Volume 2     Number 1     1994    

ARTICLES

Representing the Client Who Is Older in the Law Office and in the Courtroom - William E. Adams and Rebecca C. Morgan

Professors Adams and Morgan examine a number of issues concerned with representing elderly clients in litigation. They begin by looking at some generalizations that can be made about many elderly clients, while at the same time stressing that defining the archetypal elderly client is impossible. Next, Professors Adams and Morgan look at areas where many elderly clients' needs go unmet. After then examining ethical dilemmas in the elder law context, the remainder of the professors' article discusses issues that arise in the law office setting as well as the courtroom setting. They then offer practical advice on how elder law attorneys can better serve their clients involved in litigation.

William E. Adams is Assistant Professor, Shepard Broad Law Center , Nova Southeastern University , Ft. Lauderdale , Florida , and director of the Civil Clinic there . Rebecca C. Morgan is Professor of Law and Associate Dean, Stetson University College of Law. The authors express their gratitude to Reference Librarian Madison Mosley and law students Beth French, Andrew Adler, and Daniel Stiffer for their research efforts, to Professor Bill Eleazer for his comments, as well as to Sharon Gisclair and Louise Petren for their word processing skills.

Durable Powers as a Hedge Against Guardianship: Should the Attorney-at-Law Accept Appointment as Attorney-in-Fact? - Linda S. Whitton

Professor Whitton's article is the first to examine the ethical and practical ramifications of a lawyer drafting a client's durable power of attorney and also serving as the agent, or "attorney-in-fact," thereunder . The likelihood that clients will request lawyers to accept the delegation of their durable powers is increasing due to the phenomenal growth of the elderly as a percentage of total population and the concomitant rise in the need for surrogate decision making. Professor Whitton evaluates durable powers as a mechanism for surrogate decision making and then discusses the basic duties required of both attorneys-at-law and attorneys-in-fact. She concludes that despite the lack of a direct prohibition on dual representation in either the Model Code Of Professional Responsibility or the Model Rules of Professional Conduct , lawyers should decline such representation rather than risk compromising the attorney-client relationship or the services rendered to an incapacitated client.

Linda S. Whitton is Associate Professor, Valparaiso University School of Law, and received her J.D. from Valparaiso University School of Law.

NOTES

The Federal Sentencing Guidelines and Elderly Offenders: Walking a Tightrope Between Uniformity and Discretion (and Slipping) - Thomas A. Long

As the elder population grows, the nation's law enforcement system finds itself confronted with a growing number of elderly criminal defendants. At the same time, anticrime sentiments and widespread criticism of disparity in the sentencing of criminals have spawned the Federal Sentencing Guidelines, which stiffened sentences considerably while removing much of judges' discretion in meting our penalties to individual offenders. Mr. Long's note examines the collision of these two trends. After first noting that stiff prison terms often amount to a virtual life sentence for elderly offenders, Mr. Long turns to an analysis of section 5H1.1 of the Sentencing Guidelines, which states that judges may not ordinarily depart form the dictates of the Guidelines on the basis of and offender's age. After discussing the relevant case law, Mr. Long focuses on the difficulties facing courts in determining which cases are extraordinary enough to warrant the consideration of age. Mr. Long takes the position that the Sentencing Commission did intend age to inform judges' sentencing decisions in some cases, but the law in its current formulation makes district judges unduly reluctant to depart from the Guidelines, and circuit courts too quick to reverse sentences in which age was a factor influencing a district judge's lenity. Taking cues from doctrines developed in carious state courts, Mr. Long then attempts to propose remedies for the infirmities of section 5H1.1, with the goal of making it clear when an elderly offender's age should affect the amount of time that offender spends behind bars.

The Golden State v. The Silver State or State Taxation of Nonresidents' Pension Income - Robert F. Messinger

Although taxes are a necessary component of our system, Mr. Messinger points out that many people are engaged in a continuing struggle to reduce or totally evade their tax burden. One Such scenario is being played out by individuals who have contributed tax-deferred income to pension plans in one state, only to move to another state without an income tax when they retire and payouts on the pensions begin. Many are using this as a means to avoid paying any income tax on that income. Mr. Messinger finds fault with this. He further condemns those states that have no income tax who are passing legislation in attempt to keep other states from enforcing tax judgments on nonresident pension income. Mr. Messinger explores a line of U.S. Supreme Court cases that permit both the type of taxation that California and other states are imposing on nonresident income having its source within those states and its progressive nature. After applying the taxation to the Full Faith and Credit as well as the Privileges and Immunities Clauses of the U.S. Constitution, Mr. Messinger identifies three possible resolutions to the conflict. He concludes by arguing that the only viable alternative is for states to begin taxing the income before it is distributed to beneficiaries, as opposed to waiting for those beneficiaries to declare the income and voluntarily pay taxes on the amount.

Is your Client's Government Pension Safe?: Making the Case for Federal Regulation - Jon G. Miller

While both private-sector and federal employees' pension plans are regulated by the Employment Retirement Income Security Act (ERISA), public-sector employees at the state and local level enjoy no protection from federal regulation. The following note examines the issues presented by the lack of ERISA-style protection for these public pension plans. Mr. Miller first identifies several problems to which public-sector retirement plans are susceptible. Such plans commonly are underfunded by their states, which often use pension funds for other purposes. Also, Mr. Miller explains, public pension plans are subject to a heightened potential for abuse and self-dealing by fiduciaries. While many states regulate their pension plans, Mr. Miller points out that existing regulation varies widely form state to state. Mr. Miller discusses the current safeguards for state and local employees' retirement plans, concluding that existing regulations inadequately protect the integrity of public pensions. The note next discusses the difficulties inherent in enacting ERISA-like federal protections for state and local government employee pension plans. In conclusion, Mr. Miller advocates enactment of federal regulation of the fiduciary standards and reporting, vesting, and fiduciary requirements for public retirement plans, allowing, however, for flexibility and time for the states to conform their individual plans to a uniform system.