N A E L A - National Academy of Elder Law Attorneys

N A E L A
NEWS
National Academy of Elder Law Attorneys
Volume 18 - Issue 1 - 2006
Are You Ready for Your
2:30 Appointment?
Tales of NAELA
Address Medicaid’s
Institutional Bias,
and Expand
Your Practice
Divorce
Elder Law
Style

a d v e r t i s e m e n t

N A E L A
NEWS
National Academy of Elder Law Attorneys
Contents
Volume 18 - Issue 1 - 2006
The NAELA News is published by the
National Academy of
Elder Law Attorneys, Inc.
1604 N. Country Club Road
Tucson, AZ 85716-3102
520/881-4005
520/325-7925 Fax
www.naela.org
Articles appearing in the NAELA News
may not be regarded as legal advice.
The nature of Elder Law practice makes
it imperative that local law and practice
be consulted before advising clients.
Statements of fact and opinion are the
responsibility of the author and do not
imply an opinion or endorsement on
the part of the officers or directors of
NAELA unless otherwise specifically
stated as such.
Publications Chair
Edwin M. Boyer, Esq.
Sarasota, FL
Editor
Judith D. Grimaldi, CELA
Brooklyn, NY
Associate Editor
Bridget O’Brien Swartz, Esq.
Phoenix, AZ
Publications Coordinator
Jonathan D. Boyle
Tucson, AZ
Graphic Designer
Kristin L. Hager
Tokyo, Japan
© Copyright NAELA 2006
Features
4 . . . . . . . . . . . . . . . . . . . . . . .Are You Ready for Your 2:30 Appointment?
11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Tales of NAELA
12 . . . . . .Address Medicaid’s Institutional Bias and Expand Your Practice
15 . . . . . . . . . . . . . . .Memoirs of a Counsellor: “After So Much Time . . .”
17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Vermont’s Long-Term Care Waiver
21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Discussions of Fees
22 . . . . . . . . . . . . . . . . .The Case Against Court Certification of Guardians
27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Using Off-Site Staff
29 . . . . . . . . . . . . . . . . . . . . . . . . . . .Marketing with Legal Resources, LLC
32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Divorce Elder Law Style
36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .NAELA Journal Update
Every Issue
7 President’s Message
9 Executive Director’s Message
26 NAELA Member Discount Partners
31 Members in the News
36 Calendar of Events
38 New CELA’s

cover story
Are You Ready for Your
2:30 Appointment?
Allan D. Bogutz, CELA
I am your new client. I turn
sixty this year at the head of the
Baby Boomer parade.
Here are the numbers:
There are 78.2 million of us
born between 1946 and 1964.
In 2006, we will turn 60 at the
rate of 7,918 per day. That’s
about 330 per hour.
Fifty-one percent of us are
women.
Until now, my legal affairs
have been pretty mundane. Home
purchases, a couple of minor auto
accidents and a divorce. But over
the course of my life, I have accumulated
some assets, raised a
family, looked forward to retirement,
worried about my medical
care and paid my bills. I have also
pretty much ignored what has
been happening with Social
Security, and I cannot tell you the
difference between Medicare and
Medicaid but I am pretty sure that
all my medical needs will be covered
when I retire by one of them.
I have an IRA but cannot tell you
if it is a Roth IRA. I have a retirement
plan at work, a 401(k), but
don’t really know how that operates.
I am thinking of moving to
Great News
for Veterans
The National Elder Law Foundation
is pleased to announce that they
have been officially approved by the
Department of Veterans Affairs.
Veterans who sit for the CELA exam
can have their exam fee reimbursed.
The exam may be taken as many
times as necessary, pass or fail, the
exam fee will be reimbursed.
another state when I retire. My
children are 22 and
28; one is married
and has a two-yearold.
The other is
still in school. My
wife is 52 and she
has two children of
a prior marriage,
ages 24 and 27, and
both are employed
and self-supporting.
My wife and I are
both healthy, but
both of our families
have histories of
cancer and my
wife’s mother has
Alzheimer’s and is in
a nursing home. My
father is still alive at
87 and I have had
concerns about his driving and his
ability to live alone; financially, my
father is a bit precarious and lives
on his Social Security, his only
source of income. There are
times when I have to help him
with his bills.
I have life insurance but don’t
know whether I have too much or
not enough. I have heard of long
term care insurance but don’t see
why I might need it.
I have a will and so does my
wife. These were drafted 11
years ago when we married, but
we have not looked at them since.
I am not sure what they say
exactly, but I think we leave
everything we have to each other.
I have no other estate planning
documents. We have our tax
returns prepared by a commercial
tax service and last year we had a
combined income (my wife is a
4
Why am I here?
I am not sure. My
wife went to a
seminar at the
hospital about
retirement
planning and
living trusts and
she thought we
should see
someone about
our estate plan.
nurse) of about $180,000. If I
were to add everything up, my wife
and I probably have total assets of
about $2,000,000 including our
house which is now free and clear.
I might be able to retire in the next
couple of years, but I am not sure.
Why am I here? I am not sure.
My wife went to a
seminar at the hospital
about retirement
planning and
living trusts and she
thought we should
see someone about
our estate plan.
You were recommended
to us by a
woman my wife
works with, but I
don’t know why I
need an Elder Law
attorney; I am not
an elder.
If you are prepared
for 2006, and
if you define Elder
Law inclusively, this
man and his wife
are your new perfect clients. If you
are concerned about the diminution
of Elder Law practice resulting from
changes in Medicaid laws, these are
clients you want to cultivate.
Certainly we are there to serve the
substantially older client as well;
the client who is facing current
issues of incapacity, abuse, neglect,
(continued on page 5)
Allan Bogutz, CELA, is a Past President of
NAELA and a Fellow of the Academy. As
the second president of NAELA from
October 1988 to October 1989, Allan published
the very first edition of the NAELA
News. From Volume I, Number I, published
in the fall of 1989, to this issue,
Volume 18, Number I, the NAELA News
has been an important tool to inform and
educate NAELA Members. During Allan’s
presidency, NAELA’s membership
increased from 35 to 350 members. The
first conference was also held during his
presidency in Tucson, Arizona. Allan currently
practices Elder Law in Tucson,
Arizona, with Bogutz and Gordon, PC.

Are You Ready for Your
2:30 Appointment?
(continued from page 4)
exploitation, housing concerns,
financial issues concerning payment
for acute and long term
care, or facing issues of end-of-life
estate planning. A myriad of Elder
Law issues specific to the old-old
client and the family of the old-old
client exist. Medicaid is, of
course, only one of the many
important legal issues facing aging
clients.
What should this
sixty-year-old client
expect from an Elder
Law attorney? Is he
indeed seeing the right
type of attorney? Are
Elder Law attorneys’
skills and training
appropriate to meet his
needs as he contemplates
retirement and
prepares for the legal
and financial issues he
must face as he enters
this entirely new stage
of his life?
Let’s look at what
this client needs. First,
he needs to have his
estate plan reviewed.
His life has changed, since his
children are now grown, and his
father has some financial dependence
upon him. Being in a second
marriage, he may need consultation
about ways to provide for his
spouse while still protecting his
estate for the ultimate benefit of
his own children. He knows nothing
about estate taxes, although
he has heard the number
$600,000 somewhere. His current
will provides for an outright gift to
his spouse of his entire estate
with no tax planning, no provision
for his father and no provision for
any ultimate gift to his own children
other than as beneficiaries in
equal shares if his wife does not
survive. Indeed, his wife’s will
provides that the residue of her
estate is divided equally among
her children if her husband does
not survive.
Second, he would certainly
benefit from durable powers of
attorney for health care and financial
management as well as from a
living will that sets forth his personal
preferences for end-of-life
care. The counseling you provide
regarding the selection of agents
will be invaluable to your client.
Third, he would benefit from
an assessment of his financial
resources in terms of his possible
retirement, a review of his life
insurance, and advice on whether
his investments are appropriate
for a person facing fixed-income
living in retirement. The man’s
need for life insurance, for example,
has probably changed substantially
from the time it was
bought to put his children through
school, a goal now mostly met.
Fourth, he will likely appreciate
information about what to
expect with his father’s care
needs, the coverage available for
his expenses under Medicare and
potentially Medicaid. Helping him
understand available community
5
resources to assist with his
father’s declining abilities will also
be helpful, as well as consideration
of powers of attorney from
his father to him for future use if
needed.
Fifth, discussion of the benefits
of long-term care insurance,
what to look for in a policy, what
to avoid and what to insist upon
as basic coverage will help him to
work better with the insurance
salespersons he will undoubtedly
encounter, each
with his or her
own preferred
product and each
with less-thancomplete
advice.
Sixth, and
finally, and perhaps
most important,
this client
should be advised
that you are now
his lawyer for all
matters as he
enters the retirement
stage of his
life, that you are
experienced and
skilled in all of the
issues that we
face in later life,
including issues of estate planning,
paying for long-term care,
prescription drug coverage under
Medicare, protection of resources
in the event of long-term care
expenses, managing issues of
mental or physical disability within
the family, and issues of housing
options if the current home
becomes inappropriate for extended
periods. Furthermore, you are
there to advise on insurance questions
or refer him to trusted advisors
who offer quality advice. He
can ask you for a referral to an
advisor who can evaluate his
investments for appropriateness
for retirement. You are there for
him, for his wife, for his father, for
(continued on page 6)

Are You Ready for Your
2:30 Appointment?
(continued from page 5)
his children if they need help as
well. His entry point may have
been estate planning but his real
focus is on the later part of his life
and you serve as a central
resource for all of the issues he
may face. Can you do it all? Not
necessarily. But you
can be there for him
for all of his legal
issues for the rest of
his life. You are
there to be General
Counsel to aging
persons and, as
General Counsel, you
may not necessarily
handle all matters
but you are there to
make the appropriate,
tested and
proven referrals that
will serve your client
best. And you are
there to coordinate
all of the services
that he may need as
he lives this part of
his life.
The mission
statement of NAELA
anticipated this type
of broad practice. It states:
Who We Are
The NAELA membership is comprised
of attorneys in the private and
public sectors who deal with legal
issues affecting individuals who are
elderly and/or disabled. Members also
include judges, professors of law, and
students.
Some of the issues NAELA members
assist their clients with include,
but are not limited to: public benefits,
probate and estate planning,
guardianship/conservatorship, and
health and long-term care planning.
NAELA’s vision is to be the recognized
leader inspiring and empowering
attorneys to enhance the quality of
life for individuals who are elderly or
disabled.
NAELA has
not really given
a specific definition
to the word
“Elder.” And,
indeed, it should
not. Rather than
a chronological
definition,
perhaps we are
really discussing
a stage of life
following the
traditional
working years.
This particular client has
many questions concerning his
pension and his other qualified
plans. One of the benefits he
gets from your advice is that you
are not selling any particular
product, be it annuity or mutual
fund or some other product. You
are simply advising him on what
his options might be. You are
able to advise him
objectively about
possible gifts to
his children or
possible 529 Plans
for his current and
future grandchildren.
He will have
many other questions
as time goes
by – these might
include possible
continuing care
retirement communities,
changes
in tax law, and
changes in
Medicare benefits.
And whatever the
issues may be that
arise for him, he is
comfortable, from
this first visit, that
you are up-to-date on issues concerning
Elder Law and aging. You
are building a long-term relationship
with your 2:30 appointment.
NAELA has not really given a
specific definition to the word
“Elder.” And, indeed, it should
not. Rather than a chronological
definition, perhaps we are really
discussing a stage of life following
the traditional working years.
In any event, your 2:30 appointment
at sixty years of age is
clearly one of the new elders and
part of your practice. The demographics
are clearly in favor of
great growth in the practice of
Elder Law.
Board
of Directors
2005-2006
PRESIDENT
Lawrence E. Davidow, CELA
Islandia, NY
PRESIDENT-ELECT
Donna R. Bashaw, CELA
Laguna Hills, CA
VICE PRESIDENT
G. Mark Shalloway, CELA
West Palm Beach, FL
TREASURER
Craig C. Reaves, CELA
Kansas City, MO
SECRETARY
Ruth A. Phelps, CELA
Pasadena, CA
PAST PRESIDENT
Stuart D. Zimring, Esq.
North Hollywood, CA
EXECUTIVE DIRECTOR
Susan B. McMahon, Esq.
Tucson, AZ
MANAGING DIRECTOR
Deborah J. Barnett
Tucson, AZ
DIRECTORS
Edwin M. Boyer, Esq.
Sarasota, FL
William J. Brisk, CELA
Newton Center, MA
Martha C. Brown, CELA
Saint Louis, MO
Gregory S. French, CELA
Cincinnati, OH
Bradley J. Frigon, Esq.
Englewood, CO
Doris E. Hawks, Esq.
Los Altos, CA
Barbara S. Hughes, Esq.
Madison, WI
Michael F. Loring, Esq.
Scituate, MA
Kerry R. Peck, Esq.
Chicago, IL
Stephen J. Silverberg, CELA
East Meadow, NY
Timothy L. Takacs, CELA
Hendersonville, TN
Lauchlin T. Waldoch, CELA
Tallahassee, FL
Wesley E. Wright, CELA
Bellaire, TX
Edward E. Zetlin, Esq.
Falls Church, VA
CONSULTANTS
Brian W. Lindberg, Public Policy
Washington, D.C.
Hugh K. Webster, Legal Counsel
Washington, D.C.
6

President’s Message
By Lawrence Davidow, Esq.
This has been a very interesting
year for NAELA and its members.
The Deficit Reduction Act of
2005 (DRA 2005) and all its negative
implications certainly grabbed
our attention, and a full-scale effort
was mobilized to stop the legislation.
While the vote did not go the
way we wanted, we can still be
very proud of what our organization
was able to accomplish. We
now have a “seat at the table”
when discussing legal issues of the
elderly and people with disabilities.
We testified at congressional hearings
and we are now a highly
regarded player
among the
national aging
network.
NAELA members
became
the “go-to people”
to analyze
the law. We
must now continue
to build
on these successes.
DRA and
Medicaid
Win or
lose, this was a
cause worth
fighting for.
DRA 2005 is
bad for
America and
bad for its middle-class
citizenry. The truth is
that the middle class are once
again the losers here, not Elder
Law attorneys. We will be busy
explaining this confusing law to our
concerned clients for many years
to come. Over the past twentyfive
years, the middle class claimed
a larger part of the Medicaid budget
to pay for their long term care,
which they could not otherwise
hope to afford without losing
everything they worked a lifetime
to acquire. During
this time, our government
allowed
Lawrence Davidow
this approach to become a mainstream
practice; a defacto Medicaid
policy in the place of comprehensive
long term care reform. Today,
without giving a thought to such
comprehensive long term care
reform, the government has chosen
instead to pull the rug out
from under the middle class. This
new law, which makes it harder to
access the Medicaid program, is
nothing more than a harsh TAX on
the middle class, especially the
lower income
middle class.
Eliminating a
benefit, while
asking middle
class
Americans to
spend their
entire life
savings for
their care, is
a TAX on
them. It’s an
unconscionable
tax.
Please spread
the word and
let people
know what is
really happening
to
Americans.
The middle
class are
being taxed once again—and the
tax could cost them their entire life
savings!
Our Mission
Our mission now is to educate
Congress, the aging network, and
the press on the direction of long
term care reform in this country.
First we must focus on DRA 2005
and why it needs to be changed.
We must also be vigilant in our
state and local efforts as this new
law is implemented throughout
the country. NAELA Chapters
will be critical for this local advocacy,
and thus, I urge you to get
involved with your local chapter
or start one immediately if your
state does not have a chapter.
Secondly, we must make it
clear that while we wholeheartedly
support the purchase of private
long term care insurance, it
is naive public policy to believe
that such insurance is affordable
for more than a small minority of
current upper middle class seniors.
Furthermore, many seniors
today have preexisting conditions
disqualifying them from the purchase
of such insurance.
Insurance will play an important
role, but only the insurance companies
and their lobbyists believe
that long term care insurance
alone will solve the long term
care crisis in this country.
2006 Charitable Recipient
While DRA 2005 has
demanded much of our focus, I
would like to call your attention
to something very positive that
each NAELA President gets the
privilege to do each year. Many
years ago, the NAELA Board
authorized $1000 for each
President to give to a charity of
his or her choosing in recognition
and appreciation of the efforts of
our committee chairs. There is
no question that our committee
chairs all worked very hard for
NAELA this year; for that reason,
I am particularly proud to report
that, in their honor, I have chosen
THE LONG ISLAND COMMU-
NITY FOUNDATION (LICF) to be
the 2006 charitable recipient. I
am choosing my local community
foundation to highlight community
foundations throughout the
country who are, in my opinion,
unsung heroes—who everyday
help identify and meet the critical
needs of people in our local
communities, including the
important needs of seniors and
people with disabilities.
Community foundations are
(continued on page 8)
President’s message
7

President’s Message
(continued from page 7)
particularly knowledgeable about
local grass- roots charities and
their relative merits, good and bad.
Elder Law attorneys are known for
being extremely generous and
should thus be aware of this community
resource and the good that
they provide our clientele.
The Long Island Community
Foundation
The Long Island Community
Foundation, a division of The New
York Community Trust, is one of
650 community foundations across
America. Each community foundation
is a tax-exempt public charity
made up of four types of charitable
funds that have been established
by individuals, families, and businesses
to meet certain philanthropic
goals.
The first type of charitable
fund is called a “community
response fund;” the income of
which is granted, through a competitive
grants process, by its
board (with help from its professional
staff) to local charities meeting
the needs of the community.
The second type of fund is known
as a “donor advised fund” and
allows the donor to continue to
suggest grants when they wish to
support particular charitable organizations.
The third type of fund is
known as a “field of interest fund”
and enables donors to focus their
charitable giving on an issue of
personal interest. For example, I
opened the Davidow Elderly
Community Assistance Fund
(DECAF) in the Long Island
Community Foundation. The
income from this fund is distributed
through the LICF’s competitive
grantmaking program, exclusively
to help seniors on Long Island.
Lastly, the fourth type of fund is
known as a “designated fund”
which allows donors to identify, at
the time the fund is established,
specific charities to benefit.
In 2004, the LICF’s grants
guidelines promoted “community
building.” Under these guidelines,
the LICF supported a range of
organizations and projects that
directly benefited Long Island’s
senior citizens, spanning a range of
issues,access to quality health
care, isolation, mental illness, and
maintaining independent living.
The LICF supported a project to
train members of African American
churches to be “heart health
ambassadors,” bringing back to
congregations an arsenal of information
needed to maintain good
cardiac health. Grants supported a
local nonprofit that works in lowincome
communities to devise
projects that bring together youth
and the elderly so that their experience
and wisdom is passed along
to the next generation. The LICF
also supported a program to raise
the awareness of the mental health
needs of the region’s elderly.
Another LICF-funded project
matched volunteer supporters and
caregivers with homebound elderly
in a NORC, a naturally occurring
retirement community.
In 2005, the LICF revised its
grantmaking guidelines to focus
funding on “critical issues, critical
communities, critical organizations,”
and included “the needs of a growing
aging population” as one of
these articulated critical issues.
Under these new guidelines, the
LICF continued its support for
programs improving seniors’
access to quality health care and
planning regionally for seniors’
mental health needs. In addition,
new grants were awarded
to help address the needs of
grandparents caring for their
grandchildren, to strategize the
transportation needs for seniors
unable to drive to medical
appointments, and to help older
residents stay in their homes by
matching them up with young
people who cannot afford ordinary
rentals.
In addition to its competitive
grantmaking, the LICF distributes
millions of dollars annually
through donor suggestions to
support programs benefiting senior
citizens.
And so, in honor of the great
work done by our committee
chairs this year, we now honor
the Long Island Community
Foundation for all its contributions
to seniors on Long Island.
I would like to thank you all
for the opportunity to make this
donation to LICF's community
response fund. NAELA is such a
wonderful organization and I am
proud to spread its good will.
We are NAELA. Hear us Roar!
Stand out from the crowd
and create your own personal
web page with information
about your experience,
education, and
awards. Your web page can be
created by going to the members
only section of the website
and choosing NAELA Personal
Web Pages or type
http://www.naela.com/private/MemberPages/
into your
internet browser. Your web
page will appear under your contact information within the online
directory. It’s a great way to provide potential referrals with more
information about your specialty, skills, and experience.
Link your web page to your name in the directory Today!
8

Executive Director’s Message
By Susan B. McMahon, Esq.
The battle that NAELA waged
regarding the Medicaid legislation
that resulted in the Deficit
Reduction Act of 2005 (DRA) was
not fought in vain. A great deal
was accomplished.
To put this battle in perspective
we must recognize the larger
budget issues that were simultaneously
being addressed. There
were issues of greater visibility and
impact than Medicaid: homeland
security, Medicare Part B premiums,
the new Medicare drug bill,
physician payment rates, relief for
victims of Hurricane Katrina, tax
cut extensions, and finally, funding
the war in Iraq.
Within Medicaid itself, the
transfer of asset provisions were
not as easily understood as benefit
reductions and cost sharing for
low-income children and pregnant
women, or reimbursement cuts for
pharmacists.
It was in this unfavorable environment
that NAELA developed
and implemented a multi-faceted
strategy for approaching the
Medicaid fight.
The strategy required simultaneous
approaches to education,
coalition building, communication,
media activity, and membership
involvement. Fortunately, the
groundwork had been laid in many
of these areas throughout the past
several years by NAELA's public
policy and advocacy activities.
Building a Positive
Reputation
For more than a year, NAELA's
Public Policy Committee, chaired
by Charlie Sabatino, the
Medicaid Strategies Task Force, led
by Vincent Russo, and the
NAELA Board of Directors worked
unceasingly to stop the harmful
provisions of DRA.
Brian Lindberg,
Susan McMahon
along with two
hired lobbyists, Howard Cohen
and Chris Jennings, were key
players in contacting and educating
members of congress, congressional
staff, and coalition partners
about transfers of assets in context
of long-term care planning. Ann
Krauss and Stan Samples with
Kellen Communications also
worked diligently on the Public
Relations side to ensure that the
media had access to NAELA
experts and information on our
position. We should not forget
NAELA Past President Bernie
Krook's testimony on April 27,
2005, before the House Energy
and Commerce Committee, or
Brian Lindberg, Trish Nemore,
and Vincent Russo's briefing to
the staff of the House Energy and
Commerce Committee and the
Senate Finance Committee staff on
Medicaid eligibility rules.
Additionally, NAELA was able to
influence the views of the Senate
Special Committee on Aging and
key Finance Committee members
when Vincent Russo testified at
the hearing on July 20, 2005.
Vincent's testimony on NAELA's
proactive reform proposals became
an important aspect of NAELA's
public policy campaign. The development
of alternative proposals to
address congressional concerns
about so called "fraudulent" transfers
of assets was essential to
establishing credibility with
Congress. NAELA's recommendations
and proposals were reviewed
favorably by the Congressional
Budget Office (CBO) as providing
savings to the program and
enhanced NAELA's credibility with
Members of Congress and the congressional
staff. On September 7,
2005, Vincent Russo debated
Stephen Moses at the Cato
Institute, in Washington, DC.
More than 125 individuals attended
- many of them key players in the
health care policy world. These
activities led to congressional staff
asking NAELA to submit questions
for committee hearings, to analyze
legislation, and even to draft legislative
language. It is clear that
NAELA has successfully secured a
role as an expert and valued
resource for Members of Congress
and congressional staff, and for its
colleagues in the aging network.
Coalitions and Relationships
NAELA has been working with
coalitions in Washington, D.C. for
more than 10 years. Represented
by Brian Lindberg and Charlie
(continued on page 10)
executive director’s message
9

Executive Director’s Message
(continued from page 9)
Sabatino, NAELA has been a
team player and has taken on
leadership roles for these organizations.
Brian currently chairs the
Long-Term Care Task Force of the
Leadership Council of Aging
Organizations, which includes 53
aging groups in D.C. NAELA has
been a member of the Medicaid
Coalition with more than 200
member organizations representing
a diverse group of consumer and
provider interests. These relationships
are critical in our work to
protect Medicaid beneficiaries.
NAELA worked hard to raise
the importance of the transfer of
asset changes in the collective
conscious of the aging and
Medicaid advocacy groups; not an
easy task in the face of other
Medicaid cuts, Social Security privatization
efforts, and the Medicare
Modernization Act implementation.
NAELA, AARP, and the Alzheimer's
Association took the lead in promoting
protection of people who
are elderly or disabled who would
be harmed by the Medicaid eligibility
changes. The LCAO and these
organizations individually wrote letters
to Members of Congress, took
out full page ads in The
Washington Post, the Washington
Times, Roll Call, and targeted
papers around the country. They
also mobilized their memberships
on behalf of protecting Medicaid
and stopping the transfer of asset
changes. AARP, in particular, put
significant time, resources, and
lobbying into this effort.
NAELA was also successful in
working with the national trade
organizations of the nursing home
industry to oppose the change in
the start date for the penalty period.
The American Health Care
Association testified before the
Finance Committee in opposition to
the change and lobbied Congress
on the issue. The American
Association of Homes and Services
for the Aging also lobbied against
the date change.
In addition, NAELA and its
members successfully initiated a
dialogue with the Congressional
Budget Office (CBO), the
Government Accountability Office
(GAO), and the Congressional
Research Service (CRS) to provide
data, insights, and observations
about whom we serve and how
the Medicaid program works.
These influential entities responded
positively and requested our
assistance as they developed their
work on transfer of assets and
Medicaid.
Communication Materials
The NAELA Staff and
Consultants developed fact
sheets, handouts, and a "Myths
and Facts" piece for distribution
on Capitol Hill and for NAELA
members. Kellen Communications
ensured that the media
had access to NAELA experts for
information and interviews.
Also, they informed the media of
key developments in the struggle
against the punitive transfer
of assets changes and in favor
of more reasoned approaches.
Efforts were made to ensure
that letters to Congress from
organizations and coalitions supporting
NAELA's position on
transfer of assets were provided
to and understood by the media.
Ann and Stan worked hard to
make sure everyone was aware
of the significance of the letters
from the LCAO and AARP. In
addition, NAELA's own letter on
the same topic was FAXed to all
of the congressional offices.
"Letters to the editor" to daily
newspapers in areas home to
members of the Senate Finance
Committee and the House
Energy and Commerce
Committee were distributed.
Similar letters to the editor, but
using a national perspective,
were sent to national media.
10
Support from
NAELA Members
We can not forget the support
of NAELA members across the
country who met with Members of
Congress and staff. The number of
contacts by NAELA members was
greater than ever before. President
Lawrence Davidow created the
Grassroots Advocacy Task Force,
chaired by Charlie Sabatino to
evaluate our efforts, review the
approaches of other organizations,
and make recommendations for the
future.
The NAELA website is the central
resource for Medicaid advocacy
materials, including the Grassroots
Advocacy Kit. This kit was developed
for use by NAELA members.
It contains sample letters, talking
points, background information,
Capitol phone numbers, leavebehind
materials, etc. The site also
houses NAELA's position papers,
documents regarding the current
transfer of asset proposals, the
House and Senate budget reconciliation,
NAELA's proposed Medicaid
solutions (presented as replacements
for current legislation), Myths
and Realities About Medicaid
Planning, NAELA Members as
Resources: Issue List; and a NAELA
Fact Sheet.
Go to http://www.naela.org/private/OurGov/medicaid.html.
Senior Rights PAC. Brian
Lindberg, Chris Jennings and
Howard Cohen, in addition to
NAELA members, attended many
fundraisers during the past two
years. This provides NAELA with
unique opportunities to have conversations
about the needs of our
clients with Members of Congress in
more relaxed social settings. Many
of these members were interested
in our analysis of the Medicaid program
and the proposed assets rules
changes.
All is Not Lost. The goal of
the public policy campaign was to
(continued on page 11)

Tales of NAELA
Saved by the NAELA Attorney
Suzanne J. Seguin, Esq.
A financial planner that I work
with referred a lovely couple in
their fifties to me. The couple
needed some estate planning and
a lot of help. The wife had been
sick for a while, not life threatening,
but sick and in and out of the
hospital for months. Husband has
early Alzheimer’s at age 57.
No family around to help. The
couple was in a financial mess
because they did not keep a check
book register, so I told them I
would assist them in getting
organized. Husband brought me a
file of bills one day for my review.
I looked at the file and there were
many past due bills. I saw one
bill that concerned me and had
my secretary call a life insurance
Executive Director’s Message
(continued from page 10)
defeat the legislative proposals to
change the penalty period start
date and the lookback period in
order to protect seniors and individuals
with disabilities. Those proposals
became law on February 3,
2006, when President Bush signed
the bill, although the debate and
potential court rulings on the bill's
constitutionality persist. NAELA's
new goal is to work with our
coalition partners and the
Centers for Medicare and
Medicaid Services (CMS) to
implement the DRA in the least
harmful ways for Americans
who are older and disabled. In
addition, we continue to work with
Members of Congress that are interested
in repealing or amending the
DRA. The Medicaid Strategies Task
Force is also working on DRA analysis,
state rulemaking, Symposium
sessions on DRA, potential litigation,
company in Tennessee on January
9th . Valley Forge Life Insurance
Company told my secretary that if
it did not have its check by the
next day, the policy
would be cancelled
and husband would
have to reapply for the
life insurance policy.
I did not want this
to happen because I
figured husband would
not pass the medical
examination. The policy
was for one hundred thousand
dollars. I was concerned and
called the company myself and the
company representative told me
that it was not the next day,
January 10th, that the premium
and materials that NAELA members
could use in advocating for their
clients.
It has been an enormous learning
experience for NAELA - to go up
against powerful special interests,
fighting the myths perpetuated by
insiders who draft harmful provisions
from the comfort of a congressional
committee post, the challenges of
representing clients who often can't
make their own case to Congress,
and educating the public and colleagues
about very complicated
rules that affect so many low and
middle-income people with longterm
care needs. We fought a good
and honest fight on behalf of millions
of deserving older persons and
people with disabilities, we put
NAELA's resources to good work, we
strengthened our relationships both
on and off the Hill, and we will not
give up on our client's best interests.
Thank you all for helping in all
the ways that you did!
11
had to be paid, (whoever spoke to
my secretary had been incorrect),
but that it had to be paid the day we
called and the premium had to be
paid prior to its office closing which
was within about two and one-half
hours of my calling them. Of
course, it would not take payment
by credit card, or by check over the
phone. Thus, I
had two and
one-half hours to
hand deliver a
check to
Nashville
Tennessee, from
New Bedford,
Massachusetts.
That’s when
I thought of the NAELA book listing
the NAELA attorneys. I called three
Nashville, Tennessee NAELA
Attorneys and found one in her
office. Within two minutes or so of
speaking with Attorney Christina
Norris of Nashville, Tennessee, she
agreed to cut her own office check
for the $101.78 premium that was
due and have it hand- delivered to
the life insurance company office,
IMMEDIATELY. I told her I would
pay her a few hundred dollars to do
this. She immediately cut the check
and had her courier hand-deliver the
check and get a receipt. Christina
confirmed receipt with the company
and I re-confirmed on January 10,
2006, that the policy was still in
effect. The security guard signed for
receipt of the check!
Here comes the interesting
part... the husband, who we thought
would live a long life with
Alzheimer’s, died prematurely on
January 20, 2006! Needless to say, I
phoned Attorney Norris and thanked
her again for her assistance.
Surviving spouse is very appreciative
of our efforts and we have requested
the life insurance claim forms. I
cannot say enough about NAELA.
I looked at the file
and there were
many past due bills.
I saw one bill that
concerned me...
Attorney Suzanne J. Seguin, Esq., practices
Elder Law in New Bedford, MA. She can be
reached at sjseguin@msn.com.

Address Medicaid’s Institutional Bias
and Expand Your Practice
Patricia E. Kefalas Dudek, Esq.
Aggressive advocacy efforts
are happening at the state and
national level to address what is
called the institutional bias in
Medicaid. Essentially, this bias
means that, when a person with a
disability or an elder is served in
an institution or a nursing home,
Medicaid will pay for all of his
services, including anything related
to housing. However, if the
same person with a disability or
elder lives in a less restrictive setting,
and his services are paid for
by a Medicaid Waiver, his housing
costs are specifically excluded
from coverage. See U.S.C. 42 §
1396n(c)(1). The impact of this
bias is a huge financial disincentive
for the states to move
towards true implementation of
the Supreme Court’s decision in
Olmstead, 527 U.S. 581 (1999),
and the integration mandate of
the American with Disabilities Act,
42 U.S.C. § 12101(a)(2) and (5).
See also 28 C.F.R. § 35.130(d).
This is how institutional bias
works against the states: If a
Medicaid beneficiary wants to live
in the community, in many cases
either the individual or the State
will have to pay for the housing
costs. If the person pays for this
cost, then this is private money
and it cannot be used as state
match to draw down additional
Medicaid funds. In Michigan, that
means a loss of the 50% match of
the housing cost (which they get if
the person is placed in a more
restrictive setting). In some states,
the match is even higher. If the
State pays for this, these funds
need to come from general fund
dollars. As the funds are not being
used to pay for Medicaid covered
services, they again may not be
used for Medicaid match. The
states are all experiencing a
reduction in revenue, with large
growth in their Medicaid budget.
Therefore, it becomes more difficult
for budget directors and policy
makers to understand the
importance of using these funds
to provide long term care services
in the community when they can
provide these services in a more
restrictive setting, and then do not
need to come up with as much
money to do so.
Advocates for seniors and
people with disabilities need to
understand this essential policy
issue, and need to develop creative
strategies to address it and
at the same time to achieve the
desired goal of many of our clients
to age in place, and live in the
least restrictive setting. The first
strategy to consider is working
with Community Non-Profit
Housing Corporations.
Non-profits provide a charitable
gift to low-income people by
arranging for affordable supportive
housing; they also lessen the burden
of the states by creating and
providing safe and affordable supportive
community living situations.
These charitable organizations
capture and preserve the
resources the states spend through
the public mental health system
and long-term care system on
behalf of people with disabilities
and seniors. They do this by reinvesting
any funds spent, plus the
appreciation on the real estate into
the development of additional
affordable, supportive housing.
Without these vital agencies, these
often times accessible homes would
be in the hands of for profit landlords,
and could not be used to
defer the continuing obligation of
the state to house and provide
services to its most vulnerable citizens
in the least restrictive setting.
Prior to 1976, Michigan’s citizens
with developmental disabilities
and mental illnesses were typically
institutionalized. However, in
Michigan Association for Retarded
Citizens v Smith, 475 F.Supp 990
(ED MI 1979), the State of Michigan
agreed to a federal district court
judgment requiring the State to
provide community based housing
for adults with disabilities. The
“Plymouth Center” case, as it is
now known, was an early part of
the national trend toward de-institutionalization,
or providing housing
and needed services to people with
disabilities under the federal
Medicaid program in the least
restrictive setting. This resulted in
the creation of smaller community
based residential settings, as
opposed to large isolating institutions.
Under several administrations,
Michigan became a leader in
this national effort. In the late
1960s, over 13,000 people with
developmental disabilities resided in
state-operated institutions across
Michigan. Now there are fewer
than 100.
Small group homes for six or
fewer people proved to be the primary
vehicle for complying with the
Plymouth consent decree and for
implementing a statewide de-institutionalization
program. Early on in
(continued on page 13)
12

Address Medicaid’s
Institutional Bias, and
Expand Your Practice
(continued from page 12)
this de-institutionalization effort,
state and federal funds were used
to lease houses from private
investors, and services were typically
provided under contract with
a separate service provider organization.
While the housing and
support services were separately
contracted, they were both provided
as a direct responsibility of the
State under the Michigan Mental
Health Code, §§ 330.1704 and
330.1208, and State Constitution,
Article I § 2, and were inextricably
linked. Services could not be provided
without housing to replace
the institution, and housing could
not be provided without needed
support. The housing and services
were so closely tied together
that if the person with a disability
had a falling out with his service
provider, the only choice he had
was to move to another setting.
This meant that even when a
service provider violated the person’s
rights under the Mental
Health Code § 330.1208, or even
neglected or abused the person,
the person with a disability was
punished, as he would have to
lose his home and housemates to
avoid the provider of services.
This model was merely an extension
of the institutional model of
care, but in smaller settings.
As a result, variations on the
group home service delivery
model emerged to afford people
with disabilities greater protection
and choices in housing.
Supportive living arrangements are
currently offered as a popular
alternative to group homes. All of
these living arrangements, however,
still include some similar type
of configuration linking the
required elements of housing and
support as an alternative to institutional
or nursing home care.
In addition to the shift to
community based care, Michigan
has changed its role from that of a
direct provider of services to a
director of a state wide system of
Community Mental Health boards
responsible for providing State
Medicaid funded services to eligible
low-income citizens with disabilities
in its community. The
Community Mental Health boards,
in essence, act as an agent of the
Department of Community Health.
They typically contract for the necessary
services, although some
continue to provide direct services.
Contemporaneous with these
systemic changes, a relatively
small number of non-profit organizations
have emerged to assist the
State and the local Community
Mental Health boards in providing
housing for Medicaid-eligible citizens.
These non-profit organizations
share a common mission of
reducing the burden upon state
and local governments in meeting
their obligations to citizens under
the Medicaid program and the
Michigan Mental Health Code.
Nationally, the trend toward
de-institutionalization continues.
Recent examples include the U.S.
Supreme Court Olmstead decision,
Olmstead v LC ex rel Zimring, 527
U.S. 581; 119 S.Ct. 2176; 144
L.Ed.2d 540 (1999), and the
President’s 2001 “New Freedom”
Initiative. The New Freedom
Initiative is described by the
George W. Bush Administration as
one that “promotes the full integration
of people with disabilities
into all aspects of American life by
increasing employment opportunities,
by expanding access to technology
and public accommodations,
and by providing accessible
transportation and housing.”
Without affordable supportive
housing options, the objective of
delivering services in the “least
restrictive setting” cannot be
achieved. People with disabilities
13
and their advocates consider this a
basic civil right. Without the
efforts of these charities, the burden
on the states’ Medicaid systems
could force people with disabilities
and seniors back into
institutions and nursing homes.
Many advocates for seniors
and people with disabilities
throughout the country agree that
it is best to have the non-profits
focus their efforts on providing
housing or social services, but not
both. Philosophically, empowering
people to be able to select and
change service providers without
having to lose their homes and
friends promotes independence
and self-determination. Advocacy
groups attested to the validity of
this premise; consumers of long
term care services can now protect
themselves from inadequate
care by simply firing the service
provider, without fear of losing
their home and housemates. This
model goes a long way in protecting
these citizens and it ensures
that the mistakes of Willowbrook
and other institutions are not continued
(on a much smaller scale)
in group homes. See The End of
a Nightmare at Willowbrook,
Headline News, Page 2,
Queenscourier, May 11-17, 2000,
for a detailed account of atrocities
that took place at the Willowbrook
State Institution.
The other rationale for separating
the housing and social service
functions is for all the organizations
to focus on only one of
these very important missions, so
that they can be even more efficient
and effective with the scarce
resources allocated to caring for
this population. Consistent with
this trend, the Department of
Housing and Urban Development
(“HUD”) does not permit tenants
to be required to accept services
as a condition of living in HUD
funded units. See Federal
Register, Vol. 69, No. 94, May 14
(continued on page 14)

Contents
Address Medicaid’s
Institutional Bias, and
Expand Your Practice
(continued from page 13)
2004, p.27761. Similarly, the
Michigan State Housing
Development Authority (“MSHDA”)
has strongly encouraged the separation
of housing from the provision
of support services. These nonprofit
organizations represent the
best of the non-profit sector, providing
important services that
immeasurably benefit people’s lives
and doing so in an incredibly cost
efficient manner, usually on the
proverbial shoestring budget.
As a result of working closely
with such organizations, I recently
found myself drafting Amicus
Curiae briefs in their efforts to
secure property tax relief for their
developments. My advocacy on
behalf of individual clients has
expanded my practice into areas
never anticipated. Forcing these
organizations to continue to pay
property taxes impedes and
restricts their ability to provide this
needed charitable resource. If continuously
forced to use their limited
resources to pay property taxes,
they are essentially using one type
of tax dollar allocated to house
people with disabilities and seniors
to pay another type of tax. This is a
very inefficient use of these scarce
resources and, as a result, people
with disabilities and seniors (and
those who are responsible for their
care) will be forced to divert even
more of these scarce resources
toward higher housing costs and
away from the Medicaid budget,
which pays for the services.
Ultimately, states will be forced
once again to bear more of this
financial burden in the future. This
burden is even greater as often
times these homes are not even
allowed the “homestead” valuation,
at least under Michigan law, specifically,
MCL 211.7cc, for these property
taxes.
Another strategy to address the
institutional bias is the use of special
needs trusts to handle the
housing costs. It will make it much
easier to establish that providing
the services in the less restrictive
setting is a reasonable accommodation
under the ADA if the state
does not have to deal with the
financial dis-incentive.
Many of the Pooled Accounts
Trusts, or Exception C trusts, that
I work closely with were developed
by nonprofit housing organizations.
Many of our sub-accounts
hold real estate, and the trust
often acts as a“friendly” landlord.
Recently, we applied for, and
secured a property tax abatement
on behalf of the trust by sending
the following letter:
Dear Sir or Madam:
Enclosed please find a copy of
the Deed showing that the Pooled
Account Trust of the Friends of
CLS, Inc. f/b/o XXXXXX owns the
residence located at XXXX Street,
XXX, Michigan XXX. In addition, I
have provided copies of the
Articles of Organization and the
Bylaws for the Friends of CLS, Inc.
Friends of CLS, Inc. is a Michigan
non-profit corporation granted tax
exempt status from the Internal
Revenue Service under a ruling
dated October 21, 1993. Please
note from the enclosed corporate
documents that the original name
of the organization was the
Friends of Wayne County Living
Services.
The purpose of this correspondence
is to request tax exempt
status be granted the above-referenced
property, under Michigan
Compiled Law - MCL 211.7o nonprofit
charitable institutions;
exemptions; definitions. The
underlying property should be
exempt from Michigan property
taxes because one of the charitable
purposes of the Friends of
CLS, Inc. is to provide housing
assistance for individuals who are
struggling with a disability.
Friends of CLS, Inc. established a
Trust to accomplish this charitable
purpose. A review of the Trust
indicates that the purpose of the
Trust is to organize and administer
funds in order for individuals with
disabilities as defined by Section
614(a)(3) of the Social Security Act,
42 U.S.C. § 1396p, amended
August 10, 1993, by the Revenue
Reconciliation Act of 1993, to qualify
for medically necessary public
benefits. The Trust facilitates this
purpose by using the assets of the
Trust to provide financial assistance
to individuals with disabilities,
including assistance to defer the
cost of supplemental services.
Through this Trust, there are
many Sub-Trusts wherein each
Sub-Trust benefits an individual
beneficiary and is designated in the
name of such beneficiary. The
Trust in question is the Friends of
CLS, Inc. Pooled Accounts Trust
f/b/o XXXXXXXX. As demonstrated
by the enclosed Deed, the Sub-
Trust owns the residence now
being used as XXXXXXXh’s semiindependent
living arrangement.
To qualify for the exemption,
the property owner must satisfy the
following requirements:
The real estate must be owned
and occupied by the exemption
claimant;
The exemption claimant must
be a library, charitable, educational
or scientific institution;
The claimant must have been
incorporated under the laws of the
State of Michigan;
The exemption exists only
when the building or other property
therein, are occupied by the
claimant solely for the purposes for
which it was incorporated.
From the above standard, the
Trust should be granted the exemption.
The Trust is currently owned
and occupied by the Friends of CLS,
Inc. Pooled Accounts Trust f/b/o
XXXXXXX. By the terms of the
Pooled Accounts Trust, Sub-Trust
and the main Trust, the Trust can
only benefit an individual who is cop-
(continued on page 15)
14

Address Medicaid’s
Institutional Bias, and
Expand Your Practice
(continued from page 14)
ing with a disability. Assisting individuals
with a disability falls directly
within the charitable purposes
Section 501(c)(3). When XXXXX
passes away, the Terms of Trust
require the property to be used for
supportive housing for people with
disabilities who are indigent under
Section XI (2).
The enclosed Articles of
Incorporation show that Friends of
CLS, Inc. is in fact incorporated in
the State of Michigan and is a nonprofit
entity. The Friends of CLS,
Inc. chose to utilize the Trust to
accomplish this goal of providing
and assisting individuals with disabilities.
The purposes for which all of
the above-referenced entities were
established is the charitable purpose
of supporting individuals with
disabilities. Providing support for
the housing needs for XXXXXX, an
individual with disabilities, fulfills
the Friends of CLS, Inc. charitable
purpose and thus satisfies this
requirement for a property tax
exemption.
We request that you modify
your tax records to indicate that
the above-referenced parcel is
exempt from taxation until it is
transferred or is no longer
engaged in this charitable purpose.
It is important that NAELA
members understand the system
barriers that make it difficult for us
to assist our clients that desire to
live in places other than nursing
homes and institutions. I encourage
you to use your advocacy skills
to address the Medicaid institutional
bias, and, who knows, you just
might end up expanding your practice
into new areas at the same
time.
Memoirs of a Counsellor:
“After So Much Time...”
Bridget O’Brien Swartz, Esq.
(aka Social Worker at Heart)
Ah, Maggie. After nearly
eight years serving as your
counsellor, advocate, I’ve
finally become a part of the
conspiracy against you. It
was inevitable, I suppose.
I was “forced” to be your
attorney by order of the
court, after you expressed
dissatisfaction with your former
court-appointed attorney.
I, and others, often
wondered why I did more
than what is normally
required of a court-appointed
attorney. Those of us who
practice law, particularly,
those of us who are Elder
Law attorneys, all have at
least one, probably more
such cases for which the
reason we feel a strong connection
is uncertain.
Yes, you were a challenge,
lacking insight into your mental illness, blaming others for your circumstances,
impossible to reason with... But that’s the nature of your illness,
isn’t it? I often wondered why those with training and experience
in dealing with persons such as yourself were repeatedly at a loss as to
how to “treat” you. Talking around you, as if you weren’t present.
Talking condescendingly, despite acknowledgement of your intelligence.
The least I could do was be present, unlike your family, and stand at
your side when you so often believed the world was against you.
Sometimes I believed that as well! You trusted me and I gave you hope.
Why? I do not know. Maybe it was because I would see and believe
what was truth when no one else could sift through the delusions or rise
above their frustrations.
And now, even I cannot help or give you encouragement as, in your
eyes, I’m “one of them.” So, it’s the end of an era, so to speak. I hope
your new “counsellor” is able to do for you what I no longer can. But in
my heart of hearts, I unfortunately know that the next person won’t have
the same will or desire; won’t recognize that you have no one else who’ll
accept you for who you are. What was a case that stood out from the
rest for me, will just be one of many for the next person. Ah, Maggie . . .
Patricia E. K. Dudek, Esq., practices
Elder Law in Bloomfield Hills, MI.
Bridget O’Brien Swartz, Esq., practices Elder Law in Phoenix, AZ.
15

ook review
“Mom Are You There?”
by Kathleen A. Negri
ISBN: 0-9763557-0-1
Reviewed by
John J. Husson, Esq.
Book Review
“Mom Are You There?” is a
compelling story by Kathleen A.
Negri, a successful Elder Law
Attorney, who convincingly
explains how she transformed her
mother’s diagnosis of Alzheimer’s
disease into a positive life changing
event for both she and her mother
and other members of her family.
The author takes us from the initial
telltale and progressively worsening
warning signs of her mother’s forgetfulness
and other behavioral
clues of dementia to the doctor’s
office where the definitive diagnosis
is communicated to the family.
Obtaining the specific diagnosis is
emphasized as important for the
family who must be able to deal
with the reality of Alzheimer’s.
The book is written as a life
changing journey for the author
who describes how she was able to
put aside long term negative childhood
memories of her mother and
focus on her as a person freed in
her present condition from what
she describes as her mother’s “hard
wiring.” Dementia is described by
the author as a condition which
strips away many of the negative
qualities of its victims’ personalities
transforming them into more of a
childlike presence.
The author’s story is especially
important in view of a staggering
19 million families who are impacted
by the disease. We are reminded
that the large majority of
Alzheimer’s victims remain cared for
at home and with an estimated lifetime
cost of $175,000. Helpful
information is provided about the
need for financial, medical and
legal planning, support groups and
other resources, but the best part
of the book focuses on the
author’s ability to describe in
detail how she dealt emotionally
with her mother’s
disease as a positive
and healing event.
It is the emotional
upheaval caused by
Alzheimer’s that tears many
families apart due to the
huge financial and disturbing
stresses imposed on them. The
author does an admirable job in
convincing the reader that
Alzheimer’s can be liberating in
many ways. For example, her
mother Patricia though dogmatic
and cold in her earlier years, now
because of the disease can only
deal with the present moment and
her warmth shines. It is the
remaining moments on the journey
with her mother that the
author emphasizes as being so
important to the emotional health
of both the victim of the disease
and family members. Because
the loved one simply “emotes” as
the disease progresses it is much
easier to have a “linking of the
spirits”. The author suggests to
the reader “listen to your inner
child’s voice” and “do things for
their person” in order to make the
final journey positive and life
rewarding.
The most helpful section of
the book deals with what the
author refers to as the journey or
a path to peace for both the loved
one and the loved one’s family.
Being able to think differently
about dementia is critical to the
emotional health of the family.
The need to put away negative life
experiences since the loved one
with Alzheimer’s can no longer
experience the past is a recurrent
theme. The author refers to this
as leaving your agenda at home
or doing away with what is
referred to as “stinking thinking”.
16
This change
in attitude and approach
made a tremendous difference in
the author’s ability to genuinely
enjoy and appreciate her mother
on her final journey to death.
The author includes lots of
understandable guidance and
practical tips throughout the book
on what families can do in order
to deal effectively with this disease.
For example, she suggests
keeping a journal to help deal with
negative childhood memories and
to document the loved one’s life
story in order to keep the focus
positive. There are exercises at
the end of each chapter which are
designed to cause the reader to
reflect on what behaviors and
actions truly make a difference for
both family and the loved one.
The final section of the book
impresses the reader that a successful
journey as companion to
the loved one with Alzheimer’s can
translate into being better able to
deal with many of life’s obstacles
and difficulties. “Mom Are You
There?” is required reading for all
Elder Law Attorneys and especially
families dealing with the tragedy
of Alzheimer’s disease. The story
of the author’s journey with her
mother concludes with a very
moving “Eulogy for a Mother”
which will leave many eyes moist.
John J. Husson, Esq. practices Elder Law
in Canon City, CO.

Vermont’s Long-Term Care Waiver
Gene Coffey, Esq.
Most of us have had our
attention focused over the last
several months on Congress’ effort
to radically change Medicaid’s
financial eligibility rules. In the
midst of this battle, however, the
U.S. Department of Health and
Human Services (HHS), acting on
a long-standing request, has
granted Vermont permission to
dramatically restructure its
Medicaid long-term care delivery
system through a Section 1115
demonstration waiver. 1 State
Medicaid directors are already racing
to put together similar proposals.
Vermont’s new program,
Choices for Care (CRC), may soon
be the model for states’ Medicaid
coverage of long-term care services.
The Plan
In 2003, Vermont concluded
that its state budget problems and
the aging of the Baby Boomer
population created an “imperative”
to implement “wholesale” changes
in its delivery of Medicaid longterm
care services. 2 It therefore
decided to make two fundamental
changes to the program: 1) make
home and community-based services,
previously available only on a
limited basis to Medicaid enrollees
through Section 1915 waivers, a
mandatory Medicaid benefit available
to any Medicaid enrollee in
need of long-term care; and 2)
provide limited community-based
services to individuals deemed “at
risk” of long-term care. Vermont
hopes that this expanded commitment
to non-institutional services,
in addition to helping Vermonters
avoid institutionalization, will
enhance beneficiary satisfaction
and reduce costs.
On the other hand, reducing
costs was the motivation for the
program, so there are some strictly
cost-reducing features. These
include an overall spending cap for
long-term care services, a waiting
list for certain eligible individuals,
and narrowed clinical eligibility
standards for coverage. HHS
granted approval of Vermont’s
demonstration waiver request on
June 13, 2005.
The program works as follows.
If the state determines that an
individual applying for immediate
coverage of long-term care services
is clinically eligible, the individual
is placed into either the “highest
need” or “high need” category.
Individuals meeting the highest
need clinical criteria are guaranteed,
or entitled, to coverage of
their choice of services+institutional
services
or home and
communitybased
services.
For high need
individuals, the
same choice
exists, but
Medicaid coverage
for services
is dependent
on the availability
of funding.
For all individuals
choosing
home and community-based
services, a case
manager develops the menu of
services for which the individual
will receive coverage based primarily
on the results of an
Independent Living Assessment.
Each high need individual for
whom funding is not currently
available is placed on a waiting list
and given a priority score based
on the individual’s level of need.
A case manager communicates
with the individual monthly to
monitor the individual’s health.
Financial eligibility rules, including
spousal impoverishment rules,
were not modified for the waiver,
save for a slight increase in the
resource limit for those choosing
the home and community-based
option.
There also exists a third category,
called the “moderate need”
category. Individuals who are not
in current need of long-term care
but with some need for assistance
with an activity of daily living may
receive coverage for case management,
adult day care and homemaker
services, “so that their conditions
can be stabilized or
improved, thus avoiding or delaying
more costly institutional care.” 3
A sum of $1.7 million will be set
aside annually for this category,
with a waiting list to develop as
funding is exhausted. The state
expects to enroll close to 400 individuals
in the moderate needs category
over the five-year course of
the waiver.
Pros, Cons
Certainly, the primary benefits
of this approach are significant
and dramatic. By creating an entitlement
to home and communitybased
services, Vermont has
(continued on page 20)
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-
Term Care Waiver
(continued from page 17)
struck an extraordinary blow
against the historical institutional
bias of the Medicaid program.
And by expanding services to a
segment of its potential longterm
care population, including
individuals who would not otherwise
qualify for Medicaid, 4 the
state is truly taking an
innovative, consumerfriendly
approach to
its long-term care
model.
But just as the
obvious, prominent
benefit of CRC is its
blow against the institutional
bias of
Medicaid, the obvious,
prominent drawback
of CRC is the end of
the entitlement to
long-term care services
for “high need”
individuals. Federal
law mandates that, at a minimum,
states provide their
Medicaid beneficiaries in need of
long-term care coverage for
nursing facility services, or home
and community-based services if
a slot is available in a state’s
HCBS program. 5 However, under
CRC, a Vermont Medicaid beneficiary
who demonstrates a need
for long-term care by meeting
the high need clinical eligibility
criteria may be forced onto a
waiting list if funding is not currently
available for services. 6
The state maintains that the vast
majority of Medicaid beneficiaries
demonstrating a need for longterm
care will meet the highest
need standard, which will entitle
them to coverage for services. 7
Even if that is so, the fact
remains that some high need
individuals qualifying for coverage
will not be entitled to receive
services until funds become
available.
Vermont’s
approach clearly
is a more enlightened
approach
and broadens
the dialog about
possible methods
of modifying
health care
approaches.
Is it the Right Model?
What is positive about
Vermont’s approach is that it actually
has any “pros” at all.
Heretofore, the prevailing idea in
both Congress and in states (e.g.,
Massachusetts, Minnesota, New
Hampshire) has been to address
the potential increase in demand
only by drastically reducing the
pool of eligibles through more
punitive asset
transfer rules. 8
Vermont is seeking
to reduce or
limit costs too, but
is also striving to
enhance consumer
satisfaction
and allow for
expanded enrollment.
Vermont’s
approach clearly is
a more enlightened
approach
and broadens the
dialog about possible
methods of
modifying health care approaches.
But, as outlined above, the plan
contains some serious drawbacks,
and it is not readily apparent
whether the “pro” will outweigh
the “con.” Obviously, much will
turn on the frequency with which
funds become exhausted, making
services “temporarily” unavailable,
for high need and moderate need
individuals. The good news is
that, with a five year lifetime
(2009), the results of the waiver
will be known before the Baby
Boomers reach age 65.
In the meantime, states’
efforts to redesign their long-term
care programs will continue, which
makes it imperative for advocates
to capitalize on any opportunity to
play a role in the development
process. Both Kentucky and
Florida have submitted demonstration
waiver proposals to HHS within
the last few months to redesign
their long-term care programs
Other states will certainly follow.
There is little doubt that
financial concerns will be the
driving force behind these state
proposals. However, if states
seek only to cut costs and do not
attempt, as Vermont has, to
enhance consumer satisfaction
and expand choice, their programs
will fail. Pure cost cutting
will result either in the denial of
care to those in need or the
damage of care to those receiving
it, which in turn is likely to
increase state costs instead of
decreasing them. Additionally,
forcing family members to fill a
void created by a purely budgetcutting
measure may produce a
consumer backlash. As a result,
nothing will be gained by either
the state or its Medicaid beneficiaries.
Therefore, to preserve the
solvency of state budgets in the
face of increased demand for
expensive long-term care coverage,
states will have to place on
equal footing with their effort to
reduce costs a directive to
ensure that quality care is provided
within a dynamic range of
services.
Gene Coffey, Esq., is a staff attorney
with the National Senior Citizens Law
Center in Washington D.C.
Endnotes
1 “Section 1115” is the common
designation for waivers granted
under 42 U.S.C. § 1315, which
is Section 1115 of the Social
Security Act. This statute provides
the agency the authority
to waive a state’s compliance
with certain provisions of the
Medicaid Act if the state wants
to implement a demonstration
project that, in the judgment of
(HHS), is “likely to assist in
promoting the objectives” of
the Act. Section 1115 waivers
are generally more broad than
their counterparts, Section
1915 waivers (42 U.S.C.
§1396n). Section 1915 waivers
are narrowly tailored to allow
states to offer home and com-
(continued on page 21)
20

Vermont’s Long-
Term Care Waiver
(continued from page 20)
munity-based services so that
some of those who are eligible
for nursing facility coverage
may avoid institutionalization.
2 The Vermont Long-Term Care
Plan: A Demonstration Waiver
Proposal to the Centers for
Medicare and Medicaid
Services, October 1, 2003
(pages 2-4).
3 The Vermont Long-Term Care
Plan: A Demonstration Waiver
Proposal to the Centers for
Medicare and Medicaid
Services, October 1, 2003
(page 4).
4 Like the highest need and high
need categories, the moderate
need category allows individuals
with income up to 300% of
the federal poverty level to
qualify for coverage. But while
federal law allows a state to
provide coverage to individuals
at that level of income if they
need long-term care, 42 U.S.C.
§1396a(a)(10)(A)(ii)(V) and
(VI), no authority exists, absent
the waiver, for having Medicaid
provide services to individuals
at that income who are merely
at risk of long-term care.
5 42 U.S.C. §1396a(a)(10)
6 Because the state asked for a
waiver of Medicaid’s reasonable
promptness requirement, 42
U.S.C. §1396a(a)(8), the state
may place a Medicaid beneficiary
on a waiting list.
7 Standard for high need is the
same as it was before, so,
essentially, the state is requiring
a higher level of need to
prove entitlement to coverage
for services
8 The state efforts have come in
the form of Section 1115
waivers, none of which have
been approved by HHS. With
regard to the impact of one of
Congress’ original proposals to
change the transfer rules, the
Congressional Budget Office
(CBO) estimated that 120,000
individuals would have their
Medicaid eligibility at least
“delayed” as a result of the
House of Representatives’ proposal.
See Additional
Information on CBO’s Estimate
for the Medicaid Provisions in
H.R. 4241, the Deficit
Reduction Act of 2005,
November 9, 2005.
Discussions of Fees
By Hugh K. Webster, Esq.
NAELA Legal Counsel
How many
compete?
What is the
extent of that
competition?
Interesting
questions
perhaps...
I would like to provide
some further clarification
on the topic of discussions
of fees at NAELA
events and on NAELA
email discussion lists.
It has been suggested
that NAELA members do
not compete with each
other, and therefore there are no
restrictions on how members
interact. From a factual standpoint,
of course, this
is not true. NAELA
members compete
with other NAELA
members every day.
How many compete?
What is the extent
of that competition?
Interesting questions
perhaps, but completely
academic
ones to federal regulators
who wish to
pursue an investigation.
I know because
I have been through these investigations.
And they can be extremely
burdensome in terms of expenditure
of time, energy, focus, and
of course money. This is true for
the association itself and for the
members that are targeted as
well.
Also bear in mind that the
Sherman Antitrust Act is not the
only trade regulation statute. For
example, the Federal Trade
Commission Act prohibits, among
other things, “unfair” trade practices.
“Unfair” is essentially whatever
the Federal Trade
Commission decides is unfair, and
the FTC does not have to show, or
even allege, actual harm to competition.
Further, associations of professionals
are a favorite target
of antitrust regulators.
Organizations comprised
of architects, physicians,
engineers, social workers,
dentists, etc. are some
examples of those that
have been investigated
and successfully prosecuted
(civilly) by the Department of
Justice or Federal Trade
Commission. What would the
reaction of the DOJ
or FTC be if they
heard of a national
association of attorneys
that sanctions
fee discussions during
sessions at its
meetings or on
email discussion
lists? Frankly, it
would be like waiving
red meat in
front a pack of
hungry dogs.
Finally, of
course it can be very useful for
competitors, or non-competitors
in the same industry or profession,
to have information regarding
what others are charging.
This improves efficiency, etc. But
the legal way to gather and disseminate
this information - the
way that has been sanctioned by
the courts and the regulatory
agencies - is by submission of
data to a third party, such as an
association, that then compiles
the data and reports it back in
composite form. The data can be
organized in several ways, including
geographically, but the rates
of individual practitioners are not
revealed.
I hope this information is
helpful.
21

The Case Against Court Certification
of Guardians; the Case for
Licensing and Regulation
By Margaret K. Dore, Esq.
A. Introduction
With increasing numbers of
Americans living longer, many are
finding themselves under guardianship.
The guardian appointed may
be a family member or friend, or a
“professional” guardian or guardianship
company.
In many, if not most instances,
the guardian is honest and hardworking
for his ward’s
interests. In other cases,
however, the guardian
abuses or exploits the
ward. The exact magnitude
of this problem is
not known, but the
names of web sites and
articles in the popular
press tell the story. See:
www.victimsofguardianship.net;
www.justiceforfloridaseniors.org;
and Barry Yeoman,
Stolen Lives: Thousands of Older
Americans Are Being Robbed of
Their Freedom, Dignity, and Life
Savings by a Legal System Created
for Their Protection. How Can this
Happen? 1
B. The Courts Respond
The issue of guardianship
abuse has also caught the attention
of the courts. In Washington State,
professional guardians are now
required to be certified by the
Washington State Supreme Court
as part of the “Professional
Guardian Certification Program.” 2
The program is administered by the
Administrative Office of the Courts
in conjunction with a “Certified
Professional Guardian Board.” 3
Arizona has a similar program. 4
Court certification of guardians is
also being promoted as an appropriate
alternative for other states. 5
The premise of this article is
that this well meaning effort to
increase guardianship accountability
is misplaced. Although courts have
traditionally been responsible for
guardianship oversight, they are illsuited
for this function. Guardians
should be licensed and regulated under
the executive branch, not the courts.
In many, if not most instances,
the guardian is honest and
hardworking for his ward’s interests.
In other cases, however, the guardian
abuses or exploits the ward.
C. Historical Practice: The
Court as “Supervisor” of the
Guardian
With court supervision of
guardianships, the court is deemed
the “superior guardian” with the
guardian an “arm of the court.” 39
Am Jur 2d, Guardian and Ward, §§
1 and 94, (1999). The court supervises
guardianship administration by
supervising the guardian, its
“agent.” Cf. In Re Gaddis’
Guardianship, 120 P.2d 849, 853
(Wash. 1942)(“The guardian is in
effect an agent of the court, and
through him the court seeks to protect
the ward’s interest”).
With this scenario, the guardian
petitions the court for approval of
its management of the ward’s
affairs. The court may be asked to
approve day to day issues such as
whether the ward’s car should be
repaired and the amount of the
ward’s allowance. 6 The matters at
22
issue can also include whether litigation
should be pursued, or
whether the ward should be
required to undergo an operation. 7
The rationale for court supervision
is that because the court
appoints the guardian, it follows
that the court is required to oversee
the guardianship’s administration.
Gaddis states:
When a guardian has been
appointed and has qualified, the
court acquires general jurisdiction
over the estate of the ward. The
guardian, in so far as matters pertaining
to his trust are concerned, is
directly responsible only to the
court of his appointment. The
guardian is in effect an
agent of the court, and
through him the court
seeks to protect the
ward’s interest. It
would seem to follow,
therefore, that the
court which appoints a
guardian is required by
statute to continue the
supervisory control of
the ward’s estate throughout its
administration. (Citations omitted;
Emphasis added). Gaddis, 120
P.2d at 853.
On close examination, this
rationale for court supervision of
guardianships is flawed. It does
not follow that because the court
appointed the guardian, the court
must oversee the guardianship’s
administration. A court sentences
people to prison. Courts do not
oversee prison administration. 8
D. A Contrast to Other
Activities
The “job” of a guardian is to
manage the affairs of persons who
have been placed under guardianship,
which is a severe loss of liberty.
Matter of Guardianship of
Hedin, 528 N.W.2d 567, 573-74
(Iowa 1995), states:
Although the determination of
incompetency is in no way a crimi-
(continued on page 23)

The Case Against Court
Certification of Guardians;
the Case for Independent
Third Party Oversight
(continued from page 22)
nal proceeding, the result in terms
of the defendant’s liberty interests
may be very similar. He may be
deprived of control over his residence,
his associations, his property,
his diet, and his ability to go
where he wishes. 9
Other persons who engage in
similar activity are not “supervised”
by a court. Again, the
example was given of a prison.
Guardianship companies also
function as financial institutions
similar to banks or trust companies.
10 Banks and trust companies
are not “supervised” by courts, but
regulated under the executive
branch. 11
E. Problems Inherent With
Court Supervision of
Guardians
The Washington State
Supreme Court’s oversight of professional
guardians is analogous to
its oversight of attorneys. In both
cases, the Court performs its
supervisory functions via an
administrative body that works in
conjunction with a board. 12
The difference is that the
members of the Supreme Court
are themselves attorneys. They
know what attorneys are supposed
to do and not do.
“Lawyering” is also part of the
Court’s business of adjudicating
disputes.
By contrast, the members of
the Supreme Court are not professional
guardians. The job of being
a guardian is different from the
Court’s business of adjudicating
disputes. This situation, in and of
itself, reduces the likelihood for the
success of guardian oversight by
the Supreme Court. There are,
however, more serious problems.
See below.
1. The prohibition against ex
parte contact “chills” a court’s
ability to provide effective
supervision
In general, successful supervision
of an activity requires a close
relationship between the supervisor
and the person supervised. A
good supervisor should also be
open to receiving information and
complaints from multiple sources.
This does not occur in the context
of court supervision of
guardians due to the prohibition
against ex parte contact. 13 The prohibition
prevents courts and
guardians from developing the necessary
close relationships. It also
prevents courts from learning about
a guardian’s wrongdoing. Persons
with information are generally prohibited
from contacting the court.
The prohibition against ex parte
contact acts to prevent courts from
providing effective guardianship
supervision.
2. The combination of supervisory
and adjudicatory roles distorts
the normal functioning of
courts; the parties’ rights are
violated
With the trial court in a supervisory
role over the guardian as its
“agent,” the trial court, in effect,
becomes a party to the case in
which it is adjudicating. This situation
compromises judicial impartiality
because the court is by definition
aligned with the guardian. Litigants
who oppose the guardian are
deprived of their right to an unbiased
tribunal and the “appearance
of fairness.” 14
With the court in a supervisory
role, the right to review is also
compromised. If a guardian does
not agree with a trial court’s order,
the guardian must seek approval to
appeal from the court that issued
the order. 15 The trial court has the
ability to prevent its own appeal.
In a case reviewed by this
author, the trial court also in effect
became a party to the ward’s
23
appeal. The ward in question
wanted termination of his guardianship.
The trial court denied termination
and also discharged his
attorney with instructions that she
was not to assist him to appeal.
When she nonetheless assisted
him, the trial court in its supervisory
capacity instructed the guardian to
challenge her authority in the
appellate court. The trial court
through its agent was in effect a
party to the ward’s appeal.
The combination of supervisory
and adjudicatory roles thus distorts
the normal functioning of courts.
The trial court is not a neutral decision-maker,
but a party participant.
This scenario is counter to the
Model Code of Judicial Conduct,
Canon 1:
An independent ... judiciary is
indispensable to justice in our society.
16
3. Treating the guardian as an
agent or arm of the court compromises
fact-finding
With the guardian deemed an
agent or arm of the court, trial
courts tend to treat guardians as
guardians ad litem, i.e., the
guardians provide reports and “recommendations”
as to how the court
should rule. 17 In the context of
guardians ad litem, this practice has
been criticized, but is allowed
because guardians ad litem are
thought to be “neutral advisors” to
the court. 18
A guardianship company that
makes its living by collecting fees
through court approval, is not, however,
a neutral party. This is especially
true when the guardian has
been accused of wrongdoing. This
author has nonetheless observed
the court to ask the guardian for a
recommendation as to what should
be done, the pre-judged implication
being that the guardian has done
nothing wrong. Fact finding is
thereby compromised.
(continued on page 24)

The Case Against Court
Certification of Guardians;
the Case for Independent
Third Party Oversight
(continued from page 23)
4. Court supervision requires
complaining parties to take on
the risk of litigation
Another problem with court
supervision of guardians is that the
ward or other complaining party is
required to take on the risk of litigation
just to make the complaint.
This situation may require the complaining
party to hire an attorney.
He or she may possibly also be
required to pay the guardian’s fees
if the complaint is deemed to lack
merit. With the inherent cost of litigation,
courts are often reluctant to
perform an in-depth inquiry.
These factors create “chilling
effects” so that complaints are not
made and if made, are not fully
pursued. These factors do not,
however, exist in the usual regulatory
scheme. Good faith complainants
generally have immunity
from liability. 19 Any investigation is
generally conducted outside of litigation.
20
F. Certification of
Professional Guardians by
the Supreme Court
With certification of professional
guardians, the flawed model of
court supervision of guardianship
administration is locked in place.
An additional problem is that
through certification, the Supreme
Court’s imprimatur is placed on private
individuals and companies
whose activities are different from
those of the Court. At present, the
qualifications for these persons are
also, minimal. 21 Yet they are certified
by the Supreme Court similar
to the admission of attorneys to the
State Bar. There is the potential for
the public to be misled as to the
actual qualifications of the persons
certified. 22
Another problem is the potential
disqualification of the Supreme
Court. If a litigant brings a grievance
against a guardian through
the Professional Guardian
Certification Program, it would
seem that the Court could later be
disqualified to hear the same matter
on review.
G. How Licensing and
Regulation Might Work
In some states, there are current
proposals for licensing and regulation
of guardians under the executive
branch. In California, for
example, there is a pending bill to
license conservators under the
Department of Consumer Affairs. 23
In Idaho, there is a pilot program in
which conservator reports will be
reviewed by the Idaho Department
of Financial Institutions. 24
In Washington State, guardians
could be regulated under the
Department of Financial Institutions.
Indeed, the authorizing statute
appears to already provide jurisdiction.
25
The advantage to using existing
agencies is that they are already set
up. On the other hand, guardianships
involve unique issues, such
that a stand alone agency under the
executive branch could be desirable.
Funding could possibly be
obtained from licensing fees or from
the wards’ estates, so that the
agency would be revenue neutral. 26
H. Conclusion
Court supervision of guardianship
administration puts courts
and guardians in a principal-agent
relationship, i.e., on the “same
side” vis a vis the other parties.
This structure is not only ineffective
for guardian oversight, it disables
the normal functioning of
the courts.
The reported abuse and
exploitation of wards by their
guardians will continue unless
there is effective regulation and
oversight of those guardians.
Court certification of guardians is,
24
however, not the answer.
It is time to consider a different
paradigm. Guardians should be
licensed and regulated under the
executive branch, not the Supreme
Court. Other methods of third
party oversight should be investigated
and explored.
Endnotes
1 AARP MAGAZINE,
January/February 2004
(http://www.aarpmagazine.org/
people/Articles/a2003-11-19-
stolenlives.html). See also:
Wendy Wendland-Bowyer Who’s
Watching the Guardians?,
DETROIT FREE PRESS, May 24,
2000; Carol D. Leonnig et al,
Under Court, Vulnerable Became
Victims, WASHINGTON POST,
June 15, 2003; Paul Rubin,
Checks and Imbalances (How
the State’s Leading Private
Fiduciary Helped Herself to the
Funds of the Helpless), PHOENIX
NEW TIMES, June 15, 2000;
Denise M. Topolnicki, The Gulag
of Guardianship, MONEY MAGA-
ZINE, March 1989; DIANE G.
ARMSTRONG, THE NIGHTMARE
RETIREMENT: HOW TO SAVE
YOURSELF FROM YOUR HEIRS
AND PROTECTORS (Prometheus
Books, 2000); and www.retirementnightmare.com.
2 In Washington State, the Supreme
Court is the State’s highest court.
The Washington Supreme Court’s
“Professional Guardian Certification
Program” is described at
http://www.courts.wa.gov/programs_orgs/pos_guardian/.
3 See e.g.,
http://www.courts.wa.gov/pro
grams_orgs/pos_guardian/?fa=pos
_guardian.boardlst.
4 The Arizona Supreme Court
Fiduciary Certification Program is
described on the Arizona Supreme
Court’s website at
www.supreme.state.az.us/fiduc/gen
info.htm.
5 For example, on November 11,
2004, the National College of
Probate Judges’ Conference in
Colorado Springs featured a seminar
titled: Guardianship
Certification: What, Why and How.
6 See e.g., In Re Guardianship of
Loren Stamm, King County Cause
No. 01-4-05323-7 SEA, Orders
entered on September 16, 2002
and December 11, 2002.
(continued on page 25)

The Case Against Court
Certification of Guardians;
the Case for Independent
Third Party Oversight
(continued from page 24)
7 Cf. In re Guardianship of Lasky,
776 P.2d 695, 697 (Wash. App.
1989); and Matter of Guardianship
of Ingram, 689 P.2d 1363 (Wash.
1984).
8 In Washington State, the
Department of Corrections has
that function under the executive
branch. See: http://www.doc.
wa.gov/general/aboutus.htm.
9 See also: National Guardianship
Association, Standards of Practice
(www.guardianship.org/associations/2543/files/STANDARD.pdf);
Washington State Certified
Professional Guardian Program
Standards of Practice,
http://www.courts.wa.gov/programs_orgs/pos_guardian/?fa=pos
_guardian.standard.
10 Cf. website for Guardianship
Services of Seattle, a Washington
State Certified Professional
Guardian (www.trustguard.
org/services/gss_services.htm)
(describing its fiduciary and wealth
management services); and
Washington Department of
Financial Institutions website
(www.dfi.wa.gov/banks/trusts.htm
) (“Trust companies and departments
provide fiduciary services
and wealth management”).
11 See, e.g., Washington State
Department of Financial
Institutions (http://www.dfi.wa.
gov/about.htm and
http://www.dfi.wa.gov/banks/
list.htm); Idaho Department of
Finance (http://finance.
idaho.gov/); and Federal Deposit
Insurance Corporation
(www.fdic.gov).
12. With professional guardians, the
administrative body is the
Administrative Office of the
Courts, the board is the Certified
Professional Guardian Board. With
attorneys, the administrative body
is the Washington State Bar
Association, the board is the Bar
Association’s Board of Governors.
See e.g., the website for the
Washington State Bar Association,
http://www. wsba.org/info/a
bout/default.htm (“The WSBA is
an administrative arm of the
Washington State Supreme
Court”); http://www.wsba.org
/info/bog/default.htm (“The Board
of Governors is the WSBA's governing
body, and performs or
supervises all WSBA executive
functions”); and
http://www.wsba.org/info/services-programs.htm.
13. Cf. Model Rule of Professional
Conduct 3.5(b) (www.abanet.
org/cpr/mrpc/rule_3_5.html)
14 Cf. In re Custody of R, 947 P.2d
745, 754 (Wash. App. 1997)(the
“judiciary should avoid even mere
suspicion of irregularity, or
appearance of bias or prejudice”).
15 Cf. Lasky, supra (affirming sanction
of guardian who went forward
with litigation without first
obtaining court approval, and
ordering the imposition of additional
sanctions).
16 Model Code of Judicial Conduct
(www.abanet.org/cpr/mcjc/
canon_1.htlm)
17 See e.g., Guardianship of Loren
Stamm, King County Cause No.
01-4-05323-7 SEA, Order 9-25-
03, p.7, f.
18 Cf. Raven Lidman and Betsy
Hollingsworth, The Guardian ad
Litem in Child Custody Cases:
The Contours of Our Judicial
System Stretched Beyond
Recognition, 6 GEO. MASON L.
REV., 255 (1998); and In Re
Guardianship of Stamm v.
Crowley, 91 P.3d 126, 129 (Wash.
2004)(describing the role of a
guardian ad litem as a “neutral
advisor”).
19. See e.g., Wash. Rev. Code
4.24.510, “Communication to
government agency or self-regulatory
organization--Immunity
from civil liability;” and Wash.
Rev. Code 70.128.200 “Toll-free
number for complaints--
Discrimination or retaliation prohibited.”
20. See e.g. Wash. Rev. Code
70.128.090 “Inspections--
Generally” (for adult family
homes).
21. Washington State’s GR 23(d)(1)
requires a high school diploma or
GED and five years work experience
“in a discipline pertinent to
the provision of guardianship
services.” There is no qualifying
examination. See: Application
Regulations for Certified
Professional Guardians, §§114-
116 (reserving rules regarding
examinations), available at
http://www.courts.wa.gov/programs_orgs/pos_guardian/?fa=pos
_guardian.applregs. See also
BARRY YEOMAN, supra (“I could be
a shoe salesman at a five-and-dime
store yesterday and a professional
conservator or guardian today”).
25
22. Attorneys admitted to the state
bar are also merely “admitted” or
“licensed” to practice. Certified
Professional Guardians are by
contrast “certified.”
23. See: Robin Fields, Elder
Care Reforms Okd, LA TIMES,
January 11, 2006. (http://www
.latimes.com/news/local/la?me?co
nservator11jan11,0,7864701,print.
story?coll=la?headlines?california);
and Jack Leonard, Task
Force Urges Reform of State's
Guardian System: Meeting for
the first time since its creation last
month, the panel backs key parts
of a bill under consideration by
the Senate, LA TIMES, February
4, 2006 (http://www.latimes.
com/news/local/la?me?conservator4feb04,0,6723944.story?coll=la
?headlines?california).
24 See: The Retirement Nightmare:
Guardianship in America, a presentation
for the ABA Section of
Family Law, Elder Law
Committee, Fall 2005, course
materials presented by Robert L.
Aldridge, Esq. (raldridge@hotmail.com).
25. The Department of Financial
Institutions regulates trust companies,
which are defined as “any
corporation organized under the
laws of this state engaged in trust
business.” See Wash. Rev. Code
30.04.010(5). The term “trust
business” includes acting as a
guardian. See Wash. Rev. Code
30.04.010(4) as cross referenced
to Wash. Rev. Code 30.08.150(9).
Many professional guardians are
corporations who act as guardians
and would therefore appear to be
“trust companies” for the purpose
of DFI jurisdiction.
26. Agencies such as the Department
of Financial Institutions are revenue
neutral. See: http://www.
dfi.wa.gov/about/default.htm
(“The department is self-supporting,
in that none of its operating
revenues come from the state's
general tax funds. Its operating
revenues are paid by the organizations
and individuals it regulates.”).
Margaret Dore is an attorney in
Seattle, Washington and a
graduate of the University of
Washington School of Law. See
www.margaretdore.com.
She would especially like to thank
Nancy Cummings of Long Beach
California for her help with
this article.

NAELA Member Discount
Partner Offers Benefits to
NAELA Members!!
NAELA Member Discount Partners
America’s Life Stories
Contact: Dennis Stack
2733 N. Power Rd., Ste. 102
Mesa, AZ 85215
602-620-9844
info@americaslifestories
www.americaslifestories.com
Product information: Capturing
Life’s Stories is a simple, inexpensive,
easy to use kit that guides anyone
through the productive recording of
their life experiences.
Discount to Members: 10% discount,
starting at $17.95
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Contact: Madeleine McLaughlin
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info@docubank.com
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Product information: Emergency storage
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and other advance medical directives.
Discount to Members: 33% discount
on fees (1yr. = $20, 5yr. = $60)
InterActive Legal System
Contact: Patricia McLelland
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(888) 315-0872
pam@ilsdocs.com
www.WealthTransferPlanning.com
Product information: Wealth Transfer
Planning, complete drafting and expert
system for lifetime estate planning, by
Jonathan G. Blattmachr & Michael L.
Graham. ILS offers outstanding customer
service.
Discount to Members: 10% discount
on all products and services. Please mention
code WTP-NAE01 when ordering.
Konica Minolta
Business Solutions, Inc.
Contact: Gene Elwell
6010 Cornerstone Ct.
San Diego, CA 92121
858-348-2207
800-934-5180, ext. 0, ask for Gene
elwellg@kmbs.konicaminolta.us
www.kmbs.konicaminolta.us
Product information: Digital
Copiers/Printers, Color Copiers, Color
Printers and Fax Machines. The contact
specializes in estate planning equipment.
Discount to Members: 40% off on
equipment. Will extend Fortune 500 pricing
on service agreements.
Legal Resources, LLC
Contact: Meg Rudansky
36 Woodvale St.
Sag Harbor, NY 11963
631-725-4778
mrudansky@legalresoucesllc.com
www.legalresourcesllc.com
Product Information: Senior
Resource Guide Marketing System is an
innovative marketing program that
guides in creating a useful 22 page
informative resource guide for those
with long-term illness while building
substantial referral sources and powerful
distribution network for the guide.
Discount to Members: Fifteen (15%)
to NAELA members.
Premier Software
Contact: Tom Caffrey
1230 Brace Road
Cherry Hill, NJ 08034
856-429-3010
tcaffrey@premiersoftware.com
www.premiersoftware.com
Product information: Installation and
training of Time Matters and Elder Law
Feature Package software for Elder Law
practices.
Discount to Members: 10% off on
products* and services. (The 10% discount
applies to the Elder Law Feature
Package. The Time Matters product discount
is still being negotiated.)
You can trust
these companies to
be responsive
and knowledgeable
about NAELA
members’ needs!
The National Academy of Elder Law Attorneys’ (NAELA) Member Discount Program
provides discounts to NAELA members on a variety of products and services.
The program was formed to develop partnerships with companies willing to participate in
a group-purchasing program that extends discounts to NAELA members.
You can look forward to receiving information directly from these vendors by contacting
them for further information. NAELA will announce new partners as they are approved; meanwhile,
we encourage you to take full advantage of this member service and reap the benefits
of your NAELA membership!
NAELA does not imply warranties as to the products or services offered by Member
Discount Partners. It is recommended that NAELA members should assure themselves as to
quality, integrity, suitability, and other relevant attributes.
26

Chapter
President’s
Listing
Arizona Chapter
Catherine Leas, CELA
Sun City, AZ
(623) 875-9501
Colorado Chapter
Catherine Anne Seal, CELA
Colorado Springs, CO
(719) 448-0734
Florida Chapter
Alice Reiter Feld, CELA
Tamarac, FL
(954) 726-6602
Georgia Chapter
David G. Carter
Atlanta, GA
(378) 528-8480
Illinois Chapter
Susan Lorraine Kennedy
Chicago, IL
(312) 460-8899
Kansas Chapter
Molly M. Wood
Lawrence, KS
(785) 843-0811
Maryland/DC Chapter
Morris Klein, CELA
Bethesda, MD
(301) 652-4462
Massachusetts Chapter
Ian S. Oppenheim, CELA
Halifax, MA
(781) 294-8000
Missouri Chapter
Reginald H. Turnbull, CELA
Jefferson City, MO
(573) 634-2910
New Jersey Chapter
Eugene Rosner, CELA
Clark, NJ
(732) 382-6070
New York Chapter
Bernard A. Krooks, CELA
New York, NY
(212) 490-2020
Ohio
Rachel Kabb Effron, Esq.
Beachwood, OH
(216) 531-5222
California Chapter - Northern
Trudi S. Riley-Quinn, CELA
Roseville, CA
(916) 782-8212
North Carolina Chapter
J. Gregory Wallace, Esq.
Raleigh, NC
(919) 876-1400
Wendy A. Craig, Esq.
Black Mountain, NC
(828) 669-0799
California Chapter - Southern
Brian Sheppard, CELA
Encino, CA
(818) 342-5799
South Carolina Chapter
Mitchell C. Payne, Esq.
Rock Hill, SC
(803) 329-8656
Texas Chapter
Michael B. Cohen, Esq.
Dallas, TX
(214) 720-0102
Virginia Chapter
Joseph T. Buxton III CELA
Yorktown, VA
(757) 877-2248
Washington Chapter
Julianne Kocer, Esq.
Seattle, WA
(206) 525-6919
I was looking for a paralegal
to help me with my growing
Medicaid practice a few years ago
when a local DSS worker gave me
a tip about a really sharp woman
who had just left her job. She
told me that Denise had always
submitted excellent work in her
preparation and processing of
Medicaid applications for area
nursing homes. But she also told
me that Denise had gotten burnt
out and only wanted to work part
time.
I called Denise and asked if
she’d like to come in and explore
the possibility of working for our
law firm. She was reluctant inasmuch
as (1) she was a social
worker rather than a paralegal and
(2) she had just recently left the
workforce and was not really missing
it all that much. We sat down
a couple of weeks later and it was
unmistakable that she’d be a great
asset to my firm. She was not
averse to working if the conditions
suited her, but it was very obvious
that she had really been overburdened
at her last job. And she
clearly did not want to work full
time as she wanted to spend time
at home with her two daughters.
We talked about what we were
seeking from each other and came
up with a fairly unorthodox
answer. Luckily, it is an arrangement
that has been successful,
with some tweaking, for more
than six years now:
She usually works from 20 - 30
hours per week, during whatever
hours she chooses. She comes in
to the office one morning each
week. We use this time to review
every file together. If she needs to
meet with clients, she schedules
the meetings for Tuesday, which is
the day she is physically here.
Using Off-Site Staff
James M. Higgins, Jr., Esq.
We have equipped her home
office with a computer, telephone
lines (phone and fax), answering
machine, DSL Internet access, fax
machine, copy machine, printer
and scanner.
She is linked to our network
server and has access to all of our
clients’ files (folders) on our computer
system. This access
includes all of our files, forms and
other programs and data. We
communicate, often, each day by
email, telephone and/or fax.
The hard files generally stay
here in the office, unless she is
assembling a Medicaid application
for filing with DSS.
Clients are given her home
office telephone and fax numbers;
she generally has more contact
with my clients than I do.
After a year or so, my practice
grew and it was apparent that
Denise was becoming overworked.
We decided to teach one of the
paralegals in the office, Rachael,
about Medicaid work. Rachael
also worked on most of my estate
planning files along with handling
real estate closings and various
other areas of the law for other
attorneys in the office. By using
her a few hours a week on our
Medicaid files, we were able to
keep up with the daily work and
were progressing really well as a
team. Then Rachael announced
that she was pregnant. When she
told me that she and her husband
were expecting, she did so with
those big, puppy dog eyes: she
didn’t want to return to work full
time after the baby was born. So
we decided to go back to the well
and it worked out once again:
Rachael works from 15 - 20
hours per week, again during
(continued on page 28)
27

Using Off-Site Staff
(continued from page 27)
whatever hours she picks, which is
usually based on her son’s nap
schedule. She comes in to the
office one day each week, Tuesday,
to review our files, actually more so
with Denise than with me. She has
the same home office setting, as
does Denise. The three of us communicate
often by email, telephone
and/or fax.
I either email or fax her instructions
or notes on my estate planning
files. She drafts documents,
puts them in clients’ computer folders
and then emails me that the
drafts are ready for my review.
Once I have reviewed and/or edited
them, she finalizes them and mails
the draft documents to the clients
for their review.
The benefits have been tremendous.
I have an exceptional staff
that works hard when it is most
convenient for them. (It is not
uncommon for me to be in at 6:00
a.m. on a weekday or on a Sunday
evening and have an email pop up
from one of them.) Their attitudes
are among the best of our entire
office staff. With technology having
progressed to where it is, the
fact that they are not physically
present is not as inconvenient as
one would think. And I practice in
Connecticut; Denise and Rachael’s
work is not interrupted by our winter
snow storms.
There are some glitches every
now and then. We have chosen to
let them work hours that best suit
them instead of on a fixed schedule.
There are times when it is
frustrating not to be able to get in
touch with them immediately, as I
would be able to if they were a
couple of offices down the hall.
There are times when clients call
here and then also call them, so
we sometimes duplicate efforts.
But we have learned that sending
frequent emails to each other and
keeping notes of what we’ve done
in each client’s file have really
a d v e r t i s e m e n t
helped. We communicate well,
which is the real key to our success.
All in all, the main detriment
to this system has nothing to do
with either Denise or Rachael; it is
that most of our other office staff
would prefer to work in the same
manner.
By being accommodating, it’s
produced a win-win-win situation.
I have managed to keep two firstrate
members on my team. They
are happy and approach their work
with great attitudes. Our clients
get great service from all three of
us. If you come across someone
who works well independently,
needs little supervision and can
communicate well, a set up similar
to this may help you retain or
attract that outstanding employee
who does not want to work in the
office or necessarily on a full time
basis.
James M. Higgins, Jr., Esq., practices
Elder Law in Manchester, CT.
28

Introducing NAELA’s Newest Member Discount Partner
Marketing with Legal Resources, LLC
Meg Rudansky, Esq.
Marketing a law practice is
essential to enhance its natural
growth. Firm brochures; newspaper
and telephone directory ads;
radio spots; etc. all get the word
out to the public. While self-promotion
can be effective, marketing
programs that give the target audience
something of value while
increasing name recognition have
more impact.
The Senior
Resource Guide System
(The System), created
by a successful Elder
Law attorney, is such a
marketing program.
The System is a unique
program: a “no-selling”
cost-effective way to
generate a steady
stream of referrals from
fellow professionals in
the geriatric, financial,
legal, and medical fields
while producing a valuable and
widely distributed public resource
for the attorney’s local community.
The concept is to create a local
resource guide for those with longterm
illness and their caregivers: a
guide to help those in crisis find the
resources and information they
need to manage their illness and
their lives. In addition to listing
services, professionals, and programs
in the community to support
the ill person, the Guide also contains
valuable information on specific
actions one can take after a
diagnosis. The Guide recommends
getting a “legal check-up;” obtaining
advance directives at a minimum;
building a support system of
professionals; and reviewing living
options and sources of payment
when living alone is no longer
viable. The Guide also contains a
caregiver’s support page. Both
valuable content and attractive
graphics enable the Guide to capture
attention and to distinguish it
from the usual resources available
in the community.
The value to the attorney in
The Senior Resource Guide
System is multi-fold. The attorney
creates a valuable resource guide
for his or her local community
while developing a reputation as a
One of the most powerful aspects
of the system is the willingness of the
professionals and service providers listed
in the Guide to distribute it to their
patients, clients and community. After
all, by giving out the Guide, they add
value to the service they provide...
29
service oriented professional. The
attorney also learns in detail about
the services and programs in the
local community enabling the
attorney to better serve clients.
Moreover, the attorney now has an
attractive marketing piece to be
used when first meeting clients, as
a give-away at seminars and senior
fairs, as a means of building a
mailing list through advertisements
(“call for your free book”),
and a website, to name only a
few. The greatest value from a
business perspective, however, is
the opportunity that the system
affords the attorney to make, keep
and grow business relationships
with professional in the geriatric,
medical ad financial fields.
The process of “building the
Guide” begins with meetings with
professionals and service providers
in companion fields. If done properly,
these meetings will accomplish
four purposes: 1) enable
the attorney to learn about services
and programs in their community
to support their senior
clients; 2) give the attorney information
for the Guide; 3) provide
multiple opportunities to begin
reciprocal relationships with other
professionals and service
providers; and 4) build a distribution
network for the Guide.
One of the most powerful
aspects of the system is the willingness
of the professionals and
service providers listed in the
Guide to distribute it
to their patients,
clients and community.
After all, by giving
out the Guide, they
add value to the service
they provide - at
no additional cost to
them. Before long,
thousands of Guides
are placed in the
hands of those people
who could benefit
from the attorney’s
legal counsel with little or no distribution
cost.
The Senior Resource Guide
System benefits everyone: the
senior confronting the implications
of a long term illness; the
professionals and service
providers who are given a free
listing in the Guide and as many
free copies of the Guide as they
care to distribute; and, of course,
the attorney who is rewarded
through a significant increase in
business and by creating good
will in the senior community and
among those professionals and
service providers who support
them.
The System includes the 22
page Guide with professionally
designed graphics as a template
entitled, “Life-Care Planning for
the Aging and those with Long-
(continued on page 30)

Marketing with Legal
Resources, LLC
(continued from page 29)
Term Illness”. Using the accompanying
CD, (the file is based in
Adobe In Design CS 3.0.1 - the
industry standard – found at
Kinkos and used by most graphic
designers and printers), the
attorney can customize their
Guide with their local information
saving these changes on the CD.
Simply take the customized CD
to a local printer.
The Senior Resource Guide
System also includes a comprehensive
“How To” booklet that
teaches attorneys how to use
their Guide and the marketing
system for maximum referrals,
giving step-by-step instructions,
including printing specifications.
There is also a certificate good
for a one hour consultation with
creator of the system, Meg
Rudansky, Elder Law Attorney in
Sag Harbor, New York for advice
on how to maximize the effectiveness
of the system. She will
share how the creation of her
own local Guide, and the distribution
of over 5,000 copies of
the Guide by others in her community
accelerated the growth of
her practice like no other marketing
effort before.
Using the system as opposed
to starting from scratch will save
the attorney thousand of dollars
in graphic design fees and
numerous hours writing, organizing
and figuring out the path to
take.
Information on the Senior
Resource Guide System may be
obtained by calling Meg
Rudansky at 631-725-4778 or on
the web at ww.legalresourcesllc.com.
See the website for
sample pages of the Guide,
including the cover graphics.
www.legalresourcesllc.com
mrudansky@legalresourcesllc.com
30
Order Today!
Selma’s Cat and Other
Things That Matter:
A Lawyer’s Intimate
Conversations With His
Elder Clients.
By Clifton B. Kruse, Jr., Esq.
This book is a MUST HAVE for
anyone dealing with aging issues.
Through the stories of his clients,
Mr. Kruse explains the legal,
emotional and ethical ramifications
of the decisions that we all need
to make at some point in our lives.
—Wall Street Journal, January 23, 2006
Perhaps more than any other legal specialty, the field of Elder Law
calls on its practitioners not only to be good attorneys but also to
be sensitive and compassionate people as well. For many in the
field, Colorado Springs attorney Clifton B. Kruse, Jr., Esq., has set
the standard for all that an Elder Law attorney can and should be.
The truth of this will become clear to readers of this collection of
poignant essays. —Harry Margolis
For information on how to order Selma’s Cat, contact
Terri Anthony at info@naela.com, 520-881-4005, ext. 107.
Have you recently
been featured in a
national publication?
If so- we would like to feature you in the “Members in the
News” column in the NAELA News. Below are guidelines for
submitting items for the “Members in the News” column:
Do Submit:
Items of national importance, such as:
being published in a national publication;
being quoted in a national publication;
being interviewed on a national television or radio show; or
an article you wrote which was published.
Elections to national boards or local bar sections.
Do Not Submit:
Speeches in your local area.
Articles from a local newspaper.
Items on new offices opening.
New staff additions.
To submit items for Members
in the News, please contact Ann
Krauss, Public Relations Director
at akrauss@naela.com.

NAELA Members in the News
NAELA was mentioned as a
resource and/or Elder Law
was prominently noted in:
"Don't Be a Victim of Financial
Abuse," which was published in the
February 1, 2006 issue of VFW,
Veterans of Foreign Wars Magazine.
"Americans Juggle Caregiving,
Parenting," which was published in
the March 7, 2006 issue of Florida
Today.
"Awards and Achievers," which
was published in the February 24,
2006 issue of News-Leader
(Springfield, MO).
"Don't Neglect End-of-Life
Plans," which was published in the
February 23, 2006 issue of the
Charlotte Observer.
"Planning for Nursing Home
Care," which was published in the
February 21, 2006 issue of The
Washington Post.
"Nursing Home Finance Rules,"
which was published in the
February 17, 2006 issue of the Fort
Wayne Journal Gazette.
"The Wrong Kind of Annuity
Could Hurt If You Need Health
Care," which was published in the
February 3, 2006 issue of the
Pittsburgh Post-Gazette.
"Eligibility for Medicaid
Expected to Tighten Drastically,"
which was published in the January
30, 2006 issue of the Lancaster
New Era/Intelligencer
Journal/Sunday News.
"Medicaid Long-Term Care
Eligibility Often Requires Spend-
Down," which was published in the
January 23, 2006 issue of The
Oklahoman.
NAELA Members
in the News:
Lawrence E. Davidow,
CELA, was quoted in "Living Will Is
Only a Start," which was published
in the March 19, 2006 issue of
The Wall Street Journal.
Elizabeth Forgotson
Goldberg, CELA, was mentioned
in "Planning for Nursing Home
Care," which was published in the
February 21, 2006 issue of The
Washington Post.
Bernard A. Krooks, CELA,
Jennifer B. Cona, Esq., and
Vincent J. Russo, CELA, were
quoted in "Lawyers Predict
'Devastating' Impact of New Law
Aimed at Reducing Medicaid
Fraud," which was published in
the March 7, 2006 issue of
the New York Law Journal.
Clifton B. Kruse Jr.,
Esq., and Harry Margolis,
Esq., were mentioned in
"Recommended Reading," an
article that highlighted Harry
Margolis' list of useful
resources addressing inheritance
issues. "Selma's Cat
and Other Things That
Matter," was listed among
the recommended resources.
The article was published in
the January 23, 2006 issue
of The Wall Street Journal.
Kate Mewhinney, CELA,
wrote an article titled "Gifts with
Powers of Attorney - Are We
Giving the Public What it Wants?"
which was published in the Winter
2005 issue of the North Carolina
State Bar Journal.
Dagmar M. Pollex, Esq.,
was mentioned in "Medicaid Help,"
which was published in the
February 14, 2006 issue of The
Patriot Ledger. (Quincy, MA)
Charles F. Robinson, Esq.,
was quoted in "Medicaid Will Look
at Past Assets," which was published
in the March 12, 2006 issue
L. Mark Russell, Esq.,
wrote a book titled "Planning for
the Future," which received a
favorable review in the February
2006 issue of Estate Planning
Magazine.
Vincent J. Russo, CELA,
was quoted in "Encore:
Medicaid's New Rules," which
was published in the February
19, 2006 issue of The Wall
Street Journal Sunday.
Jerome I. Solkoff, CELA,
and Peter J. Strauss, Esq., were
quoted in "The Wrong Kind of
Annuity Could Hurt If You Need
Health Care," which was published
in the February 3, 2006 issue of
the Pittsburgh Post-Gazette.
Reginald H. Turnbull,
CELA, was quoted in "Who
Speaks for An Incapacitated
Patient," which was published in
the January 29, 2006 issue of The
Kansas City Star.
Shirley B. Whitenack, Esq.,
was quoted in "Guardianship Feud
is Ruled a Jersey Case," which
was published in the March 4,
2006 issue of the Newark Star
Ledger.
Shirley B. Whitenack, Esq.,
was quoted in "N.J. Court May
Resolve $25M Family Feud," which
was published in the March 4, 2006
issue of the Home News Tribune.
of the St. Petersburg Times.
(continued on page 32)
members in the news
31

NAELA Members in the News
(continued from page 31)
Shirley B. Whitenack, Esq.,
was quoted in "N.J. Judge May
Write a Final Chapter in Texas
Legal Saga," which was published
in the March 4, 2006 issue of the
San Antonio News Press.
Jim Zeigler, Esq., was quoted
in "Alabama Lawyer Takes on
Deficit Reduction Act," which was
published in the March 21, 2006
issue of AuntMinnie.com.
Jim Zeigler, Esq., was quoted
in "The Broken Branch: An
Unusual Lawsuit Takes Congress
to Task for Shoddy and Partisan
Lawmaking in Which a Bill is
Unconstitutionally Being Treated
as Law," which was published in
the March 10, 2006 issue of
FindLaw.
Jim Zeigler, Esq., was quoted
in "Botched Bill Plaintiff
No Stranger to
Controversy," which was
published in the March 20,
2006 issue of Roll Call.
Jim Zeigler, Esq.,
was quoted in "Bill Flap
Could Lift Lincare," which
was published in the
February 2, 2006 issue of
the TheStreet.com.
Jim Zeigler, Esq.,
was quoted in "House GOP
Won't Revisit Flawed
Budget Bill," which was
published in the February
15, 2006 issue of the
Associated Press.
Stuart D. Zimring,
Esq., Bernard A. Krooks,
CELA, Alice Reiter Feld,
CELA, and Harry S.
Margolis, CELA, were quoted
in "Medicaid Changes
to Turn Estate Planning on
Its Head," which was published
in the February 19,
2006 issue of the Daily
Record (St. Louis, MO).
Divorce Elder Law Style
Richard F. Meyer, Esq.
When I began practicing, I litigated
both probate and domestic
matters. There are similarities:
you value assets, identify tax
issues and debts, and determine
offsets against assets to arrive at
a net to divide between the parties.
When interviewing an Elder
Law client, be cautious when discussing
divorce, but clearly, it is
the ultimate spousal resource
assessment.
Once the non-domestic
options are reviewed and the
client decides to pursue divorce,
you have four major considerations
assuming you know you cannot
represent both parties. These
a d v e r t i s e m e n t
considerations warrant their own
in-depth review, but this article
will address the basic elements
and pitfalls of each.
Consideration No. 1:
Is the institutionalized
spouse competent?
If competency is an issue, you
will need to decide whether to use
a Domestic or Probate guardian,
depending on what is available in
your state.
If you use a Domestic
guardian, the Civil rules allow for
appointment, which is usually a
domestic attorney. This leads to
more severe domestic litigationstyle
scrutiny. Hopefully, you can
resolve the case with an
agreed entry if you supply
sufficient evidence to
support its terms.
If you use a Probate
Guardian, the Probate
Court and the domestic
litigator require satisfaction.
This added layer
of review may hinder
approval of an agreed
entry. A significant deviation
from normal division
of assets will
require, at minimum,
more persuasion; or to
foreclose Probate Court
objections, a Domestic
Court finding based
upon stipulations.
Consideration No.
2: A first or second
marriage?
In a long-term marriage,
all the assets are
equally divided unless
you provide the Court
with a basis to deviate.
(continued on page 33)
32

Divorce Elder Law Style
(continued from page 32)
Usually, the husband has high
income and it follows him to the
nursing home. In Ohio, the
Medicaid office will not credit
payments for child or spousal
support. Use an economist to
establish the amount of money
needed by the community
spouse to sustain herself; thereby,
the court has a basis to find
a need for deviation from the
usual 50/50 split. Will your client
get 100%? No, but in most circumstances,
the award will
exceed a CSRA.
If your client is in a second
marriage, you may have separate
property with or without a
prenuptial agreement; if so, skip
to consideration number 4.
Consideration No. 3:
Use no-fault
divorce, uncontested
divorce or contested
divorce?
In many cases, you
consider whether to use
no-fault divorce, uncontested
divorce (agreed
grounds) or contested
divorce (stipulated facts
supporting grounds).
Ohio is a no-fault and
fault state.
The parties can utilize
a private judge to
conduct a no-fault divorce (dissolution)
hearing either in the nursing
home or at your office.
Grounds for divorce must fit
your facts. For instance, voluntary
separation that exceeds one
year constitutes a ground.
However, if someone is ill and
has to leave the marital residence
for medical treatment, this
is not voluntary separation.
The Ohio Medicaid office has
challenged agreed divorce
decrees. In a recent Ohio
Medicaid application, the
Supervisor chose
to deny Medicaid
due to an improper
transfer via an
agreed divorce
decree. Upon
appeal, Medicaid
was approved. So
how do we avoid
a similar denial in
the future?
Stipulate the
facts (i.e., facts for
grounds, economist
report),
which provides the
Court sufficient
evidence to find
for your client.
Through preliminary
hearings, you will be able to
determine the Court’s position. In
all likelihood, the Court will follow
the arguments for grounds, deviation
in marital assets or support
Divorce Elder law style requires
the practitioner to extract Elder law
results from the domestic gristmill.
Domestic judges practice domestic law
so use domestic terms and rules to
achieve the best economic result for
your community spouse client.
via findings of fact and conclusions
of law later incorporated
into a decree.
33
Consideration No. 4:
Are you dealing with separate
property? (i.e.,
Prenuptial or Inherited)
In Separate property cases,
the owner spouse is awarded
separate property prior to the
division of marital property.
However, this may result in a
spousal support order from the
community spouse to the institutionalized
spouse because the separate
property generates significant
income. If so, persuade the Court
to use the institutionalized spouse’s
life expectancy rather than the typical
domestic rule
(length of marriage
divided by 2) for the
spousal order, which
should shorten the
term. Then attack the
monthly amount by
distinguishing earned
and unearned income,
tax-exempt income
and other types of
income usually earned
by seniors.
If the institutionalized
spouse owns separate property,
a lump sum in lieu of support
can be made. This is acceptable to
the Ohio Medicaid office.
Divorce Elder Law style requires
the practitioner to extract Elder Law
results from the domestic gristmill.
Domestic judges practice domestic
law so use domestic terms and
rules to achieve the best economic
result for your community spouse
client.
Richard F. Meyer, Esq., practices Elder
Law in Columbus, OH.

ContentsMark Your
Calendars!
The Grand America Hotel
555 South Main Street
Salt Lake City, UT 84111
(801) 258-6000 Phone
www.grandamericahotel.com
Rates: $219.00 Single/Double
For reservations, call (800) 621-
4505 no later than September
15, 2006 and be sure to mention
that you are with NAELA to
receive this special conference
rate. Navigant International is
available to assist you with your
travel needs (800) 229-8731.
Please note: As with all travel
agencies, a service fee will
apply.
A full conference brochure will
be available by August 2006.
Early Bird Registration available
until September 15, 2006! For
more information, contact the
NAELA Office at (520) 881-4005
or visit the NAELA website at
www.naela.org.
National Academy of Elder Law Attorneys
1604 N. Country Club Rd., Tucson, AZ 85716-3102
520.881-4005, ext. 114, 520.325-7925 fax
www.naela.org

MAY
2006
NATIONAL
ELDER LAW
MONTH
Sponsored by the National
Academy of Elder Law Attorneys
Get Ready to Celebrate
National Elder Law Month
National Elder Law Month is an ideal time to highlight the profession of
Elder Law and draw attention to all of the wonderful ways that
NAELA Members contribute to their communities.
NAELA Members and NAELA Chapters are strongly encouraged to participate in National
Elder Law Month by educating seniors and people with disabilities about their legal
needs. You may consider the following ideas for promoting Elder Law in your
local communities:
Planning a Living Will Day
Holding a Seminar or
Presentation
Sending an Article to Your Local
Newspaper
Sending a Request for
Proclamation to Your Mayor or
Governor
Sending Press Releases and
Public Service Announcements
to Your Local Media
To obtain your National Elder
Law Month promotional package,
please visit www.naela.org and go to
the NAELA Members section. You may
also contact Ann Krauss, NAELA
Marketing and Public Relations
Director at 520.881.4005 x106 or via
e-mail at akrauss@naela.com.
Bernard A. Krooks, CELA, former NAELA President
and founding partner of Littman Krooks LLP in New
York, says: “My firm has participated in National Elder
Law Month for many years. The firm conducts several
seminars across the state on important topics such as
advance directives and estate planning. The community
response has been enthusiastic and appreciative.”
Victoria E. Heuler, Esq., NAELA Member and
Academy of Florida Elder Law Attorneys (AFELA)
Secretary, says: “Each May in Florida, through the
efforts of the Florida NAELA Chapter (AFELA), we celebrate
National Elder Law Month. AFELA frequently
uses the Elder Law Month materials provided by
NAELA, including the press release and proclamation
forms. The forms were used in 2005 to obtain proclamations from
the Florida Governor and multiple cities and counties. In Tallahassee
(Florida’s capital), our Elder Law bar created and published an article
in a regional family magazine about Elder Law. I received positive
comments from several community members about the article. I also
use the “Empty Office” article from the NAELA resources when I
speak to groups. The article helps me organize my thoughts to tell
the real story (stories!) about the daily talents that we Elder Law
attorneys bring to help clients, and it paints a visual for the group
participants about the client-centered practice that is Elder Law.”
35

NAELA Journal Update
The NAELA
Journal was recently
reviewed by the
Editorial Advisory
Committee for the
Index to Legal
Periodicals, which
considered 150 journals
last year for
inclusion in the 2006
Index. We are
pleased to announce
that NAELA was
among only 60 new
law journals selected. Becoming a
part of the Index is not only an
honor, but it also ensures that
attorneys applying for education
credit in certain states will receive
such. Of note, the NAELA Journal
subscription base increased by 75
percent over the last eight months
and is now available in 95 law
schools across the country. The
perfect bound journal is not just a
collection of writings about Elder
Law, it is a statement about
NAELA’s commitment to excellence,
education and scholarship.
Publish in the New
NAELA Journal
The NAELA Journal Editorial
Board is seeking quality, practice
oriented articles for the
new NAELA Journal.
Your experience as a
practitioner makes you
perfectly-suited to
write for a future issue.
The Editorial Board
recognizes your workload
and time constraints
as practitioners
and they have created
an editorial process
that can assist the
busy professional. As
an author, you receive one-on-one
coaching from an assigned articles
editor, a full edit by a professional
copy editor, and verification of
sources from an experienced citation
editor. NAELA will also provide
you with free author reprints
for your personal distribution.
Your article and practice also get
national exposure as the article is
distributed to more than 5000
attorneys, various media sources,
and close to 100 ABA law schools.
We hope you will join us in making
the new NAELA Journal a quality
practice-oriented publication
that aids members of this great
Academy. For more information,
please contact Jonathan Boyle at
jboyle@naela.com.
Calendar of Events
May 2-6, 2007
2006 NAELA Symposium,
Renaissance Cleveland Hotel,
Cleveland, OH
May 31, 2006
(Wednesday, 3:00 p.m., EDT )
NAELA Telephonic Program:
Medicaid Planning in a DRA
World
July 27, 2006
(Thursday, 3:00 p.m., EDT )
NAELA Telephonic Program:
Basic Overview of Social
Security Programs other
than SS
Fall 2007
2007 NAELA Institute,
Atlanta, GA
November 2-5 2006
2006 NAELA Institute,
The Grand America Hotel – Salt
Lake City, UT
Spring 2008
2008 NAELA Symposium,
NAELA’s 20 Year Anniversary,
Hawaii
Save the Date!!!
For the 2007 NAELA Symposium May 3-6, 2007
Pre-Sessions on May 2, 2007
Hotel Information Renaissance Cleveland Hotel 24 Public Square Cleveland, Ohio 44113
Reservations (800) 468-3571 Phone (216) 696-5600 Guest Fax (216) 696-0432
Rate $144.00 per night, single or double occupancy.
Call the Renaissance Cleveland Hotel (800) 468-3571 and mention that you are with the NAELA Symposium to receive the
special rate of $144.00 per night plus tax for single or double occupancy. Reservations are on a first-come, first-served basis and
the group rate cannot be guaranteed after Friday, March 16, 2007. Be sure to make your reservations early!
Navigant International can assist you with your travel needs 800-229-8731.
Please note: As with all travel agencies, a service fee will apply.
For more information or to register on-line, visit www.naela.org or call (520) 881-4005.
A full conference brochure will be available in early February 2007.
36

a d v e r t i s e m e n t

Distinguish Yourself…as a
Certified Elder Law Attorney!
Certification in Elder Law, offered by the
National Elder Law Foundation, is the only such
program approved by the American Bar
Association. Elder Law certification allows you
to gain recognition for your expertise in laws
relating to individuals who are elderly and/or
disabled. Certification distinguishes you among
your peers, consumers and in your community.
You cannot afford not to apply for certification
in Elder Law-one of the fastest growing
areas of the legal profession. The changing
demographics in our society, from the aging of
baby boomers-the largest sector of our population-to
people living longer, have created a
demand for attorneys who specialize in issues
affecting the elderly, incapacitated, and persons
with disabilities.
Do You Have What it Takes to Become
a Certified Elder Law Attorney?
Certification in Elder Law is open to all who qualify. You must
meet all the criteria listed below before applying for Elder Law
Certification.
Licensure Attorney must be licensed to practice law in at least one
state or the District of Columbia.
Practice Attorney must have practiced law during the five years
preceding the short form application and must still be practicing law.
Integrity/Good Standing Attorney must be a member in good
standing of the bar in all places in which he/she is licensed.
Substantial Involvement Attorney must have spent an average of
at least 16 hours per week practicing Elder Law during the three years
preceding the short form application. In addition, the attorney must
have handled at least 60 Elder Law matters during those three years
with a specified distribution among subjects as defined by the
Foundation.
Continuing Legal Education Attorney must have participated in at
least 45 hours of continuing legal education in Elder Law during the
three years preceding the short form application.
Peer Review/Professional References Attorney must submit the
names of five references from attorneys familiar with their competence
and qualifications in Elder Law. These persons must themselves
satisfy specified criteria.
The National Elder Law Foundation is pleased to
announce that they have been officially approved by
the Department of Veterans Affairs. Veterans who sit
for the CELA exam can have their exam fee reimbursed.
The exam may be taken as many times as necessary,
pass or fail, the exam fee will be reimbursed.
Examination Attorney must pass a full-day certification examination.
Review Courses Review courses for Elder Law Certification are
offered on a regular basis by the National Academy of Elder Law
Attorneys (NAELA). Those interested in sitting for the exam are
encouraged to participate in the six-week home study program that
culminates in an all-day review session typically held at NAELA's
Annual Symposium and Institute. Registration fees for the review
course include a manual of written materials and a set of CDs.
The only
ABA-approved Elder
Law Certification
offered by the
National Elder
Law Foundation.
For More Information
Lori Barbee
520-881-1076
lbarbee@naela.com
Don't delay...
join the hundreds
of attorneys who
have taken the
step toward
advancing their
legal career!
Congratulations to the newest
Certified Elder Law Attorneys
Evan H Farr, Fairfax, VA
Valerie M Logsdon, Grass Valley, CA
Rosemary B. Jones, New Milford, CT
Brett A. Howell, Grand Blanc, MI
Henry D. Fincher, Cookeville, TN
Sarah L Clingman, Columbia, SC
Visit www.nelf.org for more information.
38

a d v e r t i s e m e n t

National Academy of
Elder Law Attorneys, Inc.
1604 N. Country Club Road
Tucson, AZ 85716-3102
Member Corner
Photos from the 2005 NAELA Institute in Tucson, AZ
Edwin M. Boyer, Esq., and G. Mark
Shalloway, CELA, “Jazz It Up.”
Daniel O.
Tully, Esq,
John J.
Wargo,
CELA, and
Charles P.
Sabatino,
Esq.
Paul A.
Sturgil,
CELA, meets
with George
J. Felos,
J.D., at
book signing.
Donald H. Chapin, CELA, Angela Cartrell, Esq.,
Frank J. Dana, III, CELA, and Susan B. McMahon, Esq.