National Academy of Elder Law Attorneys • Volume 26 • Issue 4 • Aug/Sept 2014
Client
Maintenance
and Harmony
Making a
Difference
in Clients’
Lives
Robert C. Anderson, CELA, CAP
NAELA’s
2014 Annual
Conference
Coverage
NAELA’s Leadership
Update on
Jimmo v. Sebelius Position on
the GAO Report
Join Us for the first
Non-Clients
as Derivative Clients NAELA Summit
Early Bird Registration Ends December 19, 2014.
Register online www.NAELA.org/2015Summit
Newport Beach, California
January 29-31, 2015
ADVANCED ELDER LAW REVIEW
January 27–28, 2015
Register today for the NAELA Summit:
A new approach to advanced learning.
Hands-on learning under
the guidance of top experts
in Elder and Special Needs
Law.
Pre-conference audio recordings
from Summit leaders to jump-start
your learning.
Engage | Learn | Advance
FEATURES
6
8
Featured Member
Robert C. Anderson, CELA, CAP
Helping Others
By Josh Ard, Esq., PhD
9
Practice Success Section
Client Maintenance and Harmony
Making a Difference in Clients’ Lives
By Robert C. Anderson, CELA, CAP
9
12
NAELA’s 2014 Annual Conference
By Bridget O’Brien Swartz, Esq.
14
Annual Conference Seminar Reviews
By Daphne Moritz, Esq. and Prof. Bobbi Flowers
20
Opposing the Expansion of Lawyer Duty
to Non-Clients as Derivative Clients
By Kathryn Cook DeAngelo, CELA, CAP
25
CAPsules
By Morris Klein, CELA, CAP
27
Public Policy
By Bradley J. Frigon, CELA, CAP
28
NAELA Well Represented at the Third World
Congress on Adult Guardianship
By A. Frank Johns, CELA, CAP
29
30
October Is Special Needs Law Month
Join Us for the First NAELA Summit
By Jennifer VanderVeen, CELA and
Gregory French, CELA, CAP
Medicare Standards for Skilled Nursing Care
NAELA’s Leadership Position on the GAO Report
Volume 26 • Issue 4
August/September 2014
NAELA News is published by the
National Academy of Elder Law Attorneys, Inc.
1577 Spring Hill Road, Suite 310
Vienna, VA 22182
703-942-5711 Fax: 703-563-9504
www.NAELA.org
Editor in Chief
Ruth E. Ratzlaff, Esq.
Kingsburg, Calif.
Executive Editor
Daphne Moritz, Esq.
Woodstock, Vt.
Editors
Amy Acheson, Esq.
Pittsburgh, Pa.
Josh Ard, Esq.
Williamston, Mich.
Prof. Bobbi K. Flowers
Gulfport, Fla.
Brian F. Mahoney, Esq.
Canton, Mass.
Leonard E. Mondschein, CELA, CAP
Miami, Fla.
Kristi Vetri, Esq.
Belleville, Ill.
14
DEPARTMENTS
44
President’s Message
Keeping Your Skills Updated Is Part of Your
Successful Practice
By Bradley J. Frigon, CELA, CAP
5
Executive Director’s Message
Peers Working Together Make a Good Team
By Peter G. Wacht, CAE
19
Calendar of Events
Jan G. Zager, Esq.
Mercer Island, Wash.
CAPsules Editor
Stuart D. Zimring, CAP
N. Hollywood, Calif.
Practice Success Editor
Patricia A. Elrod-Hill, CELA
Norcross, Ga.
Copyright © 2014 National Academy of Elder
Law Attorneys, Inc. Any use of the contents of this
publication without the express written permission of
the publisher is strictly prohibited.
31
NAELA News has two complementary purposes: to communicate
the activities, goals, and mission of its publisher, the National
Academy of Elder Law Attorneys; and simultaneously, to seek
out and publish information and diverse views related to Elder
Law and Special Needs Law.
The views expressed in the articles are those of the authors
and do not necessarily reflect the policies of the publisher.
Statements of fact are solely the responsibility of the author.
Articles appearing in NAELA News may not be
regarded as legal advice. The nature of Elder and Special
Needs Law practice makes it imperative that local
law and practice be consulted before advising clients.
Statements of fact and opinion are the responsibility
of the author and do not imply an opinion or
endorsement on the part of the officers or directors of
NAELA unless otherwise specifically stated as such.
3
PRESIDENT’S
PRESIDENT’S MESSAGE
MESSAGE
Keeping Your Skills Updated Is Part of Your Successful Practice
NAELA Can Help
The cornerstone of NAELA has
been to provide education to ensure
members are recognized as leaders in
their field, enhancing the quality of life
for the elderly and people with special
needs.
At the Office, at Home, Online, and In Person
No matter what your schedule permits, NAELA offers
you ways to keep up to date with:
• NAELA News,
• NAELA Journal,
• eBulletin,
• Sections that focus on specific content areas,
• State Chapters,
• Live events,
• Webinars, and
• Recorded sessions that can be downloaded from the
NAELA Store.
To help members find these valuable resources available
online, NAELA launched the Knowledge Base, an online
search tool that allows members to find articles, presentations, and other educational materials from the past several
years.
NAELA Continues to Invest For Members —
NAELA’s New Educational Plan
Last year, NAELA announced a new educational plan
that strengthens the services offered to members, connects
the resources mentioned above, builds programming specific to members’ needs, and offers additional opportunities
for members to learn that include interactive hands-on
learning and online development classes. Here is the information on the new educational plan and where NAELA is
investing its resources.
NAELA Summit — In Person
The NAELA Summit will be held January 29-31, 2015,
in Newport Beach, Calif. This is your next opportunity to
attend a NAELA meeting
in person. The Summit will
explore complex topics and
is for anyone with a solid
understanding of the fundamentals of Elder and Special
4
Bradley J. Frigon, CELA, CAP
Needs Law topics. Designed to tackle the most challenging
Elder and Special Needs Law issues, the Summit format
is collaborative both socially as well as instructionally.
Breakout sessions are designed to support communal learning through various active-learning techniques. Summit
teachers will be available for networking and questions
throughout the event. (See page 30 for more information
about this event.)
NAELA Essentials — Online
Coming in 2015, the NAELA Essentials Online will be
an eight-module course concentrating on the core practice
areas of Elder and Special Needs Law. It will be supported
with a follow-up face-to-face workshop called NAELA Essentials Practicum. The Practicum will ask attendees to put
into practice those core areas of law featured in the online
component. Watch for more information on this series
of classes, which is designed for anyone who is looking to
expand their legal practice further in Elder and/or Special
Needs Law.
Learning Opportunities That Won’t Cost
You A Dime
Starting in 2015, NAELA members will have unlimited
access to hundreds of archived titles and program materials. NAELA will continue to offer the free Lunch & Learn
Series that begun in 2014, which offer a unique opportunity to engage with NAELA writers and ask questions
about their published articles. In partnership with Stetson
University College of Law, NAELA will continue to offer
the free quarterly webinar series, “Practicing Proficiently:
The Small/Solo Office Series.” If you missed any of the earlier webinars in this series, you can download the recorded
sessions from the NAELA Store.
These changes and additions have come as a result
of more than four years of research and review of how
NAELA is valuable to members and how best to continue
delivering that value. With more than 25 years of serving
this important field of law, NAELA remains the premier
provider of education, information, and news about Elder
and Special Needs Law. NAELA is committed to improving the quality of legal services and will continue providing
resources and education to its members. Plan to come to
California in January for the Summit. I will look forward
to seeing you there. n
,
EXECUTIVE DIRECTOR’S MESSAGE
Peers Working Together Make a Good Team
T
his summer I enjoyed my
favorite sporting event: the
World Cup. Being a soccer
player and coach, the attraction is obvious. Not only do we get to
see high-quality soccer played by the
world’s very best players, but we get a
sense of how this game can be more than just a sport for
billions of people around the world, how every game can
have a direct impact on a country and its supporters.
For me the most intriguing aspect of the World Cup is
watching how the style a national soccer team plays can
reflect that country’s culture. Consider the United States.
Not the strongest team in the field, and starting in the
so-called Group of Death, the Americans demonstrated the
can-do attitude regularly attributed to our nation. Though
deficient technically and creatively when compared to some
other national teams, they made up that deficit through
hard work and a commitment to one another.
Host Brazil, picked by many to win the World Cup,
faced a different challenge. Praised for their individual
creativity and flair for decades, the Brazilians found that
though so highly praised in their culture – individual skill
and technique – it was not enough to get them to the
championship game. Then we have Germany. Each player
was of course technically proficient and could offer glimpses of individual brilliance at the appropriate time, but more
important each player was able to mesh their individual
artistry and strengths to the benefit of the team. And that
was the difference in this World Cup, as the best team won.
That emphasis on team made me think of NAELA and
how its members often work together to the benefit of the
entire profession. Perhaps the best example of this is the
Academy’s emphasis on peer-to-peer learning.
This type of education can occur in a formal setting.
For example, at this year’s Annual Conference, many of
the sessions incorporated peer-to-peer interaction and
discussion, allowing all who participated to benefit, to say
nothing of the conversations that took place in the exhibit
area and the hallways after sessions, as those conversations
continued. And this learning style will be a major focus for
NAELA’s new educational event, the Summit, which will
take place for the first time in January 2015. This merger
of the UnProgram and the Institute will require attendees
to engage with their peers and the faculty as discussion and
Peter G. Wacht, CAE
dialogue on advanced topics in Elder and Special Needs
Law quickly moves to actionable ways to implement what’s
been learned to the benefit of the member’s practice.
And, of course, there are the informal opportunities
for this type of education. The monthly Lunch & Learn
sessions, which allow members to speak with NAELA
News and Journal authors in greater depth regarding recent
articles, clearly stands out. But did you know that NAELA
manages 100 listservs? This includes the national listserv as
well as 56 Chapter and Section listservs. On the national
listserv alone, on a daily basis members engage with one
another from across the country to answer questions and
offer assistance on specific legal and client issues. In fact, in
just the last few weeks members have discussed the interaction between brokerage accounts and special needs trusts,
step-up in basis on joint tenants with rights of survivorship
property, and the impact of certain SSI/SSDI regulations
on specific client circumstances, to name just a few.
This peer-to-peer learning and sharing not only allows
NAELA members to help themselves, but it also helps the
larger Elder and Special Needs Law community expand its
base of knowledge and the expertise of its members, to the
benefit of their practices and their clients. It’s a real display
of teamwork, much as we saw from Germany as it won its
fourth World Cup in July. n
www.NAELA.org/2015Summit
5
FEATURED MEMBER
Robert C. Anderson, CELA, CAP
Helping Others
By Josh Ard, Esq., PhD
From Eagle Scout to Elder Law Attorney.
An Active Leader of NAELA and State Bars
Since joining NAELA in 1993, Robert Anderson has
done so much for NAELA:
• Served four years on NAELA’s Board of Directors
• Is a member of NAELA’s Council of Advanced Practitioners (CAP)
• Served as Chair of NAELA’s Tax Section
• Is Vice Chair of the Practice Success Section
• Has been a member of the NAELA News Editorial
Board
• Is a member of NAELA’s committee that is rewriting
the Aspirational Standards as well as the Unauthorized
Practice of Law Task Force
Bob also has made his mark in Michigan by starting the
Michigan NAELA Chapter, helping to lead the effort to
bring POLST (Physicians Order for Life-Sustaining Treatment) into Michigan, and helping to lead the successful
federal class action to force the State to comply with the
federal Medicaid rules on pre-eligibility medical expenses.
Bob serves on the Michigan Bar’s Unauthorized Practice of Law Committee where he has been instrumental in
fighting scams against seniors and veterans. More recently,
Bob’s law firm won four tax appeals that have changed
Michigan real property law to recognize Lion Cub Deeds
— an unequal joint tenancy which prevents the application
of Medicaid spend down and reduces property tax.
Josh Ard, Williamston, Mich., interviewed Bob for this article.
He is a member of the NAELA News Editorial Board.
6
Bob stands in front of one of his six office locations in
Michigan’s Upper Peninsula. Pictured here in the summer,
winters are among the snowiest east of the Rockies.
A Writer and a Speaker
In addition to his volunteer contributions,
Bob has made his mark on Elder Law by writing groundbreaking articles on tax, ethics, real
property, assisted living, premarital planning,
living wills, and Medicaid, which have been
published nationally and by state bars. In
2007, Bob won NAELA’s coveted John Regan
Writing Award for his must-read NAELA Journal article “Estate Planning with Nonqualified Annuities:
Navigating the Labyrinth.”1 In Bob’s words, “I wrote the
article on annuities to give fellow Elder Law attorneys the
knowledge base to protect their clients from unscrupulous
sales of these products.”
Bob is equally well known as a speaker, not only at
NAELA and CAP conferences, but also for the Michigan
and Wisconsin State Bars.
The Personal Side of Bob
Bob is a native Detroiter and now is a proud Yooper.
There are two types of people in Michigan — Yoopers live in the Upper Peninsula (or UP) and the rest are
“downstate” Trolls because they live below the Mackinac
Bridge, the beautiful suspension bridge over the Straits of
Mackinac connecting the two peninsulas. As a teenager,
Bob spent many years in scouting, earning his Eagle at 16.
The Scout’s oath of “helping other people at all times” was
permanently ingrained in his character.
Helping other people is what led Bob to work on housing programs for the poor in HUD’s Office of General
Counsel in Washington, D.C., after earning his JD at
Michigan State University. While in D.C., Bob received his
LLM in Taxation from Georgetown University. He then
returned to Michigan to start his own tax and estate planning practice in Michigan’s Upper Peninsula and Northern
Wisconsin.
That’s when his father was diagnosed with Parkinson’s
disease, a life-changing event that made Bob change his
practice from tax law to Elder Law. “My father’s 12-year
Parkinson’s journey turned our family upside down. I saw
first hand that tax planning is a minor concern when compared to the greater need to advocate for quality of care,
1 Robert C. Anderson, Estate Planning with Nonqualified Annuities:
Navigating the Labyrinth, NAELA Jrnl., 119, Vol. 3, No. 2.
Bob is an avid cyclist.
independence, safety, and public benefits when dementia
strikes a family,” said Bob.
Bob also has personal experience in special needs as a
close family member has a learning disability.
Active in His Community
Helping other people in his community led Bob to work
with a community group to establish a homeless shelter
in Marquette, Mich. Bob has served on the local County
Commission on Aging, he is active in Kiwanis International, and has served on the Board of the UP Land Conservancy. Bob even ran for Congress in northern Michigan.
Bob is most proud of leading an uphill battle for eight
years to raise $1 million
to build three soccer fields and a sports
complex pavilion in his
hometown on what was
once a sawdust pile.
Practice Challenges
and Exceptional
Service
Practice in the UP
has many challenges.
The peninsula contains
29 percent of the area
of Michigan, but only
3 percent of the popula- Bob with his wife Valentyna.
tion. The population
is smaller now than it was a century ago. There are many
small towns and cities; all are far apart. Bob has offices
in six UP towns; one is a three-hour drive during the
7
few months when the
weather is good. Parts of
the UP are the snowiest
in the country east of
the Rockies, with yearly
records of up to 390
inches. Bob relies more
on emails, conference
calls, and other technologies than the average
lawyer.
Bob and daughter Victoria.
There are many
upsides to practice in
the UP. Compared to more populated areas, the pace of life
is slower, people are more laid back, and it is easier to feel
appreciated.
Bob’s passion in his practice is exceptional client service
and creating life-long client relationships. For 10 years, Bob’s
firm employed a geriatric nurse to help clients in long-term
care. Now Bob’s firm uses “friendly visitors,” who check up
on clients who are home-bound or in facilities.
On the Noque trail. Bob with his stepdaughter Valeriya and her
husband.
In order to create life-long client relationships, his firm
offers a client maintenance program. Bob describes this
program in his article, “Client Maintenance and Harmony,” on page 9. Bob’s firm also offers clients advanced strategies to prevent disharmony and heal family conflicts, also
described in his article. Another unique part of his firm’s
service is a video titled “Training Your Next In Charge,”
(available on DVD) that he filmed in his office. This video’s
goal is to help a client prepare their trustee and/or Power of
Attorney for their elder care journey. n
Fun Facts About Bob Anderson
• Bob is an Eagle Scout, avid mountain biker, kay-
aker, and cross-country skier.
• He has a passion for soccer, having coached his
son Phillip and daughter Victoria for 16 years.
• Bob spent his junior year at the University of Paris
and in high school he was an exchange student in
Bangkok, Thailand. He has a passion for travel.
• He is most proud of his family — his wife Valentyna
(formerly of the Ukraine), his children Phillip and
Victoria, and his stepchildren Dariya, Danil, and
Valeriya.
• He is a staunch Green Bay Packer backer.
Bob at the Marquette harbor lighthouse.
8
PRACTICE SUCCESS SECTION
Client Maintenance and Harmony
Making a Difference in Clients’ Lives
By Robert C. Anderson, CELA, CAP
Developing a client maintenance program and harmony strategies will
make a difference for your clients and their families, thereby
distinguishing yourself as a relational attorney.
T
he client relationship in an estate plan should
not end when the client’s estate planning documents are signed. In my 30 years of practice,
I have learned that estate plans fail because of
future unknown factors: changes in law, changes in health,
changes in assets, changes in family circumstances, lack of
training for the appointed next-in-charge, and disharmony
among the client’s beneficiaries when the parental glue is
gone.
In my article, I want to share two practice ideas — client maintenance programs and harmony measures that are
good for clients and your practice — that will distinguish
you from the traditional estate planner. The traditional
approach to estate planning is transactional because the client relationship ends when the ink is dried. The relational
approach engages the client in a continuing relationship in
order to be there for your client in the future to make sure
the estate plan that was so carefully developed will actually
work.
Client Maintenance Programs
A key strategy to creating a lasting client relationship is
a client maintenance program (CMP). A CMP provides
annual estate plan updates, newsletters, and other services
for an annual fee. With proper staff training and consistent
client education, setting up a CMP can be a snap.
Robert C. Anderson, CELA, CAP, is Vice Chair of the Practice
Success Section and is a former NAELA Board member.
My motivation in starting a CMP grew out of a disappointment I experienced after I received a call from another
attorney asking for my former estate planning client’s file.
Ten years earlier, I had done a good job setting up an estate
plan for this aging client; but her children, who did not
know me when they needed an attorney to do Medicaid
qualification after the client entered a nursing home, selected another attorney to do the Medicaid work.
This should not have surprised me. I had done nothing
to stay in touch with the client in the intervening 10 years
and never reached out to her children to show we cared
about their mother. I realized I had treated the client and
her children as a transaction. I vowed to find out ways to
create lasting client relationships.
9
The answer came from an excellent presentation on
longevity planning at a NAELA conference by Rick Law,
Esq., and William Hammond, Esq. I also received advice
on how to set up a CMP from NAELA attorneys Vincent
Russo, CELA, CAP, and Michael Gilfix, Esq., CAP.
Typical Services Offered in a CMP
Typical CMP services include:
• Unlimited free telephone advice and/or an annual inoffice appointment;
• Automatic document updates caused by law changes;
• Periodic newsletters on law changes, scam alerts, and tax
tips;
• Client appreciation luncheon to explain law changes and
scam alerts (ask clients to invite their next-in-charge and
a friend);
• Annual assessments of health status, asset changes, and
trust funding; and
Keys to Success Video Series
Designed to help the small and solo practitioner.
NAELA’s Practice Success Section, in
conjunction with Stetson University College
of Law, presents “Keys to Success,” a series
of presentations designed to help the small
and solo practitioner. This series is offered
free of charge to NAELA members. Go to
www.NAELA.org/Store, search on “Keys for
Success.”
National Academy of Elder Law Attorneys
www.NAELA.org
10
• Faxing advance directives to a hospital or medical office
at client’s request.
We recently added a DVD called “Training the Next
in Charge” to our CMP service. This has become a client
favorite. The DVD was filmed in our office with two married couples and their children in which I provide training
on how to act as an agent under Power of Attorney and
as a Trustee, and how to advocate for Medicare and other
public benefits.
CMPs Offer Many Advantages
A CMP is a win-win for clients and law firms. The
clients have increased peace of mind in knowing that their
estate plans can be protected against the ravages of changes
in law, health, asset funding, and family circumstances. The
law firms that offer CMPs will enjoy increased revenues
from three sources: 1) direct enrollment fees from clients;
2) future business from the enrolled client for new work,
such as public benefit planning and estate administration;
and 3) spin-off referrals from happy clients and impressed
financial, and other, advisers to the clients.
Staying in touch annually with clients prevents them
from being attracted to other law firms.
Offering Harmony Enhancing Strategies
The most important law review article that has made
a difference in my practice is “Family Harmony: An All
Too Frequent Casualty of the Estate Planning Process,”1
by Timothy P. O’Sullivan. In his article, Mr. O’Sullivan
estimates the incidence of disharmony and conflict among
beneficiaries after the client has either died or become incapacitated ranges between 20 percent to 40 percent.
I will never forget how depressed I felt from the first
family fight I experienced professionally after a client died.
The estate plan I carefully crafted had fallen apart. I felt like
a failure. I vowed to implement Mr. O’Sullivan’s ideas and
some of my own into a set of harmony strategies. These
strategies have given our clients greater peace of mind,
knowing that when the parental glue is gone, due to death
or incapacity, their wish for harmony among their children
has a greater chance of being realized.
1 Timothy P. O’Sullivan, Family Harmony: An All Too Frequent
Casualty of the Estate Planning Process, Elder’s Advisor, Marquette
University Law School, May 2007.
Our key harmony strategies — which we call “BombProofing Your Estate Plan” — include:
• Family Harmony Agreement. Each child or beneficiary is asked to sign an agreement to honor the client’s
wishes on selection of fiduciaries, testamentary gifts, and
end-of-life.
• Pathway-To-Peace Paragraph. In our trust agreements,
a mandatory clear-the-air settlement conference is held
within 21 days of death. An experienced attorney runs
the conference, and the client’s financial and accounting
advisors assist.
• Anti-Bicker Forms from “Who Gets Grandma’s Yellow Pie Plate.”2 We provide a practice guide, a schedule
2 Stum, Marlene. Who Gets Grandma’s Yellow Pie Plate?, Minnesota
Extension Service: U of Minn. 1999.
of special gifts, beneficiary’s wish list, auction list, and a
lottery election.
• Careful Selection of Financial Fiduciary. We spend a
great deal of time counseling clients on whom they may
want to select as the successor trustee or executor.
• Mediation and “No Contest” Clauses. Our trust agreements include non-court mediation requirements in the
event of a dispute and “no-contest” clauses. Even though
“no-contest” clauses are hard to enforce, such a clause
can discourage fights.
In conclusion, adding a client maintenance program
and harmony strategies will help distinguish your practice
from traditional transactional estate planners. Don’t roll the
dice, hope for the best, and plan for the worst. Doing well
by doing good. Being there for your clients is what NAELA
is all about. n
The NAELA Team
Leading the Way in Special Needs and Elder Law SM
MEMBERSHIP
Trish Fratarcangelo
Member Services Manager
[email protected]
703-942-5711 #222
• Membership management
• Membership benefits
• Membership inquiries
• Member directory
• Staff liaison to NAELA Chapters
MEETINGS AND EDUCATION
Dannie Larkin
Meetings and Education
Coordinator
[email protected]
703-942-5711 #229
• Continuing Legal Education
• Exhibits and sponsorships
Miles Truax
Project Manager
[email protected]
703-942-5711 #234
• Online learning program
NAELA staff members can help you with any questions you might
have about your NAELA membership.
Pam Yanni
Sr. Manager, Educational
Programs
[email protected]
703-942-5711 #231
• NAELA’s educational
programming targets
• Site selection and contract
negotiations
Kirsten Brown Simpson
Sr. Director, Planning and
Programs
[email protected]
703-942-5711 #224
• Strategic direction to membership and meetings
• NAELA messaging and campaigns
ADMINISTRATIVE
Susan Buckshaw
Program and Support Coordinator
[email protected]
703-942-5711 #221
• Administrative support to
Executive Director, Executive
Committee and Board of
Directors
• Group Meeting and Event
Planning (non-educational
programming)
• General Membership and
Operations Support
• Staff Liaison to CAP Programs
Committee
Ann Watkins
Director, Operations
[email protected]
703-942-5711 #226
• Managing day-to-day operations
• Accounts payable/receivable
COMMUNICATIONS
Abegail (Abby) Matienzo
Communications Associate
[email protected]
703-942-5711 #230
• Media requests
• NAELA’s speaker/writer bureau
• eBulletin production
David Goldfarb
Public Policy Manager
[email protected]
703-942-5711 #232
• NAELA Public Policy issues
Nancy M. Sween
Sr. Director, Communications
and Publications
[email protected]
703-942-5711 #225
• NAELA News and NAELA
Journal content, planning, and
advertising
• Strategic direction to public
relations and public policy
EXECUTIVE
Peter (Pete) G. Wacht, CAE
Executive Director
[email protected]
703-942-5711 #227
NAELA’s chief executive officer
responsible for strategic planning
and implementing policies and
procedures.
11
2014 ANNUAL CONFERENCE COVERAGE
NAELA’s 2014
Annual Conference
By Bridget O’Brien Swartz, Esq.
F
ollowing a long, cold winter
in most parts of the country, more than 200 NAELA
members were happy to be
greeted by sunny, blue skies (albeit
with temperatures that just reached
100 degrees) in Scottsdale, Arizona
— the Valley of the Sun — where
NAELA’s 2014 Annual Conference
was held May 15-17, 2014. The venue
was inviting at the JW Marriott Camelback Inn, which was conducive to
interactive learning, networking, and
collegiality throughout the program.
Basics Workshop
As always, NAELA members
travelled from near and far to attend
the conference, which was preceded
by NAELA’s Basics Workshop on
May 14. Attendees were afforded the
opportunity to learn the basics of
Elder and Special Needs Law from
seasoned practitioners. They left the
Workshop with the building blocks
necessary to develop their Elder and
Special Needs Law practice. Topics
in the Basics Workshop included the
Practice of Elder Law as Distinct from
Bridget O’Brien Swartz, Esq., was the
2014 Annual Conference Chair.
12
Estate Planning; POAs, Guardianship,
and Ethical Issues when Representing Clients with Diminished Capacity; Needs-Based Long-Term Care
Financing Solutions; Special Needs: A
Lifetime Challenge; Practice Development and more — all cornerstones
of the Elder and Special Needs Law
practice.
Advanced Elder Law Review
The Advanced Elder Law Review
dovetailed the Basics Workshop on
May 13-14, helping those practitioners who want to position themselves
as an expert in their respective states
by learning from the best. Sessions
included Ethical Issues for Elder Law
Attorneys; Interaction Between VA
and Medicaid; Legal Capacity Counseling; Fiduciary Representation, and
more. This pre-conference event set
the foundation for those pursuing
their Certified Elder Law Attorney
(CELA) designation.
Annual Conference
Both the Basics Workshop and the
Advanced Elder Law Review served
as terrific starting points for the Annual Conference. This year’s Annual
Conference blended the old with
President Howard S. Krooks addresses
conference attendees.
the new by retaining what have been
long-time favorites of NAELA members, such as the Clifton Kruse Ethics
Lecture and Case Law Update, and
the Welcome Reception/Networking
Event on the patios of the resort with
a backdrop of the sun setting on the
desert mountains!
As for the new, NAELA’s 2014
Annual Conference afforded attendees
a preview of NAELA’s new programming with a full day devoted to the
future of Elder and Special Needs Law
and preparing for the future of these
niche practices by focusing not only
on the “what” but the “how.” Attendees also were afforded an “Outsider’s
Perspective” with the Ignite Session.
Annual Conference Chair Bridget O’Brien
Swartz extends a warm welcome to
everyone.
This session brought to attendees the
perspective of select exhibitors from
their unique standpoint on what the
future will bring to those of us who
practice in Elder and Special Needs
Law.
The Conference kicked off with the
Clifton Kruse Ethics Lecture, “Ethics of Ancillary Practices: How Much
Is Too Much?” Margaret G. Lodise,
Esq., of Sacks, Glazier, Franklin &
Lodise LLP, befittingly served as keynote speaker. The topic was timely as
Elder and Special Needs Law practitioners contemplate the future of their
Congratulations to this year’s Fellows.
From left, Rajiv Nagaich, Bradley J.
Frigon, and Richard A. Courtney. Not in
photo: Jason A. Frank and Dennis M.
Sandoval.
practices — which may incorporate
new and unique practices — and
gently reminded attendees of the ethical considerations related to venturing
beyond what we are accustomed to
in the traditional Elder and Special
Needs Law practice.
Dr. William Burke of the Banner
Alzheimer’s Institute (the Institute is
internationally known for its research
concerning Alzheimer’s) discussed
“Ending Alzheimer’s” and in his
discussion explained the disease in an
understandable manner and encouraged the audience with the new
research being conducted concerning Alzheimer’s. More often than
not, discussions concerning progressive diseases such as Alzheimer’s are
discouraging; however, Dr. Burke left
the audience with a sense of hope and
a desire to actively participate in and
follow the research being conducted.
NAELA has made a concerted
effort to follow excellent NAELA
Journal articles with a related educational session, and vice versa. This
effort came to fruition in Michele
Fuller and Kevin Urbatsch’s General
Session, “Preparing for the Future
Needs of People with Disabilities,”
which was based on the article they
co-authored for NAELA Journal in
its symposium issue on the future of
Elder and Special Needs Law (Fall
2013). Not only were Michele and
Kevin knowledgeable and informative
in their presentation, they were entertaining and captured the attention of
their audience. Those who read their
article found the follow-up session
to be complementary, and those who
had not read the article, were sure to
now do so.
The Basics Workshop and the Advanced
Elder Law Review were held prior to
the Annual Conference. During a lunch
break, participants from both workshops
were able to get together and exchange
ideas and thoughts.
The latest in Elder Law was one of
the foci of the breakout sessions that
included middle-class estate planning,
fiduciary litigation, and administrative appeals litigation. This track
approached these practice areas from
the perspective of what’s new and
different now that fewer individuals have potentially taxable estates;
fiduciary litigation is on the rise; and,
with tightening budgets, individuals
will need to fight administratively to
not only initially qualify for public
13
One of the highlights of every NAELA
conference is the Opening Reception. In
a relaxed, collegial atmosphere, NAELA
members come together to make new
connections and renew old friendships.
benefits but to keep what they’ve got!
A full-day track of breakout sessions
was devoted to the Future of Elder
Law that covered not only the “what
is it” but also the “how to do it.” Related ethical considerations were also
part of the discussion. Sessions were
offered in five comprehensive areas,
including Providing Financial Services; Serving as Fiduciary; Developing a Third Party Special Needs Trust
Practice; Domestic Asset Protection
Trusts; and Life Care Planning.
NAELA’s programs are only as
good as its faculty, and the 2014
NAELA Annual Conference’s lineup
of experts — which included Bernard
“Bernie” Krooks, CELA, NAELA
Past President and Fellow; Jonathan
Blattmachr, recognized as one of the
Outgoing President Howard S. Krooks
(left) passes the gavel to incoming
President Bradley J. Frigon.
Seminar Reviews
By Daphne Moritz, Esq., and Prof. Bobbi Flowers
The Trust Review Process
Presented by Michele Fuller, Esq.
Michele Fuller provided a comprehensive review of how
attorneys can protect themselves or their trustee clients
from fiduciary missteps or worse. Fuller pointed out that in
order to do so, attorneys would require an increased level
of attorney trust management. According to Fuller, recent
nationwide cases in which federal agencies and courts
have thoroughly scrutinized special needs trusts, highlight
the need for heightened management. Courts around the
country are increasingly relying on the POMS to help their
decision making. Attorneys would do well to familiarize
themselves intimately with the POMS as well as create a
series of checklists and other in-house systems and tools to
manage their cases most completely.
Fuller also suggested creating and utilizing systems to
determine whether an attorney or the fiduciary he or she
represents can properly administer a trust, provide an
initial post acceptance review, and also an annual review to
meet with trustees every year, particularly when a special
needs trust is involved. She emphasized practice organization such as use of job descriptions, team meetings, report-
14
ing lines and organization flowcharts.
She suggested to be
ready to add staff
to administer trusts
and do accountings,
create checklists,
Dr. William J. Burke presented
fee schedules, ticklers, and differentiate “Preventing Alzheimer’s Disease.”
one’s practice through
counseling as its value
because there are so many commoditized online planning
documents available. There were several other practical
components to this very useful presentation. –DM
The Future of Special Needs Planning: What
Challenges will Arise?
Presented by Michele Fuller, Esq., and Kevin Urbatsch, Esq.
The question that Michele Fuller and Kevin Urbatsch
posed is whether there will be a need for special needs
planning in the future. The attorneys provided us with a
very informative overview of the future of special needs
planning. Clients may have current unmet needs that in-
country’s most creative trusts and
estates lawyers; William Browning,
CELA, NAELA Past President and
Fellow; Shirley Berger Whitenack,
CAP, NAELA President-Elect and adjunct professor at Stetson University
College of Law; Thomas Begley Jr.,
CELA, NAELA Fellow, and recipient
of the NAELA President’s Award; and
many others — was as much a draw
as the topics on which they presented.
During the Annual Business
Luncheon, attendees were fortunate
to hear a recap of the prior year from
outgoing NAELA President Howard
Krooks, CELA, CAP, before he passed
the gavel to Bradley Frigon, CELA,
CAP, incoming NAELA President.
Members were introduced to the
NAELA leadership for the coming
year, and the many other NAELA
members who volunteer their time
were duly recognized, as was NAELA’s
very capable and hard-working staff.
On Friday the much-anticipated
Case Law Update was presented by
an esteemed panel of Past Presidents
Professor Rebecca Morgan, CAP; Ed-
clude third party planning. An attorney who builds a team
between private and public resources and builds bridges
with nonprofits in the community may really be able to
differentiate herself from her colleagues. The speakers
recommend that you know your strengths, weaknesses, and
ways to set yourself apart from other practitioners. They
also provided an overview of the historical views of people
with special needs, and they discussed the challenges ahead.
Because of genetic testing and, to a more limited degree,
counseling, parents who learn that their fetus may have a
disability may be more likely to terminate their pregnancies. Clearly, this is an ethical and moral minefield, but
the reality is that, if this should occur, fewer children will
be born with disabilities and that will reduce some of the
special needs work for attorneys. That said, many people
develop disabilities throughout their lives due to unforeseen illness and accident and that will continue to be a coexisting reality. Fuller stated that the largest indicator and
Special Thanks to Our 2014
Annual Conference Committee
Chair: Bridget O’Brien Swartz, Esq.,
Phoenix, Ariz.
Committee Members
Thomas D. Begley, Jr., CELA,
Moorestown, N.J.
Stephen W. Dale, Esq., Pacheco, Calif.
Mark D. Munson, CELA, Wausau, Wisc.
Sharon M. Rivenson Mark, CELA, CAP,
Jersey City, N.J.
Stu D. Zimring, CAP, North Hollywood,
Calif.
predictor of disabilities that emerge
later in life are
related to lifestyle
issues, particularly
childhood obesity
(poor nutrition and
sedentary lifestyle).
The prevalence and
growth of type II
diabetes in children Above and lower left: Attendees take time
out to network during breaks between
and the resulting
sessions.
long-term complications continue to increase the issues for that segment of
the population. Moreover, potential backlash exists that
the government will pull back on public benefit coverage
by declaring that claiming disability for obesity and its
attendant issues is voluntary and therefore comes with no
public funding resources. There was plenty of very rich information to absorb in this seminar including unchartered
territory for future planners. The takeaway was that special
needs practitioners must be able to add value in the form
of customization, a complete planning team, a thorough
knowledge of local resources and government benefits,
and most of all, must never allow the future to disturb
them.–DM
15
You’ll get hands-on experience and
personal attention in the Exhibit Hall.
win Boyer, Esq., CAP; Craig Reaves,
CELA, CAP; William Browning,
CELA; and outgoing President Howard Krooks, CELA, CAP. Case law
noteworthy to the Elder and Special
Needs Law attorneys’ practice was
highlighted, as well as case law whose
entertainment value made it worthy
of discussion.
The 2014 NAELA Annual Conference closed Saturday morning with
an “experimental” session presented
by Stephen Dale, Esq., LLM, and
Bonnie Danowski, a local advocate
on Planning for Clients with Multiple
Sclerosis. The session tested the waters
on presenting on condition-specific
planning, and was so well received
that NAELA will no doubt incorporate it in some form into future
programming.
The 2014 NAELA Annual Conference had the privilege of being a
familiar, collaborative experience as
well as a springboard for the future of
NAELA’s educational programming.
NAELA’s next national meeting will
be the 2015 Summit in Newport
Beach, Calif., held at the Island Hotel, January 29-31, 2015 (see page 30
for details). The Summit introduces
NAELA’s new educational programming, and will be a program NAELA
members will not want to miss! n
Preventing Alzheimer’s:
Pipedream or Possibility?
Presented by William J. Burke, MD
Dr. William J. Burke of the Banner Alzheimer’s Institute
discussed his organization’s efforts to research and fight
Alzheimer’s disease. Dr. Burke spoke of the current research
he is doing with public-private partnership funding. The
research targets amyloid, which forms in the body. The current hypothesis is that those with Alzheimer’s disease form
either too much amyloid, or their bodies are unable to turn
off the amyloid produced. It therefore accumulates in the
individual, eventually leading to tangles in the brain. In the
past, research focused on those with advanced Alzheimer’s
disease, but as genetic information has become available,
today’s research focuses on biomarkers and target younger
potential sufferers. In Dr. Burke’s laboratory, researchers are
targeting two specific groups of Alzheimer’s disease sufferers. The first are an extended family from Colombia with a
genetic disposition to early onset Alzheimer’s disease. Over
a five-year period, the researchers are conducting tests on
the family members, treating some with an injected drug
that is supposed to curb amyloid production and retention
16
Charles P. Golbert, Esq., NAELA
Journal Editor in Chief (left), presents
the John J. Regan Award to Alfred J.
Chiplin Jr., JD, MDiv, CPE. Co-author
Bethany J. Lilly, Esq., not pictured.
in the body. If the research can
lead to a way to curb Alzheimer’s
disease in people by five years,
this will go a significant way to
reduce the disease. The second
research project seeks to conduct testing on, and document
and treat those with a specific
genetic proclivity to Alzheimer’s
disease. Here, the target audience is harder to amass. Specifically, the researchers seek to
study those who have a predisSeminar presentations
position to Alzheimer’s disease
aren’t serious all the
due to their genetic makeup.
time.
Subjects would have to be
willing to have genetic testing to screen for the disease’s
biomarkers. Dr. Burke suggested that those with early
onset dementia in their families should be aware that
they may carry such genetic predisposition and may seek
to become subjects in this study (see link for information about a Banner Alzheimer’s Institute study: http://
www.azcentral.com/story/opinion/editorial/2014/07/15/
alzheimers-banner-study/12709249/).
He also encouraged NAELA members to educate our
clients on the research, and join Banner Alzheimer’s Institute to spread the word on Alzheimer’s disease research.
Perhaps there is hope on the horizon after all.–DM
Acting as a Fiduciary
Presented by Robert B. Fleming, CELA, and Robert W.
Fechtman, CELA
As most people have come to expect from a session that
includes Robert B. Fleming, “Acting as a Fiduciary” was
entertaining and educational. Robert Fleming and Robert
Fechtman made it clear that serving as a fiduciary is very
rewarding both personally and financially. This presentaMichele Fuller, Esq., and Kevin Urbatsch, Esq., presented on
the future of Special Needs Planning that was based on their
tion gave some practical ways to get into this new area.
NAELA Journal article.
The Robert B. and Robert W. show tried to address all
the biggest concerns lawyers may have when considering
whether to act as a fiduciary (trustee, guardian, conservaghosts of a woman whose estranged husband buried her
tor, or personal representative). Those issues included how
in Iowa instead of Montana. The presentation was a great
to connect with trial lawyers as a source of work, calculatsource of current case law, trends and practical advice, ining fees, malpractice insurance, investment competence/
cluding advice on the importance of following the POMS
outsourcing, tax filing issues, and, of
even though they are internal guidelines
course, avoiding conflicts of interest.
and not rules.
These presenters were willing to share the Seminars presented
This year, the presentation began with a
at the 2014 Annual
lessons they had learned, some the hard
summary of the trends in annuity, marConference are available
way. They also introduced the audience
riage equality, guardianship, Medicaid,
to the abundance of resources available to for purchase through the
elder abuse, and end-of-life issues. Those
NAELA Store, www.NAELA. trends included concerns with agency polia lawyer new to this area, including the
org/Store.
National Guardianship Association. This
cymaking that fails to follow rule-making
was a very nuts and bolts session that also
procedures, including comment periods.
included stories of how a lawyer can be of
Ed Boyer mentioned the trends in statutes
great service as a fiduciary. The presenters agreed that these
and case law to apply person-centered decision making and
cases are some of the most fulfilling parts of their practices.
the dilemmas in which this trend can place the guardian.
If you are thinking about expanding your firm to begin
Another trend noted was that ethics opinions are beginthe rewarding work of acting as a fiduciary, you will want
ning to consider the vulnerability and capacity of the client
to review this session.–BF
in determining the appropriate attorney discipline. Craig
Reaves shared a case wherein the father disinherited a child
Case Law Update
with disabilities giving the entire estate to the older child
Presented by Rebecca Morgan, CAP; Craig Reaves, CELA,
with an agreement that the older child would care for the
CAP; Ed Boyer, Esq., CAP; Bill Browning, CELA; and
disabled sibling. After two years of litigation and $728,000
Howie Krooks, CELA, CAP
in attorneys fees, the child with disabilities prevailed on a
The NAELA Past Presidents, as always, did a great job
breach of contract claim. Craig suggested this is a great case
of making the case law updates come alive, including the
to share with parents of a child with a disability, who think
17
NAELA Member Benefit Program
The National Academy of Elder Law Attorneys (NAELA) Member Benefit Program provides
special offers to NAELA members on a variety of products and services.
You can receive information directly from these vendors by contacting them. NAELA will announce new partners as
they are approved. Meanwhile, we encourage you to take full advantage of this member service and reap the benefits
of your NAELA membership!
NAELA does not imply warranties to the products or services offered by Member Benefit Partners.
AgingCare.com www.agingcare.com/portal/
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Product Information: These respected
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Benefit to Members: The basic listing is
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• As a NAELA member, special pricing is
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For information about
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Benefit to Members: SFP and NAELA
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Michael J. Amoruso, Esq. receives the
2014 Theresa Award.
that they can trust another child to care for the child with
disability. Great practical advice based on the most current
case law.–BF
Clifton Kruse Ethics Lecture
Margaret Lodise, of Sacks, Glazier, Franklin & Lodise in
Los Angeles, Calif., gave the Clifton Kruse Ethics Lecture
this year. She acknowledged that this was an appropriate
keynote lecture for a conference that was designed to
“retool” the Elder Law practice in light of the changes in
the practice of law. One of those significant changes is the
use of ancillary service providers by lawyers in order to
serve the elderly client.
Ms. Lodise discussed the relationship between the
attorney’s professional rules of conduct and the professionals that the attorney may work with based on the state
ethics rules modeled on ABA Model Rule 5.3. The lecture
emphasized the important duty to comply with the ethics
rules when using ancillary service providers who may be
non-lawyers. Ms. Lodise emphasized the rules of confidentiality, conflicts, and competency as applicable rules for
attorneys who use ancillary service providers on a routine
basis to advise clients on non-legal issues or to help complete the legal services such as real estate transactions. Attorneys who are currently outsourcing or considering
outsourcing work to non-lawyer companies or non-lawyer
professionals should review this lecture for the cases and
ethic opinions that require attorneys to make sure that
the outsourcing company is complying with the ethics
rules.–BF n
NAELA Calendar of Events
Visit www.NAELA.org for more information.
January 27–28, 2015. NAELA Advanced Elder Law
Review, NAELA Summit, Newport Beach, Calif.
January 28, 2015. NAELA Board of Directors Meeting,
NAELA Summit, Newport Beach, Calif.
January 29–30, 2015. NAELA Summit, Newport Beach,
Calif.
NAELA Board of Directors Meetings are open to all NAELA
members. Meeting announcements and minutes from past
Board of Directors meetings are posted on www.NAELA.
org. Using your NAELA username and password, sign in and
look under Membership > Member Resources > Board of
Directors.
Awards
NAELA Fellows
Richard A. Courtney, CELA
Jason A. Frank, CELA
Bradley J. Frigon, CELA
Rajiv Nagaich, Esq.
Dennis M. Sandoval, CELA
Powley Award
Marielle F. Hazen, CELA
John J. Regan Writing Award
Alfred J. Chiplin Jr., JD, MDiv, CPE
Bethany J. Lilly, Esq.
President’s Recognition Award
Parkland Buddy Sports
Theresa Award
Michael J. Amoruso
Outstanding Chapter Member Award
No. California
Josie Porras-Corporon
Connecticut
Linnea J. Levine
Florida
Twyla Sketchley
Georgia
Patricia Ammari
Illinois
Heidi Dodd
Indiana
Connie Bauswell, CELA
Massachusetts
Daniel M. Surprenant,
CELA
Missouri
M. Brigid Fernandez
New Hampshire
Scott McGuffin
New Jersey
Lauren S. Marinaro
New York
Judith Grimaldi
Pennsylvania
Stanley M. Vasiliadis
South Carolina
Donna V. Sands, CELA
Texas
Pi-Yi Mayo
Washington
Tim Williams
Wisconsin
Roy Froemming and
Carol Wessels
19
In Response to Comments on NAELA’s Ethical Advocacy in the Future:
Opposing the Expansion of Lawyer Duty to
Non-Clients as Derivative Clients
By Kathryn Cook DeAngelo, CELA, CAP
An article on special needs trust beneficiaries as derivative clients in a
previous issue draws this reader’s response.
M
y good friend and colleague, A. Frank
Johns, CELA, CAP, wrote an article that
appeared in the February/March 2014 issue
of NAELA News titled “Comments on
NAELA’s Ethical Advocacy in the Future: Special Needs
Trust Beneficiaries as Derivative Clients,” wherein Mr.
Johns expresses his thoughts and comments espousing the
expansion of the Elder Law attorney’s ethical duties and
responsibilities and states that NAELA’s history suggests
that the “future client/lawyer relationships will expand
to those on the periphery of our ethical and aspirational
boundaries; holding lawyers accountable for derivative,
non-client beneficiaries of special needs trusts. Many of us
do not want it any other way.”1 In reply, I submit that there
are many of us who do want it another way, namely, the
way it is now in the majority of states, which recognize that
a lawyer’s duty extends to his client and not to non-clients.
I do not know how many members of NAELA agree
with Mr. Johns’ charge that NAELA should lead its
members to the “forefront of those in the legal profession
insisting on the expansion of the legal/ethical boundaries
that embrace protections for derivative, non-client, vulnerable beneficiaries of special needs trusts.”2 I respectfully
disagree with Mr. Johns’ charge for expansion because a
Kathryn Cook DeAngelo, CELA, CAP, has practiced in Surfside Beach, S.C., since 1985.
1 A. Frank Johns, Comments on NAELA’s Ethical Advocacy in the
Future: Special Needs Trust Beneficiaries as Derivative Clients, 26
NAELA News, 9, (Feb./Mar. 2014).
2 Id. at 11.
20
lawyer should not be held accountable for derivative, nonclient beneficiaries of special needs trusts or accountable to
any other third person(s) who are non-clients. I believe it is
a dangerous and risky proposition to make the lawyer accountable to “derivative clients” who are non-clients (does
that sound like an oxymoron?).
Mr. Johns gives an example of a situation in which his
“derivative expansion” theory would apply, namely, where
the Elder Law attorney represents a fiduciary/trustee appointed in a special needs trust previously prepared by
the lawyer for a former older client who established the
special needs trust for his or her family members, such as
children or grandchildren.3 Mr. Johns states that if lawyers
do provide legal services to the fiduciary/trustee designated
by their former clients, “a special obligation” arises in the
situation of dealing with the non-client beneficiaries of the
special needs trust. (This would also seem to suggest that
the attorney for the fiduciary/personal representative of an
estate would be under a duty and obligation to also represent and advise the heirs/beneficiaries of an estate.) In support of the foregoing statement and proposition, Mr. Johns
cites a Comment from NAELA’s Aspirational Standards for
the Practice of Elder Law with Commentaries4 5 — Aspi3 Id. at 10.
4 Aspirational Standards for the Practice of Elder Law with Commentaries, 2 NAELA Journal (2006).
5 The Aspirational Standards do not define or establish a community
standard. They are not intended to, nor should they be used to
support a cause of action, create a presumption of a breach of legal
duty, or form a basis for civil liability. (See Id at 7.) The Comments
rational Standard E. Client Capacity (8), which Comment
cites in a footnote the following Comment [11]6 to ABA
Model Rule 1.2 Client Lawyer Representation — Scope
of Representation and Allocation of Authority Between
Client and Lawyer:7 “Where the client is a fiduciary, the
lawyer may be charged with special obligations in dealing
to the Aspirational Standards are intended as guides to interpretation and not part of the Standards themselves. (See Id at 1.)
6 “The Comments are intended as guides to interpretation, but the
text of each Rule is authoritative.” ABA Model Rules of Professional Conduct: Preamble & Scope [21], http://www.americanbar.org/
groups/professional_responsibility/publications/model_rules_of_
professional_conduct/model_rules_of_professional_conduct_pre
amble_scope.html (accessed Apr. 28, 2014).
7 ABA Model Rule of Professional Conduct 1.2 Client Lawyer
Representation — Scope of Representation and Allocation of
Authority Between Client and Lawyer, http://www.americanbar.
org/groups/professional_responsibility/publications/model_rules_
of_professional_conduct/rule_1_2_scope_of_representation_
with a beneficiary.” The term “special obligations” is not
defined and the commentary states that such an obligation “may” arise, not that it shall arise, so it is discretionary
and permissive rather than imperative or mandatory. Also
in support, Mr. Johns cites a triangulation theory from a
1987 article written by Prof. Hazard,8 as well as a 1997 law
review article written by Mr. Johns.9
It is my understanding that Mr. Johns is saying that
when the lawyer represents and advises a fiduciary, such
as a special needs trustee, a “special obligation arises” and
allocation_of_authority_between_client_lawyer.html (accessed
Apr. 28, 2014).
8 See Geoffrey C. Hazard, Triangular Lawyer Relationships: An Exploratory Analysis, 1 Geo. J. Legal Ethics 15 (Summer 1987).
9 See A. Frank Johns, Fickett’s Thicket: The Lawyer’s Expanding
Fiduciary and Ethical Boundaries When Serving Older Americans
of Moderate Wealth, 32 Wake Forest Law Review 445 (Summer
1997).
Responding to the Opposition on the Expansion of NAELA Ethical
Advocacy to SNT Beneficiaries as Derivative Clients
By A. Frank Johns, CELA, CAP
“Good friend and colleague” is
an understatement. Those were the
words that opened Kathryn Cook
DeAngelo’s “Comments on NAELA’s
Ethical Advocacy in the Future:
Opposing the Expansion of Lawyer
Duty to Non-Clients as Derivative
Clients.” The friendship and collegial
relationship between Kathryn and
me have their origins in the early
years of NAELA. I recognize Kathryn
as one of our most competent and
academically skilled practitioners. It is
A. Frank Johns, CELA, CAP, is author of
“Comments on NAELA’s Ethical Advocacy
in the Future: Special Needs Trust Beneficiaries as Derivative Clients, in the February/March 2014 issue of NAELA News.
with that level of respect I write this
response.
In January 2014, I wrote comments for NAELA News. It was requested by the editors as a companion
to the editors’ invitation for me to be
the Featured Member for that issue.
My comments came from a much
longer article yet to be published; it
was more akin to an abstract. The thesis of the abstract and the article are
narrowly focused, only examining the
need for protection of beneficiaries of
special needs trusts.
In this response, I offer two primary points: First, I am in no way
advocating a general ethical expansion
of lawyer legal liability for derivative clients; and second, the hybrid
for finding lawyers liable for injuries
suffered by special needs trust (SNT)
beneficiaries has been based on wellreasoned factual criteria developed in
judicial opinions in many states for
more than 50 years.
First, Ms. DeAngelo mistakenly
infers the broader scope of derivative
liability in her title. She did not limit
derivative clients to only those beneficiaries of SNTs. That does not seem
to be inadvertent. In the second paragraph of her opposition comments,
Ms. DeAngelo adds, “…or accountable to any other third person(s) who
are non-clients. I believe it is a dangerous and risky proposition to make
the lawyer accountable to ‘derivative
clients’ who are non-clients…” In the
paragraph that followed, she parenthetically expands her thesis, declaring, “(this would also seem to suggest
that the attorney for the fiduciary/
personal representative of an estate
21
expands the lawyer’s duty and responsibilities to the nonclient beneficiaries of the special needs trusts. If that is the
case, then how would this be applied in the trenches where
we work and practice law? For instance, let’s take the illustration used by Mr. Johns where the lawyer concludes representation of an older client for whom the lawyer prepared
a special needs trust that designates the older client’s grandchildren as beneficiaries. Later on, the trustee nominated by
the older client returns to the lawyer and retains or engages
the lawyer to represent him or her as fiduciary/trustee. We
know the lawyer has duties and obligations to his client,
would be under a duty and obligation
to also represent and advise the heirs/
beneficiaries of an estate.)” She makes
this parenthetical statement while
next stating that I cite the NAELA
Aspirational Standards to support
the “foregoing statement and proposition.” However, that parenthetical expansion takes the pinpointed
spotlight on SNT beneficiaries and
turns it into a floodlight on all who
may attempt to assert derivative client
status.
In a later paragraph, Ms. DeAngelo wonders if the attorney of the fiduciary/trustee would have to extend
an actual client/lawyer relationship
to the children and grandchildren of
the older client. She asks if the lawyer
would have to confront conflicts and
confidential communications. She
asks what would happen if the SNT
beneficiary is competent and downright demanding and unreasonable,
or divulges secrets or just ventilates.
The singular answer to her question is
simple. The derivative client construct
only occurs when there is injury and
liability needs to be determined. It
does not create a conventional cli-
22
the fiduciary/trustee, which are governed by the Rules of
Professional Conduct and relevant law. But, if Mr. Johns’
derivative client theory is applied and the lawyer’s duties
and obligations extend to non-client beneficiaries (grandchildren), it then becomes confusing and also professionally risky for the lawyer since it would appear that she or
he would then jointly represent the fiduciary/trustee client
who engaged their services and also the derivative non-client beneficiaries. What if the special needs beneficiary(ies)
are minors or mentally incapacitated? Does the lawyer then
have to have a court-appointed guardian/conservator for
ent/lawyer relationship. Any answer
otherwise defeats the derivative client
status.
Second, by definition beneficiaries
of SNTs are defined as disabled. Most
of them are vulnerable to and dependent on the professionals that serve
them.1 There are countless numbers
of SNT situations where the lawyers
who developed the SNTs did them
wrong and the SNT beneficiaries
suffer actual damages because of the
lawyers’ lack of competence. Under
the conventional application of the
privity doctrine, the SNT beneficiary
has no contractual relationship with
the lawyer and would not succeed in
litigation. The hybrid theory applied
to this situation would balance various factors: 1) the extent to which
the transaction was intended to affect
the plaintiff; 2) the foreseeability of
harm to the plaintiff; 3) the degree
of certainty that the plaintiff suffered
injury; 4) the closeness of the connec-
tion between the defendant’s conduct
and the injury suffered; 5) the moral
blame attached to the defendant’s
conduct; and 6) the policy of preventing future harm.2 It is noteworthy
that the Biakanja decision was followed by Lucas v. Hamm,3 a case involving a defective testamentary trust.
More could be stated and articulated,
but this is not the place and space for
the larger, more exhaustive debate.
I agree with Ms. DeAngelo’s
concern for expanding general legal liability exposure confronting practitioners in Elder and Special Needs Law.
However, I stand resolute in believing
that there must be greater protection for SNT beneficiaries when they
have been injured by incompetent
practitioners. More open and forthright debate within the Elder and
Special Needs Law bar is healthy and
welcomed.
Respectfully,
A. Frank Johns
1 These SNT beneficiaries are almost
identical to the adjudicated incapacitated persons under guardianships that
Hazard used as one of the triangular
legal relationships as the premise of his
thesis.
2 Biakanja v. Irving, 49 Cal. 2d 647, 650;
320 P.2d 16; 1958 Cal. LEXIS 253; 65
A.L.R.2d 1358.
3 Lucas v. Hamm, 56 Cal. 2d 583, 364
P.2d 685, 15 Cal. Rept. 821, 1961 Cal.
LEXIS 321.
that derivative client? What if the derivative clients have
legal capacity but are downright demanding and unreasonable, detest the trustee, and call the fiduciary/trustee’s
lawyer (who is also their lawyer as derivative clients) on
the phone several times each week for advice, assistance, or
just to ventilate? What if the fiduciary/trustee client reveals
“secrets” and confidences to his lawyer and the derivative
clients do the same? What if the fiduciary/trustee wants to
engage in a transaction with trust property, and the derivative clients oppose that decision? You get the point.
Nowhere in Mr. Johns’ article espousing the expansion
of the lawyer’s liability and responsibility to these derivative
clients does he mention or touch upon how the lawyer is
supposed to address and manage their role as attorney for
multiple or joint clients, namely, the fiduciary/trustee and
the derivative clients (special needs beneficiaries). What
about attorney-client privilege? Confidentiality? Payment
of attorney’s fees, by whom? Joint representation? Conflict of interests? We all know there are numerous rules of
professional conduct that guide us and dictate what we
should and should not do in the context of each rule. It is
confusing and stressful enough for Elder Law attorneys to
navigate and figure out ethical dilemmas when they have
selected and identified their client(s) and confirmed the
relationship and terms of representation in a legal representation agreement. To impose upon the lawyer unintended
derivative clients would, in my opinion, be unmanageable
and a malpractice minefield.
When I think of NAELA’s Aspirational Standards, I
always defer to and use as my mantra Aspirational Standard
A. Client Identification,10 which provides that the Elder
Law attorney identifies the client at the earliest possible
stage. Lawyers who practice in most areas of law have no
problem identifying their client. Elder Law is different. It
typically involves the older client, the older client’s family,
friends, and other interested persons. It is often a challenge
to properly identify the client and communicate that information to the persons immediately involved. I have been
practicing Elder Law since the early 1990’s and still have
new and complicated situations that present confusion
in identifying the client. Mr. Johns cites South Carolina
as one of the many states “clinging to the Bastian walls of
the doctrine of privity.”11 Thankfully, the South Carolina
legislature prudently enacted the following statutes that
define the lawyer’s duties and obligations to a fiduciary and
preserve the fiduciary-lawyer privilege:
10 Supra n. 4 at 3.
11 Supra n. 1 at 11.
SECTION 62-1-109. Unless expressly provided otherwise in a written employment agreement, the creation of an
attorney-client relationship between a lawyer and a person
serving as a fiduciary shall not impose upon the lawyer any
duties or obligations to other persons interested in the estate,
trust estate, or other fiduciary property, even though fiduciary
funds may be used to compensate the lawyer for legal services
rendered to the fiduciary. This section is intended to be
declaratory of the common law and governs relationships in
existence between lawyers and persons serving as fiduciaries as
well as such relationships hereafter created.
S.C. Code §62-1-110. Whenever an attorney-client relationship exists between a lawyer and a fiduciary, communications
between the lawyer and the fiduciary shall be subject to the
attorney-client privilege unless waived by the fiduciary, even
though fiduciary funds may be used to compensate the lawyer
for legal services rendered to the fiduciary. The existence of a
fiduciary relationship between a fiduciary and a beneficiary
does not constitute or give rise to any waiver of the privilege for
communications between the lawyer and the fiduciary.
If legal malpractice, grievances, fee disputes, and other
attacks on lawyers were not subsumed into the potential
attorney-client relationship with derivative clients, then
perhaps I would have less concern about expanding the
lawyer’s duty and responsibility to derivative clients. I am
certain that other NAELA members, just as I, are concerned about the additional burdens and risks imposed
upon the lawyer who has derivative clients. If Mr. Johns is
concerned about legal representation for non-client beneficiaries, then a better solution might be for the trustee’s
lawyer to inform these non-client beneficiaries to engage
their own separate attorney. And if there is any “special
obligation” beyond that, then let the trust pay the attorney
fees for the non-client beneficiaries. The foregoing should
more than satisfy any “special obligation.” In conclusion, I
truly believe that we must remain focused on our duty and
loyalty to the client who engages or retains our services.
Anything else invites disaster for the attorney. n
23
Chapter Presidents
For information on NAELA Chapters, go to www.NAELA.org.
Arizona Chapter
Sally J. Simpson
Tucson, Ariz.
[email protected]
New Hampshire Chapter
Warren Lake
Sanborton, N.H.
[email protected]
California Chapter–Northern
Julie M. Fiedler, CELA
San Ramon, Calif.
[email protected]
New Jersey Chapter
Jerold E. Rothkoff
Cherry Hill, N.J.
[email protected]
California Chapter–Southern
Maureen A. Lyons
Riverside, Calif.
[email protected]
New York Chapter
Ellen G. Makofsky, CELA
Garden City, N.Y.
[email protected]
Colorado Chapter
Marco D. Chayet
Denver, Colo.
[email protected]
North Carolina Chapter
William G. Alexander
Raleigh, N.C.
[email protected]
Connecticut Chapter
Linnea J. Levine, CELA
Westport, Conn.
[email protected]
Ohio Chapter
Richard F. Meyer
Worthington, Ohio
[email protected]
Florida Chapter
Shannon M. Miller
Gainesville, Fla.
shannon@MillerElderLawFirm.
com
Pennsylvania Chapter
Stanley M. Vasiliadis, CELA
Bethlehem, Pa.
[email protected]
Georgia Chapter
Deana M. Spencer
Lawrenceville, Ga.
[email protected]
Illinois Chapter
Linda M. Strohschein, CELA
St. Charles, Ill.
[email protected]
Indiana Chapter
Connie L. Bauswell, CELA
Valparaiso, Ind.
[email protected]
Kansas Chapter
Emily A. Donaldson
Lawrence, Kan.
[email protected]
Maryland/DC Chapter
Catherine E. Stavely
Annapolis, Md.
[email protected]
Massachusetts Chapter
Judith M. Flynn
Rockland, Mass.
[email protected]
Michigan Chapter
Christopher J. Berry, CELA
Bloomfield Hills, Mich.
[email protected]
Missouri Chapter
Stephen J. Stark
Jefferson City, Mo.
[email protected]
24
South Carolina Chapter
Philip J. Corson
Ft. Mill, S.C.
[email protected]
Texas Chapter
Tina R. Green, CELA
Texarkana, Texas
[email protected]
Vermont Chapter
Michael D. Caccavo
Barre, Vt.
[email protected]
Virginia Chapter
Yahne Miorini
McLean, Va.
[email protected]
Washington Chapter
William S. Hickman
Lynnwood, Wash.
[email protected]
Wisconsin Chapter
Andrew Gerald Falkowki
West Bend, Wis.
[email protected]
Board of Directors 2014–2015
PRESIDENT
SECRETARY
Bradley J. Frigon, CELA, CAP
Englewood, Colo.
[email protected]
Michael J. Amoruso, Esq.
Rye Brook, N.Y.
[email protected]
PRESIDENT-ELECT
PAST PRESIDENT
Shirley Berger Whitenack, Esq., CAP
Florham Park, N.J.
[email protected]
Howard S. Krooks, CELA, CAP
Boca Raton, Fla.
[email protected]
VICE PRESIDENT
EXECUTIVE DIRECTOR
Catherine Anne Seal, CELA
Colorado Springs, Colo.
[email protected]
Peter G. Wacht, CAE
Vienna, Va.
[email protected]
TREASURER
Hyman G. Darling, CELA
Springfield, Mass.
[email protected]
DIRECTORS
Wendy Shparago Cappelletto, Esq.
Chicago, Ill.
[email protected]
David Godfrey
Washington, D.C.
[email protected]
Patricia E.K. Dudek, CAP
Farmington Hills, Mich.
[email protected]
Ron M. Landsman, Esq., CAP
Rockville, Md.
[email protected]
Julie M. Fiedler, CELA
San Ramon, Calif.
[email protected]
David L. McGuffey, CELA
Dalton, Ga.
[email protected]
Roberta K. Flowers
Gulfport, Fla.
[email protected]
Jennifer VanderVeen, CELA
Greenwood, Ind.
[email protected]
Jason A. Frank, CELA, CAP
Lutherville, Md.
[email protected]
Michael C. Weeks, CELA
St. Charles, Mo.
[email protected]
CONSULTANTS
Brian W. Lindberg
Public Policy Adviser
Washington, D.C.
[email protected]
Hugh K. Webster, Esq.
Legal Counsel
Washington, D.C.
CAPsules
Update on Jimmo v. Sebelius
Medicare Standards for Skilled Nursing Care
By Morris Klein, CELA, CAP
Jimmo v. Sebelius challenged the legality of the “improvement” standard.
O
ne of the few Medicare benefits available for
long-term services and supports is payment
for up to 100 days of skilled care in a nursing
home.1 Medicare pays the entire amount for
the first 20 days and the excess of $152 per day (annually
adjusted for inflation) for the remaining 80 days.2
Medicare does not guarantee the entire 100 days of
coverage, however, and the patient’s need for skilled care
services is under constant review. Until recently, the criteria
for continued skilled care have been based on informal
Medicare policy guidelines asserting that a patient must
demonstrate “improvement” from receiving skilled care services. This policy resulted in many Medicare beneficiaries
losing their benefit far short of the full eligibility period.
In Jimmo v. Sebelius, No. 11-CV-17 (D. Vt.), various
individuals and organizations challenged the legality of the
“improvement” standard by filing a class-action lawsuit
against the U.S. Department of Health and Human Services. Plaintiffs argued that the “improvement” standard
was not based on federal Medicare law and regulations.
The government settled the lawsuit after it failed to win
its motion to dismiss. The government agreed to clarify in
its manuals and directives to providers to say that the eligibility for the continuation of skilled care services should
Morris Klein, CELA, CAP, is a member of the NAELA Public
Policy Steering Committee. The CAPsules column is provided
by members of the Council of Advanced Practitioners (CAP).
1 Medicare also will pay for physician-authorized skilled care to a
home-bound beneficiary on an intermittent basis, or for inpatient
care in a rehabilitation facility. Skilled care includes physical, occupational and speech therapy, wound therapy, and observation of
changing conditions.
2 The nursing home stay must commence within 30 days of discharge from a hospital where the patient had been admitted for at
least three days.
be based not on the beneficiary’s “improvement” but on
whether the beneficiary requires skilled care and whether
such services themselves are reasonable and necessary. The
federal district court judge presiding over the litigation
approved the settlement on January 24, 2013, and CMS
agreed to make the necessary changes within one year.
On December 9, 2013, CMS revised its Medicare
Benefit Policy Manuals. It also started its promised educational campaign.3 The manuals and educational campaign
now make it clear that improvement is not necessary for
coverage of skilled nursing and therapy services. The fact a
patient has a chronic condition or lacks “improvement” or
“restoration potential” should not be deciding factors for
access to continued coverage. Such skilled therapy services
are covered when an individualized assessment of the patient’s clinical condition demonstrates that the specialized
judgment, knowledge, and skills of a qualified therapist are
necessary for the performance of a safe and effective maintenance program. Other skilled nursing services would be
covered when necessary to maintain the patient’s current
condition or prevent or slow further deterioration as long
as the beneficiary requires skilled care for the services to be
safely and effectively provided.
The Center for Medicare Advocacy, the lead counsel in
Jimmo, reports that beneficiaries and providers are still reporting denials based on the old “improvement” standard.
It also notes there are more denials for services that are “not
skilled” or “not medically necessary.”
Advocates therefore need to scrutinize Medicare skilled
care denials with care to determine if the beneficiary still
3 Links to the manuals are: http://www.cms.gov/Regulationsand
Guidance/Guidance/Transmittals/Downloads/R179BP.pdf. and
http://www.cms.gov/OutreachandEducation/MedicareLearning
NetworkMLN/MLNMattersArticles/Downloads/MM8458.pdf.
25
qualifies for skilled care, and, if necessary to appeal.4
Separately, the settlement also permits Medicare beneficiaries whose denial of coverage became final and nonappealable after January 18, 2011, because of the improvement standard, to have their claims re-reviewed under
the revised manual provisions. The review process is not
automatic, and a beneficiary must fill out and submit a
Request for Re-Review form. If the claim became “final
and non-appealable” from January 18, 2011 through January 24, 2013, the deadline for filing is July 23, 2014. If it
became “final and non-appealable” from January 25, 2013
through January 23, 2014, the deadline is January 23,
2015. Claims that became final and nonappealable after
January 23, 2014 are not eligible for re-review.
The Center for Medicare Advocacy has posted self-help
packets online to help patients and advocates determine
whether the basis for the denial is appealable and how to
4 An expedited appeal must commence by noon of the next calendar
day of issuance of the notice of denial of benefits.
prosecute the appeal. The link is http://www.medicareadvo
cacy.org/medicare-info/improvement-standard/.
Note that the settlement affects only the standard to
receive skilled care. Other Medicare eligibility rules remain
the same. The 100-day limit on skilled nursing care rule
has not changed. Also, skilled care services will continue
to be provided only when such care is reasonable and
necessary. Moreover, someone whom the hospital did not
formally admit for at least three days but instead classified
as at the hospital only for “observation” does not qualify
for any skilled care subsidy.5
The Jimmo settlement represents affirmation of what the
law has always required Medicare to provide in benefits and
a step forward in the quest by patients to remain as healthy
as possible for as long as possible. It is now up to advocates
to continue to make sure the settlement is followed. n
5 In Bagnall v. Sebelius (No. 3:11cv01703, D. Conn), advocates
challenged the use of the observation status, but the court dismissed the lawsuit.
Call for NAELA Board of Directors Nominations
Join the team that’s shaping the future of your profession.
Nominations must be received no later than November 7, 2014.
Are you tired of sitting on the sidelines? Here’s your
chance to help lead the association dedicated to furthering
the profession of Elder and Special Needs Law. Put your
experience and expertise to work to the benefit of your peers,
your profession, and your clients.
NAELA is currently seeking members to serve in
leadership positions on its Board of Directors. There are
openings for directors, which carry a two-year term.
You can make a difference. This opportunity to serve on
the NAELA Board of Directors will put you in the driver’s seat
as the Academy continues to expand its presence in the
Elder and Special Needs Law space and provide greater value
to its members.
The Benefit Package
• A role in advancing your profession.
• Exposure to a wealth of personal and professional
contacts.
• Access to up-to-date information about the challenges
facing your practice in the future.
• The chance to exchange ideas and perspectives with other
26
volunteer leaders.
Qualifications
• Demonstrated commitment to NAELA and the profession of
Elder and Special Needs Law.
• Strong background in committee and volunteer work on a
local and/or national level.
• A proven track record of affecting change.
• Ability and commitment to dedicate the time to prepare for
and attend three in-person board meetings per year and
additional conference calls as needed.
• A proven team player.
• Sound judgment and integrity.
• Ability to subordinate special interests.
• Exemplary personal conduct.
We Want to Hear From You
If you are interested in serving or know of potential
candidates, please send a letter of interest and a résumé to:
Peter Wacht, CAE, Executive Director at NAELA, 1577 Spring
Hill Road, Suite 310, Vienna, VA 22182; e-mail pwacht@
naela.org; 703-563-9504, fax.
PUBLIC POLICY
NAELA’s Leadership Position on the GAO Report
By Bradley J. Frigon, CELA, CAP
America faces a long-term care crisis that Congress needs to address.
I
n September 2012, the Government Accountability
Office (GAO) asked to interview NAELA members
about issues related to Medicaid eligibility for an
upcoming report. The Board of Directors began a
process to prepare for the potential consequences of the
report’s publication. Particularly after the passage of the
Deficit Reduction Act of 2005, NAELA must ensure that
the dialogue surrounding long-term care does not inappropriately blame those in desperate need of services and
supports, and their attorneys, for our inadequate, institutionally biased health care system.
Preparing for the report allowed me to think about the
many myths surrounding the counsel we provide elderly
and people with disabilities every day. Millionaires are
not going on Medicaid and too many Americans still
falsely believe that Medicare will cover their long-term
care costs when they get older. In reality, this nation faces
a long-term care crisis that Congress needs to address
immediately.
On June 23, the GAO released its report, Financial
Characteristics of Approved Applicants and Methods Used to
Reduce Assets to Qualify for Nursing Home Coverage, which
reviewed randomly selected Medicaid applications from
New York, Florida, and South Carolina. It found that
from the 294 approved applications it reviewed, 41 percent
of the people reported $2,500 or less in total resources,
countable and non-countable, and only 14 percent reported more than $100,000 in total resources.
The GAO identified the four main methods used by applicants to reduce their countable assets: a) spending countable resources on non-countable resources, such as prepaid
funeral arrangements; b) using an annuity or promissory
note to convert resources; c) gifting; and d) shifting the
Bradley J. Frigon, CELA, CAP, NAELA President, 2014-15.
amount of assets a community spouse can retain through
annuity purchases.
NAELA’s nationwide press release calls for an urgent
review of the long-term care crisis using the GAO report
as a starting point. The report touches on, but doesn’t
say directly, what we know from our practice: the vast
majority of Americans have nowhere else to go besides
Medicaid to pay for the high cost of long-term care. And,
it’s a calamity that will only worsen as the Baby Boom
generation ages.
Within days of the report’s release, I sent letters to Sens.
Tom Coburn (R-OK) and Richard Burr (R-NC) and
Reps. Darrell Issa (R-CA) and Trey Gowdy (R-SC), who
requested the report, and offered to work with them and
others to design and build a long-term care reform package to address the concerns that our member-attorneys
confront every day on behalf of Americans. NAELA staff
also will follow up with key members of Congress to ensure
they understand the negative effects changes to Medicaid
eligibility would have on families caring for the elderly and
disabled.
NAELA has published a new webpage that discusses
the long-term care crisis including: a long-term care position paper; family stories about Medicaid; and a brief that
demystifies Medicaid planning. We will add to this information as the dialogue to address long-term care issues
continues and as we continue to collaborate on this issue
with the Leadership Council of Aging Organizations and
the Consortium for Citizens with Disabilities.
Our unique expertise as Elder and Special Needs Law attorneys creates a duty to educate the media, policymakers,
and public about the challenges faced every day by those
who need long-term services and supports. As President,
I will continue the work NAELA has done to address this
key issue. n
27
NAELA Well Represented at the Third
World Congress on Adult Guardianship
By A. Frank Johns, CELA, CAP
NAELA had a significant presence
at the Third World Congress on Adult
Guardianship held from May 28–30,
2014, in the Washington, D.C., suburb of
Crystal City. Presenters from NAELA included
Past President Rebecca Morgan, CAP; Board member
Professor Roberta Flowers; NAELA Vice President Catherine Seal, CELA; Board member Wendy Cappelletto, Esq.;
founding member Professor Lawrence Frolik, CAP; Past
President Bernard Krooks, CELA, and this author.
The subjects of their presentations covered a broad spectrum focused on planning and implementation of Article
12 of the United Nations Convention on the Rights of
Persons with Disabilities.1 Additional information about
the presentations can be found at http://national
guardianshipnetwork.org/. Many of the papers and more
thorough academic articles will be published in the Journal
of International Aging, Law and Policy in fall 2014. Additional information is available from the National Guardianship Association, www.nga.org.
This article, provides highlights of the conference. On
May 28, the author, as chair of the National Guardianship
Network, convened the Congress along with Jochen ExlerKönig, Germany, chair of the International Guardianship
Network. The opening keynote session was presented by
the Hon. Kathy Greenlee, Administration for Community
A. Frank Johns, CELA, CAP, is chair of the National Guardianship Network, a NAELA Past President, and a Fellow of
the Academy.
1 Article 12 of the United Nations Convention on the Rights of
Persons with Disabilities, http://www.un.org/disabilities/default.
asp?id=272.
28
Living and Assistant Secretary for Aging,
who shared her perspective about embracing a person-centered approach to guardianship. She suggested that this approach
enables caregivers and guardians to continue
to recognize and respect each individual’s preferences.
Throughout the Congress, the judicial approach to personcentered guardianship was compared to the non-judicial approach of supported decision-making promoted in European
countries, Canada, and Australia.
In the afternoon general plenary session on “PersonCentered Guardianship and Supported Decision-Making
in Six Countries,” a panel of international guardianship
experts from around the world spoke on person-centered
guardianship and supported decision-making from their
countries’ perspectives. The international guardianship experts who joined me in this session included Law Professor
Makoto Arai from Japan, Professor Kees Blankman from
the Netherlands, Dr. Christer Fjordevik from Sweden, Sue
Field from Australia, Professor Rob Gordon from Canada,
and Professor Tanya Richmond from the United States.
Also participating in the session were Professors Rebecca
Morgan and Roberta Flowers from the Stetson University
College of Law, who moderated and facilitated the 90-minute session with the development of questions through a
transponder system that posed questions that emphasized
interaction between the panel and participants. An article
will be developed by participants on this panel that will
include an analysis of the questions and answers to be published in the Journal of International Aging, Law and Policy
mentioned earlier.
On May 29, the morning general session of the Congress was opened by Sharon Lewis, Principal Deputy Administrator of the Administration on Community Living.
Lewis offered her own personal story about her 17-year-old
daughter Zoe — for whom she will provide supported
decision-making but no guardianship. She suggested that,
“Health care providers must do no harm, aka patient centered care. We don’t do a good job with individual needs
and wants.” She asked rhetorically, “What harms are appropriate in guardianships?” She then ran through numerous areas of harm, asking if they were appropriate harms.
She suggested that a self-fulfilling prophecy occurs that
limits self-decisions. Lewis quoted Burton Black on the
freedom to make choices, “…each of us makes thousands
of choices — many of them not in our best interest.” She
asked why we shouldn’t allow persons with disabilities and
vulnerabilities the same freedom to make bad choices. She
also quoted Robert Perske from four decades ago — assisting individuals versus intervening in their lives in order to
“protect them from harm.” Lewis was followed by a panel presentation that opened
with Jenny Hatch, a person with Downs Syndrome.
Hatch eloquently described her personal fight for freedom
from under the demeaning horrors of guardianship in her
Virginia community. At times tearful, her voice trembling
with emotion, she told of how she was denied access to her
own church, denied returning to her own job, denied living
with those she identified as friends and family. Hatch said
she was yelled at, and even hit by those who were supposed
to help her achieve a quality of life. She lamented how she
lost a year of her life fighting for her independence and
declared what a horrible thing it was to experience the loss
of her rights. As Hatch ended her comments, she stood
defiantly, thrusting her fist in the air, shouting, “I have my
rights, I have my freedom back!”
Hatch was followed by Tina Capelletta with Quality
Trust, the organization that assisted Jenny in achieving full
restoration, and Kristen Glen, former judge in Manhattan,
New York, providing comments on cases where she wrote
decisions focused on a constitutional basis for person-centered and supported decision-making.
The last day of the Congress opened with a showcase
general session on reform in Japan and China. Prominent
academics presented the difficulties in their countries
when confronting their large aging populations. Professor
Arai described the law changes in Japan since the passage
of the Guardianship Act in 2000. Professor Rebecca Lee
followed with her own description of how the more than
200 million elders in China (15 percent of the population)
are served. She mentioned the hierarchy of family as the
primary guardian. She suggested that there is a preference
of collectivism. China reform came last year with the enactment of the law on protection of elderly, suggesting that it
remains based on Confucian tradition. These differences
in Japanese and Chinese practices of protection based on
guardianship law are compared to other countries like Turkey, where Professor Seyman described the Turkish system
of guardianship that is modeled after Sweden.
In the final general session of the Congress, selected
speakers gave their reflections on the Congress, accompanied by the announcement that the site for the Fourth
World Congress on Adult Guardianship in 2016 would be
in Berlin, Germany. n
Special Needs Law attorneys throughout the country contribute a great deal to their communities by educating those with
special needs, their families, and caregivers about their legal
needs. By participating in National Special Needs Law Month,
you can help spread the word about NAELA — to establish
NAELA members as the premier providers of legal advocacy,
guidance, and services to enhance the lives of people as they
age and people with disabilities — and reach out to your community and let them know about your practice and ways you
can help them. Here are a few activities you might consider:
• Conduct a Living Will/Health Care Proxy Day;
• Give a seminar on financing long-term care;
• Provide pro bono services; or
• Reach out to a local disability advocacy organization.
National Special Needs Law Month Toolkit
NAELA has put together a Toolkit to help you get started. You’ll
find a sample outline for a presentation, a press release announcing your event that you can personalize, a newspaper article for your local paper, and more. For more information, sign in
to www.NAELA.org, then go to Meetings and Events > National
Special Needs Law Month > Toolkit. Don’t forget to let us know
what you do in October to celebrate National Special Needs Law
Month by sending an email to [email protected].
29
Interactive Hands-On Learning
Join Us for the First NAELA Summit
By Jennifer VanderVeen, CELA, and Gregory French, CELA, CAP
A unique learning and networking experience.
O
n behalf of the Summit
Implementation Committee, we would like
to invite and encourage you to join us for the inaugural
NAELA Summit being held January
29–31, 2015, at the beautiful Island
Hotel in Newport Beach, Calif.
The Summit is the kickoff event
for NAELA’s new Education Plan.
NAELA’s Programs and Publications
Steering Committee has been developing this new plan since 2012, and
we are excited to see it come to life.
a conference or meeting of highlevel leaders. The NAELA Summit
combines these two definitions into
a unique learning and networking
experience.
The concept behind the Summit
is to take the information that we
share through the pre-conference
online component and apply it in
Newport Beach to client and drafting situations. Through discussion,
www.NAELA.org/2015Summit debate, and the application of information, the Summit will challenge
even the most advanced practitioner with thought provoking, interactive, hands-on learning.
What is the NAELA Summit?
As a wise NAELA member once pointed out, NAELA
is not a group or an association, rather, we are an academy,
which is defined as a place of study or training in a special
field, or as
Summit Implementation Committee
a society or
Gregory French, CELA, CAP, Co-Chair
institution of
Jennifer VanderVeen, CELA, Co-Chair
distinguished
Julie Fiedler, CELA
scholars,
Howard Krooks, CELA, CAP
artists, or
Will Lucius, Esq.
scientists,
Rebecca Morgan, CAP
Stuart Zimring, Esq., CAP
that aims to
promote and
maintain standards for that particular field. Alternatively,
a summit is the highest attainable level of achievement or
Jennifer VanderVeen, CELA, and Gregory French, CELA,
CAP, are the Summit Implementation Committee Co-Chairs.
30
Summit Programming Outline
We’ll get things started with a high-energy, interactive keynote workshop by renowned dementia educator
Teepa Snow. The Summit then offers 21 breakout sessions
designed to solve real-life problems when you return to
your office. In furtherance of NAELA’s commitment to
being the leader in Elder and Special Needs Law, Summit attendees will explore a wide range of substantive and
practice issues through sessions that offer hands-on participation and opportunities to learn and draft documents in
small groups.
The Summit schedule is built for longer, more in-depth
exploration of concepts and issues critical to the practice of
Elder and Special Needs Law. Ninety-minute, interactive
sessions will be followed by 30-minute breaks to visit with
exhibitors, catch up with old and new friends, and enjoy
the California sunshine.
Preview of a Few of the Topics
Covered at the Summit
When Your Clients Aren’t The Brady Bunch
• Practice Medicaid planning for blended
families and learn techniques to make all
sides of the equation feel that they are being
treated evenly and fairly, including how to
maximize the CSRA without benefitting one
set of children over another.
Continuing Your Practice Through Hell and
High Water
• Whether you’re preparing for retirement or incapacity, or to ensure that day-to-day operations continue
in the event of a natural disaster, participants at all levels
of practice will develop checklists and prepare their
practice for any such eventuality, including taking over
an established practice whether by plan or not.
Beyond the Form: Making Your Financial Power of
­Attorney Work for Your Clients
• Draft specific provisions for a variety of Elder and Special Needs Law situations and maximize their acceptance
by third parties.
Applying for Social Security at the Right Time
• Maximize Social Security benefits for single and married
clients with different work history, family, and health
circumstances.
Clearing the Fog: Helping Clients Understand Medicaid
and the Planning Process
• Practice tips and tricks and use tools and forms to help
clients understand the Medicaid planning process, including terms, the application process, and how to manage the nursing home resident’s finances on an ongoing
basis.
Advanced Drafting Considerations for First Party and
Third Party Special Needs Trusts
• In two separate sessions, draft first party and third party
special needs trusts that maximize public benefit and tax
opportunities and avoid potential problems.
Pre-Summit Learning and Networking
Opportunities
Don’t wait until January to start your Summit experience. Beginning this fall, online taped webinars for the
Summit breakout sessions will provide valuable information that participants will apply at the Summit breakout
sessions. As a member benefit, a Listserv just for Summit
attendees will provide the opportunity to get to know one
another, set up dining groups, and suggest topics for conversations during breaks and morning walk and talks. On
the Summit community page, you’ll be able to share documents and clauses that will be examined at the conference.
We know that learning at NAELA events often happens during conversations in the hallway or over drinks
in the evening. The Summit will provide new networking
and social events to allow participants to get to know one
another and learn from one another. Morning walks (and
runs) and coffee groups will allow participants to determine
the topics of conversation that are important to them,
while post-session receptions allow you to kick back and
relax with exhibitors, teachers, and fellow participants to
share thoughts and ideas. You also will get a chance to get
to know other NAELA members and share practice tips,
speed-dating style, prior to the opening reception. Multiple
off-site dining options within walking distance will allow
groups to network over dinner in the evening.
The Island Hotel in Newport Beach, Calif., is the
perfect choice to host the Summit for the next three years.
The resort really does have something for everyone: Pacific
Ocean beaches, theme parks in nearby Los Angeles, and
average January temperatures in the 60s. The area immediately surrounding the hotel — Fashion Island — features
a multitude of shopping opportunities and more than 20
world-class restaurants from celebrity chefs, including Rick
Bayless and Roy Yamaguchi. The resort is easily accessible
from John Wayne-Orange County Airport, with direct
flights available from much of the country.
There are space limitations, so register early. The first
Summit will be an educational event unlike any other. n
31
PRSRT STD
US POSTAGE
1577 Spring Hill Road, Suite 310, Vienna, VA 22182
PAID
PERMIT No. 20
BURLINGTON, VT 05401
Change Service Requested
2015 NAELA Summit • January 29–31, 2015
Island Hotel Newport Beach, California
www.NAELA.org/2015Summit
Plus the NAELA
Advanced Elder Law Review • January 27–28, 2015
Visit www.NAELA.org/2015Summit to register.