to local charities meeting<br />
the needs <strong>of</strong> the community.<br />
The second type <strong>of</strong> fund is known<br />
as a “donor advised fund” and<br />
allows the donor to continue to<br />
suggest grants when they wish to<br />
support particular charitable organizations.<br />
The third type <strong>of</strong> fund is<br />
known as a “field <strong>of</strong> interest fund”<br />
and enables donors to focus their<br />
charitable giving on an issue <strong>of</strong><br />
personal interest. For example, I<br />
opened the Davidow <strong>Elder</strong>ly<br />
Community Assistance Fund<br />
(DECAF) in the Long Island<br />
Community Foundation. The<br />
income from this fund is distributed<br />
through the LICF’s competitive<br />
grantmaking program, exclusively<br />
to help seniors on Long Island.<br />
Lastly, the fourth type <strong>of</strong> fund is<br />
known as a “designated fund”<br />
which allows donors to identify, at<br />
the time the fund is established,<br />
specific charities to benefit.<br />
In 2004, the LICF’s grants<br />
guidelines promoted “community<br />
building.” Under these guidelines,<br />
the LICF supported a range <strong>of</strong><br />
organizations and projects that<br />
directly benefited Long Island’s<br />
senior citizens, spanning a range <strong>of</strong><br />
issues,access to quality health<br />
care, isolation, mental illness, and<br />
maintaining independent living.<br />
The LICF supported a project to<br />
train members <strong>of</strong> African American<br />
churches to be “heart health<br />
ambassadors,” bringing back to<br />
congregations an arsenal <strong>of</strong> information<br />
needed to maintain good<br />
cardiac health. Grants supported a<br />
local nonpr<strong>of</strong>it that works in lowincome<br />
communities to devise<br />
projects that bring together youth<br />
and the elderly so that their experience<br />
and wisdom is passed along<br />
to the next generation. The LICF<br />
also supported a program to raise<br />
the awareness <strong>of</strong> the mental health<br />
needs <strong>of</strong> the region’s elderly.<br />
Another LICF-funded project<br />
matched volunteer supporters and<br />
caregivers with homebound elderly<br />
in a NORC, a naturally occurring<br />
retirement community.<br />
In 2005, the LICF revised its<br />
grantmaking guidelines to focus<br />
funding on “critical issues, critical<br />
communities, critical organizations,”<br />
and included “the needs <strong>of</strong> a growing<br />
aging population” as one <strong>of</strong><br />
these articulated critical issues.<br />
Under these new guidelines, the<br />
LICF continued its support for<br />
programs improving seniors’<br />
access to quality health care and<br />
planning regionally for seniors’<br />
mental health needs. In addition,<br />
new grants were awarded<br />
to help address the needs <strong>of</strong><br />
grandparents caring for their<br />
grandchildren, to strategize the<br />
transportation needs for seniors<br />
unable to drive to medical<br />
appointments, and to help older<br />
residents stay in their homes by<br />
matching them up with young<br />
people who cannot afford ordinary<br />
rentals.<br />
In addition to its competitive<br />
grantmaking, the LICF distributes<br />
millions <strong>of</strong> dollars annually<br />
through donor suggestions to<br />
support programs benefiting senior<br />
citizens.<br />
And so, in honor <strong>of</strong> the great<br />
work done by our committee<br />
chairs this year, we now honor<br />
the Long Island Community<br />
Foundation for all its contributions<br />
to seniors on Long Island.<br />
I would like to thank you all<br />
for the opportunity to make this<br />
donation to LICF's community<br />
response fund. NAELA is such a<br />
wonderful organization and I am<br />
proud to spread its good will.<br />
We are NAELA. Hear us Roar!<br />
Stand out from the crowd<br />
and create your own personal<br />
web page with information<br />
about your experience,<br />
education, and<br />
awards. Your web page can be<br />
created by going to the members<br />
only section <strong>of</strong> the website<br />
and choosing NAELA Personal<br />
Web Pages or type<br />
http://www.naela.com/private/MemberPages/<br />
into your<br />
internet browser. Your web<br />
page will appear under your contact information within the online<br />
directory. It’s a great way to provide potential referrals with more<br />
information about your specialty, skills, and experience.<br />
Link your web page to your name in the directory Today!<br />
8
Executive Director’s Message<br />
By Susan B. McMahon, Esq.<br />
The battle that NAELA waged<br />
regarding the Medicaid legislation<br />
that resulted in the Deficit<br />
Reduction Act <strong>of</strong> 2005 (DRA) was<br />
not fought in vain. A great deal<br />
was accomplished.<br />
To put this battle in perspective<br />
we must recognize the larger<br />
budget issues that were simultaneously<br />
being addressed. There<br />
were issues <strong>of</strong> greater visibility and<br />
impact than Medicaid: homeland<br />
security, Medicare Part B premiums,<br />
the new Medicare drug bill,<br />
physician payment rates, relief for<br />
victims <strong>of</strong> Hurricane Katrina, tax<br />
cut extensions, and finally, funding<br />
the war in Iraq.<br />
Within Medicaid itself, the<br />
transfer <strong>of</strong> asset provisions were<br />
not as easily understood as benefit<br />
reductions and cost sharing for<br />
low-income children and pregnant<br />
women, or reimbursement cuts for<br />
pharmacists.<br />
It was in this unfavorable environment<br />
that NAELA developed<br />
and implemented a multi-faceted<br />
strategy for approaching the<br />
Medicaid fight.<br />
The strategy required simultaneous<br />
approaches to education,<br />
coalition building, communication,<br />
media activity, and membership<br />
involvement. Fortunately, the<br />
groundwork had been laid in many<br />
<strong>of</strong> these areas throughout the past<br />
several years by NAELA's public<br />
policy and advocacy activities.<br />
Building a Positive<br />
Reputation<br />
For more than a year, NAELA's<br />
Public Policy Committee, chaired<br />
by Charlie Sabatino, the<br />
Medicaid Strategies Task Force, led<br />
by Vincent Russo, and the<br />
NAELA Board <strong>of</strong> Directors worked<br />
unceasingly to stop the harmful<br />
provisions <strong>of</strong> DRA.<br />
Brian Lindberg,<br />
Susan McMahon<br />
along with two<br />
hired lobbyists, Howard Cohen<br />
and Chris Jennings, were key<br />
players in contacting and educating<br />
members <strong>of</strong> congress, congressional<br />
staff, and coalition partners<br />
about transfers <strong>of</strong> assets in context<br />
<strong>of</strong> long-term care planning. Ann<br />
Krauss and Stan Samples with<br />
Kellen Communications also<br />
worked diligently on the Public<br />
Relations side to ensure that the<br />
media had access to NAELA<br />
experts and information on our<br />
position. We should not forget<br />
NAELA Past President Bernie<br />
Krook's testimony on April 27,<br />
2005, before the House Energy<br />
and Commerce Committee, or<br />
Brian Lindberg, Trish Nemore,<br />
and Vincent Russo's briefing to<br />
the staff <strong>of</strong> the House Energy and<br />
Commerce Committee and the<br />
Senate Finance Committee staff on<br />
Medicaid eligibility rules.<br />
Additionally, NAELA was able to<br />
influence the views <strong>of</strong> the Senate<br />
Special Committee on Aging and<br />
key Finance Committee members<br />
when Vincent Russo testified at<br />
the hearing on July 20, 2005.<br />
Vincent's testimony on NAELA's<br />
proactive reform proposals became<br />
an important aspect <strong>of</strong> NAELA's<br />
public policy campaign. The development<br />
<strong>of</strong> alternative proposals to<br />
address congressional concerns<br />
about so called "fraudulent" transfers<br />
<strong>of</strong> assets was essential to<br />
establishing credibility with<br />
Congress. NAELA's recommendations<br />
and proposals were reviewed<br />
favorably by the Congressional<br />
Budget Office (CBO) as providing<br />
savings to the program and<br />
enhanced NAELA's credibility with<br />
Members <strong>of</strong> Congress and the congressional<br />
staff. On September 7,<br />
2005, Vincent Russo debated<br />
Stephen Moses at the Cato<br />
Institute, in Washington, DC.<br />
More than 125 individuals attended<br />
- many <strong>of</strong> them key players in the<br />
health care policy world. These<br />
activities led to congressional staff<br />
asking NAELA to submit questions<br />
for committee hearings, to analyze<br />
legislation, and even to draft legislative<br />
language. It is clear that<br />
NAELA has successfully secured a<br />
role as an expert and valued<br />
resource for Members <strong>of</strong> Congress<br />
and congressional staff, and for its<br />
colleagues in the aging network.<br />
Coalitions and Relationships<br />
NAELA has been working with<br />
coalitions in Washington, D.C. for<br />
more than 10 years. Represented<br />
by Brian Lindberg and Charlie<br />
(continued on page 10)<br />
executive director’s message<br />
9
Executive Director’s Message<br />
(continued from page 9)<br />
Sabatino, NAELA has been a<br />
team player and has taken on<br />
leadership roles for these organizations.<br />
Brian currently chairs the<br />
Long-Term Care Task Force <strong>of</strong> the<br />
Leadership Council <strong>of</strong> Aging<br />
Organizations, which includes 53<br />
aging groups in D.C. NAELA has<br />
been a member <strong>of</strong> the Medicaid<br />
Coalition with more than 200<br />
member organizations representing<br />
a diverse group <strong>of</strong> consumer and<br />
provider interests. These relationships<br />
are critical in our work to<br />
protect Medicaid beneficiaries.<br />
NAELA worked hard to raise<br />
the importance <strong>of</strong> the transfer <strong>of</strong><br />
asset changes in the collective<br />
conscious <strong>of</strong> the aging and<br />
Medicaid advocacy groups; not an<br />
easy task in the face <strong>of</strong> other<br />
Medicaid cuts, Social Security privatization<br />
efforts, and the Medicare<br />
Modernization Act implementation.<br />
NAELA, AARP, and the Alzheimer's<br />
Association took the lead in promoting<br />
protection <strong>of</strong> people who<br />
are elderly or disabled who would<br />
be harmed by the Medicaid eligibility<br />
changes. The LCAO and these<br />
organizations individually wrote letters<br />
to Members <strong>of</strong> Congress, took<br />
out full page ads in The<br />
Washington Post, the Washington<br />
Times, Roll Call, and targeted<br />
papers around the country. They<br />
also mobilized their memberships<br />
on behalf <strong>of</strong> protecting Medicaid<br />
and stopping the transfer <strong>of</strong> asset<br />
changes. AARP, in particular, put<br />
significant time, resources, and<br />
lobbying into this effort.<br />
NAELA was also successful in<br />
working with the national trade<br />
organizations <strong>of</strong> the nursing home<br />
industry to oppose the change in<br />
the start date for the penalty period.<br />
The American Health Care<br />
Association testified before the<br />
Finance Committee in opposition to<br />
the change and lobbied Congress<br />
on the issue. The American<br />
Association <strong>of</strong> Homes and Services<br />
for the Aging also lobbied against<br />
the date change.<br />
In addition, NAELA and its<br />
members successfully initiated a<br />
dialogue with the Congressional<br />
Budget Office (CBO), the<br />
Government Accountability Office<br />
(GAO), and the Congressional<br />
Research Service (CRS) to provide<br />
data, insights, and observations<br />
about whom we serve and how<br />
the Medicaid program works.<br />
These influential entities responded<br />
positively and requested our<br />
assistance as they developed their<br />
work on transfer <strong>of</strong> assets and<br />
Medicaid.<br />
Communication Materials<br />
The NAELA Staff and<br />
Consultants developed fact<br />
sheets, handouts, and a "Myths<br />
and Facts" piece for distribution<br />
on Capitol Hill and for NAELA<br />
members. Kellen Communications<br />
ensured that the media<br />
had access to NAELA experts for<br />
information and interviews.<br />
Also, they informed the media <strong>of</strong><br />
key developments in the struggle<br />
against the punitive transfer<br />
<strong>of</strong> assets changes and in favor<br />
<strong>of</strong> more reasoned approaches.<br />
Efforts were made to ensure<br />
that letters to Congress from<br />
organizations and coalitions supporting<br />
NAELA's position on<br />
transfer <strong>of</strong> assets were provided<br />
to and understood by the media.<br />
Ann and Stan worked hard to<br />
make sure everyone was aware<br />
<strong>of</strong> the significance <strong>of</strong> the letters<br />
from the LCAO and AARP. In<br />
addition, NAELA's own letter on<br />
the same topic was FAXed to all<br />
<strong>of</strong> the congressional <strong>of</strong>fices.<br />
"Letters to the editor" to daily<br />
newspapers in areas home to<br />
members <strong>of</strong> the Senate Finance<br />
Committee and the House<br />
Energy and Commerce<br />
Committee were distributed.<br />
Similar letters to the editor, but<br />
using a national perspective,<br />
were sent to national media.<br />
10<br />
Support from<br />
NAELA Members<br />
We can not forget the support<br />
<strong>of</strong> NAELA members across the<br />
country who met with Members <strong>of</strong><br />
Congress and staff. The number <strong>of</strong><br />
contacts by NAELA members was<br />
greater than ever before. President<br />
<strong>Law</strong>rence Davidow created the<br />
Grassroots Advocacy Task Force,<br />
chaired by Charlie Sabatino to<br />
evaluate our efforts, review the<br />
approaches <strong>of</strong> other organizations,<br />
and make recommendations for the<br />
future.<br />
The NAELA website is the central<br />
resource for Medicaid advocacy<br />
materials, including the Grassroots<br />
Advocacy Kit. This kit was developed<br />
for use by NAELA members.<br />
It contains sample letters, talking<br />
points, background information,<br />
Capitol phone numbers, leavebehind<br />
materials, etc. The site also<br />
houses NAELA's position papers,<br />
documents regarding the current<br />
transfer <strong>of</strong> asset proposals, the<br />
House and Senate budget reconciliation,<br />
NAELA's proposed Medicaid<br />
solutions (presented as replacements<br />
for current legislation), Myths<br />
and Realities About Medicaid<br />
Planning, NAELA Members as<br />
Resources: Issue List; and a NAELA<br />
Fact Sheet.<br />
Go to http://www.naela.org/private/OurGov/medicaid.html.<br />
Senior Rights PAC. Brian<br />
Lindberg, Chris Jennings and<br />
Howard Cohen, in addition to<br />
NAELA members, attended many<br />
fundraisers during the past two<br />
years. This provides NAELA with<br />
unique opportunities to have conversations<br />
about the needs <strong>of</strong> our<br />
clients with Members <strong>of</strong> Congress in<br />
more relaxed social settings. Many<br />
<strong>of</strong> these members were interested<br />
in our analysis <strong>of</strong> the Medicaid program<br />
and the proposed assets rules<br />
changes.<br />
All is Not Lost. The goal <strong>of</strong><br />
the public policy campaign was to<br />
(continued on page 11)
Tales <strong>of</strong> NAELA<br />
Saved by the NAELA Attorney<br />
Suzanne J. Seguin, Esq.<br />
A financial planner that I work<br />
with referred a lovely couple in<br />
their fifties to me. The couple<br />
needed some estate planning and<br />
a lot <strong>of</strong> help. The wife had been<br />
sick for a while, not life threatening,<br />
but sick and in and out <strong>of</strong> the<br />
hospital for months. Husband has<br />
early Alzheimer’s at age 57.<br />
No family around to help. The<br />
couple was in a financial mess<br />
because they did not keep a check<br />
book register, so I told them I<br />
would assist them in getting<br />
organized. Husband brought me a<br />
file <strong>of</strong> bills one day for my review.<br />
I looked at the file and there were<br />
many past due bills. I saw one<br />
bill that concerned me and had<br />
my secretary call a life insurance<br />
Executive Director’s Message<br />
(continued from page 10)<br />
defeat the legislative proposals to<br />
change the penalty period start<br />
date and the lookback period in<br />
order to protect seniors and individuals<br />
with disabilities. Those proposals<br />
became law on February 3,<br />
2006, when President Bush signed<br />
the bill, although the debate and<br />
potential court rulings on the bill's<br />
constitutionality persist. NAELA's<br />
new goal is to work with our<br />
coalition partners and the<br />
Centers for Medicare and<br />
Medicaid Services (CMS) to<br />
implement the DRA in the least<br />
harmful ways for Americans<br />
who are older and disabled. In<br />
addition, we continue to work with<br />
Members <strong>of</strong> Congress that are interested<br />
in repealing or amending the<br />
DRA. The Medicaid Strategies Task<br />
Force is also working on DRA analysis,<br />
state rulemaking, Symposium<br />
sessions on DRA, potential litigation,<br />
company in Tennessee on January<br />
9th . Valley Forge Life Insurance<br />
Company told my secretary that if<br />
it did not have its check by the<br />
next day, the policy<br />
would be cancelled<br />
and husband would<br />
have to reapply for the<br />
life insurance policy.<br />
I did not want this<br />
to happen because I<br />
figured husband would<br />
not pass the medical<br />
examination. The policy<br />
was for one hundred thousand<br />
dollars. I was concerned and<br />
called the company myself and the<br />
company representative told me<br />
that it was not the next day,<br />
January 10th, that the premium<br />
and materials that NAELA members<br />
could use in advocating for their<br />
clients.<br />
It has been an enormous learning<br />
experience for NAELA - to go up<br />
against powerful special interests,<br />
fighting the myths perpetuated by<br />
insiders who draft harmful provisions<br />
from the comfort <strong>of</strong> a congressional<br />
committee post, the challenges <strong>of</strong><br />
representing clients who <strong>of</strong>ten can't<br />
make their own case to Congress,<br />
and educating the public and colleagues<br />
about very complicated<br />
rules that affect so many low and<br />
middle-income people with longterm<br />
care needs. We fought a good<br />
and honest fight on behalf <strong>of</strong> millions<br />
<strong>of</strong> deserving older persons and<br />
people with disabilities, we put<br />
NAELA's resources to good work, we<br />
strengthened our relationships both<br />
on and <strong>of</strong>f the Hill, and we will not<br />
give up on our client's best interests.<br />
Thank you all for helping in all<br />
the ways that you did!<br />
11<br />
had to be paid, (whoever spoke to<br />
my secretary had been incorrect),<br />
but that it had to be paid the day we<br />
called and the premium had to be<br />
paid prior to its <strong>of</strong>fice closing which<br />
was within about two and one-half<br />
hours <strong>of</strong> my calling them. Of<br />
course, it would not take payment<br />
by credit card, or by check over the<br />
phone. Thus, I<br />
had two and<br />
one-half hours to<br />
hand deliver a<br />
check to<br />
Nashville<br />
Tennessee, from<br />
New Bedford,<br />
Massachusetts.<br />
That’s when<br />
I thought <strong>of</strong> the NAELA book listing<br />
the NAELA attorneys. I called three<br />
Nashville, Tennessee NAELA<br />
<strong>Attorneys</strong> and found one in her<br />
<strong>of</strong>fice. Within two minutes or so <strong>of</strong><br />
speaking with Attorney Christina<br />
Norris <strong>of</strong> Nashville, Tennessee, she<br />
agreed to cut her own <strong>of</strong>fice check<br />
for the $101.78 premium that was<br />
due and have it hand- delivered to<br />
the life insurance company <strong>of</strong>fice,<br />
IMMEDIATELY. I told her I would<br />
pay her a few hundred dollars to do<br />
this. She immediately cut the check<br />
and had her courier hand-deliver the<br />
check and get a receipt. Christina<br />
confirmed receipt with the company<br />
and I re-confirmed on January 10,<br />
2006, that the policy was still in<br />
effect. The security guard signed for<br />
receipt <strong>of</strong> the check!<br />
Here comes the interesting<br />
part... the husband, who we thought<br />
would live a long life with<br />
Alzheimer’s, died prematurely on<br />
January 20, 2006! Needless to say, I<br />
phoned Attorney Norris and thanked<br />
her again for her assistance.<br />
Surviving spouse is very appreciative<br />
<strong>of</strong> our efforts and we have requested<br />
the life insurance claim forms. I<br />
cannot say enough about NAELA.<br />
I looked at the file<br />
and there were<br />
many past due bills.<br />
I saw one bill that<br />
concerned me...<br />
Attorney Suzanne J. Seguin, Esq., practices<br />
<strong>Elder</strong> <strong>Law</strong> in New Bedford, MA. She can be<br />
reached at sjseguin@msn.com.
Address Medicaid’s Institutional Bias<br />
and Expand Your Practice<br />
Patricia E. Kefalas Dudek, Esq.<br />
Aggressive advocacy efforts<br />
are happening at the state and<br />
national level to address what is<br />
called the institutional bias in<br />
Medicaid. Essentially, this bias<br />
means that, when a person with a<br />
disability or an elder is served in<br />
an institution or a nursing home,<br />
Medicaid will pay for all <strong>of</strong> his<br />
services, including anything related<br />
to housing. However, if the<br />
same person with a disability or<br />
elder lives in a less restrictive setting,<br />
and his services are paid for<br />
by a Medicaid Waiver, his housing<br />
costs are specifically excluded<br />
from coverage. See U.S.C. 42 §<br />
1396n(c)(1). The impact <strong>of</strong> this<br />
bias is a huge financial disincentive<br />
for the states to move<br />
towards true implementation <strong>of</strong><br />
the Supreme Court’s decision in<br />
Olmstead, 527 U.S. 581 (1999),<br />
and the integration mandate <strong>of</strong><br />
the American with Disabilities Act,<br />
42 U.S.C. § 12101(a)(2) and (5).<br />
See also 28 C.F.R. § 35.130(d).<br />
This is how institutional bias<br />
works against the states: If a<br />
Medicaid beneficiary wants to live<br />
in the community, in many cases<br />
either the individual or the State<br />
will have to pay for the housing<br />
costs. If the person pays for this<br />
cost, then this is private money<br />
and it cannot be used as state<br />
match to draw down additional<br />
Medicaid funds. In Michigan, that<br />
means a loss <strong>of</strong> the 50% match <strong>of</strong><br />
the housing cost (which they get if<br />
the person is placed in a more<br />
restrictive setting). In some states,<br />
the match is even higher. If the<br />
State pays for this, these funds<br />
need to come from general fund<br />
dollars. As the funds are not being<br />
used to pay for Medicaid covered<br />
services, they again may not be<br />
used for Medicaid match. The<br />
states are all experiencing a<br />
reduction in revenue, with large<br />
growth in their Medicaid budget.<br />
Therefore, it becomes more difficult<br />
for budget directors and policy<br />
makers to understand the<br />
importance <strong>of</strong> using these funds<br />
to provide long term care services<br />
in the community when they can<br />
provide these services in a more<br />
restrictive setting, and then do not<br />
need to come up with as much<br />
money to do so.<br />
Advocates for seniors and<br />
people with disabilities need to<br />
understand this essential policy<br />
issue, and need to develop creative<br />
strategies to address it and<br />
at the same time to achieve the<br />
desired goal <strong>of</strong> many <strong>of</strong> our clients<br />
to age in place, and live in the<br />
least restrictive setting. The first<br />
strategy to consider is working<br />
with Community Non-Pr<strong>of</strong>it<br />
Housing Corporations.<br />
Non-pr<strong>of</strong>its provide a charitable<br />
gift to low-income people by<br />
arranging for affordable supportive<br />
housing; they also lessen the burden<br />
<strong>of</strong> the states by creating and<br />
providing safe and affordable supportive<br />
community living situations.<br />
These charitable organizations<br />
capture and preserve the<br />
resources the states spend through<br />
the public mental health system<br />
and long-term care system on<br />
behalf <strong>of</strong> people with disabilities<br />
and seniors. They do this by reinvesting<br />
any funds spent, plus the<br />
appreciation on the real estate into<br />
the development <strong>of</strong> additional<br />
affordable, supportive housing.<br />
Without these vital agencies, these<br />
<strong>of</strong>ten times accessible homes would<br />
be in the hands <strong>of</strong> for pr<strong>of</strong>it landlords,<br />
and could not be used to<br />
defer the continuing obligation <strong>of</strong><br />
the state to house and provide<br />
services to its most vulnerable citizens<br />
in the least restrictive setting.<br />
Prior to 1976, Michigan’s citizens<br />
with developmental disabilities<br />
and mental illnesses were typically<br />
institutionalized. However, in<br />
Michigan Association for Retarded<br />
Citizens v Smith, 475 F.Supp 990<br />
(ED MI 1979), the State <strong>of</strong> Michigan<br />
agreed to a federal district court<br />
judgment requiring the State to<br />
provide community based housing<br />
for adults with disabilities. The<br />
“Plymouth Center” case, as it is<br />
now known, was an early part <strong>of</strong><br />
the national trend toward de-institutionalization,<br />
or providing housing<br />
and needed services to people with<br />
disabilities under the federal<br />
Medicaid program in the least<br />
restrictive setting. This resulted in<br />
the creation <strong>of</strong> smaller community<br />
based residential settings, as<br />
opposed to large isolating institutions.<br />
Under several administrations,<br />
Michigan became a leader in<br />
this national effort. In the late<br />
1960s, over 13,000 people with<br />
developmental disabilities resided in<br />
state-operated institutions across<br />
Michigan. Now there are fewer<br />
than 100.<br />
Small group homes for six or<br />
fewer people proved to be the primary<br />
vehicle for complying with the<br />
Plymouth consent decree and for<br />
implementing a statewide de-institutionalization<br />
program. Early on in<br />
(continued on page 13)<br />
12
Address Medicaid’s<br />
Institutional Bias, and<br />
Expand Your Practice<br />
(continued from page 12)<br />
this de-institutionalization effort,<br />
state and federal funds were used<br />
to lease houses from private<br />
investors, and services were typically<br />
provided under contract with<br />
a separate service provider organization.<br />
While the housing and<br />
support services were separately<br />
contracted, they were both provided<br />
as a direct responsibility <strong>of</strong> the<br />
State under the Michigan Mental<br />
Health Code, §§ 330.1704 and<br />
330.1208, and State Constitution,<br />
Article I § 2, and were inextricably<br />
linked. Services could not be provided<br />
without housing to replace<br />
the institution, and housing could<br />
not be provided without needed<br />
support. The housing and services<br />
were so closely tied together<br />
that if the person with a disability<br />
had a falling out with his service<br />
provider, the only choice he had<br />
was to move to another setting.<br />
This meant that even when a<br />
service provider violated the person’s<br />
rights under the Mental<br />
Health Code § 330.1208, or even<br />
neglected or abused the person,<br />
the person with a disability was<br />
punished, as he would have to<br />
lose his home and housemates to<br />
avoid the provider <strong>of</strong> services.<br />
This model was merely an extension<br />
<strong>of</strong> the institutional model <strong>of</strong><br />
care, but in smaller settings.<br />
As a result, variations on the<br />
group home service delivery<br />
model emerged to afford people<br />
with disabilities greater protection<br />
and choices in housing.<br />
Supportive living arrangements are<br />
currently <strong>of</strong>fered as a popular<br />
alternative to group homes. All <strong>of</strong><br />
these living arrangements, however,<br />
still include some similar type<br />
<strong>of</strong> configuration linking the<br />
required elements <strong>of</strong> housing and<br />
support as an alternative to institutional<br />
or nursing home care.<br />
In addition to the shift to<br />
community based care, Michigan<br />
has changed its role from that <strong>of</strong> a<br />
direct provider <strong>of</strong> services to a<br />
director <strong>of</strong> a state wide system <strong>of</strong><br />
Community Mental Health boards<br />
responsible for providing State<br />
Medicaid funded services to eligible<br />
low-income citizens with disabilities<br />
in its community. The<br />
Community Mental Health boards,<br />
in essence, act as an agent <strong>of</strong> the<br />
Department <strong>of</strong> Community Health.<br />
They typically contract for the necessary<br />
services, although some<br />
continue to provide direct services.<br />
Contemporaneous with these<br />
systemic changes, a relatively<br />
small number <strong>of</strong> non-pr<strong>of</strong>it organizations<br />
have emerged to assist the<br />
State and the local Community<br />
Mental Health boards in providing<br />
housing for Medicaid-eligible citizens.<br />
These non-pr<strong>of</strong>it organizations<br />
share a common mission <strong>of</strong><br />
reducing the burden upon state<br />
and local governments in meeting<br />
their obligations to citizens under<br />
the Medicaid program and the<br />
Michigan Mental Health Code.<br />
<strong>National</strong>ly, the trend toward<br />
de-institutionalization continues.<br />
Recent examples include the U.S.<br />
Supreme Court Olmstead decision,<br />
Olmstead v LC ex rel Zimring, 527<br />
U.S. 581; 119 S.Ct. 2176; 144<br />
L.Ed.2d 540 (1999), and the<br />
President’s 2001 “New Freedom”<br />
Initiative. The New Freedom<br />
Initiative is described by the<br />
George W. Bush Administration as<br />
one that “promotes the full integration<br />
<strong>of</strong> people with disabilities<br />
into all aspects <strong>of</strong> American life by<br />
increasing employment opportunities,<br />
by expanding access to technology<br />
and public accommodations,<br />
and by providing accessible<br />
transportation and housing.”<br />
Without affordable supportive<br />
housing options, the objective <strong>of</strong><br />
delivering services in the “least<br />
restrictive setting” cannot be<br />
achieved. People with disabilities<br />
13<br />
and their advocates consider this a<br />
basic civil right. Without the<br />
efforts <strong>of</strong> these charities, the burden<br />
on the states’ Medicaid systems<br />
could force people with disabilities<br />
and seniors back into<br />
institutions and nursing homes.<br />
Many advocates for seniors<br />
and people with disabilities<br />
throughout the country agree that<br />
it is best to have the non-pr<strong>of</strong>its<br />
focus their efforts on providing<br />
housing or social services, but not<br />
both. Philosophically, empowering<br />
people to be able to select and<br />
change service providers without<br />
having to lose their homes and<br />
friends promotes independence<br />
and self-determination. Advocacy<br />
groups attested to the validity <strong>of</strong><br />
this premise; consumers <strong>of</strong> long<br />
term care services can now protect<br />
themselves from inadequate<br />
care by simply firing the service<br />
provider, without fear <strong>of</strong> losing<br />
their home and housemates. This<br />
model goes a long way in protecting<br />
these citizens and it ensures<br />
that the mistakes <strong>of</strong> Willowbrook<br />
and other institutions are not continued<br />
(on a much smaller scale)<br />
in group homes. See The End <strong>of</strong><br />
a Nightmare at Willowbrook,<br />
Headline News, Page 2,<br />
Queenscourier, May 11-17, 2000,<br />
for a detailed account <strong>of</strong> atrocities<br />
that took place at the Willowbrook<br />
State Institution.<br />
The other rationale for separating<br />
the housing and social service<br />
functions is for all the organizations<br />
to focus on only one <strong>of</strong><br />
these very important missions, so<br />
that they can be even more efficient<br />
and effective with the scarce<br />
resources allocated to caring for<br />
this population. Consistent with<br />
this trend, the Department <strong>of</strong><br />
Housing and Urban Development<br />
(“HUD”) does not permit tenants<br />
to be required to accept services<br />
as a condition <strong>of</strong> living in HUD<br />
funded units. See Federal<br />
Register, Vol. 69, No. 94, May 14<br />
(continued on page 14)
Contents<br />
Address Medicaid’s<br />
Institutional Bias, and<br />
Expand Your Practice<br />
(continued from page 13)<br />
2004, p.27761. Similarly, the<br />
Michigan State Housing<br />
Development Authority (“MSHDA”)<br />
has strongly encouraged the separation<br />
<strong>of</strong> housing from the provision<br />
<strong>of</strong> support services. These nonpr<strong>of</strong>it<br />
organizations represent the<br />
best <strong>of</strong> the non-pr<strong>of</strong>it sector, providing<br />
important services that<br />
immeasurably benefit people’s lives<br />
and doing so in an incredibly cost<br />
efficient manner, usually on the<br />
proverbial shoestring budget.<br />
As a result <strong>of</strong> working closely<br />
with such organizations, I recently<br />
found myself drafting Amicus<br />
Curiae briefs in their efforts to<br />
secure property tax relief for their<br />
developments. My advocacy on<br />
behalf <strong>of</strong> individual clients has<br />
expanded my practice into areas<br />
never anticipated. Forcing these<br />
organizations to continue to pay<br />
property taxes impedes and<br />
restricts their ability to provide this<br />
needed charitable resource. If continuously<br />
forced to use their limited<br />
resources to pay property taxes,<br />
they are essentially using one type<br />
<strong>of</strong> tax dollar allocated to house<br />
people with disabilities and seniors<br />
to pay another type <strong>of</strong> tax. This is a<br />
very inefficient use <strong>of</strong> these scarce<br />
resources and, as a result, people<br />
with disabilities and seniors (and<br />
those who are responsible for their<br />
care) will be forced to divert even<br />
more <strong>of</strong> these scarce resources<br />
toward higher housing costs and<br />
away from the Medicaid budget,<br />
which pays for the services.<br />
Ultimately, states will be forced<br />
once again to bear more <strong>of</strong> this<br />
financial burden in the future. This<br />
burden is even greater as <strong>of</strong>ten<br />
times these homes are not even<br />
allowed the “homestead” valuation,<br />
at least under Michigan law, specifically,<br />
MCL 211.7cc, for these property<br />
taxes.<br />
Another strategy to address the<br />
institutional bias is the use <strong>of</strong> special<br />
needs trusts to handle the<br />
housing costs. It will make it much<br />
easier to establish that providing<br />
the services in the less restrictive<br />
setting is a reasonable accommodation<br />
under the ADA if the state<br />
does not have to deal with the<br />
financial dis-incentive.<br />
Many <strong>of</strong> the Pooled Accounts<br />
Trusts, or Exception C trusts, that<br />
I work closely with were developed<br />
by nonpr<strong>of</strong>it housing organizations.<br />
Many <strong>of</strong> our sub-accounts<br />
hold real estate, and the trust<br />
<strong>of</strong>ten acts as a“friendly” landlord.<br />
Recently, we applied for, and<br />
secured a property tax abatement<br />
on behalf <strong>of</strong> the trust by sending<br />
the following letter:<br />
Dear Sir or Madam:<br />
Enclosed please find a copy <strong>of</strong><br />
the Deed showing that the Pooled<br />
Account Trust <strong>of</strong> the Friends <strong>of</strong><br />
CLS, Inc. f/b/o XXXXXX owns the<br />
residence located at XXXX Street,<br />
XXX, Michigan XXX. In addition, I<br />
have provided copies <strong>of</strong> the<br />
Articles <strong>of</strong> Organization and the<br />
Bylaws for the Friends <strong>of</strong> CLS, Inc.<br />
Friends <strong>of</strong> CLS, Inc. is a Michigan<br />
non-pr<strong>of</strong>it corporation granted tax<br />
exempt status from the Internal<br />
Revenue Service under a ruling<br />
dated October 21, 1993. Please<br />
note from the enclosed corporate<br />
documents that the original name<br />
<strong>of</strong> the organization was the<br />
Friends <strong>of</strong> Wayne County Living<br />
Services.<br />
The purpose <strong>of</strong> this correspondence<br />
is to request tax exempt<br />
status be granted the above-referenced<br />
property, under Michigan<br />
Compiled <strong>Law</strong> - MCL 211.7o nonpr<strong>of</strong>it<br />
charitable institutions;<br />
exemptions; definitions. The<br />
underlying property should be<br />
exempt from Michigan property<br />
taxes because one <strong>of</strong> the charitable<br />
purposes <strong>of</strong> the Friends <strong>of</strong><br />
CLS, Inc. is to provide housing<br />
assistance for individuals who are<br />
struggling with a disability.<br />
Friends <strong>of</strong> CLS, Inc. established a<br />
Trust to accomplish this charitable<br />
purpose. A review <strong>of</strong> the Trust<br />
indicates that the purpose <strong>of</strong> the<br />
Trust is to organize and administer<br />
funds in order for individuals with<br />
disabilities as defined by Section<br />
614(a)(3) <strong>of</strong> the Social Security Act,<br />
42 U.S.C. § 1396p, amended<br />
August 10, 1993, by the Revenue<br />
Reconciliation Act <strong>of</strong> 1993, to qualify<br />
for medically necessary public<br />
benefits. The Trust facilitates this<br />
purpose by using the assets <strong>of</strong> the<br />
Trust to provide financial assistance<br />
to individuals with disabilities,<br />
including assistance to defer the<br />
cost <strong>of</strong> supplemental services.<br />
Through this Trust, there are<br />
many Sub-Trusts wherein each<br />
Sub-Trust benefits an individual<br />
beneficiary and is designated in the<br />
name <strong>of</strong> such beneficiary. The<br />
Trust in question is the Friends <strong>of</strong><br />
CLS, Inc. Pooled Accounts Trust<br />
f/b/o XXXXXXXX. As demonstrated<br />
by the enclosed Deed, the Sub-<br />
Trust owns the residence now<br />
being used as XXXXXXXh’s semiindependent<br />
living arrangement.<br />
To qualify for the exemption,<br />
the property owner must satisfy the<br />
following requirements:<br />
The real estate must be owned<br />
and occupied by the exemption<br />
claimant;<br />
The exemption claimant must<br />
be a library, charitable, educational<br />
or scientific institution;<br />
The claimant must have been<br />
incorporated under the laws <strong>of</strong> the<br />
State <strong>of</strong> Michigan;<br />
The exemption exists only<br />
when the building or other property<br />
therein, are occupied by the<br />
claimant solely for the purposes for<br />
which it was incorporated.<br />
From the above standard, the<br />
Trust should be granted the exemption.<br />
The Trust is currently owned<br />
and occupied by the Friends <strong>of</strong> CLS,<br />
Inc. Pooled Accounts Trust f/b/o<br />
XXXXXXX. By the terms <strong>of</strong> the<br />
Pooled Accounts Trust, Sub-Trust<br />
and the main Trust, the Trust can<br />
only benefit an individual who is cop-<br />
(continued on page 15)<br />
14
Address Medicaid’s<br />
Institutional Bias, and<br />
Expand Your Practice<br />
(continued from page 14)<br />
ing with a disability. Assisting individuals<br />
with a disability falls directly<br />
within the charitable purposes<br />
Section 501(c)(3). When XXXXX<br />
passes away, the Terms <strong>of</strong> Trust<br />
require the property to be used for<br />
supportive housing for people with<br />
disabilities who are indigent under<br />
Section XI (2).<br />
The enclosed Articles <strong>of</strong><br />
Incorporation show that Friends <strong>of</strong><br />
CLS, Inc. is in fact incorporated in<br />
the State <strong>of</strong> Michigan and is a nonpr<strong>of</strong>it<br />
entity. The Friends <strong>of</strong> CLS,<br />
Inc. chose to utilize the Trust to<br />
accomplish this goal <strong>of</strong> providing<br />
and assisting individuals with disabilities.<br />
The purposes for which all <strong>of</strong><br />
the above-referenced entities were<br />
established is the charitable purpose<br />
<strong>of</strong> supporting individuals with<br />
disabilities. Providing support for<br />
the housing needs for XXXXXX, an<br />
individual with disabilities, fulfills<br />
the Friends <strong>of</strong> CLS, Inc. charitable<br />
purpose and thus satisfies this<br />
requirement for a property tax<br />
exemption.<br />
We request that you modify<br />
your tax records to indicate that<br />
the above-referenced parcel is<br />
exempt from taxation until it is<br />
transferred or is no longer<br />
engaged in this charitable purpose.<br />
It is important that NAELA<br />
members understand the system<br />
barriers that make it difficult for us<br />
to assist our clients that desire to<br />
live in places other than nursing<br />
homes and institutions. I encourage<br />
you to use your advocacy skills<br />
to address the Medicaid institutional<br />
bias, and, who knows, you just<br />
might end up expanding your practice<br />
into new areas at the same<br />
time.<br />
Memoirs <strong>of</strong> a Counsellor:<br />
“After So Much Time...”<br />
Bridget O’Brien Swartz, Esq.<br />
(aka Social Worker at Heart)<br />
Ah, Maggie. After nearly<br />
eight years serving as your<br />
counsellor, advocate, I’ve<br />
finally become a part <strong>of</strong> the<br />
conspiracy against you. It<br />
was inevitable, I suppose.<br />
I was “forced” to be your<br />
attorney by order <strong>of</strong> the<br />
court, after you expressed<br />
dissatisfaction with your former<br />
court-appointed attorney.<br />
I, and others, <strong>of</strong>ten<br />
wondered why I did more<br />
than what is normally<br />
required <strong>of</strong> a court-appointed<br />
attorney. Those <strong>of</strong> us who<br />
practice law, particularly,<br />
those <strong>of</strong> us who are <strong>Elder</strong><br />
<strong>Law</strong> attorneys, all have at<br />
least one, probably more<br />
such cases for which the<br />
reason we feel a strong connection<br />
is uncertain.<br />
Yes, you were a challenge,<br />
lacking insight into your mental illness, blaming others for your circumstances,<br />
impossible to reason with... But that’s the nature <strong>of</strong> your illness,<br />
isn’t it? I <strong>of</strong>ten wondered why those with training and experience<br />
in dealing with persons such as yourself were repeatedly at a loss as to<br />
how to “treat” you. Talking around you, as if you weren’t present.<br />
Talking condescendingly, despite acknowledgement <strong>of</strong> your intelligence.<br />
The least I could do was be present, unlike your family, and stand at<br />
your side when you so <strong>of</strong>ten believed the world was against you.<br />
Sometimes I believed that as well! You trusted me and I gave you hope.<br />
Why? I do not know. Maybe it was because I would see and believe<br />
what was truth when no one else could sift through the delusions or rise<br />
above their frustrations.<br />
And now, even I cannot help or give you encouragement as, in your<br />
eyes, I’m “one <strong>of</strong> them.” So, it’s the end <strong>of</strong> an era, so to speak. I hope<br />
your new “counsellor” is able to do for you what I no longer can. But in<br />
my heart <strong>of</strong> hearts, I unfortunately know that the next person won’t have<br />
the same will or desire; won’t recognize that you have no one else who’ll<br />
accept you for who you are. What was a case that stood out from the<br />
rest for me, will just be one <strong>of</strong> many for the next person. Ah, Maggie . . .<br />
Patricia E. K. Dudek, Esq., practices<br />
<strong>Elder</strong> <strong>Law</strong> in Bloomfield Hills, MI.<br />
Bridget O’Brien Swartz, Esq., practices <strong>Elder</strong> <strong>Law</strong> in Phoenix, AZ.<br />
15
ook review<br />
“Mom Are You There?”<br />
by Kathleen A. Negri<br />
ISBN: 0-9763557-0-1<br />
Reviewed by<br />
John J. Husson, Esq.<br />
Book Review<br />
“Mom Are You There?” is a<br />
compelling story by Kathleen A.<br />
Negri, a successful <strong>Elder</strong> <strong>Law</strong><br />
Attorney, who convincingly<br />
explains how she transformed her<br />
mother’s diagnosis <strong>of</strong> Alzheimer’s<br />
disease into a positive life changing<br />
event for both she and her mother<br />
and other members <strong>of</strong> her family.<br />
The author takes us from the initial<br />
telltale and progressively worsening<br />
warning signs <strong>of</strong> her mother’s forgetfulness<br />
and other behavioral<br />
clues <strong>of</strong> dementia to the doctor’s<br />
<strong>of</strong>fice where the definitive diagnosis<br />
is communicated to the family.<br />
Obtaining the specific diagnosis is<br />
emphasized as important for the<br />
family who must be able to deal<br />
with the reality <strong>of</strong> Alzheimer’s.<br />
The book is written as a life<br />
changing journey for the author<br />
who describes how she was able to<br />
put aside long term negative childhood<br />
memories <strong>of</strong> her mother and<br />
focus on her as a person freed in<br />
her present condition from what<br />
she describes as her mother’s “hard<br />
wiring.” Dementia is described by<br />
the author as a condition which<br />
strips away many <strong>of</strong> the negative<br />
qualities <strong>of</strong> its victims’ personalities<br />
transforming them into more <strong>of</strong> a<br />
childlike presence.<br />
The author’s story is especially<br />
important in view <strong>of</strong> a staggering<br />
19 million families who are impacted<br />
by the disease. We are reminded<br />
that the large majority <strong>of</strong><br />
Alzheimer’s victims remain cared for<br />
at home and with an estimated lifetime<br />
cost <strong>of</strong> $175,000. Helpful<br />
information is provided about the<br />
need for financial, medical and<br />
legal planning, support groups and<br />
other resources, but the best part<br />
<strong>of</strong> the book focuses on the<br />
author’s ability to describe in<br />
detail how she dealt emotionally<br />
with her mother’s<br />
disease as a positive<br />
and healing event.<br />
It is the emotional<br />
upheaval caused by<br />
Alzheimer’s that tears many<br />
families apart due to the<br />
huge financial and disturbing<br />
stresses imposed on them. The<br />
author does an admirable job in<br />
convincing the reader that<br />
Alzheimer’s can be liberating in<br />
many ways. For example, her<br />
mother Patricia though dogmatic<br />
and cold in her earlier years, now<br />
because <strong>of</strong> the disease can only<br />
deal with the present moment and<br />
her warmth shines. It is the<br />
remaining moments on the journey<br />
with her mother that the<br />
author emphasizes as being so<br />
important to the emotional health<br />
<strong>of</strong> both the victim <strong>of</strong> the disease<br />
and family members. Because<br />
the loved one simply “emotes” as<br />
the disease progresses it is much<br />
easier to have a “linking <strong>of</strong> the<br />
spirits”. The author suggests to<br />
the reader “listen to your inner<br />
child’s voice” and “do things for<br />
their person” in order to make the<br />
final journey positive and life<br />
rewarding.<br />
The most helpful section <strong>of</strong><br />
the book deals with what the<br />
author refers to as the journey or<br />
a path to peace for both the loved<br />
one and the loved one’s family.<br />
Being able to think differently<br />
about dementia is critical to the<br />
emotional health <strong>of</strong> the family.<br />
The need to put away negative life<br />
experiences since the loved one<br />
with Alzheimer’s can no longer<br />
experience the past is a recurrent<br />
theme. The author refers to this<br />
as leaving your agenda at home<br />
or doing away with what is<br />
referred to as “stinking thinking”.<br />
16<br />
This change<br />
in attitude and approach<br />
made a tremendous difference in<br />
the author’s ability to genuinely<br />
enjoy and appreciate her mother<br />
on her final journey to death.<br />
The author includes lots <strong>of</strong><br />
understandable guidance and<br />
practical tips throughout the book<br />
on what families can do in order<br />
to deal effectively with this disease.<br />
For example, she suggests<br />
keeping a journal to help deal with<br />
negative childhood memories and<br />
to document the loved one’s life<br />
story in order to keep the focus<br />
positive. There are exercises at<br />
the end <strong>of</strong> each chapter which are<br />
designed to cause the reader to<br />
reflect on what behaviors and<br />
actions truly make a difference for<br />
both family and the loved one.<br />
The final section <strong>of</strong> the book<br />
impresses the reader that a successful<br />
journey as companion to<br />
the loved one with Alzheimer’s can<br />
translate into being better able to<br />
deal with many <strong>of</strong> life’s obstacles<br />
and difficulties. “Mom Are You<br />
There?” is required reading for all<br />
<strong>Elder</strong> <strong>Law</strong> <strong>Attorneys</strong> and especially<br />
families dealing with the tragedy<br />
<strong>of</strong> Alzheimer’s disease. The story<br />
<strong>of</strong> the author’s journey with her<br />
mother concludes with a very<br />
moving “Eulogy for a Mother”<br />
which will leave many eyes moist.<br />
John J. Husson, Esq. practices <strong>Elder</strong> <strong>Law</strong><br />
in Canon City, CO.
Vermont’s Long-Term Care Waiver<br />
Gene C<strong>of</strong>fey, Esq.<br />
Most <strong>of</strong> us have had our<br />
attention focused over the last<br />
several months on Congress’ effort<br />
to radically change Medicaid’s<br />
financial eligibility rules. In the<br />
midst <strong>of</strong> this battle, however, the<br />
U.S. Department <strong>of</strong> Health and<br />
Human Services (HHS), acting on<br />
a long-standing request, has<br />
granted Vermont permission to<br />
dramatically restructure its<br />
Medicaid long-term care delivery<br />
system through a Section 1115<br />
demonstration waiver. 1 State<br />
Medicaid directors are already racing<br />
to put together similar proposals.<br />
Vermont’s new program,<br />
Choices for Care (CRC), may soon<br />
be the model for states’ Medicaid<br />
coverage <strong>of</strong> long-term care services.<br />
The Plan<br />
In 2003, Vermont concluded<br />
that its state budget problems and<br />
the aging <strong>of</strong> the Baby Boomer<br />
population created an “imperative”<br />
to implement “wholesale” changes<br />
in its delivery <strong>of</strong> Medicaid longterm<br />
care services. 2 It therefore<br />
decided to make two fundamental<br />
changes to the program: 1) make<br />
home and community-based services,<br />
previously available only on a<br />
limited basis to Medicaid enrollees<br />
through Section 1915 waivers, a<br />
mandatory Medicaid benefit available<br />
to any Medicaid enrollee in<br />
need <strong>of</strong> long-term care; and 2)<br />
provide limited community-based<br />
services to individuals deemed “at<br />
risk” <strong>of</strong> long-term care. Vermont<br />
hopes that this expanded commitment<br />
to non-institutional services,<br />
in addition to helping Vermonters<br />
avoid institutionalization, will<br />
enhance beneficiary satisfaction<br />
and reduce costs.<br />
On the other hand, reducing<br />
costs was the motivation for the<br />
program, so there are some strictly<br />
cost-reducing features. These<br />
include an overall spending cap for<br />
long-term care services, a waiting<br />
list for certain eligible individuals,<br />
and narrowed clinical eligibility<br />
standards for coverage. HHS<br />
granted approval <strong>of</strong> Vermont’s<br />
demonstration waiver request on<br />
June 13, 2005.<br />
The program works as follows.<br />
If the state determines that an<br />
individual applying for immediate<br />
coverage <strong>of</strong> long-term care services<br />
is clinically eligible, the individual<br />
is placed into either the “highest<br />
need” or “high need” category.<br />
Individuals meeting the highest<br />
need clinical criteria are guaranteed,<br />
or entitled, to coverage <strong>of</strong><br />
their choice <strong>of</strong> services+institutional<br />
services<br />
or home and<br />
communitybased<br />
services.<br />
For high need<br />
individuals, the<br />
same choice<br />
exists, but<br />
Medicaid coverage<br />
for services<br />
is dependent<br />
on the availability<br />
<strong>of</strong> funding.<br />
For all individuals<br />
choosing<br />
home and community-based<br />
services, a case<br />
manager develops the menu <strong>of</strong><br />
services for which the individual<br />
will receive coverage based primarily<br />
on the results <strong>of</strong> an<br />
Independent Living Assessment.<br />
Each high need individual for<br />
whom funding is not currently<br />
available is placed on a waiting list<br />
and given a priority score based<br />
on the individual’s level <strong>of</strong> need.<br />
A case manager communicates<br />
with the individual monthly to<br />
monitor the individual’s health.<br />
Financial eligibility rules, including<br />
spousal impoverishment rules,<br />
were not modified for the waiver,<br />
save for a slight increase in the<br />
resource limit for those choosing<br />
the home and community-based<br />
option.<br />
There also exists a third category,<br />
called the “moderate need”<br />
category. Individuals who are not<br />
in current need <strong>of</strong> long-term care<br />
but with some need for assistance<br />
with an activity <strong>of</strong> daily living may<br />
receive coverage for case management,<br />
adult day care and homemaker<br />
services, “so that their conditions<br />
can be stabilized or<br />
improved, thus avoiding or delaying<br />
more costly institutional care.” 3<br />
A sum <strong>of</strong> $1.7 million will be set<br />
aside annually for this category,<br />
with a waiting list to develop as<br />
funding is exhausted. The state<br />
expects to enroll close to 400 individuals<br />
in the moderate needs category<br />
over the five-year course <strong>of</strong><br />
the waiver.<br />
Pros, Cons<br />
Certainly, the primary benefits<br />
<strong>of</strong> this approach are significant<br />
and dramatic. By creating an entitlement<br />
to home and communitybased<br />
services, Vermont has<br />
(continued on page 20)<br />
17
a d v e r t i s e m e n t
a d v e r t i s e m e n t
Vermont’s Long-<br />
Term Care Waiver<br />
(continued from page 17)<br />
struck an extraordinary blow<br />
against the historical institutional<br />
bias <strong>of</strong> the Medicaid program.<br />
And by expanding services to a<br />
segment <strong>of</strong> its potential longterm<br />
care population, including<br />
individuals who would not otherwise<br />
qualify for Medicaid, 4 the<br />
state is truly taking an<br />
innovative, consumerfriendly<br />
approach to<br />
its long-term care<br />
model.<br />
But just as the<br />
obvious, prominent<br />
benefit <strong>of</strong> CRC is its<br />
blow against the institutional<br />
bias <strong>of</strong><br />
Medicaid, the obvious,<br />
prominent drawback<br />
<strong>of</strong> CRC is the end <strong>of</strong><br />
the entitlement to<br />
long-term care services<br />
for “high need”<br />
individuals. Federal<br />
law mandates that, at a minimum,<br />
states provide their<br />
Medicaid beneficiaries in need <strong>of</strong><br />
long-term care coverage for<br />
nursing facility services, or home<br />
and community-based services if<br />
a slot is available in a state’s<br />
HCBS program. 5 However, under<br />
CRC, a Vermont Medicaid beneficiary<br />
who demonstrates a need<br />
for long-term care by meeting<br />
the high need clinical eligibility<br />
criteria may be forced onto a<br />
waiting list if funding is not currently<br />
available for services. 6<br />
The state maintains that the vast<br />
majority <strong>of</strong> Medicaid beneficiaries<br />
demonstrating a need for longterm<br />
care will meet the highest<br />
need standard, which will entitle<br />
them to coverage for services. 7<br />
Even if that is so, the fact<br />
remains that some high need<br />
individuals qualifying for coverage<br />
will not be entitled to receive<br />
services until funds become<br />
available.<br />
Vermont’s<br />
approach clearly<br />
is a more enlightened<br />
approach<br />
and broadens<br />
the dialog about<br />
possible methods<br />
<strong>of</strong> modifying<br />
health care<br />
approaches.<br />
Is it the Right Model?<br />
What is positive about<br />
Vermont’s approach is that it actually<br />
has any “pros” at all.<br />
Heret<strong>of</strong>ore, the prevailing idea in<br />
both Congress and in states (e.g.,<br />
Massachusetts, Minnesota, New<br />
Hampshire) has been to address<br />
the potential increase in demand<br />
only by drastically reducing the<br />
pool <strong>of</strong> eligibles through more<br />
punitive asset<br />
transfer rules. 8<br />
Vermont is seeking<br />
to reduce or<br />
limit costs too, but<br />
is also striving to<br />
enhance consumer<br />
satisfaction<br />
and allow for<br />
expanded enrollment.<br />
Vermont’s<br />
approach clearly is<br />
a more enlightened<br />
approach<br />
and broadens the<br />
dialog about possible<br />
methods <strong>of</strong><br />
modifying health care approaches.<br />
But, as outlined above, the plan<br />
contains some serious drawbacks,<br />
and it is not readily apparent<br />
whether the “pro” will outweigh<br />
the “con.” Obviously, much will<br />
turn on the frequency with which<br />
funds become exhausted, making<br />
services “temporarily” unavailable,<br />
for high need and moderate need<br />
individuals. The good news is<br />
that, with a five year lifetime<br />
(2009), the results <strong>of</strong> the waiver<br />
will be known before the Baby<br />
Boomers reach age 65.<br />
In the meantime, states’<br />
efforts to redesign their long-term<br />
care programs will continue, which<br />
makes it imperative for advocates<br />
to capitalize on any opportunity to<br />
play a role in the development<br />
process. Both Kentucky and<br />
Florida have submitted demonstration<br />
waiver proposals to HHS within<br />
the last few months to redesign<br />
their long-term care programs<br />
Other states will certainly follow.<br />
There is little doubt that<br />
financial concerns will be the<br />
driving force behind these state<br />
proposals. However, if states<br />
seek only to cut costs and do not<br />
attempt, as Vermont has, to<br />
enhance consumer satisfaction<br />
and expand choice, their programs<br />
will fail. Pure cost cutting<br />
will result either in the denial <strong>of</strong><br />
care to those in need or the<br />
damage <strong>of</strong> care to those receiving<br />
it, which in turn is likely to<br />
increase state costs instead <strong>of</strong><br />
decreasing them. Additionally,<br />
forcing family members to fill a<br />
void created by a purely budgetcutting<br />
measure may produce a<br />
consumer backlash. As a result,<br />
nothing will be gained by either<br />
the state or its Medicaid beneficiaries.<br />
Therefore, to preserve the<br />
solvency <strong>of</strong> state budgets in the<br />
face <strong>of</strong> increased demand for<br />
expensive long-term care coverage,<br />
states will have to place on<br />
equal footing with their effort to<br />
reduce costs a directive to<br />
ensure that quality care is provided<br />
within a dynamic range <strong>of</strong><br />
services.<br />
Gene C<strong>of</strong>fey, Esq., is a staff attorney<br />
with the <strong>National</strong> Senior Citizens <strong>Law</strong><br />
Center in Washington D.C.<br />
Endnotes<br />
1 “Section 1115” is the common<br />
designation for waivers granted<br />
under 42 U.S.C. § 1315, which<br />
is Section 1115 <strong>of</strong> the Social<br />
Security Act. This statute provides<br />
the agency the authority<br />
to waive a state’s compliance<br />
with certain provisions <strong>of</strong> the<br />
Medicaid Act if the state wants<br />
to implement a demonstration<br />
project that, in the judgment <strong>of</strong><br />
(HHS), is “likely to assist in<br />
promoting the objectives” <strong>of</strong><br />
the Act. Section 1115 waivers<br />
are generally more broad than<br />
their counterparts, Section<br />
1915 waivers (42 U.S.C.<br />
§1396n). Section 1915 waivers<br />
are narrowly tailored to allow<br />
states to <strong>of</strong>fer home and com-<br />
(continued on page 21)<br />
20
Vermont’s Long-<br />
Term Care Waiver<br />
(continued from page 20)<br />
munity-based services so that<br />
some <strong>of</strong> those who are eligible<br />
for nursing facility coverage<br />
may avoid institutionalization.<br />
2 The Vermont Long-Term Care<br />
Plan: A Demonstration Waiver<br />
Proposal to the Centers for<br />
Medicare and Medicaid<br />
Services, October 1, 2003<br />
(pages 2-4).<br />
3 The Vermont Long-Term Care<br />
Plan: A Demonstration Waiver<br />
Proposal to the Centers for<br />
Medicare and Medicaid<br />
Services, October 1, 2003<br />
(page 4).<br />
4 Like the highest need and high<br />
need categories, the moderate<br />
need category allows individuals<br />
with income up to 300% <strong>of</strong><br />
the federal poverty level to<br />
qualify for coverage. But while<br />
federal law allows a state to<br />
provide coverage to individuals<br />
at that level <strong>of</strong> income if they<br />
need long-term care, 42 U.S.C.<br />
§1396a(a)(10)(A)(ii)(V) and<br />
(VI), no authority exists, absent<br />
the waiver, for having Medicaid<br />
provide services to individuals<br />
at that income who are merely<br />
at risk <strong>of</strong> long-term care.<br />
5 42 U.S.C. §1396a(a)(10)<br />
6 Because the state asked for a<br />
waiver <strong>of</strong> Medicaid’s reasonable<br />
promptness requirement, 42<br />
U.S.C. §1396a(a)(8), the state<br />
may place a Medicaid beneficiary<br />
on a waiting list.<br />
7 Standard for high need is the<br />
same as it was before, so,<br />
essentially, the state is requiring<br />
a higher level <strong>of</strong> need to<br />
prove entitlement to coverage<br />
for services<br />
8 The state efforts have come in<br />
the form <strong>of</strong> Section 1115<br />
waivers, none <strong>of</strong> which have<br />
been approved by HHS. With<br />
regard to the impact <strong>of</strong> one <strong>of</strong><br />
Congress’ original proposals to<br />
change the transfer rules, the<br />
Congressional Budget Office<br />
(CBO) estimated that 120,000<br />
individuals would have their<br />
Medicaid eligibility at least<br />
“delayed” as a result <strong>of</strong> the<br />
House <strong>of</strong> Representatives’ proposal.<br />
See Additional<br />
Information on CBO’s Estimate<br />
for the Medicaid Provisions in<br />
H.R. 4241, the Deficit<br />
Reduction Act <strong>of</strong> 2005,<br />
November 9, 2005.<br />
Discussions <strong>of</strong> Fees<br />
By Hugh K. Webster, Esq.<br />
NAELA Legal Counsel<br />
How many<br />
compete?<br />
What is the<br />
extent <strong>of</strong> that<br />
competition?<br />
Interesting<br />
questions<br />
perhaps...<br />
I would like to provide<br />
some further clarification<br />
on the topic <strong>of</strong> discussions<br />
<strong>of</strong> fees at NAELA<br />
events and on NAELA<br />
email discussion lists.<br />
It has been suggested<br />
that NAELA members do<br />
not compete with each<br />
other, and therefore there are no<br />
restrictions on how members<br />
interact. From a factual standpoint,<br />
<strong>of</strong> course, this<br />
is not true. NAELA<br />
members compete<br />
with other NAELA<br />
members every day.<br />
How many compete?<br />
What is the extent<br />
<strong>of</strong> that competition?<br />
Interesting questions<br />
perhaps, but completely<br />
academic<br />
ones to federal regulators<br />
who wish to<br />
pursue an investigation.<br />
I know because<br />
I have been through these investigations.<br />
And they can be extremely<br />
burdensome in terms <strong>of</strong> expenditure<br />
<strong>of</strong> time, energy, focus, and<br />
<strong>of</strong> course money. This is true for<br />
the association itself and for the<br />
members that are targeted as<br />
well.<br />
Also bear in mind that the<br />
Sherman Antitrust Act is not the<br />
only trade regulation statute. For<br />
example, the Federal Trade<br />
Commission Act prohibits, among<br />
other things, “unfair” trade practices.<br />
“Unfair” is essentially whatever<br />
the Federal Trade<br />
Commission decides is unfair, and<br />
the FTC does not have to show, or<br />
even allege, actual harm to competition.<br />
Further, associations <strong>of</strong> pr<strong>of</strong>essionals<br />
are a favorite target<br />
<strong>of</strong> antitrust regulators.<br />
Organizations comprised<br />
<strong>of</strong> architects, physicians,<br />
engineers, social workers,<br />
dentists, etc. are some<br />
examples <strong>of</strong> those that<br />
have been investigated<br />
and successfully prosecuted<br />
(civilly) by the Department <strong>of</strong><br />
Justice or Federal Trade<br />
Commission. What would the<br />
reaction <strong>of</strong> the DOJ<br />
or FTC be if they<br />
heard <strong>of</strong> a national<br />
association <strong>of</strong> attorneys<br />
that sanctions<br />
fee discussions during<br />
sessions at its<br />
meetings or on<br />
email discussion<br />
lists? Frankly, it<br />
would be like waiving<br />
red meat in<br />
front a pack <strong>of</strong><br />
hungry dogs.<br />
Finally, <strong>of</strong><br />
course it can be very useful for<br />
competitors, or non-competitors<br />
in the same industry or pr<strong>of</strong>ession,<br />
to have information regarding<br />
what others are charging.<br />
This improves efficiency, etc. But<br />
the legal way to gather and disseminate<br />
this information - the<br />
way that has been sanctioned by<br />
the courts and the regulatory<br />
agencies - is by submission <strong>of</strong><br />
data to a third party, such as an<br />
association, that then compiles<br />
the data and reports it back in<br />
composite form. The data can be<br />
organized in several ways, including<br />
geographically, but the rates<br />
<strong>of</strong> individual practitioners are not<br />
revealed.<br />
I hope this information is<br />
helpful.<br />
21
The Case Against Court Certification<br />
<strong>of</strong> Guardians; the Case for<br />
Licensing and Regulation<br />
By Margaret K. Dore, Esq.<br />
A. Introduction<br />
With increasing numbers <strong>of</strong><br />
Americans living longer, many are<br />
finding themselves under guardianship.<br />
The guardian appointed may<br />
be a family member or friend, or a<br />
“pr<strong>of</strong>essional” guardian or guardianship<br />
company.<br />
In many, if not most instances,<br />
the guardian is honest and hardworking<br />
for his ward’s<br />
interests. In other cases,<br />
however, the guardian<br />
abuses or exploits the<br />
ward. The exact magnitude<br />
<strong>of</strong> this problem is<br />
not known, but the<br />
names <strong>of</strong> web sites and<br />
articles in the popular<br />
press tell the story. See:<br />
www.victims<strong>of</strong>guardianship.net;<br />
www.justiceforfloridaseniors.org;<br />
and Barry Yeoman,<br />
Stolen Lives: Thousands <strong>of</strong> Older<br />
Americans Are Being Robbed <strong>of</strong><br />
Their Freedom, Dignity, and Life<br />
Savings by a Legal System Created<br />
for Their Protection. How Can this<br />
Happen? 1<br />
B. The Courts Respond<br />
The issue <strong>of</strong> guardianship<br />
abuse has also caught the attention<br />
<strong>of</strong> the courts. In Washington State,<br />
pr<strong>of</strong>essional guardians are now<br />
required to be certified by the<br />
Washington State Supreme Court<br />
as part <strong>of</strong> the “Pr<strong>of</strong>essional<br />
Guardian Certification Program.” 2<br />
The program is administered by the<br />
Administrative Office <strong>of</strong> the Courts<br />
in conjunction with a “Certified<br />
Pr<strong>of</strong>essional Guardian Board.” 3<br />
Arizona has a similar program. 4<br />
Court certification <strong>of</strong> guardians is<br />
also being promoted as an appropriate<br />
alternative for other states. 5<br />
The premise <strong>of</strong> this article is<br />
that this well meaning effort to<br />
increase guardianship accountability<br />
is misplaced. Although courts have<br />
traditionally been responsible for<br />
guardianship oversight, they are illsuited<br />
for this function. Guardians<br />
should be licensed and regulated under<br />
the executive branch, not the courts.<br />
In many, if not most instances,<br />
the guardian is honest and<br />
hardworking for his ward’s interests.<br />
In other cases, however, the guardian<br />
abuses or exploits the ward.<br />
C. Historical Practice: The<br />
Court as “Supervisor” <strong>of</strong> the<br />
Guardian<br />
With court supervision <strong>of</strong><br />
guardianships, the court is deemed<br />
the “superior guardian” with the<br />
guardian an “arm <strong>of</strong> the court.” 39<br />
Am Jur 2d, Guardian and Ward, §§<br />
1 and 94, (1999). The court supervises<br />
guardianship administration by<br />
supervising the guardian, its<br />
“agent.” Cf. In Re Gaddis’<br />
Guardianship, 120 P.2d 849, 853<br />
(Wash. 1942)(“The guardian is in<br />
effect an agent <strong>of</strong> the court, and<br />
through him the court seeks to protect<br />
the ward’s interest”).<br />
With this scenario, the guardian<br />
petitions the court for approval <strong>of</strong><br />
its management <strong>of</strong> the ward’s<br />
affairs. The court may be asked to<br />
approve day to day issues such as<br />
whether the ward’s car should be<br />
repaired and the amount <strong>of</strong> the<br />
ward’s allowance. 6 The matters at<br />
22<br />
issue can also include whether litigation<br />
should be pursued, or<br />
whether the ward should be<br />
required to undergo an operation. 7<br />
The rationale for court supervision<br />
is that because the court<br />
appoints the guardian, it follows<br />
that the court is required to oversee<br />
the guardianship’s administration.<br />
Gaddis states:<br />
When a guardian has been<br />
appointed and has qualified, the<br />
court acquires general jurisdiction<br />
over the estate <strong>of</strong> the ward. The<br />
guardian, in so far as matters pertaining<br />
to his trust are concerned, is<br />
directly responsible only to the<br />
court <strong>of</strong> his appointment. The<br />
guardian is in effect an<br />
agent <strong>of</strong> the court, and<br />
through him the court<br />
seeks to protect the<br />
ward’s interest. It<br />
would seem to follow,<br />
therefore, that the<br />
court which appoints a<br />
guardian is required by<br />
statute to continue the<br />
supervisory control <strong>of</strong><br />
the ward’s estate throughout its<br />
administration. (Citations omitted;<br />
Emphasis added). Gaddis, 120<br />
P.2d at 853.<br />
On close examination, this<br />
rationale for court supervision <strong>of</strong><br />
guardianships is flawed. It does<br />
not follow that because the court<br />
appointed the guardian, the court<br />
must oversee the guardianship’s<br />
administration. A court sentences<br />
people to prison. Courts do not<br />
oversee prison administration. 8<br />
D. A Contrast to Other<br />
Activities<br />
The “job” <strong>of</strong> a guardian is to<br />
manage the affairs <strong>of</strong> persons who<br />
have been placed under guardianship,<br />
which is a severe loss <strong>of</strong> liberty.<br />
Matter <strong>of</strong> Guardianship <strong>of</strong><br />
Hedin, 528 N.W.2d 567, 573-74<br />
(Iowa 1995), states:<br />
Although the determination <strong>of</strong><br />
incompetency is in no way a crimi-<br />
(continued on page 23)
The Case Against Court<br />
Certification <strong>of</strong> Guardians;<br />
the Case for Independent<br />
Third Party Oversight<br />
(continued from page 22)<br />
nal proceeding, the result in terms<br />
<strong>of</strong> the defendant’s liberty interests<br />
may be very similar. He may be<br />
deprived <strong>of</strong> control over his residence,<br />
his associations, his property,<br />
his diet, and his ability to go<br />
where he wishes. 9<br />
Other persons who engage in<br />
similar activity are not “supervised”<br />
by a court. Again, the<br />
example was given <strong>of</strong> a prison.<br />
Guardianship companies also<br />
function as financial institutions<br />
similar to banks or trust companies.<br />
10 Banks and trust companies<br />
are not “supervised” by courts, but<br />
regulated under the executive<br />
branch. 11<br />
E. Problems Inherent With<br />
Court Supervision <strong>of</strong><br />
Guardians<br />
The Washington State<br />
Supreme Court’s oversight <strong>of</strong> pr<strong>of</strong>essional<br />
guardians is analogous to<br />
its oversight <strong>of</strong> attorneys. In both<br />
cases, the Court performs its<br />
supervisory functions via an<br />
administrative body that works in<br />
conjunction with a board. 12<br />
The difference is that the<br />
members <strong>of</strong> the Supreme Court<br />
are themselves attorneys. They<br />
know what attorneys are supposed<br />
to do and not do.<br />
“<strong>Law</strong>yering” is also part <strong>of</strong> the<br />
Court’s business <strong>of</strong> adjudicating<br />
disputes.<br />
By contrast, the members <strong>of</strong><br />
the Supreme Court are not pr<strong>of</strong>essional<br />
guardians. The job <strong>of</strong> being<br />
a guardian is different from the<br />
Court’s business <strong>of</strong> adjudicating<br />
disputes. This situation, in and <strong>of</strong><br />
itself, reduces the likelihood for the<br />
success <strong>of</strong> guardian oversight by<br />
the Supreme Court. There are,<br />
however, more serious problems.<br />
See below.<br />
1. The prohibition against ex<br />
parte contact “chills” a court’s<br />
ability to provide effective<br />
supervision<br />
In general, successful supervision<br />
<strong>of</strong> an activity requires a close<br />
relationship between the supervisor<br />
and the person supervised. A<br />
good supervisor should also be<br />
open to receiving information and<br />
complaints from multiple sources.<br />
This does not occur in the context<br />
<strong>of</strong> court supervision <strong>of</strong><br />
guardians due to the prohibition<br />
against ex parte contact. 13 The prohibition<br />
prevents courts and<br />
guardians from developing the necessary<br />
close relationships. It also<br />
prevents courts from learning about<br />
a guardian’s wrongdoing. Persons<br />
with information are generally prohibited<br />
from contacting the court.<br />
The prohibition against ex parte<br />
contact acts to prevent courts from<br />
providing effective guardianship<br />
supervision.<br />
2. The combination <strong>of</strong> supervisory<br />
and adjudicatory roles distorts<br />
the normal functioning <strong>of</strong><br />
courts; the parties’ rights are<br />
violated<br />
With the trial court in a supervisory<br />
role over the guardian as its<br />
“agent,” the trial court, in effect,<br />
becomes a party to the case in<br />
which it is adjudicating. This situation<br />
compromises judicial impartiality<br />
because the court is by definition<br />
aligned with the guardian. Litigants<br />
who oppose the guardian are<br />
deprived <strong>of</strong> their right to an unbiased<br />
tribunal and the “appearance<br />
<strong>of</strong> fairness.” 14<br />
With the court in a supervisory<br />
role, the right to review is also<br />
compromised. If a guardian does<br />
not agree with a trial court’s order,<br />
the guardian must seek approval to<br />
appeal from the court that issued<br />
the order. 15 The trial court has the<br />
ability to prevent its own appeal.<br />
In a case reviewed by this<br />
author, the trial court also in effect<br />
became a party to the ward’s<br />
23<br />
appeal. The ward in question<br />
wanted termination <strong>of</strong> his guardianship.<br />
The trial court denied termination<br />
and also discharged his<br />
attorney with instructions that she<br />
was not to assist him to appeal.<br />
When she nonetheless assisted<br />
him, the trial court in its supervisory<br />
capacity instructed the guardian to<br />
challenge her authority in the<br />
appellate court. The trial court<br />
through its agent was in effect a<br />
party to the ward’s appeal.<br />
The combination <strong>of</strong> supervisory<br />
and adjudicatory roles thus distorts<br />
the normal functioning <strong>of</strong> courts.<br />
The trial court is not a neutral decision-maker,<br />
but a party participant.<br />
This scenario is counter to the<br />
Model Code <strong>of</strong> Judicial Conduct,<br />
Canon 1:<br />
An independent ... judiciary is<br />
indispensable to justice in our society.<br />
16<br />
3. Treating the guardian as an<br />
agent or arm <strong>of</strong> the court compromises<br />
fact-finding<br />
With the guardian deemed an<br />
agent or arm <strong>of</strong> the court, trial<br />
courts tend to treat guardians as<br />
guardians ad litem, i.e., the<br />
guardians provide reports and “recommendations”<br />
as to how the court<br />
should rule. 17 In the context <strong>of</strong><br />
guardians ad litem, this practice has<br />
been criticized, but is allowed<br />
because guardians ad litem are<br />
thought to be “neutral advisors” to<br />
the court. 18<br />
A guardianship company that<br />
makes its living by collecting fees<br />
through court approval, is not, however,<br />
a neutral party. This is especially<br />
true when the guardian has<br />
been accused <strong>of</strong> wrongdoing. This<br />
author has nonetheless observed<br />
the court to ask the guardian for a<br />
recommendation as to what should<br />
be done, the pre-judged implication<br />
being that the guardian has done<br />
nothing wrong. Fact finding is<br />
thereby compromised.<br />
(continued on page 24)
The Case Against Court<br />
Certification <strong>of</strong> Guardians;<br />
the Case for Independent<br />
Third Party Oversight<br />
(continued from page 23)<br />
4. Court supervision requires<br />
complaining parties to take on<br />
the risk <strong>of</strong> litigation<br />
Another problem with court<br />
supervision <strong>of</strong> guardians is that the<br />
ward or other complaining party is<br />
required to take on the risk <strong>of</strong> litigation<br />
just to make the complaint.<br />
This situation may require the complaining<br />
party to hire an attorney.<br />
He or she may possibly also be<br />
required to pay the guardian’s fees<br />
if the complaint is deemed to lack<br />
merit. With the inherent cost <strong>of</strong> litigation,<br />
courts are <strong>of</strong>ten reluctant to<br />
perform an in-depth inquiry.<br />
These factors create “chilling<br />
effects” so that complaints are not<br />
made and if made, are not fully<br />
pursued. These factors do not,<br />
however, exist in the usual regulatory<br />
scheme. Good faith complainants<br />
generally have immunity<br />
from liability. 19 Any investigation is<br />
generally conducted outside <strong>of</strong> litigation.<br />
20<br />
F. Certification <strong>of</strong><br />
Pr<strong>of</strong>essional Guardians by<br />
the Supreme Court<br />
With certification <strong>of</strong> pr<strong>of</strong>essional<br />
guardians, the flawed model <strong>of</strong><br />
court supervision <strong>of</strong> guardianship<br />
administration is locked in place.<br />
An additional problem is that<br />
through certification, the Supreme<br />
Court’s imprimatur is placed on private<br />
individuals and companies<br />
whose activities are different from<br />
those <strong>of</strong> the Court. At present, the<br />
qualifications for these persons are<br />
also, minimal. 21 Yet they are certified<br />
by the Supreme Court similar<br />
to the admission <strong>of</strong> attorneys to the<br />
State Bar. There is the potential for<br />
the public to be misled as to the<br />
actual qualifications <strong>of</strong> the persons<br />
certified. 22<br />
Another problem is the potential<br />
disqualification <strong>of</strong> the Supreme<br />
Court. If a litigant brings a grievance<br />
against a guardian through<br />
the Pr<strong>of</strong>essional Guardian<br />
Certification Program, it would<br />
seem that the Court could later be<br />
disqualified to hear the same matter<br />
on review.<br />
G. How Licensing and<br />
Regulation Might Work<br />
In some states, there are current<br />
proposals for licensing and regulation<br />
<strong>of</strong> guardians under the executive<br />
branch. In California, for<br />
example, there is a pending bill to<br />
license conservators under the<br />
Department <strong>of</strong> Consumer Affairs. 23<br />
In Idaho, there is a pilot program in<br />
which conservator reports will be<br />
reviewed by the Idaho Department<br />
<strong>of</strong> Financial Institutions. 24<br />
In Washington State, guardians<br />
could be regulated under the<br />
Department <strong>of</strong> Financial Institutions.<br />
Indeed, the authorizing statute<br />
appears to already provide jurisdiction.<br />
25<br />
The advantage to using existing<br />
agencies is that they are already set<br />
up. On the other hand, guardianships<br />
involve unique issues, such<br />
that a stand alone agency under the<br />
executive branch could be desirable.<br />
Funding could possibly be<br />
obtained from licensing fees or from<br />
the wards’ estates, so that the<br />
agency would be revenue neutral. 26<br />
H. Conclusion<br />
Court supervision <strong>of</strong> guardianship<br />
administration puts courts<br />
and guardians in a principal-agent<br />
relationship, i.e., on the “same<br />
side” vis a vis the other parties.<br />
This structure is not only ineffective<br />
for guardian oversight, it disables<br />
the normal functioning <strong>of</strong><br />
the courts.<br />
The reported abuse and<br />
exploitation <strong>of</strong> wards by their<br />
guardians will continue unless<br />
there is effective regulation and<br />
oversight <strong>of</strong> those guardians.<br />
Court certification <strong>of</strong> guardians is,<br />
24<br />
however, not the answer.<br />
It is time to consider a different<br />
paradigm. Guardians should be<br />
licensed and regulated under the<br />
executive branch, not the Supreme<br />
Court. Other methods <strong>of</strong> third<br />
party oversight should be investigated<br />
and explored.<br />
Endnotes<br />
1 AARP MAGAZINE,<br />
January/February 2004<br />
(http://www.aarpmagazine.org/<br />
people/Articles/a2003-11-19-<br />
stolenlives.html). See also:<br />
Wendy Wendland-Bowyer Who’s<br />
Watching the Guardians?,<br />
DETROIT FREE PRESS, May 24,<br />
2000; Carol D. Leonnig et al,<br />
Under Court, Vulnerable Became<br />
Victims, WASHINGTON POST,<br />
June 15, 2003; Paul Rubin,<br />
Checks and Imbalances (How<br />
the State’s Leading Private<br />
Fiduciary Helped Herself to the<br />
Funds <strong>of</strong> the Helpless), PHOENIX<br />
NEW TIMES, June 15, 2000;<br />
Denise M. Topolnicki, The Gulag<br />
<strong>of</strong> Guardianship, MONEY MAGA-<br />
ZINE, March 1989; DIANE G.<br />
ARMSTRONG, THE NIGHTMARE<br />
RETIREMENT: HOW TO SAVE<br />
YOURSELF FROM YOUR HEIRS<br />
AND PROTECTORS (Prometheus<br />
Books, 2000); and www.retirementnightmare.com.<br />
2 In Washington State, the Supreme<br />
Court is the State’s highest court.<br />
The Washington Supreme Court’s<br />
“Pr<strong>of</strong>essional Guardian Certification<br />
Program” is described at<br />
http://www.courts.wa.gov/programs_orgs/pos_guardian/.<br />
3 See e.g.,<br />
http://www.courts.wa.gov/pro<br />
grams_orgs/pos_guardian/?fa=pos<br />
_guardian.boardlst.<br />
4 The Arizona Supreme Court<br />
Fiduciary Certification Program is<br />
described on the Arizona Supreme<br />
Court’s website at<br />
www.supreme.state.az.us/fiduc/gen<br />
info.htm.<br />
5 For example, on November 11,<br />
2004, the <strong>National</strong> College <strong>of</strong><br />
Probate Judges’ Conference in<br />
Colorado Springs featured a seminar<br />
titled: Guardianship<br />
Certification: What, Why and How.<br />
6 See e.g., In Re Guardianship <strong>of</strong><br />
Loren Stamm, King County Cause<br />
No. 01-4-05323-7 SEA, Orders<br />
entered on September 16, 2002<br />
and December 11, 2002.<br />
(continued on page 25)
The Case Against Court<br />
Certification <strong>of</strong> Guardians;<br />
the Case for Independent<br />
Third Party Oversight<br />
(continued from page 24)<br />
7 Cf. In re Guardianship <strong>of</strong> Lasky,<br />
776 P.2d 695, 697 (Wash. App.<br />
1989); and Matter <strong>of</strong> Guardianship<br />
<strong>of</strong> Ingram, 689 P.2d 1363 (Wash.<br />
1984).<br />
8 In Washington State, the<br />
Department <strong>of</strong> Corrections has<br />
that function under the executive<br />
branch. See: http://www.doc.<br />
wa.gov/general/aboutus.htm.<br />
9 See also: <strong>National</strong> Guardianship<br />
Association, Standards <strong>of</strong> Practice<br />
(www.guardianship.org/associations/2543/files/STANDARD.pdf);<br />
Washington State Certified<br />
Pr<strong>of</strong>essional Guardian Program<br />
Standards <strong>of</strong> Practice,<br />
http://www.courts.wa.gov/programs_orgs/pos_guardian/?fa=pos<br />
_guardian.standard.<br />
10 Cf. website for Guardianship<br />
Services <strong>of</strong> Seattle, a Washington<br />
State Certified Pr<strong>of</strong>essional<br />
Guardian (www.trustguard.<br />
org/services/gss_services.htm)<br />
(describing its fiduciary and wealth<br />
management services); and<br />
Washington Department <strong>of</strong><br />
Financial Institutions website<br />
(www.dfi.wa.gov/banks/trusts.htm<br />
) (“Trust companies and departments<br />
provide fiduciary services<br />
and wealth management”).<br />
11 See, e.g., Washington State<br />
Department <strong>of</strong> Financial<br />
Institutions (http://www.dfi.wa.<br />
gov/about.htm and<br />
http://www.dfi.wa.gov/banks/<br />
list.htm); Idaho Department <strong>of</strong><br />
Finance (http://finance.<br />
idaho.gov/); and Federal Deposit<br />
Insurance Corporation<br />
(www.fdic.gov).<br />
12. With pr<strong>of</strong>essional guardians, the<br />
administrative body is the<br />
Administrative Office <strong>of</strong> the<br />
Courts, the board is the Certified<br />
Pr<strong>of</strong>essional Guardian Board. With<br />
attorneys, the administrative body<br />
is the Washington State Bar<br />
Association, the board is the Bar<br />
Association’s Board <strong>of</strong> Governors.<br />
See e.g., the website for the<br />
Washington State Bar Association,<br />
http://www. wsba.org/info/a<br />
bout/default.htm (“The WSBA is<br />
an administrative arm <strong>of</strong> the<br />
Washington State Supreme<br />
Court”); http://www.wsba.org<br />
/info/bog/default.htm (“The Board<br />
<strong>of</strong> Governors is the WSBA's governing<br />
body, and performs or<br />
supervises all WSBA executive<br />
functions”); and<br />
http://www.wsba.org/info/services-programs.htm.<br />
13. Cf. Model Rule <strong>of</strong> Pr<strong>of</strong>essional<br />
Conduct 3.5(b) (www.abanet.<br />
org/cpr/mrpc/rule_3_5.html)<br />
14 Cf. In re Custody <strong>of</strong> R, 947 P.2d<br />
745, 754 (Wash. App. 1997)(the<br />
“judiciary should avoid even mere<br />
suspicion <strong>of</strong> irregularity, or<br />
appearance <strong>of</strong> bias or prejudice”).<br />
15 Cf. Lasky, supra (affirming sanction<br />
<strong>of</strong> guardian who went forward<br />
with litigation without first<br />
obtaining court approval, and<br />
ordering the imposition <strong>of</strong> additional<br />
sanctions).<br />
16 Model Code <strong>of</strong> Judicial Conduct<br />
(www.abanet.org/cpr/mcjc/<br />
canon_1.htlm)<br />
17 See e.g., Guardianship <strong>of</strong> Loren<br />
Stamm, King County Cause No.<br />
01-4-05323-7 SEA, Order 9-25-<br />
03, p.7, f.<br />
18 Cf. Raven Lidman and Betsy<br />
Hollingsworth, The Guardian ad<br />
Litem in Child Custody Cases:<br />
The Contours <strong>of</strong> Our Judicial<br />
System Stretched Beyond<br />
Recognition, 6 GEO. MASON L.<br />
REV., 255 (1998); and In Re<br />
Guardianship <strong>of</strong> Stamm v.<br />
Crowley, 91 P.3d 126, 129 (Wash.<br />
2004)(describing the role <strong>of</strong> a<br />
guardian ad litem as a “neutral<br />
advisor”).<br />
19. See e.g., Wash. Rev. Code<br />
4.24.510, “Communication to<br />
government agency or self-regulatory<br />
organization--Immunity<br />
from civil liability;” and Wash.<br />
Rev. Code 70.128.200 “Toll-free<br />
number for complaints--<br />
Discrimination or retaliation prohibited.”<br />
20. See e.g. Wash. Rev. Code<br />
70.128.090 “Inspections--<br />
Generally” (for adult family<br />
homes).<br />
21. Washington State’s GR 23(d)(1)<br />
requires a high school diploma or<br />
GED and five years work experience<br />
“in a discipline pertinent to<br />
the provision <strong>of</strong> guardianship<br />
services.” There is no qualifying<br />
examination. See: Application<br />
Regulations for Certified<br />
Pr<strong>of</strong>essional Guardians, §§114-<br />
116 (reserving rules regarding<br />
examinations), available at<br />
http://www.courts.wa.gov/programs_orgs/pos_guardian/?fa=pos<br />
_guardian.applregs. See also<br />
BARRY YEOMAN, supra (“I could be<br />
a shoe salesman at a five-and-dime<br />
store yesterday and a pr<strong>of</strong>essional<br />
conservator or guardian today”).<br />
25<br />
22. <strong>Attorneys</strong> admitted to the state<br />
bar are also merely “admitted” or<br />
“licensed” to practice. Certified<br />
Pr<strong>of</strong>essional Guardians are by<br />
contrast “certified.”<br />
23. See: Robin Fields, <strong>Elder</strong><br />
Care Reforms Okd, LA TIMES,<br />
January 11, 2006. (http://www<br />
.latimes.com/news/local/la?me?co<br />
nservator11jan11,0,7864701,print.<br />
story?coll=la?headlines?california);<br />
and Jack Leonard, Task<br />
Force Urges Reform <strong>of</strong> State's<br />
Guardian System: Meeting for<br />
the first time since its creation last<br />
month, the panel backs key parts<br />
<strong>of</strong> a bill under consideration by<br />
the Senate, LA TIMES, February<br />
4, 2006 (http://www.latimes.<br />
com/news/local/la?me?conservator4feb04,0,6723944.story?coll=la<br />
?headlines?california).<br />
24 See: The Retirement Nightmare:<br />
Guardianship in America, a presentation<br />
for the ABA Section <strong>of</strong><br />
Family <strong>Law</strong>, <strong>Elder</strong> <strong>Law</strong><br />
Committee, Fall 2005, course<br />
materials presented by Robert L.<br />
Aldridge, Esq. (raldridge@hotmail.com).<br />
25. The Department <strong>of</strong> Financial<br />
Institutions regulates trust companies,<br />
which are defined as “any<br />
corporation organized under the<br />
laws <strong>of</strong> this state engaged in trust<br />
business.” See Wash. Rev. Code<br />
30.04.010(5). The term “trust<br />
business” includes acting as a<br />
guardian. See Wash. Rev. Code<br />
30.04.010(4) as cross referenced<br />
to Wash. Rev. Code 30.08.150(9).<br />
Many pr<strong>of</strong>essional guardians are<br />
corporations who act as guardians<br />
and would therefore appear to be<br />
“trust companies” for the purpose<br />
<strong>of</strong> DFI jurisdiction.<br />
26. Agencies such as the Department<br />
<strong>of</strong> Financial Institutions are revenue<br />
neutral. See: http://www.<br />
dfi.wa.gov/about/default.htm<br />
(“The department is self-supporting,<br />
in that none <strong>of</strong> its operating<br />
revenues come from the state's<br />
general tax funds. Its operating<br />
revenues are paid by the organizations<br />
and individuals it regulates.”).<br />
Margaret Dore is an attorney in<br />
Seattle, Washington and a<br />
graduate <strong>of</strong> the University <strong>of</strong><br />
Washington School <strong>of</strong> <strong>Law</strong>. See<br />
www.margaretdore.com.<br />
She would especially like to thank<br />
Nancy Cummings <strong>of</strong> Long Beach<br />
California for her help with<br />
this article.
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www.kmbs.konicaminolta.us<br />
Product information: Digital<br />
Copiers/Printers, Color Copiers, Color<br />
Printers and Fax Machines. The contact<br />
specializes in estate planning equipment.<br />
Discount to Members: 40% <strong>of</strong>f on<br />
equipment. Will extend Fortune 500 pricing<br />
on service agreements.<br />
Legal Resources, LLC<br />
Contact: Meg Rudansky<br />
36 Woodvale St.<br />
Sag Harbor, NY 11963<br />
631-725-4778<br />
mrudansky@legalresoucesllc.com<br />
www.legalresourcesllc.com<br />
Product Information: Senior<br />
Resource Guide Marketing System is an<br />
innovative marketing program that<br />
guides in creating a useful 22 page<br />
informative resource guide for those<br />
with long-term illness while building<br />
substantial referral sources and powerful<br />
distribution network for the guide.<br />
Discount to Members: Fifteen (15%)<br />
to NAELA members.<br />
Premier S<strong>of</strong>tware<br />
Contact: Tom Caffrey<br />
1230 Brace Road<br />
Cherry Hill, NJ 08034<br />
856-429-3010<br />
tcaffrey@premiers<strong>of</strong>tware.com<br />
www.premiers<strong>of</strong>tware.com<br />
Product information: Installation and<br />
training <strong>of</strong> Time Matters and <strong>Elder</strong> <strong>Law</strong><br />
Feature Package s<strong>of</strong>tware for <strong>Elder</strong> <strong>Law</strong><br />
practices.<br />
Discount to Members: 10% <strong>of</strong>f on<br />
products* and services. (The 10% discount<br />
applies to the <strong>Elder</strong> <strong>Law</strong> Feature<br />
Package. The Time Matters product discount<br />
is still being negotiated.)<br />
You can trust<br />
these companies to<br />
be responsive<br />
and knowledgeable<br />
about NAELA<br />
members’ needs!<br />
The <strong>National</strong> <strong>Academy</strong> <strong>of</strong> <strong>Elder</strong> <strong>Law</strong> <strong>Attorneys</strong>’ (NAELA) Member Discount Program<br />
provides discounts to NAELA members on a variety <strong>of</strong> products and services.<br />
The program was formed to develop partnerships with companies willing to participate in<br />
a group-purchasing program that extends discounts to NAELA members.<br />
You can look forward to receiving information directly from these vendors by contacting<br />
them for further information. NAELA will announce new partners as they are approved; meanwhile,<br />
we encourage you to take full advantage <strong>of</strong> this member service and reap the benefits<br />
<strong>of</strong> your NAELA membership!<br />
NAELA does not imply warranties as to the products or services <strong>of</strong>fered by Member<br />
Discount Partners. It is recommended that NAELA members should assure themselves as to<br />
quality, integrity, suitability, and other relevant attributes.<br />
26
Chapter<br />
President’s<br />
Listing<br />
Arizona Chapter<br />
Catherine Leas, CELA<br />
Sun City, AZ<br />
(623) 875-9501<br />
Colorado Chapter<br />
Catherine Anne Seal, CELA<br />
Colorado Springs, CO<br />
(719) 448-0734<br />
Florida Chapter<br />
Alice Reiter Feld, CELA<br />
Tamarac, FL<br />
(954) 726-6602<br />
Georgia Chapter<br />
David G. Carter<br />
Atlanta, GA<br />
(378) 528-8480<br />
Illinois Chapter<br />
Susan Lorraine Kennedy<br />
Chicago, IL<br />
(312) 460-8899<br />
Kansas Chapter<br />
Molly M. Wood<br />
<strong>Law</strong>rence, KS<br />
(785) 843-0811<br />
Maryland/DC Chapter<br />
Morris Klein, CELA<br />
Bethesda, MD<br />
(301) 652-4462<br />
Massachusetts Chapter<br />
Ian S. Oppenheim, CELA<br />
Halifax, MA<br />
(781) 294-8000<br />
Missouri Chapter<br />
Reginald H. Turnbull, CELA<br />
Jefferson City, MO<br />
(573) 634-2910<br />
New Jersey Chapter<br />
Eugene Rosner, CELA<br />
Clark, NJ<br />
(732) 382-6070<br />
New York Chapter<br />
Bernard A. Krooks, CELA<br />
New York, NY<br />
(212) 490-2020<br />
Ohio<br />
Rachel Kabb Effron, Esq.<br />
Beachwood, OH<br />
(216) 531-5222<br />
California Chapter - Northern<br />
Trudi S. Riley-Quinn, CELA<br />
Roseville, CA<br />
(916) 782-8212<br />
North Carolina Chapter<br />
J. Gregory Wallace, Esq.<br />
Raleigh, NC<br />
(919) 876-1400<br />
Wendy A. Craig, Esq.<br />
Black Mountain, NC<br />
(828) 669-0799<br />
California Chapter - Southern<br />
Brian Sheppard, CELA<br />
Encino, CA<br />
(818) 342-5799<br />
South Carolina Chapter<br />
Mitchell C. Payne, Esq.<br />
Rock Hill, SC<br />
(803) 329-8656<br />
Texas Chapter<br />
Michael B. Cohen, Esq.<br />
Dallas, TX<br />
(214) 720-0102<br />
Virginia Chapter<br />
Joseph T. Buxton III CELA<br />
Yorktown, VA<br />
(757) 877-2248<br />
Washington Chapter<br />
Julianne Kocer, Esq.<br />
Seattle, WA<br />
(206) 525-6919<br />
I was looking for a paralegal<br />
to help me with my growing<br />
Medicaid practice a few years ago<br />
when a local DSS worker gave me<br />
a tip about a really sharp woman<br />
who had just left her job. She<br />
told me that Denise had always<br />
submitted excellent work in her<br />
preparation and processing <strong>of</strong><br />
Medicaid applications for area<br />
nursing homes. But she also told<br />
me that Denise had gotten burnt<br />
out and only wanted to work part<br />
time.<br />
I called Denise and asked if<br />
she’d like to come in and explore<br />
the possibility <strong>of</strong> working for our<br />
law firm. She was reluctant inasmuch<br />
as (1) she was a social<br />
worker rather than a paralegal and<br />
(2) she had just recently left the<br />
workforce and was not really missing<br />
it all that much. We sat down<br />
a couple <strong>of</strong> weeks later and it was<br />
unmistakable that she’d be a great<br />
asset to my firm. She was not<br />
averse to working if the conditions<br />
suited her, but it was very obvious<br />
that she had really been overburdened<br />
at her last job. And she<br />
clearly did not want to work full<br />
time as she wanted to spend time<br />
at home with her two daughters.<br />
We talked about what we were<br />
seeking from each other and came<br />
up with a fairly unorthodox<br />
answer. Luckily, it is an arrangement<br />
that has been successful,<br />
with some tweaking, for more<br />
than six years now:<br />
She usually works from 20 - 30<br />
hours per week, during whatever<br />
hours she chooses. She comes in<br />
to the <strong>of</strong>fice one morning each<br />
week. We use this time to review<br />
every file together. If she needs to<br />
meet with clients, she schedules<br />
the meetings for Tuesday, which is<br />
the day she is physically here.<br />
Using Off-Site Staff<br />
James M. Higgins, Jr., Esq.<br />
We have equipped her home<br />
<strong>of</strong>fice with a computer, telephone<br />
lines (phone and fax), answering<br />
machine, DSL Internet access, fax<br />
machine, copy machine, printer<br />
and scanner.<br />
She is linked to our network<br />
server and has access to all <strong>of</strong> our<br />
clients’ files (folders) on our computer<br />
system. This access<br />
includes all <strong>of</strong> our files, forms and<br />
other programs and data. We<br />
communicate, <strong>of</strong>ten, each day by<br />
email, telephone and/or fax.<br />
The hard files generally stay<br />
here in the <strong>of</strong>fice, unless she is<br />
assembling a Medicaid application<br />
for filing with DSS.<br />
Clients are given her home<br />
<strong>of</strong>fice telephone and fax numbers;<br />
she generally has more contact<br />
with my clients than I do.<br />
After a year or so, my practice<br />
grew and it was apparent that<br />
Denise was becoming overworked.<br />
We decided to teach one <strong>of</strong> the<br />
paralegals in the <strong>of</strong>fice, Rachael,<br />
about Medicaid work. Rachael<br />
also worked on most <strong>of</strong> my estate<br />
planning files along with handling<br />
real estate closings and various<br />
other areas <strong>of</strong> the law for other<br />
attorneys in the <strong>of</strong>fice. By using<br />
her a few hours a week on our<br />
Medicaid files, we were able to<br />
keep up with the daily work and<br />
were progressing really well as a<br />
team. Then Rachael announced<br />
that she was pregnant. When she<br />
told me that she and her husband<br />
were expecting, she did so with<br />
those big, puppy dog eyes: she<br />
didn’t want to return to work full<br />
time after the baby was born. So<br />
we decided to go back to the well<br />
and it worked out once again:<br />
Rachael works from 15 - 20<br />
hours per week, again during<br />
(continued on page 28)<br />
27
Using Off-Site Staff<br />
(continued from page 27)<br />
whatever hours she picks, which is<br />
usually based on her son’s nap<br />
schedule. She comes in to the<br />
<strong>of</strong>fice one day each week, Tuesday,<br />
to review our files, actually more so<br />
with Denise than with me. She has<br />
the same home <strong>of</strong>fice setting, as<br />
does Denise. The three <strong>of</strong> us communicate<br />
<strong>of</strong>ten by email, telephone<br />
and/or fax.<br />
I either email or fax her instructions<br />
or notes on my estate planning<br />
files. She drafts documents,<br />
puts them in clients’ computer folders<br />
and then emails me that the<br />
drafts are ready for my review.<br />
Once I have reviewed and/or edited<br />
them, she finalizes them and mails<br />
the draft documents to the clients<br />
for their review.<br />
The benefits have been tremendous.<br />
I have an exceptional staff<br />
that works hard when it is most<br />
convenient for them. (It is not<br />
uncommon for me to be in at 6:00<br />
a.m. on a weekday or on a Sunday<br />
evening and have an email pop up<br />
from one <strong>of</strong> them.) Their attitudes<br />
are among the best <strong>of</strong> our entire<br />
<strong>of</strong>fice staff. With technology having<br />
progressed to where it is, the<br />
fact that they are not physically<br />
present is not as inconvenient as<br />
one would think. And I practice in<br />
Connecticut; Denise and Rachael’s<br />
work is not interrupted by our winter<br />
snow storms.<br />
There are some glitches every<br />
now and then. We have chosen to<br />
let them work hours that best suit<br />
them instead <strong>of</strong> on a fixed schedule.<br />
There are times when it is<br />
frustrating not to be able to get in<br />
touch with them immediately, as I<br />
would be able to if they were a<br />
couple <strong>of</strong> <strong>of</strong>fices down the hall.<br />
There are times when clients call<br />
here and then also call them, so<br />
we sometimes duplicate efforts.<br />
But we have learned that sending<br />
frequent emails to each other and<br />
keeping notes <strong>of</strong> what we’ve done<br />
in each client’s file have really<br />
a d v e r t i s e m e n t<br />
helped. We communicate well,<br />
which is the real key to our success.<br />
All in all, the main detriment<br />
to this system has nothing to do<br />
with either Denise or Rachael; it is<br />
that most <strong>of</strong> our other <strong>of</strong>fice staff<br />
would prefer to work in the same<br />
manner.<br />
By being accommodating, it’s<br />
produced a win-win-win situation.<br />
I have managed to keep two firstrate<br />
members on my team. They<br />
are happy and approach their work<br />
with great attitudes. Our clients<br />
get great service from all three <strong>of</strong><br />
us. If you come across someone<br />
who works well independently,<br />
needs little supervision and can<br />
communicate well, a set up similar<br />
to this may help you retain or<br />
attract that outstanding employee<br />
who does not want to work in the<br />
<strong>of</strong>fice or necessarily on a full time<br />
basis.<br />
James M. Higgins, Jr., Esq., practices<br />
<strong>Elder</strong> <strong>Law</strong> in Manchester, CT.<br />
28
Introducing NAELA’s Newest Member Discount Partner<br />
Marketing with Legal Resources, LLC<br />
Meg Rudansky, Esq.<br />
Marketing a law practice is<br />
essential to enhance its natural<br />
growth. Firm brochures; newspaper<br />
and telephone directory ads;<br />
radio spots; etc. all get the word<br />
out to the public. While self-promotion<br />
can be effective, marketing<br />
programs that give the target audience<br />
something <strong>of</strong> value while<br />
increasing name recognition have<br />
more impact.<br />
The Senior<br />
Resource Guide System<br />
(The System), created<br />
by a successful <strong>Elder</strong><br />
<strong>Law</strong> attorney, is such a<br />
marketing program.<br />
The System is a unique<br />
program: a “no-selling”<br />
cost-effective way to<br />
generate a steady<br />
stream <strong>of</strong> referrals from<br />
fellow pr<strong>of</strong>essionals in<br />
the geriatric, financial,<br />
legal, and medical fields<br />
while producing a valuable and<br />
widely distributed public resource<br />
for the attorney’s local community.<br />
The concept is to create a local<br />
resource guide for those with longterm<br />
illness and their caregivers: a<br />
guide to help those in crisis find the<br />
resources and information they<br />
need to manage their illness and<br />
their lives. In addition to listing<br />
services, pr<strong>of</strong>essionals, and programs<br />
in the community to support<br />
the ill person, the Guide also contains<br />
valuable information on specific<br />
actions one can take after a<br />
diagnosis. The Guide recommends<br />
getting a “legal check-up;” obtaining<br />
advance directives at a minimum;<br />
building a support system <strong>of</strong><br />
pr<strong>of</strong>essionals; and reviewing living<br />
options and sources <strong>of</strong> payment<br />
when living alone is no longer<br />
viable. The Guide also contains a<br />
caregiver’s support page. Both<br />
valuable content and attractive<br />
graphics enable the Guide to capture<br />
attention and to distinguish it<br />
from the usual resources available<br />
in the community.<br />
The value to the attorney in<br />
The Senior Resource Guide<br />
System is multi-fold. The attorney<br />
creates a valuable resource guide<br />
for his or her local community<br />
while developing a reputation as a<br />
One <strong>of</strong> the most powerful aspects<br />
<strong>of</strong> the system is the willingness <strong>of</strong> the<br />
pr<strong>of</strong>essionals and service providers listed<br />
in the Guide to distribute it to their<br />
patients, clients and community. After<br />
all, by giving out the Guide, they add<br />
value to the service they provide...<br />
29<br />
service oriented pr<strong>of</strong>essional. The<br />
attorney also learns in detail about<br />
the services and programs in the<br />
local community enabling the<br />
attorney to better serve clients.<br />
Moreover, the attorney now has an<br />
attractive marketing piece to be<br />
used when first meeting clients, as<br />
a give-away at seminars and senior<br />
fairs, as a means <strong>of</strong> building a<br />
mailing list through advertisements<br />
(“call for your free book”),<br />
and a website, to name only a<br />
few. The greatest value from a<br />
business perspective, however, is<br />
the opportunity that the system<br />
affords the attorney to make, keep<br />
and grow business relationships<br />
with pr<strong>of</strong>essional in the geriatric,<br />
medical ad financial fields.<br />
The process <strong>of</strong> “building the<br />
Guide” begins with meetings with<br />
pr<strong>of</strong>essionals and service providers<br />
in companion fields. If done properly,<br />
these meetings will accomplish<br />
four purposes: 1) enable<br />
the attorney to learn about services<br />
and programs in their community<br />
to support their senior<br />
clients; 2) give the attorney information<br />
for the Guide; 3) provide<br />
multiple opportunities to begin<br />
reciprocal relationships with other<br />
pr<strong>of</strong>essionals and service<br />
providers; and 4) build a distribution<br />
network for the Guide.<br />
One <strong>of</strong> the most powerful<br />
aspects <strong>of</strong> the system is the willingness<br />
<strong>of</strong> the pr<strong>of</strong>essionals and<br />
service providers listed in the<br />
Guide to distribute it<br />
to their patients,<br />
clients and community.<br />
After all, by giving<br />
out the Guide, they<br />
add value to the service<br />
they provide - at<br />
no additional cost to<br />
them. Before long,<br />
thousands <strong>of</strong> Guides<br />
are placed in the<br />
hands <strong>of</strong> those people<br />
who could benefit<br />
from the attorney’s<br />
legal counsel with little or no distribution<br />
cost.<br />
The Senior Resource Guide<br />
System benefits everyone: the<br />
senior confronting the implications<br />
<strong>of</strong> a long term illness; the<br />
pr<strong>of</strong>essionals and service<br />
providers who are given a free<br />
listing in the Guide and as many<br />
free copies <strong>of</strong> the Guide as they<br />
care to distribute; and, <strong>of</strong> course,<br />
the attorney who is rewarded<br />
through a significant increase in<br />
business and by creating good<br />
will in the senior community and<br />
among those pr<strong>of</strong>essionals and<br />
service providers who support<br />
them.<br />
The System includes the 22<br />
page Guide with pr<strong>of</strong>essionally<br />
designed graphics as a template<br />
entitled, “Life-Care Planning for<br />
the Aging and those with Long-<br />
(continued on page 30)
Marketing with Legal<br />
Resources, LLC<br />
(continued from page 29)<br />
Term Illness”. Using the accompanying<br />
CD, (the file is based in<br />
Adobe In Design CS 3.0.1 - the<br />
industry standard – found at<br />
Kinkos and used by most graphic<br />
designers and printers), the<br />
attorney can customize their<br />
Guide with their local information<br />
saving these changes on the CD.<br />
Simply take the customized CD<br />
to a local printer.<br />
The Senior Resource Guide<br />
System also includes a comprehensive<br />
“How To” booklet that<br />
teaches attorneys how to use<br />
their Guide and the marketing<br />
system for maximum referrals,<br />
giving step-by-step instructions,<br />
including printing specifications.<br />
There is also a certificate good<br />
for a one hour consultation with<br />
creator <strong>of</strong> the system, Meg<br />
Rudansky, <strong>Elder</strong> <strong>Law</strong> Attorney in<br />
Sag Harbor, New York for advice<br />
on how to maximize the effectiveness<br />
<strong>of</strong> the system. She will<br />
share how the creation <strong>of</strong> her<br />
own local Guide, and the distribution<br />
<strong>of</strong> over 5,000 copies <strong>of</strong><br />
the Guide by others in her community<br />
accelerated the growth <strong>of</strong><br />
her practice like no other marketing<br />
effort before.<br />
Using the system as opposed<br />
to starting from scratch will save<br />
the attorney thousand <strong>of</strong> dollars<br />
in graphic design fees and<br />
numerous hours writing, organizing<br />
and figuring out the path to<br />
take.<br />
Information on the Senior<br />
Resource Guide System may be<br />
obtained by calling Meg<br />
Rudansky at 631-725-4778 or on<br />
the web at ww.legalresourcesllc.com.<br />
See the website for<br />
sample pages <strong>of</strong> the Guide,<br />
including the cover graphics.<br />
www.legalresourcesllc.com<br />
mrudansky@legalresourcesllc.com<br />
30<br />
Order Today!<br />
Selma’s Cat and Other<br />
Things That Matter:<br />
A <strong>Law</strong>yer’s Intimate<br />
Conversations With His<br />
<strong>Elder</strong> Clients.<br />
By Clifton B. Kruse, Jr., Esq.<br />
This book is a MUST HAVE for<br />
anyone dealing with aging issues.<br />
Through the stories <strong>of</strong> his clients,<br />
Mr. Kruse explains the legal,<br />
emotional and ethical ramifications<br />
<strong>of</strong> the decisions that we all need<br />
to make at some point in our lives.<br />
—Wall Street Journal, January 23, 2006<br />
Perhaps more than any other legal specialty, the field <strong>of</strong> <strong>Elder</strong> <strong>Law</strong><br />
calls on its practitioners not only to be good attorneys but also to<br />
be sensitive and compassionate people as well. For many in the<br />
field, Colorado Springs attorney Clifton B. Kruse, Jr., Esq., has set<br />
the standard for all that an <strong>Elder</strong> <strong>Law</strong> attorney can and should be.<br />
The truth <strong>of</strong> this will become clear to readers <strong>of</strong> this collection <strong>of</strong><br />
poignant essays. —Harry Margolis<br />
For information on how to order Selma’s Cat, contact<br />
Terri Anthony at info@naela.com, 520-881-4005, ext. 107.<br />
Have you recently<br />
been featured in a<br />
national publication?<br />
If so- we would like to feature you in the “Members in the<br />
News” column in the NAELA News. Below are guidelines for<br />
submitting items for the “Members in the News” column:<br />
Do Submit:<br />
Items <strong>of</strong> national importance, such as:<br />
being published in a national publication;<br />
being quoted in a national publication;<br />
being interviewed on a national television or radio show; or<br />
an article you wrote which was published.<br />
Elections to national boards or local bar sections.<br />
Do Not Submit:<br />
Speeches in your local area.<br />
Articles from a local newspaper.<br />
Items on new <strong>of</strong>fices opening.<br />
New staff additions.<br />
To submit items for Members<br />
in the News, please contact Ann<br />
Krauss, Public Relations Director<br />
at akrauss@naela.com.
NAELA Members in the News<br />
NAELA was mentioned as a<br />
resource and/or <strong>Elder</strong> <strong>Law</strong><br />
was prominently noted in:<br />
"Don't Be a Victim <strong>of</strong> Financial<br />
Abuse," which was published in the<br />
February 1, 2006 issue <strong>of</strong> VFW,<br />
Veterans <strong>of</strong> Foreign Wars Magazine.<br />
"Americans Juggle Caregiving,<br />
Parenting," which was published in<br />
the March 7, 2006 issue <strong>of</strong> Florida<br />
Today.<br />
"Awards and Achievers," which<br />
was published in the February 24,<br />
2006 issue <strong>of</strong> News-Leader<br />
(Springfield, MO).<br />
"Don't Neglect End-<strong>of</strong>-Life<br />
Plans," which was published in the<br />
February 23, 2006 issue <strong>of</strong> the<br />
Charlotte Observer.<br />
"Planning for Nursing Home<br />
Care," which was published in the<br />
February 21, 2006 issue <strong>of</strong> The<br />
Washington Post.<br />
"Nursing Home Finance Rules,"<br />
which was published in the<br />
February 17, 2006 issue <strong>of</strong> the Fort<br />
Wayne Journal Gazette.<br />
"The Wrong Kind <strong>of</strong> Annuity<br />
Could Hurt If You Need Health<br />
Care," which was published in the<br />
February 3, 2006 issue <strong>of</strong> the<br />
Pittsburgh Post-Gazette.<br />
"Eligibility for Medicaid<br />
Expected to Tighten Drastically,"<br />
which was published in the January<br />
30, 2006 issue <strong>of</strong> the Lancaster<br />
New Era/Intelligencer<br />
Journal/Sunday News.<br />
"Medicaid Long-Term Care<br />
Eligibility Often Requires Spend-<br />
Down," which was published in the<br />
January 23, 2006 issue <strong>of</strong> The<br />
Oklahoman.<br />
NAELA Members<br />
in the News:<br />
<strong>Law</strong>rence E. Davidow,<br />
CELA, was quoted in "Living Will Is<br />
Only a Start," which was published<br />
in the March 19, 2006 issue <strong>of</strong><br />
The Wall Street Journal.<br />
Elizabeth Forgotson<br />
Goldberg, CELA, was mentioned<br />
in "Planning for Nursing Home<br />
Care," which was published in the<br />
February 21, 2006 issue <strong>of</strong> The<br />
Washington Post.<br />
Bernard A. Krooks, CELA,<br />
Jennifer B. Cona, Esq., and<br />
Vincent J. Russo, CELA, were<br />
quoted in "<strong>Law</strong>yers Predict<br />
'Devastating' Impact <strong>of</strong> New <strong>Law</strong><br />
Aimed at Reducing Medicaid<br />
Fraud," which was published in<br />
the March 7, 2006 issue <strong>of</strong><br />
the New York <strong>Law</strong> Journal.<br />
Clifton B. Kruse Jr.,<br />
Esq., and Harry Margolis,<br />
Esq., were mentioned in<br />
"Recommended Reading," an<br />
article that highlighted Harry<br />
Margolis' list <strong>of</strong> useful<br />
resources addressing inheritance<br />
issues. "Selma's Cat<br />
and Other Things That<br />
Matter," was listed among<br />
the recommended resources.<br />
The article was published in<br />
the January 23, 2006 issue<br />
<strong>of</strong> The Wall Street Journal.<br />
Kate Mewhinney, CELA,<br />
wrote an article titled "Gifts with<br />
Powers <strong>of</strong> Attorney - Are We<br />
Giving the Public What it Wants?"<br />
which was published in the Winter<br />
2005 issue <strong>of</strong> the North Carolina<br />
State Bar Journal.<br />
Dagmar M. Pollex, Esq.,<br />
was mentioned in "Medicaid Help,"<br />
which was published in the<br />
February 14, 2006 issue <strong>of</strong> The<br />
Patriot Ledger. (Quincy, MA)<br />
Charles F. Robinson, Esq.,<br />
was quoted in "Medicaid Will Look<br />
at Past Assets," which was published<br />
in the March 12, 2006 issue<br />
L. Mark Russell, Esq.,<br />
wrote a book titled "Planning for<br />
the Future," which received a<br />
favorable review in the February<br />
2006 issue <strong>of</strong> Estate Planning<br />
Magazine.<br />
Vincent J. Russo, CELA,<br />
was quoted in "Encore:<br />
Medicaid's New Rules," which<br />
was published in the February<br />
19, 2006 issue <strong>of</strong> The Wall<br />
Street Journal Sunday.<br />
Jerome I. Solk<strong>of</strong>f, CELA,<br />
and Peter J. Strauss, Esq., were<br />
quoted in "The Wrong Kind <strong>of</strong><br />
Annuity Could Hurt If You Need<br />
Health Care," which was published<br />
in the February 3, 2006 issue <strong>of</strong><br />
the Pittsburgh Post-Gazette.<br />
Reginald H. Turnbull,<br />
CELA, was quoted in "Who<br />
Speaks for An Incapacitated<br />
Patient," which was published in<br />
the January 29, 2006 issue <strong>of</strong> The<br />
Kansas City Star.<br />
Shirley B. Whitenack, Esq.,<br />
was quoted in "Guardianship Feud<br />
is Ruled a Jersey Case," which<br />
was published in the March 4,<br />
2006 issue <strong>of</strong> the Newark Star<br />
Ledger.<br />
Shirley B. Whitenack, Esq.,<br />
was quoted in "N.J. Court May<br />
Resolve $25M Family Feud," which<br />
was published in the March 4, 2006<br />
issue <strong>of</strong> the Home News Tribune.<br />
<strong>of</strong> the St. Petersburg Times.<br />
(continued on page 32)<br />
members in the news<br />
31
NAELA Members in the News<br />
(continued from page 31)<br />
Shirley B. Whitenack, Esq.,<br />
was quoted in "N.J. Judge May<br />
Write a Final Chapter in Texas<br />
Legal Saga," which was published<br />
in the March 4, 2006 issue <strong>of</strong> the<br />
San Antonio News Press.<br />
Jim Zeigler, Esq., was quoted<br />
in "Alabama <strong>Law</strong>yer Takes on<br />
Deficit Reduction Act," which was<br />
published in the March 21, 2006<br />
issue <strong>of</strong> AuntMinnie.com.<br />
Jim Zeigler, Esq., was quoted<br />
in "The Broken Branch: An<br />
Unusual <strong>Law</strong>suit Takes Congress<br />
to Task for Shoddy and Partisan<br />
<strong>Law</strong>making in Which a Bill is<br />
Unconstitutionally Being Treated<br />
as <strong>Law</strong>," which was published in<br />
the March 10, 2006 issue <strong>of</strong><br />
Find<strong>Law</strong>.<br />
Jim Zeigler, Esq., was quoted<br />
in "Botched Bill Plaintiff<br />
No Stranger to<br />
Controversy," which was<br />
published in the March 20,<br />
2006 issue <strong>of</strong> Roll Call.<br />
Jim Zeigler, Esq.,<br />
was quoted in "Bill Flap<br />
Could Lift Lincare," which<br />
was published in the<br />
February 2, 2006 issue <strong>of</strong><br />
the TheStreet.com.<br />
Jim Zeigler, Esq.,<br />
was quoted in "House GOP<br />
Won't Revisit Flawed<br />
Budget Bill," which was<br />
published in the February<br />
15, 2006 issue <strong>of</strong> the<br />
Associated Press.<br />
Stuart D. Zimring,<br />
Esq., Bernard A. Krooks,<br />
CELA, Alice Reiter Feld,<br />
CELA, and Harry S.<br />
Margolis, CELA, were quoted<br />
in "Medicaid Changes<br />
to Turn Estate Planning on<br />
Its Head," which was published<br />
in the February 19,<br />
2006 issue <strong>of</strong> the Daily<br />
Record (St. Louis, MO).<br />
Divorce <strong>Elder</strong> <strong>Law</strong> Style<br />
Richard F. Meyer, Esq.<br />
When I began practicing, I litigated<br />
both probate and domestic<br />
matters. There are similarities:<br />
you value assets, identify tax<br />
issues and debts, and determine<br />
<strong>of</strong>fsets against assets to arrive at<br />
a net to divide between the parties.<br />
When interviewing an <strong>Elder</strong><br />
<strong>Law</strong> client, be cautious when discussing<br />
divorce, but clearly, it is<br />
the ultimate spousal resource<br />
assessment.<br />
Once the non-domestic<br />
options are reviewed and the<br />
client decides to pursue divorce,<br />
you have four major considerations<br />
assuming you know you cannot<br />
represent both parties. These<br />
a d v e r t i s e m e n t<br />
considerations warrant their own<br />
in-depth review, but this article<br />
will address the basic elements<br />
and pitfalls <strong>of</strong> each.<br />
Consideration No. 1:<br />
Is the institutionalized<br />
spouse competent?<br />
If competency is an issue, you<br />
will need to decide whether to use<br />
a Domestic or Probate guardian,<br />
depending on what is available in<br />
your state.<br />
If you use a Domestic<br />
guardian, the Civil rules allow for<br />
appointment, which is usually a<br />
domestic attorney. This leads to<br />
more severe domestic litigationstyle<br />
scrutiny. Hopefully, you can<br />
resolve the case with an<br />
agreed entry if you supply<br />
sufficient evidence to<br />
support its terms.<br />
If you use a Probate<br />
Guardian, the Probate<br />
Court and the domestic<br />
litigator require satisfaction.<br />
This added layer<br />
<strong>of</strong> review may hinder<br />
approval <strong>of</strong> an agreed<br />
entry. A significant deviation<br />
from normal division<br />
<strong>of</strong> assets will<br />
require, at minimum,<br />
more persuasion; or to<br />
foreclose Probate Court<br />
objections, a Domestic<br />
Court finding based<br />
upon stipulations.<br />
Consideration No.<br />
2: A first or second<br />
marriage?<br />
In a long-term marriage,<br />
all the assets are<br />
equally divided unless<br />
you provide the Court<br />
with a basis to deviate.<br />
(continued on page 33)<br />
32
Divorce <strong>Elder</strong> <strong>Law</strong> Style<br />
(continued from page 32)<br />
Usually, the husband has high<br />
income and it follows him to the<br />
nursing home. In Ohio, the<br />
Medicaid <strong>of</strong>fice will not credit<br />
payments for child or spousal<br />
support. Use an economist to<br />
establish the amount <strong>of</strong> money<br />
needed by the community<br />
spouse to sustain herself; thereby,<br />
the court has a basis to find<br />
a need for deviation from the<br />
usual 50/50 split. Will your client<br />
get 100%? No, but in most circumstances,<br />
the award will<br />
exceed a CSRA.<br />
If your client is in a second<br />
marriage, you may have separate<br />
property with or without a<br />
prenuptial agreement; if so, skip<br />
to consideration number 4.<br />
Consideration No. 3:<br />
Use no-fault<br />
divorce, uncontested<br />
divorce or contested<br />
divorce?<br />
In many cases, you<br />
consider whether to use<br />
no-fault divorce, uncontested<br />
divorce (agreed<br />
grounds) or contested<br />
divorce (stipulated facts<br />
supporting grounds).<br />
Ohio is a no-fault and<br />
fault state.<br />
The parties can utilize<br />
a private judge to<br />
conduct a no-fault divorce (dissolution)<br />
hearing either in the nursing<br />
home or at your <strong>of</strong>fice.<br />
Grounds for divorce must fit<br />
your facts. For instance, voluntary<br />
separation that exceeds one<br />
year constitutes a ground.<br />
However, if someone is ill and<br />
has to leave the marital residence<br />
for medical treatment, this<br />
is not voluntary separation.<br />
The Ohio Medicaid <strong>of</strong>fice has<br />
challenged agreed divorce<br />
decrees. In a recent Ohio<br />
Medicaid application, the<br />
Supervisor chose<br />
to deny Medicaid<br />
due to an improper<br />
transfer via an<br />
agreed divorce<br />
decree. Upon<br />
appeal, Medicaid<br />
was approved. So<br />
how do we avoid<br />
a similar denial in<br />
the future?<br />
Stipulate the<br />
facts (i.e., facts for<br />
grounds, economist<br />
report),<br />
which provides the<br />
Court sufficient<br />
evidence to find<br />
for your client.<br />
Through preliminary<br />
hearings, you will be able to<br />
determine the Court’s position. In<br />
all likelihood, the Court will follow<br />
the arguments for grounds, deviation<br />
in marital assets or support<br />
Divorce <strong>Elder</strong> law style requires<br />
the practitioner to extract <strong>Elder</strong> law<br />
results from the domestic gristmill.<br />
Domestic judges practice domestic law<br />
so use domestic terms and rules to<br />
achieve the best economic result for<br />
your community spouse client.<br />
via findings <strong>of</strong> fact and conclusions<br />
<strong>of</strong> law later incorporated<br />
into a decree.<br />
33<br />
Consideration No. 4:<br />
Are you dealing with separate<br />
property? (i.e.,<br />
Prenuptial or Inherited)<br />
In Separate property cases,<br />
the owner spouse is awarded<br />
separate property prior to the<br />
division <strong>of</strong> marital property.<br />
However, this may result in a<br />
spousal support order from the<br />
community spouse to the institutionalized<br />
spouse because the separate<br />
property generates significant<br />
income. If so, persuade the Court<br />
to use the institutionalized spouse’s<br />
life expectancy rather than the typical<br />
domestic rule<br />
(length <strong>of</strong> marriage<br />
divided by 2) for the<br />
spousal order, which<br />
should shorten the<br />
term. Then attack the<br />
monthly amount by<br />
distinguishing earned<br />
and unearned income,<br />
tax-exempt income<br />
and other types <strong>of</strong><br />
income usually earned<br />
by seniors.<br />
If the institutionalized<br />
spouse owns separate property,<br />
a lump sum in lieu <strong>of</strong> support<br />
can be made. This is acceptable to<br />
the Ohio Medicaid <strong>of</strong>fice.<br />
Divorce <strong>Elder</strong> <strong>Law</strong> style requires<br />
the practitioner to extract <strong>Elder</strong> <strong>Law</strong><br />
results from the domestic gristmill.<br />
Domestic judges practice domestic<br />
law so use domestic terms and<br />
rules to achieve the best economic<br />
result for your community spouse<br />
client.<br />
Richard F. Meyer, Esq., practices <strong>Elder</strong><br />
<strong>Law</strong> in Columbus, OH.
ContentsMark Your<br />
Calendars!<br />
The Grand America Hotel<br />
555 South Main Street<br />
Salt Lake City, UT 84111<br />
(801) 258-6000 Phone<br />
www.grandamericahotel.com<br />
Rates: $219.00 Single/Double<br />
For reservations, call (800) 621-<br />
4505 no later than September<br />
15, 2006 and be sure to mention<br />
that you are with NAELA to<br />
receive this special conference<br />
rate. Navigant International is<br />
available to assist you with your<br />
travel needs (800) 229-8731.<br />
Please note: As with all travel<br />
agencies, a service fee will<br />
apply.<br />
A full conference brochure will<br />
be available by August 2006.<br />
Early Bird Registration available<br />
until September 15, 2006! For<br />
more information, contact the<br />
NAELA Office at (520) 881-4005<br />
or visit the NAELA website at<br />
www.naela.org.<br />
<strong>National</strong> <strong>Academy</strong> <strong>of</strong> <strong>Elder</strong> <strong>Law</strong> <strong>Attorneys</strong><br />
1604 N. Country Club Rd., Tucson, AZ 85716-3102<br />
520.881-4005, ext. 114, 520.325-7925 fax<br />
www.naela.org
MAY<br />
2006<br />
NATIONAL<br />
ELDER LAW<br />
MONTH<br />
Sponsored by the <strong>National</strong><br />
<strong>Academy</strong> <strong>of</strong> <strong>Elder</strong> <strong>Law</strong> <strong>Attorneys</strong><br />
Get Ready to Celebrate<br />
<strong>National</strong> <strong>Elder</strong> <strong>Law</strong> Month<br />
<strong>National</strong> <strong>Elder</strong> <strong>Law</strong> Month is an ideal time to highlight the pr<strong>of</strong>ession <strong>of</strong><br />
<strong>Elder</strong> <strong>Law</strong> and draw attention to all <strong>of</strong> the wonderful ways that<br />
NAELA Members contribute to their communities.<br />
NAELA Members and NAELA Chapters are strongly encouraged to participate in <strong>National</strong><br />
<strong>Elder</strong> <strong>Law</strong> Month by educating seniors and people with disabilities about their legal<br />
needs. You may consider the following ideas for promoting <strong>Elder</strong> <strong>Law</strong> in your<br />
local communities:<br />
<br />
<br />
<br />
<br />
<br />
Planning a Living Will Day<br />
Holding a Seminar or<br />
Presentation<br />
Sending an Article to Your Local<br />
Newspaper<br />
Sending a Request for<br />
Proclamation to Your Mayor or<br />
Governor<br />
Sending Press Releases and<br />
Public Service Announcements<br />
to Your Local Media<br />
To obtain your <strong>National</strong> <strong>Elder</strong><br />
<strong>Law</strong> Month promotional package,<br />
please visit www.naela.org and go to<br />
the NAELA Members section. You may<br />
also contact Ann Krauss, NAELA<br />
Marketing and Public Relations<br />
Director at 520.881.4005 x106 or via<br />
e-mail at akrauss@naela.com.<br />
Bernard A. Krooks, CELA, former NAELA President<br />
and founding partner <strong>of</strong> Littman Krooks LLP in New<br />
York, says: “My firm has participated in <strong>National</strong> <strong>Elder</strong><br />
<strong>Law</strong> Month for many years. The firm conducts several<br />
seminars across the state on important topics such as<br />
advance directives and estate planning. The community<br />
response has been enthusiastic and appreciative.”<br />
Victoria E. Heuler, Esq., NAELA Member and<br />
<strong>Academy</strong> <strong>of</strong> Florida <strong>Elder</strong> <strong>Law</strong> <strong>Attorneys</strong> (AFELA)<br />
Secretary, says: “Each May in Florida, through the<br />
efforts <strong>of</strong> the Florida NAELA Chapter (AFELA), we celebrate<br />
<strong>National</strong> <strong>Elder</strong> <strong>Law</strong> Month. AFELA frequently<br />
uses the <strong>Elder</strong> <strong>Law</strong> Month materials provided by<br />
NAELA, including the press release and proclamation<br />
forms. The forms were used in 2005 to obtain proclamations from<br />
the Florida Governor and multiple cities and counties. In Tallahassee<br />
(Florida’s capital), our <strong>Elder</strong> <strong>Law</strong> bar created and published an article<br />
in a regional family magazine about <strong>Elder</strong> <strong>Law</strong>. I received positive<br />
comments from several community members about the article. I also<br />
use the “Empty Office” article from the NAELA resources when I<br />
speak to groups. The article helps me organize my thoughts to tell<br />
the real story (stories!) about the daily talents that we <strong>Elder</strong> <strong>Law</strong><br />
attorneys bring to help clients, and it paints a visual for the group<br />
participants about the client-centered practice that is <strong>Elder</strong> <strong>Law</strong>.”<br />
35
NAELA Journal Update<br />
The NAELA<br />
Journal was recently<br />
reviewed by the<br />
Editorial Advisory<br />
Committee for the<br />
Index to Legal<br />
Periodicals, which<br />
considered 150 journals<br />
last year for<br />
inclusion in the 2006<br />
Index. We are<br />
pleased to announce<br />
that NAELA was<br />
among only 60 new<br />
law journals selected. Becoming a<br />
part <strong>of</strong> the Index is not only an<br />
honor, but it also ensures that<br />
attorneys applying for education<br />
credit in certain states will receive<br />
such. Of note, the NAELA Journal<br />
subscription base increased by 75<br />
percent over the last eight months<br />
and is now available in 95 law<br />
schools across the country. The<br />
perfect bound journal is not just a<br />
collection <strong>of</strong> writings about <strong>Elder</strong><br />
<strong>Law</strong>, it is a statement about<br />
NAELA’s commitment to excellence,<br />
education and scholarship.<br />
Publish in the New<br />
NAELA Journal<br />
The NAELA Journal Editorial<br />
Board is seeking quality, practice<br />
oriented articles for the<br />
new NAELA Journal.<br />
Your experience as a<br />
practitioner makes you<br />
perfectly-suited to<br />
write for a future issue.<br />
The Editorial Board<br />
recognizes your workload<br />
and time constraints<br />
as practitioners<br />
and they have created<br />
an editorial process<br />
that can assist the<br />
busy pr<strong>of</strong>essional. As<br />
an author, you receive one-on-one<br />
coaching from an assigned articles<br />
editor, a full edit by a pr<strong>of</strong>essional<br />
copy editor, and verification <strong>of</strong><br />
sources from an experienced citation<br />
editor. NAELA will also provide<br />
you with free author reprints<br />
for your personal distribution.<br />
Your article and practice also get<br />
national exposure as the article is<br />
distributed to more than 5000<br />
attorneys, various media sources,<br />
and close to 100 ABA law schools.<br />
We hope you will join us in making<br />
the new NAELA Journal a quality<br />
practice-oriented publication<br />
that aids members <strong>of</strong> this great<br />
<strong>Academy</strong>. For more information,<br />
please contact Jonathan Boyle at<br />
jboyle@naela.com.<br />
Calendar <strong>of</strong> Events<br />
May 2-6, 2007<br />
2006 NAELA Symposium,<br />
Renaissance Cleveland Hotel,<br />
Cleveland, OH<br />
May 31, 2006<br />
(Wednesday, 3:00 p.m., EDT )<br />
NAELA Telephonic Program:<br />
Medicaid Planning in a DRA<br />
World<br />
July 27, 2006<br />
(Thursday, 3:00 p.m., EDT )<br />
NAELA Telephonic Program:<br />
Basic Overview <strong>of</strong> Social<br />
Security Programs other<br />
than SS<br />
Fall 2007<br />
2007 NAELA Institute,<br />
Atlanta, GA<br />
November 2-5 2006<br />
2006 NAELA Institute,<br />
The Grand America Hotel – Salt<br />
Lake City, UT<br />
Spring 2008<br />
2008 NAELA Symposium,<br />
NAELA’s 20 Year Anniversary,<br />
Hawaii<br />
Save the Date!!!<br />
For the 2007 NAELA Symposium May 3-6, 2007<br />
Pre-Sessions on May 2, 2007<br />
Hotel Information Renaissance Cleveland Hotel 24 Public Square Cleveland, Ohio 44113<br />
Reservations (800) 468-3571 Phone (216) 696-5600 Guest Fax (216) 696-0432<br />
Rate $144.00 per night, single or double occupancy.<br />
Call the Renaissance Cleveland Hotel (800) 468-3571 and mention that you are with the NAELA Symposium to receive the<br />
special rate <strong>of</strong> $144.00 per night plus tax for single or double occupancy. Reservations are on a first-come, first-served basis and<br />
the group rate cannot be guaranteed after Friday, March 16, 2007. Be sure to make your reservations early!<br />
Navigant International can assist you with your travel needs 800-229-8731.<br />
Please note: As with all travel agencies, a service fee will apply.<br />
For more information or to register on-line, visit www.naela.org or call (520) 881-4005.<br />
A full conference brochure will be available in early February 2007.<br />
36
a d v e r t i s e m e n t
Distinguish Yourself…as a<br />
Certified <strong>Elder</strong> <strong>Law</strong> Attorney!<br />
Certification in <strong>Elder</strong> <strong>Law</strong>, <strong>of</strong>fered by the<br />
<strong>National</strong> <strong>Elder</strong> <strong>Law</strong> Foundation, is the only such<br />
program approved by the American Bar<br />
Association. <strong>Elder</strong> <strong>Law</strong> certification allows you<br />
to gain recognition for your expertise in laws<br />
relating to individuals who are elderly and/or<br />
disabled. Certification distinguishes you among<br />
your peers, consumers and in your community.<br />
You cannot afford not to apply for certification<br />
in <strong>Elder</strong> <strong>Law</strong>-one <strong>of</strong> the fastest growing<br />
areas <strong>of</strong> the legal pr<strong>of</strong>ession. The changing<br />
demographics in our society, from the aging <strong>of</strong><br />
baby boomers-the largest sector <strong>of</strong> our population-to<br />
people living longer, have created a<br />
demand for attorneys who specialize in issues<br />
affecting the elderly, incapacitated, and persons<br />
with disabilities.<br />
Do You Have What it Takes to Become<br />
a Certified <strong>Elder</strong> <strong>Law</strong> Attorney?<br />
Certification in <strong>Elder</strong> <strong>Law</strong> is open to all who qualify. You must<br />
meet all the criteria listed below before applying for <strong>Elder</strong> <strong>Law</strong><br />
Certification.<br />
Licensure Attorney must be licensed to practice law in at least one<br />
state or the District <strong>of</strong> Columbia.<br />
Practice Attorney must have practiced law during the five years<br />
preceding the short form application and must still be practicing law.<br />
Integrity/Good Standing Attorney must be a member in good<br />
standing <strong>of</strong> the bar in all places in which he/she is licensed.<br />
Substantial Involvement Attorney must have spent an average <strong>of</strong><br />
at least 16 hours per week practicing <strong>Elder</strong> <strong>Law</strong> during the three years<br />
preceding the short form application. In addition, the attorney must<br />
have handled at least 60 <strong>Elder</strong> <strong>Law</strong> matters during those three years<br />
with a specified distribution among subjects as defined by the<br />
Foundation.<br />
Continuing Legal Education Attorney must have participated in at<br />
least 45 hours <strong>of</strong> continuing legal education in <strong>Elder</strong> <strong>Law</strong> during the<br />
three years preceding the short form application.<br />
Peer Review/Pr<strong>of</strong>essional References Attorney must submit the<br />
names <strong>of</strong> five references from attorneys familiar with their competence<br />
and qualifications in <strong>Elder</strong> <strong>Law</strong>. These persons must themselves<br />
satisfy specified criteria.<br />
The <strong>National</strong> <strong>Elder</strong> <strong>Law</strong> Foundation is pleased to<br />
announce that they have been <strong>of</strong>ficially approved by<br />
the Department <strong>of</strong> Veterans Affairs. Veterans who sit<br />
for the CELA exam can have their exam fee reimbursed.<br />
The exam may be taken as many times as necessary,<br />
pass or fail, the exam fee will be reimbursed.<br />
Examination Attorney must pass a full-day certification examination.<br />
Review Courses Review courses for <strong>Elder</strong> <strong>Law</strong> Certification are<br />
<strong>of</strong>fered on a regular basis by the <strong>National</strong> <strong>Academy</strong> <strong>of</strong> <strong>Elder</strong> <strong>Law</strong><br />
<strong>Attorneys</strong> (NAELA). Those interested in sitting for the exam are<br />
encouraged to participate in the six-week home study program that<br />
culminates in an all-day review session typically held at NAELA's<br />
Annual Symposium and Institute. Registration fees for the review<br />
course include a manual <strong>of</strong> written materials and a set <strong>of</strong> CDs.<br />
The only<br />
ABA-approved <strong>Elder</strong><br />
<strong>Law</strong> Certification<br />
<strong>of</strong>fered by the<br />
<strong>National</strong> <strong>Elder</strong><br />
<strong>Law</strong> Foundation.<br />
For More Information<br />
Lori Barbee<br />
520-881-1076<br />
lbarbee@naela.com<br />
Don't delay...<br />
join the hundreds<br />
<strong>of</strong> attorneys who<br />
have taken the<br />
step toward<br />
advancing their<br />
legal career!<br />
Congratulations to the newest<br />
Certified <strong>Elder</strong> <strong>Law</strong> <strong>Attorneys</strong><br />
Evan H Farr, Fairfax, VA<br />
Valerie M Logsdon, Grass Valley, CA<br />
Rosemary B. Jones, New Milford, CT<br />
Brett A. Howell, Grand Blanc, MI<br />
Henry D. Fincher, Cookeville, TN<br />
Sarah L Clingman, Columbia, SC<br />
Visit www.nelf.org for more information.<br />
38
a d v e r t i s e m e n t
<strong>National</strong> <strong>Academy</strong> <strong>of</strong><br />
<strong>Elder</strong> <strong>Law</strong> <strong>Attorneys</strong>, Inc.<br />
1604 N. Country Club Road<br />
Tucson, AZ 85716-3102<br />
Member Corner<br />
Photos from the 2005 NAELA Institute in Tucson, AZ<br />
Edwin M. Boyer, Esq., and G. Mark<br />
Shalloway, CELA, “Jazz It Up.”<br />
Daniel O.<br />
Tully, Esq,<br />
John J.<br />
Wargo,<br />
CELA, and<br />
Charles P.<br />
Sabatino,<br />
Esq.<br />
Paul A.<br />
Sturgil,<br />
CELA, meets<br />
with George<br />
J. Felos,<br />
J.D., at<br />
book signing.<br />
Donald H. Chapin, CELA, Angela Cartrell, Esq.,<br />
Frank J. Dana, III, CELA, and Susan B. McMahon, Esq.