Bailey Liipfert III, CELA One of a Kind

National Academy of Elder Law Attorneys • Volume 23 • Issue 1 • Feb/Mar 2011
Bailey Liipfert III, CELA
One of a Kind
Also Inside:
• The New Tax Law: What It Means
for You and Your Clients
• Hill Day 2011:
• Now Is the Time to Speak Up
• Meeting Coverage: NAELA’s 2010 Advanced Fall Institute and
Introduction to Elder and Special Needs Law
Co-Authors Wanted
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(615) 397-8958
info@PhyliusPress.com
6
FEATURES
12
14
6
Featured Member Bailey Liipfert III, CELA One of a Kind
By Cowles Liipfert, Esq.
10
Beyond Academics — Transitioning to
Independent Living Through a College Program
By Bailey Liipfert III, CELA
12
NAELA Journal Spring 2011
Health Care Reform Issue
13
The New Tax Law: What It Means for You and Your Clients
By Robert C. Anderson, CELA, CAP, Brian Lindberg,
and Fay Gordon
14
NAELA Diversity Committee Presents: The
Elder Law Basics Workshop
By David Godfrey, Esq.
16
NAELA’s 2010 Advanced Fall Institute and
Introduction to Elder and Special Needs Law
Seminar Roundup, by Ruth Ratzlaff, Esq.
NAELA Board of Directors Meeting Report,
by Robert C. Anderson, CELA, CAP
23
Interview with Clarissa Bryan
By Barbara Gilchrist, Esq.
24
May is National Elder Law Month
25
Hill Day 2011: Now Is the Time to Speak Up
By Edwin M. Boyer, CAP
26
Practice Management/Practice Development
When Alzheimer’s Disease Affects a Client
By James Sullivan, MAS, CPA, and Janet Sullivan, Esq.
28
10 Common Ailments of the Elderly Client
By John Lansing, Esq.
DEPARTMENTS
4
5
16
President’s Message
You Get What You Need
By Ruth A. Phelps, CELA, CAP
Executive Director’s Message
More Than Just an Attorney
By Peter G. Wacht, CAE
20
NAELA Calendar of Events and Telephonic/ Webinar Programming
30
New CELAs
NAELA News has two complementary purposes: to communicate
the activities, goals, and mission of its publisher, the National
Academy of Elder Law Attorneys; and simultaneously, to seek out
and publish information and diverse views related to Elder Law and
Special Needs Law.
The views expressed in the articles are those of the authors and do
not necessarily reflect the policies of the publisher. Statements of
fact are solely the responsibility of the author.
Volume 23 • Issue 1
Feb/Mar 2011
NAELA News is published by the
National Academy of Elder Law Attorneys, Inc.
1577 Spring Hill Road, Suite 220
Vienna, VA 22182
703-942-5711 Fax: 703-563-9504
www.NAELA.org
PUBLICATIONS CHAIR
A. Frank Johns, CELA, CAP
Greensboro, N.C.
EDITOR -IN- CHIEF
Ruth E. Ratzlaff, Esq.
Kingsburg, Calif.
EDITORS
Robert C. Anderson, CELA
Marquette, Mich.
Josh Ard, Esq.
Williamston, Mich.
Kristi Vetri, Esq.
Rapid City, S.D.
PROFESSIONAL DEVELOPMENT/
PROFESSIONAL MANAGEMENT EDITORS
Judith D. Grimaldi, CELA
Brooklyn, N.Y.
Brian Mahoney, Esq.
Canton, Mass.
Teresa Marrero, Esq.
New York, N.Y.
Leonard E. Mondschein, CELA
Miami, Fla.
YOUNG/NEW AT TORNEYS SECTION LIAISON
Audrey Heidt, Esq.
Waltham, Mass.
Copyright © 2011 National Academy of Elder
Law Attorneys, Inc. Any use of the contents of this
publication without the express written permission of
the publisher is strictly prohibited.
Articles appearing in NAELA News may not be
regarded as legal advice. The nature of Elder and Special
Needs 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.
3
PRESIDENT’S
PRESIDENT’SMESSAGE
MESSAGE
XXX Get What You Need
You
M
y greatest joy in my
NAELA membership has been the
networking
opportunities — the opportunity to meet attorneys from other
states, share clients with them, and
exchange ideas. In the words of
that famous philosopher: You can’t
always get what you want, but if
you try sometimes, you just might find, you get what you
need.1 NAELA has given me exactly what I needed at many
points in my professional life. Most recently, this happened
at the NAELA UnProgram held January 21–22, 2011, in
Dallas, Texas. We have a probate case that we are trying to
close, where the executor had an ancillary proceeding in
another state. The executor was very successful, and in fact
made new law in that state. In case our court had questions
about what was done in the ancillary probate, I needed an
attorney from that ancillary state to answer them. In one
of my first sessions on the first day of the UnProgram, an
attorney from that state sat down next to me. I asked her
about the case, and in fact she had made a presentation
to her fellow lawyers on the case and had a copy of my
decedent’s Will on her computer with her. I had found the
perfect person.
The practice of law is hard. It is stressful. We are taught
in law school to look for the problems in cases and to raise
the difficult issues. We are also taught how to solve those
problems. But somewhere along the way, we often lose
our optimism, our kindness, and our coping skills. This
is where NAELA can be invaluable. Our fellow NAELA
members are supportive as they offer help and advice without being asked, and they smile as they do so. The downside with this is that NAELA can give you the impression
of being a clique or a closed group. This happens because
we are happy to see our friends from other states at meetings and hope to have a chance to sit down at dinner and
catch up on the latest happenings in that friend’s life. It
goes beyond war stories, or your last big victory, or the last
opponent you managed to crush. It is a sharing of achievements of children, the birth of grandchildren, of disap1 Rolling
Want”
4
Stones, “You Can’t Always Get What You
Stephen
Ruth A.J.Phelps,
Silverberg,
CELA,CELA
CAP
[S]omewhere along the way,
we often lose our optimism,
our kindness, and our coping
skills. This is where NAELA can
be invaluable. Our fellow NAELA
members are supportive as they
offer help and advice without
being asked, and they smile as
they do so.
pointments when marriages encounter problems, or when
children have drug and alcohol problems, or even awful
disasters, like the loss of a child. The NAELA meeting is
a place to find help and support. Although I want to visit
with my NAELA friends, now I try very hard to make it
a point to sit at a table where I know no one. I introduce
myself even though I find this hard to do.
So if you see me standing in a group, engrossed in conversation and enjoying the company of friends, just walk
by and say “Hi Ruth,” and it will remind me that I need
to break away and take the opportunity to meet you and
make a new friend.
The UnProgram gave us a chance to sit in small groups
and ask the questions that have been puzzling us for the
last few months. It gave us a chance to talk one-on-one
with a friend, either about a closely personal issue that you
simply can’t figure out on your own, or about a particularly
thorny client issue for which you also need help. The Elder
and Special Needs Law Annual National Conference coming up May 19–21, at one of the top hotels in Las Vegas,
will provide you with that same networking opportunity as
you meet up with your 300 best friends in May.
Come to a NAELA meeting. You just might find you
get what you need. n
EXECUTIVE DIRECTOR’S MESSAGE
continued from page 4
More Than Just an Attorney
A
s a history major in college, with a particular
interest in the Civil War, living just outside
Washington, D.C., is a tremendous boon. It
means that I can drag my family to several
dozen Civil War battlefields that are all within two hours
of my home. And in fact I’ve been doing just that, much
to the displeasure of my children, visiting one battlefield a
month. Next up? Antietam, described as the bloodiest day
of fighting during the entire war.
For me, it’s a chance to get a better feel for history …
and to force-feed some education into my son and daughter, much as my mother used to do when she’d bring me
and my two brothers into New York City to tour a museum. Did I get anything out of those visits other than the
opportunity to irritate my brothers? I don’t know. But I
figure that if my parents tortured me like this when I was a
child, there’s no reason I shouldn’t do the same to my own
kids.
In preparation for an upcoming battlefield visit, I just
read a book that discussed General Robert E. Lee’s surrender of the Army of Northern Virginia to General Ulysses
S. Grant in April 1865 at the Appomattox Courthouse,
effectively ending the Civil War. The terms Grant proposed to Lee were more lenient than what the politicians
in Washington sought, as they wanted to use the surrender
as an opportunity to punish the South. But Grant took a
different tack, and as a result many historians agree that
the terms of the surrender paved the way for reconciliation
between North and South rather than creating an environment of continued long-term animosity.
Reading that made me think of our current political
climate. The 112th Congress has just taken their seats, with
the Republican majority in the House pushing through
legislation to repeal the Affordable Care Act, despite knowing that the Senate and the President won’t permit the
legislation to move forward as the Department of Health
and Human Services is already knee deep in implementation of the Act. Couple that with the Republican Study
Committee, led by Republicans in the House of Representatives and the Senate, releasing a bill proposing $2.5
trillion in cuts to the federal budget by 2021. The proposed
cuts include defunding the Legal Services Corporation and
the National and Community Services Act; repealing the
increased FMAP for Medicaid under the Recovery Act;
and halting any appropriations to carry out health care
Peter G. Wacht, CAE
[I]t’s clear that the current
economic and political climate
will place additional pressure
on key social programs such as
Medicare, Medicaid, and Social
Security. And thinking about
this leads me to believe that
this is an opportunity for NAELA
members.
reform implementation. Consider as well the recommendations from the bipartisan National Commission on Fiscal
Responsibility and Reform, the efforts of several states to
tighten access to Medicaid eligibility, and the President’s
State of the Union Address, which proposed a freeze on
domestic spending and budget cuts.
These proposals will of course be revised in the months
ahead. But it’s clear that the current economic and political climate will place additional pressure on key social
programs such as Medicare, Medicaid, and Social Security.
And thinking about this leads me to believe that this is
an opportunity for NAELA members. While attending
the UnProgram in Dallas, there was a common theme:
­NAELA members are more than just attorneys, they’re
advocates for two of the most vulnerable segments of the
population: older Americans and people with special needs,
individuals who rely on these and other federal and state
programs for needed assistance.
With everything that’s going on nationally, now’s the
time to expand your role as advocate to a larger stage by
taking part in NAELA’s Hill Day, March 28-29, in Washington, D.C. (See the article on page 25 for more information.) Offer your voice to the national debate on issues of
importance to your clients. With 100-plus new members
in the House of Representatives, 16 new Senators and a
presidential election just around the corner, now’s the time
to start a dialogue with your national legislators. You’re already an advocate. Why not take this opportunity to bring
your focus and passion to the next level? n
5
FEATURED MEMBER
Bailey Liipfert III, CELA
One of a Kind
By Cowles Liipfert, Esq.
Bailey Liipfert is Bailey Liipfert —
one of a kind, an original — but he
has been singled out for recognition
in this issue of NAELA News for
many of the same attributes for
which others have been similarly
recognized — his compassion for
his clients, his love for the practice
of law in general and Elder Law in
particular, his overall knowledge of
Special Needs and Elder Law, and
his participation in community, bar
and NAELA activities.
B
ailey grew up in Rocky Mount in eastern North
Carolina and practices law about 150 miles west
of that city, in Winston-Salem in the Piedmont
section of North Carolina. With regional contacts in two sections of North Carolina, he has a statewide
practice.
He has empathy for his clients and is enthusiastic in his
desire to help them, attributes that others sense immediately when talking with him or hearing him speak. He is
truly interested in others and is a compassionate advocate
for his clients. Whenever and wherever there is an emergency, Bailey is there for his clients. He does whatever is
necessary to meet their needs. It is not unusual for Bailey
to drive several hundred miles to meet with clients — often
on weekends. He works hard to develop solutions to meet
their needs; solutions that can be very creative and can
involve techniques discussed with NAELA colleagues.
An Early Love for Special Needs and Elder Law
I am Bailey’s uncle and we have practiced law with the
same law firm for over 20 years. When our firm first hired
Bailey in 1991, we intended for him to work in traditional
estate planning and probate law. Since he was the youngest lawyer in the firm, many of our “unusual” files (such as
Elder Law matters) frequently found their way to his desk.
Bailey found it extremely rewarding to represent Elder Law
clients. Even when he was younger, Bailey had a desire
to help others, which was evidenced by his working as a
Cowles Liipfert is Bailey Liipfert’s uncle. They work at Craige
Brawley Liipfert & Walker LLP in Winston-Salem, N.C.
6
Like many NAELA members,
Bailey was primarily motivated
to specialize in Elder Law by
an altruistic desire to provide a
needed service for his clients,
and not by a desire to maximize
his earnings. Fortunately, he
recognized that the firm’s ability
to provide those services was
directly linked to the receipt of
sufficient income to justify the
necessary expenses.
Bailey Liipfert, far right, with his wife Theresa and their
children Stephen and Nina.
volunteer with the Orange County Rescue Squad while an
undergraduate student at the University of North Carolina
at Chapel Hill, and his experiences with that organization
were a major influence in his later decision to specialize in
Elder Law.
Bailey graduated from law school in 1991, a year in
which many states made significant changes to their laws
concerning health care directives, so our firm sent Bailey
to a seminar on advance directives in Washington, D.C.,
at which Lou Mezullo and another NAELA member were
speakers. NAELA was a four-year-old organization at that
time, and Bailey knew nothing about the organization prior to that seminar. Shortly thereafter, with encouragement
from Kate Mewhinney, Clinical Professor and Managing
Attorney of the Wake Forest University Elder Law Clinic,
Bailey attended a NAELA meeting in Atlanta, which was
a transforming event in his career. Bailey discovered many
other kindred spirits at NAELA, who were earning a living
doing what he wanted to do.
At that time, there were not many lawyers practicing
Elder Law in North Carolina, and Elder Law as a specialty
was in its infancy. Frank Johns, a former NAELA President, practiced Elder Law in nearby Greensboro and Kate
Mewhinney was at the Wake Forest University Elder Law
Clinic in Winston-Salem, but there were few Elder Law
attorneys in the state.
Bailey started practicing Elder Law as a very young
associate with an existing firm. Although our firm was
established in 1832 and is the oldest law firm in North
Carolina, we were a small firm and it was no trivial matter for a new associate to take the lead in embarking in a
new and relatively unknown field of legal specialization.
Frankly, several partners could not comprehend what Elder
Law was, much less how anyone could make a living doing
whatever Elder Law attorneys did. But Bailey was off and
running, and had soon begun to develop a practice in Elder
Law.
Bailey started attending NAELA meetings regularly,
which exceeded our firm’s budget for such expenses, so
he personally paid the costs in excess of the budgeted
amounts. The knowledge gained and the friendships made
at those meetings have been invaluable to him and worth
many times more than the cost of attendance.
Like many NAELA members, Bailey was primarily
motivated to specialize in Elder Law by an altruistic desire
to provide a needed service for his clients, and not by a
7
desire to maximize his earnings. Fortunately, he recognized
that the firm’s ability to provide those services was directly
linked to the receipt of sufficient income to justify the necessary expenses. With knowledge shared at NAELA meetings and from members like Lee Holmes, Bailey has largely
been responsible for making our Special Needs and Elder
Law practice into a major source of our firm’s revenues.
One of Bailey’s best childhood friends was the father of
a special needs child who had been the victim of medical
malpractice. Bailey helped the family and the trial lawyer
set up and administer a special needs trust for the large
medical malpractice settlement, and dealt with the complex
issues of taking care of the child. With experience from
that case and other early cases, Bailey soon began handling a large number of special needs trusts, and when the
Special Needs Alliance was formed, he became a Charter
Member.
Our firm now has several attorneys and a significant
portion of our staff working in or assisting with Special
Needs and Elder Law, including the administration of
more than 100 special needs trusts.
A Man of Many Interests
Bailey is a good multitasker and has many varied interests. He majored in Russian and East European Studies
at UNC-Chapel Hill, and after graduation he studied in
Germany and Russia. He returned to the United States and
worked briefly before enrolling in law school at Campbell
University. He has maintained his interest in Russian language, music and literature.
Bailey is something of a technophile and he is the partner responsible for keeping our office technology current.
Because of temporary space problems for the firm (we
will not be able to expand into adjacent space for several
months), he recently gave up his personal office temporarily to a new associate, electing to operate out of a home office except for meetings and other similar purposes. Bailey
gave up his space to help the firm, which is typical of him,
but he is also experimenting to see how it will work for an
attorney to operate out of a home office.
Bailey has been very active over the years in NAELA.
He also participates in the North Carolina Bar Association
and is a former chair of the Elder Law Section. He gives
back to his community by contributing his time to civic
organizations. He currently is a member of the board of
8
Fun Facts About Bailey Liipfert
• Bailey
majored in Russian and East European
Studies at UNC-Chapel Hill, and after graduation
he studied in Germany and Russia.
• He is a technophile and is the partner
responsible for keeping the office technology
current.
• Bailey is a member of the board of Beyond
Academics, which assists children with
intellectual disabilities gain their independence
through postsecondary educational
opportunities.
• He is the current president of The Adaptables,
a center for independent living and disability
advocacy funded by the Department of
Education, to help persons with disabilities
become more fully integrated with, rather than
being separated from, society.
• Bailey is most proud of his family — his wife
Theresa and two children Stephen and Nina.
Beyond Academics, which assists children with intellectual
disabilities gain their independence through postsecondary educational opportunities. He is also president of The
Adaptables, a center for independent living and disability
advocacy funded by the Department of Education, to help
persons with disabilities become more fully integrated with,
rather than being separated from, society.
Bailey’s professional life has been dedicated to serving
his clients and to the practice of Elder and Special Needs
Law. However, Bailey is most proud of his family. In 2005
he married the former Theresa Mamone Greene and in
the process became the stepfather of Stephen Greene, who
is a good student and outstanding young baseball player.
In 2008, Bailey and Theresa became the parents of a little
girl, Nina, who Theresa claims inherited 100 percent of her
looks from her father. Despite Theresa’s claim, Nina is a
beautiful young girl. Bailey is a devoted husband to Theresa
and father and stepfather to Nina and Stephen. n
NAELA Elder and Special Needs Law Annual
National Conference • May 19–21, 2011
Hot Topics and Winning Strategies
BASICS WORKSHOP — for anyone who needs a basic
understanding of Elder and Special Needs Law.
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Beyond Academics —
Transitioning to Independent
Living Through a College Program
By Bailey Liipfert III, CELA
Beyond Academics assists children with intellectual disabilities gain their
independence through postsecondary educational opportunities. Learn
about opportunities for your clients’ children.
M
ost children dream of the day when they can
move out of their parents’ home and start
life on their own. Children with intellectual
disabilities have these same dreams. Now,
these children will have a few more opportunities to gain
their own independence through postsecondary education
opportunities. They can gain some of the benefits of growing up in a college environment.
Elder Law and Special Needs Planning attorneys can help
parents draw up intricate estate plans to protect children
with intellectual disabilities, but all the planning goes for
naught if the child is ill-prepared for life after the parents
die. For many children with intellectual disabilities, learning to live independently gives them the greatest satisfaction
and prepares them for the day when Mom and Dad are
gone. Helping educate parents and the children on making
successful transitions from school and to a productive life is
quickly becoming a critical component of our practices.
Plan for Independence
In the past, the transition from home to independence
was primarily the job of the parents and their school
systems. Children entitled to a fair and appropriate educaBailey Liipfert, CELA, is this month’s NAELA News Featured Member. He practices Special Needs and Elder Law in
Winston-Salem, N.C.
10
tion under the Individuals with Disabilities Education Act
(IDEA) were entitled to assistance with transitioning from
school to a job as part of their individualized education
plans (IEPs) beginning no later than 16. In most states, the
school system’s obligations end when a child turns 22.
Title VII, Section D of the Higher Education Opportunity Act now allows school-aged children going through
this transition as well as older children to take part in
postsecondary school education opportunities at community colleges, colleges, and universities. These students can
receive financial aid in the form of grants or a guaranteed
loan, participate in work study jobs, and attend classes with
non-disabled students as part of a comprehensive transition
program.
Recently, the Department of Education has approved
Demonstration Projects at 27 higher education institutions around the country, funding them for five years and
helping seed many new programs. Currently, there are
131 postsecondary education programs around the United
States with new ones to come.
Parents must quickly be made aware of these programs
in order to plan for their children’s participation. In effect,
parents of children with intellectual disabilities should start
planning for postsecondary school educations for their children by investigating sources for payment years before the
actual need arises — the earlier, the better. Children may
need to be eligible for a waiver program and may need to
apply to a program to avoid waiting lists. Attorneys should
advise parents to bring up postsecondary school options
early in the IEP process, no later than age 14 to 16.
Parents should start saving for a postsecondary school
much earlier and should be done with great care. For example, through poor planning a 529 Plan owned by a child
with a disability could be a countable resource for the child
relying on SSI. Parents will need to understand how to pay
the bills. Parents may be tempted to make payments for
college directly to the student, causing the loss of SSI due
to excess income and resources as well as the potential loss
of the gift tax exclusion for payments made to an educational institution under IRC § 2503(e)(2).
Possible sources of funding could include:
1. Federal educational loans and grants
2. School systems for students enrolled in high school
but attending by mutual consent (child under 22)
3. Vocational rehabilitation grants or tuition waivers
4. Parental support, including 529 Plans
5. Scholarships
6. State-specific community-based waiver programs
7. PASS accounts (for SSI recipients)
There are many models of the postsecondary school
programs. Some are daytime-only programs that segregate
participants from the rest of the college campus. Other
programs primarily provide support to individual students
with counseling and mentoring. Some programs combine
aspects of both of the above models. One such program is
Beyond Academics.
Beyond Academics
Around the country and in the Piedmont Triad region
of North Carolina, parents and advocates have found allies
in our university systems to help students with developmental disabilities enjoy some of the non-academic benefits
of living and learning in a collegiate atmosphere. Along
with the benefits to the special, non-degree students, typical students at the university learn and benefit from these
special students as well.
Beyond Academics is one successful example of parents,
advocates, and educators forming a partnership to help
children with disabilities gain the abilities needed to live as
independently as possible. It all started with parents talking
about where their children were going after high school.
These parents wished their children could have the benefits
of learning day-to-day living skills in a college environment. They found a partner in a Medicaid provider agency,
Charles Hines and Son, willing to nurture and grow this
program through its early years.
The children will, perhaps, never be capable of living
without any support system, but they can hold jobs and
can live with less supervision than many of their parents
could ever have imagined. There is a benefit for states as
well. In essence, programs like Beyond Academics will save
states money by helping graduates live more independently
with less need for state-funded supports in the future.
Beyond Academics initially started with very loose connections to Winston-Salem State University. The program soon moved to a new location close to another state
university, the University of North Carolina at Greensboro,
when it located an apartment complex close to UNCG
that housed college students and that was willing to house
Beyond Academic students as well. At first, the program
was designed as a two-year program with some continuing case management services upon graduation. From its
inception, Beyond Academics has been a work in progress.
The two-year program has grown into a four-year program, with a substantial part of the last two years including
internship and work experiences. There are currently 25
students across the first three years of the program, with
the first senior class yet to graduate.
Today, the first two years include classes to develop independent living skills, sometimes taught on an individual basis, as well as classes with typical college students.
Students learn how to cook, clean, and balance a checkbook. Being in a college environment, they learn how to
interact in social relationships and even how to go on a
date. Students learn self-advocacy skills, including how to
vote and how to deal with issues with a landlord. Some
of their coursework on self-advocacy includes classes
with typical college students. The last two years become
more geared toward working experiences. Students seek
employment based on their interests and skills and can
apply these experiences in finding permanent work after
graduation.
Funding thus far has been through the Medicaid homeand community-based waiver program for the developmentally disabled, called CAP/MR-DD, and through
grants from the North Carolina General Assembly in
very challenging budgetary times. Beyond Academics has
11
approximately eight students in its junior class but hopes
to expand in time. Expansion can be through private-pay
students and through expansion through the Medicaid program. The biggest problem at this stage is admissions: there
are more than 10 applicants for every space available.
Potential Beyond Academics students must be capable
of managing their activities of daily living independently
and must either participate in the North Carolina CAP
program or have the financial means to pay privately.
The private pay cost can be greater than a typical college
education, largely because of the individualized one-on-one
instruction. They must be capable of living in a community
of other people with and without disabilities. Most importantly, the child must want independence and be willing to
work hard to make it happen.
How can parents prepare for admissions to Beyond Academics or similar programs? First, help their special children take advantage of educational opportunities while still
in their school system. Second, begin saving, just as if their
child will attend college. One idea to consider is a 529 Plan
owned by a parent, grandparent, or by a trust. While a
typical child would begin college at 18 or 19, children with
disabilities may need more time and effort to reach this
milestone in life. Students range in age from their 20s to
their 50s in the Beyond Academics program.
Do you think your client’s child may not succeed in a
program like Beyond Academics? Many of the parents of
the current Beyond Academics students were skeptical before they watched their children thrive with independence.
Would you like to help your clients discover postsecondary study opportunities for their children? Start your research
at Think College! (www.thinkcollege.net) and Beyond
Academics (www.beyondacademics.org). The Think College!
website will allow you to locate postsecondary opportunities
in your area while the Beyond Academics website will show
you a good example of a successful program. n
NAELA Journal Spring 2011 Health Care Reform Issue
What does the Affordable Care Act mean to Elder and Special Needs Law
attorneys and their clients?
Optimistic health and aging advocates likely assumed the ongoing debate over health
care reform legislation would slow down
when President Obama signed the Patient
Protection and Affordable Care Act of 2010,
Public Law 111-148, and the Health Care
and Education Reconciliation Act of 2010,
111-152, collectively referred to as the
Affordable Care Act (ACA), into law.
Nearly a year later, the health care reform
debate is far from over. With the leadership
in the U.S. House of Representatives attempting to
repeal, or at least dismantle the legislation, and state
attorney generals filing lawsuits questioning its constitutionality, health care discussions continue.
Meanwhile, President Obama’s administration continues to implement the law according to the ACA timeline.
Key provisions in the ACA have already gone into effect,
12
and many important changes to Medicare,
Medicaid, and long-term care services and
supports will occur this year.
While Elder and Special Needs Law attorneys have had nearly a full year to learn
about the law, it is difficult to grasp all of
the ACA’s complexities and the history
behind these improvements.
NAELA Journal, Volume 6, Number 1,
coming to you in late spring 2011, details
the background of the ACA, the expansion of Medicaid, the evolution of the Elder Justice
Act, Medicare enhancements, and what the new law
means to Elder and Special Needs Law attorneys.
Although it is impossible to tell if the law will change
after NAELA Journal goes to print, Volume 6, Number 1
is an excellent resource for all practitioners trying to get
a better grasp on this historical piece of legislation. n
The New Tax Law:
What It Means for You and Your Clients
By Robert C. Anderson, CELA, CAP, Brian Lindberg, and Fay Gordon
The new tax law has been negotiated and passed. Here’s a summary of
what Elder Law attorneys need to know.
A
fter months of uncertainty, weeks of tense
negotiations, and days of dramatic speeches,
Congress passed and President Barack Obama
signed the Tax Relief, Unemployment Insurance
Reauthorization and Job Creation Act of 2010 (the 2010
Tax Relief Act) into law on December 17, 2010.
By now, Elder and Special Needs Law attorneys have
had time to read the law and are sifting through the various provisions that may affect their clients. Clients may be
asking: How does the new law affect me? Do I need to alter
my planning? Here is some tax legislation information to
share with curious clients.
The Estate Tax
Possibly the most hotly debated element of the tax legislation was the potential of the return of the estate tax in
2011 to 2001 levels. The 2010 Tax Relief Act reinstates the
estate tax at a maximum rate of 35 percent with a $5 million exclusion for individuals and a $10 million exclusion
for married couples. The most notable change for Elder
Law attorneys is that the exclusion is portable, meaning,
if one spouse dies and does not use all of the $5 million
exclusion, the surviving spouse can combine the remaining
amount with his or her $5 million exclusion.
Robert C. Anderson, CELA, CAP, is a member of the NAELA
Board of Directors. Brian Lindberg is the Public Policy Advisor for NAELA. Fay Gordon is Senior Associate for Grassroots
and Public Policy in Mr. Lindberg’s office.
The 2010 Heir Choice
Heirs who inherit from a decedent who died in 2010
(2010 heirs) will have to make an estate tax choice this
year. Although there was no estate tax in 2010, the Economic Growth and Tax Relief Reconciliation Act of 2001
(EGTRRA) instituted a capital gains tax on estate assets
with a modified carryover basis. The 2010 heirs will be able
to choose to use the 2010 modified carryover basis on the
estate’s capital gains or the 2010 Tax Relief Act’s $5 million
exclusion with a stepped-up basis.
The Repeal of IRC §2511(c)
EGTRRA introduced Section 2511(c) to the Internal
Revenue Code. Under this provision, assets transferred to
a trust after December 31, 2009, had been deemed a gift
unless the trust was treated as wholly owned by the donor
or the donor’s spouse under grantor trust rules, both as to
income and as to principal. The 2010 Tax Relief Act repealed this Section, which means this type of “incomplete”
transfer to a trust will not be considered a completed gift.
Gift Tax
The 2010 Tax Relief Act continues the EGTRRA gift tax
of a $1 million exclusion and a 35 percent tax rate for 2010
gifts. For gifts made after 2010, the gift tax will coincide
with the estate tax with a top gift tax rate of 35 percent and
an applicable exclusion amount of $5 million.
continued on page 15
13
FEATURED MEMBER
NAELA Diversity Committee Presents
The Elder Law Basics Workshop
By David Godfrey, Esq.
This workshop is designed to attract a diverse group of attorneys to the
practice of Elder and Special Needs Law and showcase what NAELA has to
offer them.
O
ne of the NAELA Diversity Committee’s goals
is to interest minority attorneys in undertaking the practice of Elder and Special Needs
Law and becoming NAELA members. To kick
off the Committee’s efforts, the NAELA Diversity Committee hosted an MCLE Basics of Elder Law workshop
targeting minority attorneys in Washington, D.C., on
October 29, 2010. The program was hosted by long-time
NAELA member Robert Bullock in his Elder and Disability Law Center in Washington, D.C.
The program started with a welcome and overview from
Rajiv Nagaich, chair of the NAELA Diversity Committee, and our host Robert Bullock. Mr. Nagaich told a very
personal story of discovering the need for expertise in Elder
Law when helping his in-laws navigate life care issues.
Speaking to a packed meeting room, William Fralin,
CELA, started the day-long program with an overview of
long-term care. His presentation included paying for longterm care, long-term care insurance, and tax issues. Mr.
Nagaich followed with a discussion of Veterans Benefits
and how this is a rapidly growing area of practice for Elder
Law attorneys. An overview of Medicaid and long-term
care was presented by NAELA member Morris Klein,
CELA. Mr. Klein skillfully reviewed categories of Medicaid eligibility and the basics of income and asset rules and
common planning techniques. In the last session before
David Godfrey is a senior attorney to the American Bar Association Commission on Law and Aging where he is responsible
for the Commission’s work on the Administration on Agingfunded National Legal Resource Center. He is a long-time
member of the Kentucky Bar Association, the American Bar
Association, and NAELA.
14
Paul Sturgul makes his presentation on defining and assessing
legal capacity.
breaking for lunch, Mr. Bullock reviewed issues relating to
surrogate decision making, concentrating on the Uniform
Power of Attorney act.
Evan Wolfson of Freedom to Marry presented “2020
Vision: Winning the Freedom to Marry this Decade.”
The topic was timely in the D.C. area with the D.C. City
Council recently legalizing same-sex marriage, and Maryland issuing an opinion that they will offer reciprocity
to valid same-sex marriages from other jurisdictions. Mr.
Wolfson covered the history of legal restrictions on marriage and how marriage impacts same-sex families. He also
mentioned the impact of the federal Defense of Marriage
Act on federal programs for members of valid same-sex
marriages.
Paul Sturgul covered defining and assessing legal capacity and reviewed techniques for assessing client capacity. He
also addressed ethical issues in the practice of Elder Law.
Mr. Nagaich ended the day with a session on proven marketing ideas and offered tips on effectively marketing your
Over 35 participants attended the Elder Law Basics Workshop
presented by the NAELA Diversity Committee in Washington,
D.C. A second workshop was presented in Los Angeles, Calif.,
in November 2010.
practice. Mr. Nagaich also introduced the NAELA marketing tool kit being developed by the Diversity Committee.
The NAELA Diversity Committee is developing resources to help every NAELA member become a preeminent Elder and Special Needs Law attorney. While the
focus of the committee is on expanding the practice of
Elder and Special Needs Law by minority attorneys and
increasing cultural competence among all NAELA members, the Diversity Committee is also developing tool kits
on marketing, operations, and education to be used in
conjunction with seminars and presentations put on by
NAELA and NAELA State Chapters. The committee is
well along the way in developing a marketing tool kit that
provides templates for marketing materials, advertising
ideas, brochures, and Power Point materials that can be
personalized for use by any NAELA member. The planned
operations tool kit will provide tools for the day-to-day
organization and operation of an Elder and Special Needs
Law practice. And the education tool kit has been started
with the agenda for the one-day Basics of Elder Law
program presented in Washington, D.C. This program can
easily be customized and used in any jurisdiction.
The Diversity Committee is focused on expanding opportunities for minority attorneys in the practice of Elder
and Special Needs Law and on expanding the cultural
competence of NAELA members. This will assure that an
increasingly diverse America will find a NAELA member
who understands their needs. n
The New Tax Law,
continued from page 13
Generation-Skipping Transfer (GST) Tax
For 2010, the GST exemption amount is $5 million
with a GST rate of zero for GSTs made in 2010. For transfers made in 2011 and 2012, $5 million is exempt with a
GST tax rate of 35 percent.
Capital Gains and Dividends
The tax rate on capital gains and qualified dividends will
remain at the maximum rate of 15 percent for 2011 and
2012.
Stepped-Up Tax Basis
The 2010 Tax Relief Act replaces the modified carryover
basis rules for 2010 with the stepped-up basis rules that
applied before 2010.
Medicare
The 2010 Tax Relief Act did not provide any relief for
the Medicare tax which is expected to increase in 2013.
Roth IRA Conversions
Individuals may convert funds from a traditional IRA,
401(k) plan or other qualified plans to Roth IRAs, as was
the case under prior law. n
15
NAELA’s 2010
Advanced Fall Institute
and
Introduction to Elder and
Special Needs Law
From the exhibit hall to the seminars everyone came away with new
ideas and information. And with the opportunities to network during
social events, old friendships were renewed and new friends made.
The Opening Reception
got everything off to a
great start. From Magic
Mike the magician
(above) to the live boa
constrictor brought by Pet
Kingdom (far right), the
entertainment was lively.
16
NAELA Board member Ragiv Nagaich,
far right, welcomes attendees to
the Keynote session, “Looking Back
to Look Forward: The Future of the
Practice of Law,” presented by NAELA
Past President Stephen Silverberg,
CELA, and Jonathan Blattmachr
(above).
A Letter from Hyman Darling
2010 Fall Institute Program Chair
Dear Fellow NAELA Members:
It seems like yesterday that I had agreed to take on the responsibility as the chair of
the 2010 Fall Institute in San Diego. I was so looking forward to being with my NAELA
family and meeting new members at the program. Unfortunately, I was
not able to attend. However, I was in constant contact with NAELA staff
and attendees who were raving about the breakout sessions, plenary
sessions, time with the snake, and even a few who thought the comedian at the Networking Luncheon was funny.
As in the past, most programs were totally educational. I was hoping that this year’s somewhat shorter program
would be not only educational, but also fun. From the comments and evaluations, I am delighted that many of
you were pleased with the program, and it only goes to show that with hard work and good people, “the show
must go on.”
With an outstanding program committee and a great staff, the program was a total success. With the help
of Executive Director Pete Wacht, a great coordinator in Casey Anderson and other NAELA staff, and my
good friend and colleague Julie Fiedler (who filled in for me as the chair), not a beat was missed in the entire
program from start to finish. I can’t thank everybody enough for all of their good thoughts sent to me in my
absence, and all the commitment and hard work everyone put in from the meeting’s inception to the closing
remarks at the end of the session.
It’s hard to believe that by the time we meet next at the 2011 Elder and Special Needs Law Annual National
Conference in Las Vegas, May 19-21, it will have been over five years since the DRA was enacted. There are
still lots of opportunities for NAELA members to assist our clients in estate planning, long-term care planning,
tax planning, special needs planning, and more. I urge all of you who have not yet attended a program to consider making plans
now to attend the meeting in Las Vegas and, of course, to make plans for the 2011 Advanced Fall Institute in Boston, November
10-12. I plan to attend both these great programs. I would urge all of you to attend and I’m hoping to see all of you again soon.
Thank you again for all who have participated in making the San Diego program a success.
coverage continued on next page
17
Toni Christy with the Collaborative for Communication
Access via Captioning (CCAC), a volunteer organization
whose goal is to increase access to communication
through captioning, demonstrated how captioning works
and how attorneys can use it to benefit hard-of-hearing
clients.
Above and right:
presenters and
attendees at the
seminar “From DRA
to PPACA.”
Seminar Roundup
By Ruth Ratzlaff, Esq.
NAELA News Editor-in-Chief Ruth Razlaff attended several
seminars during the Institute and put together the following summary. If you missed any of the seminars while you
were in San Diego or if you weren’t able to make it to the
Institute this year, all seminars are available for download
on NAELA’s website (www.NAELA.org, go to Library >
Archived Seminars).
CONSUMER CREDIT
Alexander Burke pointed out that much of consumer credit
litigation awards attorney fees to prevailing plaintiffs. He encouraged NAELA members who are evaluating potential litigation to
consult a member of the National Association of Consumer Advocates (www.naca.net), an organization comprised of experienced
consumer litigation attorneys.
He recommended snail-mailing credit report request forms in
order to receive a paper copy of the report in case litigation is
needed. Forms are at www.AnnualCreditReport.com. There is a
90-day fraud alert in case of suspected identity theft. There is
a seven-year extended fraud alert, which requires that a police
report was filed.
Burke also recommended that when clients are being sued by
buyers of debt (credit card has written off the bill, but sold the
liability), the attorney should show up in court to make them
prove their case, because they can’t, and ask for a dismissal with
prejudice.
HOME EQUITY CAPS
Michael J. McGuire pointed out that up-front fees for reverse
mortgages were reduced by Fannie Mae and FHA effective October 1, 2010, and that even with a credit line on which no draws
have been taken, the amount of the recorded lien is 1.5 times
the amount of the credit line. For clients who intend to remain
18
in their homes that are valued over the equity limit of $500,000
or $750,000, this would be an avenue to reduce home equity to
qualify for home and community-based care.
FOR CLIENTS WHO ARE “WELFARE” AVERSE
For clients who are leery about Medicaid planning because they
view Medicaid as a form of “welfare,” Bonnie Marshall encouraged us to tell those clients that we wouldn’t even be having
the conversation if they didn’t have the wrong disease. Society
supports payment in full for quadruple bypass heart surgery, but
not for care for multiple sclerosis, Parkinsons, or Alzheimer’s
patients.
SHIFTING SERVICES FROM INSTITUTIONAL CARE TO
COMMUNITY-BASED CARE
Eric Carlson noted that there is a bipartisan agreement in
Washington, D.C., to move services from institutionalized care to
community-based care. The problem is to keep the communitybased care option appear less attractive so too many consumers
don’t sign up.
MCCA spousal-impoverishment protections will be phased in for
mandatory use in community-based care, beginning in 2014.
BANKRUPTCY
Filing for bankruptcy puts an automatic stay on foreclosure
proceedings. The creditor can file for relief from the stay, but the
filing buys time.
Most of the Chapter 7 filings (liquidation) have no assets to
liquidate.
If a client (or the law firm) is a potential creditor of a bankruptcy
estate, lack of filing a timely claim means that no payment will
be made on the debt. It is better to file an estimate or state that
the amount is currently unknown than not to file.
continued on page 21
All NAELA events offer seminars that will suit a variety
of needs and level of expertise. The seminars also give
attendees a chance to meet new people and exchange
ideas.
NAELA Board of Directors Meeting Report
By Robert C. Anderson, CELA, CAP
Your NAELA Board met on November 3, 2010, before the
Advanced Fall Institute in San Diego, Calif. A highlight of the
meeting was a strategic discussion of a report by NAELA’s Market
Space Task Force comprised of Ed Boyer, Sharon Kovacs Gruer,
and Tim Crawford. Although NAELA was Elder Law’s founding organization over 23 years ago, other organizations such as Wealth
Counsel, Special Needs Alliance, Life Care Planning Law Firms,
state bar Elder Law sections, Veterans Advocates Group, and others are now competing in NAELA’s market space. Rather than be
a bystander, you will see NAELA taking a more proactive stance
in order to chart its own course. In order to do this, the Board has
authorized President Ruth Phelps to appoint a Trends Committee
which will identify trends in our market space and make recommendations to the Board on action items.
Another highlight was the good news of NAELA’s positive financial position and adoption of a 2011 budget. Our treasurer, Howard Krooks, stressed the need to add our 2010 budget surplus to
existing reserves in order to secure NAELA’s financial future.
Executive Director Pete Wacht had positive news about the 4.2
percent increase over 2009 in membership to over 4,300 members. In addition, NAELA has completed the transition from the
former management company to its own staff with the transfer to
a new database management system and new website. Pete also
reported the progress of the Board’s proposed Bylaw changes
concerning Board election.
Director of Marketing and Member Services Kristen BrownSimpson announced the launch of our new and improved website
and demonstrated its use. NAELA’s Public Policy Advisor Brian
Lindberg gave an assessment of the Congressional election results and their potential impact on health care reform and other
senior and special needs issues.
A final highlight of the Board meeting was the Board’s decision
to establish the NAELA Foundation, a 501(c)(3) entity, which will
support future charitable purposes related to NAELA’s mission.
The existing NAELA Memorial Scholarship Fund will be transferred into the new Foundation.
This was my second meeting as a new Board Member, and I
must say how impressed I am with the dedication and collegiality
of each and every Board member. In fact, the meeting was run so
smoothly, that it ended an hour early. n
Robert C. Anderson, CELA, CAP, Marquette, Mich., is a member
of the NAELA Board of Directors.
19
Calendar of Events
Go to www.NAELA.org for up-to-the-minute information
on NAELA, Chapter, and Section events.
NAELA Events
March 28–29. NAELA Hill Day, Washington, D.C.
Training sessions held March 28. Capitol Hill visits
held March 29. Register online now. This is a free
event.
May 18. NAELA Board of Directors Meeting held in
conjunction with the NAELA Elder and Special Needs
Law Annual National Conference, Las Vegas, Nev.
May 18. NAELA Basics Workshop, Las Vegas, Nev.
Reservations: 877-321-9966, www.encorelasvegas.com.
May 19–21. NAELA Elder and Special Needs Law
Annual National Conference, Encore at Wynn Las
Vegas, Las Vegas, Nev. Reservations: 877-321-9966,
www.encorelasvegas.com.
August 19–20. NAELA CAP Conference (CAPs only).
Hotel Allegro Chicago, Chicago, Ill. Reservations:
800-KIMPTON, www.allegrochicago.com.
November 8–9. NAELA Advanced Elder Law
Boot Camp/CELA Prep, Boston Seaport Hotel,
Boston, Mass. Reservations: 800-SEAPORT, www.
seaportboston.com.
November 9. NAELA Board of Directors Meeting
held in conjunction with the Advanced Fall Institute,
Boston, Mass.
November 10–12. NAELA Advanced Fall Institute,
Boston Seaport Hotel, Boston, Mass. Reservations:
800-SEAPORT, www.seaportboston.com.
AELA Board of Directors Meetings are open to all NAELA members.
N
Meeting announcements and minutes from past Board of Directors
meetings are posted on www.NAELA.org.
2011 NAELA Telephonic/Webinar
Programming
See the complete list of seminars at www.NAELA.org.
Past NAELA Events, Telephonic Programs, and Webinars
are available in video and/or audio files at the NAELA
Online Education Library.
Go to www.legalspan.com/naela.
Your NAELA Staff
NAELA staff members
can help you with any
questions you might
have about your NAELA
membership, events,
publications, public policy,
etc. Here’s a brief summary of who to
contact, but know that any staff member
can assist you with your questions or get
your call or e-mail to the right person for a
prompt response.
Peter G. Wacht, CAE, Executive Director
ext. 227, pwacht@naela.org
MEMBERSHIP
Kirsten Brown Simpson, Director of
Member Relations and Marketing
ext. 224, kbrownsimpson@naela.org
Laura Munley, Membership Coordinator
ext. 222, lmunley@naela.org
• Membership renewals • Membership
applications • Chapter and Section
membership additions • Experience
listings • Additional Location
Listings • Personal web pages • NAELA
website password questions • Online
and printed directory • Brochure
and collateral program • New
member welcome kits • Membership
rosters • General membership
inquiries • Address and contact
information updates • Member Benefits
and Services inquiries
MEETINGS AND EDUCATION
Casey Anderson, Director of Meetings and
Education
ext. 7, canderson@naela.org
Roger Naoroji, Meetings and CLE
Coordinator
ext. 229, rnaoroji@naela.org
Meetings • Education • Speakers • Event
registration • Telephonics • Online
Education Library • Vendor Partner
Program inquiries • Exhibitors/
Sponsors • CLE information
COMMUNICATIONS AND PUBLICATIONS
Nancy M. Sween, Director of
Communications and Publications
ext. 225, nsween@naela.org
Nick Baker, Communications Specialist
ext. 230, nbaker@naela.org
• NAELA News content
and advertising • website
advertising • NAELA Journal
content • NAELA Publications
• Media contacts • Public relations
BOOKKEEPING AND GENERAL
ADMINISTRATIVE QUESTIONS
Ann Watkins, Program Coordinator
ext. 226, awatkins@naela.org
• Product orders • Subscription inquiries
SECTIONS, CHAPTERS, AND
LISTSERVS
Meredith Hansen, Section Coordinator
ext. 6, mhansen@naela.org
•Student Writing Competition • Law
Student Day • Diversity Task
Force • Academic Subcommittee • List
Serv inquiries
NAELA • 1577 Spring Hill Road, Suite 220 • Vienna, VA 22182
703-942-5711 • 703-563-9504 Fax • www.NAELA.org • naela@naela.org
20
The exhibit hall is a great place to get some one-on-one
attention from vendors and learn about products and
services for your practice as well as a place to catch up
with friends.
Seminar Roundup, continued from page 18
TECHNOLOGY
Mark Merenda, of Smart Marketing, recommended www.Turn
Here.com for adding video to a website. His point: people “listen”
with their eyes. Potential clients don’t know how good of an attorney you are and aren’t qualified to judge how good you are.
Saying “What should matter is what a good attorney I am” is
like going into a singles bar and saying “What should matter is
what a good person I am.”
He counseled to stay away from “black hat” marketing that tries
to trick the Google algorithm into putting your name higher in
search results. It is better to add relevant content regularly.
How to convert contacts to customers? Offer a free report, use
a video introduction of yourself, make yourself easy to contact —
give a cell phone number.
ELDER ABUSE
Financial abuse is usually mixed with physical and psychological abuse. Undue influence is always premeditated and methodical. Premature death of the victim may be contemplated.
Stephen Read, MD, a forensic geriatric psychiatrist, has testified
in elder abuse cases. He said juries have trouble seeing undue
influence as a form of abuse.
Dr. Read evaluates the victim’s general health and their perception of their health. If they think they are not well, it may create a
false sense of urgency.
Isolation can result in a lack of access to usual advisors, including informal advisors. This brings on decisions that can’t be
explained rationally. The victim loses the ability to weigh relative
values and has lost the ability to judge cause and effect.
The Honorable Julie Conger retired as a judge of the Alameda
County (California) Superior Court, where she presided over the
Elder Protection Court. She is now working with other California
counties to adopt a similar program.
Her department heard all matters potentially related to elder
abuse where the party was age 65 or older. These included domestic violence cases, probate, conservatorship, landlord-tenant,
civil harassment, criminal, and consumer fraud. She identified
the need for the matters to be adjudicated regionally — Alameda
County (Oakland) is part of the greater San Francisco Bay Area,
and perpetrators of elder abuse don’t stop at the county line.
Her department had an Elder Case Manager as an employee.
The calendar was heard at 11 a.m. and there was only one case
on each docket. For the criminal cases, there could be a conditional exam of the victim as early as 10 days after arraignment in
order to preserve the victim’s testimony for trial. n
Did You Miss a Seminar?
Or maybe you didn’t make it to the Fall
Institute this year. Not to worry. All seminars from the Fall Institute are available online for download.
Go to www.NAELA.org, go to Library >> Archived
Seminars for all the 2010 Fall Institute seminars as
well as seminars from past NAELA events.
21
Chapter Presidents
For information on NAELA Chapters, go to www.NAELA.org.
Arizona Chapter
Robert M. Way
Yuma, Ariz.
robert@deasonlaw.com
New Mexico Chapter
Nell Graham Sale, CELA
Albuquerque, N.M.
ngsale@pbwslaw.com
California Chapter–Northern
Tricia A. Shindledecker, CELA
Santa Rosa, Calif.
tricia.shindledecker@azdgg.com
New York Chapter
Joan L. Robert
Rockville Centre, N.Y.
joanlenrob@aol.com
California Chapter–Southern
E. Bonnie Marshall, CELA
Glendale, Calif.
info@elderlawcouncil.com
New York Student Chapters
Colorado Chapter
Marco D. Chayet
Denver, Colo.
marco@coloradoelderlaw.com
New York Law School
Connecticut Chapter
Joseph A. Cipparone
New London, Conn. 
jac@kccaz.com
Florida Chapter
Beth Prather
Fort Myers, Fla.
bethp@omplaw.com
Georgia Chapter
Miles P. Hurley
Atlanta, Ga.
mhurley@hurleyeclaw.com
Albany Law School
Lauren Palmer
lpalmer@albanylaw.edu
Elizabeth Briand
elizabeth.briand@law.nyls.edu
North Carolina Chapter
A. Frank Johns
Greensboro, N.C.
afj@nc-law.com
Ohio Chapter
Michael L. Brumbaugh
Parma Heights, Ohio
mbrumbaugh@aol.com
PRESIDENT
SECRETARY
Ruth A. Phelps, CELA, CAP
Pasadena, Calif.
rap-asst@elderlawyers.com
Bradley J. Frigon, CELA, CAP
Englewood, Colo.
frigonlaw@qwest.net
PRESIDENT-ELECT
PAST PRESIDENT
Edwin M. Boyer, Esq., CAP
Sarasota, Fla.
emboyer@boyerjackson.com
Stephen J. Silverberg, CELA, CAP
Roslyn Heights, N.Y.
elderlawyer@gmail.com
VICE PRESIDENT
EXECUTIVE DIRECTOR
Gregory S. French, CELA, CAP
Cincinnati, Ohio
Gfrenchlaw@aol.com
Peter G. Wacht, CAE
Vienna, Va.
pwacht@naela.org
TREASURER
Howard S. Krooks, CELA, CAP
Boca Raton, Fla.
hkrooks@elderlawassociates.com
Pennsylvania Chapter
Jeffrey A. Marshall, CELA
Williamsport, Pa.
jmarshall@paelderlaw.com
South Carolina Chapter
Illinois Chapter
Michael Bridges
Amy Parise DeLaney, CELA
Greenville, S.C.
Orland Park, Ill.
mbridges@dobsonlaw.com
adelaney@delaneylawoffices.com
Tennessee
Indiana Chapter
Olen M. Bailey
William J. Green, CELA
Memphis, Tenn.
Indianapolis, Ind.
ombailey@thebaileylawfirm.com
rgreen@greenlawoffices.com
Texas Chapter
Kansas Chapter
Molly Dear Abshire
Randy Clinkscales
Bellaire, Texas
Hays, Kan.
molly@wrightabshire.com
randy@clinkscaleslaw.com
Vermont Chapter
Maryland/DC Chapter
Denise Atkinson Clark
Catherine E. Stavely
Rutland, Vt.
Annapolis, Md.
denisec@sover.net
cestavely@verizon.net
Virginia Chapter
Massachusetts Chapter
Elizabeth L. Gray, CELA
Francis X. Small
Fairfax, Va.
Milford, Mass.
elgray@fairfaxelderlaw.com
fran@heaneyandsmall.com
Washington Chapter
Missouri Chapter
Mary C. Wolney
Timothy J. Murphy
Seattle, Wash.
Kansas City, Mo.
marywolney@comcast.net
timothy.murphy@murphy
tobin.com
Wisconsin Chapter
Carol J. Wessels
New Hampshire Chapter
Wauwatosa, Wis.
Kerri Glover
caroljwessels@gmail.com
Concord, NH
kglover@laboelaw.com
New Jersey Chapter
Sharon Rivenson Mark, CELA
Jersey City, N.J.
rivensonmark@comcast.net
BOARD OF DIRECTORS: 2010–2011
DIRECTORS
Robert C. Anderson, CELA, CAP
Marquette, Mich.
rcanderson@upelderlaw.com
Rajiv Nagaich, Esq.
Federal Way, Wash.
rnagaich@ElderCounselor.com
Richard A. Courtney, CELA, CAP
Jackson, Miss.
rcourtney@frascourtlaw.com
Marie Elena Puma, Esq.
Islandia, N.Y.
mepuma@vjrussolaw.com
Timothy P. Crawford, CELA, CAP
Racine, Wis.
tpc@execpc.com
Catherine Anne Seal, CELA
Colorado Springs, Colo.
cas@kirtlandseal.com
Hyman Darling, CELA
Springfield, Mass.
hdarling@baconwilson.com
Wendy H. Sheinberg, CELA
Garden City, N.Y.
wsheinberg@davidowlaw.com
H. Amos Goodall, Jr., CELA
State College, Pa.
goodall@centrelaw.com
Kristi Vetri
Belleville, Ill.
kristiv@mindspring.com
Sharon Kovacs Gruer, CELA, CAP
Great Neck, N.Y.
skglaw@optonline.net
Kathleen T. Whitehead, CELA
San Antonio, Texas
Franchelle Millender, CELA, CAP
Columbia, S.C.
millender@srmlaw.com
Shirley B. Whitenack, Esq., CAP
Florham Park, N.J.
sbw@spsk.com
CONSULTANTS
Brian W. Lindberg
Public Policy Advisor
Washington, D.C.
Hugh K. Webster, Esq.
Legal Counsel
Washington, D.C.
2010 Student Writing Competition First-Place Winner
Clarissa Bryan
Interview by Barbara Gilchrist, Esq.
Clair Bryan became interested in Elder Law after assisting her torts
professor with research on nursing home contract arbitration.
C
larissa Bryan, who goes by Clair, was a thirdyear law student at Georgia State University
College of Law when she wrote her 2010
Student Writing Competition first-place paper,
“Behind Closed Doors: The Use of Pre-Dispute Arbitration
Agreements in Nursing Home Admission Contracts.” Clair
graduated in December 2010. I interviewed Clarissa on
October 28, 2010.
BG: What inspired you to go to law school?
CB: It was a mixture of things. I started in science and
have a bachelor’s and master’s in biochemistry. My passion
for the elderly and disabled started in my early teens. My
father worked in a company that had asbestos and they
knew it. While working there, my father was exposed to
the substance and he now has asbestos in his lungs and
it continues to be hard for him to breath. He did get a
settlement, but it was not a lot. This made me want to help
people who are underrepresented.
BG: Why did you choose Georgia State University?
CB: I grew up in South Carolina and I went to Georgia
(State) where I stayed in Atlanta and worked for several
years. I actually started law school at John Marshall in the
evening program and then transferred to Georgia State where
there are more opportunities for clinics and other activities.
BG: Your paper looks at nursing home contract arbitration agreements. What sparked your interest in this?
CB: I became interested in my first year of law school.
My torts professor was doing a paper on the topic and I
was helping with the research. I was shocked by the abuse
that was discussed in the paper. This notion stayed with
Barbara Gilchrist is on the faculty of Saint Louis University
School of Law. She is a member of the NAELA Academic
Subcommittee and the NAELA Journal Editorial Board.
me. When I took Law and Elderly and had to write a paper, I
continued this research.
BG: In your paper, you argue
that these arbitration agreements
should never be enforced when
there has been a wrongful death.
Are you saying that such clauses
should not be allowed at all, or
that there should be a post-injury
determination of whether arbitraClarissa Bryan, who
tion is an adequate remedy?
holds a master’s in
CB: I really disagree with the
expansion of contract notions into biochemistry, graduated
from Georgia State
nursing home admission agreeUniversity College of Law
ments. Nursing home residents do in December 2010.
not have bargaining power. These
clauses should be seen as unconscionable, especially as a
prerequisite for admission.
I understand that a judge could be the gatekeeper to
determine whether arbitration is adequate. There is the
benefit of the process being faster. This might be OK if the
injury is small. But I am very concerned about whether
anyone knows what they are signing and whether there is a
choice.
BG: Do you think there is any value to consumers or
society as a whole to allow enforcement of nursing home
arbitration clauses? If yes, how would this be implemented?
CB: The value of arbitration is that it is a speedy alternative to litigation and cheaper. When there is no grievous
injury, it might encourage reporting or making a claim.
BG: As you researched this topic, what surprised you?
CB: I was shocked at the information about the level
of abuse and that it is not public knowledge. Some of the
23
May is National Elder Law Month
E
lder Law attorneys throughout the country contribute a
great deal to their communities by educating seniors about
their legal needs and by providing pro bono services. By
setting up activities in your area, you can help spread the word
about the mission of NAELA — to establish NAELA Members as
the premier providers of legal advocacy, guidance, and services
to enhance the lives of seniors and people with disabilities.
What Can You Do?
Reach out to the community and your clients in a variety of
ways that will benefit not just the community, but also your Elder
Law practice. Here are a few ideas:
• Conduct a Living Will/Health Care Proxy Day
• Host a discussion on nursing home resident rights and
admissions procedures
• Give a seminar on financing long-term care
• Organize a seminar at your local senior or community center
• Provide pro bono services
• Lecture at a local law school
• Write an article or editorial for your local newspaper
• Co-sponsor a program with your local state bar
Clarissa Bryan, continued from previous page
cases seemed unbelievable. For example, a woman was
found emaciated, with bedsores and maggots around her
vagina and anus. In other situations, there were bedsores
so deep that bones are exposed. I was also shocked by the
frequency of sexual abuse.
BG: Do you have a general interest in the area of Elder
Law?
CB: Absolutely. I worked on the Senior Citizens hotline
for Atlanta legal services last summer. I also did some ridealongs with the (Long-term Care) Ombudsman Program.
This coming summer I have accepted a position working at
the Senior Citizen’s Law Project, which will give me exposure to the wide range of issues encompassed by Elder Law.
BG: Are you considering Elder Law as a career path?
CB: Yes. I am considering a certificate in gerontology
through the sociology department. I am not sure where I
will land. I did work for the district attorney, but prosecution is not really for me. I’m leaning more toward private
practice and academia. It would also be wonderful to be a
part of some policy work.
BG: Where do you hope to be, work-wise, in five years?
CB: I definitely see myself as an elder advocate, so I will
24
What Can NAELA Do to Help You?
Log on to www.NAELA.org, then go to Meetings and Events >
National Elder Law Month and click on Toolkit. Here you’ll find
materials you can customize for your event, such as:
• Customized brochures on many Elder and Special Needs
Law topics for use during your presentation as well as in your
office
• Sample letters to send to local organizations inviting them to
your event
• Instructions for holding a Living Will/Health Care Proxy Day
• Sample press releases you can send to local media about
the event you’re holding
• Guidelines for talking to the media
• Sample presentation outline
• Topics to consider for a presentation
Let NAELA Know About Your Event
Let NAELA know about the event you hold for National Elder Law
Month. We’ll publish a summary of events in an upcoming issue.
And don’t forget to take some pictures. Send your information to
Nick Baker, Communications Specialist, nbaker@naela.org. n
be doing something in this area.
BG: What has been a highlight of your law school
experience?
CB: Winning this award and getting recognition for
what I am trying to do to bring attention to Elder Law.
Also, I recently went to China for BIT Life Science’s
First Annual World Congress of Forensics, where forensic
scientists made presentations. I was there with other law
students from Georgia State and made a presentation calling for an end to the coroner system because they are unable to detect suspicious death, particularly for the elderly
who have been abused.
BG: What are your interests or activities outside of law
school?
CB: I love cooking (used to work as sous chef ), yoga,
and hanging out with my two dogs. In my spare time I
also enjoy hosting dinner parties and spending time with
friends and family. My other hobbies include drawing,
writing poetry, and gardening.
You can find Clair Bryan’s paper along with seven more published in the 2010 NAELA Student Journal. The NAELA
Student Journal is published online at www.NAELA.org, go
to Library > Publications.
Hill Day 2011
Now Is the Time to Speak Up
By Edwin M. Boyer, CAP
W
hether you felt energized by the GOP
tidal wave, or shellacked by the November election, there is no denying that
Washington is different in 2011. How
different? Over 100 Congressional members different.
In January, more than 100 new representatives were
sworn into the 112th Congress. By now, the new leadership has warmed up the gavel and the freshman legislators
are settling into their responsibilities.
As nearly a fourth of the members of the House are
new to Congress, it is safe to assume most of them have a
limited understanding of the complex federal policy that
affects our clients and the Elder and Special Needs Law
practice.
Well, lucky for them, a group of educated and persistent
Elder and Special Needs Law attorneys are preparing to descend upon Washington, and I urge you to be a part of the
group. On March 28-29, NAELA will host its 2011 Hill
Day giving our members a unique opportunity to meet
with Congress and learn about federal policy making.
The purpose of Hill Day is to educate representatives
on the issues important to our aging clients and our clients
with special needs, and advocate for NAELA’s public policy
priorities.
As a veteran Hill Day attendee, I understand the value
of explaining the importance of issues like pooled trusts to
Congressional staff who may have previously dismissed (d)
(4)(A) and (d)(4)(C) issues as confusing jargon. With the
Older Americans Act up for reauthorization, enlightening
Hill staff about the value of OAA services to your clients,
their constituents, will lead to needed improvements and
Ed Boyer, CAP, Sarasota, Fla., is NAELA President-Elect.
“There’s nothing like being able to tell a client: ‘I discussed your
issue with our Congressional representatives in Washington,
D.C.’”
­— Mary Alice Jackson, NAELA member
help protect OAA funding. A friendly conversation with a
cautious new member of Congress could solidify his or her
support for bipartisan legislation, like the Achieving a Better Life (ABLE) Act, which addresses the needs of clients
with special needs. Finally, it is no secret that federal debt
reduction is a top Congressional priority. It is our responsibility to convince representatives to protect the federal
programs our clients rely on.
The shift in Congressional leadership will undoubtedly
usher in new challenges for NAELA members and clients.
But with a host of new representatives, NAELA members
have the unique opportunity to educate all representatives,
new and old, to ensure they value NAELA, our clients, and
our federal policy priorities.
The 2011 Hill Day is the ideal way to create these important Congressional relationships.
Registration is open on the NAELA website. There is no
cost to attend. Go to Meetings and Events > Hill Day, for
the link to register. But simply signing up for Hill Day will
not catapult your advocacy into “Jimmy Stewart/Mr. Smith
Goes to Washington” status. For you, and your clients, to get
the most out of your Hill Day experience, preparation is
key. Begin informing yourself of the federal issues you feel
are most important to your practice. Contact your representative’s Washington, D.C., office to make an appointment for your visit. When you register, NAELA’s Public
Policy staff in Washington will provide additional guidance
on how to prepare for your trip.
With your participation on March 28-29, Washington will experience our own NAELA tidal wave when
elder lawyers from across the country come to Capitol
Hill to educate, advocate, and protect our clients from a
shellacking. n
25
PRACTICE MANAGEMENT/PRACTICE DEVELOPMENT
When Alzheimer’s Disease
Affects a Client
By James Sullivan, MAS, CPA, and Janet Sullivan, Esq.
J
ack is agitated. He has been a client for 10 years, and
is now 80 years old. He lost his wife of 40 years two
years ago.
Nine months after his wife died, Jack met with
you to discuss changes to his estate plan. He wanted
his will, living trust and powers of attorney to be reviewed
and updated. The process took several meetings with much
discussion and consideration by Jack of the various alternatives. Final documents were executed at your last meeting
a year ago. During the entire process Jack was engaged and
paid close attention. Today, he is easily distracted. While he
has trouble remembering recent events, he can recall small
details about events that happened long ago. He has come
to you to change his estate plan to eliminate his eldest
son’s inheritance. He is obsessed with an $8,000 loan he
made to his company (now run by his eldest son) 25 years
ago. He strongly suspects that the loan was never re-paid
and wants you to confirm his suspicions by “digging into
the details.” Jack becomes agitated when you ask him to
consider whether the time and expense of tracking down
the transaction is worth the effort. He tells you to “get to
work on this.” At the end of the meeting you observe that
Jack is having trouble filling out the check for your consultation fee and even pauses for a few moments in the middle
of signing his name. You leave the meeting concerned. The
project will take many hours of professional time and result
in a large bill to Jack that can’t be justified. Previously, Jack
had expressed pride in how well his son was running the
company but now is suspicious. You’ve known Jack a long
James Sullivan is a member of the American Institute of
Certified Public Accountants ElderCare/PrimePlus Task Force.
Janet Sullivan is a sole practitioner and a NAELA member
who specializes in Medicaid and estate planning.
26
time. Jack’s personality and his mental abilities are changing right before your eyes.
What actions, if any, should an Elder Law attorney take
if he or she suspects a client has diminished mental capacity? In an aging society, this is not a hypothetical question.
The Elder Law attorney’s client base is living longer. Along
with the benefits of aging can come challenges such as
diminished mental capacity that may interfere with the
attorney-client relationship. The problem will grow in the
years ahead. Now is the time for practitioners to think
through these issues and the related practice management
implications.
Elder Law attorneys should never make a medical diagnosis, but it is important to have a basic knowledge of the
health challenges older clients may face. Just as you might
make office space changes to accommodate the physical
challenges of some older clients, you should also make
communication changes with clients to accommodate
sensory and cognitive impairments.
An Introduction to Dementia
Diminished mental capacity among the elderly is a complex issue that can have many causes. Dementia is one type
of diminished mental capacity. A diagnosis of dementia
requires a set of symptoms to be present (see sidebar, “10
Warning Signs of Alzheimer’s”).
More than 70 diseases and conditions can cause dementia. Alzheimer’s disease is a type of dementia. Although
rare, temporary dementia may be caused by, for example,
a urinary tract infection, substance abuse, or vitamin
deficiency. More commonly, dementia is a permanent,
progressive, and irreversible condition. According to the
Alzheimer’s Association’s 2009 Alzheimer’s Disease Facts
and Figures, Alzheimer’s is the most common cause of
dementia, present in 70 percent of cases.
Alzheimer’s consists of three stages: mild or early stage,
moderate, and severe or late stage. As the disease progresses, the symptoms become more obvious. During the
mild stage, an Elder Law attorney may first notice that the
client is undergoing changes in personality and experiencing memory loss. In particular, the client may have trouble
remembering recent events but be able to recall events that
took place years ago.
Communication problems also become evident. These
problems include trouble finding the right word, difficulty
understanding what a word means, and problems paying
attention. Personality changes include becoming more
easily upset and worried than normal and believing other
people are hiding things. The client may also have more
trouble than usual managing finances. This is because he or
she slowly loses the ability to solve simple math problems,
to balance a checkbook, and to plan and organize.
It is during the mild stage that the Elder Law attorney may become concerned and question whether the
problems are beginning to interfere with the professional
relationship.
Practice Management Implications
Capacity not only affects the validity of documents
prepared for a client and other legal services, but at a more
basic level whether the individual you are meeting for the
first time can even become your client. An individual must
have capacity to enter into an attorney/client relationship.
For this reason an Elder Law attorney should consider
documenting a client’s capacity as part of standard intake
procedure. Documentation of capacity can be as simple
as a physician’s note or a more extensive assessment by a
clinician depending on the nature of services being provided. The nature and extent of the documentation should
not only reflect the legal standard of capacity for a given
situation but also other circumstances in the client’s life
(e.g. family relationships) that may later give rise to a legal
challenge to the work being provided to the client.
For existing clients, while it’s often unpleasant, the Elder
Law attorney may need to have a discussion with the client
when the attorney first detects problems. Even long-term
clients may resent your broaching the topic and challenge
your qualifications. But you are not making a diagnosis;
you are merely discussing the problems you are experiencing in working with the client. You could very well lose the
Communication Skills
Experts provide the following tips for communicating with a
person who has Alzheimer’s. The tips may or may not apply
to an individual depending on the severity of the client’s
Alzheimer’s:
• Use familiar words and short, simple sentences.
• Look directly at the person when talking to him or her.
• Speak slowly.
• Be patient — give the person time to respond.
• Ask simple questions, one at a time.
• Give directions simply, one at a time.
• Repeat the question exactly the same way.
• Do not argue, confront, or correct.
• Limit distractions — simplify the environment.
• Don’t test the person’s memory by saying, “Don’t you
remember?”
• Be specific — for example, use the person’s name rather
than referring to “your daughter.”
• If necessary, try again later.
engagement. You may be fired or need to resign because
you believe the situation has become untenable. The
stakes are high. When a new project for the client involves
drafting documents, the validity of those documents and
whether they would sustain a challenge based on the client’s lack of capacity at time of execution is at stake. You
should consider whether documentation of capacity for the
new services is warranted. Even in situations where your
relationship with the client has not reached this point and
diminished capacity is not suspected, or dementia is at an
early stage, you may decide to seek the client’s written permission to talk to the client’s agent under a validly executed
power of attorney should it become necessary.
Enhancing Your Client’s Capabilities
It is the Elder Law attorney’s very familiarity with the
client over a long period of time that provides a baseline for
recognizing changes in the client’s behavior. The Elder Law
attorney may have to decide if a client’s changing behavior
and diminishing mental capacity are interfering with the
attorney/client relationship. The Elder Law attorney has to
rely on his or her best professional judgment as to which
actions to take.
When problems first become apparent, the Elder Law
attorney may consider:
27
• Some problems may be only temporary. The recent death
of a spouse, changes in medications, illnesses, and infections may cause temporary problems. If the problems
appear to be temporary, suggest rescheduling the meeting or cutting the meeting short. Recommend the client
delay making decisions.
• If an older client is exhibiting ongoing problems, consider changing how you communicate to accommodate
your client’s limitations. If it appears the client is strug-
gling, it may be best to shorten the meeting and suggest
you finish at a later date (see sidebar, “Communication
Skills”).
You may also consider making changes to your practice procedures to accommodate a client’s diminished
capabilities:
• Make meetings shorter but more frequent.
• Schedule meetings during the time of day the client
tends to be more comfortable and aware.
10 Common Ailments of the Elderly Client
By John Lansing, Esq.
Understanding our clients’ array of medical conditions can be
a daunting prospect. Caregivers and doctors observe the same
conditions and often reach the same conclusions, but describe
them in very different ways. In my own experience, it took a host
of doctors several years to diagnose my mother with Lewy Body
disease. It took the owner of her future board and care about
two hours to make the same diagnosis and to explain in practical terms what lay ahead for both of us. At the time I found that
deeply reassuring. Similarly, a client in a moment of crisis can
draw great comfort and strength from an attorney who not only
provides knowledgeable counsel but who can converse easily
about painful medical issues. To that end, 10 common ailments
are introduced below, with a practical focus on typical symptoms
and behaviors.
1. Dementia
Dementia is the most common diagnosis among elderly clients.
Dementia symptoms include cognitive impairment, loss of language, combative behaviors, sleep issues, wandering, paranoia,
dis-inhibition (hyper sexualized, verbally abusive, violent), hallucinations, depression, and flat or inappropriate affect. Having a
diagnosis of dementia doesn’t tell you very much beyond the fact
that there’s a cognitive problem. The issue is what’s causing the
dementia. Dementia can be the result of something temporary
like a bad reaction to medication, or it can be the result of something serious like onset of Alzheimer’s disease.
2. Stroke (and TIA)
A stroke is a brain injury caused by a permanent cutoff of blood
flow to a region of the brain. Sometimes strokes are preceded
John Lansing is a NAELA member practicing in Woodland Hills,
Calif. This article was originally published in the Young/New
Attorneys Section newsletter.
28
by mini-strokes, called transient ischemic attacks (TIAs), which
cause a temporary interruption of blood flow to the brain. The effects of a stroke depend on where the injury occurs. Generally, a
stroke in the left side of the brain affects movement on the right
side of the body, along with communication and memory. Strokes
on the right side of the brain affect the left side of the body, along
with spatial and perceptual abilities. Symptoms can include
lethargy, confusion, slurred speech, numbness or tingling, vision
problems (double vision), and drooping on one side of the body
(left more often). Symptoms of a TIA can last only a few hours
and indicate a bigger stroke may be coming.
3. Alzheimer’s Disease
Alzheimer’s disease is the most common cause of dementia in
people over 65, although it can also manifest at a younger age.
Symptoms include a decline in memory, thinking, and ability to
function. An important symptom of Alzheimer’s is the tendency
to confuse identities. This can be particularly difficult for families
and caregivers who love the patient but eventually find themselves in a relationship with someone who no longer recognizes
them. The only way to diagnose Alzheimer’s with 100 percent
accuracy is to do an analysis of brain tissue (autopsy). There is no
cure and the condition is irreversible. The average span for the
disease is seven to nine years.
4. Dementia with Lewy Bodies
Dementia with Lewy Bodies, also known as Lewy Body Disease,
is a progressive degenerative disease that manifests with symptoms like Alzheimer’s and Parkinson’s disease. There’s no symptom that’s purely specific to Dementia with Lewy Bodies, which
means the disease is often misdiagnosed. Symptoms include
tremors, awkward gait, cognitive decline, behavioral irregularity,
memory failure, and visual hallucinations. The disease typically
appears in adults under 65. It is not a well-known condition,
• Focus on just one or two topics per meeting.
• Invite the client to bring a spouse or a trusted family
member to the meeting.
• Follow up each meeting with detailed notes to send the
client. For clients with more severe memory problems
send a copy of meeting notes (with the client’s permission) to a family member.
• In the notes, be clear regarding who is responsible to take
what action and any agreed-upon deadlines.
• It may be useful to assign an assistant to make reminder
calls to the client the day before a meeting.
• Diane Smith of the Rush Alzheimer’s Disease Center
recommends meeting the client in his or her home. For
individuals experiencing memory loss, familiar surroundings are best. In addition, the client does not have to
deal with the stress of getting ready for the meeting and
driving to the office and arriving there on time. All of
that takes energy that may make it difficult for the client
to focus.
although it is beginning to appear on doctors’ radar. The average
life span is five to seven years from onset. There is no cure; the
disease is irreversible and fatal.
Caregivers report that it impacts a person’s abilities very aggressively, more rapidly than Alzheimer’s disease.
romuscular disease that attacks nerve cells and pathways in the
brain and spinal cord. Nerve cells and muscles waste away over
time, leaving the person’s brain and senses completely intact
while their muscles atrophy and are rendered useless. People
may become aware of the disease when their hands become
clumsy, they experience difficulty speaking or swallowing, or they
experience weakness in the legs.
5. Traumatic Brain Injury
Traumatic brain injury (TBI) occurs when there is a severe blow
or jolt to the head resulting in brain damage. TBIs frequently occur as a result of car accidents. A TBI may result in mild, moderate, or severe changes in the following areas: thinking, speech,
physical functions, and social behaviors. The condition sounds
vague because the range of injury and possibility of recovery is
case specific. Each TBI is different from the other. A TBI can complicate any future diagnosis (as in my experience with my mother,
where a TBI suffered in 1998 made the Lewy Body diagnosis that
much harder to pinpoint).
6. Parkinson’s Disease
Parkinson’s disease is caused by degeneration of cells in the
brain stem. The most common symptom is tremor in the hands,
along with stiffness, slowness of movement, loss of motor skills,
shuffle in gait (the manner in which you walk) and impaired balance and coordination. There is no cure and the condition ends
in death. Close to half of elderly Parkinson’s disease patients are
also afflicted by depression.
7. Normal Pressure Hydrocephalus
Normal Pressure Hydrocephalus (NPH) is a buildup of cerebrospinal fluid in the brain, often caused by a stroke or head injury
from a fall. It’s an important condition because, like Dementia
with Lewy Bodies, it’s not well known and it can be misdiagnosed
as Alzheimer’s or Parkinson’s disease. Symptoms include gait
instability, urinary incontinence, and dementia. Misdiagnosis is
significant because NPH can be effectively treated with surgical
implantation of a shunt to reduce the pressure caused by the
buildup in fluid.
8. ALS (Amytrophic Lateral Sclerosis)
ALS, also known as Lou Gehrig’s disease, is a devastating neu-
9. Huntington’s Disease
Huntington’s disease, also called HD, is an inherited brain disorder that results in a loss of physical control and mental capacity.
People with HD exhibit quick, dance-like, uncontrollable movements called “chorea” (pronounced like Korea). If your parent has
HD, you have a 50 percent chance of inheriting the HD gene. If
you have the HD gene, you will develop the disease eventually.
It does not skip generations. The disease has a span of 10-25
years. Over time, symptoms can include diminished memory and
processing ability, along with difficulty controlling impulses and
emotions.
10. Depression
Depression in the elderly may be due to any number of causes,
from the death of a loved one to isolation and loneliness. Depression, no matter what the cause, is undertreated in the elder
population. Signs of depression can include any of the following
sustained for longer than a two-week period: fatigue, listlessness,
loss of interest in people or activities once enjoyed, becoming
easily agitated or angered, unwanted weight gain or loss, too
much sleep or not enough, and more. Much of the sluggishness
and lack of involvement in their surroundings seen in the elderly
can be attributed to depression. n
Sources
Injuries and Disorders in the Elderly, by David L. Kaufman, M.D.,
2003 Matthew Bender & Company, Inc., a member of the LexisNexis Group.
“It Looks like Alzheimer’s or Parkinson’s Disease But Is It?” by
Sandra G. Boodman, AARP Bulletin Today, December 11, 2009
Interviews with Board and Care Owners Linda Gutierrez, Esther
Morales and Monica Hawes in Los Angeles, Calif.
29
FEATURED MEMBER
10 Warning Signs of Alzheimer’s Disease
According to the Alzheimer’s Association, Alzheimer’s is a
progressive disease of the brain that causes problems with
memory, thinking and behavior. The 10 warning signs of
Alzheimer’s include:
1. Memory loss.
2. Difficulty performing familiar tasks.
3. Problems with language.
4. Disorientation to time and place.
5. Poor or decreased judgment.
6. Problems with abstract thinking.
7. Misplacing things.
8. Changes in mood or behavior.
9. Changes in personality.
10. Loss of initiative.
When Alzheimer’s Interferes with the Attorney/
Client Relationship
Elder Law attorneys must be familiar with the ethics
rules in their jurisdiction that apply to clients with diminished capacity. Each state’s professional responsibility
rules mandate the minimum requirements of conduct for
attorneys to maintain their licenses.
NAELA’s Aspirational Standards for the Practice of Elder
Law specifically addresses client capacity. (Available on www.
NAELA.org > About > Our Standards > NAELA Members
Stand Out. See Section E.) These Standards build upon and
supplement state’s professional responsibility rules. At its
core is the reminder to attorneys that a client with diminished capacity is to be treated with attention and respect.
Certain decisions may be within the client’s competence
while others are not. To the extent the attorney is working
with the client’s legal representative, the represented person
should be given the status of the client as far as possible
particularly with respect to communication.
Additionally, the attorney must be familiar with state
statutes governing the reporting of elder abuse and neglect.
You may become concerned that your client, due to diminished capacity, is subject to elder abuse, neglect, or even selfneglect. What action should you or can you take? To what
extent are you violating attorney/client privilege by divulging
confidential information in order to initiate protective action? The American Bar Association Model Rules of Profes-
30
sional Conduct, paragraph (b) of Rule 1.14 permits the
attorney to take reasonably protective action if the attorney
reasonably believes that the client is at risk. Note that the
rule does not require the attorney to take action. Protective
actions can include contacting family members, utilizing a
reconsideration period to permit clarification or improvement of circumstances, and even contacting adult protective
agencies when necessary. If any actions are undertaken, the
attorney should do so cautiously and with deference to the
client’s wishes and respect for the client’s family and social
connections. If the attorney undertakes protective action,
paragraph (c) of Rule 1.14 permits the attorney to reveal
information about the client, but only to the extent reasonably necessary to protect the client’s interests. The comments
illustrate further the factors the attorney should consider
when disclosing client information. Most telling is the
concluding statement, “The lawyer’s position in such cases is
an unavoidably difficult one.” In a similar vein as the ethics
rules, the Illinois Elder Abuse and Neglect Act excludes attorneys from the groups who are mandatory reporters even
though other professionals such as public accountants are
listed. The Act protects from criminal or civil liability or professional disciplinary action any person who files a report in
the belief that it is in the alleged victim’s best interest. Attorneys, while not mandatory reporters, are permissive reporters
and will not be subject to disciplinary action if reasonable
action is taken to protect a client. It should be noted that
Illinois adopted Model Rule 1.14 effective January 1, 2010.
Conclusion
Professionally, Elder Law attorneys face challenges
providing services to clients with mild to moderate Alzheimer’s. But while the challenges are great, so is the opportunity for professional satisfaction by learning to work
successfully with vulnerable clients and their families. n
This article was originally published by the American Institute
of Certified Public Accounts, Inc., in the Journal of Accountancy. Used with permission with some changes that make this
relevant to Elder Law attorneys.
Congratulations to the Newest Certified Elder
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