Volume 5     Number 1     1997    

ARTICLES

The Impact of Advance Medical Directives on Distribution of Estate Assets Under the Simultaneous Death Act - James C. Benson and Russell Austin

An agent acting under the authority of an advance medical directive may have the authority to alter the patient's time of death by continuing or withdrawing life-sustaining treatment. The exact moment of death is critical when the deaths of testator and beneficiary occur close in time. To take under a will or intestacy, the beneficiary must survive the testator by a prescribed period of time. This leaves the agent with tremendous power to affect probate and nonprobate asset distribution. In their article, Dr. James Benson and Probate Judge Russell Austin discuss the potential conflict of interest for agents and the potential impact of advance medical directives on estate plans, and offer recommendations to resolve the issues.

Reverse Mortgages: Backing into the Future - Jean Reilly

Reverse mortgages are a unique option for elderly homeowners who wish to stay in their homes but lack the additional income needed for home expenses and upkeep. This article explores the range of public and private reverse mortgages currently available and identifies the obstacles that have hindered widespread acceptance of these estate planning devices by both borrowers and lenders. The author also examines recent legislative developments and corrective measures concerning reverse mortgages, the myriad tax complexities engendered by such mortgages, and the effect reverse mortgages have on a borrower's eligibility for public benefits. The author suggests that the future growth of the reverse mortgage market depends on increased legislation that protects consumers from fraud, alleviates lenders' concerns, and makes explicit how existing laws relate to reverse mortgage transactions.

NOTES

The Elderly in Guardianship: A Crisis of Constitutional Proportions - Mark D. Andrews

The guardianship system is in a state of crisis as it continues to undermine the interests of the elderly. Due to both federal and state reluctance to enact and reform legislation concerning guardianship procedures, the elderly subject to this system are being denied their constitutional rights. In his note, Mr. Andrews emphasizes that because the imposition of guardianship on an elderly person severely curtails the elder's rights and liberties, this system must focus on the protection of the elderly's constitutional rights. Mr. Andrews critiques the state of the current guardianship establishment. In addition, he concludes that both constitutional and policy reasons compel the need for change in this system. Mr. Andrews then provides recommendations by which to improve guardianship in order to effectively achieve its goal - protection of the elderly ward.

Collecting Attorney's Fees in Social Security Disputes: Procedures, Analysis, and Retroactive Application of Equal Access to Justice Act Timing Requirements - Ann C. Chalstrom

To encourage meritorious challenges of adverse Social Security benefit determinations, Congress has established two mechanisms by which the successful litigant may recover attorney's fees. In this note Ms. Chalstrom analyzes the statutory mechanisms for attorney's fee collection under both the Social Security Act and the Equal Access to Justice Act (EAJA). In particular, she reflects on recent Supreme Court decisions clarifying the application of EAJA timing requirements and the inconsistent application of those decisions by lower federal courts. Finally, Ms. Chalstrom concludes that in light of the policies underlying the Act, the retroactive application of newly clarified EAJA timing requirements is not appropriate.

The Elderly and the Discriminatory Use of Genetic Information - Kyle G. French

Genetic science, the study of the very building blocks of the human body, has progressed to a point where testing can predetermine a person's predisposition to disease. Although such knowledge might provide a boon for medicine, it also presents a threat of discrimination by insurers, especially against the elderly. In this note, Mr. Kyle French explains the science of genetic testing, outlines how insurers analyze risk and use genetic information, demonstrates why the elderly are particularly susceptible to genetic information discrimination by insurers, examines current and proposes future legislation proscribing genetic discrimination, and provides elder law practitioners with useful information for advising clients facing genetic information issues including and beyond insurer discrimination.

ESSAYS

Elder Law Journal Lecture: Don't Sock the Elderly, Help Them: Old Age Is Hard Enough - Robert Eisner

In this essay, originally presented as the first Elder Law Journal Lecture at the University of Illinois College of Law, Professor Eisner challenges the view that Social Security faces a crisis. Professor Eisner first examines the use and financing of the Old Age and Survivors Disability Insurance trust funds. He determines that the suggestion that Social Security has to be cut to avoid present and future solvency problems is economically unsound. Next, Professor Eisner examines the implications of the greater burden that eventually would be imposed by increasing proportions of nonworking elderly. He points out that with likely economic growth, even very modest growth, that eventual burden can be shared equally among young and old with increasing income and output for all. Professor Eisner concludes by recommending the preservation of all current benefits of Social Security, while keeping the trust funds solvent indefinitely, encouraging saving, and increasing retirement benefits.

A Call for a Functional Multidisciplinary Approach to Intervention in Cases of Elder Abuse, Neglect, and Exploitation: One Legal Clinic's Experience - Suzanne J. Levitt and Rebecca J. O'Neill

In their essay Ms. Levitt and Ms. O'Neill describe the frustrating work of advocating for elderly clients in a legal clinic setting. They highlight three main hurdles to effective intervention on behalf of the elderly: access to essential services, inadequate legal remedies, and procedural barriers. They argue that only a comprehensive multidisciplinary approach, involving all persons and organizations which have contact or provide services to the elderly, can guarantee that the interests and welfare of the elderly are adequately protected and provided.