Lawrence A. Frolik - Elder Law in a Nutshell

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University Professor, New York University
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Professor of Law Emeritus, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. Benjamin Spencer

Justice Thurgood Marshall Distinguished Professor of Law
University of Virginia School of Law

James J. White

Robert A. Sullivan Professor of Law Emeritus
University of Michigan

Elder law

In a nutshell

Seventh Edition

LAWRENCE A. FROLIK

Professor of Law Emeritus
University of Pittsburgh

RICHARD L. KAPLAN

Guy Raymond Jones Chair in Law
University of Illinois

The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

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Copyright 1995 West Publishing Co.

West, a Thomson business, 1999, 2003, 2006

2010 Thomson Reuters

2014 LEG, Inc. d/b/a West Academic

2019 LEG, Inc. d/b/a West Academic

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West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license.

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ISBN: 978-1-64020-906-0

In loving memory of my parents
L.A.F.

To my parents, whose memory is a blessing
R.L.K.

Preface

This brief volume is intended to introduce the reader to one of the fastest growing and significant legal specialties-elder law. This title increasingly is used to describe the multitude of legal concerns faced by older Americans as they plan their later years and seek to maximize their personal autonomy. These concerns range from age discrimination in employment, to housing alternatives and options, to ensuring control of ones financial affairs, to financing ones medical needs, and ultimately to determining the scope of medical care that one desires. In many ways, elder law is a response to extended life expectancy, in contrast to more traditional estate planning with its largely after-death orientation.

Accordingly, this book should be of interest to anyone who has regular contact with older persons: lawyers and law students needing an overview of some particular subject, social workers, certain medical personnel, gerontologists, retirement planners, and the like. We address this book to all these audiences with the hope that it clarifies the issues and sets forth a framework for informed action and understanding.

The authors express their appreciation to their respective assistants, Patricia Blake and Molly Lindsey, for their inestimable help in bringing this project to fruition, and to their families, for their interest, encouragement, and support.

Lawrence A. Frolik

Richard L. Kaplan

Pittsburgh, Pennsylvania

Champaign, Illinois

May 2019

Outline

1.1 The Development of Elder Law as a
Specialty

. Ethical Considerations in
Dealing with Older Clients

B. The Right of a Competent Patient
to Die

E. Termination of Artificial Nutrition
and Hydration

I. Living Wills Are Valid and Operative Only if Communicated to the
Attending Physician

3.6 Statutory Substitute Health Care
Decision Making

3.7 Termination of Life-Sustaining
Treatment

A. In re Quinlan (355 A.2d 647
(N.J.1976))

B. Barber v. Superior Court of State of California (195 Cal.Rptr. 484
(Cal.App. 2 Dist.1983))

C. Termination Based upon Prior Statements of the Incapacitated
Patient: Substituted Judgment

D. Termination of Life-Sustaining Treatment When the Patient Has
Not Made Prior Statements of Intent: Best Interest Test

C. Assistance for Lower-Income
Enrollees

C. Medigap Insurance and Managed
Care Options

C. Qualified Medicare Beneficiary
Program

C. Home and Community-Based
Services

5.8 Transfers, Trusts and Medicaid
Eligibility

6.5 Other Key Policy Provisions and
Options

7.5 Enforceability of Admissions
Agreements

B. Freedom from Abuse and
Restraints

E. Accommodation of Individual
Needs

7.9 NHRATransfer and Discharge
Rights

7.13 NHRAProtection of Residents
Funds

. Housing Alternatives and
Options

B. The Effect of Ownership
Arrangements

8.6 Other Home Equity Conversion
Mechanisms

8.7 Congregate Housing for Older
Residents

10.5 Revocable Trusts as Testamentary
Devices

14.6 Special Penalty Taxes on Periodic
Payments

A. Enforcement by Withholding
Taxes

15.4 Employees: Proving Illegal
Discrimination

16.2 Incidence of Elderly Abuse and
Neglect

Table of Cases

References are to Pages

Barber v. Superior Court of State of California, 47

Caruso v. Peat, Marwick, Mitchell & Co., 391

Cruzan v. Director, Missouri Department of Health, 20, 49

Gallenstein v. United States, 203, 263

Griswold v. Connecticut, 46

Hahn v. Commissioner, 203, 263

Kimel v. Florida Board of Regents, 391

McDonnell Douglas Corp. v. Green, 394

Quinlan, Matter of, 20, 45

Schloendorff v. Society of N.Y. Hospital, 20

Superintendent of Belchertown State School v. Saikewicz, 22

Washington v. Glucksberg, 51

Western Air Lines v. Criswell, 398

Elder Law

In a nutshell

Seventh Edition

Chapter

Introduction: The Scope and Diversity of Elder Law

1. 1.1 The Development of Elder Law as a Specialty

The development of a specialty devoted to the legal needs of older Americans has several distinct origins. First, people are living longer due to medical advances, better nutritional habits, and improved living conditions generally. People who reached age 65 in 2016 had an average remaining life expectancy of 18 years for males and 20.6 years for females. As a consequence, there are more people attaining ages that have historically been characterized as old. For example, the cohort of persons aged 6569 years increased from the 2000 to the 2010 Census by 30.4%, while the cohort of persons aged 85 years and older, the so-called old-old, increased by 29.6% during this same period.

Second, increasing age usually means increasing medical costs. Since 1965, muchthough not allof the medical care costs of older persons has been a Federal responsibility. The increasing numbers of older persons combined with significantly escalating costs of medical care generally have caused the scope of this Federal responsibility to explode. As a result, bureaucratic rules and regulations have been promulgated to implement and manage this Federal responsibility over an ever-enlarging patient pool.