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The Forgotten Rule Of Professional Conduct: Representing A Client With Diminished Capacity, Barry Kozak 2015 The John Marshall Law School, Chicago

The Forgotten Rule Of Professional Conduct: Representing A Client With Diminished Capacity, Barry Kozak

Barry Kozak

All attorneys who maintain client-lawyer relationships must continually, or at least periodically, assess each client’s mental capacity. Under the Model Rules of Professional Conduct, this assessment is a two-step process. First, the attorney must ensure that an individual has enough mental capacity to establish or maintain a normal client-lawyer relationship, and second, the attorney must ensure that the individual has enough mental capacity to legally-bind him or herself in the desired transaction or intended course of action. If the attorney determines that at any point in time, a particular client has diminished capacity, then Model Rule 1.14 requires ...


Human Dignity As A Normative Standard Or As A Value In Global Health Care Decisionmaking?, George P. Smith 2015 The Catholic University of America, Columbus School of Law

Human Dignity As A Normative Standard Or As A Value In Global Health Care Decisionmaking?, George P. Smith

George P Smith

Abstract

Dignity is seen commonly as an ethical obligation owed to human persons. The dimensions of this obligation, in today’s post secular society, are—however—subject to wide discussion and debate; for, the term, human dignity, and its preservation, defies universal agreement. Yet its preservation, together with the prevention of indignity, is a guiding principle or at least a vector of force in a wide range of issues ranging from embryo research and assisted reproduction to biomedical enhancement, and the care of the disable and to the dying. In clinical medicine, safeguarding the dignity of the patient is a ...


Reconfiguring Social Security For The 21st Century, Susan A. Channick 2015 California Western School of Law

Reconfiguring Social Security For The 21st Century, Susan A. Channick

Susan A. Channick

This article focuses on In the Matter of the Guardianship and Protective Placement of Jimmie L. v. Sauk County. The guardian in the case was appointed in one state, but the guardian desired to relocate to another state. The article also explores the use of the Uniform Enforcement of Foreign Judgments Act where issues arise in interstate guardianship.


Pension De-Risking, Paul Secunda, Brendan Maher 2015 University of Connecticut School of Law

Pension De-Risking, Paul Secunda, Brendan Maher

Paul M. Secunda

The United States is facing a retirement crisis, in significant part because defined benefit pension plans have been replaced by defined contribution retirement plans that, whatever their theoretical merit, have left significant numbers of workers unprepared for retirement. A troubling example of the continuing movement away from defined benefit plans is a new phenomenon euphemistically called “pension de-risking.”

Recent years have been marked by high-profile companies engaging in various actions designed to reduce the company’s exposure to pension funding risk (hence the term “pension de-risking”). Some de-risking strategies convert a federally-guaranteed pension into a more risky private annuity. Other ...


Getting The Most Out Of Your 401(K), Emily G. Brown JD, Jeanne Medeiros JD 2015 University of Massachusetts Boston

Getting The Most Out Of Your 401(K), Emily G. Brown Jd, Jeanne Medeiros Jd

Pension Action Center Publications

Planning for your retirement is an active and ongoing endeavor. It requires a certain amount of diligence and knowledge to ensure you have an adequate amount of financial stability at retirement. In order to safeguard your economic security, it is important to know if you are getting the most out of your 401(k) retirement savings account. This factsheet provides basic information about enrolling in a 401(k) retirement savings account and important items to keep in mind once you are enrolled.


Selling Hospice, Sam Halabi 2015 University of Tulsa College of Law

Selling Hospice, Sam Halabi

Sam Halabi

Americans are increasingly turning to hospice services to provide them with medical care, pain management, and emotional support at the end of life. The increase in the rates of hospice utilization is explained by a number of factors including a “hospice movement” dating to the 1970s which emphasized hospice as a tool to promote dignity for the terminally ill; coverage of hospice services by Medicare beginning in 1983; and, the market for hospice services provision, sustained almost entirely by governmental reimbursement. On the one hand, the growing acceptance of hospice may be seen as a sign of trends giving substance ...


El Deslizamiento Del Salario Mínimo ¿Un Subsidio A La Oferta?, Fernando Castillo Cadena 2015 Pontificia Universidad Javeriana

El Deslizamiento Del Salario Mínimo ¿Un Subsidio A La Oferta?, Fernando Castillo Cadena

Fernando Castillo Cadena

No abstract provided.


Finding The Middle Ground On A Slippery Slope: Balancing Autonomy And Protection In Mandatory Reporting Of Elder Abuse, Benjamin Pomerance 2015 Marquette University Law School

Finding The Middle Ground On A Slippery Slope: Balancing Autonomy And Protection In Mandatory Reporting Of Elder Abuse, Benjamin Pomerance

Marquette Benefits and Social Welfare Law Review

Millions of older Americans suffer from physical, mental, emotional, or financial abuse. Frequently, their abusers are family members, close friends, or other individuals who occupy positions of trust in their elderly victims’ lives. Unfortunately, due to a variety of factors, elder abuse is a tragically underreported crime. Experts estimate that for every case of elder abuse revealed to law enforcement authorities, five more cases go unreported, allowing the abuse to continue unchecked.

To combat this secrecy surrounding elder abuse, federal and state lawmakers enacted statutes requiring certain people— or, in some jurisdictions, all people—to report instances of suspected elder ...


The Intersection Of Agency Doctrine And Elder Law: Attorney-In-Fact Authority To Arbitrate Nursing Home Claims, 49 J. Marshall L. Rev. 39 (2015), Thomas Simmons 2015 John Marshall Law School

The Intersection Of Agency Doctrine And Elder Law: Attorney-In-Fact Authority To Arbitrate Nursing Home Claims, 49 J. Marshall L. Rev. 39 (2015), Thomas Simmons

The John Marshall Law Review

With the popularity of durable powers of attorney to manage the estates and personal affairs of individuals with diminished capacity, construction of the scope of powers with which agents are acting is of increasing importance. Some acts should be seen as so inherently personal or so dramatically inconsistent with the expected role of an agent as to be simply outside the scope of agency altogether. Others, such as those involving gifts, self-dealing transactions, or constitutional rights, should be never implied but honored when located within the express terms of an agent’s authority. The remaining powers should be construed and ...


A Better Death In Britain?, Barbara A. Noah 2015 Westen New England University School of Law

A Better Death In Britain?, Barbara A. Noah

Faculty Scholarship

In the United States, patients and physicians often avoid discussing the inevitability of death and planning for it. As a result, opportunities are missed to make choices that comport with patients’ values and preferences. In the absence of such decisions, the default model is to “err on the side of life,” which often results in overtreatment or inappropriate prolongation of life and avoidable suffering. This Article discusses the United States' end-of-life training and care and Britain’s Liverpool Care Pathway as related to end-of-life care availability, quality, and cost. It further sets forth the argument that while the United States ...


Medicaid Planning For Long-Term Care: California Style, John A. Miller 2015 University of Idaho College of Law

Medicaid Planning For Long-Term Care: California Style, John A. Miller

Articles

No abstract provided.


Medicaid Spend Down, Estate Recovery And Divorce: Doctrine, Planning, And Policy, John A. Miller 2015 University of Idaho College of Law

Medicaid Spend Down, Estate Recovery And Divorce: Doctrine, Planning, And Policy, John A. Miller

Articles

Medicaid is the need-based government program that pays for much of the health care for the poor in the United States. Medicaid often ends up paying the costs of nursing home care for middle-class seniors who have descended into poverty as a result of the high costs of such care. For married couples, Medicaid requires a “spend down” of both spouses’ assets before one spouse can qualify for Medicaid support. This Article posits that, unless the law is changed, divorce may well become standard Medicaid planning practice in many circumstances. This will be especially true for middle and upper-middle-class married ...


Legal Considerations For Assisted Living Facilities, Y. Tony Yang 2015 Cleveland State University

Legal Considerations For Assisted Living Facilities, Y. Tony Yang

Journal of Law and Health

The elderly population in the United States will expand drastically over the next few decades; indeed, the number of persons aged 65 or older is expected to swell to approximately 19 percent of the nation’s population by 2030--a staggering statistic in light of the fact that the present population of elderly people constitutes fewer than 13 percent. Largely because of this fact, long-term care for this population is becoming increasingly important. Traditionally, elderly persons who lost the ability to fully care for themselves would enter a healthcare facility known as a nursing home. However, a relatively new alternative exists ...


Forfeiting Trust, Deborah Gordon 2014 Drexel University Thomas R. Kline School of Law

Forfeiting Trust, Deborah Gordon

Deborah S Gordon

Over the past two years, a significant number of appellate courts in jurisdictions throughout the country have been faced with trust provisions that purport to disinherit any beneficiaries who challenge a trustee’s decision-making. Such provisions to “secure compliance...with dispositions of property” — known as “forfeiture,” “no-contest,” “anti-contest,” or “penalty” clauses — have appeared in wills for well more than a century. But the trust clauses differ from their testamentary counterparts and thus deserve serious scrutiny in their own right, especially because the abundance of recent cases has led to increasingly inconsistent and haphazard approaches. This Article exposes the problems that ...


Trusting Trust, Deborah Gordon 2014 Drexel University Thomas R. Kline School of Law

Trusting Trust, Deborah Gordon

Deborah S Gordon

What is a trustee and how should we understand her duties? The existing literature typically identifies the trustee in the role of agent, partner or contracting party. This Article re-envisions the trustee in the role of the legal system’s most trusted type of decision-maker: the common law judge. Rather than argue for a top-down recreation of the trustee’s role, this Article contends that valuable lessons can be learned by reconceptualizing how trustees, settlors, and beneficiaries view themselves and each other. Using traditional literature about great judging as a touchstone, the Article argues that those qualities essential to principled ...


Sexuality And Incapacity, Alexander Boni-Saenz 2014 Chicago-Kent College of Law

Sexuality And Incapacity, Alexander Boni-Saenz

Alexander Boni-Saenz

Sexual incapacity doctrines are perhaps the most important form of sexual regulation, as they control access to sex by designating who is legally capable of consenting to sex. Most states have adopted sexual incapacity tests for adults that focus narrowly on assessing an individual’s cognitive abilities. These tests serve an important protective function for people with temporary cognitive impairments, such as those rendered incapable due to alcohol or drugs. However, this comes at the cost of barring many people with persistent cognitive impairments, such as Down Syndrome or Alzheimer’s Disease, from any sexual activity. This is despite the ...


The Intersection Of Agency Doctrine And Elder Law: Attorney-In-Fact Authority To Arbitrate Nursing Home Claims, Thomas E. Simmons 2014 University of South Dakota School of Law

The Intersection Of Agency Doctrine And Elder Law: Attorney-In-Fact Authority To Arbitrate Nursing Home Claims, Thomas E. Simmons

Thomas E. Simmons

With the popularity of durable powers of attorney to manage the estates and personal affairs of individuals with diminished capacity, construction of the scope of powers with which agents are acting is of increasing importance. Some acts should be seen as so inherently personal or so dramatically inconsistent with the expected role of any agent as to be simply outside the scope of agency altogether. Others, such as those involving gifts, self-dealing transactions, or constitutional rights, should be never implied but honored when located within the express terms of an agent's authority. The remaining powers should be construed and ...


Balancing Testamentary Incapacity And Undue Influence: How To Handle Will Contests Of Testators With Diminishing Capacity, Richard B. Keeton 2014 University of Washington School of Law

Balancing Testamentary Incapacity And Undue Influence: How To Handle Will Contests Of Testators With Diminishing Capacity, Richard B. Keeton

Richard B. Keeton, Esq.

Will contests involving testators with diminishing capacity present a number of challenges to attorneys and courts. One such challenge is the fact finding process to balance concurrent allegations of testamentary incapacity and undue influence. While a lack of testamentary incapacity and undue influence are two distinct grounds for avoiding a will, many courts have had conflicting opinions on whether a finding of undue influence is dependent upon a finding of requisite testamentary capacity or whether the two findings are mutually exclusive. This article attempts to provide a general understanding of basic concepts and theories relating to will contests of testators ...


The Evolution Of “Fred”: Family Responsibilities Discrimination And Developments In The Law Of Stereotyping And Implicit Bias, Joan C. Williams, Stephanie Bornstein 2014 University of Florida Levin College of Law

The Evolution Of “Fred”: Family Responsibilities Discrimination And Developments In The Law Of Stereotyping And Implicit Bias, Joan C. Williams, Stephanie Bornstein

Stephanie Bornstein

This Article integrates a discussion of current family responsibilities discrimination ("FRD") case law with a discussion of the single most important recent development in the field: the U.S. Equal Employment Opportunity Commission’s ("EEOC") 2007 issuance of Enforcement Guidance on caregiver discrimination. The Guidance concretely informs the public about what constitutes unlawful discrimination against caregivers under Title VII and the Americans with Disabilities Act. Specifically, the Guidance crystallizes two key holdings from case law in regard to Title VII disparate treatment claims brought by caregivers: (1) where plaintiffs have evidence of gender stereotyping, they can make out a prima ...


Understanding The Differences Between Defined Benefit Pension And Defined Contribution, Emily G. Brown JD, Jeanne Medeiros JD 2014 University of Massachusetts Boston

Understanding The Differences Between Defined Benefit Pension And Defined Contribution, Emily G. Brown Jd, Jeanne Medeiros Jd

Pension Action Center Publications

In recent years, more and more employers are offering employees defined contribution plans instead of defined benefit plans. Although, there has been a shift away from the defined benefit pension plan, it is important for employees to understand the difference and value of both pension plans.

Each type of pension plan has both advantages and disadvantages. What may appear as an advantage to one person might seem to be a disadvantage to another person. For example, a person who spends all or most of her career with a single employer will have very different concerns from someone who changes jobs ...


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