Volume 1    Number 2     1993    

Representing Defendants in Guardianship Proceedings: The Attorney's Dilemma of Conflicting Responsibilities - Anne K. Pecora

Professor Pecora explores the unique problems that inhere in representations for guardianship court proceedings. She explores the constitutional aspects of due process as they apply to guardianship proceedings and argues the serious nature of guardianship and its impact on personal liberty requires the heightened concerns for due process protections of the individual available in other cases where fundamental liberty interests are at stake. To clarify the idea, Professor Pecora draws analogies form cases in family affiliations and involuntary commitment proceedings. She assesses the client's role in the hearing process and the conflicting roles of guardian ad litem , adversarial advocate, and protector which an attorney must play. States have taken a variety of approaches to requirements of counsel for representation and placed a varying degree of burden on lawyer and court. The conflicting goals and duties expressed in ethical codes and procedures reflect the uncertainty and complexity of the issue. Finally, Professor Pecora warns that the area requires an attorney's careful study and knowledge to navigate the conflicting demands and needs in a guardianship hearing representation.

Anne K. Pecora is Associate Professor, University of Baltimore School of Law, former Director of Legal Services to the Elderly of Baltimore City, a University of Baltimore Law School clinical program, from 1975 to 1992.

ARTICLE

The Long and Winding Road : Guardianship Reform in Michigan - Bradley Geller

Historically, the guardianship procedure has not been as protective of the rights of the individual as may be desired. In this essay, Mr. Geller examines the evolving guardianship reform process that has taken place in Michigan over the past decade. Mr. Geller believes that even though the Michigan reform is far from complete, other states can profit by examining the process and substance of Michigan 's reform efforts. He begins his essay with an overview of the state's history of guardianship reform, including, the goals that reformers wished to attain. Mr. Geller then describes the resulting legislation -- The Michigan Guardianship Reform Act -- and the hurdles that remained after its passage. He continues by gauging the impact of the reform and ultimately concludes by identifying issues and expounding proposals that will keep the Michigan guardianship reform efforts moving forward.

Bradley Geller is counsel for Wahstenaw County Probate Court in Ann Arbor , Michigan , and is an active participant in the Michigan guardianship reform process.

NOTES

Spending Down for Medicaid Eligibility in Section 209 (B) States: Should the Procedures Be Changed? - Elizabeth T. Melady

In analyzing the income requirements for Medicaid eligibility, Elizabeth Melady finds fault with the "section 209(b)" state spend-down provisions. Generally, the Social Security Act requires states to provide Medicaid benefits automatically to those receiving categorical welfare assistance. However, Ms. Melady explores the history of the section 209(b) provision, which alternatively allows states to provide Medicaid benefits only to persons eligible for Medicaid on January 1, 1972 , without adjustment for medical inflation rates. Ms. Melady asserts this results in a discriminatory outcome -- the welfare recipient seeing favorable treatment over a second person who must spend down to applicable levels, despite the fact that both may have the same income with only the sources being different. In seeking a solution, Ms. Melady finds that an Equal Protection claim under the Fourteenth Amendment would be inadequate because of the U.S. Supreme Court's deference to Congress on social and welfare legislation. Although somewhat more hopeful, Ms. Melady finds that challenges under state constitutions will not sufficiently allay the problem because of a lack of uniformity form state to state. Finally, Ms. Melady calls for federal legislation to alter the methods that section 209(b) states use to calculate Medicaid eligibility, specifically proposing that only the amount of income, and not its source, be relevant to the Medicaid eligibility determination.

Meeting the Needs of Elderly Consumers: Proposed Reforms for the National Association of Insurance Commissioners' Long-Term Care Insurance Model Act - Bruce A. Radke

Paying for long-term health care is a major concern of many elderly people. In his note, Mr. Radke explores what is becoming a major option in the health insurance field -- long-term care insurance. He sees LTC insurance as a viable option to Medicare and Medicaid, which are not nearly adequate enough to meet the long-term needs of most of the elderly. In analyzing the product, Mr. Radke first explains some of its history, as well as the benefits generally associated with LTC insurance. Mr. Radke discusses a number of obstacles that have slowed the growth of LTC insurance. Mr. Radke explores the Long-Term Care Insurance model Act, promulgated by the National Association of Insurance Commissioners. He finds problems with several provisions of the Model Act and its ensuing amendments, including its lack of an adequate definition of LTC insurance, its eligibility criteria, and its failure to require mandatory inflation protection. Also, not all states have adopted the Model Act, and only a handful of those have adopted the 1990 amendments to the Model Act. Mr. Radke says recent attempts to federally regulate LTC insurance have failed, despite support from the NAIC and the General Accounting Office. To alleviate the problems with LTC insurance as it is offered today, he concludes by recommending a number of substantive changes to the NAIC Model Act. Finally, Mr. Radke calls on all fifty states to adopt the NAIC Model Act and take further steps to provide incentives for companies to offer LTC insurance and for elderly consumers to purchase the product.

Medicaid and the Middle Class: Should the Government Pay for Everyone's Long-Term Health Care? - Jeffrey L. Soltermann

In analyzing the practice of "Medicaid estate planning," Mr. Soltermann finds much to criticize. He believes that Medicaid should be restricted to those it was originally designed to benefit, the truly impoverished. Mr. Soltermann further argues that those who move assets to qualify for Medicaid, as opposed to depleting their assets, contribute to skyrocketing heath care costs. Also, only be reducing the numbers eligible for Medicaid can the budget and budget deficit be reduced. Mr. Soltermann begins his analysis with an overview of Medicaid eligibility guidelines. He then points our what he sees as the problems with Medicaid estate planning, specifically identifying the complexity of Medicaid rules, the risks involved in transferring assets, and the social, ethical, and economic problems of the practice. Mr. Soltermann proposes resolving the problem in a number of ways. He believes there should be more of a shift to home- and community-based care, and that the federal government should facilitate the sale of private long-term care insurance through subsidies, tax credits, and tax incentives. Mr. Soltermann also proposes that states should take action to promote the sale of long-term care insurance. Finally, Mr. Soltermann believes that other noninsurance alternatives exist that would help alleviate the Medicaid problem.