The Bible of Elder Law
by Just Learned Ham
I was puzzled when Sister Emily Latella asked me to write an article for the special Bar Journal elder law issue. I was, of course, flattered and eagerly agreed - you've always got to be thinking about the resume, and the exposure of a major legal periodical is intoxicating - but it seemed like such an unlikely subject. Missionaries don't typically face many legal issues. I have to confess that, at first, I couldn't think of enough elder law issues to fill an elder law issue. But the more I thought about it, an elder faces tough legal calls every day of the best two years of his life. And there really aren't any good treatises available. Even if there were, the "triple combination" is hefty enough as it is. I think we'll have to settle for some issue-spotting.
Continue reading "The Bible of Elder Law" »
Assisted Living in Utah: A Brief Overview for Consumers
by Mary Jane Ciccarello and Joanne Wetzler
What is Assisted Living?
The term "assisted living" describes a wide range of facilities that provide some type of long-term care to older or disabled persons who can no longer live independently. Assisted Living has become a very popular long-term care option in recent years, and assisted living facilities now provide a greater variety of services than ever before. In the past, assisted living residents generally needed no more than limited assistance with "activities of daily living," (ADLs), such as bathing, grooming, dressing, eating, toileting, and walking. Today, however, assisted living facilities provide or arrange for a significant amount of health care, from medication administration to physical therapy and wound care.
Continue reading "Assisted Living in Utah: A Brief Overview for Consumers" »
Private Care Management - Professional Assistance for the Care of Elderly and/or Disabled Clients
by Margy Campbell
The Growing Challenge
The over-80 population is steadily increasing and creating a challenge to lawyers - older clients with problems in their decision-making capacity. It seems that more and more frequently lawyers are faced with the issue of mental capacity of their clients.
Rule 1.14, ABA's Model Rules of Professional Conduct, 2002 Revised, concerning the client with diminished capacity, provides some guidance. The rule triggers protective action when an attorney reasonably believes that a client has diminished capacity, there is a potential for harm to the client, or the client cannot act in his or her own interest.
Continue reading "Private Care Management - Professional Assistance for the Care of Elderly and/or Disabled Clients" »
Why a Private Conservator?
by Becky Allred
He drove an automobile dangerously - and without insurance. Their checking account held in excess of $100,000 and he adopted the habit of handing blank, signed checks to people to fill in as it was to difficult to write it out himself. He decided he no longer wanted to visit the doctor for medication refills and would cause disturbances at the pharmacy when demanding medications inappropriately. His wife was frightened of his driving and would not ride in the car with him but was equally as frightened to take away the car keys. Together they could not fill out an insurance form so they paid full price for prescriptions. When they did decide to cook, they often forgot that there was food in the oven. She needed help and assistance but he, being frugal, thought it would be too expensive. She became malnourished and dehydrated and had to be hospitalized. They both suffered. Clearly there was a need for a conservator and/or a guardian.
Continue reading "Why a Private Conservator?" »
The Road Ahead for the Practice of Elder Law1
by Jilenne Gunther and Alan K. Ormsby
Utah's senior population is booming, and consequently, the demand for elder law attorneys is increasing. This demographic change will impact both private practitioners and Utah's non-profit community. Utah's legal community needs a clear vision of the legal problems seniors face to plan for the future.
To prepare for these challenges and opportunities, Jilenne Gunther from the Borchard Foundation on Law and Aging, and Alan Ormsby from Utah's Division of Aging and Adult Services collaborated on a pioneering study of the legal needs of Utah's aging population. This study has received positive national attention from the Administration on Aging, AARP, the American Bar Association, and the Center for Social Gerontology. Many states, including Iowa, Georgia and Florida, are now using Utah's study as a model to conduct similar studies of their own.
Continue reading "The Road Ahead for the Practice of Elder Law1" »
The Estate Planner / Insurance Salesman and the Fiduciary Duty of Loyalty:
Why no amount of disclosure and consent should overcome the breach of the fiduciary duty of loyalty by the attorney who drafts an estate plan and then receives a sales commission for the financial products sold to fund the plan
by Scott M. McCullough
Imagine a client comes to your office needing to plan his estate in anticipation of retirement from the family business and you recommend an irrevocable life insurance trust (ILIT) as the vehicle to transfer wealth and minimize taxes. To fund this plan you recommend he purchase a $2,000,000 life insurance policy, and you refer him to an old friend to purchase the policy. The commission on the sale of a $2,000,000 policy is 3% ($60,000). Now imagine that you repeat this for similar clients four times a year, your friend is making $240,000 from your referrals. Why not take a piece of the action? Why not get licensed (or have you spouse get licensed) to sell the insurance and keep those commissions for yourself?
Continue reading "The Estate Planner / Insurance Salesman and the Fiduciary Duty of Loyalty:" »
Update on End-of-Life Issues in Utah
by Maureen Henry
Utahns have faced two cases in the last six years that have shaken and informed their views of end-of-life issues. The local case against psychiatrist Robert Weitzel led to news coverage that appeared to equate the use of morphine with murder - a problematic message for patients and physicians alike. Weitzel was charged with murdering five elderly patients under his care in a geriatric psychiatric ward in a Davis County hospital. Although he was ultimately acquitted of the charges in the second of two trials, the case raised concerns that it had become impossible for physicians to walk the line between quality pain management and the threat of charges of murder or malpractice.
Continue reading "Update on End-of-Life Issues in Utah" »