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March 10, 2023

Director's Column

David Godfrey

The entire PDF in which this article appears can be found here. 

The work of the Commission staff continues to be dominated by guardianship reform, adult abuse laws, and health care decision making. Guardianship reform, and financial exploitation appear to be hot topics in state legislatures this spring.  We are busy reviewing bills filed in state legislatures under a consulting contract we have with an advocacy organization.  This work keeps us on top of the thinking at the state level.

Most of the abuse legislation we are seeing provides immunity for financial services providers who place temporary holds on transactions that they believe are fraudulent or acts of financial exploitation. These laws provide immunity for reporting, investigating, and placing temporary holds on disbursement while the transaction is investigated.  Financial institutions are trying to balance clients’ rights and privacy, with protection from what they honestly believe are attempts to steal money.  I heard a briefing last year, about the development of screening software that detects hallmarks of fraud and exploitation in financial transactions.    

We are developing and presenting training.  In March I will present a national training for the National Center on Law and Elder Rights on advance planning basics.  In the program I will look at advance planning through a decision support lens, reviewing the basic tools of advance health care and financial planning, treating the agents named to help as supporters of the decision-making process.  NCLER programs are available without charge to anyone and are recorded and available on demand.  The Commission reaches about 5,000 training participants per year through our role in the NCLER, and the project is an important source of outside funding for us.  We are proud to have been a part of the NCLER since the very beginning. 

NCLER also funds our time to provide technical assistance to professionals in law and aging, within our areas of expertise.  If you are looking for ideas or information on guardianship reform, adult abuse, health care decision making, capacity and ethics, email us and we will try to help. 

The Commission

The Commission on Law and Aging met virtually on February 17th. The Commission approved moving forward with editing and co-sponsoring draft policy on a guardianship bill of rights, and protections for due process.  The Commission made significant progress on updating our strategic plan with goal setting that coordinates the goals of the Commission with the core goals of the ABA.  Strategic planning and goal setting will keep the Commission busy through the summer. 

I am often asked who is the Commission and how do you join it.  The Commission is a 15-member interdisciplinary board, appointed by the ABA President. As an interdisciplinary entity, up to half of our members can be non-lawyers. Most appointees serve three one-year terms.  There is an annual process of open nomination for ABA Committees and Commissions that starts around the first of the year, and closes around the time of the ABA Mid-Year Meeting.  You can self-nominate or be nominated by others (they do ask that we verify that the person is willing to serve before nominating them.) This year we have an overflowing group of well qualified nominees.  Erica, Beth, Trisha, Sonia and I, are the staff of the Commission. Most of our work is based on outside funding, and consequently we are very staff driven.   

How can you become involved?  Write for Bifocal, volunteer to speak on our training agenda, nominate yourself for a seat on the Commission. 

The American Bar Association

In early February I participated in the ABA Mid-Year meeting. I attended numerous committee or council meetings providing invaluable networking. I took part in the meeting of the ABA House of Delegates, the policy making body of the ABA. There is an article in this issue of Bifocal describing a new policy that we shepherded  through adoption and a detailed description of how ABA policy is made and why it is important. 

The new policy was based on the research we completed last summer on improving the treatment of persons living with dementia in the criminal justice system.  The ABA Criminal Justice Section has published an incredible book on defending a person with dementia in a criminal case, a review of that book is included in this issue of Bifocal.  The conversation about how to improve the treatment of persons living with dementia or mental illness is ongoing.   The State Justice Institute National Judicial Task force recently released a final report on mental health and the Courts. ( .) Among the findings in the report was recommending diversion for care, rather than commitment for restoration of capacity when a defendant in a criminal case has been diagnosed with dementia and restoration is highly unlikely.  This matches one of the three recommendations in the ABA policy that was recently approved.  

Looking ahead, next year’s ABA Mid-Year meeting will be held in Louisville, Kentucky. ABA Mid-Year Meeting is a great way to connect with the ABA, network and meet people.  Many ABA groups meet, or present programing at Mid-Year.  It is also a great venue to observe the House of Delegates in action.  I am rallying my network for possible programing on issues in law and aging next year, see you there?

ABA Membership is open to lawyers and non-lawyers. For legal aid, public interest, government, non-profit and solo small firm attorneys, as well as non-lawyer affiliate members, membership is only $150 per year, and membership brings access to many resources and training.

A Special Thank You

The support of the Commission on Law and Aging by individual donors makes it possible for us to do work beyond the scope of our grants and contracts.  The work that we do often extends beyond the term of a funded project, such as the ongoing work on persons living with dementia and the criminal justice system, a project that exhausted available funding last year, but the work is ongoing. The guardianship bill of rights work we are involved in is a product of the 2021 guardianship summit.  I extend a heartfelt THANK YOU to our individual supporters and encourage you to join them. (add donation link)

At the ABA Mid-Year meeting there was a large sign acknowledging the ABA Fund for Justice and Education’s President’s Club Members. These are donors that have supported ABA entities at a level of $1,000 or more.  It was a great pleasure to read names on that list, that have supported the Commission on Law and Aging at that level. Every donation, large and small makes a difference. THANK YOU for making our ongoing work possible. 

David Godfrey, JD

Director, ABA Commission on Law and Aging

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