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March 15, 2022

March 2022 Director’s Column

David Godfrey

The PDF in which this article appears can be found in Bifocal Vol. 43 Issue 4.

Guardianship reform continues to dominate the work of the staff of the Commission on Law and Aging.  There is interest in guardianship reform at both the federal and state levels, with several states hoping to pass meaningful statutory reform this spring. An impediment to meaningful reform at the state level is a lack of funding, something that could be addressed in part by Congress enacting a federally funded Court Improvement Project. 

We continue to work on issues in decisional ability and dementia. In March commission staff will present a national webinar for the National Center on Law and Elder Rights ( on Dementia Informed Legal Services.  This program takes the concept or model from trauma informed services and applies it to the unique issue of serving persons living with dementia.  

We have finished research on the treatment of persons living with dementia in the criminal justice system, a major project made possible by the RRF Foundation, and are editing the project report. Our findings in a nutshell are persons aging into dementia in the correctional system outnumber persons with dementia who are arrested. For arrestees, the system of committing persons found unable to stand trial to mental health care facilities for restoration is a failure, and often results in harm to the person. Placement for persons living with dementia who have a history of violent acts is nearly impossible in most communities. I will have an article in the next issue of Bifocal highlighting the research findings and recommendations. 

Two policy resolutions created by the Commission on Law and Aging were approved at the February ABA Mid-Year meeting of the ABA House of Delegates. Resolution 601 encourages transparency in ownership of skilled nursing facilities, and 602 urges implementation of the recommendations of the Fourth National Guardianship Summit. The ownership of skilled nursing facilities is often fractured with the building, nursing services, therapy services, and food services owned by separate entities making it difficult to tell what entity is providing what service, and if something goes wrong making it very difficult to know who to hold responsible.  The Commission was active in planning and facilitating the Fourth National Guardianship Summit last spring. The 22 recommendations of the Summit were developed and approved by an interdisciplinary gathering of experts from across the country and around the world. 

The Commission on Law and Aging generally drafts one or two policy resolutions per year. ABA Leadership and Governmental Affairs rely on policy in forming the ABA’s position on policy questions.  Without policy the ABA can’t say “The ABA believes” or “The ABA urges.” ABA Media Affairs relies on policy when writing about important issues. Others outside of the ABA can cite to ABA policy as evidence that the ABA has taken a serious look at an issue and has guidance on the issue.  

Policy development is a careful and deliberative process. Drafting starts with an ABA entity, state or local affiliate or specialty bar association. The draft resolution includes the wording of the policy and a report, sort of an issue brief, that details the impact of the policy, why it is important, and existing policy on the issue and opposing views.  The draft is circulated for review, editing and alternate points of view. A committee of experts edit for style and format. The review process represents the diversity of ABA membership. Not every proposal makes it through the process.  When ready the proposal is presented to the ABA House of Delegates, a representative body with over 400 members. Speakers are invited in favor and opposition and a vote is held.  If the proposal passes, the resolution becomes ABA policy. 

The policy process, governmental affairs, and media affairs are made possible by ABA members.  For legal aid, public interest, government, and academic lawyers, ABA membership is $150 a year.  Non-attorneys who are interested in the issues and the work of the ABA can also become members of the ABA for the same $150 per year. For details, please visit the ABA Dues and Eligibility page

A few months ago, the question came up, if it was possible to donate to the Commission on Law and Aging in memory of, or in honor of someone. Often families will say, in leu of flowers please make donations in memory of the person to a cause they hold dear. We worked with the ABA Fund for Justice and Education to add a drop-down option to our online donations page for donations in honor of, in memory of, or in support of. It’s an option we should have always had. Maybe I have finally found something to do with that last $60 that was in my father’s wallet when he died, that I have not been able to bring myself to spend. 

David Godfrey

Director, ABA Commission on Law and Aging