NAELA News November-December 2001 - Fay Blixfayblix.com/pdflinks/Powley award speech.pdf · memory of Wes and Helen Powley, grandparents of NAELA Member Tim Takacs. Both Wes and Helen

NAELA Announces 2001Powley Elder Law AwardRecipient

In this issue...Book Reviews ............................ 7

What I Learned at the NAELAUnProgram ................................ 8

Advocacy/Litigation SpecialInterest Group Corner .............. 10

What to Do When a Crisis Hits 23

V O L U M E X I I I ● I S S U E V I

NOVEMBER/DECEMBER2001

Calendar ofEvents

N A T I O N A L A C A D E M Y O F E L D E R L A W A T T O R N E Y S

NEWSNEWSNAELANAELA

(continued on page 4)

F E B R U A R Y 1 - 3 , 2 0 0 2

National Academy of ElderLaw Attorneys’ 2002Unprogram, EmbassySuites Outdoor World,Dallas, TX. For moreinformation contact JeniferMowery at (520) 881-4005,ext. 114 [email protected].

A P R I L 1 7 - 2 1 , 2 0 0 1

National Academy of ElderLaw Attorneys’ 2002Symposium, Hyatt Regency/Baltimore, MD, April 17-21,2001. For more informationcontact Jenifer Mowery at(520) 881-4005, ext. 114 [email protected].

The NAELA Powley Elder LawAward is presented to a NAELA mem-ber who has demonstrated a commit-ment to promote, in the minds of thegeneral public, a greater understandingof the rights and needs of the elderlyand how elder law attorneys advocatefor those rights.

The award is established in thememory of Wes and Helen Powley,grandparents of NAELA Member TimTakacs. Both Wes and Helen were ac-tive in civic affairs for all of their livesand Wes practiced dentistry well intohis 80s. The award is funded by a grantfrom the Takacs Family Foundation.

This year’s recipient, Fay Blix,CELA , has been a tireless advocate forthe elderly and disabled. In addition toher involvement with NAELA, Ms. Blixwas a founding chair of the Elder LawSection of the Orange County Bar As-sociation (OCBA). Most recently, she

was awarded the “2000 Hall of FameAward” by the OCBA Elder Law Sec-tion. She was named “Elder Advocateof the Year” by the OCBA in 1994, andhas been a member of the Modest MeansCommittee of the OCBA, which recentlywon national recognition from theAmerican Bar Association for its effortsin improving legal access to persons ofmodest means. She is a very activemember of the Orange CountyAlzheimer’s Association, which namedher “1996 Public Policy Volunteer of theYear” and received the “DistinguishedVolunteer Award” by the Alzheimer’sAssociation California State Council.

As part of her commitment to theelderly and disabled, Ms. Blix serves ona variety of local boards and is a fre-quent lecturer on elder law.

A $1000 cash grant will be made inMs. Blix’s name to the non-profit orga-nization of his or her choice.

2 NAELA News • November/December 2001

P A I D A D V E R T I S E M E N T

West Group(inside front cover)

NAELA News • November/December 2001 3

Board of Directors2001-2002

P R E S I D E N TCharles P. Sabatino, Esq.

Washington, DC

P R E S I D E N T - E L E C TBernard A. Krooks, CELA

New York, NY

V I C E P R E S I D E N TWilliam J. Browning, CELA

Columbus, OH

T R E A S U R E RLawrence E. Davidow, CELA

Islandia, NY

S E C R E T A R YStuart D. Zimring, Esq.North Hollywood, CA

P A S T P R E S I D E N TJudith A. Stein, Esq.

Mansfield, CT

E X E C U T I V E D I R E C T O RLaury A. Gelardi

Tucson, AZ

M A N A G I N G D I R E C T O RDeborah J. Barnett

Tucson, AZ

D I R E C T O R SElizabethanne (Betsy) M.

Angevine, Esq.Whittier, CA

Donna R. Bashaw, CELALaguna Hills, CA

Dennis J. Christensen, Esq.Mount Pleasant, SC

Ronald A. Fatoullah, CELAGreat Neck, NY

Andrew H. Hook, CELAPortsmouth, VA

Jo-Anne Herina Jeffreys, CELAHoboken, NJ

Dan Kellogg, CELARenton, WA

Julia E. Merkt, Esq.El Paso, TX

Alex L. Moschella, CELASomerville, MA

Ruth E. Phelps, CELAPasadena, CA

Craig C. Reaves, CELAKansas City, MO

Aimee P. Rudman, CELACherry Hill, NJ

G. Mark Shalloway, CELAWest Palm Beach, FL

Stephen J. Silverberg, Esq.Long Island, NY

Daniel O. Tully, Esq.Bristol, CT

C O N S U L T A N T SPublic Policy, Brian Lindberg

Washington, D.C.

Legal, Hugh K. Webster, Esq.Washington, DC

President’s MessageBy Charles P. Sabatino, Esq.

Charles P. Sabatino

Competitors orCollaborators?

There has been a greatdeal of discussion amongNAELA members about thenew programs that havebeen developed by theAmerican Institute of Certi-fied Public Accounts(AICPA). The NAELA lead-ership has been tracking their progresssince 1997, giving input when appropri-ate and working with the AICPA to bringthem into the elder care network as avaluable asset.

Like most associations, the AICPAhas been striving to guide their mem-bers into practice areas that will assurethe future of their practices. Acknowl-edging the downturn in tax work forCPA’s due to the growth of the softwaremarket in this area, the AICPA went towork to formulate a new long range planto guide their members. One of the newareas of practice that they identified was“elder care.” They formed an “elder carecommittee” which then went to work todo their due diligence. Simultaneously,the AICPA addressed their rules to al-low non-CPA’s as partners in account-ing firms. Actually, the AICPA shouldbe commended for taking action and try-

ing to guide their membersin keeping their practicesviable and growing. Asso-ciations have to constantlychange in order to stay rel-evant to their members.This is evidenced by medi-cal associations that de-clared that medical prac-tices would never be run byanyone but physicians.

Our Executive Director, LauryGelardi, met with their committee inJanuary of 1998. They also met with theNational Association of Geriatric CareManagers, among others. These firstmeetings were exploratory as they weretrying to define how CPAs would fit intothe aging network. Laury encouragedthem to join the team, but to recognizethe value and the roles of the other ag-ing network professionals. She encour-aged them to make local contacts withelder law attorneys and geriatric caremanagers. She also noted that theAICPA would need to provide trainingto their members on how to identify andprovide quality services to older clients.

It was late in 1998, that the AICPAunveiled their “Elder Law AssuranceProgram.” This is a packaged program –

The NAELA News is published by theNational Academy of Elder Law Attorneys, Inc.

1604 N. Country Club Road ● Tucson, AZ 85716-3102520/881-4005 ● 520/325-7925 Fax ● www.naela.org

Articles appearing in the NAELA News may not be regarded as legal advice. Thenature of elder law practice makes it imperative that local law and practice beconsulted before advising clients. Statements of fact and opinion are the responsi-bility of the author and do not imply an opinion or endorsement on the part of theofficers or directors of NAELA unless otherwise specifically stated as such.

Publications Chair ............................................... Edwin M. Boyer Esq., Sarasota, FLEditor .................................................................Steven H. Stern, CELA, Islandia, NYCo-Editor .......................................... Amanda B. D’Wynter, Esq., St. Petersburg, FLAssociate Editor ....................................... Sharon K. Gruer, CELA, Great Neck, NYExecutive Director ....................................................... Laury A. Gelardi, Tucson, AZCommunications Director .................................... Jihane K. Rohrbacker, Tucson, AZGraphic Designer ......................................................... Kristin L. Hager, Redmond, WA

© Copyright NAELA 2001



Chapter PresidentsARIZONA

John C. Lincoln, Esq.Phoenix, AZ

(602) 955-9555

CAROLINASKathryn Cook DeAngelo, CELA

Surfside Beach, SC(803) 238-8422

Michael J. McCann, Esq.Hendersonville, NC

(828) 693-0811

NORTHERN CALIFORNIAMark A. Hyjek, CELA

Fair Oaks, CA(916) 965-8941

SOUTHERN CALIFORNIAKaren Black, CELA

Escondido, CA(760) 745-2900

COLORADOR. L. Steenrod, Jr., Esq.

Denver, CO(303) 534-5100

FLORIDAJoan Nelson Hook, Esq.

New Port Richey, FL(727) 842-1001

ILLINOISRebecca Mitchell, Esq.

Chicago, IL(773) 338-4232

KANSASTimothy O’Sullivan, Esq.

Wichita, KS316-264-3339

MASSACHUSETTS Mary K. (Kathy) Nealon, Esq.

Hopkinton, MA(508) 435-6969

MISSOURIHon. John WalkerCamdenton, MO573-346-5160

NEW JERSEYEugene Rosner, CELA

Clark, NJ(732) 382-6070

TEXASO. Henry (Mike) Young, Esq.

Abilene, TX(915) 672-7824

WASHINGTONBarry Meyers, Esq.Bellingham, WA(360) 647-8846

Please note that this list doesnot include the NAELA

chapters currently in-formation.

NAELA Announces 2001 PowleyElder Law Award Recipient(continued from page 1)

Powley Award Acceptance Speech by Fay Blix

Those in attendance at the luncheon during which Fay Blix was pre-sented the Powley Award were moved to tears by her remarks. We havetherefore asked her to reprint her remarks. They are as follows:

Thank you!I am both honored and humbled by this award this afternoon as I know I

am only doing what most of you are doing in your own communities.I wish that I had known Wes and Helen Powley, but those of us who have

been touched by the words and actions of their grandson, Tim, know theymust have been special people. The fact that this award has been establishedin their honor says good things about them. I want to thank the TakacsFamily Foundation for establishing this award. What a wonderful idea!

I have chosen my own local chapter of the Alzheimer’s Association—the Orange County Alzheimer’s Association—as the worthy recipient of thecharitable donation of this award.

As I sat by helplessly on the West Coast as I watched the horrific un-folding of the events of September 11, struggling to make meaning out of thisunspeakable insanity, wondering how I could make a difference in my ownsmall way, I was struck by this thought:

Alzheimer’s Disease is a terrorist attack on the tower of the soul. It strikeswithout warning. It is no respecter of persons. Striking first at the top. A brainunder attack. Slowly, incrementally, insidiously ... Synapses dissolve, Gooeyplaques clump, And tangles mangle and strangle life giving neurons.

“Death by a thousand substractions.” A life catapulted into an excruciating fade As circuit breakers of the

soul switch off one by one by one. . . Imploding the structure into a pileup oftangled neurons Burying the self in oblivion, Ravaging other victims in itswake— As care givers rush in to rescue pieces from the rubble— Only to beplaced at risk themselves.

And then I watched the incredible courage, bravery, and dedication ofthe New York firefighters and police as they risked all to save lives. And Iwatched the nation come together, showing more love, more care, more gen-erosity than I would have ever believed to be possible....

And I wondered...

Could we, as elder law attorneys, working with families with loved oneswho suffer from Alzheimer’s Disease to salvage their precious legacy, toprotect care givers caught in the mayhem, to fight for access to quality carefor those who can no longer speak for themselves, could we— Of course, inless spectacular, Less dramatic ways, But deeply caring, nevertheless, Couldwe, too, be among the Best and the Bravest Unwilling to miss ANY opportu-nity to make a difference. Unwilling to miss ANY opportunity to Walk,

Talk,Lift,Love,Give. . .? (continued on page 5)


NAELA Announces 2001 PowleyElder Law Award Recipient(continued from page 4)

President’s Message(continued from page 3)

complete with marketing materials–toappeal to older clients. NAELA Presi-dent-Elect Bernard Krooks and PublicRelations Co-Chair Howard Krookshave both presented programs on eldercare services at national AICPA confer-ences over the last two years. We havebeen told that this program has beenmet with mixed reviews by the CPAs.Some CPAs think it has opened up anew market area for them while othersfeel that it may go too far into the “ser-vice” aspect (as opposed to the ac-counting aspect) of elder care. Theseare the types of comments that onewould expect to hear about any newassociation program.

The NAELA Leadership continues

And could it be that our shining example would spur others across thecountry, from all walks of life to also be unwilling to miss ANY opportunityto Walk,

Talk,Lift,Love,Give. . .?

So that in every community where there is a NAELA member—acrossthis nation—we could change the landscape of this country for those suf-fering from this terrible disease and for those who face other challenges inaging—that our NAELA heart would show and each NAELA heart wouldburn with the prayer of The Dalai Lama—

“May I become at all times, both now and foreverA protector for those without protectionA guide for those who have lost their wayA ship for those with oceans to crossA bridge for those with rivers to crossA sanctuary for those in dangerA lamp for those without light A place of refuge for those who lack

shelterAnd a servant to all in need.”

NAELA hearts joined to make a difference for all the elderly of thiscountry. NAELA hearts united. United we stand.

to talk about which professionalsshould be a part of the “aging network.”We have traditionally identified elderlaw attorneys, care managers, financialplanners and insurance agents, and weshould now also include accountants.Anyone who provides high-quality ser-vices to older persons should be an allywith elder law attorneys. If our interestsare truly with providing the best pos-sible advice and service to our clients,then we should welcome those whoshare our mission.

Rather than concentrating on turfissues or pointing fingers, we need torecognize that there is more thanenough work for everyone and elder lawattorneys should take the lead in defin-ing and modeling the appropriate levelsof service and in providing the appro-priate protections for the client.

The following indi-viduals have recentlycompleted the require-ments to become aCertified Elder LawAttorney by theNational Elder LawFoundation. Con-gratulations!For information on thecertication processcontact Lori Barbee at(520) 881-1076 or [email protected]

Maria DeMarcoBegley, CELAGarden City, NY

Barbara A. Braznell,CELASt. Joseph, MO

Martha C. Brown,CELASt. Louis, MO

Angela E. Canellos,CELAWauwatosa, WI

Kevin Barry Curley,CELAWestchester, PA

Robert C. Gerhard III,CELAGlenside, PA

Connie L. Glass,CELAHuntsville, AL

J. Eric Gustafson,CELAYakima, WA

Steven A. Kass, CELAWestbury, NY

Stephen G. Levy,CELAAlbany, NY

James B. Steward,CELAIshpeming, MI

Con

grat

ulat

ions

CE

LAs!


article in the September 15, 2001 issueof Bottom Line, entitled “Medicaid An-nuity Risk.”

Robert A. Gazzola, Esq., was re-elected as co-chairman of the Estates,Trusts and Probate Law Section of theDistrict of Columbia Bar.

A. Frank Johns, CELA, RG, HarryS. Margolis, Esq.,

Thomas D.Begeley Jr,C E L A ,Michael J.M i l l o n i g ,CELA , Dale M.Krause, Esq.,

Craig C.Reaves, CELA,

and Bernard A.Krooks, CELA , were quoted in the

July 9, 2001 issue of Lawyers WeeklyUSA, in an article entitled, “States CrackDown on Medicaid Planning.”

David Paul Pollan, Esq., was fea-tured in the October 15, 2001 issue ofThe National Law Journal in an articleentitled “Helping the Elderly and theInjured.”

Tim Nay, Esq., has been electedchair of the Oregon State Bar’s Elder LawSection for 2002. He has also been

elected vice president of the new Or-egon/Greater Idaho Chapter of theAlzheimer’s Association.

Vincent J. Russo, CELA, wrote anarticle for the May 21, 2001 issue of NewYork Law Journal, entitled “MedicalTrust Drafting Techniques.”

Avram Sacks, Esq., was quoted inthe October 24, 2001 issue of the TheWall Street Journal in Tom Herman’sTax Column.

Donald D. Vanarelli, CELA , wasrecently certified as a Registered Guard-ian by the National Guardianship Foun-dation.

Karen H. Weber, Esq., has beenawarded the honor of “Kansas Woman-owned Professional Service Firm of theYear” by the Kansas Department ofCommerce and Housing through theOffice of Minority and Women BusinessDevelopment. The award was presentedat the 17th Annual Recognition AwardsLuncheon held on October 9, 2001.

Leonard Weiner, CELA, wrote anarticle for the August 6, 2001 issue ofU.S. News and World Report, entitled“Red Tape in the Tax Law Is CauseEnough to Worry Now” which includesa quote from Stephen J. Silverberg, Esq.

Stuart Zimring, Esq., was featuredin the August 23, 2001 issue of The LosAngeles Times, entitled “They’re Olderbut Not Old-Fashioned About Love andMarriage.”

l Lawyers Weekly USA, in the July9, 2001 issue in “States CrackDown on Medicaid Planning.”

l Money, in the September2001 issue in“You AreYourParents.”

l TheNationalLawJournal, in theOctober 15, 2001issue in “Helping theElderly and the Injured.”

Jill Bremyer-Archer, Esq., waselected as chair of the Elder Law Sectionof the Kansas Bar Association.

Robert Clofine, CELA , was men-tioned in the September 25, 2001 issueof the The Wall Street Journal, in an ar-ticle entitled “Terrorist Attack SpurAmerican to Produce Wills.”

David A. Dorfman, Esq., wrote an

NAELA was mentionedas a resource in thefollowing publications.

NAELA Members in the News

NAELA Board Reviews Membership Voting RightsThe Board of Directors met on July

21, 2001 at the Annual Board Retreatand Board meeting and discussedchanges to the NAELA voting proce-dures. This bylaws proposal was origi-nally voted upon and defeated inVancouver in April of 2001, and hasbeen revised based upon feedback frommembership, as follows:

Passage of bylaw changes is re-duced from a two thirds majority to asimple majority. As such, if more thanhalf of the members vote for any changein the Bylaws, that change will be effec-tive.

We have also established a mini-mum threshold for the number of bal-lots which must be received. We havechosen the number 350 or 10 percent ofthe membership, whichever is less.

Discussions on this proposal be-gan in 1994. Several members believedit was unfair for bar organizations to re-strict voting to those who attend theannual meetings. Those discussionsresulted in a change in the election ofofficers and board members which arenow voted upon by the members andnot just those who happen to attendthe annual symposium. It is the intentof this board to enfranchise all membersand not in any way restrict voting rightsto a select few. This ballot measure willbe subject to a vote of those membersattending the 2002 symposium in Balti-more, MD, as required by our currentbylaws. It is our sincere hope that wewill be successful in this endeavor.Should you have any questions or criti-cisms, please do not hesitate to contact

Bill Browning as Chair of the NAELABylaws Committee or any of the officersor Board members. It is our goal to pro-vide ample time for discussion and re-view of this rule.

The proposed Amendment to theBylaws reads as follows:

These bylaws may be amended bya majority of the members voting by mailballot. For adoption of any proposedamendment, the lesser of 350 ballots orballots representing 10% of the totalmembership must be received by thestate deadline. Notice of proposedamendments, along with the ballot, shallbe mailed to each member in good stand-ing, and completed ballots must be re-ceived at the principal office of NAELA(or such other place as the board of di-rectors may designate) within thirty (30)days of the date of such notice.


Book ReviewBy Rebecca C. Morgan,Esq. ©

Changing Placesby Judy Kramer[238 pgs., RiverheadBooks $14.00 (2000)]

Judy Kramer is the author of a news-paper column and a book that is a criti-cal tool for every elder law attorney. Inher book, Changing Places, JudyKramer writes about her journey withher parents, a 56 year journey that endsafter her parents died. The book is di-vided into five parts, starting withAfternoon•Changes, the time in her par-ents’ lives when she helps them moveinto a nursing home, and ends with,Morning•Survival, the time of her lifeafter her parents deaths.

Elder law attorneys daily face cli-ents–families–who have to place theirelderly relative in a nursing home. Forthe attorney, it’s part of the job—stillsignificant, nonetheless, but part of thejob. For the family, it is a major life-alter-ing event that must be done, but may berife with sadness. For elder law attor-neys who have faced this time person-ally, they know all of the decisions andthe turmoil that the families face in en-tering this part of the journey with theirparents. For those who haven’t, we useour best counseling skills to prepare theclients for the journey ahead.

Attorneys always want to beempathetic to their clients’ needs. Forsome clients, however, an attorney say-ing “I understand” or “I know how youfeel” offers scant comfort if the attor-ney has not personally experienced thesituation. Judy Kramer has experiencedthe situation first hand, and has writteneloquently about it. Every elder law at-torney should buy this book in bulk andgive it to their clients to serve as aroadmap of what is to come. Even thoseof us who have not yet faced this situa-tion will find ourselves moved to tearsas Ms Kramer describes the situationsfaced both by her parents and herself.

In Part One, she described movingher parents into a nursing home,downsizing their possessions and clos-ing their apartment. As their savings arespent down, she meets with an elder lawattorney and does Medicaid planningfor her parents. She finds herself in con-trol, with a role reversal–changing placeswith her parents, as she tries to under-stand their feelings at these massivechanges in their lives. “It took me sevenmonths to understand that for my par-ents, the difference between “takingaway” and “letting go of” their posses-sions and their responsibilities de-pended upon involving them in the de-cisions.” (10). As part of Medicaid plan-ning, she makes arrangements with thefuneral home for her parents, and signsan irrevocable trust. “I thought aboutthe irony of the name of the transactionwe had just completed. It was called anirrevocable trust. And isn’t that, afterall, the bond that links parents and theirchildren?” (19)

Kramer describes the emotions shehas felt during this journey: fear whenthe phone rings, happiness when herparents’ quality of life improved, angerat the bureaucratic errors; frustration inbalancing her parents’ needs and herlife; sadness in watching her parents failphysically; loneliness in not being ableto share her needs with her parents; ex-haustion at her parents’ relentlessneeds; guilt in taking time for herself;and in particular, “most of all, [she] hasfelt responsible.” (40-42).

The second part of her book, en-titled Evening•Losses details the vari-ous declines her parents experience.Although she tries to fill the holes inher parent’s lives, she finds she can not,and anger and frustration become com-monplace emotions on both sides–“along with their losses come my own:loss of time, loss of focus on family andwork, loss of balance in life.” (49) “Myparents get angry at the world, at them-selves, at each other, at their caretakers,at me. I resent their feelings at the sametime as I struggle to meet their needs.”(49). She relates her ability to stand inher parents’ shoes. After being hospi-talized for recent surgery, she drawsparallels between her need for others tohelp her with that same need of her par-ents. “I felt as if I had stepped into theirskins, and the experience was very un-settling.” (53).

In Night•Death, she writes of be-ing faced with the decision about imple-

menting her mother’s advance directive.She describes the process she and herbrother went through in reaching thedecision to take her mother back to thenursing home, so she could die in herhusband’s arms. They all expected thather father would die first, but he did not.However, he did die shortly after hermother, leaving her an orphan. As herfather is dying, she realizes the impor-tance of the 56 years together. “Withinthe next few days, my father will die, andmy parents, my brother, and I will havearrived at our destination. It has been arough trip. We have open wounds. Wehave scars. And we have memories, somevery good. At times, traveling with myparents into their old age has felt like aforced march. Often I have not wantedto go. But it gives me great satisfactionthat we have dealt with the roadblocks,followed the detours, found the route,and made this trip together. When myfather dies, my parents will have arrivedand I will have visited the place wherewe are all going. Although the routediffers for each family, in the struggle tofind the way I think we feel the samepain.” (143-144).

She closes the book describing howshe moved on with her life, after the deathof her parents and how she coped withthose sudden reminders, a birthday, ananniversary, and the final resolution ofthe day to day matters that come frombeing in charge of someone else’s life,particularly the paper work. Mounds ofpaper work.

“The loss of a parent is a universaljourney that most living souls on earthwill make. My parents made it. Now I havemade it. My children will make it, and theirchildren after them. We move throughendless cycles of days, seasons, andexperiences with an understanding thatcertain things will occur. Afternoon willbe followed by evening. Night will comeand after it dawn and the morning. Springwill herald summer to be followed by falland winter. Life will end in death.” (237)

This is not necessarily an easy bookto read, since all elder law attorneys knowthe ending of the story at the beginningof the book. But reading it will help usbe better attorneys. We really can un-derstand more about how our clients feeland the book will help us frame ques-tions to better serve our clients. Forthose clients living through this, thisbook will help them as they changeplaces with their parents, and preparethem for their journeys.


What I Learned At theNAELA UnProgramBy Thomas J. Murphy, Esq.

After procrastinating for severalyears, I finally made it to the NAELA’sUnProgram, held each February in Dal-las. It was the first time that I had at-tended the event although I had heard agreat deal about it over the years. I al-ways had a reason not to go. I realizenow that this was a mistake. I am writ-ing this article to pass on many of thewonderful ideas that I heard as well asto provide a glimpse of what theUnProgram is like.

The UnProgram is a three day con-ference with no pre-arranged schedule(hence the name “UnProgram”). Sev-eral times a day, a message board wouldsimply state that discussions on particu-lar topics would be given in a specifiedroom, usually lasting about 90 minutes.There was typically eight to ten discus-sion groups going on at any one time.There was no structure to these discus-sions–it was meant to be very informaland interactive. The topics did not dealwith any substantive law issues. Rather,they addressed the business of runninga law practice—offfice procedures,caseload management and other as-

sorted headaches. For the first timeever, registration was capped at 150 par-ticipants.

Over the three-day event, I went toas many discussions groups as I could.The one overriding theme that I pickedup on was coping with an avalanche ofnew and continuing business. No oneseemed overly concerned about attract-ing new business. As a result, market-ing a practice was not discussed muchas I would have thought. The consen-sus seemed to be that it was not a mat-ter of priming the pump but rather howto control the floodgates. (One of thebest pieces of advice I heard was “Be-fore you increase the size of your prac-tice, you have to get organized”).

Here is what I gathered from thevarious discussion groups:

Advising on Retirement Planning.For me, this was the most useful dis-cussion that I attended. The membersleading the discussion emphasized thatadvising on retirement plans should be-come a huge and lucrative area of ourpractices. Never before have peopleaccumulated this much tax-deferred

money. They emphasized that, once youunderstand the basic concepts, the lawis not as complicated as generally per-ceived. Financial advisors can readilyfind the easy answers on their own orthrough in-house counsel. But theyhave great difficulty finding practitio-ners who can answer the hard questionsand who are objective and unbiased (ie,not earning a commission by selling aproduct). We need to become the sourcefor these answers and there are someuseful tools in helping us analyze theseissues. The software by Brentmark andPendicalc were given high praise. Theseprograms allow you to compute all sortsof “what if” scenarios for the client, suchas should the client pursue tax deferralor purchase life insurance instead?

The new IRS regs on minimum dis-tributions had just been issued when theUnprogram took place. Members of thegroup emphasized that this presented areal marketing opportunity. Severalmembers had already scheduled semi-nars on the new regs for CPAs, CFPs,stockbrokers and other financial advi-sors. They were also preparing moregeneral seminars on the new regs in con-junction with newspapers, retiredteacher associations, credit unions andcharities. (On a personal note, I wasunable to quickly arrange these types


Robert Fleming Receives NAELA Un-AwardPresident Charles Sabatino presented the2001 NAELA UnAward to longtimeNAELA Member Robert Fleming, CELA,at the 2001 NAELA Institute held in St.Louis, MO. Mr. Fleming received theaward in recognition of his ahead-of-the-curve leadership in giving birth toNAELA’s communications technology inthe form of the email listserv and theNAELA website. In addition, during hisboard tenure, on committees, and in hisprogram presentations, he has been andcontinues to be an example to the rest ofus of out-of-the-box creative thinkingand problem solving.

Congratulations Robert!



Very few attendees

accept credit cards. At

prior NAELA meetings it

has been pointed out

that, through the use of

credit cards, receivables

drop dramatically.

Others have told me that

credit cards are a

popular way for a client

to build up their airline

miles. But this does not

seem to have taken

hold. Attorneys with

large Medicaid practices

noted that, during a

spenddown, cash is

usually readily available

to pay fees.

of seminars before tax season hit. But Itook their advice and immediately sched-uled seminars when the tax bill waspassed in June, 2001. My seminars werea great success. The rooms were packedand most of the attendees were finan-cial advisors or other professionals.)

Value Billing and Other Fee Mat-ters. Virtually all attendees are using aflat fee structure in their practice, fortwo reasons. One is that elderly clientsdislike paying $200 per hour and up foradvice. The other reason is that flat feesbetter reflect our expertise and the ef-forts undertaken toobtain that exper-tise. The billablehours lost due to at-tending seminarsplus the out ofpocket costs oftravel, lodging andthe like can easilyequate to $20,000per year or more.These are expensesthat many other at-torneys are not in-curring. This makesour advice thatmuch more valuable,especially in times ofcrisis. As one mem-ber put it, “we arethe fireman with thebiggest hose.”

There was re-peated concern thatwe were not doing agood enough job inexplaining this ex-pertise to our clientsand their childrenwho, after theparent’s death, mayquestion the fee.The consensus wasthat, when a fee dis-pute erupts, practi-tioners need to do abetter job of explain-ing what we are do-ing and of the ben-efits received by theclients.

In this regard, there was nothingshort of horror stories coming out ofNew Jersey. Several New Jersey attor-neys told of fee arbitrations where theattorney was ordered to return the en-tire fee even where a spenddown wassuccessfully accomplished. In view ofall this, there was a strong consensusamong all attorneys to refund the entirefee when a client complains and to re-frain from suing clients who will not pay.Such matters were viewed as a costlydiversion. It is best to walk away.

The importance of a written feeagreement was also emphasized. Sev-eral attorneys give the fee agreement tothe client at the first meeting but refuseto let the client sign it at that time. Rather,

the client is encour-aged to think itover and to discussthe matter withtheir children. Thecheck is received atthat meeting butthe client is in-structed that thecheck will not bedeposited until theclient signs and re-turns the fee agree-ment. These cli-ents liked the factthat they were notbeing pressured.

A t t o r n e y salso pointed outthat it was impor-tant to indicate thatthe fee as quotedwas only good fora certain period oftime, usually 60 to90 days. Severalattendees had ex-perienced prob-lems with familieswho returned oneyear or more laterwhen circum-stances hadchanged or theattorney’s fees hadincreased.

The fee agree-ment also needs tostate what will hap-pen if the client diesin the middle of

representation. Most agreed that thefee should be considered earned if allthe documents have been prepared or ifthe application has been submitted.Some agree to refund a portion of thefee. Others offer to probate the estateat little or no extra cost, although it wasnoted that there is often little to probatein most Medicaid estates.

Very few attendees accept creditcards. At prior NAELA meetings it hasbeen pointed out that, through the useof credit cards, receivables drop dra-matically. Others have told me that creditcards are a popular way for a client tobuild up their airline miles. But this doesnot seem to have taken hold. Attor-neys with large Medicaid practicesnoted that, during a spenddown, cashis usually readily available to pay fees.

There was a good anecdote forthose attorneys who may be concernedthat their fees are too high – think of thecommission that the realtor will get ifthe client’s house is sold as part of aprobate estate! Still think your fee istoo high?

Client Contact. I was surprised atthe number of attorneys who do notsend out questionnaires prior to the firstmeeting with the client. I, as well asmost of the attendees, send out a de-tailed questionnaire with a checklist ofdocuments that I will need to review.But a substantial number of attorneysprefer to have the first meeting be moreof an information-gathering session.Only after an attorney-client relation-ship has been established does the docu-ment exchange take place.

A good idea is to include a coverletter explaining that the client is beingasked to provide confidential informa-tion that the attorney needs to analyze.The letter emphasizes that the informa-tion will be kept confidential.

A growing number of attorneys areproviding fee schedules with the initialdocumentation that is sent to the client.This is intended to give the client a goodgrasp of what the fee will be. Not sur-prisingly, others took issue with this ap-proach since there is typically a widerange of fees and the client will not un-derstand what they are paying for untilmeeting with the attorney.

What I learned at theNAELA UnProgram(continued from page 8)


Gateway to the West.Home of the Cardinals, theBlues and the Rams. Head-quarters for Monsanto,Anheiser Busch, TransWorld Airlines. Two ofNAELA’s best institutes. Allare ways to describe St.Louis. You can also add: theplace where the east met thewest as NAELA members

who were Diamondbacks and Yan-kee fans converged to watch the2001 World Series, and were gra-cious about it!

During a time of such tragedyin our nation, we had a heart-warm-ing gathering at the 2001 NAELAInstitute. Three hundred andtwenty five members turned out tolisten to the speakers, to learn fromeach other and to share the goodand the bad times. The feeling ofcamaraderie was greater than ever.New members and “old members”all felt it and expressed it. If you missed the program,tapes and written materials are available, but you willhave to attend the next one to get your share of warmfuzzies!

As the year concludes, we all need to give ourthanks. NAELA has a great deal to be thankful for—for members who are open and sharing and caring,

Laury Adsit Gelardi

NAELA Institute... Lots of Warm FuzziesBy Laury Adsit Gelardi, Executive Director

for leaders who are dedicated and determined to keep-ing us out front and to maintaining the “small feel” toour organization as it grows, for the resources to fos-ter a flourishing organization and for a profession thatis blooming in a way that we can all be proud of.

NAELA members will tell you that NAELA is dif-ferent. The lawyers are different. They are real people.They are open with their knowledge and willing sharetheir ups and their downs. They care about their cli-ents and about their staffs. They are not competitive.They are not ego-driven. They are not what most people

think of as “the typical lawyer.” Youwould only know this if you havecome to a NAELA meeting and metother members. The meetings areriddled with testimonials….one law-yer stood up in the GuardianshipSIG meeting and stated that he wasfrom St. Charles, this was his firstNAELA meeting, and the firstgroup of lawyers that he liked be-ing around!!! That says it all!

So…..mark your calendarsnow:

2002 NAELA UnProgram is inDallas, Texas February 1–3, 2002

2002 NAELA Symposium is in Baltimore, MD April18-21, 2002

2002 NAELA Institute is in Albuquerque, NMNovember 15-17, 2002

Happy holidays to you and your family and welook forward to seeing you in 2002.

NAELA members willtell you that NAELA

is different. Thelawyers are different.

They are realpeople.

NAELA Board RescindsAffiliate Membership Proposal

The NAELA Board of Directors met on July 21, 2001 at the Annual Board Retreat andBoard Meeting. Based upon feedback from the NAELA membership, the bylaws committeemoved to withdraw the “Affiliates Proposal” as a Bylaw amendment. The board votedunanimously to withdraw the bylaws Amendment and it is no longer on the agenda forfuture board meetings or for a vote of the membership.


One nice touch that I learned of isto have the client come to the office andpick up the completed documents. Theattorney, staff and client then have amini-celebration – “Isn’t this great. Wegot everything done!” This is muchbetter than simply mailing the items tothe client.

Another useful tidbit was, uponcompletion of the work, to send a book-let containing elder law FAQs. Attor-neys using this method said this dra-matically lessened the subsequentphone calls and questions that can takeup substantial amounts of time. It isalso an effective CYA mechanism in thatthe client cannot later complain that theywere never told certain things or thatthey were told something different.

There is no question that it is im-portant to get the little things right witha client. As one attorney said: “Youcan make a mistake in the law that couldcost a client thousands of dollars andhe will never know it. But spell his namewrong and you’re dead.”

Marketing. Not much time wasspent discussing marketing our prac-tices. I noticed a wide range in theamounts attorneys are spending onmarketing efforts. One attorney spends$130,000 per year on radio advertising.Others, who have built several-lawyerfirms with large staffs, have not spent adime.

No one was too enthusiastic aboutadvertising in the Yellow Pages. Theconsensus was that those ads producetoo many shoppers and other low qual-ity clients. However, my experience witha ¾ inch ad has been quite favorable.

There was also wide agreement onthe need for tracing the sources of yournew clients. I simply ask at the end ofthe first meeting. Others provide for thisin their questionnaires or other intakeforms. Not only does this tell you whereyour business is coming from, but itmay also provide greater insight into theclient’s motivations. You also need toprovide some sort of personalized thankyou to the referral source.

Public speaking is a great way tobuild a practice. One attorney relatedhow he had developed a standardized

letter that he sent to each group that hewanted to present to. What caught myattention about that letter was the needto list ten topics that you can speak on.Your intended audience may not knowthat you could speak on these other top-ics.

Scheduling. I was surprised byhow fixed the calendars are for most at-torneys. Appointments never vary andare only scheduled for certain times andon certain days. Many, if not most, ofthe attendees close their office to cli-ents on Fridays. A message is left onthe firm’s answering machine indicatingthat the staff is in the office, that theywill be checking messages throughoutthe day and that they will return anyemergency calls. Some attorneys havetheir staff devote a specific portion ofeach day to filing and other humdrumtasks that are easily put off.

There is an increasing use of regu-larly scheduled staff meetings with theentire office. These are usually doneover lunch with the entire staff so thateveryone knows what everyone else isdoing. It can be very important for ev-eryone to have some familiarity witheach case since this can greatly mini-mize disruptions if a staff member is illor otherwise out of the office.

A problem that frequently came upduring discussions was limiting attor-ney contact with the client. It appearedto me that many attorneys are not in-volving their staff at the first meetingwith the client. The attorneys who havesolved this problem introduce the staffmember at the first meeting. The clientis told to contact the staff member firstand the client is told by the attorneyhow the staff member will be handlingthe case.

Hiring of Staff and Personnel Is-sues. An increasing number of firmshired staff through the Internet–somewithout even realizing they were doingit. Apparently, most large newspaperswill, at no additional charge, place theirclassified ads on their website that inturn are picked up by Internet headhunt-ers. Other firms hire through their localparalegal programs. Some were happyfinding that they are getting mature in-dividuals who are embarking on a sec-ond or third career. Others, however,felt they were hiring overqualifiedpeople from these programs.

Many believed it was best to avoidadvertising altogether because this re-

quired too much time in interviewing.There was a great deal of discus-

sion over the necessity of legal trainingfor new hires. The consensus was thatas you increase the number of staff, theless importance that legal training willhave.

There was also great emphasisplaced on increasing the staff’s contactwith the client. The staff enjoys it andthe client will often get a greater senseof personal attention. But in such a set-ting it is critical that FYI memos from thestaff to the attorney are routinely done.

Creative ways of compensatingstaff were discussed. Massages, mani-cures and gift certificates are fairly popu-lar. Other benefits included paying foroccasional weekend trips or leasing a car.There seemed to be an even split betweenthose who pay their staff on an hourlybasis as opposed to a salary. It wasthought that the best way to resolve thisissue is to ask the staff member whichthey prefer.

To no one’s surprise, issues withstaff discord regularly came up. The bestadvice I heard was that if it cannot beworked out, then someone has to go.The problem cannot be allowed to lin-ger. But a serious attempt needs to bemade to prevent it from coming to this.A very useful suggestion was to havethe two staff members go out to lunch,at the attorney’s expense, and tell themnot to return until they have the matterresolved.

Everyone I spoke to thought theUnProgram was very useful and worth-while. Many, if not most, had been toprior UnPrograms. There was a certainaspect of “misery loves company.” I, likeall the attendees, knew I had problemsto address. Yet time and again I drewsome comfort from realizing that manyof my colleagues were experiencing muchmore serious problems than I was. I wasby no means alone in feeling this. Butby attending, and continuing to attend,the UnProgram, let’s hope that the col-lective wisdom and encouragement sowillingly dispersed at the UnProgram willmake life easier for those who need it.

To obtain a NAELA UnProgrambrochure, contact Jenifer Moweryat (520) 881-4005, ext. 114 or [email protected], you may alsodownload it from the NAELAwebsite at www.naela.org.

What I learned at theNAELA UnProgram(continued from page 9)


Name/Telephone Ext. E Mail Address

Address Changes ........................... Jenifer Mowery, ext. 114 ......... [email protected]

Advertising ........................................ Jihane Rohrbacker, ext. 115 ...... [email protected]

Billing Questions .............................. Janet Tite, ext. 119 .................... [email protected]

Board Action ................................... Laury Gelardi, ext. 113 ............ [email protected]

Brochures .......................................... Terri Anthony, ext. 107 ............... [email protected]

Certification ....................................... Lori Barbee, ext. 120 ................. [email protected]

Chapters ............................................ Janice Phillips, ext. 121 ............. [email protected]

Committee Placement ....................... Janice Phillips, ext. 121 ............. [email protected]

Executive Director .......................... Laury Gelardi, ext. 113 ............ [email protected]

Experience Registry .......................... Jenifer Mowery, ext. 114 ............ [email protected]

Fellows ............................................... Debbie Barnett. ext. 117 ............ [email protected]

Finances ............................................ Debbie Barnett, ext. 117 ............ [email protected]

Mailing Questions .......................... Terri Anthony, ext. 107 ............ [email protected]

Media Relations .............................. Jihane Rohrbacker, ext. 115 ... [email protected]

Membership ....................................... Jenifer Mowery, ext. 114 ............ [email protected]

Membership Directory ...................... Jenifer Mowery, ext. 114 ............ [email protected]

NAELA News/Quarterly Articles ...... Jihane Rohrbacker, ext. 115 ...... [email protected]

Public Policy ................................... Laury Gelardi, ext. 113 ............ [email protected]

Special Interest Groups ................ Jane Coppola, ext. 109 ........... [email protected]

State Coordinators ............................ Jenifer Mowery, ext. 114 ............ [email protected]

Symposium/Institute Information

CLE ........................................... Lori Barbee, ext. 120 ................. [email protected]

Exhibitors ................................ Pam Carlson, ext. 108 ............... [email protected]

Publicity ................................... Jihane Rohrbacker, ext. 115 ...... [email protected]

Registration ............................. Jenifer Mowery, ext. 114 ............ [email protected]

Speakers .................................. Janice Phillips, ext. 121 ............. [email protected]

Tapes/Manuals ................................ Terri Anthony, ext. 107 ............ [email protected]

Website ............................................. Debbie Barnett. ext. 117 ........... [email protected]

Listserv ................................... Celeste Wilson, ext. 105 ......... [email protected]

There are often questions as to who is who on the NAELA staff.As you know, we have a staff of 15 people working for us, andeveryone is responsible for very specific things. Our offices arelocated at 1604 North Country Club Road, Tucson, Arizona 85716and are open from 8:00 a.m. to 5:00 p.m., Mountain Time, Mondaythrough Friday, except holidays. The telephone number is (520)881-4005. The fax number is (520) 325-7925. We also have voicemail and therefore, you may leave messages 24 hours a day,seven days a week! To help you in your endeavor to get throughthe maze, we are listing who you should contact for what things:

Who’s Who on theNAELA Staff?


Advocacy/LitigationSpecial InterestGroup Cornerby Lauchlin T. Waldoch,CELA, SIG Chair

“I just want to see the yellow butter-flies.” This was his excuse to go out,undoubtedly the reason he wanderedaway from the home in which he had livedfor the past thirty-four years. In northFlorida during September and October, abrief infusion of beautiful yellow butter-flies populates our red clay roads andpaths. They perch lightly on puddles thatgather in crevices worn deep by trucktires over dried mud. With a puff of anybreeze they are up and floating, just abovethe ground, at about knee level. Auto-mobile grills carry dots of yellow beforethey are gone.

Tom just wanted to walk down theroad and into the woods, so he did. Hehad done this for years upon years uponyears. There was no particular reason heshould not do so now, except that he was94 years old and frail. “Feeble” is whatthe family said. Unable to care for him-self. They tried to get him to move, tolive with assistance. He resisted evenwhen counseled by his long time friendand lawyer.

Tom got lost and was not found fortwo days, dead of an apparent heart at-tack. All sorts of thoughts surface whenwe hear this scenario. Would some levelof advocacy have protected him? Couldsomeone have been a better advocate forhis care? Should his caregiver have al-lowed him to go outside unsupervised,even if only for a brief moment? Was thisneglect? Should Tom have been forcedto live in a more closely constrained envi-ronment? If he had wandered from a fa-cility or group home, who or what mightbe liable? Is this an isolated incident orsomething that warrants a communal re-sponse? What if Tom had been 67 in-stead of 94?

These are not easy questions to an-swer, yet they are presented every day.What level of advocacy should we en-


Other elder lawpractitioners tell me

that they do not needto be involved in theAd/Lit SIG because

they do not litigate. Idisagree. Each of uswho has chosen elderlaw is an advocate ata myriad of levels. Itbehooves us to learn

as much abouteffective advocacy aspossible, whether or

not we handleformally contested

situations in thecourtroom.

courage, when should we intervene, andhow vehement should we be? Should itbe case by case in the courtroom, com-munity based, or focused on legislationand rule making? Ours is the “Advo-cacy and Litigation” SIG, “Ad/Lit” tothose in the know. Yet I am not sure wehave adequately addressed both com-ponents. Litigation is a known quan-tity. Advocacy isnot. We know ad-vocacy as a noun,specifically, “theact of pleading foror supporting.”1

We know “advo-cate” also as a syn-onym for “lawyer,”or “counselor,” as aperson who de-fends, vindicates,or espouses acause by argu-ment; one who isfriendly, an up-holder, a defender.2

Each of us can fitsome aspect of ourlives and practicesinto one or more ofthese dictionarydefinitions. Buthow often do wedifferentiate advo-cacy from what elsewe do on a dailybasis for our cli-ents?

Other elder law practitioners tell methat they do not need to be involved inthe Ad/Lit SIG because they do not liti-gate. I disagree. Each of us who haschosen elder law is an advocate at amyriad of levels. It behooves us to learnas much about effective advocacy aspossible, whether or not we handle for-mally contested situations in the court-room. These thoughts make me start tothink about what we can do to broadenthe reach of the SIG, to make it moremeaningful for all NAELA members.

Expect to see more about effectiveadvocacy in different contexts. Overthe last year we have focused on han-

dling litigation matters, essentially ad-dressing the mechanics of advocacy.Last November we learned about how apersonal injury lawyer prepares for acase, often investing years and manythousands of dollars before achievinganything and before we are asked toassist with a special needs trust. At the2001 NAELA Symposium, an experi-enced mediator emphasized how advo-cates and a mediator can best preparefor the process. Earlier this month, atthe NAELA Institute, a professional fi-duciary explained how an expert witness

prepares to offertestimony at trialand how to avoidbeing named a de-fendant in such liti-gation.

We anticipateadding topics anddiscussions aboutadvocacy in gen-eral. What areas areavailable to the el-der law practitionerwho wants to advo-cate? What areasare being ne-glected? What areother NAELA mem-bers doing and howeffective do theyfeel? NAELA has avery effective Pub-lic Policy Commit-tee. How can wedisseminate suchinformation abouteffective advocacyin our states andcommunities?

What makes an effective advocatein non-courtroom situations? Are theretechniques we can share that enhanceperformance before city or county com-missions, agencies, legislatures or evenin small groups such as churches andprofessional associations? I began writ-ing these remarks before the horrendousevents of September 11, 2001. Effectiveadvocacy on multiple fronts has onlybecome more essential now. Tough de-cisions must be made with respect torestrictions on civil liberties and withfewer and fewer dollars to fund socialservice programs.

Certainly we will not abandon the

litigation component of our SIG. The“Case Notes” section of the newslettercan raise everyone’s consciousnessabout contested issues around thecountry. Victoria Hueler , a new mem-ber of our steering committee, recentlycontributed an excellent article on nurs-ing home legislation passed last ses-sion by the Florida legislature. BillBrisk, CELA , an active steering com-mittee member, continued his traditionof outstanding scholarly work with anarticle as well. The newsletter also hasa column “Current Conundrum” inwhich a member explores a difficult is-sue or challenging situation and asksfor input from other practitioners.

NAELA’s Board of Directors andTechnology Committee has targeted theNAELA website for refurbishing, focus-ing on content and dissemination of in-formation. The Ad/Lit SIG will partici-pate in that process, updating ourwebsite as we go along. We are explor-ing a question and answer forum onthe website which will provide a con-crete mechanism for members to havespecific issues addressed and shouldenable us to identify topics of interestfor further discussion.

By striving to improve our advo-cacy skills, we will also succeed in otherendeavors for our clients. An advo-cate of health alert devices might havepersuaded Tom to wear one. Advo-cacy for additional home care mighthave enhanced his life as well as pro-tected it.

An advocate with protective ser-vices might have recognized neglectearlier. Perhaps Tom’s family couldhave become advocates if only some-one had trained them. Perhaps the longtime friend and lawyer could have ad-vocated more strongly for family,church, or social involvement at somelevel. Who knows whether these thingscould have been done? Who wouldforego trying? Let’s make advocacy apriority, not an afterthought.

Endnotes

1. Webster’s New Twentieth CenturyDictionary, Unabridged, 1970.

2. Id.

Advocacy/LitigationSpecial Interest GroupCorner(continued from page 12)


NAELA Public RelationsCommittee ColumnAdvance Directives in New YorkState—Will End-of-Life TreatmentDecision be Honored?by Howard S. Krooks, CELAN A E L A P U B L I C R E L A T I O N S C O M M I T T E E C H A I R

Imagine a person stricken with ad-vance emphysema who, while she wasstill healthy enough to do so, had theforesight to sign certain advance direc-tives, whereby she appointed herdaughters as her health care agents (i.e.Health Care Proxy) and memorialized herwishes to decline life-sustaining treat-ment (i.e. Living Will). Now imagine thatsame person several months later, nolonger able to express her wishes andbeing kept alive only by a ventilator andfeeding tubes, but unable to have herpreviously expressed wishes honoredby the hospital facing the prospect ofprolonged litigation in Court. It’s notsupposed to happen that way, particu-larly where the patient has taken the timeto memorialize her wishes in advancedirectives. Or is it?

In New YorkState, under thecommon law, an in-dividual has theright to declinemedical treatment,even life-sustainingtreatment, absent ofoverriding state in-terest. Where an in-dividual is not com-petent or able to communicate his or herwishes, the Court may intervene anddirect the termination or artificial lifesupport in accordance with the patient’swishes as established by clear and con-vincing evidence. According to NewYork State’s highest Court, the ideal casefor establishing a patient’s wishes byclear and convincing evidence is wherethe patient has expressed his or herwishes in a writing such as a Living Will.See Matter of O’Connor, 72 N.Y.2d 517)Ct of App., 1988).

However, in a recent case, when thehospital refused to honor the patient’s

Living Will, her family had no choicebut to turn to the Court for relief. Unfor-tunately, no matter how sympathetic theattorneys and the Court may have beento the plight of the patient and her fam-ily, who had to suffer through the painand indignity of each passing day alongwith their mother in watching her starevacantly into space unresponsive to thevisits of her loved ones, the prospect ofgoing to Court meant unavoidable de-lays and several weeks of waiting andwatching. This was the very indignity(i.e. the lingering on machines) that thepatient sought to avoid when she signedher Living Will. Nonetheless, it was leftto the Court to decide the patient’s fate.

It would be easy to blame the hos-pital for failing to honor the patient’s

Living Will by re-fusing to removeher from the venti-lator which artifi-cially prolonged herlife. However, in thiscase, it appears thatthe treating physi-cian (i.e. the hospi-tal) honestly be-lieved that by keep-ing the patient on a

ventilator and thus preserving her life,he was doing what was best for his pa-tient. In addition, after reviewing thepatient’s Living Will, the hospital’s le-gal counsel concluded that the languageof the patients Living Will was ambigu-ous in terms of memorializing her wishesunder these circumstances. In otherwords, it was for the Court to decide. Inparticular, the Court would have to de-cide whether the patient’s Living Will,along with the testimony of friends andfamily, established clearly and convinc-ingly that the patient’s wishes underthese circumstances would be to have

the hospital to withdraw the life sus-taining treatment.

From a strictly legal perspective, itis important to note that the patient’sfamily was seeking to enforce thepatient’s own wishes (as supported byclear and convincing evidence) and notthe wishes or instructions of her daugh-ters/health care agents. Thus, this wouldnot be a case of substituted judgmentby a third party for which there is pres-ently only limited authority under NewYork State law with respect to end-of-life decisions (e.g., do no resuscitateorders).

It would appear, at first glance, thatthe patient’s Living Will, along with thetestimony of her friends and familywould be more than sufficient to estab-lish clearly and convincingly that herwishes under these circumstanceswould be to have the hospital to with-draw the life sustaining treatment. How-ever, the hospital’s legal counsel sug-gested that the Living Will was ambigu-ous in that it required, as a condition forthe removal of life-sustaining treatment,that the patient have “no medical or rea-sonable probability of recovery,” as de-termined by the patient’s treating phy-sician and a consulting physician. Un-fortunately, in her Living Will, the pa-tient did not define what she meant by“no medial or reasonable probability ofrecovery.” While her treating physicianstated to the family that it was unlikelythat their mother would ever be able tobreathe on her own (i.e., without theassistance of a ventilator), he refusedto state that she had “no medical or rea-sonable probability of recovery.” Fur-thermore, the hospital’s legal counselsuggested that the patient may havemeant recovery to include life on a ven-tilator (even though the generally ac-cepted purpose of a Living Will is toavoid being kept alive only by ma-chines).

One lesson to take from this casemay be that while the ideal case for es-tablishing a patient’s wishes by clearand convincing evidence is where thepatient has expressed his or her wishesin writing such as a Living Will, the writ-ing had better be as specific as possiblein order to give it the greatest likelihoodof being either honored by the hospitalor enforced by the Court. For example,if the individual has a particular illnesswhich generally results in a specific typeof life-sustaining treatment (e.g., an

It’s not supposed to happenthat way, particularly where

the patient has taken thetime to memorialize her

wishes in advancedirectives. Or is it?



emphysema patient whose life may beartificially prolonged by the use of aventilator) and the individual wishes torefuse such life-sustaining treatment,the Living Will should refer to the par-ticular illness and the specific treatmentto be withheld or withdrawn. Of course,the danger in being that specific is thatyou might fail to include other illnesses/treatments which were not contemplatedat the time of the execution of the ad-vance directive. If you are healthy whenyou sign the advance directive, youcannot possibly be expected to antici-pate which illness(es) might befall you.It’s a careful balancing act for the attor-ney in the art of drafting the advancedirective.

For better or for worse, in this case,the patient and her family never hadtheir day in Court because, while wait-ing for the next Court date, the patient’scondition improved dramatically to thepoint where she became extremely alertand able to communicate with only theimpediment of the ventilator tube. Thepatient’s family attributes the improve-ment in their mother’s ability to commu-nicate to a change in her medicationswhich, if true, is extremely upsetting tothe family, particularly since prior tomaking the difficult decision to com-mence the Court proceeding, the familywas advised by their mother’s treatingphysician that her condition would notimprove with a change in her medica-tions. Ironically, even when her abilityto communicate improved, the patientherself was not sure whether she wishedto remain on the ventilator, which illus-trates the difficulty that patients, hospi-tals, attorneys and the Court face whendealing with issues of end-of-life treat-ment decisions.

If you have a human-interest storyon how elder law has improvedyour clients’ life, and are willing topublish that in the NAELA News,please contact Jihane Rohrbackerat the NAELA office at (520) 881-4005, ext. 115 or by e-mail at:[email protected].

Guardianship SIG CornerCommunity Medicaid Cases and SpousalImpoverishment

By Steve Perlis, CELA

Frequently, a married couple struggles with the questions of when toapply for Medicaid. Is it too soon if the disabled spouse is still at home, butsuffering from a decline in the ability to handle activities of daily living?Illinois Department on Aging “Community Care” (Meals on Wheels, bath-ing, cleaning, at home nursing care, etc.), usually is limited to a few hours aday. What else is there?

Recently, a worker with one of the local Area Agencies on Aging pointedout to a client that the nursing home application could be filled out eventhough the disabled spouse was still at home. To the client, this appeared tomean doing the Medicaid paperwork ahead of time, but little else.

When this office was asked for advice, we learned that the healthyspouse and the disabled spouse combined have income well above the$2,175.00 a month income allowance (but assets below the $87,000.00 assetallowance). This, in a nursinghome setting, clearly would meaneither a support payment, or a co-payment, or both, with a signifi-cant reduction in income to thehealthy spouse as a result. Whatwasn’t clear at the time was howthis would affect community Med-icaid payments to the disabledspouse.

We then contacted Policywithin the Illinois Department ofPublic Aid, and were informed thatthe Federal Medicaid statute con-tains the same spousal impover-ishment protections for commu-nity Medicaid recipients where incomes (or assets) exceed the allowablemaximum. In other words, seeking court protection would be a possibleremedy to protect excess spousal assets or income in an appropriate case.

As a consequence of this, we prepared a petition in chancery to obtainan increase in the spousal income allowance for the healthy spouse. In thelaw, this is based on the disabled spouse being an “institutionalized spouse”within the meaning of the Federal Medicaid statute. Specific legal citationsfor this include 42 U.S.C.A. section 1396r-5(h) and section1396a(a)(10)A)(II)(VI).

The practical meaning of this goes beyond this one client’s situation.Many married couples may be facing impoverishment even before nursinghome admission. Until Medicare starts paying for prescription drugs, this isone major health item that Medicaid might provide the key to obtainingpayment. This might also be of importance to the client who is underinsuredaltogether. Furthermore, this gets the individual into the system at a timewhen perhaps the pressure and trauma involved is less than if the applica-tion process is delayed.

Time will tell whether community Medicaid cases will grow in terms ofimportance for elder law Medicaid practitioners. For now, suffice to say thatit is an area to consider in any counseling session involving the same orsimilar facts as those presented above.

NAELA Public RelationsCommittee Column(continued from page 14)

Frequently, a marriedcouple struggles withthe questions of whento apply for Medicaid.

Is it too soon if thedisabled spouse is stillat home, but sufferingfrom a decline in the

ability to handleactivities of daily living?


Golden Lantern – ¼ PageExpires February 2002


gain some alternative lifeexperiences, I then spentsome six years in politicaland legal research beforecompleting the necessarypractical training as a law-yer and joining the firm in1983.

The firm’s businessconcentrates substantiallyon family law, personal in-

juries, small business and elder law.

NN: How did you hear aboutNAELA?

BH: Quite independently of my subse-quent discovery of NAELA, I had beenasked to present a paper, some fouryears ago, on new “Aged Care” reformsthat had been introduced in Australia.In the process of doing research on thesubject, I accidentally fell across theNAELA site while surfing the web.

At about the same time, I had beenbrought into a nursing home dispute toresolve an argument between the opera-tor of the nursing home and the family ofa resident.

The concatentation of these eventsled me into the colorful world of elder law.

NN: Why have you joinedNAELA?

BH: I have joined NAELA as it is an or-ganization that encapsulates a dream Ihave for Australian lawyers involved inproviding services for older people.

While our population of some 19 mil-lion people is substantially less thanNAELA’s constituency, there are lawyersout there in the Australian communitybeavering away, in many cases, alone andwithout the support and the informationgenerosity that epitomises NAELA.

Joining NAELA is therefore not onlya desire to learn more about the universalissues confronting older people but alsoas a away of discovering and sharing thetechniques, history and “caring” ethosthat so many lawyers have lost in theirpractice.

I intend to use my membership ofNAELA as a springboard forthe creation of a similar organi-zation initially, in Queensland,and subsequently, Australiaand then, perhaps, as an affili-ated organization of NAELA.

NN: Is elder law arecognized area ofpractice in Autralia?

BH: Elder law is not a recog-nized area of practice in Aus-tralia. Indeed, many lawyershere would not have heard ofthe term. There are lawyerswho specialize in elements ofelder law practice, such as es-tate planning, which has beena traditional area of expertisefor many years. As yet, apartfrom my practice, I am notaware of any other lawyer hereat the moment who has estab-lished it as a discrete area ofpractice.

NN: What special legalneeds do you see forelders in Australia?

BH: I see the special legalneeds of the elders in my coun-try as:

The National Academyof Elder Law Attorneys re-cently voted to open its mem-bership to attorneys li-censed or authorized topractice law in countriesother than the United States.In order to give the NAELAmembership an understand-ing of how elder law isemerging internationally,we will be featuring our newest inter-national members in the NAELA News.In this issue, BRIAN HERD, of Carne& Herd in Brisbane, Queensland, Aus-tralia, discusses the growth of elderlaw in Australia and his affiliation withNAELA.

NAELA News (NN): T ell us a littleabout yourself and your lawpractice:

BH: Our law practice, Carne & Herd, islocated in Brisbane, the capi-tal city of Queensland whichis a State in Australia and(as Helen Cohn-Needhamand Baird Brown wouldknow) also affectionatelycalled, the “Sunshine State.”

The firm consists ofsome 15 people and is bestdescribed as a small/mediumsized legal practice. We wereinitially established in about1977 as essentially a legal aid“shop front” law firm as wewere both philosophicallyaligned to, and geographi-cally adjoining, the LegalAid Office. It was a bit likethe synergy between thedoctor and the drug store.Curiously, we have been re-sponsible for the trainingand development of manylawyers who have gone onto a life in politics with oneof our former members be-coming Premier (or Gover-nor) of our State. I some-times wonder if we shouldnot call our clients, constitu-ents.

I completed my law de-gree in 1975 and, wanting to

Getting to Know NAELA’sNewest International Members


Brian Herd


l Estate planning.l Retirement planning.l Mediating family disputes.l Aged care options.l Substitute decision making such

as durable powers of attorney andguardianship.

l Social security entitlements.l Tax planning.l Family agreements.l Nursing home litigation.l Nursing home and retirement

village contracts.l Living Wills.

I also see the need for lawyers to beable to expertly deal with the subject ofcapacity with clients, not to mention thespecial needs for communication betweenthe elderly and their lawyers.

NN: Are there differences haveyou have noticed in particularbetween laws in Australia andthose in the United States,relating to the elderly?

BH: There are differences between ourrespective countries in relation to lawsconcerning the elderly.

In the United States, a predominanceof elder law practice appears to be socialsecurity driven in the continuing guerillawar with Medicaid and Medicare and thelegitimate quest of impoverishment ofyour customers.

Australia, on the other hand, has arelatively generous aged care securitysystem in which the Government, sub-stantially, subsidizes most peoples’ agedcare through both a relatively generousaged pension scheme and related healthcare entitlements together with a rela-tively sophisticated aged care system.This may change in the near future asthe independent retiree who is not de-pendent on Government assistancecomes through the system into theirThird Age.

Apart from that, I think our laws arerelatively similar when it comes to otherissues impacting on the elderly distin-guished only, however, by the use of dif-ferent terminology, which is only to beexpected.

NN: What are your main areas of

Getting to KnowNAELA’s NewestInternational Members(continued from page 16)

interest in elder law?

BH: My main areas of interest or ex-pertise in elder law are:

l Estate planning and disputes.l International estates.l Mediating family disputes.l Nursing home and retirement

village contracts and litigation.l Guardianship.l Elder Abuse.l Enduring Powers of Attorney and

Living Wills.l Financial Planning.

I also maintain strong ties with el-der organizations such as a Legal Out-reach Service for Older People and acommittee made up of allied health pro-fessionals dealing with Elder Abuse.Serving the Elderly requires us not tolive in a legal cocoon or to read about itin Law Journals but to become socialentrepreneurs and ‘joiners’ of organi-zations.

NN: Does your jurisdiction havedurable powers of attorney (oran analogue)? Living wills?

BH: Our jurisdiction has Enduring Pow-ers of Attorney which are equivalent toyour Durable Powers of Attorney. Wealso have what are known as AdvanceHealth Directives that are the equiva-lent to your Living Wills.

NN: Will elder law in yourjurisdiction include anyplanning for the expenses oflong term care? How is longterm care financed in Australia?

BH: Long term care is substantially fi-nanced in Australia by the Governmenti.e., the taxpayers. Places in nursinghomes and hostels are “allocated” bythe Government to aged care providers.This means that the Government speci-fies each year the number of places innursing homes it will subsidize or fi-nance. Operators then bid for thoseplaces and, if they are successful, arethen required to construct the neces-sary facilities to accommodate the placesfor which they are allocated.

Most people with assets (exclud-ing their family home) of less than$25,000 per year are entitled to a totalsubsidy from the government for theirplace in the nursing home.

In other cases, older people usu-

ally have to liquidate their assets in or-der to pay an entry fee into an aged carefacility and to help in the ongoing costs.

There is no tradition of planningfor the expenses of long term care asthere is an expectation that the govern-ment will meet most of these expenses.As a result Australians are poor finan-cial savers. Long term care insurance isunknown in this country although it isoften discussed.

NN: What can you tell us aboutelder law in Australia thatwould benefit NAELA membersin the U.S.?

BH: From what I know of U.S. elder lawI think the following unique and helpfulapproaches from our jurisdiction maybe of interest to elder law attorneys:l The use of the multi-disciplinary

approach to assisting olderpeople. I have, for example,engaged an employee who is aformer nurse and now qualifiedlawyer.

l I have also established formalrelationships with financialplanners and accountants with aview to providing a holisticservice to clients.

l I am also marketing my services toother lawyers who are surpris-ingly one of the increasingsources of referral work.

I do see a continuing relationshipbetween our country and NAELA be-cause the issues of aging are a univer-sal and international language. Our lawsand jurisdiction are very similar andthere is a mutual advantage in continu-ing relationships between our respec-tive countries. Sharing of informationand developments would not only bematters of mutual interest but may as-sist in the constant evolution of our re-spective practices.

NN: What would you like NAELAto offer for elder law attorneysin Australia?

BH: I would like NAELA to offer its ad-vanced information dissemination andcommunication network to other lawyersin Australia who are perhaps starting tocontemplate a career in elder law.

This will assist in both raising theawareness of these lawyers of the dis-tinctive nature of elder law and the way



Healthcare 2002Half Page Back Cover

Expires Sept 2001


that an elder law practice can be devel-oped.

NN: Would your firm handle, orassist in referring, contacts fromNAELA members in the U.S.?How would you like the U.S.attorneys to initiate thecontact—e-mail, fax, call?

BH: We would be happy to assist anymember of NAELA in any referral orcontact required here and our preferredform of communication is email.

NN: Are law schools teachingelder law in Australia?

BH: I am not aware of any law schoolteaching elder law at this stage althoughI am aware that several universities arecontemplating or investigating it.

NN: How can U.S. members ofNAELA be most helpful to you?

BH: US members of NAELA can be mosthelpful to me in any referrals I may have

concerning US law. While these areoften few and far between, they do ariseon occasions. Having contacts withNAELA members would be reassuringin this regard.

NN: Alexis de T oqueville, aFrench man who traveled in theUnited States early in its history ,observed that we are a countryof joiners. We join groups andundertake “causes.” Would youexpect, in your country , thatlawyers who primarily representthe elderly would join togetherto form an organization likeNAELA?

BH: deToqueville’s view would be re-flected in Australia. I think that lawyersin Australia who represent the elderlywould be prepared to join together toform an organization like NAELA al-though, given our respective popula-tion, our lawyer pool, and the tyrannyof distance and geography, it may notbe as sophisticated as NAELA. I an-ticipate it will start as a loose allianceand need to take advantage of technol-ogy in communication.

NN: Have your bar associations

formed subgroups that focus onelder law issues? What arethese groups doing?

BH: The Queensland Law Society hasformed a committee called the “AgedCare and Accommodation Committee”which is the closest thing we have to anelder law group. It focuses on aged careissues and is an eclectic combination ofboth lawyers acting for aged care pro-viders or institutions and those actingfor the aged themselves. While its fo-cus is substantially on aged care livingoptions, it does have the potential tobroaden its scope into elder law issues.

There is a separate Law SocietyCommittee dealing with Succession andEstates as well.

NN: On a more personal note,what are some of your hobbiesand interests?

BH: Some of my hobbies and interestsinclude:l Politics.l History.l Rock and roll. (I still listen to Bon

Jovi)l Singing in the shower and to my

secretary on the dictaphone. (Iwas once in a rock and roll band)

l The incessant challenge of raisingand watching my children grow (ahealthy substitute for physicalexercise).

Getting to KnowNAELA’s NewestInternational Members(continued from page 17)


The Alzheimer’s floor ofa new assisted living andlong term care complex, re-cently erected near the down-town business district inColorado Springs, CO, is anattractive alternative to manyolder but similar facilities inour city.

A cozy den is availableto the patients. They can visit with theirlawyers there among, of course, othercallers if the patients are lucky and theirfamily and friends have not abandonedthem. The attractive room provides pri-vacy and comfortable chairs. It’s home-like and inviting.

Four dining areas compliment thefloor, creating alternatives for patientdining, or just eating, or being fed wherea patient has reached that stage of need.

“I always eat in this place,” my cli-ent, Jaspa, spoke as she showed mearound her new home, pointing to oneof the dining areas. Why, I wondered,where there are four choices, fourchanges of scenery? Without my ask-ing, perhaps anticipating my question,Jaspa continued, “because it’scheaper?”

“Cheaper?” I questioned.“It doesn’t cost as much to eat

here,” she explained. “The other placesare more expensive.”

“Better food?” I inquired, but shedidn’t know. Responsive, a resident inPod One, where the patients’ dementiais in the least debilitating stage, Jaspawas still quite demented.

“I’m going to evict these people,”my client suddenly blurted, eyeingnearby similarly situated patients.“They’re not paying their rent.”

“You own this place?”“Of course,” she calmly replied.

“This is my house.”“I love it,” I answered, thinking of

the tranquility this home provided aswell as the healthful meals and care thatJaspa couldn’t provide for herself. Fol-

lowing her husband’s death,Jaspa lived alone in herBroadmoor mansion, hernear-lifetime home, one herhusband designed and built.It is seated in the aspen, pineand fur-treed foothills eastof Cheyenne Mountain, abreathtaking Rocky.

“So do I,” she spokesoftly, a delayed response to my lovingher new home. In this new, protectivesetting, Jaspa has maintained her es-teem. She enjoys her new space, thisnew dwelling where she now lives. Andshe’s created a satisfying role - the ma-triarch in her new home, a dwelling hous-ing her invited guests in an admixturethat includes, in her mind, freeloadingtenants.

The tour of the “A” unit was over.It’s time now to discuss other issuesbefore the next phase of her illness ar-rives, one that will bring with it disori-entation, and a loss of connection withwhere she is. With its arrival—whethershe is returned to her mansion nestedin her city’s rising foothills with full-timehome care provided for her there, or inher new home with its multiple restau-rants, house guests, obdurate tenantsand staff, she will scream, “This is notmy home; take me home.” She will haveno recognition of familiar faces until,perhaps, the discalming visages speakand the voices register in that secretplace deep in her increasingly mushybrain, and she may remember the vocalsounds and her disquiet will become mo-mentarily calmed.

“Jaspa, you’ve got five million dol-lars saved. It’s in stock, mutual fundsand bonds. Interested in saving someestate taxes?”

There was a long pause. “I do?”“Yes. Five million, plus your house

and other things.”“I had no idea.” This response, of

course, was the result of her failingmemory. I’d been bringing up the sub-

ject for years. I’d explained discountedgifting using a limited family partnership,charitable remainder trusts with her chil-dren as income beneficiaries, even a pri-vate foundation, among other choices.

“No,” she’d always strongly affirm,providing a multitude of reasons. Shenever forgot the maxim that I repeatedeach time the estate reduction conver-sation would begin, that her comfort wasmore important than tax savings. “Idon’t want to run out [of money],” washer consistent response, her polite eu-phemism for “don’t mess with mymoney.” And she used it again. Divid-ing $5,000,000 by 5,000 as an averagemonthly cost of care to demonstrate that“running out” of dough would be un-likely, without calculating interest, herlargess would last for 1,000 months, 83years. I’d used that before in our talks.It didn’t work then and it won’t now.Jaspa is aware of her feelings, and per-sonal comfort for her means hoardingthe funds.

I’ll know when Jaspa’s soul has lefther vanquished mind and body leavingonly a desiderate shell. I’ll get no moreresistance. My questions won’t be com-prehended. Taxes? What are they?Money? Her responses will be desul-tory and unintelligible. I won’t be rec-ognized. Jaspa’s hollow mind and bodywill wander about in an unintelligiblemaze as she tries to cope in her largehome filled with others. At that time,there will be a freshman tenant showingoff her new home, its multiple feedingstations, dining areas in this large man-sion, to her lawyer who has come by tosee her. And similar questions will beasked of this lonely soul with equiva-lent responses. And following a shorthorologe, this lawyer, too, will witnessher client’s haunting, vacuous stare be-cause this new patient’s mind will alsohouse the same malevolent spirit thatnow possesses Jaspa’s consciousness,a consuming evil, insouciant presencethat cannot be dybuked.

There will be no meaningful com-munication between these strangers.This new patient’s lawyer will confrontthe hopeless, enigmatic desperation onefeels holding the wrinkled hands of hisor her Jaspa, another victim of an elidedmind. And this lawyer, too, will affirm tothis person’s family, eager to hear if somegood news might be spoken, thedesiderate reality; “I met with Jaspa,”this lawyer also will say, “but Jaspawasn’t there ... Jaspa has gone.”

P E R I P A T E T I C E S S A Y I S T

I Looked for Jaspa —But Jaspa Was Goneby Clifton B. Kruse, Jr., Esq.© Clifton B. Kruse, Jr.

Clifton B. Kruse,

20 NAELA News • November/December 200120 NAELA News • July 2001

SpecialThanks toOur InstituteExhibitorsAspen Publishers

Coventry Financial

ElderLawAnswers.com

Krause Financial Services

Probate Software

West Group

NAELAs In CyberspaceIf you currently have an e-mail address and would like to haveit listed in the next issue of the NAELA News, please e-mailCeleste Wilson at [email protected].

Name City, State Address

Thomas D. Begley, Jr., CELA Moorestown, NJ [email protected]

Eileen R. Fitzgerald, Esq. Downers Grove, IL [email protected]

G. Mark Shalloway, CELA West Palm Beach, FL [email protected]

Dennis Christensen, Esq. Mount Pleasant, SC [email protected]



2001 AdvancedElder Law InstituteTracks to the Future of Elder LawNovember 1-4, 2001The Hyatt Regency at Union StationSt. Louis, Missouri

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NAELA Continuing Legal Education Cassettes:Check YOUR SELECTIONS

1. o General Session: Planning for Qualified Retirement Plan Benefits and IRA=s ........................................................................... (1 Tape ) ..... $ 9.002. o The Impact of the Economic Growth and Tax Relief Reconciliation Act of 2001 on Retirement Arrangements .............................. (1 Tape ) ..... $ 9.00

3. o Medicare - Building Your Practice: Case and Client Development ............................................................................................ (1 Tape ) ..... $ 9.004. o Applying the Genius of Michael Gerber, E-Myth and Elder Law ............................................................................................... (1 Tape ) ..... $ 9.005. o The ADA and Long-Term Care ................................................................................................................................................. (1 Tape ) ..... $ 9.00

6. o Health Care Decision Making SIG - EPEC8: Common Physical Symptoms .......................................................................... (1 Tape ) ..... $ 9.007. o Tax SIG/Trust SIG - EGTRRA: The Transfer Tax Confusion Act of 2001 .................................................................................. (1 Tape ) ..... $ 9.008. o General Session: Financial Abuse - How it May Impact Your Clients and Your Practice .......................................................... (1 Tape ) ..... $ 9.00

9. o When Medicaid May or May Not Be An Option: Long-Term Care for the Wealthier Client ......................................................... (1 Tape ) ..... $ 9.0010. o Nursing Home Litigation ........................................................................................................................................................... (1 Tape ) ..... $ 9.0011. o Putting Teeth Into Elder Law ..................................................................................................................................................... (1 Tape ) ..... $ 9.00

12. o Pain Management at the End of Life .......................................................................................................................................... (1 Tape ) ..... $ 9.0013. o Analysis of the Tax Aspects of Various Types of Transfers of the Home .................................................................................... (1 Tape ) ..... $ 9.0014. o Tort Reform and Nursing Homes .............................................................................................................................................. (1 Tape ) ..... $ 9.00

15. o Overview of Nursing Home Liability Issues ............................................................................................................................. (1 Tape ) ..... $ 9.0016. o Legal Technologies and How They Affect Law Practices ........................................................................................................... (1 Tape ) ..... $ 9.0017. o Advocacy/Litigation SIG - Fiduciary Administration: How to be an Expert Witness .................................................................. (1 Tape ) ..... $ 9.00

18. o Guardianship/Capacity SIG - Guardianship Roundtables .......................................................................................................... (1 Tape ) ..... $ 9.0019. o General Session: Sophisticated Elder Law Planning Techniques ............................................................................................... (1 Tape ) ..... $ 9.0020. o General Session: Review of the Estate Tax Changes ............................................................................................................... (1 Tape ) ..... $ 9.00

SPECIAL — SELECT ANY 10 TAPES — RECEIVE ONE TAPE COMPLIMENTARYTHE COMPLETE ELDER LAW TAPE SERIES, 20-TAPES— $169.00


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The 13th Annual NAELA SYMPOSIUM 2001 l Crossing BordersApril 18 -21, 2001 / The Hyatt Regency / V ancouver , B.C., Canada

NAELA Continuing Legal Education Cassettes: Check YOUR SELECTIONS

Pre-Conference: The Basics of U.S. Elder Law1. o ADVANCED DIRECTIVES AND SURROGATE DECISION-MAKING ........................................................................................................ (1 Tape ) ..... $ 9.002. o WILLS, LIVING TRUSTS AND BASIC TAXATION ...................................................................................................................................... (1 Tape ) ..... $ 9.003. o HOUSING OPTIONS AND NURSING HOME ISSUES ............................................................................................................................... (1 Tape ) ..... $ 9.004. o AN INTRODUCTION TO MEDICARE COVERAGE AND APPEALS ........................................................................................................ (1 Tape ) ..... $ 9.005. o MEDICAID ........................................................................................................................................................................................................ (1 Tape ) ..... $ 9.006. o SOCIAL SECURITY ........................................................................................................................................................................................ (1 Tape ) ..... $ 9.007. o (JOINT SESSION) OFFICE MANAGEMENT AND ETHICS FOR THE ELDER LAW ATTORNEY ...................................................... (1 Tape ) ..... $ 9.00

Pre Conference: The Basics of Canadian Elder Law8. o BRITISH COLUMBIA NEW ADVIT GUARDIANSHIP LEGISLATION: AN UPDATE ................................................................................. (1 Tape ) ..... $ 9.009. o HOUSING OPTIONS AND LONG TERM CARE ADVOCACY .................................................................................................................. (1 Tape ) ..... $ 9.0010. o ADVISING THE CANADIAN SNOWBIRD ..................................................................................................................................................... (1 Tape ) ..... $ 9.0011. o HEALTH ADVOCACY ...................................................................................................................................................................................... (1 Tape ) ..... $ 9.0012. o FAMILY LAW .................................................................................................................................................................................................... (1 Tape ) ..... $ 9.0013. o SENIORS AND THE LAW - THE NEED FOR ADVOCACY ....................................................................................................................... (1 Tape ) ..... $ 9.00

Symposium 2001 Sessions:o TRUST SIG ..................................................................................................................................................................................................... (1 Tape ) ..... $ 9.00o TAX SIG: “ESTATE TAX LEGISLATION” & “2001 PROPOSED REQUIRED REGULATIONS FOR MINIMUM DISTRIBUTIONS” .. (1 Tape ) ..... $ 9.00

16. o GENERAL SESSION: OVERVIEW OF HEALTH CARE SYSTEMS AND SERVICES FOR THE AGING ............................................ (1 Tape ) ..... $ 9.0017. o GENERAL SESSION: LEGISLATIVE UPDATE ............................................................................................................................................ (1 Tape ) ..... $ 9.0018. o MDP UPDATE: ALTERNATIVE PRACTICE MODELS FOR ELDER LAW ATTORNEYS ....................................................................... (1 Tape ) ..... $ 9.0019. o BASICS OF d (4) A TRUSTS ........................................................................................................................................................................ (1 Tape ) ..... $ 9.0020. o ELDER LAW: THE FUTURE OF THE PROFESSION ............................................................................................................................... (1 Tape ) ..... $ 9.0021. o THE PROPER USE OF ANNUITIES IN LONG TERM CARE PLANNING ............................................................................................. (1 Tape ) ..... $ 9.0022. o REPRESENTATION AGREEMENTS: AN ALTERNATIVE TO DURABLE POWERS OF ATTORNEY ................................................ (1 Tape ) ..... $ 9.0023. o MEDICARE CURRENT TOPICS .................................................................................................................................................................. (1 Tape ) ..... $ 9.0024. o PRACTICE DEVELOPMENT/PRACTICE MANAGEMENT SIG: AHOW TO BE FINANCIALLY SUCCESSFUL@ ............................ (1 Tape ) ..... $ 9.0025. o GUARDIANSHIP/CAPACITY SIG: ACROSS BORDER GUARDIANSHIPS@ .......................................................................................... (1 Tape ) ..... $ 9.0026. o GENERAL SESSION: NAELA FELLOWS FORUM: BRIGHT IDEAS! ...................................................................................................... (1 Tape ) ..... $ 9.0027. o RETIREMENT PLANNING FOR LAW FIRMS I .......................................................................................................................................... (1 Tape ) ..... $ 9.0028. o RETIREMENT PLANNING FOR LAW FIRMS II ......................................................................................................................................... (1 Tape ) ..... $ 9.0029. o INDEPENDENT LIFE CARE AGREEMENTS .............................................................................................................................................. (1 Tape ) ..... $ 9.0030. o PUBLIC AND PRIVATE ADVOCACY FOR SENIORS/THE PUBLIC TRUSTEE ..................................................................................... (1 Tape ) ..... $ 9.0031. o PLANNING FOR THE NON-CITIZEN SPOUSE/QUALIFIED DOMESTIC TRUSTS .............................................................................. (1 Tape ) ..... $ 9.0032. o DESIGNING AND USING SYSTEMS ........................................................................................................................................................... (1 Tape ) ..... $ 9.0033. o ACROSS BORDER ESTATE PLANNING .................................................................................................................................................... (1 Tape ) ..... $ 9.0034. o INTERNATIONAL LONG TERM CARE OPTIONS: THE GOOD, THE BAD, AND THE UGLY ............................................................. (1 Tape ) ..... $ 9.0035. o SHOULD I JOIN A LARGE LAW FIRM? ....................................................................................................................................................... (1 Tape ) ..... $ 9.0036. o PLANNING FOR THE SMALL BUSINESS OR FAMILY FARM ................................................................................................................ (1 Tape ) ..... $ 9.0037. o ELDER LAW DEVELOPMENTS IN ENGLAND AND OTHER FOREIGN JURISDICTIONS................................................................... (1 Tape ) ..... $ 9.0038. o MEDICAID PLANNING BY GUARDIANS - PANEL PRESENTATION ....................................................................................................... (1 Tape ) ..... $ 9.0039. o HEALTHCARE DECISION MAKING SIG ...................................................................................................................................................... (1 Tape ) ..... $ 9.0040. o ADVOCACY/LITIGATION SIG: AMEDIATION FROM AN ELDER LAW PERSPECTIVE@ .................................................................... (1 Tape ) ..... $ 9.0041. o ELDER LAW ETHICS IN THE REAL WORLD .............................................................................................................................................. (1 Tape ) ..... $ 9.0042. o MEDICAID WAIVER FOR HOME AND COMMUNITY-BASED SERVICES FOR THE ELDERLY ......................................................... (1 Tape ) ..... $ 9.0043. o EVALUATING AND SERVING CLIENTS WITH DEMENTIA ....................................................................................................................... (1 Tape ) ..... $ 9.0044. o SPOUSAL REFUSAL ..................................................................................................................................................................................... (1 Tape ) ..... $ 9.0045. o THE PUBLIC HEALTH CRISIS OF UNDER TREATED PAIN ..................................................................................................................... (1 Tape ) ..... $ 9.0046. o 2001 PROPOSED REGULATIONS REQUIRED MINIMUM DISTRIBUTIONS FROM RETIREMENT PLANS ................................... (1 Tape ) ..... $ 9.0047. o GENERAL SESSION - DYING WELL: RECLAIMING THE END OF LIFE ............................................................................................... (1 Tape ) ..... $ 9.0048. o GENERAL SESSION - CASE LAW UPDATE AND CLOSING ................................................................................................................... (1 Tape ) ..... $ 9.00

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Often times, NAELA members arefaced with the daunting task of respond-ing to negative press coverage aboutthem, their clients, law in general or el-der law issues. Below are some tips thatmembers might consider before takingaction when negative publicity strikes.

l Respond Within 24 Hours—Ifyou take longer than 24 hours torespond, it makes you look“guilty” and the negativepublicity is more likely to expand.If possible, call the reporter(s) andtalk to them in person, or fax aresponse.

l Show You Are Solving theProblem—Make it clear you aretaking steps to improve or rectifythe situation, if it directly isrelated to you.

l Be Accessible to the Media—Make phone calls from the mediayour top priority. You may appearlike you have something to hide ifthe media can’t reach you.

l Be Honest—Honesty is alwaysthe best policy. If you lie, you willlikely be caught and your crisiswill worsen. Everything you sayto a reporter can be quoted, sodon’t start speaking until youknow what you’re talking aboutand what you want to say. Youdo not have to tell everything youknow, but whatever you do saymust be the truth.

l Be Aware of Your Body Lan-guage—If you are being inter-viewed in person, remember thatyour face and your body reflectyour emotions. Be relaxed, butlean a bit forward. Maintain directeye contact with the reporter andkeep the expression on your facepleasant no matter how provoca-tive the questions are. Remember

that in most stories, the reporter’squestions are never used.

l Keep Your Cool—If you lose yourtemper, you will see it on thenews. Reporters are neither yourbest friend nor your worstenemy—thy are just trying to getinformation to the public.

l Show People that you care—Firstimpressions count and they arealmost impossible to change. Somake sure you show that you careand are taking whatever positiveaction is possible. Remember tobe human and show yourcompassion.

l Don’t comment on rumors orunsubstantiated charges. Simplysay “Our view is…”

l If you absolutely do not want totalk—You can say something like“We are studying the situationvery seriously and will provideyou with more information assoon as possible.” Ask for whattheir deadline is and make sureyou meet it, with somethingworthwhile.

How to Handle HostileReportersl Don’t let the reporter put words

in your mouth. If you don’t likethe way a question is stated,don’t repeat the question in yourresponse–even if you deny it.Example: If a reporter asks if yourservices are overpriced, don’t say“I wouldn’t use the term over-priced.” You just did! Instead,say: “I believe our servicesprovide high value for the price.”

l Don’t answer hypotheticalquestions. If you absolutely haveto, make sure you label youranswer as hypothetical by sayingsomething like, “that is a very

interesting hypothetical question.Though I’ve never been in such asituation, hypothetically, I wouldsay that the best way to handlethat situation would be to…”

l Don’t become defensive. Eventhough an interviewer may be rudeor hostile, you must never sink tohis or her level. You can never winby getting into an argument, anddefensiveness implies guilt.

l Be wary of statistics. Don’tassume that the interviewer isusing the correct statistics. If youhave doubts, ask about the sourceof the statistics and express yourinterest in seeing a copy of them.

l If a reporter fires a number ofquestions at you without lettingyou answer any of them com-pletely, politely say that youwould like to answer them in anorderly fashion. Then choosewhichever question you feel mostcomfortable with and start withthat one.

l If they keep trying to get you toanswer a question, you don’t wantto—Say you’re “not in a positionto answer that” and explain why.

l If they ask unfair questions—Ifyou don’t agree with how aquestion is being asked, say so.

l If they repeat questions—Repeatyour answers.

l If they ask questions paraphras-ing your comments in a way thatmisrepresents your position—Say “No” to the questions andrestate your position.

l Never say “no comment.” Itimplies guilt or cover up.

Responding in WritingIf you are not directly involved with

the story, but it is a negative story aboutguardianship in general, it may be a goodidea to draft a thoughtful and well-writ-ten letter to the editor. Make sure theletter is not combative and does not con-vey the idea that you are on the defen-sive. Simply present the facts and try tostay objective. Contact the newspaperto find out what format they would liketo receive the letter in; what the wordcount should be; and to whom it shouldbe addressed.

What to do When a CrisisHits—Responding toNegative PublicityBy Jihane K. RohrbackerN A E L A C O M M U N I C A T I O N S D I R E C T O R

24 NAELA News ● November/December 2001

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Documents

NAELA News November-December 2001 - Fay Blixfayblix.com/pdflinks/Powley award speech.pdf · memory of Wes and Helen Powley, grandparents of NAELA Member Tim Takacs. Both Wes and Helen