The ABA Commission on Law and Aging: Past, Present, and Future

by  Erica C R Costello, Charles P Sabatino, and Erica Wood

Summary

• The Commission was established in late 1978, and its first meeting was held in February 1979. It is still going strong 46 years later.
• The Commission’s interdisciplinary nature with its members, who the ABA president appoints, generally comprise of about half lawyers and half non-lawyers who are at the forefront of their fields (e.g., gerontologists, clinical specialists in aging, and bioethicists) makes it uniquely qualified to trigger trailblazing research and make changes in law and regulations at the national and state levels.
• The Commission is known for bridging together key sectors forging new research and policy, for example one of its meetings in the 1980s led to the birth of the term “elder law” and the eventual formation of the National Academy of Elder Law Attorneys (NAELA), who created the National Elder Law Foundation (NELF), who regulates the certification for elder law practitioners called Certified Elder Law Attorney (CELA).

In 1977, then-ABA President William B. Spann presciently determined that the concerns of older persons needed to be added to the association’s roster of public service priorities. At that time, the term “elder law attorney” did not exist, nor did a discernible field of law and aging. President Spann proceeded by designating a special task force to examine the status of the legal problems and needs confronting our older population. His goal was to determine whether the ABA could play a constructive role, and to suggest what structure and broad priorities for an association program seemed most promising.

In mid-1978, the task force report, affirmed, the value of an ABA initiative and recommended the creation of an interdisciplinary commission. It identified four priority areas that, at that time, seemed most worthy of attention: provision of legal services to the elderly, discrimination against the elderly, simplification and coordination of administrative procedure and regulation, and rights of persons subject to institutionalization or subsidized care. Over time, many other issues would rise to the top of the Commission’s priority areas.

The task force report was favorably received and at the ABA’s 1978 Annual Meeting, the establishment of a Commission on Legal Problems of the Elderly was authorized by the ABA Board.

Appointments to the Commission were made in late 1978, and its first meeting was held in February 1979. This initiative brought together an outstanding group of practicing attorneys, legal educators, specialists in aging, and nonlawyer experts on the issues  older adults faced, including key federal officials, national organization leaders, and two former secretaries of the U.S. Department of Health, Education, and Welfare.

By the ABA Midyear meeting in 1979, the Commission was intensively engaged in problem analysis and program development efforts. A grant award from the American Bar Endowment made it possible to retain a small full-time staff to support the Commission’s efforts in its first year of activity, which grew steadily over the next few years to reach a plateau of roughly eight to 10 well-chosen staff during the 1990s as its funded project portfolio grew. Nancy Coleman, the Commission’s first director, served for 26 years as the glue and fuel of the Commission’s work.

From these beginnings emerged a truly significant and extraordinary effort that went on to produce 46 years and counting of steady leadership, service, hard work, and contributions to the cause and interests of our older population.

Interdisciplinary Perspective

Over the years, a number of ABA groups and subgroups have focused on legal issues of older people, but the Commission stands out as unique in its interdisciplinary nature. Around the table at any given meeting, one might see gerontologists engaged in spirited exchange with state or federal officials, or law firm leaders with clinical specialists in aging. These dynamic discussions often generated ideas that in turn led to trailblazing research or triggered a needed stance on policy.

Commission members, appointed by the ABA president, generally include about half lawyers and half non-lawyers who were at the forefront of their fields. There is always a judge who brings the thinking of the bench, and a physician or medical professional who adds clinical insights. Bioethicists raise ethical concerns, and researchers suggest empirical approaches to murky problems. This potent mix resulted in Commission subcommittees to follow up on ideas, and sent staff scurrying to put pieces together. It also prompted a large body of ABA policy on aging, on which Commission members actively advocated for changes in law and regulations at the national and state levels.

The Commission has included some giants in the field. Arthur Fleming had served as Secretary of Health, Education, and Welfare, president of three universities, and chair of the U.S. Commission on Civil Rights. His decades of federal experience, reaching back to President Roosevelt, and his knowledge of Social Security and other federal policy strengthened the Commission’s voice. John Pickering was a founder of a prominent DC law firm and had a long record of pro bono work for people who were poor or disadvantaged. For many years, he was a leader in the ABA House of Delegates, where he frequently advanced Commission proposals for ABA policy.

And there have been a host of others -- for example lawyer/ethicist Nancy Dubler brought new approaches to bioethics in hospital settings; Dr. JoAnne Lynn pioneered in advance care planning and end-of-life treatment policies; and Hon. Kristin Booth Glen, a state court judge, brought an international perspective to the Commission’s thinking on fundamental rights of older people and persons with disabilities.

Bridging Key Sectors

The Commission draws together the public and private bar, as well as the aging and legal fields. Within the ABA, it has always sought to support and collaborate with other ABA entities to advance work on aging issues. The Commission has been described as “a think tank on the cutting edge of law and social policy” as well as a convenor of key stakeholders to solve problems. A few examples stand out.

From the beginning, the Commission took on the multi-faceted problem of decision-making limitations and dementia, as well as its challenges in legal representation, guardianship, medical consent, contractual matters, estate and personal planning, and a host of other contexts. An intensive collaboration with the American Psychological Association Committee on Aging produced a series of practice handbooks that have set the standard for understanding and assessing the capacity of older adults for the past two decades, specifically a handbook for lawyers, a handbook for psychologists, and a handbook for judges making guardianship decisions. The last was produced jointly with the National College of Probate Judges. Presentations on all three ABA-APA assessment tools continue to support professionals working with older adults with diminished capacity, aiming to preserve autonomy within an overall legal framework.

Other longstanding partnerships were built around the delivery of legal services for older persons. An innovative Commission panel at an ABA Annual Meeting in the 1980s brought together for the first time lawyers who had begun to focus their practice on older clients – a meeting that led to the birth of the term “elder law” and the eventual formation of the National Academy of Elder Law Attorneys (NAELA).

Additionally, the Commission’s many university connections led to the growth of elder law courses and clinics at institutions throughout the country -- including one created and taught at Georgetown University by Commission staff. The Commission’s corporate connections led to pro bono efforts at corporate law departments, and its law firm members advanced public service programs for older clients. Several Commission members were Legal Services Corporation officials who promoted legal aid priorities on aging. The Commission’s funding from the U.S. Administration on Aging supported a host of projects that reached across the legal and aging fields such as guides for lawyers on communication techniques in counseling older clients; Senior Law Day planning; and work on “emeritus” programs that allow retired lawyers to waive bar requirements to serve older adults pro bono. The Commission further partnered with the Association for Conflict Resolution’s Elder Mediation Section in early efforts to establish elder mediation.

The Commission’s work in the area of guardianship reform led to the creation of Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS) groups. Funding from the Administration on Community Living (ACL) helped the Commission to support the country’s first WINGS groups, with the goal of avoiding unnecessary guardianship, preventing and addressing abuse, developing less restrictive alternatives to guardianship, and advancing guardianship reforms to enhance the self-determination, health, and safety of individuals who need decision support. To date, at least 25 states have some form of ongoing WINGS or “WINGS-like” groups that drive changes to guardianship laws and policies through collective planning and action. The Commission’s longstanding collaboration with the National Guardianship Network and the Network’s partner organizations led to its involvement in the planning and participation in four national guardianship summits. Since the last Summit in May of 2021, the Commission has proposed two policies adopted by the ABA House of Delegates supporting a national Guardianship Court Improvement Program and Guardianship Bill of Rights.

Finally, the Commission’s tracking and consultative efforts in support of state law development produced ongoing resources for lawyers and policymakers in advance care planning, elder abuse and neglect, guardianship, and in early efforts to regulate assisted living and continuing care. Some of the Commission’s recent work includes the publication of a “Defense Against Guardianship” handbook, providing best practices and strategies for assisting clients in guardianship or conservatorship cases, and the creation of statutory charts relating to elder abuse, voting rights, guardianship, and selected issues in power of attorney law. The Commission also recently co-created a website, “Fostering Stability in Aging,” with the Commission on Homelessness and Poverty to provide resources for attorneys and advocates assisting older adults at risk of poverty and homelessness.

Addressing Ongoing Challenges in Aging

This work continues today, albeit with ever greater funding challenges. The lion’s share of Commission funding has always come from government grants, contracts, and private foundations. For example, the Administration on Aging, formerly within the federal Administration for Community Living, has been a consistent founder of the Commission almost from the beginning, and the Borchard Foundation Center on Law & Aging has sponsored several groundbreaking symposia and educational events, including the 2024 National Aging and Law Conference.

As traditional sources have contracted, greater reliance on donations and planned giving has become necessary. Little doubt exists about the continuing need for the ABA to address the ongoing challenges of personal and societal longevity where, by 2040, persons aged 65 and older will comprise more than one out of every five Americans, and the oldest -- those 85 and older -- will more than double their current 6.5 million to 13.7 million. These are our parents, grandparents, and our current or future selves. The goal is to preserve and enhance the autonomy, dignity, and quality of life of each and every person who travels this road.

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The ABA Commission on Law and Aging: Past, Present, and Future

Kohn, Wiklund, Wilmoth Named Distinguished Professors

Nina Kohn

Three Syracuse University faculty members have been named Distinguished Professors, one of the University’s highest honors. The designation is granted by the Board of Trustees to faculty who have achieved exceptionally distinguished stature in their academic specialties.

The newly named Distinguished Professors are Nina Kohn, David M. Levy Professor of Law in the College of Law; Johan Wiklund, Al Berg Chair and professor of entrepreneurship and emerging enterprises in the Martin J. Whitman School of Management, and Janet Wilmoth, professor of sociology in the Maxwell School of Citizenship and Public Affairs.

“Through their research and scholarship, these professors are a key part of the vibrant academic community here on campus, and this honor is well-deserved,” says Interim Vice Chancellor, Provost and Chief Academic Officer Lois Agnew. “Just as important, they are making real and important contributions to society, with work that has the potential to change people’s lives.”

Candidates are nominated by their deans and reviewed by the vice provost/faculty affairs, who seeks input from external referees and a committee of Distinguished or University Professors. Formal nomination packets are then reviewed by the vice chancellor, provost and chief academic officer and the vice president for research before being forwarded to the Board of Trustees.

Nina Kohn

Kohn is an internationally recognized leader in elder law, known for prolific, impactful work in the areas of guardianship, long-term care, advance planning, decision-making in the face of incapacity and elder abuse. She is the author of “Elder Law: Practice, Policy & Problems,” the leading text in her field, and has helped shape elder law-related legislation through her involvement with the Uniform Law Commission.

Kohn’s work centers on the civil rights of older adults, and she has a strong scholarly presence in health law. She is a member of the American Law Institute.

Kohn joined the Syracuse faculty in 2005 and has served in multiple leadership roles, including associate dean for research, associate dean for online education and faculty director of online education.

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Kohn, Wiklund, Wilmoth Named Distinguished Professors

Elder Justice Event Finds Abuse A Growing Problem With Many Potential Solutions

About 10% of people 65 and older experience some form of abuse, according to the Department of Justice, and the rates are trending upward over time. As the U.S. population ages, practitioners of elder law note that it is more critical than ever for legal systems to have the means to identify, report, and prevent abuse among older adults. 

On Feb. 16, the Solomon Center for Health Law and Policy, in collaboration with Yale General Internal Medicine, explored these issues in a half-day symposium, “Innovating Elder Justice: Law, Medicine, and Technology to Address Abuse and Financial Exploitation in Today’s Aging Society.” 

The event is the latest extension of the Solomon Center’s work in elder law. Since starting in the 2019-2020 academic year, the Adrienne C. Drell and Franklin W. Nitikman Elder Law Project has focused on the intricate challenges emerging at the intersection of aging and the law. Notably, the project introduced a pathbreaking seminar titled “Aging and the Law” in Spring 2020, taught and directed by Professor Nina Kohn, the Solomon Center Distinguished Scholar in Elder Law, and Kevin Cremin ’00, Director of Litigation for Disability and Aging Rights at Mobilization for Justice. Additionally, the elder law project started a Geriatric Medical Legal Partnership, which focuses on providing legal services to older adults with diminished capacity. Other initiatives include the collaboration with the Center to Advance Palliative Care (CAPC) at Mt. Sinai and the production of the book Law and a Hundred Year Life, co-edited by Abbe Gluck ’00, Solomon Center Faculty Director and Alfred M. Rankin Professor of Law, and Anne Alstott, Jacquin D. Bierman Professor in Taxation. Building on this history, the symposium brought together experts in law, health, and aging to address the issue from many perspectives.

The symposium commenced with an introduction from Heather K. Gerken, Dean and Sol & Lillian Goldman Professor of Law at Yale Law School, who emphasized the urgency of preventing elder abuse. Gerken expressed gratitude and recognition for Adrienne Drell ’92 and Franklin Nitikman ’66, whose generosity and support enabled the creation of the Elder Law Project.

Next was a keynote conversation between Gluck and Sen. Richard Blumenthal ’73. Gluck asked about the federal government’s role in promoting elder justice. Blumenthal responded by discussing how nursing homes and assisted living facilities need federal oversight because oversight can vary from state to state. He also emphasized the significance of Medicare funding and stated that strong federal oversight is becoming more feasible and cost-effective thanks to technological advancements. At the same time, Blumenthal noted, there are concerns about artificial intelligence being used to commit elder fraud — for example, scammers have used AI-generated voices to defraud older adults. He noted that the Elder Abuse Prevention and Prosecution Act may need updating in light of new technology.

Blumenthal also emphasized the importance of updating and strengthening conservatorship laws. Older adults must receive adequate protection, he said, but the law must also mitigate the risk of abuse by appointed conservators or guardians. He also highlighted how addressing elder abuse means addressing domestic and intimate partner violence and keeping people away from firearms. Gaps within current reporting mechanisms may hinder timely detection in elder abuse cases, he noted.

The first panel, titled “Elder Abuse and Financial Fraud: Causes, Enforcement Gaps, Policy Directions,” focused on the relationship between elder abuse and financial fraud. Nina Kohn, David M. Levy Professor of Law at Syracuse University and Solomon Center Distinguished Scholar in Elder Law at Yale Law School, served as moderator.

Laura Mosqueda, Professor of Family Medicine and Geriatrics at the University of Southern California’s Keck School of Medicine and the Director of the National Center on Elder Abuse, began by telling the stories of individual victims of elder abuse. She asked audience members to think about how they would have responded in each situation. She pointed out that current screening and follow-up methods are often too cursory to identify abuse before the victim suffers serious injury. Are these methods working for the people they are intended to work for, she asked, or to make us feel better? 

Mosqueda noted that there are a number of experiments and promising interventions underway already, but that more funding is needed to continue investigating what works best. Interventions targeting caregivers are promising, she said. Supporting caregivers can decrease abuse and neglect, she explained, because elder mistreatment may result from caregivers’ lack of knowledge or resources. 

Kathy Greenlee, Senior Director of Elder Justice Initiatives at Advancing States and former U.S. Assistant Secretary for Aging (2009-2016), discussed a report AARP published in June 2023 on financial exploitation and fraud. The report found that victims lose approximately $28.3 billion annually. Of this total, $20 billion is lost to someone that the victim knows. But only one in 10 people in such a situation will report it because victims may feel embarrassed, still love the person who took the money, or rely on that person for care. Many are afraid that they will lose their independence if they report. Using the word “scam” when talking to elders about financial abuse, which implies that victims have been tricked, does not capture the extent of the problem, Greenlee said. She explained that words like “theft” and “crime” make it clearer that financial abuse victims are not just those who are easily deceived. Greenlee added that everyone needs more education on preventing financial abuse — not just elders and their caregivers, but clergy, pharmacists, and others who may routinely interact with elders. 

Author Marie-Therese (MT) Connell said that researching and writing the book The Measure of Our Age: Navigating Care, Safety, Money, and Meaning Later in Life showed her how unprepared we are for the “challenges and gifts” of aging, and how this unpreparedness leads to abuse. There are not only high costs for elders and their caregivers, she said, but “cascading policy failures down generations.” Agreeing with Mosqueda and Greenlee, she emphasized the need for prevention tools, and called for multi-disciplinary approaches.

Connell also discussed the community-based model for elder abuse intervention she co-designed called RISE, which stands for “repair harm,” “inspire change,” “support connection,” and “empower choice.” The model includes restorative justice elements and works not only with Adult Protective Services but also various community partners. RISE offers solutions for both victims and perpetrators to help people rebuild healthy relationships. It also includes robust data collection methods because, Connolly explained, research must be baked into an invention from the beginning to get results and create policy change. Maine has already adopted and funded RISE and other states are in the process of doing so, she said.

The second panel, “Innovations in Addressing Elder Fraud and Abuse: Leveraging Law and Technology” touched upon specific interventions to prevent elder abuse. Alison Hirschel, Director and Managing Attorney of the Michigan Elder Justice Initiative, and Rebecca Iannantuoni, Partner at Day Pitney LLP and Supervisor, Geriatric and Palliative Medical-Legal Partnerships at Yale Law School, moderated.

Dr. Fuad Abujarad, Associate Professor of Emergency Medicine at Yale School of Medicine, started the discussion talking about VOICES, which stands for Virtual cOaching in making Informed Choices on Elder Mistreatment Self-Disclosure. VOICES is a digital health tool to assist older adults in self-identifying and self-disclosing elder mistreatment. It seeks to address the low instance of abuse being reported — just one of 24 abuse cases is reported, according to the National Center on Elder Abuse. Developed by a multidisciplinary team, VOICES allows older adults to self-report mistreatment instead of using a provider-based reporting system. Other advantages of this tool, Abujarad explained, are that it is private, confidential, and easy to operate. Abujarad noted that VOICES has already motivated more than 70 patients who otherwise had not shown any prior signs of mistreatment to report elder abuse.

Dr. Bonnie Olsen, Professor of Clinical Family Medicine at the Keck School of Medicine, University of Southern California, continued the discussion. Olsen is a clinical psychologist whose expertise is elder abuse, dementia, and capacity. She said that people who work with older adults need to understand the factors that facilitate elder abuse in the first place. 

“The more we know where the risks are coming from, we will be better equipped to prevent mistreatment or address it when it occurs,” Olsen said. 

Olsen discussed studies and interventions focused on providing tools to detect and address elder abuse by training patients and their caregivers. For example is the COACH (Comprehensive Older Adult and Caregiver Help) intervention, The program teaches caregivers and gives them social support to reduce the risk of caregivers mistreating older adults. Mosqueda, Olsen, Connolly, their colleagues conducted a double-blind, randomized controlled trial testing of COACH and found that the treatment group had no reported elder mistreatment, a significantly lower rate than the control group. 

Liz Loewy, co-founder & COO of personal detection and alert system EverSafe, focused on financial mistreatment. She said that stakes of elder fraud are high, calling it a “$36 billion problem.” Loewy, who previously served as the former Chief of the Elder Abuse Unit at the Manhattan District Attorney’s Office, explained that regulators and financial institutions have not offered an adequate response to underreported problem of elder fraud. Even when fraud is reported or identified, she added, it may be too late. 

What can be used to prevent elder financial abuse? According to Loewy, technology can provide protection against scams, but this tool is underused. One example of this technology she named is her company, EverSafe, which aims to fill the regulatory gap by detecting unusual financial activity and alerting people who serve as designated caregivers. There are many other technological tools to prevent elder mistreatment, Loewy said, but they all require a proactive approach that focuses on training and prevention.

The symposium concluded with remarks from New Yorker staff writer David Owen, introduced by Eugene Rusyn ’17. Owen shared the story of his mother’s experience of financial exploitation, which he has written about for the magazine. While many scams target older adults through the internet, Owen’s mother fell victim to schemes through postal mail. Owen explained that the deceptive mail gained his mother’s trust because it bore seals and stamps to create the illusion of government approval. Owen highlighted the challenges of reporting such scams to law enforcement and financial institutions. He noted that online reporting forms are often inaccessible to older adults and suggested that elder fraud may be more widespread than currently understood due to underreporting. In his closing remarks, Owen emphasized the role that media journalists should play in uncovering and exposing elder abuse.

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Elder Justice Event Finds Abuse A Growing Problem With Many Potential Solutions

Elder Care Law Is Not Designed for Working Mothers in the Sandwich Generation

by Christie Gibson

Court-appointed guardianship locked me in a soundproof closet with other adult daughters navigating a world not designed for women.

(Maskot / Getty Images)

Britney Spears’ autobiography revealed details of her father’s abuse of power through a court-ordered conservatorship that lasted from 2008 to 2021. Her father had reproductive control over her body and even what she ate. 

My experience with a court-ordered legal guardianship didn’t last 13 years, but I am an adult daughter who experienced abuse by a father. The difference is Britney’s dad was the conservator of her, and I was the guardian of my dad. 

Before retiring, my dad owned a small concrete business in our rural Kentucky hometown. He rode a Harley Davidson and went to church on Sundays, except when the weather was nice. He planned meticulously for his end of life like a fantasy. He initiated durable power of attorney (POA) and healthcare surrogate documentation for me to protect his interests in the future. For 20 years, he trained me relentlessly so I would know exactly how to execute his final wishes. 

What he didn’t plan for was dementia. 

My dad was born during the Silent Generation. He served in the U.S. Army Reserves. He wanted a son but got a daughter. Fathers should be grateful to have a daughter, since research proves we provide twice as much caregiving for senior parents than sons do.

My dad also didn’t plan for his health to decline when I was part of the 71 percent of working mothers in America. 

Working mothers and adult daughters who make up the majority of the sandwich generation need the ability to also care for their own mental and physical well-being to avoid burnout. 

Why did I pursue court-appointed legal guardianship for my father? Because POA failed me when he needed it most. My dad was on a path to wreck himself financially. Before his second traumatic hospital stay, where he received the Alzheimer’s diagnosis, he opened three new checking accounts, closed two other bank accounts, opened credit cards at different retail stores he did not frequent, bought a dog, and canceled his Medicare Advantage insurance. A blizzard of yellow post-it notes with his Social Security number and other account log-in information were scattered around his house. Leeches and predators tried to gain access to his life and also harassed and threatened me. 

Alzheimer’s made my dad physically aggressive. He lived with my family for six weeks. As a mother, I could not have this behavior in my home around my children. 

While my POA indicated I was my dad’s chosen healthcare surrogate and could make decisions when he was incapacitated, every time I called to “fix” something he had broken, I was asked to put him on the phone for his approval—even after I explained he was incapacitated with Alzheimer’s. To complicate matters, his Alzheimer’s diagnosis came during the worldwide pandemic in 2020. He lived 800 miles away from me. 

Trying to undo damage my dad did to his Medicare health insurance while denied rights as POA was a nightmare. Alzheimer’s care isn’t cheap. His long-term memory care cost up to $9,000 per month, and it was not easy to secure during the pandemic with a healthcare professional shortage.

Achieving court-appointed guardianship was a different nightmare. Eleven months and thousands of dollars later, I was appointed and bonded as his legal guardian (of the person and of the estate) in Texas. But, court-appointed guardianship locked me in a soundproof closet with other adult daughters navigating a world not designed for women. 

Why wasn’t the court order enough? Because a woman with legal power isn’t enough. 

Banks, health Insurance companies, and other businesses serving seniors do not understand Alzheimer’s disease. Most businesses have standard legalize for POA situations; however, guardianship overrides pre-existing POA.

This does no good when businesses are unaware of the differences between POA and guardianship.

• POA is meant to help someone temporarily incapacitated due to health or advanced age.
• Guardianship is when someone is not of sound mind, cannot make safe or logical decisions, and their situation is not expected to resolve itself for the long term.

Why do businesses expect a senior citizen diagnosed with an irreversible disease of the mind to make financial or health decisions? Why wasn’t the court order enough? Because a woman with legal power isn’t enough. 

Being a working mom of children doing virtual school during the pandemic, also in the middle of a graduate degree, and suddenly caring for a delusional and aggressive senior parent while being forced to educate every single business on what guardianship legally appointed me to do was overwhelming.

Guardianship paperwork is thick. Do you know how many businesses asked if I had a fax machine? What end consumer in the age of AI and self-driving cars has a fax machine at home or can get to one easily during a pandemic? Why pay a dollar per page to fax information in the age of Alexa, Google and smartphones when I should be able to email or upload a file? 

The most dehumanizing part of legal guardianship was being a woman. 

I was constantly put in my societal place. Businesses repeatedly denied my rights. One financial institution denied my right to close an account. They demanded a court order. Their ignorance was that my court-appointed legal guardianship is a court order. The experience of trying to advocate for my incapacitated father and my rights as his guardian involved ghosting, gaslighting and blurred interpretations of legal rights.  

My dad died three months later. 

Now it’s eight months later, and I’m still waiting—only now, I’m stuck in this legal guardianship and can’t get out. It is a ridiculously desensitized process void of human compassion that prevents adult daughters from properly grieving and processing trauma.

I’m an only child of divorce. There was no village of support.

Alzheimer’s disease was not the worst part of my dad’s end of life. It was the stress, isolation and trauma from the elder law experience. 

It would’ve been different if I had been a son.   

Facts. Caregiving falls to women. Alzheimer’s disease is on track to collapse the U.S. healthcare system with people living longer. Working mothers and adult daughters who make up the majority of the sandwich generation need the ability to also care for their own mental and physical well-being to avoid burnout. 

The Road to Elder Law Reform

Elder law reform can be improved with four action items.

First, POA must define incapacitation and quantify “temporary,” federally, for all states, in clear and detailed terms. Dumb it down. It is currently too broad, too big, and open to interpretation.

Second, when adult daughters live in another state away from her senior parent, POA documentation should be state-mobile so she can continue working and caring for her children and senior parent.

Third, the federal government should require specialized training for banks, insurance companies, and other business legal departments so they communicate with POAs accurately and legally.

Fourth, when adult children provide legitimate documentation from licensed medical physicians who have diagnosed a senior citizen with Alzheimer’s (translation: incapacitated), elder law attorneys need to make the legal language clear that POA exists for a time such as this. Otherwise, the United States risks working mothers leaving their jobs when there aren’t enough workers and ruining her own health—which will ironically further strain our healthcare system.  

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Elder Care Law Is Not Designed for Working Mothers in the Sandwich Generation

Protecting Seniors from Scams

by Alyson Diaz, Korinne Dunn, and Saba Mengesha

Scholars discuss how senior citizens should be protected from various forms of elder fraud.

Last year, over 88,000 seniors reported being victims of elder fraud. Together, these victims lost over $3 billion.

And the number of victims is likely higher. Seniors might not report abuse due to fear of being perceived as incapable of managing their affairs or being uncertain about where to report suspected fraud.

The elderly are disproportionately the most common targets for different forms of abuse and fraud, including financial, cyber, and romantic scams. Seniors are frequent targets for financial fraud because they are more likely to have high credit scores and own multiple assets. These scammers exploit seniors’ inexperience with the internet, loneliness, and physical or cognitive impairments.

Romance scams are all too common as well, with seniors collectively losing over a billion dollars in these scams in 2022. For example, a recently widowed senior repeatedly sent tens of thousands of dollars to someone she had fallen in love with to pay for their nonexistent medical procedure.

State agencies are the primary institutions resolving elder exploitation. In 2010, Congress passed the Elder Justice Act, allocating funds for state Adult Protective Services (APS) agencies to combat elder abuse.

Most APS agencies require individuals working in social services, law enforcement, financial services, and the medical profession to be mandatory reporters of suspected fraudulent activity against seniors. Once a report is filed, case workers counsel the victim and refer criminal cases to state law enforcement.

To help law enforcement officials catch scammers, the Federal Trade Commission (FTC) created the Consumer Sentinel Network. This network provides state enforcement agencies with access to consumer complaints across jurisdictions, enabling them to coordinate efforts to stop common offenders.

Because of the prevalence of scams against the elderly and the difficulty in recuperating lost assets, federal agencies focus on prevention initiatives. The FTC, for example, issues public warnings recommending that victims to end communications with potential scammers, and elders search the internet for others who may have been targeted in the same way.

Advocates for more federal regulations tailored to curtailing elder fraud argue that, given seniors’ vulnerability and wealth, they need legal protection from predators. In particular, these advocates call for greater federal government involvement in investigating reports of elder exploitation and more cooperation across agencies to address all forms of abuse.

In this week’s Saturday Seminar, The Regulatory Review summarizes the work of scholars who offer varying suggestions on protecting elders from abuse.

• In an article for the University of Michigan Journal of Law Reform, David Adam Friedman of Willamette University College of Law examines solutions to mitigate harm posed by “impostor scams.” These scams involve individuals who pretend to be someone else for personal gain and are the most frequently reported category of consumer fraud, explains Friedman. Friedman suggests that policymakers shield victims from these scams by implementing a “least-cost avoider” approach. Friedman explains that such an approach would force intermediaries through which scammers act—for example, social media platforms and telecommunications providers—to absorb the costs. This kind of regulatory framework would protect victims, including the elderly, from financial harm, argues Friedman.
• Policymakers must work to protect elders from power of attorney abuse, argues Genevieve Mann of Gonzaga University School of Law in an article in the Maryland Law Review. The power of attorney—a legal document that allows a person to make decisions on behalf of another—as well as individuals who wield this power, are subject to little oversight, explains Mann. Mann argues that regulatory changes should include stricter supervision of agents through a centralized power of attorney registry, a system for notifying elders of actions that their agents take on their behalf, and a mechanism by which elders receive periodic financial accounting.
• Regulators should include romance scams in the statutory definition of elder financial exploitation to allow financial institutions to distinguish acceptable transactions from scams, urges Milteva Andonellis from Kirkland & Ellis LLP in an article for The Elder Law Journal. Banks can observe financial exploitation but are unlikely to report it because of the ambiguous definition of elder financial exploitation, contends Andonellis. Adonellis explains seniors voluntarily send funds to a romance scammer through wire transfer, usually to an overseas account. The inclusion of romance scams in the definition of elder exploitation should acknowledge that even though banks require the sender to verify the recipient’s name, scammers take advantage of the senior’s romantic feelings to justify any discrepancies, warns Andonellis. Andonellis argues that recognizing romance scams under the statutory definition of elder financial exploitation will allow financial institutions to distinguish acceptable transactions from scams.
• In an article for the Iowa Law Review, Katrice Bridges Copeland of Pennsylvania State Law describes how the more relaxed rules for telemedicine services during the pandemic could make Medicare recipients more vulnerable to fraud. For example, the Centers for Medicare and Medicaid Services eliminated certain restrictions on telehealth, including giving reimbursements for telehealth visits for rural and urban patients and allowing telephone-only visits, explains Copeland. One of the most harmful rule changes, argues Copeland, allows seniors to receive telemedicine services from medical providers with whom they have no prior relationship. These providers can then easily prescribe medical equipment, drugs, and tests without regard to medical necessity and subsequently profit from the Medicare payments for such tests, warns Copeland.
• The FTC’s suggestion for consumers to install spam blocker apps is an insufficient safeguard against harassing calls, argues Nicole Egan from Cohu in an article for the University of Massachusetts Law Review. Consumers, particularly senior citizens and individuals who are cognitively impaired, are often targeted by fraudulent phone calls or texts, resulting in financial and psychological harms, explains Egan. In 2020, the FTC received over three million complaints from people who still received robocalls despite listing their numbers on the National Do Not Call Registry, notes Egan. Stricter identification requirements for phone number user registration and bans on the sale of personal data could provide better protection, suggests Egan.
• In an article for The Elder Law Journal, James S. Spaulding from Koya Law LLC argues that since the elderly are “prime targets” of predatory vacation rental property sales and resale tactics, greater legal protections are needed. Spaulding notes that “high-pressure sales tactics” for vacation rentals are pervasive, and the difficulty purchasers face in recuperating lost assets makes them attractive to scammers. Federal legislation should protect consumers, especially the elderly, against predatory sales and resale practices for vacation rental properties by mandating public reporting of suspected fraud, insists Spaulding.

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Protecting Seniors from Scams

Britney Spears Is One of a Million Adults in Conservatorships. Here's What Advisors Should Know.

Michael Hackard

by Jane Wollman Rusoff

 

Increasingly, many older people with dementia and Alzheimer’s disease are living under conservatorships, which allow others to manage their affairs. From a legal standpoint, a financial advisor can become a conservator.

But Michael Hackard, a veteran estate and trust attorney specializing in elder law, doesn’t recommend it. His clear advice to advisors: “Don’t become a conservator,” as he tells ThinkAdvisor in an interview.

Pop star Britney Spears’ legal fight to end her 13-year-long conservatorship is hot news, but many non-celebrities try, with frustration, to break free of theirs too when the need for total control may be unwarranted.

More than 1 million U.S. adults are in a conservatorship, also called a guardianship, according to the Justice Department’s Elder Justice Initiative.

Spears, 39, has been in a conservatorship, petitioned by her father, James Spears, since 2008, when the singer was deemed dangerous to herself because of mental health and substance abuse issues. Her estate is reportedly worth more than $60 million.

At a June 23 hearing, she asked to be free of what she called an abusive conservatorship. And on July 14, the court granted her the right to appoint her own lawyer.

That day, she said she wanted to press charges against her father for conservatorship cruelty.

Bessemer Trust, the co-conservator of Spears’ estate (there is a separate one for her person), had earlier asked to resign the position, and the court granted the request.

In the interview, Hackard, founder of Hackard Law in Sacramento, California, and author of “Alzheimer’s, Widowed Stepmothers & Estate Crimes” (2019), discusses “restoration proceedings” — such as Spears’ action — to dissolve a conservatorship, also known as a guardianship.

All of this is against a background of what Hackard calls a poorly regulated “industry of for-profit conservators” — “runaway fiduciaries” — in California, where the Spears case is being litigated. 

An alternative to conservatorships and what has become “a trend,” Hackard points out, is “supported decision-making,” a less restrictive approach that has been adopted by 12 states. California isn’t among them.

ThinkAdvisor interviewed Hackard on July 14. He was on the phone from Sacramento. As for advisors becoming conservators, he argues: “It’s probably best left to family members or a professional conservator.”

Here are highlights of our interview:

THINKADVISOR: How often do financial advisors run into clients who need a conservator?

MICHAEL HACKARD: They’re running into it now with regularity because people are living longer; baby boomers have come into older age.

A FINRA rule says that advisors can put a hold on disbursements if there’s suspected financial exploitation. Under the federal Senior Safe Act, advisors have immunity from disclosing people they suspect [of having impaired decision-making ability].

But it doesn’t give them immunity with regard to communications with nongovernment agencies.

Suppose an FA has a client they suspect is in cognitive decline. Can they recommend to the client’s trusted contact, as defined by FINRA, that they should look into the matter?

Yes. They could say, “I suspect there are severe memory problems or judgment issues.” The trusted contact could talk to other family members to address it.

But if the financial advisor goes much beyond that, they could potentially be responsible for an invasion of privacy. It’s case by case.

Can a financial advisor be a conservator?

From a state law perspective, they could. But it might well conflict with their own professional [advisor] requirements or licensing. 

It’s probably best left to family members or a professional conservator.

Why?

My advice to any financial advisor: Don’t become a conservator. As a fiduciary, they’ll pick up all kinds of potential liability; and depending on the state, their fees will have to be approved by the court every year or two.

How is the relationship with an FA impacted if the client is under a conservatorship?

When someone becomes conserved, they no longer have contractual rights, so the conservator takes over the finances of the conservatee. Therefore, in a sense, the financial advisor has a new client.

But the conservator might have his or her own preferences for an advisor. In one case I’m dealing with, involving about $100 million, the conservator has her own preferred financial advisor.

I’m sure that the people who are conserved had an advisor; but in all likelihood, they were different from the one the conservator picked.

So, if a client is under a conservatorship, the conservator could very well make them leave their existing advisor?

They can leave them easily.

Is there an alternative to a conservatorship?

A couple of years ago, the American Bar Association came out with a resolution that the states ought to enact statutes for “supported decision-making.” 

That’s now a trend and gives conservatees much more autonomy. About a dozen states allow this approach [including Colorado, Delaware, Nevada, North Dakota and Texas, as well as the District of Columbia].

What does it entail?

An individual with dementia, for example, is able to contract with, say, a financial advisor as to supported decision-making for their financial affairs and a health care professional for their health care affairs.

What would that mean for FAs?

They would need to look at the local law. There would probably be contractual provisions that could be put in to protect them because when things go wrong, they can go real wrong.

But the idea is for people to keep their liberty, self-determination and autonomy. With a conservatorship, all that’s generally lost because the conservatee loses the right to contract, marry, vote, be employed. 

It’s said that convicted murderers in the local prison have far more rights than a conservatee.

What are the challenges for someone who wants to end a conservatorship, like Britney Spears says she does?

Conservatorships are secret. A lot of people in a conservatorship can’t escape them.

[When they try] in a restoration proceeding, [attorneys] can’t look at the court records to see what the court has allowed and not allowed.

This is Britney Spears’ effort — to get her rights and freedom back as a citizen. You can see why in a case like hers, a supported decision-making arrangement [would be appropriate].

She could have her own financial advisor and her own health advisor. But California [where her case is being litigated] has no statute on supportive decision-making.

In the Spears case, Bessemer Trust, the financial co-conservator with her father, Jamie Spears, asked to resign. Please discuss.

I can see why they wanted to resign. They probably don’t like their name in the news for alleged abuse against a conservatee, particularly a really famous conservatee.

I would think that the court will let them resign, with some conditions.

Why are conservatorships so commonplace and hard to get out of?

In general, the courts should consider the least restrictive alternative because conservatorships take people’s freedom and autonomy away. But [less restrictive alternatives] are given short shrift in the annual review of conservatorships. 

The American Bar Association says that annually, there ought to be at least consideration of a less restrictive alternative so that the conservatorship can be dissolved or unwound. But that’s not being considered as part of the review.

Recently released was a TV documentary series, “The Price of Care,” about the California conservatorship system, and for which you were interviewed. Why is it controversial?

There’s an industry around conservatorships: for-profit conservators. And it’s a major problem. 

For example, California has about 1,200 for-profit fiduciaries who might be serving as conservators. They are lightly regulated; the oversight is very, very poor.

The Legislature is looking at changing the rules, but it hasn’t happened yet. You see runaway fiduciaries. This is part of the court system for conservators. It’s really incestuous.

And who’s paying the fiduciary, the fiduciary’s lawyer, their subcontractors [et al.]? The conservatee.

All’s well until the money runs out. At that point, the [paid] professional conservator isn’t going to stay. So the court will appoint a public guardian, who [likely] will get paid with taxpayer money.

How bad can the looting get?

I’ve seen some atrocious situations that start with a lot of money; but by the time the conservator, their lawyers, their advisors [et al.] are paid, homes get sold because whoever has been chosen to provide care for the conservatee may be really expensive.

I’m not saying that 100% of conservatorships go wrong, but I don’t think our laws have caught up with the reality.

What’s blocking the reform?

When legislative changes are proposed, the for-profit conservatorship organizations fight upgrading the laws to reflect the reality that our citizens should have better protections.

Do they do that because they’re getting paid high fees?

Yes. It’s that simple. I understand that people have to make a living, but we need to assess the policies.

Are conservatorships overused?

I’m in a field that deals with elders. I see the sad cases — the dementia, Alzheimer’s. About 6.5 million people have Alzheimer’s.

I deal with clients who I think may have it but maybe aren’t diagnosed with it. So they’re in need of help, and some are going to be in need of a conservatorship.

But probably a smaller percentage of these clients can be helped by a trusted contact or family member. 

(Pictured: Michael Hackard)

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Britney Spears Is One of a Million Adults in Conservatorships. Here's What Advisors Should Know.

Guardians seek changes to assist in final arrangements

Pryor

Dillman

by Olivia Covington

In the year of COVID-19, court-ordered adult guardians have faced a grim reality: their clients, many at a high risk for medical complications, are getting the virus and passing away.

For Becky Pryor, a longtime guardian and guardianship advocate, a typical year might include one client death, maybe two. But by October of 2020, two of her wards had died after a positive COVID-19 diagnosis. By November, three had.

“It’s no joke. This is real,” said Lisa Dillman, a partner at the elder law firm of Applegate & Dillman. Like Pryor’s guardianship practice, Dillman’s firm has dealth with more deaths in 2020 than normal.

Aside from the emotional toll of losing a guardianship client, another longstanding issue in the guardianship world has been exacerbated by the pandemic, Pryor said. When a client dies, guardians are unable to finish their duties, she said, specifically overseeing the disposition of the body.

Under Indiana law, a guardianship ends at the time of a ward’s death. While a guardian will have financial and administrative duties to tie up, Pryor said the statute gives her and other guardians no authority to oversee post-mortem matters.

Instead, the law lists several other parties who can tend to those matters, including surviving spouses and powers of attorney, to name a few. But to Pryor and others working in guardianship, the question is, what if a spouse or power of attorney isn’t willing or able to do the job?

To that end, a guardianship task force has recommended that the Indiana Legislature amend state statute to give guardians authority over dispositions if necessary. While the concept received general support in a recent meeting of the Probate Code Study Commission, the question remained: how do you balance the authority of a guardian with that of another party, such as a POA?

That issue, Pryor said, is one that must be resolved in order to get a bill passed.

Making the list

Pryor presented the legislative proposal to the Probate Code Study Commission on behalf of the Working Interdisciplinary Networks of Guardianship Stakeholders — or WINGS — Indiana Adult Guardianship State Task Force. The group representing nearly 200 advocacy organizations proposed amendments to Indiana Code § 29-3-12-1(e) and I.C. 29-2-19-17(2) to allow a guardian to oversee a ward’s disposition.

The former statute provides that “(w)hen a guardianship terminates by reason of the death of the protected person, the powers of the guardian cease, except that the guardian may pay the expenses of administration that are approved by the court and exercise other powers that are necessary to complete the performance of the guardian’s trust … .” But under the latter statute, those “other powers” do not include disposition of a body.

Instead, I.C. 29-2-19-17(2), Indiana’s funeral planning declaration statute, names 10 individuals, listed in order of priority, who can sign off on a disposition. Among them are a power of attorney, a surviving spouse or “any other person willing to act and arrange for the final disposition of the decedent’s remains … .”

Bennett

Ken Bennett practices guardianship law at Bennett & McClammer in Indianapolis and is also CEO of the nonprofit CARE, or Center for At-Risk Elders Inc.. When the issue of disposition has arisen in CARE’s cases, he said the organization has relied on the “any other person” provision — number 10 in the list of 10 individuals — to allow CARE to oversee final disposition.

The problem, though, according to Pryor, is that the number 10 option comes with a caveat: the individual acting as “any other person” must “attest in writing that a good faith effort has been made to contact any living individuals described in subdivisions (1) through (9).”

Guardians are often asked to attest that they do not know of any other individual who could sign off on disposition, Pryor said, which may not be the case. An adult under guardianship may have living family or a power of attorney, she said, but those individuals may have proven themselves to be unwilling or unable to carry out these duties.

Willing and able

That issue proved to be a sticking point when the Probate Code Study Commission met in October to discuss the amendments. Under the WINGS proposal, the funeral planning declaration statute would be amended to give guardians the second priority spot on the list, bumping powers of attorney down to the third spot and spouses to the fourth.

Probate attorneys on the commission questioned that move, noting that powers of attorney generally have greater authority under Indiana law than guardians. Commissioner and Vincennes lawyer Jeff Kolb opined that POAs likely knew the incapacitated adult while guardians could be strangers. Similarly, lawyer and commissioner Jim Martin said a power of attorney would have to be revoked to give a guardian greater authority.

Pryor did not question their legal arguments, but instead pointed to what she said is a practical reality: If an adult is under guardianship, the POA, who is often a family member, likely has been unwilling or unable to perform their duties. She and other guardians will frequently petition courts to revoke a POA in those situations, she said.

What’s more, Pryor continued, guardians usually know their clients well and are familiar with their needs and wishes.

Pryor told IL if a client’s spouse is living, they will be consulted in issues regarding disposition. But if a guardianship was ordered, the spouse likely was unable to adequately care for their husband or wife.

Two or three?

Pryor said Sen. Tim Lanane, D-Anderson, has agreed to carry legislation in the 2021 session that would make the changes the task force is seeking. IL was unable to reach Lanane for comment.

The big question that needs to be answered, Pryor told IL, is what place on the list guardians should take. But there are other statutory issues that may arise.

Bennett, for example, noted there are conflicts in Indiana law regarding the authority of a power of attorney and the authority of a guardian. If a guardianship is in place, he said, the guardian seems to be the more natural decision-maker.

Additionally, Indianapolis probate lawyer Jeff Dible told the commission that there are three other lists in Indiana probate law that track with the list of individuals in the funeral planning declaration statute. If one list is changed, Dible said, the other three would have to follow.

Like Pryor and Bennett, Dillman supports the proposal but offered some practical advice if a bill is not passed this year.

“If a client goes and hires a lawyer to do a power of attorney, the job doesn’t stop there,” Dillman said. “… If the client is not sure what they want yet, they should appoint someone who has the authority. This could all be handled in a preplanning situation.”•

 

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Guardians seek changes to assist in final arrangements

Court Upholds Guardianship After Long Contest

by Joseph Klein

 

On March 18, 2020, the New York Appellate Division, Second Department affirmed the decision upholding the proposed guardian selected by Korsinsky and Klein, LLP in a highly contested guardianship proceeding brought on behalf of its client. In addition, the appellate court affirmed the decision by the lower court that revoked the health care proxy and power of attorney of a sibling. In the Matter of Rachel Z., the Court found that the appointment of a guardian was necessary and found that the agent under the previously signed Health Care Proxy and Power of Attorney “was not a sufficient and reliable available resources to protect Rachel’s interests,” and that the appellant was not acting in Rachel’s best interest. You can read a copy of the decisions on our website by visiting https://www.kklawfirm.com/press/contested-guardianship-appeal/. 

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Court Upholds Guardianship After Long Contest

Virginia: Levine’s guardianship bill faces unexpected last-minute objection from state bar lawyer

By Bridget Balch

Delagate Mark Levine

For the third year, Del. Mark Levine, D-Alexandria, proposed a bill intended to strengthen family members’ and loved ones’ rights to visit adults who are under legal guardianship. After spending a year working with numerous stakeholder groups to refine the bill into something everyone agreed upon, he was surprised when a lawyer from the Virginia Bar Association stood in opposition during the bill’s subcommittee hearing.

Levine’s first attempt at the bill was inspired by a constituent, Mike Jacobs, who came to Levine with a story about how he had been unfairly banned from seeing his longtime partner, Jane Lopez, who had Alzheimer’s disease, by an attorney serving as Lopez’s legal guardian, Levine said.

Shannon Laymon-Pecoraro

Shannon Laymon-Pecoraro, an elder attorney representing the Wills, Estates and Trusts Section of the state bar, objected to several parts of the bill. Among them is a provision that would place greater emphasis on the guardian ad litem determining whether any conflicts of interest exist among the parties in the guardianship case. A guardian ad litem is an attorney appointed by the court to investigate a guardianship case and represent the allegedly incapacitated person’s best interests. 

“It’s our position that the guardian ad litem is not an ethics expert and it’s the attorneys’ job themselves to determine whether or not there’s an ethical issue,” said Laymon-Pecoraro, who asked that the bill be delayed another year. “We have proposed that because this is a major overhaul and the bill has continued to evolve rapidly over the course of the last few months, that we not act in haste and that instead that we continue to work with Del. Levine.”

Levine said that provision in the bill was intended to addresses issues like those reported in the Richmond Times-Dispatch three-part investigative series into guardianship that revealed that VCU Health System and other health care providers were taking low-income patients to court and requesting that their own attorney be appointed the patient’s guardian. The guardianship orders gave the hospital’s attorney control over the patient’s medical decisions and finances. The series also found that the same guardian ad litem was employed in nearly 90% of all of cases over the past six years and that her fees were paid by VCU Health. 

“Hospitals are sometimes trying to get rid of difficult patients — difficult because they cost the hospital a lot of money — so they get their guardian and their guardian ad litem and they all pay these people and then no one’s there to represent the interest [of the patient],” Levine said, in defense of the provision. “The point is so the judge knows who’s paying the fees.”

He also referenced Yolanda Bell, a Manassas resident who attended the subcommittee hearing to advocate for the bill. Her sister was put under guardianship at the request of Inova Health System and she later faced visitation restrictions imposed by her sister’s guardians.

“As a family of faith, our religious beliefs are very important to us, and because of the severe restrictions imposed by the guardians, even clergy were turned away from my sister,” Bell told the subcommittee. “She was not able to receive the last rites of the church.”

Laymon-Pecoraro also objected to a provision in the bill that would allow a close relative or intimate partner to request a court-appointed lawyer on behalf of the allegedly incapacitated person. Under current law, the incapacitated person has a right to a court-appointed lawyer, but only if requested. And it is up to the guardian ad litem to determine whether a lawyer is needed even if the patient requests one.

“The right to counsel is a due process right of the respondent and not that of anybody else,” Laymon-Pecoraro said.

The Times-Dispatch investigation found that the guardian ad litem in the majority of health care provider-sponsored guardianship petitions in Richmond almost never recommended a lawyer for the patient, and on at least one occasion, said she did not believe it was necessary even though the allegedly incapacitated person requested it.

Levine expressed frustration that the bar’s concerns were not brought to him before the subcommittee meeting and said that the latest draft of the bill — draft 23 — addresses the concerns Laymon-Pecoraro had detailed.

“I can give a point-by-point rebuttal to every single — every single issue she raised is addressed in the substitute because I have been working with [the Virginia Academy of Elder Law Attorneys] and AARP and the National Guardianship Association and Alzheimer’s [Association],” Levine told the subcommittee members.

Laymon-Pecoraro said that the Wills, Trusts and Estates Section of the state bar association had not attempted to discuss the legislation with Levine and that the section members had only been able to discuss the bill the previous Friday.

Del. Patrick Hope, D-Arlington, who is a health care lawyer, said that he had mobilized elder law attorneys to help stop Levine’s guardianship bill during the last legislative session and that he was disappointed that concerns with the bill still hadn’t been addressed.

Levine said that Virginia Bar Association representatives were involved with discussions around the bill and that he had incorporated all of their suggestions.

Brad Brickhouse, an elder law attorney who opposed Levine’s bill last year, said he supports the version presented to the committee.

“I still disagree with Del. Levine on pretty much everything else, but this bill is OK,” Brickhouse said. “I can’t think of any group that wasn’t at the table.”

The subcommittee directed Levine and Laymon-Pecoraro to work on a compromise in time for the bill to be heard before the full House Courts of Justice Committee on Friday.

“My impression from the way we do things here though is we kind of like to kick everybody out and tell them to come back when they’ve worked their differences out,” said Del. Marcus Simon, D-Fairfax, a member of the subcommittee. “Perhaps this can be ready by Friday, if not it can go by for the session.”

Levine said he was willing to hash out the details with Laymon-Pecoraro on Wednesday night after the subcommittee meeting, but that she did not have authority to negotiate on the state bar’s behalf. Instead, she directed him to Tom Yates, chair of the legislative committee of the bar’s Wills, Trusts and Estates Section.

Yates and Alison Zizzo, who represented the Virginia Bar Association in stakeholder meetings to discuss Levine’s bill, did not respond to questions sent Thursday.

Another House subcommittee agreed Wednesday to send a letter to the Joint Legislative Audit and Review Commission, the state’s oversight arm, requesting a study of guardianship and ways to prevent abuse, which was proposed by Levine and Del. Danica Roem, D-Prince William.

 

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Virginia: Levine’s guardianship bill faces unexpected last-minute objection from state bar lawyer