Volume 4     Number 2     1996    

ARTICLES

Testamentary Capacity in Alzheimer's Disease - Warren F. Gorman, M.D.

Our aging population increasingly falls victim to Alzheimer's disease, a demeaning and progressively worsening illness. Medical (clinical) capacity is a physician's opinion regarding an individual's ability to make decisions and to act for himself . Legal capacity is an individual's capacity to understand the nature and effect of what he is doing. An individual can retain legal capacity even if he demonstrates eccentric behavior, holds bizarre beliefs, experiences medical conditions producing confusion and memory deficits, or is physically feeble. Testamentary capacity is the mental competence to execute a will, requiring that the testator be aware of the nature and extent of his property, know the persons to whom he will give his property, and understand the effects of his acts. The standards for retention of testamentary capacity are extremely permissive, and persons experiencing lucid intervals may be considered competent to execute wills during such periods. The determination of testamentary capacity is a fact-driven inquiry; the physician's opinion is not dispositive . The few courts addressing the issue have consistently held that testators with mild or mild to moderate Alzheimer's disease are competent to execute wills based upon testimony of those who interacted with the testator on the day the will was executed, often contrary to a physician's opinion.

Liability Issues Affecting Consumer-Directed Personal Assistance Services: Report and Recommendations - Charles P. Sabatino, J.D. and Dr. Simi Litvak

This article explores the legal hurdles which personal assistance services and their consumers encounter. The authors detail areas of potential liability faced by the provider and recipient of such elder care, including state regulation, tax obligations, licensing, respondeat superior, tort claims, and sundry consumer options. Statutes are critiqued and recommendations presented.

NOTES

Recognizing a Fundamental Liberty Interest Protecting the Right to Die: An Analysis of Statutes Which Criminalize or Legalize Physician-Assisted Suicide - William J. Tarnow

Physician-assisted suicide is one of the most controversial issues in society today. We live in an age where medical technology has developed so fast and so far that those who would have swiftly succumbed to deadly diseases in the not too distant past are now living, or, rather, being kept alive long past the point of meaningful existence. Although everyone sympathizes with the painful plight of the terminally ill, the specter of physician-assisted suicide gives many pause, and rightfully so: one need only think of the carbon monoxide contraption in the back of Dr. Death's infamous van to realize that society must address the issue of the right to die. Is there any solution to this great debate? In this note, Mr. William Tarnow passionately answers in the affirmative. Mr. Tarnow analyzes the constitutionality of state statutes which either criminalize or legalize physician-assisted suicide under both the Due Process and Equal Protection Clauses of the Constitution of the United States . The note also considers the case law, largely from the federal Ninth Circuit Court of Appeals, invalidating and upholding such statutes under the Constitution. Arguing that there is indeed a constitutional liberty interest in physician-assisted suicide, Mr. Tarnow concludes by suggesting that state legislatures can and must create legislation that legalizes physician-assisted suicide and passes constitutional muster.

Spousal Impoverishment or Enrichment? An Assessment of Asset and Income Transfers by Medicaid Applicants - Louis D. Torch

The institution of a spouse in a long-term medical care facility may alter significantly the financial stability of an elderly couple. The receipt of Medicaid benefits may help alleviate the costs of long-term care for an institutionalized spouse; however, maintaining the community spouse's standard of living at a sufficient level is also a significant concern. In this note, Mr. Torch analyzes the regulations concerning asset and income transfers between an institutionalized spouse and a community spouse, and the effects those requirements have on the community spouse's standard of living as well as the couple's Medicaid eligibility. Mr. Torch provides a detailed overview of the Medicaid establishment. Congressional legislation affecting the requirements regarding interspousal income and asset transfers, as well as Medicaid eligibility thresholds are also analyzed. Mr. Torch then addresses the issue as to whether the institutionalized spouse must transfer income before assets to the community spouse. Mr. Torch concludes that because the goal of legislation has been to eliminate the impoverishment of the community spouse, transferring assets before income from the institutionalized spouse to the community spouse is warranted.

ESSAYS

Women's Retirement Security - Senator Carol Moseley-Braun

In this essay, Senator Moseley-Braun explores the significant standard-of-living gap between men and women entering retirement. She explains how pension and Social Security laws make provision for working men while leaving women, who often sacrificed a stable career to work in the home or rear children, to fend for themselves. Finally she explains the important legislation introduced into the 104th Congress to remedy the discrepancy.

Fighting for Fairness: Keeping Public Wards in the Community and out of Nursing Homes Women's Retirement Security - Patrick T. Murphy

In his essay, outspoken Cook County Public Guardian Patrick Murphy candidly reviews his long struggle to keep indigent elderly wards living in the community, not in a nursing home. He criticizes the Illinois bureaucracy that for political reasons prefers expensive nursing home care rather than cheaper and more liberating community care. With personal examples, Mr. Murphy explains his legal theory but gives credit for his success to the media.