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A compilation of leading articles on the myriad issues of "elder law"

Aging and the Law

An Interdisciplinary Reader

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edited by Lawrence A. Frolik

As Americans live longer, and as the "baby boom" generation approaches retirement, the social, political, and legal needs of older citizens pose a challenge to our institutions. One response has been the rise of "elder law." In this groundbreaking reader, Lawrence A. Frolik gathers together seminal essays on the intersection of law and issues affecting older Americans. The essays take into account not only a variety of professional perspectives but also the perspectives of individual older people, caregivers, and family members.

After an introduction covering the nature of elder law, social attitudes toward the elderly, aging and ethnicity, and generational justice, the book includes sections on work, income, wealth; housing, mental capacity, health-care decision making; long-term care, health-care finance, family and social issues; and abuse, neglect, victimization, and elderly criminals. It concludes with essays on legal representation and ethical issues. The essays have been edited to make them easily accessible to students and the general reader, and Professor Frolik has supplied introductions to the sections, as well as summaries of issues for which essays could not be included.

Both comprehensive and engaging, Aging and the Law brings together essays by lawyers, social workers, health-care professionals, and policy-makers, as well as selected case law and congressional hearings.

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Contents

Preface
List of Contributors

Part I: Introduction
1. WHAT IS ELDERLAW?
The Developing Field of Elder Law: A Historical Perspective – Lawrence A. Frolik
2. WHY TREAT OLDER PERSONS AS A SEPARATE CATEGORY?
An Aging Population: A Challenge to the Law – Lawrence A. Frolik and Alison P. Barnes
America the Aging: Changing Demographics Pose Dramatic New Challenges for Our Country and the Courts – Alison P. Barnes and Lawrence A. Frolik
3. SOCIAL ATTITUDES TOWARD THE ELDERLY
Ageism: Paternalism and Prejudice – Linda S. Whitton
4. WHO IS OLD?
An Aging Population: A Challenge to the Law – Lawrence A. Frolik and Alison Barnes
5. AGING AND ETHNICITY
Gender and Family Issues in Minority Groups – Barbara W. K. Yee
6. GENERATIONAL JUSTICE
Income of the Elderly and Nonelderly, 1967-92 – Daniel B. Radner
Justice Across the Generations – Richard A. Epstein

Part II: Work, Income and Wealth
7. RETIREMENT
8. AGE DISCRIMINATION IN EMPLOYMENT
Note: A Rose by Any Other Name No Longer Smells as Sweet: Disparate Treatment Discrimination and the Age Proxy Doctrine After Hazen Paper Co.v. Biggins – Toni J. Querry
The Age Discrimination in Employment Act of 1967 – George J. Tichy, II
Hands-Tying and the Age Discrimination in Employment Act – Christine Jolls
Age-Based Exit Incentives, Coercion, and the Prospective Waiver of ADEA Rights: The Failure of the Older Workers Benefit Protection Act – Michael C.Harper
9. PENSIONS
The Role of Pensions in Retirement Income: Trends and Questions – Virginia P.Reno
Special Tax Treatment for Employer-Based Retirement Programs: Is It "Still" Viable as a Means of Increasing Retirement Income? Should It Continue? – Daniel I. Halperin
10. SOC IAL SECURITY
Social Security Bulletin 1991
Protecting Social Security and Medicare – William G. Dauster
Social Security and Older Workers – Michael V. Leonesio
Social Security Discrimination Against African Americans: An Equal Protection Argument – Geoffrey T. Holtz
A Guide to Social Security Money's Worth Issues – Dean R. Leimer
11. SOCIAL SECURITY REFORM
Top Ten Myths of Social Security – Richard L. Kaplan
Advisory Council on Social Security Report
Social Security: Prospects and Proposals for Privatization – Merton C. Bernstein
Changing Social Security Benefits to Reflect Child-Care Years: A Policy Proposal Whose Time Has Passed? – Howard M. Iams and Steven H. Sandell
Tax Policy and Feminism: Competing Goals and Institutional Choices – Anne Alstott

Part III: Housing
HOUSING NEEDS
The Special Housing Needs of Older Persons: An Essay – Lawrence A. Frolik
13. APPROPRIATE HOUSING
Beyond the Beltway: Housing for Older Persons Act of 1995 – Andrea D. Panjwani ,
14. CONTINUING CARE COMMUNITIES
The Continuing Care Community: Will It Meet Your Client's Changing Needs? Christine A. Semanson
15. BOARD AND CARE HOMES
U.S. Senate, Special Committee on Aging and Select Committee on Aging, U.S. House of Representatives (1989) – Joint Hearing
Board and Care: A Failure in Public Policy
16. ASSISTED LIVING
Assisted Living for Low-Income Seniors – David Abromowitz and Rebecca Plaut

Part IV: Mental Capacity Issues
17. EVALUATING MENTAL CAPACITY
Determining Decisional Capacity: A Medical Perspective – Robert P.Roca
Assessing Decision-Making Capacity – Bernard Lo
18. LEGAL STANDARDS OF MENTAL INCAPACITY
Florida Guardianship and the Elderly: The Paradoxical Right to Unwanted Assistance – Alison P. Barnes
19. GUARDIANSHIP PROCEDURES
A Social Science Perspective on the Law of Guardianship: Directions for Improving the Process and Practice – Phillip B. Tor and Bruce D. Sales
The National Probate Court Standards: The Role of the Courts in Guardianship and Conservatorship Proceedings – Paula L. Hannaford and Thomas L. Hafemeister
20. GUARDIANSHIPREFORM
Preserving Dignity and Self-Determination of the Elderly in the Face of Competing Interests and Grim Alternatives: A Proposal for Statutory Refocus and Reform – Jan Ellen Rein
Plenary Guardianship: An Analysis, a Critique and a Proposal for Reform – Lawrence A. Frolik
Losing It in California: Conservatorship and the Social Organization of Aging – Lawrence M. Friedman and June O. Starr
21. PERSONAL AUTONOMY AND FAMILIES
Who's the Parent Here? The Family's Impact on the Autonomy of Older Persons – Marshall B.Kapp
When Parents Die: A Response to Before Guardianship: Abuse of Patient Rights Behind Closed Doors – Sidney D. Watson
22. ALTERNATIVES TO GUARDIANSHIP
Planning Tools Available to the Elderly Client – Ramona C. Rains

Part V: Health Care Decision Making
23. THE DOCTRINE OF INFORMED CONSENT
Autonomy, Competence, and Informed Consent in Long-Term Care: Legal and Psychological Perspectives – William M. Altman, Patricia A. Parmelee, and Michael A. Smyer
Factoring Ethnic and Racial Differences into Bioethics Decision Making – Vicki Michel
A Controlled Trial to Improve Care for Seriously Ill Hospitalized Patients: The Study to Understand Prognoses and Preferences for Outcomes and Risks of Treatment (SUPPORT) and The SUPPORT Principal Investigators
24. THE RIGHT TO DIE OF COMPETENT OLDER ADULTS
Pocono Medical Center v. Harley, 11 Fiduc. Rptr. 2d 128 (1990) (Penna. Monroe County)
25. COMPETENT OLDER ADULTS
Nursing Home Residents' Preferences for Life-Sustaining Treatments – Linda O'Brien, Jeane Ann Grisso, Greg Maislin, Karin LaPann, Karol P. Krotki, Peter J. Greco, Elisabeth A. Siegert, Lois K. Evans
26. STRUCTURAL RESPONSES TO COMPETENCY AND INFORMED CONSENT
CONTROVERSIES
"Fitting the Forum to the Fuss" in Acute and Long-Term Care Facilities – Erica Woodand Naomi Karp
27. MENTALLY INCAPACITATED OLDER PATIENTS
A. What is Mental Capacity?
Determining Patient Competency in Treatment Refusal Cases – Kevin R. Wolff
In re Milton 505 N.E. 2d 255 (Supreme Court of Ohio 1987)
B. Proxy Decision Making
Privacy and Personhood Revisited: A New Framework for Substitute Decision-making for the Incompetent, Incurably Ill Adult – Linda C.Fentiman
In re Daniel Joseph Fiori, an adjudged incompetent 673 A.2d 904 (Pa. 1996)
C. Legislative Responses
Uniform Health Care Decisions Act Gives New Guidance – David M. English and Alan Meisel
28. ASSISTED SUICIDE
Physician-Assisted Suicide and Euthanasia in the United States: Legal and Ethical Observations – T. Howard Stone and William J. Winslade
The Justification of Physician-Assisted Deaths – Tom L. Beauchamp
Against Assisted Suicide—Even a Very Limited Form – Yale Kamisar
Just Caring: Assisted Suicide and Health Care Rationing – Leonard M. Fleck
Old Folks on the Slippery Slope: Elderly Patients and Physician-Assisted Suicide – Marshall B. Kapp

Part VI: Long-Term Care
29. HOME HEALTH CARE
A. What Is Home Health Care?
The Policy and Politics of Community-Based Long-Term Care – Alison Barnes
Community Care for the Frail Elderly: A Theory of Empowerment – Joel F. Handler
B. Paying for Home Health Care Programs
Home Health Care: What It Is and Who Pays for It? – Meris L. Bergquist
Expanding Autonomy of the Elderly in Home Health Care Programs – Peter J. Ferrara
C. Regulation of Home Health Care
GAO Report: "Long-Term Care: Some States Apply Criminal Background Checks to Home Care Workers"
30. BOARD AND CARE HOMES
Board and Care: A Failure in Public Policy
A staff briefing paper prepared for the U.S. Senate Special Committee on Aging
31. NURSING HOMES
A. Profile of Residents
Family Structure and the Risk of Nursing Home Admission – Vicki A. Freedman
B. Mechanisms for Monitoring Care
"Fitting the Forum to the Fuss" in Acute and Long-Term Care Facilities – Erica Wood and Naomi Karp
Protecting the Rights of Nursing Home Residents: How Tort Liability Interacts with Statutory Protections – Jeffrey Spitzer-Resnick and Maya Krajcinovic
32. FINANCING LONG-TERM CARE
Illegal Guarantees in Nursing Homes: A Nursing Facility Cannot Force a Resident's Family Members and Friends to Become Financially Responsible for Nursing Facility Expenses – Eric Carlson
Contracts to Devise or Gift Property in Exchange for Lifetime Home Care-Latent and Insidious Abuse of Older Persons – Clifton B. Kruse, Jr.

Part VII: Health Care Finance
33. MEDICARE
A. Introduction
Tax Plans for the Twenty-First Century: Medical Incentive Vouchers Address the Needs of Academic Health Centers and the Elderly – Nina J. Crimm
B. History of Medicare
Medicare Managed Care From the Beneficiary's Perspective – Eleanor D. Kinney
The Right to Health Care, the Social Contract, and Health Reform in the United States – Christine Cassel
C. Medicare and Health Maintenance Organizations
34. MEDICARE REFORM
The Tough Choices Commission – Anne E. Berdahl
"Budgetized" Health Entitlements and the Fiscal Constitution in Congress's 1995-1996 Budget Battle – Charles Tiefer
Protecting Social Security and Medicare – William G. Dauster
35. RATIONING OF HEALTH CARE
Older Americans and the Rationing of Health Care – Andrew H. Smith and John Rother
36. MEDICAID
Medicaid Reform: Saving an American Success Story – The Honorable Bob Graham
37. MEDICAID REFORM
Testimony, March 11, 1997 – Bob Miller and Michael O. Leavitt
Misinformation and Self-Deception in Recent Long-Term Care Policy Trends – Jan Ellen Rein
38. FILIAL RESPONSIBILITY FOR IMPOVERISHED PARENTS
Americana Healthcare Center v. Randall: The Renaissance of Filial Responsibility – Robin M. Jacobson
Savoy v. Savoy, 433 Pa. Super. 549, 641 A.2d 596 (Superior Court of Pennsylvania 1994)

Part VIII: Family and Social Issues
39. MARRIAGE AND FAMILY
40. SPIRITUAL ISSUES
Spirituality and Aging Well – Dan Blazer
The Role of Church and Family Support in the Lives of Older African Americans: A New Look at Families and Aging, and Black Churches as Support Systems – Carla T. Walls
Spiritual Care for the Elderly: An Integral Part of the Nursing Process – Ranjana Sardana
41. SOCIAL PROBLEMS
A. Alcohol
B. Suicide
C. Loneliness
The Relationship of Loneliness, Social Isolation, and Physical Health to Dietary Adequacy of Independently Living Elderly – Dellmar Walker and Roy E. Beauchene
D. Mental Illness
Hearing, Senate Special Committee on Aging-1996

Part IX: Abuse, Neglect, Victimization, and Elderly Criminals
42. ABUSE AND NEGLECT OF OLDER PERSONS
A. Definitions and Causes
Elder Abuse – Sandra Baron and Adele Welty
Elder Abuse and Guardians of Elderly Incompetents – Lawrence A. Frolik
Elder Mistreatment: A Multidimensional Problem – Christine S. Sellers, W. Edward Folts, and Katherine M. Logan
B. Financial Exploitation
Contracts to Devise or Gift Property in Exchange for Lifetime Home Care—Latent and Insidious Abuse of Older Persons – Clifton B. Kruse, Jr.
43. ABUSE AND NEGLECT IN INSTITUTIONS
Covert Elder Abuse in the Nursing Home – Dorothy I. Meddaugh
44. SENTENCING OF ELDERLY CRIMINALS
The Sentencing of Elderly Criminals – Molly F.James
The Incarceration of Older Criminals: Balancing Safety, Cost, and Humanitarian Concerns – William E. Adams, Jr.
Golden Years Behind Bars: Special Programs and Facilities for Elderly Inmates – Ronald H. Aday

Part X: Legal Representation and Ethical Considerations
45. INTRODUCTION
Ethical Considerations in Representing the Elderly – Mark Falk
46. REPRESENTING THE INCAPACITATED CLIENT
Representing the Elderly Client and Addressing the Question of Competence – Linda F. Smith
Access, Connection, and Voice: A Contextual Approach to Representing Senior Citizens of Questionable Capacity – Peter Margulies
Representing Defendants in Guardianship Proceedings: The Attorney's Dilemma of Conflicting Responsibilities – Anne K. Pecora
47. ETHICAL CONFLICTS
The Ethical Management of Assets for Elder Clients: A Context, Role, and Law Approach – Steven H. Hobbs and Fay Wilson Hobbs

About the Contributors
Index

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About the Author(s)

Lawrence A. Frolik is Professor, University of Pittsburgh School of Law.

Subject Categories

Health and Health Policy
Law and Criminology

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