Volume 2     Number 2     1994    

ARTICLE

Financing Strategies: Long-Term Care for the Elderly - Erick J. Bohlman

In this article, Mr. Bohlman explores various options for financing long-term care for the elderly. The author begins by discussing the increased importance of planning ahead for the potential financial burdens associated with long-term care. Next, Mr. Bohlman describes the methods individuals can use to finance long-term care, such as Medicare, Medicaid, home-equity conversion, and private insurance. Mr. Bohlman further discussed the advantages associated with each plan. Finally, the author examines the ethical obligations that must be considered when devising a long-term care plan for a client.

Erick J. Bohlman is an associate with the firm of Swift, Popuch, Spector & Sinclair in Chicago, Illinois.

NOTES

The Right to a Remedy: When Should an Abused Nursing Home Resident Sue? - Susan H. Hemp

The widespread abuse of elderly residents by nursing home staff was brought to the public's attention by median exposes in the 1970s. Although the publicity helped bring about heightened federal and state regulation -- culminating with the nursing home reform provisions of the Omnibus Budget Reconciliation Act of 1987 -- abuse of elderly nursing home residents still exists. Increasingly, lawyers and advocates for older persons call for expanded use of litigation as a useful way to address the problem. Ms. Hemp examines the history of nursing home abuse and the governmental response to it. She then weighs regulatory and tort solutions, considering which avenue is likely to best serve the needs of elderly residents and the other parties involved. Ms. Hemp concludes that litigation probably always will be needed as an ultimate recourse. Additionally, she proposes other ways in which the problem can be addressed, including further improving the regulatory structure, increased involvement by community groups, and more self-regulation of nursing homes through risk management plans.

Uncertainty in the Golden Years: The Growing Demands upon the American Retirement Security system - Christopher T. Kelley

The baby boomers, warns Christopher Kelley, are coming! Americans born between 1946 and 1964 are getting older, and their retirement will have a significant impact on the American Security system. Mr. Kelley opens his note be describing the "aging of America" and the income sources available to the retiring population: Social Security, pension plans, and individual savings. He explores the dichotomy of the political popularity of the modern Social Security system and the economic unfeasibility of maintaining that system. Mr. Kelley acknowledges that although employee pension plans are more economically viable that Social Security, they cannot provide sufficient income because government regulation hampers pension plan growth and because this benefit is not available to enough employees. Next, he examines the use of individual investment funds, noting that although this method is sound, lack of adequate incentive to save and the inability to save are keeping Americans from setting aside enough for retirement. Mr. Kelley believes there are ways to strengthen the retirement security system so that it can provide for baby boomers' futures. He examines and rejects suggestions to eliminate or vastly reform Social Security. Instead, he maintains that the use of private sources of retirement income must be made more attractive. Employers need to create pension plans that provide greater benefit to more workers, and employees need to be encouraged to save for retirement. Mr. Kelley suggests that the government provide tax and regulatory incentives for employers. He predicts that if retirement security reforms occur soon, the country should be ready for the latest changes within the generation of Americans known as baby boomers.

Hedonic Damages in Wrongful Death and Survival Actions: The Impact of Alzheimer's Disease - Lori A. Nicholson

As America's population ages in the coming years, Alzheimer's disease (AD) is expected to become an increasingly serious problem. In this note, Ms. Nicholson analyzes the growing prevalence of AD in connection with the current state of medical malpractice and negligence claims and the trend toward hedonic damages in wrongful death actions. Ms. Nicholson explores whether to factor hedonic damages at all and discussed different approaches to take when AD is a factor: a no-recovery rule, full damages recovery, and application of the loss-of-chance doctrine. Under a no-recovery rule, courts would allow no recovery for loss of enjoyment of life when the decedent suffered from a preexisting condition of AD. Ms. Nicholson explains that this approach includes an assumption that persons with AD are totally incapacitated and have no life satisfaction. Under a full-recovery rule, courts would allow recovery for loss of enjoyment of life when the decedent suffered from AD, without factoring in the preexisting condition. Ms. Nicholson explains that his approach would promote full compensation and deterrence. Under the loss-of-chance approach,, triers of fact would determine the likelihood and extent of enjoyment of like present at different stages of AD and then apportion hedonic damages between the wrongdoer and the victim according to that standard. Ms. Nicholson concludes that courts should factor AD into the damages calculation, but rejects the no-recovery, full-recovery, and loss-of-chance methods. Instead, she recommends an independent jury approach, in which juries, would be allowed to value hedonic damages without expert guidance on percentage probabilities of loss of enjoyment of life at different stages of AD. Under this method, the plaintiff would be allowed to introduce testimony from experts about the general progression of AD as well as evidence regarding the particular decedent's enjoyment of life. Finally, Ms. Nicholson suggests a reconsideration of the application of loss-of-chance principles when Alzheimer's research findings warrant.

RECENT DEVELOPMENTS

The National Probate Court Standards: The role of the Courts in Guardianship and Conservertorship Proceedings - Paula L. Hannaford and Thomas L. Hafemeister

In this article, Ms. Hannaford and Professor Hafemeister confront the issue of who will ensure that the needs of the growing elderly population are met. The authors provide a history and overview of guardianship proceedings and also provide, for the first time, a quantitative description of guardianship usage in the United States. The authors assert that guardianships and conservertorships remain effective ways to protect the incompetent elderly person. Although these remedies create a legal right in the guardian to manage the financial and medical welfare of the elderly client, the authors argue that a lack of procedural protections and judicial oversight may permit the unscrupulous to take advantage of elderly wards. In 1994, the Commission on National Probate Court Standards developed new standards to provide courts with the necessary tools to address these problems. The authors conclude by discussing these new standards and their impact on the courts' ability to protect the rights of the incompetent elderly in the future.

Paula L. Hannaford is Research Associate, National Center for State Courts, Williamsburg, Virginia. Thomas L. Hafemeister is Senior Staff Attorney, National Center for State Courts' Institute on Mental Disability and the Law, Williamsburg, Virginia, and Project Director for the National Probate Court Standards Project; Adjunct Professor of Law, Marshall-Wythe School of Law, College of William and Mary, Williamsburg, Virginia. This article was prepared in conjunction with the National Probate Court Standards Project and developed under grants from the State Justice Institute (SJI)(No. SJI-91-12L-070) and the American College of Trust and Estate Counsel (ACTEC) Foundation to the National College of Probate Judges (NCPJ) and the National Center for State Courts (NCSC). The points of view expressed are those of the authors and do not necessarily represent the official positions or policies of the SJI, ACTEC, NCPJ, or NCSC.