Still a Best-Kept Secret in Adult Guardianship:

Using the Skills of Occupational Therapists

BIFOCALA Journal of the Commission on Law and Aging Vol. 34, No. 4, March-April 2013

Book Review: A Short and Happy Guide to Elder Law by Charlie Sabatino

H.R. 1601: SSI Restoration Act by Gerald McIntyre

Plus:A Look at Legal Services by OAA Funded Providers

COLA’s Fall Intern Search...and more inside!

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BIFOCAL March - April 2013 Vol. 34, No. 460

Inside the CommissionFind these resources, and more, online at: http://ambar.org/COLA.

• ABA President Laurel Bellows released an audio news release in preparation for April 16th’s National Health Decisions Day: “ABA President to All Americans: Develop Advance Directives While You Still Can.” Find the recording and transcript online: http://bit.ly/YJZPuk.

• “The Right Way to Craft a Living Will” an article from Bloomberg News with insight from Charlie Sabatino: http://bloom.bg/10UDW9X.

• “A Privacy Law Often Misinterpreted” from the New York Times blog The New Old Age, with insight from Charlie Sabatino: http://nyti.ms/Zpyxnj.

• Institute of Medicine Workshop Elder Abuse and its Prevention (4/17-18) with #COLAstaff Stiegel and Sabatino http://bit.ly/XbLaYT.

• Collaborate is a newly launched discussion list jointly sponsored by the ABA CommissiononLawandAgingandtheAssociationforConflictResolution’sSectiononElderDecision-MakingandConflictResolution.Tobeadded,pleasecontact Trisha Bullock at trisha.bullock@americanbar.org.

TwitterFollow us:@ABALawandAging

FacebookWe are listed as:ABA Commission on Law and Aging

Connect with Us OnlineDiscussion ListsThe Commission provides a forum for legal professionals to communicate and share ideas on two active discussion lists:• Elderbar, an open discussion list for professionals in law

and aging, and • Collaborate, a discussion list on aging, disability, and

dispute resolution.(jointly sponsored by COLA and the AssociationforConflictResolution’sElderDecisionsSection).

Visit the Commission’s homepage for more information on how to sign up. ■

BIFOCAL March - April 2013 Vol. 34, No. 461

60 Inside the Commission

62 Still a Best-Kept Secret in Adult Guardianship: Using the Skills of Occupational Therapists by Erica Wood and Orit Simhoni

67 H.R. 1601: The Supplemental Security Income Restoration Act by Gerald McIntyre

69 A More Detailed Look at Legal Services by Older Americans Act Funded Providers by David Godfrey

71 COLA Internship/Externship Program Now Reviewing Applications!

72 Book ReviewA Short & Happy Guide To Elder Law Elder Law Served Up in Tasty Bites by Charlie Sabatino

74 PromotionCOLA Moving Sale!

75 Elder Law Day 2013How was your event?

76 Annual NLRC User Feedback Poll

75 PromotionSenior Identity Theft: A Problem in This Day and Age

78 PromotionUpcoming COLA CLE

BIFOCAL

BIFOCALJournal of the American Bar Association Commission on Law and Aging

CommissionersDavid English, ChairmanMarcos Acle Hon. Patricia Banks Walter Burke Claire Curry Dr. XinQi Dong Lynn Friss Feinberg Dr. Jason Karlawish Nina Kohn Richard Milstein Anthony R. Palermo Kerry Peck William L. Pope Gloria Ramsey Dorothy Siemon

StaffCharles P. Sabatino, Director Erica F. Wood, Ass’t Director Lori A. Stiegel David Godfrey Sonia M. Arce Trisha Bullock

EditorAndrea Amato

BIFOCAL, ISSN 0888-1537, is published six times a year by the ABA Commission on Law and Aging, 740 15th St., N.W., Washington, DC 20005.

© 2013 American Bar Association. All rights reserved.

The views or opinions expressed herein do not necessarily represent the policies of the American Bar Associationunlessspecificallyadopted as such.

Questions? Contact the Commission at (202) 662-8690, or at: www.americanbar.org/aging.

Reprint and Reproduction Requests All ABA content is copyrighted and may be reprinted or reproduced by permission only. In some cases, a fee may be charged. To protect the integrity of our authors’ work we require that articles be reprinted unedited in their entirety. To request permission to reprint or reproduce any ABA content, go to www.americanbar.org/utility/reprint.html.

Vol. 34, No. 4 March-April 2013

BIFOCAL March - April 2013 Vol. 34, No. 462

It’s 7:00 a.m. and Wanda rushes up to the nurse’s station to review the patient’s hospital record. Admitted with a right hip fracture after a fall in her bathroom, Mrs. Smith has a history of osteoarthritis, diabetes, hypertension, and dementia. Mrs. Smith is medically stable and wants to be discharged home as soon as possible. Wanda has already set up the patient bathroom to assess Mrs. Smith’s ability to safely transfer in and out of a bathtub and take a shower, using a shower seat, grab bars, safety mat, and handheld shower head with hose extension. Wanda will carefully document her observations and recommendations: Mrs. Smith’s daughter will need to be trained to supervise the transfer, set the water temperature, and remind Mrs. Smith to dry her feet completely.

Wanda is an occupational therapy practitioner. Technically, the practice of occupational therapy (O.T.) means “the therapeutic use of occupations, including everyday life activities with individuals, groups, populations, or organizations to support participation, performance, and function in roles and situations in home, school, workplace, community, and other settings.”1YoucanfindO.T.sinhomes,schools, workplaces, nursing homes, and many community settings, assisting people of all ages and abilities to do the things they want to do through the therapeutic use of everyday activities (occupations). Focusing on the individual (e.g., Mrs Smith), the task (e.g., bathing) and the environment (e.g., bathroom), the O.T.’s concern is functional performance. Wanda will see if Mrs. Smith’s impairments (memory loss, decreased balance, and low vision) can be eliminated through rehabilitation strategies (such as memory cards, balance exercises, and new eyeglasses). If this is not possible, Wanda will suggest compensatory strategies (for example, using bath safety equipment) and education (training the daughter to supervise).

This article highlights ways in which the unique skills of occupational therapists are valuable in the context of adult guardianship—and often in any caregiving scenario. An occupational therapist may: • Play a role in assessment of decision-makingpriortoorafterthefilingofapetition;

• Serve as a court visitor; • Serve as a guardian; • Act as a resource or support for

guardians or guardianship programs; and

• Serve as a witness in a court proceeding.

1 American Occupational Therapy Association, http://www.aota.org/Practitioners/Advocacy/State/Resources/PracticeAct/36437.aspx?FT=.pdf (2011).

Still a

Best-Kept Secret in Adult Guardianship:

Using the Skills of Occupational Therapists

by Erica Wood and Orit Simhoni

[ ]

BIFOCAL March - April 2013 Vol. 34, No. 463

Occupational therapy skills can be used to:• Improve functional communication

with an individual;• Assess ability to manage money, drive

a car, live alone;• Review medical records to evaluate

rehabilitation needs and potential;• Provide safety recommendations in

the least restrictive environment;• Definetheleastlevelofassistance

necessary; and• Train caregivers to promote

independence.

Occupational Therapist in Decision-Making Assessment. Thedefinitionof“incapacity”or“diminished capacity” in determining the need for appointment of a guardian has evolved considerably in state law. “Incapacity” used to be based primarily on medical labels such as “dementia,” “schizophrenia,” “mental illness,” or even “advanced age.” Today, state laws generally rely on a combination of some or all of four elements—medical condition, functional ability, cognitive ability, and risk of harm. Functional ability is particularly important and relates to whether an individual can, as provided by the Uniform Guardianship and Protective Proceedings Act, “meet the essential requirements for physical, health, safety, or self-care [including] with appropriate technological assistance.”2 Assessing functional ability is central to the occupational therapist’s role.

A national capacity assessment Handbook for Judges3 recognizes two

2 Uniform Law Commission, Uniform Guard-ianship and Protective Proceedings Act, Sec. 102(5).3 American Bar Association Commission on Law and Aging, American Psychological As-sociation, National College of Probate Judges, Judicial Determination of Capacity of Older Adults in Guardianship Proceedings: A Hand-book for Judges (2006).

additional factors in assessing decision-making capacity—consistency of choices with the person’s expressed values and preferences; and means to enhance capacity through practical accommodations and medical, psychosocial, or educational interventions. In looking at “means to enhance capacity” the question is whether and how the person can use resources and environmental adaptations to achieve a higher level of functioning. This is where an occupational therapist comes in!

At age 86, Mr. Sammons is forgetful. Hisgrandsonisworried,andhasfileda petition for guardianship with the aim of moving Mr. Sammons from his own home to assisted living. Mr. Sammons wants to live at home. A personal care assistant cares for Grandpa during the day, but he is alone at night. Wanda was called in to evaluate his self-care skills and furnish practical strategies to enable Mr. Sammons to live at home. Wanda arranged for installation of an electronic medication reminder, a personal emergency response system, and kitchen appliances with automatic shut-off. She suggested that the grandson set up a remote monitoring unit (“Granny cam”) so that he could check on Mr. Sammons at night. With these safeguards in place, Mr. Sammons was able to live at home, prompting the grandson to withdraw the petition.

Occupational Therapist as Court Visitor. In many states and under the Uniform Act, upon receipt of a petition for guardianship, the court must appoint a “visitor” with “training or experience in the type of incapacity alleged.” The visitor is to interview the person and the proposed guardian, explain the petition and the hearing rights, determine the person’s views, visit the proposed place of residence, conduct any other needed investigation and report to court.

The Uniform Act provides that the visitor should summarize “daily functions the respondent can manage without assistance,

BIFOCAL March - April 2013 Vol. 34, No. 464

Occupational therapy skills can be used to:• Improve functional communication with an individual;• Assess ability to manage money, drive a car, live alone;• Review medical records to evaluate rehabilitation needs and potential;• Provide safety recommendations in the least restrictive environment;• Define the least level of assistance necessary; and• Train caregivers to promote independence.

[ ]could manage with the assistance of supportiveservicesorbenefits,includinguse of appropriate technological assistance, and cannot manage.”4 The Comments to the Act note that the visitor also is “chargedwithconfirmingcompliancewiththe Americans with Disabilities Act when visiting the respondent’s dwelling and the proposed dwelling. . .”

In short, visitors play a key role in informing the court as to whether a guardianship is needed, whether there is a less restrictive alternative that might work, whether the scope of the order could be limited, and how the person might remain as independent as possible. The skills of an occupational therapist are well suited to perform the visitor functions—and may wellinfluencewhether the judge considers limiting the scope of the order to preserve essential rights as much as possible—or relying on a less restrictive decision-making option.

Having completed his inpatient rehab stay, post left brain infarct, Mr. Alan is ready for discharge, but his speech and writing are still impaired. The hospital social worker is unable to get Mr. Alan’s consent for discharge to a nursing home. Aguardianshippetitionhasbeenfiled,and Wanda was appointed as a visitor. Wanda provides the results of the

4 Uniform Law Commission, UGPPA, Sec. 305 (c), (d) & (e).

Allen Cognitive Level Screen5 which supports Mr. Alan’s need for 24 hour supervision—but not 24 hour nursing care. She recommends an assisted living residence. Using a communication board and other techniques that Wanda has provided, Mr. Alan is able to communicate his preferences to the social worker: he wants to leave the hospital and go to assisted living. The social worker assures that the assisted living residence will provide speech therapy services. Based on thesefindings,theCourtappointsatemporary (90-day) guardian and orders a reassessment of Mr. Alan, to include the speech pathologist’s report.

Occupational Therapist as Guardian.Serving as a guardian is truly one of society’s most challenging tasks. Inherent in the role is a constant negotiation of the tension between rights and needs, self-determination and protection. National standards—and many state laws—emphasize that guardians should give the person “every opportunity to exercise those individual rights that the [person] is capable of exercising;” should maximize “self-reliance and independence,” and

5 http://www.allen-cognitive-network.org/index.php/allen-model/assessments/72-allen-cognitive-level-screen-5-acls-5-large-allen-cognitive-level-screen-5-lacls-5.

BIFOCAL March - April 2013 Vol. 34, No. 465

should encourage the person to “act in his or her own behalf” whenever possible.6

Moreover, standards and many state laws call for the guardian to “develop and monitor a written guardianship plan” setting forth goals to “address medical, psychiatric, social, vocational, educational, training, residential and recreational needs.”7 Recent national recommendations stress that this should be a “person-centered plan.”8

If a family member is not available and appropriate to serve as guardian, the skills of an occupational therapist contribute to a good foundation for a professional guardian.

Now residing on the secure unit of a psychiatric hospital, Ms. Lin seems fairly content, but when her guardian (an occupational therapist) visits, she complains that the other residents don’t like her and therefore she stays out of all the activities. The nurse explains that Ms. Lin talks back to the voices she hears, often cursing aloud—and annoying, distracting or frightening the other residents, who think she is talking to them. Medication is not the answer. The O.T. guardian has a solution: Ms. Lin wears a personal radio headset, and singing to the music, blocks the “voices.” Alternatively, she wears a bluetooth device: Other residence and some of the staff perceive that Ms. Lin is just talking on her cell phone! She’s now a welcome participant in social and recreational activities, as provided in her individualized, person-centered guardianship plan, and is able to interact and function more effectively.

6 National Guardianship Association, Stan-dards of Practice, Standard #9; also see Na-tional Guardianship Network, Third National Guardianship Summit Standards and Recom-mendations, Standard #6.6, Recommendation #2.2.7 NGA Standard #13.8 NGN Summit #1.1; Recommendation #1.6.

Occupational Therapist as Resource for Guardians. Family guardians, professional guardians, and public guardianship programs often encounter questions in which an occupational therapist would be helpful:

• What kind of wheelchair would be best? What assistive devices would make it easier for the person to pre-pare her own food? How does a per-son get dressed using only one hand? What methods allow a wheelchair-us-er to get up and down the steps in an emergency? What options are avail-able to don and doff socks and shoes without bending down? What’s the best way to sleep after a hip replace-ment?

• How should a caregiver select activi-ties to improve an individual’s mem-ory or attention span? What skills can the person sharpen to engage in paid work, volunteer or recreational activi-ties?

• How can banking be structured to promote money management skills?

• Which exercises improve balance and coordination? Which games facilitate interaction with the family?

Knowing where to turn for occupational therapy advice can be a key to “good guardianship.”

Occupational Therapist as Witness. In a contested guardianship proceeding, an occupational therapist may be called to address issues of capacity, adaptation to an environment, or ability to live independently. The O.T. may report the results of standardized cognitive tests, driving evaluations, money management skills, and coping abilities in both familiar and unfamiliar settings; and differentiate an individual’s abilities in performing routine, non-routine, and emergency tasks. The O.T. can compare demonstrated performance to what a person claims to be able to do.

BIFOCAL March - April 2013 Vol. 34, No. 466

Commission Resource Spotlight: 2012 State Adult Guardianship Legislative UpdateThe ABA Commission on Law and Aging’s 2012 State Adult Guardianship Legislative Update is available online. Click through to read about the 29 adult guardianship measures enacted during the year. Find it, and other resources, on our website at: http://ambar.org/COLA.

In all of these roles, an occupational therapist contributes unique skills, making guardianship and other decision-making options work better, or perhaps avoiding the need for a guardianship—and making the person more independent. In some guardianship cases, the physician may write an order for an O.T. in accordance with the person’s particular needs and setting. Tofindanoccupationaltherapistin

your area, see the American Occupational Therapy Association at http://www.aota.

org/ and look under “state associations;” orseetheNationalBoardforCertificationin Occupational Therapy at http://www.nbcot.org/index.php?option=com_content&view=article&id=17&Itemid=111 for a regulatory body contact list by state.

Erica Wood is Assistant Director of the Commission on Law and Aging at the American Bar Association in Washington, DC, and Orit Simhoni is an occupational therapistandnationalcertifiedguardianinWashington, DC. ■

Knowing where to turn for occupational therapy advice can be a key to “good guardianship.” • Visit the American Occupational Therapy

Association at http://www.aota.org/ and look under “state associations,” or

• VisittheNationalBoardforCertificationinOccupational Therapy at http://www.nbcot.org/index.php?option=com_content&view=article&id=17&Itemid=111 for a regulatory body contact list by state.

BIFOCAL March - April 2013 Vol. 34, No. 467

H.R. 1601: The Supplemental Security Income Restoration ActRep. Grijalva Introduces Bill to Improve the SSI Program

by Gerald McIntyre

On April 17, 2013, Rep. Raul Grijalva (D-AZ) introduced “The Supplemental Security Income (SSI) Restoration Act” in Congress.1 The bill, H.R. 1601, would update several SSI eligibility requirements which are seriously outdated and would simplify the administrative process in this long-neglected program. SSI provides a sub-poverty level income to eight millionpeoplewithverylimitedfinancialresources who are either over age 65 or who are unable to work because of severe disabilities.

The bill, if enacted, would:• Increase the SSI General Income

Disregard from the current $202 to $110 per month. This general income disregard was established to reward work, by providing a boost to those who worked long enough to qualify for Social Security or other retirement benefit.Theamounthasnotbeenchanged since 1972. Twenty dollars in 1972 is the equivalent of $3.63 today and the general income disregard thus no longer provides meaningful support.

• Increase the Earned Income Disregard from the current $653 to $357 per month. This earned income

1 H.R. 1601, 113th Cong. (2013); http://thomas.loc.gov/cgi-bin/bdquery/z?d113:h.r.1601:. 2 42 U.S.C. § 1382a(b)(2)(A).3 42 U.S.C. § 1382a(b)(4).

disregard was intended to encourage those who could to return to the work force. It too has not been changed since the day SSI became law. $357 today is equal to approximately $65 in 1972.

• Update the resource limit for individuals and couples from $2,000 ($3,000 for an eligible couple)4 to $10,000 ($15,000 for an eligible couple). The resource limit has increased only 33% since 1972 even though the cost of living today is morethanfiveandahalftimeswhatitwas in 1972. As a result the resource limit today is inadequate to deal with the perfectly predictable emergency needs of SSI recipients.

• No longer count in-kind support and maintenance as income. Under current law, there can be a reductioninmonthlybenefitsofone-thirdoftheFederalBenefitRateif an SSI recipient receives in-kind food and/or shelter.5 This provision discourages family members who may want to provide a place to live in their home to an SSI recipient. The in-kind support and maintenance provision also adds to the expense of administering the program.

4 42 U.S.C. § 1382(a)(3)(A) & (B).5 42 U.S.C. § 1382a(a)(2)(A)(i).

BIFOCAL March - April 2013 Vol. 34, No. 468

• Repeal the penalty for the transfer of a resource for less than fair market value within 36 months of applying for SSI or while receiving SSI.6 This policy enacted in 1999 is based on the assumption that people will give away valuable property for the opportunity to live on a subsistence income. The transfer penalty causes considerable hardship for recipients without accomplishing any worthwhile objective. It also unnecessarily adds to the administrative expense of the program.

On the day the bill was introduced, the National Senior Citizens Law Center (NSCLC) sponsored a Capitol Hill briefingattendedbysome60Hillstaffandgovernmentofficials,aswellasadvocatesand representatives of other interest groups.Atthebriefing,Rep.Grijalvanotedthat many aspects of the SSI program had not been changed since it was signed into

law in 1972 by President Nixon. He went on to say “So today we introduce the SSI Restoration Act, which begins the process of bringing this program into the 21st century.”7

Center for American Progress President Neera Tanden, one ofthepanelistsatthebriefing,stated“Thesebeneficiaries,these people who are the most vulnerable, need us to step up . . . . It’s really scandalous that therehasnotbeenaninflationadjustment [to these provisions]

in this program for 40 years.”8

Initial cosponsors of the bill are Rep. Judy Chu (D-CA), Rep. John Conyers (D-MI), Rep. Barbara Lee (D.-CA), Rep. Eleanor Homes Norton (D-DC), Rep. Jan Schakowsky (D-IL), and Rep. Jose Serrano 6 42 U.S.C. §1382b(c).7 Video: Highlights of Rep. Grijalva’s April 17BriefingonSSIRestorationAct, published on YouTube on April 17, 2013, http://www.youtube.com/watch?v=6koEkh3FZWs.8 Id.

(D-NY).As of April 22, 2013, the organizations

that have endorsed the bill are as follows:• Alliance for Retired Americans• American Association on Health

and Disability• Association of University Centers

on Disabilities• Bazelon Center for Mental Health

Law• Children and Adults with Attention-

Deficit/HyperactivityDisorder• Community Legal Services of

Philadelphia• Health & Disability Advocates• Latinos for Secure Retirement• National Committee to Preserve

Social Security and Medicare• National Council on Aging• National Down Syndrome Society• National Hispanic Council on

Aging• National Respite Coalition• National Senior Citizens Law

Center• National Women’s Law Center• Social Security Works• Southeast Asia Resource Action

Center• Strengthen Social Security

Coalition• The Arc of the United States• Women’s Institute for a Secure

Retirement• Youth Law Center

Statements of support, a summary of H.R. 1601, and a fact sheet about the SSI program are available at www.NSCLC.org. For more information on the SSI Restoration Act, please contact Gerald McIntyre at gmcintyre@nsclc.org or (213)-674-2900 or Kate Lang at klang@nsclc.org or (202)-289-6976, ext. 214.

GeraldMcIntyreisaDirectingAttorneyatthe National Senior Citizens Law Center in Los Angeles, CA. ■

These beneficiaries, these people who are the most vulnerable, need us to step up . . . . It’s really scandalous that there has not been an inflation adjustment [to these provisions] in this program for 40 years.

-Neera Tanden President, Center for American Progress

BIFOCAL March - April 2013 Vol. 34, No. 469

BackgroundVery limited data is available to assess the scope of legal assistance provided to older adults by programs receiving funding from Title III B of the Older Americans Act. Data collection at the national level tells us only the number of provider agreements, the number of in-house providers, the amount of funding, and the number of hours (units) of service.1 In 2010, the most recent year that data is available, providers reported 971,390 hours of services.2 No details are reported on the kinds of legal issues or level of service. The limited reporting system was designed to generously complywithlawyer–clientconfidentialityandlegal ethics requirements, while still being part ofaunifiedreportingsystem.

With this in mind, Commission staff took the initiative last year to request and collect more detailed information in order to provide a snapshot of services in states across the country. To encourage this voluntary provision of data, results are being shared in aggregate only, and state-by-state data has not been retained. While the results below may not reflectanationalpictureofOlderAmericansAct legal services, they do provide an interesting snapshot.

1 See SPR Data, http://www.aoa.gov/AoARoot/Pro-gram_Results/SPR/Index.aspx .2 See AoA SPR reports Table 4b 2010, http://www.aoa.gov/AoARoot/Program_Results/SPR/2010/Index.aspx.

ApproachTo get a better look at the scope of legal issues and level of services,3 Commission staff, with assistance from law student researchers from Stetson College of Law in Gulfport, FL, put out a request for additional statewide data in Legal Service Corporation (LSC) Case Service Report format. To encourage volunteer submissions, programs were asked to report on the most recent 12-month period for which they could most easily provide data. Thus, some states reported on the 2011 calendar year, while others reported on a 12-month period that spanned 2011–2012. Because legal needs and clients services can vary regionally within a state, only statewide data has been included, eliminating partial data that might be skewed to the interests of a particular locality. The data collected was from cases that would be reported as Older Americans Act (OAA) services, without regard to actual funding used to serve the client. For some providers, this included every client age 60 and older, others reported cases funded with OAA monies. States report a nearly dollar-for-dollar match on OAA legal services funding, some of this is programs reporting a match of eligible cases, served beyond the scope of available OAA funding. The request, sent out to about 25

3 Slightly over 25% of the data submitted did not include “level of service” or “reason closed” information. This data has not been included in this analysis.

A More Detailed Look at Legal Services by Older Americans Act Funded Providers

by David Godfrey

Commission-initiated research provides a snapshot of legal services by Older Americans Act funded providers.

BIFOCAL March - April 2013 Vol. 34, No. 470

states, generated submission of complete statewide data from eight jurisdictions: DC, KS, NE, MI, ND, WY, AK, and NM. ResultsData was reported as Legal Service Corporation problem codes in the following broad categories: consumer, education, employment, family, juvenile, health, housing, income, individual rights, and miscellaneous (including estates and advance directives). The table below gives an overview of the code breakdown while also highlighting subcategory standouts.

The distribution of issues is largely as would be expected for clients age 60 and older. Nearly 1 in 5 cases was in consumer law; within this, collection cases were about half of the reported cases. This is as expected in the prevailing economic climate. A small number of cases fall into three categories: education, employment, and juvenile, this is as expected based on the target client. In family law, the majority of the cases are split between divorce and guardianships. In health care, Medicaid

accounts for just over half of the cases with the remaining cases well distributed among the categories. Housing is dominated by homeownership (not foreclosure) and private landlord tenant issues. Issues in income are evenly spread with the highest numbers being in Social Security, Social Security Disability, and Supplemental Security Income. LSC reporting puts wills and estates and advance directives in the miscellaneous category. The miscellaneous category received one-third of services with 14.61% total services being for wills and estates and 12.72% for advance directives. A surprising 8.52% of cases did not report the legal issue involved. More detail on the data can be found at http://www.americanbar.org/publications/bifocal/vol_34/issue_4_april2013/legal_services_oaa.html.

David Godfrey is a Senior Attorney at the Commission on Law and Aging at the American Bar Association in Washington, DC. ■

Problem Code AreaNumber of Cases Reported

Percentage of Total Reported Codes

Subcategory Standouts (% of Total Reported Codes)

Miscellaneous 12,920 33.63% Wills & Estates (14.61%)Advance Directives (12.72%)

Consumer 7,347 19.12% Collections (10.19%)Housing 6,383 16.6% Homeownership (6.3%)

Private LL Tennant (4.8%) Family Law 2,657 6.91% Divorce (2.50%)

Guardianship (2.22%)Health 2,376 6.13% Medicaid (3.09%)Income 1,555 4.04% Social Security (0.70%)

SSDI (0.46%)SSI (0.59%)

Individual Rights 864 2.25%Employment 785 2.04%Juvenile 230 0.06%Education 29 0.01%None reported 3,277 8.52%

BIFOCAL March - April 2013 Vol. 34, No. 471

We are looking for law students:• Limited number of paid summer

internships (completed 2L) for students with a public service/public interest focus

• Unpaid internships – any time of the year

• Externs – students for academic credit• Externs – semester in DC programs

Who are we?• We are a research and policy “think

tank” on law and aging• Commission of 15-member, multi-

disciplinary, national experts in law and aging appointed by the ABA president

• Staff of 7, including 4 experienced attorneys

• We work in a variety of substantive, policy, and program development issues including legal service access and delivery, elder abuse, guardianship and conservatorship, dispute resolution, professional ethics, health and long-term care decision-making, health care access, capacity assessment, Social Security, Medicare, Medicaid, other public benefits,pensionandretirementincome security, LGBT aging, and housing.

What you will do?• Research major substantive or policy

issues in law and aging (goal is a publishable article or summary)

• Short research assignments• Work under supervision of

experienced ABA staff attorneys• AttendlawandpolicybriefingsinDC• Network with experts in aging policy

and law, administrative and legislative staff

• Develop contacts and connections that can last a lifetime

Contact• Erica Wood, Assistant Director:

Erica.Wood@Americanbar.org• David Godfrey, Senior Attorney:

David.Godfrey@Americanbar.org ■

COLA Internship/Externship ProgramNow Reviewing Applications!

Are you looking for a public service or public

interest internship opportunity for this Fall?

We would love to hear from you!

BIFOCAL March - April 2013 Vol. 34, No. 472

The 17th century French mathematician and philosopher Blaise Pascal once apologized about his writing saying, “I have made this longer, because I have not had the time to make it shorter.”

Pascal had something in common with lawyers, as most lawyers can make the same apology. Readers who have sought

self-help books on the law will know what I’m talking about. That’s why it is refreshing to see an appetizer-sized guide to the law—in this case Elder Law—that bucks the usual inclination of lawyers to tell you soberly and methodically everything you need to know.

A Short & Happy Guide to Elder Law is a surprisingly comprehensive tasting menu of legal information served on paper plates with beer on tap. The chapters digest easily whether you read them straight through or graze on them at your leisure. The book succeeds pretty well as explaining key points about the problems seniors and their families face and how they can use the law

to solve them. Thetwowell-qualifiedauthorsare

University of Arizona law school professor Kenney Hegland and nationally known expert in elder law Robert Fleming; they already have two earlier versions of an elder law paperback to their credit. They confess in the preface of A Short & Happy Guide to Elder Law:

We wrote a book. It was too long, too detailed, and too boring. Folks who needed the information weren’t getting it; families would suffer without having a resource to turn to. We decided to do this book—shorter, less detailed and, hopefully, spiffy.

This one dishes up 33 bite-sized chapters in 154 pages, covering everything from the emotional barriers to confronting elder law issues,tofinancialissues,housing,healthcare, capacity, abuse, sex, caring for others, estate planning, and dying—more like the complete blog on elder law.

Brevity does have its disadvantages. The content only takes you only so far. Some topics, in my opinion, get too little attention, such as powers of attorney, healthcarebenefits,andnursinghomequality of care. Yet, for those who prefer full course servings of the law, there are other elder law guides out there. This one

For readers who want a few key basics, some kernels of good advice, and a dash of off-beat humor mixed in.

A Short & Happy Guide to Elder Law By Kenney F. Hegland & Robert B. FlemingPaperback, 154 pagesWest Academic Released February 2013

Book Review

A Short & Happy Guide to Elder Law: Elder Law Served Up in Tasty Bitesby Charlie Sabatino

BIFOCAL March - April 2013 Vol. 34, No. 473

is for readers who want a few key basics, some kernels of good advice, and a dash of off-beat humor mixed in. Humor? The authors explain how Social Security computesyourbenefits:

A train leaves New York going West at 60 mph. Two hours and 13 minutes later, another train leaves Los Angeles, going East at 62 mph. What is the capital of Nova Scotia?The basic idea is to determine one’s average monthly salary and then give youapercentageofthatfigure.Itassumes a work history of 35 years: total earnings are spread out over this period.

One blip in the writing style was its shifting audience. Most of the time, the authors address elders or their families, but at other times, they are suddenly addressing lawyers who are counseling families—this focus shift is a little erratic and unnecessary. Best to leave the lawyers to their own books.Allinall,manyreaderswillfindthis

elderlawlight,lessfilling,andmoresatisfying.

Charlie Sabatino is Director of the Commission on Law and Aging at the American Bar Association in Washington, DC. ■

Understanding the Four C’s of Elder Law EthicsThis consumer-friendly brochure explains the “Four C’s” of elder law ethics:• Clientidentification,• Conflictsofinterest,• Confidentiality,and• Competency.

A great waiting room handout, it helps family members understand the relationship between lawyer and elderly client. Hard copies of the brochure are available for $1.00 each or $0.50 each for a quantity of 100 or more.

To place an order, please contact us at (202) 662-8690 or at aging@americanbar.org.

Rush University Online Curriculum on Capacity AssessmentNext Course Block Opens May 13Rush University Medical Center and the ABA Commission on Law and Aging have cooperated to release an interactive educational curriculum on assessing the capacity of older adults, funded by The Retirement Research Foundation.

The course is aimed at physicians with a variety of backgrounds, but is suitable and valuable for all health care clinicians and students.

Taking the CourseFor more information, contact Michelle Hochwert at 312-942-0417 or Decisional_Capacity@rush.edu.

BIFOCAL March - April 2013 Vol. 34, No. 474

Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers (softcover)This handbook offers elder law attorneys, trusts and estates lawyers, family lawyers, and general practitioners a conceptual framework and a practical system for addressing problems of client capacity, in some cases with help from a clinician. Published 2005, 72 pp.Regular individual price: $25Sale: One copy: $10; 66-copy quantity (case): $89

Judicial Determination of Capacity of Older Adults in Guardianship Proceedings: A Handbook for Judges (spiral-bound)This book contains practical tools to equip a wide audience of judges to conduct any form of guardianship proceeding more effectively, improve communication with healthcare professionals, creatively use less-restrictive alternatives and limited guardianships, and accommodate disabilities of older adults in ways that will enhance capacity. Specifically,itoutlinesthesixpillarsofcapacityassessment essential to a full and accurate assessment of capacity; and gives a practical explanation of the fivekeystepsinjudicialdeterminationofcapacity.Published 2006, 42 pp.Regular individual price: $25Sale: One copy: $10; 66-copy quantity (case): $89

Consumer’s Toolkit (softcover)Good advance planning for health care decisions is a continuing conversation. To help in this process, this tool kit contains a variety of self-help worksheets, suggestions, and resources. The tool kit does not create a formal advance directive; instead, it helps the consumer to do the much harder job of discovering, clarifying, and communicating what is important to them in the face of serious illness.Published 2005, 28 pp.Regular individual price: $5Sale: 100-copy quantity: $25; 250-copy quantity: $50

Health and Financial Decisions: Legal Tools for Preserving Personal Autonomy (pamphlet) Information on powers of attorney, trusts, health care advance directives, living wills and other planning tools. A wonderful waiting room resource, this pamphlet outlines the options available with easy-to-understand bullet points broken down into these categories: “What is it?,” “What is it good for?,” “Creating,” and “Things to think about.” Published 2005, 10 pp.Regular individual price: $2Sale: 100-copy quantity: $25; 250-copy quantity: $50

COLAMovingSale!Take advantage ofourDCoffice’sMay ‘13 relocation with the special pricing below. Act soon, as quantities are limited!

To place an order, please contact us at (202) 662-8690 or at aging@americanbar.org.

BIFOCAL March - April 2013 Vol. 34, No. 475

The FTC will bring together experts from government, private industry, and public interest groups to discuss the unique challenges facing victims of senior identity theft. The forum will include panels on different types of senior identity theft—tax and governmentbenefits,medical,andlong-termcare—andwillalsoexplorethebestconsumer education and outreach techniques for reaching seniors.

When: May 7th, 2013, 9:00-4:30

Where: FTC Conference Center, 601 New Jersey Avenue, NW, Washington, DC 20001

Webcast: A live webcast will be available on the day of the workshop. Bookmark this page and come back on May 7th, 2013 to link to the webcast.

Social: FTC staff will live-tweet the event: #FTCpriv @FTC

Attendance and Pre-Registration

“Senior Identity Theft: A Problem in This Day and Age” will be open to the public. There is no fee to attend the Forum.

Pre-registration is not necessary to attend the Forum, but is encouraged so that we may better plan this event. To pre-register, pleaseemailyournameandaffiliationto seniorIDtheft@ftc.gov. Participants may also submit articles or other written materials in advance of the Forum, which will be used by the FTC in understanding the issues surrounding senior identity theft. ■

Senior Identity Theft: A Problem in This Day and Age

Elder Law Day 2013Let us know how your organization’s or bar group’s programs for an Elder Law Day event in your community went. How did you celebrate Law Day (May 1) and Older American’s Month (May) in your community? We’d love to hear your success story and may include news of it in an upcoming issues of BIFOCAL. Email Andrea Amato at andrea.amato@americanbar.org.

Publication AlertThe Commission on Law and Aging is updating its outdated Elder Law Day Planning Guide and is hoping for your help.• Do you coordinate or participate in an annual Elder Law Day event in

your community? • Doyouhaveplanningdocuments,fliers,orothercollateralthatyou

would be willing to share with us?Please email Andrea Amato at andrea.amato@americanbar.org with your responses!

BIFOCAL March - April 2013 Vol. 34, No. 476

Coming next issue: Update on WINGSWhich states were named to develop Working Interdisci-plinary Networks of Guardian-ship Stakeholders (WINGS) to advance adult guardianship reform? Stay tuned!

Sign up for your own copy of BIFOCALWere you forwarded this issue of BIFOCAL? Sign up to receive it directly and stop worrying about someone else remembering to hit the forward button.Subscribe by emailing your name and professional affiliationtoTrisha.Bullock@americanbar.org with “Subscribe to BIFOCAL” in the subject line.

Annual NLRC User Feedback PollOpen until May 24!

Each year we ask for your opinions and input on the National Legal Resource Center resources, programs, and services. This information is used to sharpen our focus on meeting the needs of our users. We are looking for your valuable feedback in order to serve you better!

The poll is located at https://americanbar.qualtrics.com/SE/?SID=SV_5aNtO1HkizqkhYF

• The population 65 and over has increased from 35 million in 2000 to 41.4 million in 2011 (an 18% increase) and is projected to increase to 79.7 mil-lion in 2040.

• The 85+ population is projected to increase from 5.7 million in 2011 to 14.1 million in 2040.

• Over one in every eight, or 13.3%, of the popula-tion is an older American.

• Persons reaching age 65 have an average life expectancy of an additional 19.2 years (20.4 years for females and 17.8 years for males).

• In 2011, 21.0% of persons 65+ were members of racial or ethnic minority populations—9% were African-Americans (not Hispanic), 4% were Asian orPacificIslander(notHispanic),lessthan1%were American Indian or Native Alaskan (not Hispanic),and0.6%ofpersons65+identifiedthemselves as being of two or more races. Persons of Hispanic origin (who may be of any race) repre-sented 7% of the older population.

• In 2011, about 497,000 grandparents aged 65 or more had the primary responsibility for their grandchildren who lived with them.

• Racial and ethnic minority populations have increased from 5.7 million in 2000 (16.3% of the elderly population) to 8.5 million in 2011 (21% of the elderly) and are projected to increase to 20.2 million in 2030 (28% of the elderly).

• The major sources of income as reported by older persons in 2010 were Social Security (reported by 86% of older persons), income from assets (report-ed by 52%), private pensions (reported by 27%), government employee pensions (reported by 15%), and earnings (reported by 26%).

• Social Security constituted 90% or more of the incomereceivedby36%ofbeneficiariesin2010(23% of married couples and 46% of non-married beneficiaries).

Learn more and read the full report at the Administra-tion on Aging’s website: http://www.aoa.gov/AoA-Root/Aging_Statistics/Profile/index.aspx.

HighlightsfromAProfileofOlderAmericans:2012

BIFOCAL March - April 2013 Vol. 34, No. 477

Elderbar is for:

• Elder law attorneys• Title III-B legal services pro-

viders• Legal services developers• Senior hotline attorneys or staff• Long-term care ombudsmen• Senior Health Insurance Ben-efitsProgramstaff

• Area agency on aging staff• State unit on aging staff• OAA-funded elder rights advo-

cates• LSC, IOLTA-funded, or other non-profitorpublicsectorlegalservices organizations

• Law school elder law or clinical staff

• State or local bar association el-der law sections or committees

• Service providers in the aging network

• National law and aging advo-cates

Join Elderbar, the discussion list that brings together public and pri-vate sector legal advocates and the aging network.

Elderbar gives you the opportunity to communicate across the bound-aries of the law and aging networks and the public and private legal sectors. Share ideas and information about programs, bar section and committee activities, and learn how others are responding to the in-creasingdemandandfinitefundingforlegalservicesforseniors.

Elderbar is a project of the ABA Commission as part of its role in the National Legal Resource Center, funded by the Administration on Ag-ing. It is a closed list; messages can only be posted and read by mem-bers. To get connected to Elderbar send your name, e-mail address, andprofessionalaffiliationto david.godfrey@americanbar.org.

Get Connected, Stay Connected on Elderbar

ABA members enjoy a range of benefitsthatenhancetheirlivespersonally and professionally. Learn how the ABA can help you unlock your potential.

Lawyers and judges in government or legal/public service, or a solo practitioner in private practice are eligible for a special dues rate.

Invest in your future. Join the ABA now.

BenefitsofMembership• ProfessionalDevelopment:JoiningtheABAisjustthefirststeptoprofessionalfulfillment.Putustoworkandtakeyourcareertothe next level.

• Practice Management: Explore your entrepreneurial side with vital news and resources for maintaining a thriving practice.

• Public Service and Government Affairs: From pro bono opportunities to policy-shaping initiatives, the ABA salutes and supports those passionate about public service and government.

• Resources for Who You Are: We’ve cultivated a well-rounded setofresourcestoreflectourdiversemembership—designedforattorneys of all ages, specialties, and backgrounds.

• Member Advantages: Everyone loves a good deal—and as an ABA member, you’re eligible for discounts on products, travel, and other services you need at work, at home, and at leisure.

TheBenefitsofBelongingtotheABA

BIFOCAL March - April 2013 Vol. 34, No. 478

Grandparents Raising GrandchildrenThis program provides an overview of the different legal relationship options available to a family with a child being raised by grandparents or other relatives. Spousal and Domestic Partner Issues in Pensions and Retirement IncomeThis program covers the essential elements that you need to know about spousal and domestic partner rightsintraditionaldefinedbenefitpensions,IRAs,401ksandotherdefinedcontributionplans,andSocialSecurityretirementbenefits.

Drafting Financial Powers of Attorney: Avoiding Financial Exploitation of the ElderlyLearn smart drafting and counseling skills and how state law is changing to strengthen the effectiveness andsafetyofpowersofattorneyforfinances. Elder Care Mediation and Why It’s Important to Your PracticeLearn from an experienced mediator and attorney about how senior mediation can address sibling, ex-tended family, and intergenerational disputes in elder care—and what it can mean for your practice.

Catch Up on Missed CLE Events

What’s Coming Up in COLA CLE...Erica Wood will present on Interstate Guardianship Issues in July 2013.

Charlie Sabatino will present on Clients with Diminished Capacity in September 2013.

With its wonderful cultural attractions, incredible dining options and diverse neighborhoods, San Francisco offers countless opportunities for you to experience this beautiful American city.

The ABA is planning more than 200 CLE programs to develop your professional skills and expertise and will offer important opportunities to learn from and network with lawyers and judges from around the world.

ABA 2013 Annual Meeting—August 8 - August 13For up-to-date information, please visit www.ambar.org/annual.