2003 Articles

Adult guardianship mediation: A holistic approach to resolving family disputes By Susan Dawson-Tibbits June 2003 As more Americans are living longer, families are having to grapple with the issues and problems that accompany aging in our society as they assist their elderly relatives.

Book review—Issues in Long-Term Care By Edward J. Mitchell December 2003 The Illinois Institute for Continuing Legal Education has recently published Issues in Long-Term Care.

Book review—Long Goodbye: The Deaths of Nancy Cruzan December 2003 When I was in law school many years ago, I had the opportunity to take an elective course on Law and Medicine taught by a physician.

Booze, gambling and sex: How debauchery can help seniors By Sharon R. Ruby September 2003 755 ILCS 5/11a-2 proffers three distinct definitions of a disabled adult, each of which can serve as the basis for adjudicating a person to be legally disabled and appointing a legal guardian:

Case note: Agent’s power in short form power of attorney for property limited to powers granted by statute without additional language By John W. Foltz April 2003 On March 29, 2002, the appellate court made an important decision re-emphasizing the limitations of the language of the Statutory Short Form Power of Attorney for Property (SSFPOA).

Case note: Medical malpractice certificates not required in nursing home litigation By Lee Beneze April 2003 Eads v. Heritage Enterprises, Inc.; Illinois Supreme Court, No. 92691; majority opinion by Justice Rarick, dissent by Justice Garman, joined by Chief Justice McMorrow and Justice Thomas; filed February 21, 2003

Case note—Federal court denies appeal of ALJ’s denial of medicare coverage of experimental prostate surgery By Steven C. Perlis June 2003 The plaintiff was diagnosed with prostate cancer in 1994.

Check out the elder law Web site By John W. Foltz April 2003 Each section of the ISBA has its own Web site with some interesting and useful information relating to that section's area of practice.

Do-It-Yourself Will kit—For a few dollars more By William L. Cleaver April 2003 Call me a glutton for punishment, but when I saw the ad in a recent Sunday news magazine for the Do-It-Yourself Will kit, I was sure that with the passage of time to further research and develop, the gaps I had found in past publications would have been filled in.

Former council chairs honored September 2003 Two former chairs of the Elder Law Section Council were recently honored by the ISBA.

Fourth District Appellate Court limits authority of guardian to commit nonconsenting ward for mental health treatment By Lee Beneze April 2003 In the Muellner case, the Fourth District Appellate Court addressed the issue of whether the circuit court had the authority to authorize the Office of State Guardian (guardian), serving as the guardian of the person, to place the ward in a mental health facility

GAO reports to Congress: Patient neglect worse than reported by CMS By Marjan Peter Staniec September 2003 The Government Accounting Office (GAO), the investigative arm of Congress, recently reported (July 2003) its findings of quality-of-care conditions in nursing homes, that during the period of July 11, 2000 to January 31, 2002, about 3,500 nursing homes were cited for serious patient care violations--ones in which patients are actually harmed or placed in immediate jeopardy of serious injury or death.

Gayan v. Illinois Department of Human Services: A special needs trust that didn’t work By Edward J. Mitchell December 2003 The appellate court in the Third District recently issued an opinion in Gayan v. Illinois Department of Human Services.

HIPAA: National standards to protect the privacy of personal health information By Rhoda Davis Sweeney June 2003 Have your druggist and physicians recently requested that you sign a "Notice of Privacy Practice"?

Identity theft and the elderly By Marc R. Miller April 2003 Anyone can find their identity electronically stolen and face the repercussions of cleaning up a mess that they originally had no part of. For the Elder Law lawyer, this may involve a client whose financial information is stolen through a credit card, by inappropriate telephone calls or a sales person who takes advantage of the naïveté of an elder person.

The impact of the Medicare and Medicaid reimbursement rates on the quality of care for long-term residents By Lee Beneze September 2003 One of the great pressing issues facing the nation today is that of the cost of health care, including its growing impact on federal and state budgets.

Is it time to modify the Small Estate Affidavit Act? By Daniel C. Hawkins June 2003 Under Illinois law, the beneficiaries of a decedent's estate can avoid probate and use small estate affidavit to transfer assets provided the gross value of the decedent's entire personal estate, including the value of all property passing to any party, either by intestacy or under a will does not exceed $50,000.

Medicaid planning—Understanding the differences between Illinois and federal community spouse asset allowances By Charles LeFebvre June 2003 A senior couple walks into your office with the following problem: One of them has recently been diagnosed with a degenerative disease, which will eventually lead to nursing home placement.

Message from the Chair By John F. Erbes September 2003 Another bar year is underway and I am very honored to be the Chair of the Elder Law Section for 2003-2004.

New state legislation affecting older citizens September 2003 The following bills affecting older persons were passed during the recent session of the Illinois General Assembly.

Railroad retirement/social security dual benefits: beware of overpayments By Larry Smith April 2003 A railroad pensioner's spouse dies. The spouse had paid a substantial amount into Social Security and had received a retirement benefit prior to death.

Scams go to war and to ground zero: Cons adapted to post-9/11 age June 2003 In this newsletter's continuing effort to keep lawyers informed of scams that may affect their clients (or themselves), it is interesting to see how the same basic confidence game adapts to new technology and to new times--presumably because it still gets results.

Seniors and gambling: Is it a growing problem? By Lee Beneze December 2003 Seniors have become a prime marketing target of the gambling industry.

Staying current April 2003 When meeting with "community spouses," make sure you are using the updated figures for the Community Spouse Asset Allowance and the Community Spouse Monthly Maintenance Needs Allowance.

Storm warnings for Medicaid planners By Mark Haney April 2003 ATTORNEYS BEWARE. There's a "storm" on the Medicaid planning horizon blowing in from the East Coast, in particular, from Connecticut

Supreme Court upholds IOLTA funding for legal aid By Lee Beneze June 2003 The United States Supreme Court has made a final ruling on the constitutionality of using IOLTA (Interest on Lawyers' Trust Accounts) for the funding of legal services for low-income persons.

Thoughts on long-term care insurance By Marc R. Miller September 2003 With an aging population driving up the need for long-term care and increased awareness by elder law lawyers of the potential use of long-term care insurance (LTCI), it is becoming more and more important for attorneys to update their understanding of LTCI.

Using and interpreting powers of attorney By John F. Erbes April 2003 A question was posed on one of the ISBA listservs recently about the proper method of utilizing an Illinois Statutory Short Form Power of Attorney for Property