INTRODUCTION

1. Don’t forget
1. Will/Trust—estate
2. HIPPA—health care release
3. Durable POA—property, can include health care decisions
4. A.D.—health care decision making
a. Living Will: end of life decisions already made
b. A.D.: allows someone else to make decision
c.
2. Generalizations of Elderly
1. Loss of Mental Capacity – dementia and short-term memory loss
2. Retirement – loss of income = inability to pay health care costs (SS
= 40% wages)
3. Physical Decline – lose autonomy, less energy
4. Social Isolation
5. Lots of Free Time
3. Terminology
1. Gerontology—the social science of aging
2. Geriatrics—medicine for elderly patients
3. Long-term care—catchall category for services in homes, assisted
living facilities, and nursing homes that support people with chronic
illnesses
4. Dependency ratio: worker to elderly
a. 197018:100; 200020:100
5. Generational justiceHow much do the young owe the old?
a. The question is not simply what do the young owe the old, but
rather, what constitutes a strong, healthy society?
b. Critique
i. Younger taxpayers are asked to sacrifice unduly, b/c
excessive taxes to benefit relatively well-off.
ii. Social justice demands that the elderly lose their
preferential spot so that others more needy, such as
children living in poverty, can be served.
4. Stats
1. 2006: 37 million 65+, 12.5% of population (Boomers turn 65 in
2011)
a. Expected 54 million (16%) in 2020
b. Cause: high birth rates after depression
2. 1.5 million in nursing homes, 5% on any given day
3. Life Expectancy
a. Women – 19 years past 65 (100:70 women to men 65+; 100:41
85+)
A. 75% of older men are married, only 43% of older women
B. 4:1 widows to widowers
b. Men – 13 years past 65
c. Minorities: boom will trail that of white population b/c higher
birth rates, shorter life spans, immigration
patternsdisproportionate benefits programs

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 5. Three Legged Stool of Retirement
1. Savings (pension)
2. Employment Related pension (deferred payment for prior work)
3. Social Security
6. Financial Stability for Elderly
1. Save More
2. Increase Pensions
3. Cut SS altogether – Individual Savings Accounts
4. Raise SS Tax
5. Children care for Parents
7. Physical Effects of Aging
1. While severe memory loss is a sign of illness
2. Mild memory loss is common among some in their 70s or 80s.
a. Is confined to very specific brain regions and most people
“compensate”
3. Acute conditions (short-term injuries or illness) ↓ with age.
a. The number of days of restricted activity resulting from each
acute condition ↑
4. Chronic disability among older Americans has sharply declined in
the last 20 years.
8. Unique Circumstance of the Elderly
1. Mortality and haste
2. Declining physical and mental health
a. Some suffer serious losses of physical and mental capacity
that cause them to become dependent on others and less
capable of defending their rights and interests
b. Alzheimer’s Disease and Related Disorders: Typically
progressive decline in cognitive and emotional integrity over
8-10 years
c. Chronic Illness: Are disproportionately experienced by the
elderly, include atherosclerosis, cancer, emphysema,
diabetes, cirrhosis, and osteoarthritis.
3. Economic Vulnerability
a. In 2003 the median income for unmarried elderly women
was $13,775.
i. 20.4% of elderly women live in poverty
ii. Over 59% of the elderly poor are women.
iii. Elderly black women, 40.3% below the poverty rate line.
b. Unmarried elderly men, $17,359.
i. 13.6 % of elderly men in poverty
c. The older the person, the more likely they are to be poor.
i. 75+  poverty rate is 11.6 %.
4. Dependence on the Young
a. Formal Assistance: the original mandate of the Older
American’s Act to make assistance available to all older
people regardless of means
b. Family and Social Networks

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 i. Married women can expect widowhood of eleven
years.
ii. Participation in organizations, clubs, or religious groups
is strongly related to the sex of the elder (women use
more), social class (↓ as wealth ↑), and the degree to
which the individual was involved with the organization
earlier in life.
c. Family Support Statutes
i. 30 states had filial responsibility laws in 2002.
ii. Two models:
1. Requirement that an adult child with the
financial means support a parent b/c of the
existence of the relationship btw them.
2. Allows the adult child, upon suit for support of a
needy parent, to offer evidence that the
parent failed in fulfilling the duties of
parenthood and thus is not worthy of support by
the child.
5. Age Discrimination
a. Financial Justifications
i. Right and proper to help the elderly + the desire to
protect one’s own old age + relief from having to
directly assist older relatives public assistance for the
elderly.
b. Health Justifications
i. Medicare
1. 20% of public and private expenditures
2. Serves 36 million elderly individuals
3. Total expenditure in 2005 exceeding $340 billion
(1/6 of health care expenditures)
4. Medicare covers about 5% of nursing home
expenditures, which cost approximately $70,000
annually for a single resident.
ii. The law authorizes advance directives to enable the
patient to refuse treatment.

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COMPETANCY
A. Autonomy v. Protection
1. Autonomy, freedom, and personal power↑ risk.
2. Protection for the elderly is often is antithetical to autonomy.
3. The value of protection must be balanced against the need for
autonomy and independence.
B. Ethical Considerations
1. Conflict of Interest: IN RE GUARDIANSHIP OF LILLIAN P. [55]
a. General rule
i. A lawyer shall not represent a client if the
representation of that client will be directly adverse
to another client, unless:
1. the lawyer reasonably believes the
representation will not adversely affect the
relationship with the other client; and
2. each client consents in writing after
consultation.
ii. A lawyer shall not represent a client if the
representation of that client may be materially
limited by the lawyer’s responsibilities to another
client or to a third person, or by the lawyer’s own
interests, unless:
1. the lawyer reasonably believes the
representation will not be adversely affected; and
2. the client consents in writing after consultation.
b. Waiver Requires
i. By the attorney
1. Knowing and voluntary disclosure of:
a. The existence of all conflicts or potential
conflicts in the representation;
b. The nature of the conflicts or potential
conflicts, in relationship to the lawyer’s
representation of the client’s interests; and
c. That the exercise of the lawyer’s
independent professional judgment could
be affected by the lawyer’s own ;interests
or those of another client.
ii. By the client:
1. An understanding of the conflicts or potential
conflicts and how they could affect the lawyer’s
representation of the client;
2. An understanding of the risks inherent in the
dual representation then under consideration; and
3. The ability to choose other representation.
c. Dual Representation
i. MR 2.2 acknowledged one form of common
representation in which the clients remain separate

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 persons but are joined by their intention to relate to
each other.
ii. The lawyer must keep the confidentiality of each
individual, but must waive confidentiality with regard to
the lawyer’s communication with them.
d. Family Representation
i. Rules Determining Ability to Represent
1. MR 1.7: whether the attorney can fulfill his or her
obligations to each individual, which include
loyalty
2. MR 1.1: competency and diligence
3. MR 1.1/1.2: zealous advocacy
4. MR 1.4: communication sufficient to enable the
client (i.e., the designated representative of the
family) to make informed decisions about the
representation
e. Payment
i. MR 1.7: The payment of a lawyer’s fee by another is
permissible, so long as payment does not compromise
the loyalty of the lawyer to the client.
ii. MR 1.8(f)(1): A lawyer shall not accept compensation for
representing a client from one other than the client
unless the client consents after consultation.
2. Confidentiality and Withdrawal
a. The Real Property Section Recommendations:
i. The lawyer may assume that each spouse will fulfill the
ethical obligations of the marriage commitment
ii. The ethics rules should be construed to “provide
appropriate delivery of legal services without excessive
cost or duplication of services, and fulfillment of client
expectations about the lawyer’s role whenever
possible.”
b. If, after giving consent, one of the spouses confides in the
attorney and requires confidentiality on any matter touching
on the representation, the attorney is obliged to withdraw
from the representation of both without divulging the
“secret.”
C. Competency Considerations
1. Requirements for decision making:
a. Possession of a set of values and goals;
b. The ability to communicate and to understand information;
and
c. The ability to reason and to deliberate about one’s choices.
d. Must have an emotional state consistent with the task.
2. The level of understanding required varies according to the
consequences of the decision.
a. Mental Disorders

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 i. Clinical syndromes are clusters of symptoms, signs, and
impairments that tend to occur together and have a
distinct natural history.
b. Psychiatric History and Mental Status Examination
i. Purpose: obtain information relevant to decisions about
diagnosis and functional capacity.
ii. Mental status examination: formal process by which
physicians discover the presence of signs and
symptoms of specific psychiatric disorders.
1. Check: Motor Activity, Form of Talk, Mood, Belief,
Perception, Cognition
3. Problems in Assessment:
a. Underestimating the patient’s ability;
b. Relying solely on a diagnosis;
c. Lack of independent assessment, relying only on past records
or hearsay reports; and
d. Failure to consider the patient’s life history-adaptive
behaviors, social skills, values, beliefs, personality traits and
characteristics, and past psychiatric history.
D. Assessing Mental Capacity
1. Process
a. Medical professional, a mental health professional, and a
community health professionalassess the individual’s
function in his or her environment.
2. Medical Assessment
a. Over 60 physical conditions have been found to produce
symptoms similar to dementia, including vitamin
deficiencies, depression, and mild strokes.
b. A thorough geriatric assessment requires a specialist who
may need to see the older individual repeatedly and run a
series of tests to produce a profile of the impact of physical
condition on that individual’s mental and emotional
functioning.
3. Psychological Assessment
a. Tools: standardized tests and assessment interviews.
b. Memory impairment is apparent symptom of dementia
i. inability to remember recent events and info. such as
names, telephone numbers, conversations, and
directions.
ii. An individual with impaired abstract thinking will have
trouble with new, complex tasks, and may avoid them.
c. A common test: find similarities and differences in related
words.
d. Impaired judgment and impulse control might be observed
4. Functional Assessment
a. Inventory of basic activities of daily living (eating, walking,
talking, dressing) and instrumental activities of daily living
(making appointments, paying bills, using the phone)

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 b. Functional Concept: The respondent can counter evidence
of mental incapacity by a showing of functional capability.
5. The Quality of the Respondent’s Decisionmaking
a. Not the quality of decision making but whether the individual
can make a rational decision that is at issue.
i. Tn. Dept. Of Human Services v. Northern [dead feet]
1. Incapacitated b/c refuses to consider impossibility
2. Compare with Lane v. Candura: “high degree of
awareness and acuity when responding to
questions concerning the proposed operation”
b. The abilities considered:
i. Communicate a choice;
ii. Understand relevant information;
iii. Appreciate the nature of the situation and its likely
consequences;
iv. Manipulate information rationally.
6. Vulnerability [Deffenbaugh v. Claphan]
a. Grandson stole but still deeded home to him and got rid of
daughter as guardianhad reasons (no need, daughter bossy)
E. Confidentiality and Incapacity
1. May take actions w/o consent to maintain the status quo or to avoid
irreversible harm, if;
a. An emergency situation exists in which the client’s
substantial health, safety, financial, or liability interests are at
stake;
b. The client, in the lawyer’s good faith judgment, lacks the
ability to make or express considered judgments about action
required to be taken b/c of an impairment of decision-making
capacity;
c. Time is of the essence; and
d. The lawyer reasonably believes, in good faith, that no other
lawyer is available or willing to act on behalf of the client.
2. MR 1.14 cmt: even if client has a guardian, the attorney “should as
far as possible accord the represented person the status of a client,
particularly in maintaining communication”

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THE ELDER LAW PRACTICE
A. Firm Structure
1. Three models
a. The traditional firm: approaches elder law from its
background in T&E, emphasizes financial and property
management.
b. The clearinghouse firm: offers expertise on community
and social-service resources, in addition to traditional legal
assistance.
c. The umbrella firm: also provides services beyond
traditional legal counsel and financial management. It
furnishes direct, non-legal services performed by members
of the firm’s staff and refers clients to community social-
service providers. It may also serve as fiduciary for a client.
2. Multidisciplinary Practice
a. In a fully integrated MDP services are usually offered by
captive law firms or attorneys who provide legal services
subject to the supervision of non-attorneys.
B. Staffing
1. Compliance with State Bar Rules
a. MR 5.7: covers responsibilities in law related services
1. Lawyer must take reasonable measures to assure that
people receiving non-legal services by the firm know
they are not legal services and no lawyer-client
applicable rules
2. Social Worker
a. Caseload usually ranges from 40 to 70. 1
1. When client demands exceed the case manager’s time
and expertise, financial management is the service
most likely to be delegated to another staffer with a
minimum of additional effort.
b. Conflicts btw social work ethics and legal ethics
3. Securities Analyst, Financial Planner or Certified Public
Accountant
a. Financial manager maintains individual client accounts,
makes recommendations to the attorney concerning
periodic investments, drafts checks, processes insurance
claims, develops insurance portfolios and provides
accounting and tax analysis and preparation.
b. Initially cheapest to purchase these services is through a
consulting contract or part-time department officer or
financial planner
c. CPAs have a code of ethics that should be examined against
the ethics of lawyers.
4. Paralegals
a. Clients will nearly always agree to consult b/c financial
benefit of the ↓ hourly fee.
b. Four common tasks:

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 1. identifying client needs by determining from the client’s
story the issues which require legal or other advocacy
assistance;
2. providing assistance through informal advocacy (a
telephone call or letter to a public agency);
3. serving as an intermediary by informing clients of the
issues raised by their claims, identifying the type of
legal assistance needed, and making referral to an
attorney or legal services program, when necessary;
4. acting as a group or community spokesperson by
speaking out on behalf of the elderly at public hearings
or by contacting a public agency concerning a
systematic or administrative problem which causes
difficulties for many clients.
C. Bonding and Insurance
1. What: Posting a surety bond when firm workers provide in-home
services in case of allegations of loss or theft.
2. How: Insurance coverage typically in the form of a policy for
professional errors and omissions.
a. Must provide coverage for the attorney or staff member
acting in any of the variety of fiduciary capacities, including
trustee, guardian, or conservator.
b. Should cover other staff members who provide direct
services, such as help in the home or in transportation.
D. Limited Purpose, Discrete Task Representation
1. “Unbundling” or discrete task legal representationwork on a
specific issue only for client
2. Attorney Concerns:
a. absence of an ongoing attorney-client relationship
b. fear of ethical violations
c. court censure if the judge is critical of a client’s self-
representation
d. malpractice liability
e. worry about the client’s success as a pro se litigant.
3. Client Concerns:
a. whether the client can solve the problem better with
discrete task representation than independently;
b. whether the service will actually result in a solution to the
problem; and
c. what to do if the discrete task representation does not solve
the problem.
4. Model Rule Considerations
a. Cmt 1: skill of the general practitioner
b. Cmt 2: skill and knowledge, training and experience in the
field in question. . . preparation and study
c. Cmt 5: “inquiry into and analysis of the factual and legal
elements of the problem, and use of methods and

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 procedures meeting the standards of competent
practitioners.”
E. Counseling Older Clients
1. Interviewing and recordkeeping: Must be thorough to anticipate
medical and housing costs in the future
2. Practical Concerns
a. Go to client’s home if necessary
b. Good, indirect lighting
c. Minimize background noise
d. Schedule longer interviews
e. Pay attention to personality changes
3. View from Advanced Age: Asset depletion may decrease self worth
PROPERTY MANAGEMENT – POWER OF ATTORNEY
A. Durable Power of Attorney
1. What:
a. A written authorization for one individual, referred to as an
agent or attorney-in-fact, to act on behalf of another
individual, the principal, for the purposes stated in the
document.
b. Non-judicial method of property mgt. for Incapacitated
c. P caring for other is Agent/or Atty in Fact, and P being cared
for is Principle
d. Durable POA allows POA to continue after Mentally
incapacitated
2. Scope/Powers:
a. Can provide a substitute decisionmaker for all types of
property decisions, is the primary non-judicial method of
property management for an incapacitated person.
b. Rights to manage the property of the principal and to spend
income and principal in whatever manner the principal might
have.
c. The breadth can allow for abuses by a dishonest or inept
agent.
d. May grant Agent ALL RIGHTS to manage property of principle
in whatever manner principle wants (Should do this!!!)
e. WIDE BREADTH of POWER leads to fraud and abuse
3. Creating Durable POA
a. Principle MUST have Sufficient mental capacity to create POA
1. Capacity: similar to that needed to enter into a contract:
the ability to understand the nature of the document and
the significance of signing it
i. Burden of Proof: [Thames v. Daniels]
→ on party alleging incompetence
→ At time of transaction
→ Preponderance of the evidence
b. MUST be in Writing and include appropriate language showing
Principle’s Intent to create agency that will Ø terminate
w/mental incapacity
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 c. SIGN Document signed, NOTARIZE, WITNESSED, and filed
w/Register of Deeds
d. Agent serves w/o Compensation – some provide for pay, but
Agent MUST document to avoid claims of Fraud.
e. Previous adjudication of an individual’s incompetence does
not conclusively bind the trial court in another action where
the person’s competency is directly at issue.
f. Appointment of guardian does not mean mentally
incapacitated w/o appointment of conservator [Thames v.
Daniels]
4. Duration
a. May be REVOKED at ANY TIME by Competent Principle by
notifying the Agent (if Agent Ø Notified, POA is still in effect)
b. NOT Required to ACCEPT POA, some states have penalties
though
4. Formalities in Execution
a. Specifically state that the power is durable to insure that the
agent’s power to act will
b. Insure that the power of attorney is signed, dated, has two
witnesses and is notarized.
c. Have the agent sign means of informing the agent of the
existence of the power and as a means of authenticating the
agent’s signature for third parties.
d. Any person of legal majority may serve as agent, regardless
of place of residence.
e. Successor agents should be named.
f. Don’t name joint agents b/c both agents will have to be
present and agree to any action under the power.
5. Legal Duties
a. Standards of trustworthiness and good faith action required
in a fiduciary relationship,
b. Principal’s legal representative (successor agent or
guardian), a family member, or other interested person
petition the court for accounting.
6. Standard of Review: [Thames v. Daniels]
a. The standard of review is controlled by whether underlying
cause is at law or in equity
1. An action to set aside a power of attorney and an
instrument revoking a power of attorney on the
ground of a lack of mental capacity grounds in
equity.
7. Revocation
a. Statutory revocation occurs upon:
1. The death of the principal;
2. Any method provided in the power of attorney;
3. Being burnt, torn, canceled, obliterated, or destroyed
with the intent and for the purpose of revoking it, by the
principal himself or by another person in his presence

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 and by his direction, while the principal is not
incapacitated or mentally incompetent; or
4. A subsequent written revocatory document executed
and acknowledged in the manner provided herein for
the execution of durable powers of attorney by the
principal while not incapacitated or mentally
incompetent and delivered to the attorney-in-fact in
person or to his last known address by certified or
registered mail, return receipt requested.
b. IN RE: ORD BRUBAKER
1. Revoke if failures by the petitioner to provide
i. any description of the functional limitations
and physical and mental condition of the
alleged incapacitated person, and
ii. to faithfully set forth in their petition the
reasons why a guardianship is sought
c. Guardianship appointment: if person has previous valid
power of attorneylook to state to determine which trumps
8. Termination:
a. Under the common law of agency, powers of attorney
terminated upon the mental incapacity of the principal.
b. Current state laws permit a power to continue to be valid,
i.e., “durable,” even if the principal becomes mentally
incapacitated.
F. Types of POA
1. STANDBY POA
a. Takes Effect at Moment it is signed
b. Confusing b/c Agent & Principle both have mental
competence, so share DM ability
c. Parent will sign POA to kid, but kid holds it until becomes
Mentally Incompetent
2. SPRINGING POA
a. Takes Effect upon Fulfillment of Conditional event
1. Can be incapacity or some other conditional event
2. Occurs upon the incapacity of the principal, i.e., to
“spring” into being upon the fulfillment of this
conditional event
b. PROBLEM! Difficult to decide when Principle Incompetent
(change often gradual, so Physician determination
necessary)
c. STANDARD to Determine Incompetence often included in
Document (Affidavits)
d. Scope:
1. Pennsylvania:

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 2. South Carolina: The authority must be setforth in the
power and may relate to any act, power, duty, right, or
obligation which the principal has or may acquire
relating to the principal or any matter, transaction, or
property, including the power to consent or withhold
consent on behalf of the principal to health care.
G. Problems
1. Stale DPOA – No Cutoff – Nervous looking at Old DPA – Problem
rewriting w/LT Dementia
2. Gifting – Need to provide powers for Medicaid Planning, or to make
gifts (wary of self gifts)
3. Third Party Acceptance – May have to take action to recognize!!!
a. Revocable Inter-Vivos Trusts are preferred by banks and
brokers
b. Solution for Dilution of serious assets – can revoke trustee at
any time
c. AVOID PROBATE w/assets!!!
4. Safe Deposit Box Access Problem
a. Sometimes POA is kept in boxmust have original copy to
enter
b. Some states allow entry for limited purpose of getting POA,
must have affidavit
B. Other Options to Durable POA
1. Joint Ownership
a. Characteristics
1. Property is held jointly but the nature of the interest is
not specified, statutes create a presumption that the
owners are tenants in common ho own equal share

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 2. None of the owners have a right of survivorship to the
others
b. Joint tenancy with right of survivorship.
1. A creditor has no rights to collect against the joint
property after the death of the joint tenant, since the
tenant’s rights in the property were extinguished at
death.
2. During their lives, joint tenants can sever the joint
tenancy and defeat the survivorship interest of the
other owners by selling or giving away their ownership
interestThe new owners become tenants in
common with the previous owners.
c. Purpose
1. In bank accounts or certificates of deposit—create a
“convenience” account, which will permit the younger
co-owner to manage the money for the benefit of the
older person, e.g., deposit funds and withdraw money to
pay bills
2. KITCHEN v. GUARISCO
3. Totten trust: a bank account opened and funded by
one person who holds the funds “in trust for” another
person. Creates a trust revocable by the grantor until
death.
i. Similar to the Totten trust are pay on death
(POD) accounts.

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HEALTH CARE DECISION MAKING
INFORMED CONSENT
A. Basic Concepts
1. BASED on Autonomy and self determination
2. Individual has Right to Determine what is done to their
body
3. MUST HAVE INJURY
4. Based on Negligence or Battery
5. Must be Informed of Risks, Extent of Procedure, Benefits
and Alternatives
6. Informed consent grants patients control of their
medical care.
7. The goal of informed consent is patient autonomy or
self-determination.
8. Merely having the right to decide is meaningless unless
the patient has sufficient information to understand the
consequences of the decision and the possible alternatives.
9. Does not permit a physician to substitute judgment for
the patient [Scott v. Bradford]
a. If treatment is completely unauthorized and performed w/o
consenta battery.
b. If the physician obtains a patient’s consent but has breached
his duty to inform negligence for failure to inform the
patient of his options, regardless of the due care exercised at
treatment, assuming there is injury.
10. Not based on a professional standard [Scott v. Bradford]
11. Full disclosure of all material risks incident to treatment
must be made.
12. No reasonable person standard: To the extent the
plaintiff, given an adequate disclosure, would have declined the
proposed treatment, and a reasonable person in similar
circumstances would have consented, a patient’s right of self-
determination is irrevocably lost. [Scott v. Bradford]
13. To sue, must allege and prove:
a. Defendant physician failed to inform him adequately of a
material risk before securing his consent to the proposed
treatment;
b. If he had been informed of the risks he would not have
consented to the treatment;
c. The adverse consequences that were not made known did in
fact occur and he was injured as a result of submitting to the
treatment.
B. Exceptions
1. Emergency Room Exception
a. Pt Incapable of giving Consent/or receiving Info and time to
obtain consent would place Pt in immediate danger.
b. Applies when Impractical to Consent

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 c. Applies: when the patient is incapable of giving consent or
receiving information and the time necessary to obtain
consent would place the patient in immediate danger, or
“makes it impractical to secure such consent.”
d. Elements to invoke the emergency care exception:
a. there was a medical emergency;
b. treatment was required in order to protect the patient’s
health;
c. it was impossible or impractical to obtain consent from
either the patient or someone authorized to consent for
the patient; and
d. there was no reason to believe that the patient would
decline the treatment, given the opportunity to consent.
2. Therapeutic Privilege Exception – Info Upset Pt so much it would
remove ability to make Rational decision
a. Based on the belief that the disclosure of information would
so upset the patient that he or she would be unable to make
a rational decisionnot really used
3. Patient Waiver
a. In effect gives up informed consent
b. To give valid waiver, Pt MUST know rights given up
c. Valid waiver: the patient must know what rights are being
given up
d. The doctrine of informed consent is not suspended even if the
patient is incapacitated and unable to grant consentmust be
obtained from a surrogate, most often a family member or a
judicially-appointed guardian.
C. Practical Concern:
1. Elderly patient may appear more passive and less “consumer-like”
 interpret politeness and respect as deference to the physician’s
right to control the treatment decisions.
D. Capacity Issues
1. CANNOT give Consent - - - Problem w/Determining when P
Incompetent
2. Determining Capacity
a. Five approaches to evaluating capacity in the informed
consent context: [Payne v. Marion]
1. Evidencing Choice – if individual make any choice =
Competent
2. Reasonable Outcome of Choice – Evaluator agrees
Individual made right/rational choice (emphasizes life
and integrity of medical profession)
3. Rational Reasons for Choice – evaluates quality of DM
and whether Choice based on rational info
4. Ability to Understand – Pt MUST understand risks,
benefits and alternatives of treatments. Focus on
Decision made & what was relevant in making that
decision

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 5. Actual understanding – Patient actually understands
consequences
3. Eccentric or Incapacitated
a. Capacity does not mean making the wisest choice it
means having the capability to choose rationally.
b. Patients who are incapacitated and unable to give informed
consent are still protected by the doctrine since consent
must be obtained from a proxy decisionmaker
c. If the informal solution breaks down or if the medical
personnel later believe formal legal authority is
necessaryguardianship
d. IN RE MILTON
4. Terminal Illness, Brain Death and Persistent Vegetative
States
a. Terminal Illness
1. Irreversible/Incurable disorder where Expected to die
soon despite medical care
2. ONLY Terminally Ill when death very imminent (usually
six months)
3. The New Jersey Supreme Court: death expected w/in a
year
4. Medicare hospice care: life expectancy of six months or
less.
5. Georgia: a condition “caused by disease, illness, or
injury which, regardless of the application of life
sustaining procedures, would produce death.”
6. Some require the more restrictive condition that death
be “imminent.”
b. Brain Death
1. Irreversible cessation of all functions of entire brain,
including brain stem (UDDA)
2. If Brain Stem Alive, then Ø Brain Death b/c Circulation &
Respiration continue!
3. Death of the brain stem terminates the involuntary or
vegetative functioning of respiration
4. Declared when a patient exhibits “(a) unresponsiveness
to normally painful stimuli; (b) absence of spontaneous
movements or breathing; and (c) absence of reflexes.
c. Persistent Vegetative State
1. Brain stem controls vegetative function (continues even
if Hemispheres Damaged)
2. Results from respiratory failure & Leads to permanent
unconsciousness
3. Death of the upper brain leaves the patient
permanently in a non cognitive state – unconscious,
unthinking, and unaware

17
PROXY DECISION MAKING/ ADVANCED HEALTH CARE DIRECTIVES
A. Generally: Either state a person’s wishes and instructions regarding future
medical treatment in the event of incapacity or appoint someone to act as a
surrogate decisionmaker.
B. Living Wills
1. What: an attempt to anticipatorily control the medical decision
making process and is usually directed at life-sustaining treatment.
a. A durable power of attorney for health care names a
surrogate or proxy decisionmaker in the event that the
creator of the power should become incapacitated.
2. Basic Elements
a. Natural death instructions
b. Statutory basis to Control/Terminate life sustaining
treatment
3. Required Elements
a. Terminal Illness Requirement
1. TO APPLY, NECCESARY PT have no reasonable hope of
recovery
2. Must be Incapacitated/Terminal Condition/or Permanent
Unconsciousness
3. Some States have guidelines for # of days
4. One problem is w/PVS not often “lead” to Death. Some
states apply Living Wills.
5. If there is hope for recovery, the living will statute will
not apply, and the incapacitated patient does not have
statutory authorization to terminate medical treatment
if that would result in death.
6. Terminal condition: one in which the patient will die
shortly, regardless of whether the medical treatment is
continued. [see above]
b. Irreversible Brain Disease
1. W/severe brain Disorders, (Alzheimer’s or dementia),
despite substantially reduced Quality of Life, NO OPTION
TO TERMINATE
2. Some States have ALLOW if specifically noted in Living
Will
3. Despite this apparent limitation of living wills, many
individuals will insert a clause in their living will which in
the event of severe dementia will call for a termination
of treatment just as if the individual were in a terminal
conditionbased on common law right to refuse
treatment
c. Forgoing Hydration and Nutrition
1. W/O PT WILL DIE
2. Problem: State Ø consider this to be treatment
3. Feeding tubes - led to problems, such as infections.
4. Formalities of Execution / Other Elements
1. Only a competent adult can execute a living will

18
 2. Must be in writing and signed by the declarant.
3. Two witnesses and some require notarization as well.
a. Preclude anyone with a conflict of interest from acting
as a witness: spouses, close relatives, potential heirs
of the declarant’s estate, the declarant’s physician, an
employee of the health care facility in which the
declarant is a patient
b. If the declarant is in a nursing home even stricter
provisions may apply such as mandating that the
declaration be notarized.
4. Living Will Requires Competent adult signing Document
w/Notarization, and 2 disinterested witnesses (no spouses,
children etc.)
5. Statutory forms
6. Viable unless Individual revokes – Problem if changed your
mind
7. Decision Operative when Dr informed - - - DR Ø required to
ask
8. USED BY ATTENDING PHYSICIAN – NOT JUDGE
5. Duration of Validity and Revocation of the Directive
1. Valid until revoked by the declarant and can be revoked at
any time.
2. Living wills can also be superseded by later statements.
3. The most recent instructions govern
6. Validity in Other Jurisdictions
1. A living will is enforceable if valid in the state where it was
executed or in the state where it is to be enforced.
7. Notification and Liability
1. All statutes provide immunity for the health care personnel
who follow the directions of a living will.
C. Limits
1. Living wills are not the only form of an advance health care
directive.
a. Can use durable power of attorney, authority limited to
health care decisions.
2. The Patient Self Determination Act (PSDA): Requires certain
health care facilities receiving Medicare or Medicaid funds to advise
patients of their rights under state law to execute advance
directives.
a. A health care power of attorney must be in writing and
signed by the principal, but need not be witnessed or
acknowledged by a notary.
b. The Act disqualifies as a surrogate an unrelated owner,
operator, or employee of a long-term health care facility at
which the principal is receiving care.
c. The surrogate must comply with the principal’s individual
instructions, whether oral or written. W/o instructions the
surrogate must act in the best interest of the principal.

19
 d. Unless otherwise stated, the surrogate has broad authority
to agree to or refuse any health care treatment or procedure
to the same extent as the principal.
D. Terms of Life Sustaining Treatment without Formal Advance
Directives
1. Basis under State Law or Common Law right to govern body (Not
lost when lose capacity)
2. IF in PVS, many hospitals Ø pull plug!!! Default is to keep Alive
3. Usually, Families & Hospitals agree on Best alternative
4. State Interest that could be grounds for refusal
a. The preservation of life;
b. The protection of the interests of innocent third parties;
c. The prevention of suicide; and
d. The maintenance of the integrity of the medical profession.
5. Patient Interest [in re Quinlan]
a. Right to privacy
6. Doctors - Omission to continue treatment, even w/knowledge Pt will
die, NOT UNLAWFUL failure to perform Duty
a. Policies – Respect Dying Wishes and Cultural Abeyance
b. Hospitals NOT want Family Disagreement - Reputation –
THIS IS REALITY – NOT LAW
c. NO LONGER THAN 2 Pages
7. Tests for Guardian or POA to Use
a. Substitute judgment – Guardian decide in manner
Individual would.
1. Evidentiary Standard: btw “clear and convincing” and
“preponderance of the evidence” [CruzanConst.
procedural requirement of clear and convincing]
i. STEVENS, dissent: There is no reasonable
ground for believing that Nancy Beth Cruzan has
any personal interest in the perpetuation of what
the State has decided is her life.
2. Factors [Woods v. Kentucky]
i. the patient’s expressed preferences;
ii. the patient’s religious convictions and their
relation to refusal of treatment;
iii. the impact on the patient’s family;
iv. the probability of adverse side effects; and
v. the prognosis with and without treatment
b. Best Interest – Guardian act in Best Interest of
Incapacitated. (Minority)
1. Higher standard; should consider using this too b/c can
be personally liable
i. A corollary to any determination that
withdrawal of artificial life-prolonging treatment is
in the patient’s best interest is that the patient’s
liberty interest to be free of treatment outweighs

20
any interest the patient may have in maintaining
a biological existence.

21
GUARDIANSHIP
BASIC ELEMENTS – When do we Appoint? Who do we Appoint? Strictly a
Legal Question!
A. Basics
1. What: The substitute decisionmaker
2. When: The person is also too impaired to choose someone to make
choices for them, it is necessary to appoint a guardian.
a. NEED Guardian when Individual Unable to make Decision, Ø
when only making bad ones!!!
3. How: Only a court can appoint another to make choices about such
matters as living arrangements, health care, and property
management once the individual has lost the capacity to do so.
B. Rationale
1. Protection of property (and people to a lesser extent) (property
management)
2. Operation by Judicial Element of State
3. Beneficial action by State to help people (informed consent)
4. Protects Incapacitated from fraud (1/2 over 85 have dementia)
C. Modern View
1. Conservative means of holding assets in place, merely preserves
assets!!!
2. Widened group needing Guardian, from insane to senility and
drunkenness.
D. Guardianship Encompasses
1. Three Groups
a. Mentally Ill
b. Developmental disabled
c. Aged (largest population under guardianship)
2. Terms
1. Insanity: applied principally to the mental state of
defendants charged with a criminal offense.
a. Focus on Outcomes: Can this person take care of
themselves? Does condition reject the receipt and
evaluation of information?
b. In many cases, Medical condition affects ability to
process information.
2. Mental illness: used in civil commitment statutes to define
persons who may be involuntarily committed to mental
treatment facilities
3. Incompetency: a legal determination that an individual
lacks the mental capacity to care for his or her person or
property .
3. Why:
4. Dementia is a syndrome characterized by acquired
impairment in at least three of five neurophysical and
behavioral domains – memory, language/ speech, visuospatial
ability, cognition (the ability to manipulate previously learned
information), and mood/personality

22
 5. The number of guardianships has also increased b/c of the
policy of deinstitutionalization
6. The need for property management is often the cause of
guardianship
E. Serving as a Guardian
1. STATE ranks preferences of Guardian
a. Spouse
b. Person nominated by ward in writing
c. Adult child of ward
d. Ward’s parents
e. Relative who has lived with ward six months prior to
incapacity
f. Generally can’t have a felony
2. Other Types of Guardians
a. Professional guardians – serve as Guardian or advise Private
Guardian
i. Fee charged to Estate
ii. Nuns do it for Smaller fee
b. Public Guardians - Officer of Court, Soc. Services
Employee, or Local Gov’t officer
i. States Contract w/Private org. to provide State
guardianship services
ii. Problematic! Overburdened public guardians placing
wards in homes, or CoI b/n role as Guardian and State
worker
c. Bank

DUE PROCESS FOR GUARDIANSHIP

A. Basic Considerations
1. Hearing NOT Adverse – Protective!!!
2. Some very quick w/o Ward/Anyone to defend Ward
present
3. NOTICE Required! (Must petition state to declare
incompetent)
4. To est. Mental Incapacity, NEED Expert Testimony
(Doctor)(Court investigates, too)
5. Presumption of Competence
6. 80% of Wards Ø present (Preferred, but Ø Required).
7. Courts go to Hospital rooms/Homes to ensure person
will be there
B. Elements
1. Notice
a. Virginia statute:
Upon the filing of the petition, the court shall promptly set a
date, time, and location for a hearing ..
A respondent, whether or not he resides in the Commonwealth,
shall be personally served with the notice, a copy of the
petition, and a copy of the order appointing a guardian ad litem

23
 A copy of the notice, together with a copy of the petition, shall
be mailed by first class mail by the petitioner at least seven
days before the hearing to all adult individuals and to all
entities whose names and post office addresses appear III the
petition.
The notice to the respondent shall include a brief statement in
at least 14-point type of the purpose of the proceedings and
shall inform the respondent of the right to be represented by
counsel
the notice shall include the following statement in conspicuous,
bold print: WARNING AT THE HEARING YOU MAY LOSE MANY OF
YOUR RIGHTS. A GUARDIAN MAY BE APPOINTED TO MAKE
PERSONAL DECISIONS FOR YOU. A CONSERVATOR MAY BE
APPOINTED TO MAKE DECISIONS CONCERNING YOUR
PROPERTY AND FINANCES. THE APPOINTMENT MAY AFFECT
CONTROL OF HOW YOU SPEND YOUR MONEY, HOW YOUR
PROPERTY IS MANYOU SPEND YOUR MONEY, HOW YOUR
PKUPAGED AND CONTROLLED, WHO MAKES YOUR MEDICAL
DECISIONS, WHERE YOU LIVE, WHETHER YOU ARE ALLOWED
TO VOTE, AND OTHER IMPORTANT RIGHTS.
The petitioner shall file with the clerk of the circuit court a
statement of compliance with subsections B, C and D.
b. The Uniform Probate Code (U.P.C.) § 5-304(a) requires
service on the following:
The person alleged to be incapacitated and spouse, or if none,
adult children, or if none, parents;
Any person who is serving as guardian or conservator, or who
has the care and custody, of the person alleged to be
incapacitated;
In case no other person is notified under paragraph (1), at least
one of the nearest adult relatives, if any can be found; and
Any other person as directed by the court.
2. Expert Testimony
a. To prove Incompetency under a typical statute requires
medical testimony.
b. The examination of the alleged incapacitated person must
include a comprehensive examination,
c. The comprehensive examination must include, if indicated:
1. A physical examination;
2. A mental health examination; and
3. A functional assessment.
3. Presence and Participation in Hearing
a. The Recommended Judicial Practices comments: “Courts
have the responsibility to evaluate the circumstances of
each case with a view toward balancing avoidance of trauma
for the alleged incompetent with preservation of hislher right
to be directly involved in a proceeding determinative of
fundamental rights. The presence of the proposed ward

24
 could be extremely useful to the court in allowing it to judge
for itself the level of mental incapacity. If a court appearance
would seriously disturb the person, an interview might be
arranged in the judge’s chambers or some less threatening
environment.”
b. May be waived if it would be detrimental to the respondent
1. Michigan law: requires an affidavit, from a physician or
psychologist who has recently examined the
respondent, that the respondent’s attendance would
subject him or her to serious risk of physical or
emotional harm.
4. Burden of Proof
a. BURDEN on Ward to show Competent
b. The burden of proof is on the petitioner, the party claiming
that the older person is mentally incapacitated. Most states
require “clear and convincing evidence” of the
incapacitation. A few states express the burden of proof as
being met by the preponderance of evidence.
5. Representation and Advocacy
a. WARD needs Representation, yet State Ø have Attorney
present (necessary if in coma)
b. MUST act as Zealous Advocate
c. TEST: Do you have Capacity to make rational decision? Must
be aware of choices & conseq
d. Bad Bargain NOT necessarily mean lost ability to make
rational decisions
e. Guardian ad litem, is the representative of the court
empowered to investigate the evidence and present
information.
6. Costs and Fees
a. An individual, who is declared incapacitated and becomes
the ward of a guardian, is responsible for the costs of the
guardianship, including the costs of hearing such as expert
witness fees and attorneys’ fees.
b. Typically the ward is not required to pay if the proceeding
does not result in the appointment of a guardian, on the
theory that no individual should have to pay for an
unpleasant, unwanted experieto pay lOr an unpleasant,
unwanted experience which has no beneficial outsome
petitioners from instituting questionable guardianship
proceeds.
C. Oversight of Guardians
1. Failure to police may lead to Fraud and Abuse.
2. MUST file Financial Records at least once w/in 1st 12-
month pd informing State of expenditures and assets. Many of
these unread, and Ø acted upon!!!

ALLOCATION OF POWER

25
A. Basic Elements
1. Plenary Guardianship
a. Ward WITHOUT Decision-Making powers
b. Unless comatose, WARD has some power to make little
decisions
2. Least Restrictive Alternative
a. Assistance provided by Guardian is Least Restrictive to Pts
Rights
b. Focuses on Family to determine Best-Interest?
c. Limited Guardianship – Means of implementing Least
Restrictive alternative where Guardian granted specific & ltd
rights
B. Types of Guardianship
1. Representative Payee
a. Individual appointed by gov’t to receive federal income
benefit funds on someone else’s behalf where Individual
unable to manage funds personally.
b. SS Admin. & Veteran Admin. - Two largest rep. payees.
c. Usually Legal Guardian, Spouse, Individual w/Strong
concern, or Custodial Friend
d. Obliged to use $ for Beneficiary’s food, shelter, and medical
care, and then anything left over can be used for
dependents
e. Appointed to manage government payments (VA benefits,
SS, etc.)
f. Problem: fraud
g. Benefit: used when ward does not have lots of assets (just
government benefits)
2. Conservatorship
a. Guardian given only surrogate management of property
b. Need some financial management assistance
c. Text says lower standard of showing incapacity
d. Not the case in practicesame standard many places
2. Voluntary Guardianship
a. Individual gives up some power – NO Stigma of
Incompetence
b. Guardianship Diversion – Substituting voluntary service for
guardianship
3. Guardian Ad Litem
a. Temporary Guardian for Adult. Appointed to protect person
who may/or may not lack capacity
b. Investigate & Report to Court – make determination
C. Scope of Guardian’s Authority
1. Basic Powers
a. Exercise ANY Powers given by Court, provided ACT w/Good
faith as Fiduciary
b. MUST take more care w/Ward’s Finances than w/his own
(risks Ø his to take).

26
 2. Standards
a. Best Interests – Guardian makes decisions favoring Ward’s
safety, health, and Financial Security.
1. Eccentric Client – Carry Out decision even if NOT in Best
Interest
b. Substituted Judgment – Decision based on Ward’s
decision
3. Financial Duties and Property Planning
a. B/c dealing w/3rd P’s Property, GUARDIAN MUST:
1. Avoid risks might take w/own Property
2. NOT take ANY Risk which endangers Trust Corpus
b. W/Elderly, Money spent on care worker very impt b/c keeps
out of home
c. Specific Powers requiring Court Authorization
1. Placement in NH/or Mental Institution, Electrotherapy,
Psychotherapy, or Participation in Experiment
2. MAY Spend down Income, but CANNOT spend
corpus/principle without consulting Court
D. Appointing a Guardian ad Litem (takes 6-8 weeks on average)
1. Attorney for petition will draft the petition (petitioner isn’t always
the person you are seeking to have named as guardian)
2. File Petition
a. Make sure petition asks for fees paid for by respondent’s
estate
3. Ask court to appoint a GaL (role is investigator for the court—but
also often is an advocate for the respondent but they aren’t actually
representing them
a. Upon first meeting, has to determine if respondent should
have his own attorney and recommend if needed
1. If no counsel appointed, GaL acts on behalf of
respondent
b. Some states GaL actually acts as a rep. for respondent (not
VA)
c. Judge looks to report of GaL and usually does what is
recommended in report  indicates court is looking at GaL
as officer of the court
d. Note: Costs an average of $5,000 (compare to getting
powers done $500)
1. GaL fee: $600-1200 average
4. Give notice to respondent
a. Sometimes is done by GaL; sometimes family members
b. If GaL does it, they certify in report that notice has been
given
5. Determine:
a. Powers: Statute determines what powers are given
1. Can often add powers
b. Duties: reports on propriety and suitability of proposed
guardian or conservator, based on location, conflicts of

27
 interest, wishes of respondent, recommendations of
relatives,
6. Hearing
a. Family members do not need to be there, but they must be
given notice and opportunity
b. Respondent does not need to be there (only there 20% of
time)
c. Determine what responsibilities guardian should have
d. Needs expert testimony
1. Normally a letter/report/affidavit confirming incapacity
7. Prayer for Relief
a. Should request that petitioner get reimbursed
b. Generally will not get power to sell real estate
c. Should aim for least restrictive but include statutory powers
also
d. Can ask for power to do estate planningOften Medicaid
planning
MEDIATION IN GUARDIANSHIP
A. Considerations
1. The elder’s most powerful “card” may be his or her legal rights.
2. It undervalue those rights even while seeking an amicable
resolution.
B. Arguments Against
1. Incompatibility
a. P: Presumes mediation is designed to resolve disputes in a
dyadic situation  resolve specific disagreements btw 2
parties.
1. An adult guardianship case is neither a traditional legal
dispute nor is it dyadic.
b. The only individual whose interest is at stake in an adult
guardianship case 18 that adultno need
1. Restricts too severely the breadth if issues that may
arise in an adult guardianship case.
2. This argument views mediation in too narrow a way
2. Lack of Protection
a. P: In an adult guardianship case, mediation does not provide
the protection of the adult that is the foundation of the
formal guardianship system, the proceeding for imposing a
guardianship is laden with due-process guarantees for the
adult respondent.
3. Mediation Is Grounded in Self-Determination
a. P: Issues involving an individual with diminishing capacity
are not suited to mediation b/c mediation presumes
participation by individuals who are capable of self-
determination.
1. If the mediator begins an adult guardianship mediation
but then determines that a party has become incapable

28
of participating in the mediation, the mediation will
terminate.

29
SOCIAL SECURITY

BASIC CONCEPTS
A. Entitlement paid to workers who paid S.S. Wage Tax
1. Ø Status program only b/c 65
2. MUST have wages that you paid on for specified time
3. GREATER your wages, HIGHER benefits paid
B. Rationale: Protection against Poverty, Ø as a sole source of income
1. Yet ½ of Elderly use SS as sole income.
2. Average Retiree: $845/month, up to MAX of $18,432/year.
3. Surviving Spouse: Amount spouse would’ve received, if greater than
their benefit.
C. Adopted as Basic Social Insurance.
1. Replacement for lost earnings. (Workers Comp., Unemployment
Insurance, & AFDC)
2. S.S. paid workers too old to work. Relieved middle aged couples
from supporting elderly
D. Other Factors
1. Self-financing.
2. Mandatory [PAGES 151-152]
3. Losses very low whereas Benefits can be very high
4. Administrative costs very low, very efficient program.
E. Elements of Social Security
1. Insurance
a. If injured/killed, provides for your family.
b. SS different b/c everyone contributes, but everyone collects.
2. Welfare
a. Different status necessary to collect.
b. Not Dependent on earnings
F. Notes:
1. Can retire btw 65-67
2. Can retire w/ reduced benefits at 62
3. Supposed to be replacement income
4. Current earnings are taken into account
a. At 62—larger reduction

ELIGIBILITY
A. MUST have JOB subject to OASDI Payroll taxes
1. FICA
a. 6.20% on Wages, up to $80,400
b. All wages Subject to 1.45% Medicare Tax
c. Combined rate on $80,400 is 7.65%
2. Employer Matching
a. Match contributions to FICA
b. Self-Employed - Tax is doubled (SECA)
3. More Aboot Taxes
a. All taxes (FICA & SECA) placed in S.S. Trust Fund
b. Recently taxes exceeded benefits paid

30
 1. Surplus invested in US Gov’t Securities to balance
2. Will be “returned” in 2010 when benefits paid outweigh
taxes collected
c. Regressive – as wages exceed SS maximum taxable earnings,
% of wages paid in SS taxes declines

B. Must Work Required Number of Covered Employment Months

1. Based on quarters of coverage (QC)
a. QC = Three month period where required to make $830.
b. Individuals w/4 times MIN. amount any times during year
credited w/ 4 QC.
2. 40 QC’s (10 years) for Complete Coverage
C. Age 65 (normal retirement age – NRA) for Full Benefits, or 62 for
Partial Benefits (in 2003, 67)
D. INCOME cannot exceed earnings test, or subjected to Reduction
1. Over 65, Ø necessary to comply w/Earnings Test
2. In 2000, may earn up to 17K, and Ø affected (In 2002, may earn up
to 30K)
3. Limited to earned income such as wages, salaries, bonuses,
commission and net earnings –
a. Pension Ø included in this amount
4. If in Excess, Benefits reduced $1 for every $3 of excess earnings for
workers 65-69 and $1 for every $2 earned for workers between 62
and 65
BENEFICIARIES
A. Provides for family in case of Retirement, Death or Disability
B. Spouses & Dependents of Retired Workers
1. Spouse 65+ can collect benefits if marriage lasted at least l year b/f
Spouse entitled to S.S.
a. Reduced benefits available at 62
b. Spouses under 62 eligible for benefits if care for child under
16, or disabled.
2. Spouses of Retired Workers eligible at 65 for > retirement benefits
based on their own earnings or amount equal to 50% of their
spouse’s benefits. (150% of higher benefit)
3. At Death of the spouse, Eligible for Greater of benefits based on
own earnings or 100% of spouses (so at least 100% of higher
benefit)
C. Divorced Spouses of Retired Workers
1. Unmarried divorced spouses receive retirement benefits at 62 if
divorced from worker at least two years and if marriage lasted at
least 10 years
2. Divorced worker need not be retired, but must be 65 & Eligible for
SS.
3. Divorced spouse same rights to choose as current spouse, as in 2,3
above.
4. Rights of a former spouse Ø affect benefit rights of current spouse.
D. Dependents of Disabled or Deceased Workers

31
 1. Unmarried children under 18 Eligible for benefits
2. Benefits paid to dependant grandchildren and great-grandchildren
when parents deceased.
E. Survivor Benefits
1. Spouses of deceased workers fully/currently insured Eligible for
monthly survivor benefits if marriage lasted for at least 9-months.
2. Full benefits paid at 65. While benefits are payable at any age to
mothers or fathers who are widowed w/child under 16/or disabled.
3. Reduced benefits paid to widowed persons Ø caring for entitled
children at age 60 or at 50 if they are disabled.
4. Surviving Unmarried Dependant children entitled to benefits up to
age 18 or 19 if in H.S.
BENEFIT COMPUTATION AND PAYMENT
A. Basic Elements
1. Amount related to Past earnings subject to Wage Tax
a. > Earnings, the > Benefits
b. Reflects Insurance aspect of SS, benefits help w/lessened
income in retirement
2. Average monthly benefit for retired workers in 2001 was $900 (max
is $1660) while in 1999 average for a couple was $1310 (max is
$2746)
3. Some Benefits unrelated to Income
a. Age 72 benefits provide fixed monthly payments to
individuals born b/f 1900.
b. “Special Minimum” benefit applied to workers w/low earnings,
but long attachment to labor force based on # of years
w/specified MIN amount of covered earnings.
4. Monthly Benefit based on PIA – primary insurance amount –
earnings averaged over working career (and adjusted for inflation)
5. Every Beneficiary gets Individual check in their name
6. 1-2% Annual Increase w/Inflation
B. Application for SS
1. Must apply for SS at nearest SS Administration - - if unable to apply
yourself, guardian, caregiver of interested individuals may apply for
you
2. Claimants have Burden of Est. Eligibility for SS
a. Submit evidence proving ID, age, family relationship,
dependency, or worker’s death
b. Copies acceptable, but originals preferred
C. Representative Payees
1. If Beneficiary unable to Receive/Manage payments, upon
application and submission of proper documents, SSA appoints
Representative Payee to receive benefits for claimant.
2. May be from Doctor, or Family/Friends.
3. Operation:
a. Control over SS benefits

32
 b. Appointment Ø render Individual Legally/Mentally
Incompetent. Merely says claimant unable to handle
responsibility of SS check.
4. Rep-Payee Responsibilities
a. MUST use benefits for Claimant’s basic support
b. After that, Rep may use check to support Claimant’s
dependents or pay past debts
c. MUST make periodic reports to SSA on how money spent
D. Overpayment and Taxation
1. Overpayment
a. Recovered by Suspension/Reduction of benefits
b. SSA cannot recover for overpayment if Claimant Ø at fault and
recovery “against equity and good conscience” or “defeat the
purpose of the SS Act”
2. Taxation
a. Higher Income SS recipients subject to Two-Tiered tax
b. 80% of Recipients pay no tax on their benefits w/more than ½
of tax revenues raised by tax being paid by households whose
income higher.
E. Administrative and Judicial Review Process
1. Initial Determination
2. Reconsideration – filed in writing w/SSA w/in 60 days of receipt of
initial determination
3. Hearing – Impt b/c only opportunity to speak
4. Appeals Counsel Review
5. Judicial Review in Federal District Court
PUBLIC ATTITUDES ABOUT SOCIAL SECURITY
A. When Young pay Old, they are making themselves eligible for benefits in
Future (Tradeoff)
B. Workforce today concerned SSA will run out of money when they need it
1. Drying up of Surplus. (2014 & 2041)
2. Changes will need to be made then.
3. Fear it will lead to end of SS.
C. Critics suggest Individual Investment Plans
1. IMPT to remember Employer’s Match contribution
2. If not, Employees Salaries could be higher
SOCIAL SECUIRTY REFORM
A. Reduce Benefits
1. Would enable to provide some benefits longer
2. Which Benefits? Disabled? Children? Those 65-67 (Minority < life
expectancies)
B. Increase Wage Tax
3. Maintenance of Benefits Plan (MB) - increased coverage for state
workers, increased taxation, and investment of funds on the broad
market.
C. Individual Accounts Plan - Increase taxes, but give individuals options
on how to spend contribution

33
D. Personal Security Accounts (PSA) - 5% of Tax managed privately,
thus replacing part of SS.
E. Problems with SS
1. NO TRUST FUND that is running out
2. Ratio of workers contributing to recipients
F. Privatization of SS
1. SSA grew out of Unreliability of Private funds, View may be
changing
2. Partial privatization – divert surplus SS funds into privately
invested accounts
a. Pacifying privatization opponents w/promise that current
public system will remain unaffected, while providing
privatized pensions on ltd basis
b. Most likely INEFFECTIVE b/c Primary Plan remains ineffective
leading to increased costs
3. Porter Plan - Create Individual SS Retirement Accounts for each
worker and funds could Ø be accessed until retirement

34
SOCIAL SECURITY DISABILITY INCOME
A. Basic Elements
1. Program where individuals Ø Eligible for SS can get money
2. Available for eligible aged, blind, and disabled.
3. Not income based, just need based
4. Criteria
a. Can’t do work you did before
b. SS decides you can’t do other work b/c of medical condition
c. Expected to last 1 year or more
5. Note: If you get SSI you qualify for Medicaid
6. Don’t leave lots of assets to disabled individual b/c they will be
depleted for medical costs
B. Factors Affecting Benefits
1. Reduced by Amount of other Income & Support available to
Recipient
a. If live in another’s home & get support only get 2/3 of SSI
b. Recipients in Public/Private institutions who have more than ½
of the cost of their care paid by Medicaid receive the MIN SSI
payment of $30/month while there.
c. Those in Public Institutions Ø covered by Medicare Ineligible.
2. Eligible if Institution is publicly operated community residence w/no
more than 16 residents
3. Payments may be made to residents of Public Emergency Shelters
for homeless for period of up to 6 months in 9-year period.
4. Payments generally reduced by any income ($20 a month are
excluded)
5. Different w/Earned Income. Encourage work, $65 exclusion and
lose $1 for every $2 earned
C. Assets and Property
1. Held asset limit is $2000 for an Individual ($3000 for Couple)
2. House Excluded, as well as household effects and personal goods
up to $2000 in value.
a. Must “intend” to go back
3. Vehicle excluded, if used for essential transportation (cannot
exceed $4500)
4. Life Insurance Policies excludable, if Ø exceed $1500.
5. Real Property can also be excluded as long as reasonable efforts to
sell Ø successful
6. Burial plots (Up to $1500) also excludable.
D. Benefits
1. Maximum Monthly Payment for Individual is $500 and $751 for
couples
2. SSI benefits must be established every year
3. Couples can be eligible even if Ø married, MUST live together
4. If spouse in Care Home receives $30/month, Community Spouse
receives individual rate.

35
PRIVATE PENSIONS
A. Basic Elements
1. 60% of men have private pensions and about 53% of women.
2. More likely in Public Sector & Manufacturing
3. Deferred Wages – More or less wages gained that aren’t paid till
after retirement
a. Incentive to keep working - stay to claim benefits
b. Thus, deferred benefits cut costs of Recruitment/Training

B. Qualified and Non-Qualified Plans

1. Income Tax Advantages of Qualified Plans keys their popularity
2. Qualified Plans
a. Employer may deduct contributions to plan in year made, but
Employee Ø report any income on account of employer’s
contributions until actual receipt of benefits.
b. Income accumulates w/interest, tax free
3. Non-Qualified Plans
a. Employer generally Ø allowed to deduct contributions until
Employee actually receives and reports Income
b. Even though employee Ø have rights to money, still taxed!
c. Usually for Highly Compensated

C. Defined Benefit and Defined Contribution Plans

1. Defined Benefit Plan
a. Promise to Employee by Employer upon retirement, pay
Employee either certain monthly pension/or paid set % of
some formula, usually employee’s highest average wages for
last 3-5 years of employment.
b. Continues for life of Employee & Surviving Spouse
c. Employee makes Contribution to Plan’s Trust Fund w/amount
varying according to projected employee pay and rate of
return on investments.
d. Riskier for Employer b/c Payment depends on Investment
Income earned by Trust

2. Defined Contribution plans (401K)

a. NOT promise any fixed retirement pension. (Ø taxed until
withdraw)
b. Employer promises set contribution each year to Account in
name of Retiree.
c. Sometimes Matching b/n Employee & Employer
d. Limit Employer’s Financial risks b/c benefit depends in part on
income of recipient.

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ERISA
A. Employee Retirement Income Security Act - Intended to usurp state
control of pensions and to provide more protection to retirees
1. Must Fund Future Pensions
3. Provides Tax Advantage to Corporation & Employee
4. Cannot Discriminate in favor of Highly v. Low Compensated
Employees
5. Pension Guarantee Corporation – tax if funds go belly-up
6. Sprague Case – p.276
B. Vesting
1. Time when Employees right to Pension locked in,
even if Employee fired/or quit, Rights said to be vested
2. Congress requires vesting after Five years of
Employment?
3. Can get 20% benefits after 3 years, plus 20%
more each year after until you reach 7-years.
4. Eligible for vesting after 1-year of Employment, or
21 birthday, whichever is Later
st

C. Retirement Age
1. Most plans have Normal retirement age where receive 100% of
benefits (65 or lower)
2. Most plans also provide for lessened benefits in earlier retirement
D. Spousal Benefits
1. Under ERISA, all plans must offer joint and survivor annuities for
Employees married for at least 1-year b/f retirement or death,
unless waived in writing.
2. At Death of Employee, Benefit continues w/no diminution for
Spouse’s life
E. Treatment of Distributions
1. Most pension benefits provided in form of Monthly Annuity
2. May get Lump Sum payment, but taxes need to be paid on whole
amount (unless rolled over to some kind of investment).

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LONG TERM CARE INSURANCE
A. Basic Elements
1. IMPT - Ask what it Covers (Home HC IMPT)
2. Different premiums on Age when Start Coverage
a. 50 yo $802 / 65 yo $1829 / 79 yo $5559
3. MUST have two ADL’s to get benefits from Premiums

A. HYPO: 40 Into NH. 18 die w/in 3-months. 13 stay over

a year. They may pay $50k/year.
B. POLICY SPECIFICS
1. CANNOT cancel Policy for change in health
condition
2. When get benefits, stop paying premiums
3. Window to pay Premiums if you missed.
4. Rates Guaranteed for life, Unless it’s a
Generalized Rate increase
5. NOT cover pre-existing conditions
C. LT Care Insurance NOT Common
1. Difficult to sell b/c many feel very healthy. Some
combine Life Ins. W/LTC Ins.
2. Many burn Assets on custodial care b/f money for
LT Care.
3. CCRC’s require LTC Ins., substantial risk w/o it!

38
MEDICAID
BASIC ELEMENTS
A. What is Medicaid?
1. Major Payer of NH – 50% Nationally (In PA, it is
called Medical Assistance).
2. Aid for Blind & Disabled, too
3. Federally funded (1/2) but State operated.
4. Funds Non-Institutionalized poor elderly &
Medical Care & NH b/c they are medical care
5. Pays difference b/n Income and NH Costs up to
$3,300/month
6. Estate Recovery Law – Lien on value of house
(Very Unpopular)

B. Problems with Medicaid

1. Discrimination
a. Difficult to get Best Dr’s & Care homes b/c NOT participate in
Program
b. Due to reasonable rates for HC, which cuts down on salaries.
2. Nursing Home Admission
a. Difficult gaining admission or readmission after hospital stays
b. Home wants more Private-Pay patients than Medicaid patients
C. Medicare and Medicaid
1. 95% of elders qualify for Medicare with the co pay being
$2605 per person which comes out to be approximately 21% of
household income
2. Medicare makes primary payment for hospital bills,
physical fees and other Medicare covered services. Medicaid
supplements the deductibles co-payments and services not
covered.
3. People who are dually eligible are usually over 85, have
income under 10K and are usually minority or/and female

ELIGIBILITY AND PLANNING

A. Categorically Needy
1. If Eligible for SSI, Eligible for Medicaid.
2. Some elderly (maids, farm laborer, etc) Ø SS Eligible,
and some who get < $530/month. If you either of these, eligible for
SSI.
3. Section 209b– Some states Ø want to SSI to be so easy.
This makes it harder to get SSI.
4. Non-Institutionalized elderly get HC b/c of SSI.
B. Medically Needy
1. MUST pass SSI resource test & have Insufficient
Funds for MC
2. Spend Down Test – Spend income on medical
expenses (NH) until GONE, then get aid (no cap on income)

39
 3. Income Cap – Incomes cannot exceed certain %,
usually 200%, of SS monthly benefit for single person ($1590 a
year)
4. Resource Test – Very ltd resources. May keep
2K in cash & be eligible for NH. May also keep House if married
i. House Exempt! Not have to sell b/f spend down!!! (or plot,
furnishings)
j. Examine H&W at time of first entry. Community Spouse
can keep ½ of resources up to $89,280 (CSR Allowance)
and no less that $17.4 K. Once snapshot is taken, amount
Community Spouse can keep is frozen
k. Other assets must be used to pay expenses!!!
C. Gifts (Planning)
1. Can deny coverage to those Disposing of
Resources < FMV to get Medicaid benefits.
2. Period of Ineligibility – Divide Amount of
gift by Average state cost of one month of NH care in that state
3. Look back – Any gift made 36 months
before NH NOT court toward penalty
4. Permissible Gifts
a. Certain transfers are allowed and
do not count against the 36 months
b. Gifts include transfers of home to
spouse, child under 21, blind or disabled adult, sibling with
equity in house, son or daughter living in house for at least
two years prior to institutionalization.
D. Other Elements
4. Half a Loaf – Suppose have $52, if give away would be 10-month
ineligibility. Instead give ½ of it, would be 5-month ineligibility, but
you can use the remaining $26k for that time!
5. Spousal Impoverishment Protections – Cannot take money from
Community Spouse for Institutionalized Spouse’s care.
6. Annuities – Transfer of assets thru annuities to wife seen as
Disqualifying Transfer in PA
E. HYPO – H&W in Appt w/No Savings. H income $2k/month, while W
$500/month. If H to HN, W
able to get Income to Survive!!! Permissible under Minimum
Monthly Maintenance Needs Allowance (MMMNA). Currently
$1452/month. Automatically, W gets $952 from H. May also get
$2175 if W proves need it! Every $ increases amount Medicaid
pays

40
MEDICARE
A. Basic Elements
4. Older one gets, Less Comprehensive Service and more health
problems.
5. Must Qualify Under SS w/40 Quarters
6. Problem w/HC!!! NO reason to limit Care – demand too much b/c of
fear of death!
7. Covers Acute care, Ø Chronic care, hence 60-day limit.
8. Half of Costs go towards last 6-weeks of Life
D. Eligibility
1. Part A
a. Over 65, paid FICA or SECA taxes thru Employment for MIN of
quarters
b. Disabled under SS Act for at least 24 months (regardless of
age)
c. Needing kidney dialysis
d. 65+, but Ø eligible for SS b/c Ø worked enough, but paying for
coverage
2. Part B
a. Over 65, regardless of employment history
b. Disabled persons eligible for part A
c. Need Kidney dialysis eligible in Part I
E. Benefits and Coverage
1. Part A
a. Coverage for Inpatient hospital services, including hospital
room & board, nursing care, and diagnostic therapeutic
service
b. Ltd benefits in Skilled nursing facility (Half-way house)
2. Part B
a. Wide range of non institutional services not covered by Part
A
b. Coverage ltd only by Medical Necessity of Pt, and subject to
annual $100 Deductible and Coinsurance payments
F. Other Elements
1. Medicare only pays Reasonable charge for Physician. Physician may
increase charge by 15%, and that paid by Pt
2. LTD TIME in FACILITY
a. Hospital Stay
i. First 60-days subject to one-time deductible of
$764 (If beneficiary readmitted to hospital b/f
illness ends, new benefit period Ø begin).
ii. Next 30-days cost $191/day
b. Skilled Nursing Facility (20 days)
c. Home Health Care (Unltd provided meet Medicare
requirements)
d. Hospice (for as long as doctor certifies) – Must give up
Medicare for admission, but if survive, its reinstated.
e. Blood (as much as is medically necessary)

41
 f. After 3-days in Hospital, may enter NH w/in 30-days.
Medicare pays for 30-days in NH, and Medicaid pays for the
rest
G. Level of Care for Coverage of Impatient Care
1. Medically required & Ordered by Physicians
2. Provided in Inpatient hospital setting
3. Beneficiaries must require daily/frequent hospital visits.
4. Beneficiaries must require constant availability of services or
equipment in the hospital
5. Required procedures cannot be provided in outpatient facility
F. Medi-Gap
1. Based on 1992 Legislation – 10 Basic Policies – Must be renewable,
NOT cover PE Cndtn
a. Plan C – Foreign Country
b. Plan J – Best! Covers Drugs. You pay 1st $250, then 50% up
to $3k
2. Basic Medicare coverage Ø include out of pocket costs – Hospital
deductible and 15% physician co-payments can accumulate very
quickly
3. Covers part A deductible and part B 20% co-payment
4. Ltd to those w/o Medicaid

42
TRUSTS

A. Revocable Trusts –Generally

1. A revocable (aka “living” or “inter-vivos”) trust is the most common “will substitute”.
2. Can transfer all of your assets into the trust during your lifetime, w/ control of these
assets and the ability to change or revoke the trust during your life.
3. A “pour-over will” is usually created at the same time: Upon death, it provides for the
transfer of any of assets not already held by the trust into the trust
4. Advantages:
a. Avoids probate
b. Nearly immediate transfer of your estate after your death
c. Maintains privacy
d. Ability to monitor outside trustee’s behavior during your lifetime
e. Can be changed or revoked during your lifetime
5. Disadvantages:
a. Complexity
b. Higher setup costs
c. Additional annual maintenance and costs
d. Does not save taxes
e. Some financial institutions don’t recognize or allow revocable trusts
B. Irrevocable Trusts –Generally
1. Does not give the original donor the ability to revoke the trust, the trust becomes
irrevocable.
2. Any property that surrendered to the trust is treated as a permanent gift to a separate legal
entity.
3. “Irrevocable Life Insurance Trust” (“ILIT”): the trust is set up to own your life insurance
policy and then pay your estate taxes. To maintain the insurance, you “gift” the premium
amounts into the trust, and it then pays the policy. Upon your death, the ILIT, set up as
the beneficiary of the insurance, then pays all your estate taxes. As a result, your
beneficiaries will essentially receive your estate tax-free.
4. Other types of irrevocable trusts include the “Minor’s Trust” (giving you control of when
assets are disbursed to your children), the “Qualified Personal Residence Trust”
(providing for the transition of your house to your children at a great reduction in gift
taxes), and the “Dynasty Trust” (a type of ILIT that can hold compounding assets for
generations).
5. Advantages:
a. Significant Tax Savings
b. Asset Protection
c. Flexibility in Types of Usage
d. Potential of Significant Compounding of Assets
6. Disadvantages:
a. Expensive to set up and maintain
b. Loss of control in your property
c. Generally cannot be changed
C. SUPPLEMENTAL NEEDS TRUST PLANNING
1. Four Typical Situations:
a. Minor – ‘special needs’ child/grandchild

a. Name guardian in a will, even if it is a pour over will

43
 i. B/c it is in public records
b. Adult SN child – often bigger issues: $$ and living situation. May be
advisable to create SNT, even if very high functioning and if there is
money, due to the need for group housing provided by government
benefits

c. Individual rendered disabled due to accident, injury resulting in

funds from lawsuit, or disabled individual receives an inheritance

d. Disabled spouse

2. Disabled Heirs

a. Can set up trusts in certain fashion so that government benefits are

provided but supplemental needs are still allowed
b. Meant to cover basic necessities
i. Housing
ii. Food
iii. Limited Medical benefits
3. Generally
a. If money used for certain things, government benefits can be taken
away
b. Clarify that T is not to displace gov’t benefits, and to be used only
for supplemental needs
c. Upon death of B, money can go back to estate
d. SNT document is a third party trust document (i.e., it is intended to
be created by a parent, grandparent, or other relative); this
document is not intended to hold assets whose ownership is in the
name of the disabled beneficiary (i.e., this trust should not be self
funded, if the intention is to exclude the assets from consideration
in qualifying for public assistance programs).
e. For self funded trusts (i.e., funds belonging to the disabled party are
being used to fund the trust - such as a personal injury award or an
inheritance already in the hands of the disabled party), use a (d)(4)
(A) trust.
4. SNT PROVISIONS WITHIN REVOCABLE LIVING TRUST
a. SNT creates a Special Needs Trust w/in client’s RLT for a disabled
minor or other beneficiary upon the client’s death.
b. Ex: Grantors’ child or grandchild is disabled, and they want to
provide for him/her as beneficiary of their estate plan, but do not
want to cause disqualification from benefits to which beneficiary
might otherwise be eligible. Appropriate for #1 and 2 above.
5. STAND-ALONE DISCRETIONARY REVOCABLE INTERVIVOS SNT
a. This SNT is an alternative to drafting the client’s RLT to
provide for the creation of a Special Needs sub-trust at the client’s
death. The stand-alone SNT would primarily be used where the
client prefers to create an intervivos SNT, perhaps to act as the
receptacle of gifts and/or inheritances from third parties (e.g., from
a Special Needs Child’s grandparent) while the Grantor is alive or

44
 after his or her death. This SNT need not be funded during the
Grantor's lifetime (the Grantor can name the trust as beneficiary of
a share of his/her/their RLT or as beneficiary of life insurance, etc.),
unless your state requires a trust corpus in order to recognize the
validity of a trust.
b. Ex: Same as #1 and 2 above, but where more family members,
others may want to contribute, especially before death, so one trust
is created to receive funds from multiple donors, both during and
after death.
6. STAND-ALONE IRREVOCABLE INTERVIVOS D4A TRUST
a. Can have various grantors (so each grandparent doesn’t have to
create own)
b. Drafted under the provisions of 42 U.S.C. §1396p(d)(4)(A)
c. EX: Disabled person receives an inheritance or personal injury
award, which asset now belongs to him/her, distinct from a third
party wishing to leave assets to a disabled person. Appropriate for
#3 above.
d. Generally
i. Who can establish
1. T Parent, Grandparent, Legal Guardian, or a Court can
establish a trust using the assets of a Disabled Person
under age 65, on the condition that the State will be
reimbursed from trust corpus at the Disabled Person’s
death for any public assistance given to the Disabled
Person.
ii. Restriction on what funds can be used for
1. To be used to establish or preserve public benefits for a
“Disabled Person” as defined under the SSA who has
received or is about to receive assets which would
otherwise disqualify the Disabled Person from receiving
the public benefits.
iii. Upon death of B, money is reimbursed to state
1. Any excess trust corpus not needed for repayment can
be directed to remainder beneficiaries, as the Disabled
Person desires.
2. Because the Disabled Person’s own assets are used to
establish the (d)(4)(A) Trust, there are no gift tax issues
on formation. The residual corpus will be included in
the Disabled Person’s estate at death.
e. The general requirements of this trust are as follows:
i. 1. beneficiary who is disabled under Social Security standards
ii. 2. trust is established and managed by a non-profit
association
iii. 3. a separate account is set up for each beneficiary
iv. 4. trust is established by a parent, grandparent, or legal
guardian of the beneficiary, or by the individual, or a court
v. 5. trust contains a payback clause to reimburse the state for
Medicaid benefits paid but only to the extent that funds do

45
 not remain in the trust; thus, the non-profit association may
retain funds after the death of the individual for the benefit of
other disabled individuals without any payback
vi. 6. trust is for the sole benefit of disabled individuals
b. Use When: This trust is a good option for the client who wishes to
benefit other similar persons after the death of their special needs
child. For a Court created trust, this may also be a good option if it
is difficult to find a trustee for a D4A Trust.
7. TRUST FOR DISABLED SPOUSE
a. Use when: want to protect spouse
a. The types of trusts referenced above cannot be used
for a disabled spouse.
b. The only type of SNT which may be used for a disabled spouse
in order to protect eligibility for benefits is a testamentary
trust.
c. If the circumstances are simple, there are few assets or no
other reason for revocable trust planning, a will creating a
SNT for a disabled spouse is often used. This plan is most
commonly done when the ill spouse has already qualified for
Medicaid.
b. Occasionally, however, a second marriage, other disabled family
members, or other reasons may make trust planning more
appropriate for clients who still need the ability to protect eligibility
for a spouse. In this instance, we use a “pour-back” provision,
which empowers the Trustee to pour assets from the trust back into
the estate. The will in this instance should establish an SNT for the
ill spouse survives the community spouse, retaining assets in the
SNT until the ill spouse passes away, and then distributing the
residue to family members, per stirpes, for example.
c. EX: Husband is elderly, not well, with wife in nursing home due to
Alzheimers. She has already qualified for Medicaid, and despite
Alzheimers, is physically healthy and likely to outlive Husband.
Funds in the SNT enable the adult children to provide supplemental
needs for Wife if Husband predeceases. This is #4 above.
8. Power of Attorney
a. Some special needs people, if over 18, can sign
b. Reduces costs with Guardianship
9. Pool Trust
a. Non-profit organization that handles funds for disabled individuals
b. Gets to keeps remainder of funds when individuals pass away

46