BIFOCAL - American Bar Association
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Virtual 2021 National Aging
and Law Conference
October 6-8, 2021
REGISTRATION NOW OPEN!
BIFOCAL
Journal of the ABA Commission on Law and Aging
Volume 42, No. 6 July - August 2021
Policy Change to
Put the Home
Back Into
Nursing Homes
Guardianships and
Conservatorships in
Oregon - Part 2
Supported Decision Making and
Access to Justice for All
Six Estate Planning Steps to Take In
These Covid Times
Developments in State Adult
Abuse Laws
Elder Abuse Grapevine
Bifocal Vol. 42, No. 6 July - August 2021
119 - Policy Change to Put the Home Back Into Nursing Homes
by Charles P. Sabatino and Charlene Harrington
126 - Guardianships and Conservatorships in Oregon - Part 2
by Judge Lauren Holland
129 - Six Estate Planning Steps to Take In These Covid Times
by Susan Thau and Martin Shenkman
132 - Something to Talk About: Supported Decision Making and Access to Justice for All
by Elizabeth Moran
138 - Elder Abuse Grapevine
by David Godfrey
140 - Developments in State Adult Abuse Laws
by Katlyn Slough
Bifocal
Journal of the American Bar Association
Commission on Law and Aging
Commissioners Staff Bifocal, ISSN 0888-1537, is published six times a year by the
Louraine Arkfeld, Chair Charles P. Sabatino ABA Commission on Law and Aging, 1050 Connecticut Ave.
Karen Buck David Godfrey NW, Ste. 400, Washington, DC 20036.
Judith Feder Elizabeth Moran © 2021 American Bar Association. All rights reserved.
Chasity Grice Sonia Arce The views or opinions expressed herein do not necessarily
Lisa P. Gwyther Trisha Bullock
represent the policies of the American Bar Association unless
Maame Gyamfi
specifically adopted as such.
Martin Hewitt Editor
Hon. Lauren Holland Trisha Bullock
Paul Igasaki Reprint and Reproduction Requests
Catherine Bree Johnston Questions? The ABA hereby grants permission for copies of the materials
Jason Karlawish, MD herein to be made, in whole or in part, for classroom use in an
Sandra Markwood Contact the Commission institution of higher learning or for use by not-for-profit orga-
Karren Pope Onwukwe at 202-662-8696 nizations, provided that the use is for informational, non-com-
Rachael K. Pirner or email: mercial purposes only and any copy of the materials or portion
Casey Ross aging@americanbar.org thereof acknowledges original publication by the ABA, includ-
ing the title of the publication, the name of the author, and the
legend “Reprinted by permission of the American Bar Asso-
ciation. All rights reserved.” Requests to reproduce portions
of this publication in any other manner should be sent to the
American Bar Association Copyrights and Contracts. Please
visit www.americanbar.org/utility/reprint.html.
Policy Change to Put
the Home Back Into
Nursing Homes
by Charles P. Sabatino and
Charlene Harrington
The Green House Project®
D uring 2020 and into the start of 2021, the COVID-19
pandemic swept through U.S. nursing homes and other
long-term care facilities with relentless devastation, inflict-
trated heavily in skilled nursing homes. According to
March 2021 CMS data, nursing home resident and staff
Covid-19 cases combined have totaled 1,196,418, and
ing illness and death on throngs of frail older people and deaths 131,921.3 This means that 74% of all the deaths in
people with disabilities, as well as on their caregivers.1 Ac- long-term care facilities occurred in nursing homes. These
cording to the Kaiser Family Foundation Covid-19 Corona- statistics are all the more stark given the fact that skilled
virus Tracker, as of March 15, 2021, there have been over nursing home residents are less than one half of one percent
1.4 million cases of Covid-19 in long-term care facilities, of the total US population.4
including both skilled nursing homes, assisted living and
other congregate care facilities, accounting for 5% of all At the state level, nursing home resident deaths as a
cases in the U.S.2 More astounding is the death rate which percentage of total deaths varied widely, exceeding 50% in
resulted in nearly 180,000 deaths in long-term care facili- 11 states (the highest being New Hampshire at 70%). In 10
ties, accounting for 34% of total pandemic fatalities in the states the resident percentage constituted less than 25% of
U.S. This article examines the connection between nursing all deaths; and in the other 29 states, between 25% and 49%
home facility size and density and the risk of COVID-19 of all deaths.5 Overall, 5 percent of the country’s cases
illness and death and makes the case for a fundamental have occurred in long-term care facilities, yet deaths related
change in nursing home facility standards that would radi- to Covid-19 in these facilities account for about 38 percent
cally downsize the size and density and physical design of of the country’s pandemic fatalities.6
nursing facilities.
Black, Hispanic, American Indian, and Alaska
Deaths in long-term care facilities have concen- Native populations are disproportionately affected by
1 The Commission on Law and Aging acknowledges the singular assistance of Dr. Charlene Harrington, RN, PhD, FAAN, of the
Uni versity of California San Francisco in the drafting of this report.
2 The Kaiser Family Foundation (KFF) COVID-19 Coronavirus Tracker, https://www.kff.org/coronavirus-covid-19/issue-brief/
state-covid-19-data-and-policy-actions/#longtermcare, updated as of March 18, 2021. The definition of long term-care facility
differs by state, but the KFF data reflect a combination of nursing homes, assisted living facilities, adult care centers, intermediate
care facilities, and/or other long-term care facilities.
3 Centers for Medicare & Medicaid Services, COVID-19 Nursing Home Data, as of Week Ending: 03/07/2021. The data was bro-
ken down by resident cases (641,608) and deaths (130,296) and staff cases (554,810) and deaths (1,625).
4 Centers for Disease Control and Prevention. US Total Cases. https://covid.cdc.gov/covid-data-tracker/#cases_casesin-
last 7 days. Cases and deaths among health care personnel. https://covid.cdc.gov/covid-data-tracker/#health-care-person-
nel Total US Population. (328 million). https://www.google.com/search?q=US+population&oq=US+population&aqs=-
chrome..69i57j69i59.4151j0j4&sourceid=chrome&ie=UTF-8
5 See KFF supra note 2.
6 Id.
BIFOCAL July - August 2021 119 Vol. 42 No. 6
COVID-19 infections. Nationwide data show that the ma- Snapshot of Today’s Nursing Homes
jority of nursing homes with a substantial black or Latino
population (25 percent or more) had reported at least one
COVID-19 case by May, 2020.7 Nursing homes with a
higher proportion of racial and ethnic minority residents in
T he nursing home industry in the U.S. has changed
dramatically over the years. Post World War II, the
nation’s nursing home industry grew primarily from small
Connecticut had 15-16 percent more confirmed COVID-19 privately-owned homes to larger facilities after 1965 when
cases, than similar facilities with less diverse populations.8 Medicare and Medicaid began providing stable funding to
Nationally, nursing homes that had disproportionately more nursing homes that met federal standards. In 2016, there
racial/ethnic minority residents had more confirmed cases were 1.4 million people living in approximately 15,600
and/or deaths.9 nursing homes in the United States.10
The COVID-19 infections and deaths and the The majority of nursing homes today (69%) are
excess deaths in nursing homes are not inevitable. More operated by for-profit corporations; 58 percent are operated
robust federal and state policy directives and nursing home by corporate chains.11 Twenty-four percent are not-for-
actions can reduce nursing home infections and deaths. Re- profit facilities; seven percent
search has identified several aspects of nursing home care are government owned. Over
where policy changes and regulatory oversight can improve time, there has been a decline
US nursing home care, including: in public and non-profit nurs-
ing homes and beds with an
• Nurse staffing and workforce (staffing adequacy, stan- increase in growth by inves-
dards, training, wages and benefits) tor-owned regional and na-
• PPE, testing, and emergency support tional chains. The increasingly
complex nursing home organi-
• Regulation and enforcement
zations with multiple corporate
• Design and environmental standards owners have trended toward
• Transparency and accountability of nursing home own- focusing heavily on profitabili-
ership and management ty for investors.12
• Government payment, financial transparency, and ac-
countability issues The vast majority of nursing home residents, 85
percent, are older than 65 years; 45 percent of residents are
This article focuses on only one of these major risk 85 and older. The majority of residents have chronic ill-
factors, because it is structural in nature, easily identifiable nesses and need assistance with daily living activities and/
and measurable in implementation, and which has been or have cognitive impairments (61 percent). Overall, nurs-
shown to be highly correlated to the rate of infection and ing home residents are a highly vulnerable population.13
death experienced in nursing homes: nursing home design
and environmental standards related to size, design, and
occupancy arrangements.
7 Robert Gebeloff et al., “Striking Racial Divide: How COVID-19 Has Hit Nursing Homes,” The New York Times May 22, 2020,
at A1. https://www.nytimes.com/article/coronavirus-nursing-homes-racial-disparity.html?action=click&module=Well&pg-
type=Homepage§ion=US%20News.
8 Yue Li et al., “COVID-19 Infections and Deaths among Connecticut Nursing Home Residents: Facility Correlates,” 68(9) JAGS
1899 (June 18, 2020), https://onlinelibrary.wiley.com/doi/abs/10.1111/jgs.16689.
9 Yue Li et al., “Racial and Ethnic Disparities in COVID-19 Infections and Deaths Across U.S. Nursing Homes.” 68(11) JAGS
2454 (Nov. 2020).
10 Centers for Medicare and Medicaid Services (CMS). Nursing Home Data Compendium 2015 Edition (2016). http://www.cms.
gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/MedicareMedicaidStatSupp/index.html.
11 Charlene Harrington et al., “Nursing Facilities, Staffing, Residents and Facility Deficiencies, 2009 Through 2016,” KFF report,
Apr. 3, 2018. https://www.kff.org/medicaid/report/nursing-facilities-staffing-residents-and-facility-deficiencies-2009-throu-
gh-2016/.
12 David G. Stevenson, Jeffrey S. Bramson, & David C. Grabowski, “Nursing Home Ownership Trends and their Impacts on Quality
of Care: A Study Using Detailed Ownership Data from Texas,” 25(1) J. of Aging & Social Policy 30 (2013).
13 Centers for Medicare and Medicaid Services supra note 10.
BIFOCAL July - August 2021 120 Vol. 42 No. 6
Size Matters A recent study of Ontario, Canada, nursing homes
also found that size matters. The odds of a COVID-19 out-
break were associated with the number of residents living
I n 2018, the overall average facility size was over 100
beds. States, however, vary in their average facility size
with nonprofit and rural facilities generally having smaller
in nursing homes and with older design standards (includ-
ing multiple residents per room), controlling for other fac-
size than for-profit and urban.14 Research on nursing homes tors. The lack of privacy for nursing home residents also
has found that size is a strong predictor of nursing home results in unpleasant and undesirable living conditions.19
COVID-19 infection rates.15 Nursing homes that are larger
in size have more employees and more residents and there- Perhaps the most remarkable study, because of
fore, the residents have a greater likelihood of exposure to its use of technology and big data, was undertaken by the
infected staff and larger outbreaks. National Bureau of Economic Research. It consisted of a
national analysis of nursing home connections via shared
One of the earlier studies of trends during the staff and contractors, using geolocation data from 50 mil-
pandemic found that larger facility size, urban location, lion smartphones over and 11-week period. The researchers
and greater percentage of African American residents were were able to construct network measures of connectedness
significantly related to the increased probability of having which showed that, on average, nursing homes shared con-
COVID‐19 cases.16 nections (i., persons moving between facilities) with 7 other
facilities.20 Thus, it is not surprising to see how the traffic
An enlightening study published September 30, of staff in and out of multiple facilities impacts the spread
2020, by Mathematica focused on one state, Connecticut of infection. Larger facilities invariably have larger staffs
with 216 nursing homes, and reported results consistent and more interfacility traffic.
with the above studies.17 Key findings included:
Nursing Home Residents Do Not Have Private
• Larger nursing homes had more Covid-19 deaths per Rooms. Most nursing home residents are living in rooms
licensed bed. with two to four beds and share toileting facilities which
• For-profit nursing homes had about 60 percent more can be a risk for spreading infections. Moreover, Medicare
deaths per licensed bed than nonprofit nursing homes. and Medicaid only pay for shared rooms so private rooms
• Nursing homes that were part of a chain had about 40 are subject to private pay rates which are much higher.21
percent more deaths than independently owned nursing
homes. The extent of room sharing is a measure of crowd-
• Nursing homes with higher star ratings for staffing had ing or density in facilities. A recent Canadian study of
fewer Covid-19 deaths. more than 78,000 residents in 618 nursing homes in Ontar-
• Overall star ratings and star ratings for Quality were io, Canada, found COVID-19 incidence and mortality in
not related to rates of Covid-19 deaths.18 homes with low crowding (one per room) was less than half
than that of homes with high crowding (2 or more residents
14 Medicare Payment Advisory Commission. Report to the Congress: Medicare Payment Policy. Chapter 8. Washington, D.C.
March 2020, p.219-244.
15 See Charlene Harrington, et al., “Nursing Staffing and Coronavirus Infections in California Nursing Homes, 21(2) Policy,
Politics, & Nursing Practice 174 (2020); Nathan M. Stall et al., “For-Profit Long-Term Care Homes and the Risk of COVID-19
Outbreaks and Resident Deaths,” 192 (33) Canadian Med Ass’n J. E946 (Aug. 17, 2020); Jose F. Figueroa, et al., “Association of
Nursing Home Ratings on Health Inspections, Quality of Care, and Nurse Staffing with COVID-19 Cases,” 324(11) JAMA 1103
(2020); Hanna R. Abrams, et al., “Characteristics of US Nursing Homes with COVID-19 Cases,” 68 (8) JAGS 1653 (2020).
16 Hann R. Abrams, supra note 15.
17 Mathematica, A Study of the COVID-19 Outbreak and Response in Connecticut Long-Term Care Facilities: Final Report (Sep-
tember 30, 2020), file:///C:/Users/sabatinc/Downloads/CT_LTC_Facilities_Final_Report.pdf .
18 Id., at Exhibit B.9.
19 Nathan M. Stall supra note 15.
20 M. Keith Chen, Judith A. Chevalier, & Elisa F. Long, Nursing Home Staff Networks and Covid-19, National Bureau of Economic
Research, Working Paper 27608 (July 2020), http://www.nber.org/papers/w27608.
21 American Council on Aging. Nursing Home Costs by State and Region – 2019. October 24, 2019.
https://www.medicaidplan ningassistance.org/nursing-home-costs/.
BIFOCAL July - August 2021 121 Vol. 42 No. 6
per room)22. and building configurations, expanded resident spaces with
private rooms and bathrooms, air circulation and ventilation
Many Nursing Home Buildings Are Old and Out- to reduce infection exposure, transitional spaces, outdoor
dated. A major portion of nursing home buildings are old, areas and spaces to exercise, staff spaces, and other modern
outdated, poorly configured, and out of scale for consumer features.26 As noted at the outset, we focus here on facility
tastes.23 Unfortunately, no national inventory of the age design.
and condition of the nation’s nursing homes exists. The
COVID-19 pandemic has exposed serious problems with Norway, Denmark, and other nations have pio-
neered the design and operation of small modern nursing
home clusters. These have residential, home-like environ-
"It is not surprising to see how the traffic ments, private rooms and bathrooms, therapeutic outdoor
of staff in and out of multiple facilities spaces, and other environmental and safety features that
ensure the protection of residents. 27
impacts the spread of infection"
Clustered neighborhood design has become a mod-
design and layout that facilitated the rapid and unchecked el for nursing homes around the world where the clusters
spread of the virus. The nation’s facilities are subject to have 8-12 people, each with their own room. This helps
a variety of natural disasters including but not limited to limit virus transmission while allowing for more targeted
earthquakes, fires, storms, power shortages, and floods. and intimate care. Within each cluster of rooms, there is a
Although CMS has regulatory standards for fire and life living room, dining room, kitchen and adequate space for
safety and gives deficiencies for failure to meet the stan- residents, families, and nursing staff. Research shows such
dards, nursing homes have been found to violate these architectural factors have a strong influence on improve-
standards frequently.24 Existing guidelines on design have ments of quality of life and quality of care for nursing home
largely overlooked infection control. residents.28
The Need for Facility Design Reform The Green House Project®
T here is general agreement that alternative models are
needed to ensure quality of life and improve infection
control and pandemic preparedness.25 For quality of life,
I n the United States, a variety of small homes representing
the “household model” have been successful, but they
currently represent a small proportion of nursing home
researchers and advocates have identified a multitude of beds. There is no official definition of what constitutes
factors: proximity to a person’s home community, integra- “small,” but 20 or fewer residents has been a common cut-
tion and health and social care and emergency services, off.29 The most visible and well established is The Green
neighborhood and public services, improved care models House® Project, originally funded by the Robert Wood
22 Keven A. Brown et al., “Association Between Nursing Home Crowding and COVID-19 Infection and Mortality in Ontario,
Canada,” JAMA Internal Medicine (published online November 9, 2020),
https://jamanetwork.com/journals/jamainternalmedicinefullarticle/2772335.
23 See Justin Davidson, “The American Nursing Home Is a Design Failure,” New York Magazine, Cityscape, June 25, 2020.
https:// nymag.com/intelligencer/2020/06/the-american-nursing-home-is-a-design-failure.html; Dave Altimari, “Connecticut
Nursing Homes Are Old and Ill-Equipped to Contain Viral Spread” Hartford Courant (Dec 20, 2020), https://www.courant.com/
coronavirus/hc-news-coronavirus-old-nursing-homes-deaths-20201220-4vonyep6bffcnosfn7qhx6axsq-story.html.
24 Office of the Inspector General (OIG). California Should Improve Its Oversight of Selected Nursing Homes’ Compliance with
Federal Requirements for Life Safety and Emergency Preparedness. A-09-18-02009. Washington, DC: OIG, November 2019.
25 Dana C. Anderson et al., “Nursing Home Design and COVID-19: Balancing Infection Control, Quality of Life, and Resilience,”
21 (11) JAMDA 1519 (2020).
26 Id. at 1520.
27 Victor A. Regnier, Housing Design for an Increasingly Older Population: Redefining Assisted Living for the Mentally and Physi-
cally Frail. (2018).
28 AnneMarie Eijkelenboom et al., “Architectural Factors Influencing the Sense of Home in Nursing Homes: An Operationalization
for Practice” 6 Frontiers of Architectural Research, 111 (2017).
29 See Action Pact, a long-term care culture change company that promotes the Household Model, https://www.actionpact.com/
household/household_model.
BIFOCAL July - August 2021 122 Vol. 42 No. 6
Johnson Foundation. There are 300 Green House homes infection rates and death rates to those in traditional nursing nationally, normally built-in clusters of five or six homes, homes geographically near them. The traditional nursing each with 10 or 12 residents who have single rooms and homes were grouped into smaller traditional homes (those private baths. Urban variations also exist with a multi-floor with
Options Government Needs to Consider remove a federal regulatory barrier that prevents reimburse-
ment for private, single rooms under Medicare and Medic-
aid unless required for a medically necessary reason such as
A s long as the nursing home industry can rely on the
flow of federal money for the current model of care,
it has no financial incentive to change, especially after the
infection control.37 Private rooms not only reduce infection
spread but also conform to most adults accustomed living
coronavirus catastrophe has passed. To move the indus- preference. This is an action that can be done now, regard-
try toward the small house model, government will need less of the outcome of a review of design standards.
to consider both legislative and regulatory change. The
Centers for Medicare and Medicaid Services (CMS) has Financial incentives are equally essential to move
established fire life safety codes for certified Medicare and the field forward. The Department of Housing and Urban
Medicaid nursing homes. These standards need to be revis- Development (HUD) could, by regulation, or with the
ited to ensure private rooms and bathrooms and safe living help of Congressional action, stimulate the development
environments that can protect in the era of pandemics. of small nursing homes by restructuring the HUD program
CMS does not pay for single rooms, except under limited to allow the program to finance the redesign, remodel-
circumstances.34 The pandemic experience and the research ing, building, and rebuilding of new nursing homes using
showing that density increases disease spread demonstrates mortgage loan programs, direct loans, bonds, and other
the needs to change this, so that single rooms may become mechanisms, provided through the HUD program. Pro-
the norm. grams such as the HUD Section 202 Supportive Housing
"Nursing homes already meet a variety of federal, state, and local requirements for de-
sign and safety. A key lesson of the pandemic is that those standards need rethinking."
There is also a Facility Guidelines Institute (FGI) for the Elderly Program would be a logical vehicle, because
that provides direction on programming and sets minimum the program already provides interest-free capital advances
safeguards for nursing homes and assisted living.35 Build- to private, nonprofit sponsors to finance the development
ing inspectors use the International Building Code, which of supportive housing for the elderly. Other mechanisms
is updated every three years by the International Code such as targeted low-cost mortgage loan programs, direct
Council. The NFPA 101, Life Safety Code, updated by loans, bonds, tax incentives, or other incentives may also be
the National Fire Protection Association every three years, appropriate. At the same time, CMS may need to override
guides fire officials.36 These standards set comprehensive, or waive state certificate of need requirements to allow
coordinated building safety and fire prevention codes to redevelopment and replacement of traditional facilities to
protect public safety. These standards need review with the proceed.
objective of better accommodating small home-like models
of skilled care. Once established, all levels of government Conclusion
should support phase in of the standards over time to allow
providers to make capital investment in new facility design
feasible and competitive. A s a nation, we need to reconsider the building design
required standards for nursing homes as a necessary
first step to ensure the safety of nursing home residents.
Such a transition also requires Congress to change By itself, design does not ensure safety, quality of life, or
the conditions of participation in Medicare and Medicaid quality of care, but the evidence overwhelmingly suggests
to mandate a parallel phase in of small household models it is a major factor.
and phase out larger facilities. As a first step, CMS could
34 42 C.F.R. §483.10(f) & §483.10(h).
35 Facility Guidelines Institute (FGI) Guidelines for the Design and Construction of Residential Health, Care, and Support
Facilities, 2018. https://fgiguidelines.org/.
36 Liao, A., “Getting Better with Age: Design for Senior and Assisted Living Facilities,” Architect. June 29, 2018.
https://www.architectmagazine.com/practice/getting-better-with-age-design-for-senior-and-assisted-living-facilities_o .
37 42 C.F.R. §483.10(f) & §483.10(h).
BIFOCAL July - August 2021 124 Vol. 42 No. 6
Nursing homes already meet a variety of federal, To accomplish a transition to newer design stan-
state, and local requirements for design and safety. A key dards, both carrots and sticks are needed. The stick should
lesson of the pandemic is that those standards need re- be the mandatory phase-in of household model design
thinking. Home-like, residential household designs of 20 standards over an extended period of time. The carrots for
or fewer beds each, arranged in single rooms with private nursing home redesign can come from many sources such
baths already exist and participate in Medicare and Med- HUD loan programs, the Internal Revenue Service, CMS
icaid, the most established being Green House Project in the form of reimbursement rates, and other executive
homes with a capacity of no more than 12 beds, typically branch agencies that could provide special financing or sub-
in clusters of units to enable administrative efficiencies and sidies for the redesign, remodeling, building, and rebuilding
professional support. The existence of existing, successful of new nursing homes. If in the end, all nursing homes
models should point the way forward. look, feel, and operate as small home-like environments,
we will have put the “home” back into nursing homes.
Meet our Summer Intern
Katlyn Slough
Katlyn Slough is a JD candidate attending the University of Maryland Francis King Carey School of Law, where
she recently completed her first year. Before coming to law school, she was a writer and an Adjunct Professor of
composition and literature at William Paterson University and Berkeley College.
Issues in the education system drove her to pursue a legal career, particularly in
the areas of family law and business law. Her familiarity with nursing homes
drew her to the ABA Commission on Law and Aging, where she could learn
about elder law and contribute to researching and writing about current issues.
Projects include updating Health Care charts to reflect recently enacted statutes
and researching trends in elder abuse law. Read Katyln's article, Developments
in State Adult Abuse Laws on page 140 in this issue of Bifocal.
Interested in more information about
The Commission on Law and Aging's
internship program?
Contact David Godfrey,
Senior Attorney,
Commission on Law and Aging
BIFOCAL July - August 2021 125 Vol. 42 No. 6
Guardianships and by counsel, each party is able to be heard, articulate their
position, and present evidence to substantiate their po-
Conservatorships sition. In contrast, petitions for guardianships and con-
servatorships are all about one person – the Respondent
in Oregon
– and the petitioner is alleging that the Respondent cannot
advocate for themself, does not have the capacity to care
Part 2
for themself much less present evidence and articulate
by Judge Lauren Holland
In the second piece of this two part article, Judge Lauren
Holland discusses guardianship and conservatorship re-
form in Oregon and the development and implementation
of Oregon WINGS (Working Interdisciplinary Networks
of Guardianship Stakeholders). Read part one here.
their position. In Oregon, as in other jurisdictions, judges
Oregon Working Interdisciplinary Networks are charged with responsibilities not only of determining
of Guardianship Stakeholders (Oregon whether petitioner has met their burden of proof to estab-
WINGS) lish a guardianship or conservatorship, but also providing
continuing oversight and monitoring of any fiduciary
appointed.
H ow do we ensure that guardianships are granted only
when necessary? How do we ensure that guardian-
ships are not granted when there are less restrictive alter- Although we are still working on implementing
natives or merely for the convenience of others? some of the recommendations of that Task Force, we
successfully applied for and received a small grant in
In 2007, the Oregon Supreme Court convened a January, 2013, to create a WINGS Council and institute a
Task Force on Protective Proceedings. Our objectives collaborative approach to guardianship reforms, commu-
were to study existing practices, make recommendations nity-based and person-centered care services, and support
for best practices in such areas as court visitors, due pro- systems. The funding came from the ABA Commission
cess safeguards and fiduciary qualifications. We were also on Law and Aging pursuant to a grant the Commission
tasked with exploring beyond our current framework and received from the State Justice Institute.
systems to plan for the future of protective proceedings.
There were ten group partners and stakeholders
After a year of meeting, we submitted our report who participated in this grant, including the Oregon
to the Chief Justice, making recommendations, one of Judicial Department, the Oregon Department of Human
which was to create a standing protective proceeding ad- Services, the State Unit on Aging, Disability Rights Or-
visory committee to provide ongoing strategic leadership egon, the Office of Abuse Prevention and Investigations,
in the area of guardianships and conservatorships. The the Oregon Council on Developmental Disabilities, the
report recommended that members of the existing task State Long-Term Care Ombudsman, Oregon Alzheimer’s
force be joined by other stakeholders, including social Association, ARC of Oregon, the Guardianship & Con-
services, advocates, fiduciaries, and others for this com- servatorship Association of Oregon and members of the
mittee. We were on the road to what ultimately became Oregon State Bar. By the time the final report was sub-
Oregon WINGS. mitted in April, 2014, WINGS had expanded to include
21 members. The agencies, organizations and individuals
As you already know, guardianships and conserva- involved were important partners. All had a seat at the
torships are unlike other areas of law where judges adjudi- table and all were willing to engage. Many were excited
cate disputes between opposing parties who can advocate to have a voice and be heard regarding issues they were
for themselves. Whether self-represented or represented seeing and which they thought no one outside their organi-
BIFOCAL July - August 2021 126 Vol. 42 No. 6zation was acknowledging, recognizing or addressing. The 2021 Oregon Legislature has a bill under
consideration to establish a Task Force on Guardianship/
While the Chief Justice of the Oregon Supreme Conservatorship reform. The task force would include
Court signed the WINGS grant application, the Oregon members of each branch of government as well as other
Department of Human Services, through its State Unit public and private stakeholders to pursue an organized and
on Aging would initially administer the grant. Fred systematic review of the law.
Steele, our current Oregon Long-Term Care Ombuds-
man, was the point person and initial Chair. Judge Cath- WINGS input into these programs is vital. WINGS
erine Tennyson and I became Co-Chairs in 2015 until is the only statewide group to bring together stakeholders
her retirement in 2019. from a variety of disciplines with knowledge and experi-
ence in the guardianship and conservatorship system. The
Oregon WINGS Council and Committees Oregon WINGS mission is to implement a collaborative
approach toward problem solving that strengthens guard-
ianship practice. By combining the efforts of all stake-
O ur full WINGS council meets quarter-
ly, currently on-line. The Oregon Judicial
Department has provided space for our meetings
holders, we can improve judicial processes, better protect
individual rights, and promote fiduciary standards and
guardian accountability.
pre-COVID19, and will continue to do so when we
return to in-person meetings. The Judicial Depart-
Oregon WINGS Resources Benefiting
ment also provides support staff to coordinate and
assist with WINGS website and logistics. Having Vulnerable Consumers
assistance and support from the Judicial Depart-
ment has made a significant difference in our
stability and in raising awareness of our presence. S ince its inception, Oregon WINGS has been engaged in
a number of projects for the benefit of vulnerable Ore-
gonians. WINGS has published a brochure for medical
We have a number of engaged committees care providers containing important basic information on
leading various projects: public service outreach; guardianships. WINGS also published a Guide on Fiducia-
a “train the trainer” presentation; the WINGS ry Decision-Making Options which is in its third iteration
website; and one updating the published informa- of the subject in review to ensure it contains accurate and
tional literature. These committees meet as needed current information. WINGS also developed a Get A Life
outside the quarterly meetings. Plan guide and checklist, located on our website, to assist
members of the public to create individual plans for future
We also have a steering committee which meets medical and financial decisions.
monthly, raises and discusses issues, and sets the agen-
da for the quarterly WINGS meetings. Oregon is one of The Guide on Fiduciary Decision Making Op-
several states invited by the National Center for State tions has been used extensively by the developmental
Courts to participate in a multistate pilot project for the and intellectual disabilities
proposed national Guardianship Court Improvement Pro- community. The informa-
gram. We look forward to participating in this pilot project tion is particularly helpful to
and assess our guardianship/conservatorship structure educate parents with teenagers
and improve practice. Two areas of focus are 1) monitor- about to turn 18, when all too
ing fiduciaries appointed in protective proceedings – for often, guardianship may be
persons under guardianships and for detailed audits in seen as the only option. This
conservatorships, and, 2) the collection of relevant data Guide provides valuable in-
and its maintenance. We need to have current and accu- formation not only to parents
rate information. We need to know who we serve and but also to educators about
who we are under-serving. We need to have accurate and less restrictivealternatives to
complete information of the assets under the jurisdiction guardianship.
of the court. This information will help us better serve all
Oregonians. With the assistance of a
second grant in 2017 from the ABA Commission on Law
and Aging under an initiative funded by the Administra-
BIFOCAL July - August 2021 127 Vol. 42 No. 6tion for Community Living, WINGS engaged in a state- The priorities and challenges of WINGS
wide mapping project to identify the resources that were overlap. We need to encourage and maintain stake-
available and the gaps that needed to be filled to preclude holder engagement and participation. We must ensure
the need for and provide alternatives to guardianships. that we are serving all of our communities equitably.
Utilizing a variety of methods including a statewide Identifying communities that we are under-serving or
survey of stakeholders, in-person forums, and individual not serving in a way that is of assistance to that com-
interviews, WINGS sought out and learned from a wide munity is both a priority and a challenge. We recog-
variety of disciplines and individuals affected by guardian- nize and acknowledge that the system excludes people
ships about their experiences around the state. The project and is unjust to far too many. We are responsible for
culminated in a WINGS symposium where the informa- identifying, addressing and changing the system to
tion was presented, discussed and recommendations were ensure that all people are served well.
made.
The work being done by the courts, advocates
The Work Continues and other stakeholders is crucial to all Oregonians.
How we treat people in need of assistance is a reflec-
tion on our values, our society, and on us as individu-
A n encouraging response occurred about six
months later, when several counties in central
Oregon held a multidisciplinary workshop spear-
als. We have an impact on our communities. We have
an important voice. We also need to make sure that
headed by one of their trial court administrators who we listen. All persons deserve to be heard and respect-
participated in the WINGS symposium. This work- ed. We have a lot of work to do.
shop was a collaboration among the courts, the hospi-
tals, social services, public and private agencies and
individuals to address similar issues as in the WINGS A bit of bio:
project – how best to serve vulnerable people in their
communities. They modeled it after the WINGS map- Lauren Holland was elected to the Lane County District
ping project, seeking to address these critical issues in Court bench in Oregon in 1992 and became a Circuit
a collaborative and cooperative way. Court Judge in 1998. Oregon’s Circuit Courts are courts
of general jurisdiction. As a trial judge, Judge Holland
The relationships developed through WINGS hears all manner of civil and criminal cases as well as
has impacted the guardianship system and people im- all of the protective proceedings cases (guardianship and
pacted by that system in a positive way. Each WINGS conservatorship cases) in her court. She is the Chair of
member comes to the table with unique knowledge Oregon WINGS and past president of the Oregon Circuit
and experience with vulnerable Oregonians. We have Court Judges Association. She has been a leader in the
gained a broader recognition and appreciation of the Courts in identifying, presenting and implementing stan-
many moving parts in these kinds of proceedings and dards and best practices for protective proceedings. Judge
the effect on vulnerable members of our communities Holland currently serves as a Commissioner on the ABA
and their families. Through WINGS we are breaking Commission on Law and Aging.
down the silos of our individual, agency and organi-
zation perspectives and focusing on how we can all
better serve persons having to navigate these proceed-
ings.
Read the 2019 State Wings
Replication Guide
BIFOCAL July - August 2021 128 Vol. 42 No. 6Six Estate Planning Steps to
Take In These Covid Times
by Susan Thau and Martin Shenkman
Even otherwise healthy individuals who have never had
reason to question their mortality may be among the last to
receive a vaccination and may feel increased urgency to fi-
nalize their legal and financial affairs in case they unexpect-
This article is partially reprinted with permission from the
edly succumb to Covid, or fall seriously ill for an extended
ABA Section of Real Property Trusts and Estates Law. The
period of time. The discussion that follows should aid
full article can be accessed here:
planners in creating documents that stand the test of time
and are tailored to the particular medical crises that may or
C ovid has created health worries and fear for every-
one. With mortality on many people’s minds, estate
planning attorneys have been busier than ever. Clients who
may not impact your client’s health.
Review Existing Legal Documents
put off finalizing or revising their wills or revocable trusts
for months or even years have suddenly felt a new urgency Step 1: Review or Create Will and Revocable Trust
to put their legal affairs in order. The urgency some clients
feel, the practical difficulties of practicing and signing doc- It is imperative that attorneys urge all clients to
uments during a pandemic, and the health effects on clients evaluate their wills and revocable trusts, and other plan-
who have experienced Covid-19, have created a challeng- ning. Clients should evaluate the executor, trustee, and
ing legal environment. The potential for significant adverse guardian designations contained in these documents. What
tax changes have further complicated the estate planning if the client signed the documents many years ago and had
environment. a serious falling out with the persons named in these posi-
tions? What if the client has since had children and there is
The pandemic has brought to light issues that no guardian designation in the Will or no separate standby
have long been important but perhaps overlooked in estate guardian document in case the clients are incapacitated but
planning practices (and society at large). Those planners not dead? Perhaps because of other changes in circumstanc-
whose clients have struggled with various forms of brain es, e.g. developments in the clients business, a different
disease understand the unique challenges in representing structure might be advisable.
clients during times of medical crisis.
One issue that has arisen throughout the Covid
What follows is a discussion of the practical legal crisis is physical dislocation. Many young people have re-
steps that estate planning attorneys might consider now turned to their childhood homes in other states, or families
as they are tasked with preparing wills and other estate with young children have left metropolitan areas in order to
planning documents during the pandemic. This article will acquire more space during lockdown. For example, while
then discuss particular planning ideas tailored to individu- a client permanently resides in New Jersey, he or she may
als living with particular brain diseases, including long-haul have temporarily relocated to South Carolina to stay with
Covid and Alzheimer’s. This discussion of steps will be family. This can raise planning complications. Will the
basic for estate planning attorneys, but even so may provide New Jersey (home state) documents be valid? Ideally, you
a useful framework to explain the process to clients. should advise your client to consult with an attorney in his
or her temporary jurisdiction to ensure that the documents
Individuals living with pre-existing health con-
will still suffice if the client unexpectedly dies there. Also
ditions should pursue estate planning with some urgency.
consider having local counsel prepare a health care proxy,
BIFOCAL July - August 2021 129 Vol. 42 No. 6living will, and financial power of attorney (discussed in ceptance of, electronic communications. as a result of that,
greater detail below) in accordance with the laws of the and the dangers and challenges of in person meetings, prac-
temporary homestead in case the client becomes disabled or titioners might consider permitting the agent to communi-
sick while there. cate decisions via email, electronically signed documents,
and perhaps even via Skype, FaceTime, and similar ser-
Many clients are understandably reluctant to sign vices. Banks or other providers are not all likely to accept
their estate planning documents in person, and many law
firms have not reopened to allow them to do so. Several
states, including New York, are allowing certain estate
planning documents to be executed remotely during this
crisis. There may be other options as well. For example,
some states, e.g. New Jersey recognize holographic wills.
So, in some instances a viable alternative may be for the
client to execute a pour over holographic will and a revo-
cable trust which may not require witnesses or notaries
(e.g., Alaska). If a client needs to execute an a revised will
or revocable trust, it may be feasible to be done safely and
effectively without in-person contact.
Step 2: Review or Create Financial Power of Attor-
ney
this, but it might nonetheless be worth considering. You
Practitioners should review any power of attorney
might also hold third parties harmless (i.e., have the legal
the client previously executed with consideration to the typ-
document indemnify them) for relying on such electronic
ical update considerations, as well as several that might be
communications to encourage them to be more accepting of
relevant because of Covid and the changing environment.
electronic communication of decisions.
Consider the agent designations and date of execution. Are
the designated agent or agents still people that the client Normally some practitioners recommend that the
can rely on? Do the name agents have sufficient cognitive agent be given broad powers to manage the client’s affairs.
capabilities? Do they have the special skills to address par- Query whether in this current environment you might give
ticular issues affecting the client? Is the document itself so the agent limited powers to navigate the Covid crisis, and
old (stale) that banks or others might be concerned about its then have the client re-execute a broader document when
validity? the pandemic abates.
The current unique and difficult coronavirus experi- Step 3: Review or Create a Living Will
ence has also brought new concerns to bear.
Confirm that the client, if he or she wishes, in fact
Many powers of attorney are “springing” powers has a living will, and, if so, that it is up to date and reflects
that become effective only when the principal becomes in- the client’s wishes.
capacitated and cannot manage his or her affairs. However,
being unable to leave your house for fear of exposure does Some living will and other health care documents
not render you incapacitated such that your power of attor- expressly prohibit intubation, which could be a tragic mis-
ney has “sprung.” The mechanism that typically “springs” take in the current environment in which intubation may be
the springing power of attorney into effect is a signed necessary to survive the Coronavirus. Review your client’s
indication of disability from two physicians/ In an envi- health care documents and confirm that they distinguish
ronment where lockdowns, quarantines, travel restrictions, between preventing intubation when the client is in a per-
etc. are common, is that even feasible? If the principal is ill, sistent vegetative state from those temporary situations, like
comorbidity considerations may make unwarranted trips to Covid, when intubation might be desired. You don’t want
physicians a danger. In this situation, a plain, durable power your client barred from receiving the potentially lifesaving
of attorney may be preferable care he or she may need.
The pandemic has accelerated the use of, and ac-
BIFOCAL July - August 2021 130 Vol. 42 No. 6Step 4: Review or Create a Health Care Proxy and Step 6: Create or Update Legal Document Reposi-
HIPAA Release tory
As with the other documents mentioned, make sure Ensure that you, your client, and key client fidu-
the proxy designations are up to date and the people named ciaries, have all of their documents stored in a reasonable
are able and willing to assist. Consider expressly authoriz- manner. For example, some attorneys maintain a repository
ing electronic communication of decisions. With coronavi- of client original estate planning documents in their offices
rus being so contagious your client’s agents are less likely or bank vaults. If the client retains the originals confirm
than pre-pandemic to physically meet with care providers. that the original will is in a safe, secure, and fireproof
location. Encourage clients to give the names and contact
A HIPAA release authorizes a named agent to ac- information of counsel and other key advisers to loved ones
cess your private health information and communicate with so that in case of unexpected death the client’s family can
medical providers, but not make medical decisions. The contact the members of the team. Suggest to clients not
considerations for this document are similar to those for the to store documents in the same place that they store pass-
health care proxy. words as those should not be given to professional advisers.
Nor should the client ever place an original will in a safety
Step 5: Review or Create a Disposition of Remains Doc-
deposit box as this will significantly complicate the admin-
ument
istration, requiring a special court order just to open the box
Several states, including New York, have a specific to retrieve the original will.
form that allows the client to designate an agent to han-
Not only should counsel’s files (whether physical,
dle burial or cremation arrangements. The client can also
and/or electronic) contain the documents discussed above,
indicate special wishes on this form. Ecologically friend-
but it may be useful to also have copies of client’s benefi-
ly burial techniques, so-called “green burial” providers,
ciary designations for retirement accounts and insurance
are becoming increasingly common, with an emphasis on
policies, deeds for properties owned, a recent summary of
biodegradable materials like containers, caskets, shrouds,
assets and liabilities, and contact information for fiduciaries
and urns and cemeteries that have discontinued the use
named in the will or revocable trust.
of herbicides, pesticides, and fertilizers. There are even
services that will collect the decedent’s ashes and pot them _____________
in a manner reflecting the client’s wishes. Such particular
Read the full article which discusses particular planning
wishes would best be expressed clearly on a disposition of
ideas tailored to individuals living with particular brain
remains form. diseases, including long-haul Covid and Alzheimer’s.
Follow the Commission on Law and Aging
BIFOCAL July - August 2021 131 Vol. 42 No. 6Something to Talk About:
Supported Decision Making and Access to Justice for All
by Elizabeth Moran
• Reasonable notice provided in the adult’s pre-
I t is commonly known that the Americans with Disabilities
Act (ADA) prohibits discrimination on the basis of dis-
ability. It is also commonly known that Title II of the ADA
ferred language in an understandable and acces-
sible format, served in a manner that ensures timely
requires that State and local governments, including courts, receipt.
provide people with disabilities an equal opportunity to ac- • An impartial, valid, and reliable assessment by a
cess and benefit from all of their programs, services, and ac- compensated and qualified person conducting a ca-
tivities. Perhaps what is not as commonly known is what pacity assessment who has knowledge and training
the ADA requires of courts in terms of providing accessible about decision-making in the area(s) related to the
services to individuals who have cognitive disabilities which proceedings, inclusive of the adult’s preferred
affect an individual’s ability to comprehend or express them- reasonable accommodations and method of com-
selves in written or spoken language. This includes litigants, munication.
witnesses, jurors, and observers who have a broad range of • Protection of the adult’s right to participate in the
disabilities impacting their ability to communicate, such as proceeding consistent with their preferences, includ-
developmental disabilities, traumatic brain injury, or who ing preferred communication accommodations,
acquire dementia, Alzheimer’s disease, or other disabilities after the right to appear and the purpose of the pro-
associated with aging. ceeding have been explained to the adult through
the means the adult understands.
In May 2021, the National Guardianship Network,
with the support of the State Justice Institute, the Borchard Recommendation 2.4: The Department of Justice and other
Foundation Center on Law and Aging, and the Syracuse federal and state agencies should recognize that support-
University College of Law, brought together 125 advocates, ed decision-making can be a reasonable accommodation
family guardians, judges, lawyers, scholars, and other stake- under the Americans with Disabilities Act of 1990, as
holders for the Fourth National Guardianship Summit. At amended, in supporting an individual in making their
the conclusion of the summit, delegates approved 22 Rec- own decisions and retaining their right to do so.
ommendations to improve and reform the adult guardianship
system in the United States. Two of those Recommendations While there is growing awareness of “supported
are of particular interest here as it regards effective commu- decision-making” (SDM), particularly as an alternative to
nication: guardianship, SDM does not have a universally accepted le-
gal definition. It is, however, becoming a more commonly
Recommendation 1.2: States and courts must ensure that understood concept of integrated supports which honors an
all judicial proceedings which may impact any of an adult’s individual’s integrity of choice with the underlying principle
rights to legal capacity provide meaningful due process, that, with enough appropriate supports and services, nearly
which includes (in relevant part, emphasis added): every individual has the capacity to make decisions. When
people use SDM as a communication accommodation, they
BIFOCAL July - August 2021 132 Vol. 42 No. 6use family members, friends, professionals, and others they who acquire dementia, Alzheimer’s disease, or other age-re-
trust and who know them well to help them understand the lated cognitive disabilities, however, may experience diffi-
situations and choices they face, but with the ultimate choice culty with communicating effectively that go well beyond
left to the adult. This eliminates a substitute decision-maker the need for accommodation and supports provided by tradi-
and maximizes autonomy for the individual who may need tional auxiliary aids and services. For instance, the individu-
communication supports for speaking, reading, writing, or al may:
understanding in order to meaningfully participate. The need
for this kind of support necessarily includes and can provide • take longer to absorb information
for meaningful participation in court services, programs and • may not respond in a timely manner
activities. • have difficulty understanding or remembering ques-
tions, abstract concepts or instructions
What Does it Mean for Communication to be “Effective” • have difficulty with reading and writing
in Court? • have difficulty with problem-solving
• have a short attention span and might be easily dis-
I n 2017, the Civil Rights Division of the U.S. Department
of Justice has issued a technical assistance document en-
titled “The ADA Best Practices Tool Kit for State and Local
•
•
tracted
find it difficult to maintain eye contact
find it difficult to adapt to new situations or to plan
Governments” to assist state and local officials to improve ahead or solve problems
compliance with Title II of the ADA. “Effective communi- • find communication over the phone difficult
cation” means that “whatever is written or spoken must be • have difficulty expressing their needs
as clear and understandable to people with disabilities as • be easily influenced by and eager to please others
it is for people who do not have disabilities.”1 • not be considered as credible witnesses
This can all make effective communication chal-
lenging, particularly when the language or concepts used are
“The effective communication re- complex and the environment or activity, such as those asso-
quirement applies to ALL members of ciated with court-related activities, is stressful. For individ-
the public with disabilities, including uals with cognitive disabilities, traditional accommodations,
job applicants, program participants, such as language interpreters or assistive technology, are un-
and even people who simply contact likely to be sufficient supports for effective communication
state or local government agencies which would ensure the individual is able to meaningfully
seeking information about programs, participate in all aspects of court proceedings.
services, or activities.”2
The need for communication supports and accom-
modations also includes those for individuals with a wide
Effective communication is essential to ensuring that range of disabilities who are non-verbal, have slurred or
all aspects of judicial proceedings uphold every individual’s difficult-to-understand speech, or those who use body lan-
right to access and engage in meaningful due process. Title guage, vocal sounds, gestures, pictures, assistive technology
II regulations provide several examples of “auxiliary aids and communication devices, or rely on both formal and in-
and services” to accommodate individuals with disabilities.3 formal communication and decision-making assistance from
These include, but are not limited to, qualified sign-language family, friends, and/or support staff that knows them well.
and foreign-language court interpreters, assistive technolo- With this in mind, when considering an individual’s ability
gy, notetakers, closed-caption decoders, qualified readers, to engage in meaningful communication with the justice sys-
and “other similar services and actions.” tem, it is crucial that everyone involved in the court process
understand that just because an individual is a non-tradition
Individuals who have developmental disabilities or communicator does not mean they do not have the ability
1 U.S. Department of Justice, Civil Rights Division, ADA Best Practices Tool Kit for State and Local Governments, Chapter 3,
General Effective Communication Requirements Under Title II of the ADA, March 9, 2017, retrieved on June 30, 2021 at https://
www.ada.gov/pcatoolkit/chap3toolkit.htm.
2 Id.
3 28 C.F.R. § 35.104.
BIFOCAL July - August 2021 133 Vol. 42 No. 6You can also read
