AMERICAN BAR ASSOCIATION
COMMISSION ON LAW AND AGING
INFORMATIONAL REPORT TO THE ABA HOUSE OF DELEGATES
The mission of the ABA Commission on Law and Aging is to serve as the collaborative, interdisciplinary leader of the Association’s work to strengthen and secure the legal rights, dignity, autonomy, quality of life and quality of care of aging persons. It carries out this mission through research, policy development, technical assistance, advocacy, education, and training. The year 2012 was the 32nd year anniversary of the Commission.
As a program of the Fund for Justice and Education, the 15-member Commission is composed of lawyers, judges, policy experts, doctors, other health and social services professionals, and advocates, bringing an interdisciplinary perspective to legal issues affecting older Americans.
The work of the Commission focuses on four types of activities:
(1) Policy and practice research and development, including
- Successfully proposing five policy resolutions on key issues affecting older persons, adopted by the ABA House of Delegates at the 2011 and 2012 annual meetings;
- Developing seven major grant-funded policy and practice publications during FY 2011-12;
- A wide range of state and federal efforts to improve law, policy, and practice in guardianship, elder abuse, capacity assessment, health decisions law, and international human rights of older persons.
(2) Education (Professional and Public), including:
- Co-chairing of the planning committee for our annual National Aging and Law Institute in Washington, DC, November, attended by over 300 legal services lawyers, elder law attorneys, and aging network advocates;
- Conducting quarterly Elder Law Essentials webinars, produced through the ABA Center for Professional Development;
- Presenting more than 90 professional education presentations to legal and non-legal disciplines.
(3) Technical assistance, including:
- Providing more than 2000 technical assistance service responses in the last year to legal, aging, and media organizations and professionals;
- Providing legislative tracking charts, technical and educational and resources on our website in the areas of: Guardianship; Elder Abuse, Neglect & Exploitation; and Health decisions law.
(4) Coordination and collaboration, including
- Within the ABA, bringing together ABA entities interested in aging issues for quarterly ABA Elder law networking information calls;
- Networking with more than 30 state Elder Law bar sections;
- Working in advisory and collaborative capacities with more than 40 governmental and non-governmental organizations. This includes groups such as AARP, the National Guardianship Network, the National Academy of Elder Law Attorneys, the National College of Probate Judges, the U.S. Administration on Aging, and others.
The Commission’s work in the past year has focused especially on the following areas:
1. National Support. The Commission…
- Completed its third year as a key partner in the National Legal Resource Center (NLRC), funded by the U.S. Administration on Aging. The project provides national support in the form of education, technical assistance, practice tools, and current information and analysis to legal services and aging network programs serving the elderly.
- Grew its Elderbar list serve for disseminating the work of the NLRC by 8.6% in the past year to 860 professionals in law and aging and carried 354 postings in the past year.
- Grew its Collaborate list serve under the NLRC by over 14% in the past year to 281 members. This list serve expands awareness of alternative dispute resolution on issues involving older Americans.
- Managed two websites that serve as resource portals for the NLRC. The Commission website received nearly 100,000 page visits and the NLRC website (www. NLRC.aoa.gov) more than 400,000 in the past year. Created new or updated postings for the NLRC website at a rate of more than five per week.
- Published bi-monthly our signature e-journal BIFOCAL, which serves as a critical vehicle for spreading awareness of resource in law and aging – the goal of our work as part of the NLRC. BIFOCAL continues to grow in circulation, currently with 1425 formal subscribers an increase of 6.3% in the past year, plus nearly 7,000 hits on average in the first two weeks after publication.
2. Guardianship and Capacity Issues. The Commission…
- Helped to culminate the work of the 2011 National Guardianship Summit, as one of its key co-sponsors, through transforming the conference’s commissioned papers and recommendations into a special issue of the University of Utah Law Review.
- Successfully brought before the ABA House of Delegates a groundbreaking set of Standards and Recommendations on guardian decision-making and performance standards for adoption in August 2012.
- On behalf of the National Guardianship Network, received funding (from the State Justice Institute and the Borchard Foundation) to promote the creation of Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS) through seed grants to state courts. This will implement one of the key recommendations of the 2011 Guardianship Summit. A request for proposals, with a cover letter signed by key members of the Conference of Chief Justices and Conference of State Court Administrators, recently went to the highest court in each state.
- Completed a distribution campaign of three new Volunteer Guardianship Monitoring Handbooks for courts. We have established a working network of volunteer coordinators, while also responding to requests for technical assistance
- With the Commission on Disability Rights taking the lead, cosponsored an October Interdisciplinary Roundtable in New York on the concept of “supported decision-making” under the U.N. Convention on the Rights of Persons with Disabilities, as it applies to adults with intellectual disabilities. The two Commissions worked closely with the U.S. Administration on Intellectual and Developmental Disabilities. The facilitated Roundtable played a pioneering role in raising awareness on this topic in the U.S.
- Worked closely with Rush University Medical Center in Chicago to develop and complete an on-line training curriculum on capacity assessment of older persons, specifically targeting primary care physicians and other primary care health care professionals, to be officially launched in January 2013.
- With a new grant from AARP, began producing materials for a campaign in six states seeking passage of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. The Commission’s previous education efforts on the Act have already contributed to its adoption in 34 states, plus D.C. and Puerto Rico.
- At the invitation of the new federal Elder Justice Coordinating Council, prepared a white paper on preventing and reducing financial exploitation in the Social Security Representative Payee Program and the VA Fiduciary Program, and testified on the subject at the council’s inaugural meeting.
- Compiled and posted our annual online state guardianship legislative update. The updates feed into the statutory charts, which are on the Commission’s web page.
- Authored a chapter analyzing Western guardianship law in a new international volume on the future of elder law: “The Conceptualization of Legal Capacity of Older Persons in Western Law,” in Beyond Elder Law: New Directions in Law and Aging, Israel Doron & Ann M. Soden (eds.) Springer Publishing, 2012.
3. Elder Abuse and Exploitation. The Commission…
- Provides on our website background material, technical, and educational resources, including legislative tracking charts on Elder Abuse, Neglect, and Exploitation.
- At the invitation of the new federal Elder Justice Coordinating Council, prepared two white papers on Civil Legal Services and the Courts and testified on those subjects at the council’s inaugural meeting.
- Presented a plenary session on Elder Abuse at the 2012 National Aging & Law Institute in Washington, DC, with the U.S. Assistant Secretary for Aging and the Director of the Consumer Financial Protection Bureau Older Americans Office.
- Continued a first-ever collaboration with Wells Fargo Advisors by advising and participating in that company’s cutting-edge efforts to foster improvements in the ability of the financial industry, adult protective services, law enforcement, and other entities to detect and respond to elder abuse.
- Provided consultation to U.S. Government Accountability Office staff conducting several studies on elder abuse
- Successfully presented a policy proposal to the ABA House of Delegates in August 2012, supporting court-focused elder abuse initiatives across the states, based on an in-depth study of such initiatives completed by the Commission for the Department of Justice.
- Was invited to participate in the invitation-only White House World Elder Abuse Awareness Day event.
- Served as advisory editor to a 2012 theme issue of Generations (the Journal of the American Society on Aging) on the subject of financial capacity and the elderly; and wrote three articles for the issue: “Financial Decision-Making for Adults Lacking the Capacity to Make their Own” by David English; “An Overview of Elder Financial Exploitation” by Lori Stiegel; and “Three Legs on the Ground: Retirement Income Essentials for LGBT Adults,” by David Godfrey.
5. Health Decisions/Advance Planning. The Commission…
- Successfully sought adoption of new policy before the House of Delegates in August 2012, supporting congressional action to amend the Patient Self-Determination Act to strengthen support of patients’ health care advance planning options.
- Completed publication of an on-line, multi-state health care power of attorney and booklet entitled, Giving Someone a Power of Attorney for your Health Care. A Spanish version was also completed and posted. The form meets the statutory requirements for a health care power of attorney in all but five states.
- Served as an advisor to the development of new “Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying” by the Hastings Center, and is now consulting in the planning of a 2013 conference to showcase the guidelines.
- In its role as legal consultant to the National POLST Paradigm Task Force (“Physician Orders for Life-Sustaining Treatment”), provided technical assistance to more than 15 states developing POLST programs and contributed to the steady expansion in the number of POLST states, pursuant to ABA policy adopted in 2008.
- Provided a staff expert to speak on The Diane Rehm Show, a National Public Radio program produced by WAMU in Washington, DC, in a program focused on end-of-life conversations and advance planning, August 8, 2012
- Co-sponsored “Freedom of Choice at the End of Life: Patients’ Rights in a Shifting Legal and Political Landscape,” a CLE symposium at New York Law School, November, 2012.
7. Medicare Advocacy Program
The Commission completed its fourteenth and last year of a joint Alzheimer’s Association-ABA Medicare Advocacy Program in 2012, funded by the Alzheimer’s Association. With the end of funding for the program, this is a good time to look back at some of the many key accomplishments of the program, which include:
- Opening up the Local Medical Review Policy process of insurance carriers, making it accessible and accountable to the public;
- Successfully pushing the Center for Medicare and Medicaid Services (CMS) to prohibit automatic denials of claims for medical services based solely on the diagnosis of dementia;
- Making hospice benefits significantly more accessible to persons with Alzheimer’s disease and other dementias;
- Increasing access to physical and other skilled therapies by patients with Alzheimer’s and other dementias;
- Achieving the inclusion of cognitive functioning assessment in the Medicare initial preventive exam and annual wellness exams;
- Securing inclusion of early onset Alzheimer’s disease in the Social Security Administration’s “compassionate allowances” listings of presumptively eligible disabilities;
- Helping ensure full access to Alzheimer’s drugs in Medicare Part D drug formularies and minimizing prior authorization requirements;
- Successfully responding to issues raised through Alzheimer’s State Chapters and providing regularly updated Medicare Fact Sheets and other educational materials to the Chapters and the public.
The cumulative expertise of Commission staff and members has continued to pursue the rights of elders during the past year. The Commission looks forward to continuing success in helping to shape an effective response of the legal profession in meeting the law-related needs of older individuals.
Chair: David M. English
Staff Contact: Charlie Sabatino, Director
Phone: 202-662-8686 · Fax: 202-662-8698