Report on the Work of the ABA Commission on Law and Aging

Vol. 31 No. 2

By

Nancy M. Coleman is the staff director of the ABA Commission on Law and Aging. She has served in this capacity since the Commission was created in 1978. Jamie Philpotts is the staff’s editor of publications. They would like to acknowledge Erica Wood, associate staff director of the Commission, former member of the Commission, and delegate from the Young Lawyers division to the Commission’s precursor task force, for her assistance in writing this article.

In July 1988 the ABA Commission on Law and Aging, then known as the ABA Commission on Legal Problems of the Elderly, in conjunction with the Commission on the Mentally Disabled, convened a landmark national guardianship symposium, prompted in part by an unprecedented investigational report by the Associated Press on the nation’s guardianship system. The report revealed that state courts charged with hearing guardianship cases routinely placed responsibility for the lives of elderly citizens into the hands of others—including relatives, private agencies, financial institutions, or governmental entities—with little evidence for the necessity of such arrangements. In addition, the report exposed an overburdened court system that failed in its responsibility to monitor the guardianships and to protect the wards against abuses.

The Wingspan Guardianship Symposium, named after the conference center where it was held, drew upon the expertise of guardianship professionals from throughout the country and across the disciplines, including lawyers, judges, healthcare and health services providers, mental health professionals, ethicists, and academics. The assembly produced a set of milestone recommendations aimed at providing for appropriate levels of care for incapacitated and elderly individuals and at protecting their fundamental human rights. The recommendations were adopted by the ABA House of Delegates as association policy and in addition served as a catalyst for states to revise their guardianship laws and a number of national guardianship organizations to produce new national practice standards.

In November 2002, more than a decade after the original symposium, the Commission convened a second national guardianship conference to examine the progress made in the interim. Using the original conference recommendations as a foundation, the Wingspread conference sought to propel guardianship reform even further. It identified three guiding principles—education, research, and funding—that would encourage the implementation of the legislative changes enacted in the years following the original Wingspan conference but lagging in actual practice.

Today, the Commission is still acutely involved with the issues of adult guardianship, most recently joining with the University of Kentucky to study public guardianship programs. This research is long overdue. The only comprehensive study of public guardianship was conducted in the late 1970s.

The study’s specific goals include the following:
• To gather baseline information on guardianship administration and clients in all fifty-one jurisdictions and to conduct in-depth study of guardianship systems in seven states.
• To investigate differences in administration and client characteristics among five models of public guardianship (social service agency, public administrator, court model, single state agency, and none).
• To compile state statutory provisions of public guardianship or guardianship of last resort from all U.S. jurisdictions.
• To develop recommendations for policymakers and identify promising practices for public guardianship programs.

The project will produce a data set to be used by future researchers. In addition, the findings will aid policymakers, public guardianship practitioners, and advocates to promote better public guardianship programs and, consequently, more meaningful lives for wards of the state. Guardianship is just one of many issues at the nexus of law and social policy that the Commission has focused on since its creation some twenty years ago. In the late 1970s, an interest in aging issues began percolating within the ABA. Although various section subcommittees—including those from Family Law and Young Lawyers—touched upon aging matters, no single entity examined these issues in a comprehensive way. At the urging of several of the Association’s members, the president of the ABA appointed a task force to advise the Association on how it could best address the legal problems of the elderly. The task force recommended the creation of an interdisciplinary commission to examine the law-related problems of the elderly, and the ABA Board of Governors accepted the proposal.

Over the years, the Commission’s mission has been expanded to strengthen and secure the legal rights, dignity, autonomy, quality of life, and quality of care of elders. It now consists of a fifteen-member interdisciplinary body of experts in aging and law. With its professional staff, the Commission examines a broad range of law-related issues pertaining to the rights of older people, including access to the legal system; health and long-term care; housing; Social Security, Medicare, Medicaid, and other public benefit programs; planning for incapacity; guardianship; elder abuse; healthcare decision making; pain management and end-of-life care; dispute resolution; and court-related needs of older persons with disabilities.

The Commission continues to forge new pathways in crucial areas:

Adult capacity issues: This past year, the Commission and the American Psychological Association convened a joint symposium on the assessment of competency in older adults. Products stemming from the symposium, such as standardized training curricula, model legislation, and continuing education offerings, have been developed for use by practicing psychologists, lawyers, and judges.

Elder abuse prevention: Under a grant from the Department of Justice (DOJ) Office for Victims of Crime, the Commission is monitoring four communities that have established elder abuse fatality review teams. Another grant from the DOJ and the National Institute of Justice has enabled the Commission to develop a set of recommenda- tions on medical forensic issues related to elder abuse and neglect. Both projects will advance the science and build a body of research to bring the field of elder abuse up to par with progress made in the previous decade in the fields of child abuse and domestic violence. Additional Commission work in the area of elder abuse includes a project to examine confidentiality and safety concerns that stem from state elder abuse mandatory reporting laws that may affect the delivery of services to older victims of domestic violence.

Access to legal services: With funding from the ABA Marie Walsh Sharpe Endowment and the Albert and Elaine Borchard Foundation Center on Law and Aging, the Commission administers the Partnerships in Law and Aging Program to encourage the development of collaborative community-based projects to enhance the legal awareness of older people and to improve their access to the legal system. Each year, the program awards up to ten grants of $7,500 each to bar associations, legal services providers, elder rights advocates, and other community nonprofit organizations.

Twenty years ago, the ABA had the foresight to anticipate the significance of elder law and to join in the national—now international—conversation on the complex legal issues unique to older people. As the demographics of our nation point to an aging population, with the number and age of the oldest “old” citizens on the rise, the challenge is for law, social policy, and human rights advocacy to keep pace.

Elder Abuse: Beyond the Obvious

Elder abuse can occur in any family or care situation. Lawyers have a special vantage point for spotting this abuse—including the psychological or financial mistreatment that may not be apparent to laypeople. Here is a brief list of signs and behaviors that might warrant further investigation when representing senior clients:
• Abrupt changes to beneficiaries in a will or another financial document.
• Sudden changes in banking institutions, bank accounts, or bank practices.
• Refusal by family members or friends to allow the client to meet with you alone.
• Additional names added to the senior’s financial accounts or signatory powers.
• Unexplained disappearance of securities or possessions, including jewelry.
• Previously uninvolved relatives who show up claiming rights to the elder’s affairs and possessions.
• Sudden changes in behavior, particularly regressive states in someone not diagnosed with dementia.
• Unexplained debits on the elder’s ATM card.
• Documents signed by the client that were not previously discussed with you or about which the client is unclear.
• Changes in appearance that do not match the explanation. A confused story that explains broken eyeglasses or frames could be the result of physical abuse. Additional information is available at www.elderabusecenter.org; click “The Basics.”

Stats: Economics

• Number of seniors living below the poverty level ($8,494 for a single person, $10,715 for a couple) in 2001: 3.4 million
• Of this number,
o 8.9% were white
o 21.9% African American
o 21.8% Hispanic
• Highest rate of any group living below poverty level: senior Hispanic women living alone or with nonrelatives
• Median incomes for 2001: $19,688 for men, $11,311 for women
• Percentage of seniors reporting social security payments as major source of income: 90% Sources: Admin. on Aging, www.aoa.gov; Census Bureau, 2001 and 2002 reports

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