Volume 4     Number 1     1996    

ARTICLES

Preneed Funeral Plans: The Case for Uniformity - Judith A. Frank

In the article, Professor Frank discusses a disturbing new trend in which elderly consumers are being victimized by exploitative practices in the funeral business. Although "preneed" funeral contracts offer many advantages, Poressor Frank points out that there is a severe gap in consumer protections laws which leave the elderly vulnerable to abuse. Professor Frank begins her examination of this growing problem with a brief description of the concept of preneed funeral planning as well as a survey of the different regulatory responses taken by the states. Professor Frank then examines teh common substantive provsions of the state regulations provideing attorneys with a useful tool in scrutinizing such agreements and advising clients who have expressed an interest in such arrangements. Finally, the article summarizes teh results of an informal survey of funeral directors, funeral director associations, attorneys, attorney generals, state departments of social services, and state officials of consumer affairs as to the frequency of abuse and whether state regulatory frameworks adequately adress this "prime-time problem."

Enhancing Autonomy and Choice in Selecting and Directing Long-Term Care Services - Marshall B. Kapp

In this article, Professor Kapp suggests that the national debate over teh delivery of long-term care servies should reject the traditional model of professional domination, in which an individual has only the right of "negative autonomy," in favor of a new model which empowers individuals with the right to proactively participate in teh design and implementation of their service plans. In calling for this paradigmatice shift, Professor Kapp begins his discussion with an examination of client demands for community-based long-term care services while considering the financing, regulatory, and structural response to this demand. Professor Kapp then undertakes a cogent discussion of the "conflicting values and public policy aims complicating the expansion of client autonomy in the design and delivery of LTC services" as well as possible models for the future. Finally, Professor Kapp explores many of the questions and policy opportunities that would arise in the implementation of a new client choice delivery system. Professor Kapp's article will be of great interest to attorneys working closely with elderly clients in developing long-term care strategies as well as all American interested in the ongoing debate over the futre of our health care system.

BOOK REVIEW ESSAY

The Law and Economics of the Elderly - Thomas Ulen

NOTES

License to Steal: Implied Gift-Giving Authority and Powers of Attorney - Hans A. Lapping

Attornys of elderly clients are often called upon to draft a power of attorney to handle an elderly clintes's estate plans. The general powers conferrred by the document allow teh attorney-in-fact to act in lieu of the principal. In addition to the power of attorney, a program of estate reduction is commonly implemented by making annual gifts of $10,000 applicable to the gift tax exclusion. The IRS holds the position that an attorney-in-fact who makes such gifts on behalf of the elderly clinet is actually making a "revocable transfer" which in not entitled to the gift tax exclusion but is to be included in teh decedent's estate. Mr. Lapping argues that the position of the IRS should be upheld. Although most courts agree, Mr. Lapping is concerned with the trend of several recent Tax Court and courts of appeals decisions to interupt broad grants of power to include the authority to make gifts. In addition, Mr. Lapping argues that legislation enacted to recognzie such broad power by Alabama and Virgina be repealed as a result of serious flaws.

Releasing the Elderly Inmate: A Solution to Prison Overcrowding - Jason S. Ornduff

Prison overcrowding is a revelant problem in the United States, especially because many states use a sentence of life imprisonment without the possibility of parole. Overcrowded prisons affect elderly inmates in particular by expsing them to younger, more violent criminals and limited their access to medical care. In this Note, Mr. Ornduff discusses how lederly inmates both suffer from and further burden overcrowded living conditions is prisons. Mr. Ornduff also explores whether ealy release programs present a feasible solution to decreasing teh prison population without endangering society.

Consumer Fraud and the Elderly: The Need for a Uniform System of Enforcement and Increased Civil and Criminal Penalties - Richard A. Starnes

Increasingly, swindlers are targeting the elderly in perpetrative their fraudulent schemes. In his Note, Mr. Starnes approaches this disturbing problem by first examining the variuos methods used to defraud elderly consumers. Next, the author analyzes the current criminal and civil deterrents used to protect elderly consumers and finds them inadequate. Specifically, teh lack of uniformity in laws and enforcement allows crafty swindlers to evade liability. To combat this growing problem, teh author concluded by proposing a uniform system of enforcement and punishment to effectively protect the elderly.