Ornament (not Organ) Donations Sought

In a Press Release issued October 25, 2006, entitled "Senior Centers Asked to Create, Donate Ornaments for Capitol Christmas Tree", the Secretary of Aging, Nora Dowd Eisenhower, invited participants at the Commonwealth's 650 Senior Centers to donate ornaments for display on the Commonwealth's official holiday tree. The Press Release is found online here:

The Capitol Christmas tree traditionally stands in the main Rotunda from early December through early January. * * *

“Every year, we are delighted to receive the many beautiful ornaments that are donated by the talented members of Pennsylvania’s 650 full and part-time senior community centers,” said Secretary Dowd Eisenhower. “Last year, members of 48 centers donated more than 500 ornaments – a record response.”

Senior centers are asked to send sturdy, hand-made ornaments before Nov. 30, 2006.

A similar invitation was issued last year (on October 27, 2005) by the Secretary in a Press Release found here. She then said, "This annual tradition recognizes and celebrates the many creative talents of our state’s older adults." The result of last year's invitation was a spectacular tree, described in a Press Release from the First Lady of Pennsylvania (found here) as follows:

The 23-foot Douglas Fir Tree that adorns the Capitol Rotunda was donated by the Botek family of Lehighton, in conjunction with the Pennsylvania Christmas Tree Growers’ Association. More than 1,000 handmade ornaments for the tree were donated by members of Senior Centers across Pennsylvania. * * *

In addition to the Capitol Rotunda tree, other holiday symbols -- including a lit menorah outside of the East Wing Rotunda -- are present throughout the Capitol Complex. * * *

“Each year during the holiday season, all Pennsylvanians should focus on those who are less fortunate than we are, to donate their time and efforts to a local charity and to share in the warmth and joy that is prevalent during the holiday season,” Governor Rendell said.

Regardless of the actual numbers of ornaments donated last year, it is clear that such creative activities and charitable spirits are commonplace at the Commonwealth's many full-time and part-time senior centers, described in my prior posting found here.

Donations of ornaments should be sent to the following address:

Pennsylvania Department of Aging
Attention: Anne Bale, Press Office
555 Walnut Street, 5th Floor
Harrisburg, PA 17101-1919

Donations of organs -- well, that is another matter. But, much like donated organs, the Press Release notes that: "Donated ornaments cannot be returned."

UPDATED 12/07/06:

The Commonwealth's Christmas Tree is up, decorated with the Seniors' handcrafted ornaments, & ready to be lit publicly by the Governor (on Monday, December 11, 2006).

See my posting made December 7, 2006: Seniors' Ornaments Decorate Tree.

Teitell to Talk in PA

On November 9, 2006, the United Way Foundation of the Capital Region (described in a brochure found here), will sponsor a seminar featuring Conrad Teitell, a nationally-recognized expert on tax and estate planning issues.

The title of the workshop is "Charitable Estate Planning Strategies: Gathering Windfalls and Avoiding Pitfalls”. The cost for the workshop is $175, which includes continuing education credits.

Check-in for the seminar (with a continental breakfast) will begin at 7:00 A.M. at the Harrisburg Hilton Hotel, located at 1 North Second Street, Harrisburg, PA. The program will be conducted there from 8:00 A.M to 12:00 Noon.

Topics to be discussed include:

• The latest tax laws
• Choosing wisely among various types of charitable donees
• Income, gift, estate, and capital gains tax savings on outright & charitable remainder gifts
• Choosing wisely among the four charitable remainder unitrusts
• When to use a QTIP-CRT combo
• Using IRAs to make charitable gifts
• How a charitable gift can step-up basis of assets
• Charitable gifts that increase a donor's spendable income
• Different marital deduction rules for various charitable remainder gifts
• Dovetailing charitable gifts with the rest of an estate plan
• Tax consequences of contributions to a charitable remainder trust or terminating a CRT
  
• Charitable gift annuities, Grantor-Retained Annuity Trusts, & pooled income funds
  

On Sunday, October 29, 2006, The Sunday Patriot News published a brief article entitled "United Way Foundation to Hold Estate Planning Class", found here, announcing the seminar and noting its purpose:

Accountants, attorneys, trust officers and other estate planning professionals are encouraged to attend, according to a United Way spokeswoman. Professional credits are available. * * *

"We'd like financial planning professionals to begin thinking about us as more than just an annual-giving option," said Joseph M. Capita, United Way president and CEO. This workshop is to create an awareness of the foundation among professionals.

For more information or registration, call 717-732-0700, Ext. 33, or send an email message to sshaffer@uwcr.org.

Terminal Elder Abuse = Charged Murder

On September 9, 2006, the Associated Press reported the tragic end to a victim of alleged elder abuse occurring within a family home. The news article, found here as posted by NBC Channel 10 News, reported as follows:

An Allentown man was charged Friday in what local police described as the worst case of elder abuse they had ever seen.

The man's 76-year-old mother was found inside her Allentown home last February in deplorable conditions.

Police said she was dehydrated, starving, and sitting in a soiled chair. She later died at the hospital.

Yesterday, police charged her 55-year-old son, David Dettra, with third-degree murder.

They said he failed to provide his mother, with food, water and medical care.

Further details were reported on that same date by the Associated Press in a separate brief account posted here by CBS Channel 3 News:

Prosecutors in Lehigh County say the 70-pound woman was found dying in the soiled chair, surrounded by uneaten food. They say she was dehydrated and had severe leg ulcers.

Her son, 55-year-old David Dettra, is charged with third-degree murder and is being held in the Lehigh County Prison.

Authorities say Dettra, who worked in shipping at the Palmer Park Mall, did not call 911 until the day his mother died.

In a news account published on September 9, 2006, by The Morning Call, found here, the serious nature of the alleged offenses and their consequences were reported:

Lehigh County District Attorney James B. Martin called the death of 76-year-old Marie Dettra "worst case of elder abuse I have ever seen."

The woman's son, David Dettra, was charged Friday with third-degree murder.

Dettra, 55, who lived with his mother for his entire life, did nothing to help her as she sat in a filthy living room chair for weeks, Martin said. She died Feb. 23 of infected bed sores, severe dehydration and starvation.

The investigation took months because investigators had to wait for autopsy results and other tests, Martin said.

Dettra was arraigned before District Judge Patricia Engler and sent to Lehigh County Prison under $250,000 bail. Dettra faces a maximum prison sentence of 40 years, Martin said.

On October 26, 2006, the Associated Press updated the matter in its news report, found here:

District Judge David Leh ruled that Dettra would face trial in Lehigh County Court, and refused a request to lower his bail from $250,000.

Public defender Rich Webster argued that the charge against Dettra should be dismissed because he had no legal duty to care for his mother. "Are you kidding me? This is a mother-son relationship," said First Assistant District Attorney Maria Dantos.

The Pennsylvania Attorney General's Office, in a pamphlet found here, references the offense of "Neglect of Dependent Person", as follows:

As the elderly or disabled become more and more dependent on others for their care, it becomes increasingly important for individuals who accept the position of trust as caretakers of these vulnerable people to be held accountable for neglecting those in their care. Failure to provide the care and treatment necessary to maintain the welfare of those who depend on that care is every bit as dangerous and harmful as intentional assaultive behavior. Criminal neglect of a care dependent person occurs when a caregiver knowingly, intentionally or recklessly fails to provide treatment, care, goods, or service that is necessary to maintain the health or safety of the care dependent person. The failure must then result in bodily injury to the care dependent person.

The AG's Office then identifies "Indicators of Patient Neglect" that might occur in an institution:

• Care dependent persons who are malnourished, dehydrated, or have untreated bedsores.
• Staff failing to follow doctors’ orders with regard to treatment of a care dependent person.
• Failure to seek needed medical treatment for a care dependent person in a timely manner or not at all.
• Care dependent persons who appear unkempt, unclean, or disheveled.
  

For a good summary (4 pages) of the crime in Pennsylvania known as "Neglect of Care-Dependent Persons", created by Act 28 of 1995 (now set forth in 18 Pa. C.S.A. Section 2713), see the "Questions & Answers" found here.

The summary sets forth the prohibited neglectful acts, the definitions of "care-dependent person", "caretaker", & "bodily injury", and the penalties for violations, either as a misdemeanor of the third degree or as a felony of the first degree.

The summary also addresses related Pennsylvania laws:

• Act 13 of 1997 (35 P.S. Sections 10211, et, seq.) regarding "Mandatory Reporting of Abuse to Public Authorities"
• Act 169 of 1996 (35 P.S. Sections 10211, et. seq.) regarding "Prohibition on Hiring Persons With Criminal Convictions"

If one suspects elder abuse, voluntary reporting is advisable. The PA Department of Aging indicates here when & how to make a report confidentially:

• Any person who believes that an older adult is being abused, neglected, exploited or abandoned may file a report 24 hours a day with any Area Agency on Aging or call the statewide elder abuse hotline at 1-800-490-8505.
• Abuse reports can be made on behalf of an older adult whether the person lives in the community or in a care facility such as a nursing home, personal care home, hospital, etc.
• Reporters may remain anonymous.
• Reporters have legal protection from retaliation, discrimination and civil or criminal prosecution.

Tomorrow in Our "Future Home"

The Carousel of Progress -- the longest running stage show in the history of American theatre -- is a popular attraction currently located in Tommowland at the "Magic Kingdom" of Walt Disney World, in Lake Buena Vista, Florida.

It was designed as the prime feature of the General Electric Pavilion for the 1964-65 New York World's Fair, then was moved to Tomorrowland at Disneyland Park in Anaheim, California (1967-1973), and finally reopened in its present home in 1975. It was updated in 1964, 1967, 1975, 1981, 1985, & 1994. The last of the six scenes on the Carousel projects a vision of the home of the future, while the theme song, "There's a Great Big Beautiful Tomorrow", plays optimistically.

With the projected number of seniors in America who want to stay at home, perhaps that last scene should be updated again. The model might be the home described in the radio story "'Future Home' Adds Ease to Living for Everyone", by Joseph Shapiro, which was broadcast on National Public Radio's "Morning Edition" on Thursday, October 19, 2006. You can listen to it here.

Dave Ward is the resident curator of the place he calls the Future Home, a house that he has turned into a model of "universal design." It's the idea that where we live -- and the technology and products we use -- should be designed so they are easy to use for anybody, including a quadriplegic, like Ward or an elderly person who's frail or has cognitive disabilities.

The Future Home is in the middle of a state park in Phoenix, Md., about an hour north of Baltimore. The house is historic, but it mixes the old with the futuristic.

"This house was first built in 1855," Ward explains, "It was built as a tavern and inn, and it served the horse and buggy trade that traveled from Baltimore to Harrisburg, Pa."

When Dave became a quadriplegic after a fall in 1977 at the age of 30, he became interested in the concept of "universal design" as applied to where he lived, his historic house.

The NPR story explains the concept of "universal design": "The principles of universal design call for safe, user-friendly products that everyone can use, to avoid stigmatizing or segregating those who need them. The goal is to allow your family and friends to enjoy your home for years to come."

These design principles affect every aspect of a residence -- parking areas, building access, meal preparation, storage, furniture & fixture usage, climate control, and so much more. The article explains that new, cheaper technology can make possible a house that will be more user-friendly to a person of limited mobility. That would make a house, a home, for much longer.

In a companion text article, entitled "Oh Give Me a Home Where I Can Age in Place", the author, Adeline Goss, asks: "Is your home user friendly?" She adds: "That’s a question for people with disabilities as well as for anyone who's aging."

She replies by citing "universal design" principles: "On a practical level, universal design calls for brighter lights, safer stairs, symmetrical scissors (for righties and lefties) and other accommodations. The goal is to allow your family and friends to enjoy your home for years to come."

The Center for Universal Design (CUD), at North Carolina State University, is one resource for "universal design" nationally. It is an information, technical assistance, and research center that evaluates, develops, and promotes accessible and universal design in housing, commercial and public facilities, outdoor environments, and products. CUD explains that design should accommodate users' variances in sight, hearing, movement, and thought, and also consider the range of users' ages. Examples are illustrated here. CUD offers three catalogs of "Universal and Accessible Home Plans" here.

Another organization, Universal Design Education Online, seeks to train professionals and to inform consumers. It offers a great list of resources, under the heading "Accessible Design/Universal Design Resources".

How can we make "future homes" from our present abodes?

The NPR article outlines some simple steps on these concerns, which I paraphrase:

• See Better
• Sense Better
• Prevent Accidents
• Grip, don't Slip
• Relax in Place & Reduce Exertion
• Reach safely

AARP introduces seniors to "universal design" principles here, and then offers ten simple tips for improving an existing home:

• Install handrails on both sides of all steps (inside and outside)
• Secure all carpets and area rugs with double-sided tape
• Install easy to grasp shaped handles for all drawers and cabinet doors
• Use brighter bulbs in all settings
• Install nightlights in all areas of night activity
• Add reflective, non-slip tape on all non-carpeted stairs
• Install lever handles for all doors
• Place a bench near entrances for setting down purchases and resting
• Install closet lights, as well as adjustable rods and shelves
• Install rocker light switches; consider illuminated ones in select areas.

Yes, change comes; and it should be anticipated. Even on the Carousel of Progress, the current voice of the Grandfather was the original voice of the Father in the New York World's Fair version.

"One Life to Live" Plot Unwinds

According to the Miami Herald in its summary of plot lines for Friday, October 20, 2006, for various television "soap operas", personal & estate planning documents featured prominently in that day's plot of "One Life to Live".

See if you can find them & figure out how:

When Asa asked about Spencer's mother, Emma, Spencer said Asa had broken her heart. David got Spencer to admit Asa is Spencer's father (Emma was involved with Asa before she married David's father). Spencer refused to give David his power of attorney and said he was leaving his assets to ''Hugh'' (he doesn't know Hugh is dead). At his court hearing, Spencer stunned the Buchanan clan by announcing he is Asa's son. As prosecutor, Nora made a case against Spencer, who will stand trial. Spencer thinks he'll beat the charges against him. Bo and Kevin wondered if Spencer told the truth about being Asa's son. David ''helped Hugh'' (John) sign power-of-attorney papers. Hugh (John) tried to talk to Bo. Before finalizing their adoption of Tommy, Marcie and Michael learned the baby's ''birth parents'' had actually adopted the boy. Blair was upset to hear Todd tell Evangeline he and Blair aren't together.

If you need to the assistance of a "family tree" go here.

I think that there are some domestic law issues emerging from that plot too.

* * *

Update on 10/25/06:

After posting this entry, I sent an email message identifying it to Prof. Gerry Beyer, who authors the Wills, Trusts & Estates Prof Blog.

He took the "soap opera" idea to the next level. In a posting found here, titled "The Soap Opera - Estate Planning Interface", he enthusiastically suggests: "Perhaps an entire show could be designed around estate planning concerns and be named All My Decedents, As the World Ends, The Bold and the Decaying, Days of Our Demise, General Morgue, Going into the Light, One Life to Die, or The Old in the Rest Homes."

I know something about the new Retirement Living network. I mentioned it here. Now I gotta get to those producers before Gerry does!

Three Crucial Days for SB 628

"I understand the large heart of heroes,
The courage of present times and all times,
How the skipper saw the crowded and rudderless wreck
of the steam-ship,
and Death chasing it up and down the storm,

How he knuckled tight and gave not back an inch
and was faithful of days and faithful of nights,
And chalked in large letters on a board,
Be of good cheer, we will not desert you; . . .

In just three session days, Senate Bill 628 (discussed in my prior posts here and here) could pass the House and become law. But, if only considered on two session days, it would die in this legislative session.

If it dies, then the citizens of the Commonwealth -- along with their doctors, lawyers, caretakers, clerics, and insurers -- would be left, once again:

• with no statutory guidance for health care powers of attorney
• with no statutory authorization for non-appointed family members to direct health care of a patient
• with the existing, less effective statute for "living wills"
• with no statutory authorization for end-of-life decisions for those who have not executed a living will.

SB 628 is in a form that the House could adopt "as is" from the Senate, if considered strictly on its merits. In its present form in the House, it already incorporates and answers the concerns of its "stakeholders" -- physicians, lawyers, clerics, advocates for the disabled, end-of-life caretakers, and others -- since those negotiations were completed before its adoption by the Senate and referral to the House.

Now, can the House adopt SB 628 "as is" in this Legislative Session so that it could be presented to the Governor for signature into law?

In the House Judiciary Committee on Monday afternoon, October 23rd, around 2:30 pm, SB 628 received its "first consideration" by the House. It was then immediately referred to the House Appropriations Committee. It can receive its "second consideration" on Tuesday, October 24th during the House Appropriations Committee meeting. But then, the House will adjourn for the election, without a "third consideration" of SB 628. Further House session days are not presently scheduled, since the Legislature would be in a "lame duck" session, when, historically, new legislation generally is not adopted.

But could the House call a session of at least one more day after the election to give an approving third consideration to SB 628? It should. And it could if enough pressure is applied by constituents and interest groups, it would.

This scenario was discussed in an exchange of email messages between me and State Representative Steve Maitland on Monday afternoon, October 23rd:

• [SM:] Neil, this bill [SB 628] will be passed out of committee sometime today, but the clock is going to run out on it this session. The Senate has announced that it will not be doing anything substantive after the general election in the "lame duck" session, so today and tomorrow are it. Not enough time, alas, to get this bill to the Governor. - Steve
• [NH:] Why do Senate sessions affect House consideration, if there would not be any change in the bill?
  
• [SM:] A bill requires 3 days consideration in each chamber. Today will be "First Consideration" in the Judiciary Committee. Tomorrow will be "Second Consideration" in Appropriations. Floor voting is "Third Consideration" and the bill could go to the Governor if unamended, but we do not have a session day planned for the necessary Third Consideration. It may be, though, that a bill in that posture would still be taken up in the lame duck session...especially if the affected community really clamors for it... And yes, feel free to share my comments. - Steve

So, let's clamor! Contact your House Representative requesting a third session day post-election for approval of SB 628. If that would occur, then SB 628 could go to the Governor, and would be signed into law.

Pennsylvania would be a far better place to live -- or to get sick, and even to die.

. . . How he follow'd with them and tack'd with them

three days and would not give it up,

How he saved the drifting company at last..."

--Walt Whitman (1819-1892), "Song of myself"

[Lines 822-827, found here.]

Update on 10/24/06:

I received feedback on two points in the posting above.

First, SB 628 was not referred to the House Appropriations Committee for consideration on Tuesday, October 24th. Instead, according to the History of SB 628 found here, it was "laid on the table".

Second, I was advised that, historically, post-election "lame duck" sessions have been very active, with much legislation passing, and that not having a post-election session would be unusual.

The second correction provides hope that the House may indeed hold a post-election session for consideration of business, including SB 628. If so, contact now with Representatives becomes all the more important.

Update on 11/20/06:

SB 628 was adopted by the House 191-0. See: House Passes SB 628!

SB 628 : House Judiciary Cte Review

In a previous posting on October 19, 2006, found here, I noted the passage, by the Pennsylvania Senate, of Senate Bill 628, Printers No. 2117, of the 2005-2006 Legislative Session. Since then, I identified further resources that support the consensus built during 2006 into the present form of amended SB 628 in this Session, from the former final version of Senate Bill 492 of the 2003-2004 Legislative Session, which was vetoed by the Governor on November 30, 2004.

State Senator Stewart J. Greenleaf, of Montgomery County, the Majority (Republican) Chairman of the Senate Judiciary Commitee, in a Press Release, dated May 11, 2005, entitled "Greenleaf Living Will Bill Approved by Senate Judiciary Committee", found here, announced that the Senate Judiciary Committee had approved a form of SB 628 and reported it to the full Senate for consideration. His Press Release stated:

Legislation offered by Sen. Stewart J. Greenleaf to provide a clear statutory means for competent adults to provide direction for their health care through instructions written in advance of treatment or through designation of a health care agent was approved by the Senate Judiciary Committee and now awaits consideration by the full Senate.

Senate Bill 628, which is based on the recommendations of the Advisory Committee on Decedents' Estates Laws, would provide for comprehensive health care powers of attorney and a framework for their operation. The measure would permit a living will and health care power of attorney to be combined into a single document. It would also establish an order of relatives and companions that a health care provider may call upon to act as a health care representative if a patient is incapable of making health care decisions and has not executed a living will or health care power of attorney.

A similar bill sponsored by Greenleaf last session was approved by the Legislature, but vetoed by the Governor. Discussions are ongoing to resolve the issues raised by the Governor as the measure moves through the legislative process this session.

At the same time, State Senator Jay Costa, of Allegheny County, the Minority (Democratic) Chairman of the Senate Judiciary Committee, in a newletter, dated May, 2005, found here, also announced the Senate Judiciary Committee's reporting of SB 628, then in the form of Printer's Number 693, and further described it, as follows:

Senate Bill 628, Printer’s No. 693 -- This bill incorporates changes recommended by the Joint State Government Commission’s Task Force and Advisory Committee on Decedents’ Estates Laws. Provisions relating to advanced directives for health care (living wills) and provisions creating comprehensive health care powers of attorney are added.

Chapter 54 of Title 20 is reorganized into five separate subchapters:

• Subchapter A (General Provisions) —This chapter contains definitions, and also contains sections dealing with legislative findings and intent, compliance, conflicting advance health care directives, life insurance, health care instruments optional, pregnancy, and the effect of divorce.
• Subchapter B (Living Wills) — This chapter shall be known as the Living Will Act. This section outlines the execution, revocation, and validity of a living will. The subchapter also includes a section regarding the content of the form.
• Subchapter C (Heath Care Agents and Representatives) — This chapter provides for comprehensive health care power of attorney. With a health care power of attorney, an individual (principal) identifies and appoints a health care agent to make health care decisions on behalf of the principal. The power of attorney would become effective upon presentation to the attending physician and a determination by the attending physician that the person is unable to make or communicate health care decisions. The methods for executing, amending, countermanding and revoking the powers of attorney are similar to those for living wills. The health care agent would be granted the same powers to make health care decisions that the principal could have made and exercised. The agent also has the same right to health care information as the principal. The agent, after consultation with health care providers, shall make health care decisions in accordance with the understanding and interpretation of any instructions given by the principal. In the absence of instructions, the agent shall make health care decisions in conformity with the agent’s assessment of the principal’s preferences and values, including religious and moral beliefs. The agent shall act in accordance with his assessment of the principal’s best interests.
• Subchapter D (Combined Form) —This chapter contains a sample of a document that combines a living will and the health care power of attorney.
• Subchapter E (Out-of-Hospital Nonresuscitation) — This chapter was added to address out-of-hospital do-not-resuscitate orders in conformity with Act No. 59 of 2002. In addition the legislation clarifies provisions of the Probate Code relating to do not resuscitate orders that were added by Act No. 59.

But in May, 2005, the Pennsylvania Medical Society, in its member update found online here, indicated as follows:

Prior to the legislature's election day and Memorial Day breaks, Senate Bill 628 — End of Life legislation — was unanimously reported as committed from the Senate Judiciary Committee.

Committee chair Greenleaf stated that there is still a minor dispute between DPW and the medical community over the bill, but the governor has established a task force to work through this issue. All sources indicate that there is a great deal of support for this bill from last year and that moving the legislation is an effort to apply pressure on the parties involved to bring forth a compromise.

Then, in July, 2005, in another member update found online here, the PA Medical Society further indicated:

In early May, the Senate Judiciary Committee approved Senate Bill 628, legislation dealing with end of life issues. The bill is currently in the Senate Appropriations Committee.

The Society continues to have serious concerns about SB 628 and is working with the Rendell administration to address mutual issues of concern that led the governor to veto an identical bill last legislative session.

Those issues of the PMS apparently were addressed adequately in 2006, as integrated into the current version of SB 628, as evidenced by a recent member advisory found on the website of the Berks County Medical Society, entitled "Legislative Update October 5, 2006":

Both the House and the Senate of the State General Assembly are on a short break for the Columbus Day holiday. They will return for session the week of October 16th. The potential for legislative session days after that week, including the time period after the election, is unknown. * * *

End of Life -- Senate Bill 628 has reached a point of consensus among stakeholders. However, it has not yet been passed by the Senate and must still be considered by the House. If there is a Lame Duck session in Harrisburg this bill could be approved and sent to the Governor. Here is an excerpt of language from our letter to the Senate on the bill:

We believe that it is critically important that incompetent patients without advance directives be able to speak through close family members. Close family are usually the most knowledgeable about the patient's preferences, goals, and values; they have an understanding of the nuances of the patient’s personality and have a unique bond with the patient. Close family members almost always can be trusted to protect the interests of the patient and should not be forced to endure the expense, time, and emotional anguish of obtaining court approval to implement their family members’ wishes.

SB 628 is a significant improvement over a predecessor bill — SB 492 — that had been adopted in the 2003-2004 legislative session, but was vetoed by Governor Rendell at the urging of the Medical Society. In particular, SB 628 largely addresses problems in the prior bill that interfered with the right of incompetent patients to refuse life-sustaining medical treatment via their close family speaking for them.

Another interested organization, the ARC of Pennsylvania, now urges its members to contact House representatives immediately seeking approval of SB 628, by use of the following supportive letter, found online here:

Suggested Email Letter for ARC members -- I am an advocate for people with disabilities. Senate Bill 628 is under consideration by the General Assembly. The bill deals with advance directives and protecting people with disabilities. My understanding is that significant discussion, dialogue, and compromise have occurred on this bill amongst several organizations representing medical, legal, disability, and faith organizations. In addition, legislative staff and staff in the Governor’s Office have also been at the table during these discussions. The result of the negotiations is that a very good and strong bill is now before the legislature with broad support. This is why I'm asking you to support it and pass the bill this session.

According to the House Committee Schedule found online here, the House Judiciary Committee will meet in Room G50, of the Irvis Office Building, on Monday, October 23, 2006, for the purpose of considering SB 628.

Anyone who is interested in the outcome may wish to send an email message to their State Representative, or even to all Representatives (as I did over the weekend).

IRS Formalizes Appeals Arbitration Process

In a prior posting, I highlighted a program entitled "Practical Dispute Resolution", that was scheduled for Thursday, October 19, 2006, which was National (& International) "Conflict Resolution Day".

One day before -- on Wednesday, October 18, 2006 -- the Internal Revenue Service, in its News Release IR-2006-163, found online here, announced permanent inclusion of a tested arbitration process within its standard tax appeals processes.

This is the text of the brief News Release:

Washington — The Internal Revenue Service announced today that the Appeals arbitration process is no longer a pilot program but part of business as usual at the IRS. In arbitration the IRS and the taxpayer agree to have a third party make a decision about a factual issue that will be binding on both of them.

IRS Notice 2000-4 previously established a pilot program for cases in Appeals in which a taxpayer and IRS could jointly request binding arbitration on certain unresolved factual issues. When a limited number of factual issues remain unresolved during the course of an appeal, the taxpayer or the IRS can request arbitration and jointly select an Appeals or a non-IRS Arbitrator from any local or national organization that provides a roster of neutrals.

The permanent arbitration procedure may be used to resolve issues while a case is in Appeals, after settlement discussions are unsuccessful and, generally, when all other issues are resolved except specific factual issues for which arbitration is being requested.

Arbitration is not available for all issues. Some examples include legal issues, issues already in any court, issues in a taxpayer’s case designated for litigation, collection cases with certain exceptions, and frivolous issues.

The pilot program was created in 2000 for two years, then was extended, as follows:

• IRB 2000-3 -- Pursuant to section 7123(b)(2) of the Code, Appeals conducted a 2-year test of a binding arbitration procedure (Arbitration - Announcement 2000-4, 2000-3 IRB 317)
• Announcement 2000-4 -- Test of arbitration procedure for Appeals (Arbitration - Announcement 2002-60, 2002-26 IRB 28) -- This announcement extended the test of the arbitration procedures set forth in Announcement 2000-4, 2000-1 C.B. 317, for an additional one-year period.
• Appeals mediation procedure (Mediation - Rev. Proc.2002-44, 2002-26 IRB 10) -- This document formally established the Appeals mediation procedure, and modified and expanded the availability of mediation for cases that were already in the Appeals administrative process.

Revenue Procedure 2006-44, found here, now formalizes the "Appeals Mediation Programs for Small Businesses and Self-Employed Taxpayers", as announced in the News Release. As an alternative dispute resolution mechanism, it joins the "Fast Track Settlement Program for Large & Mid-Size Division Taxpayers", both of which are described in IRS Publication 4167 (pictured above).

The "Alternative Dispute Resolution" web page of the IRS is found online here.

How Does It Feel . . . With No Direction Home?

Once upon a time you dressed so fine.
You threw the bums a dime in your prime, didn't you?
People'd call, say, "Beware doll, you're bound to fall"
You thought they were all kiddin' you.
You used to laugh about
Everybody that was hangin' out.
Now you don't talk so loud,
Now you don't seem so proud,
About having to be scrounging for your next meal.
How does it feel? . . .

On October 18, 2006, the Philadelphia Inquirer published a news article, by Michael Vitez, entitled "Report Faults PA's Senior Care", found online here. The article notes a report released in August, 2006, by the Action Alliance of Senior Citizens and the Service Employees International Union, entitled "No Direction Home: How Poor Access to Home Care Puts Allegheny County Seniors in Nursing Homes" (31 pp.).

This Report began with its conclusion: "Pennsylvania is the second-oldest state in the nation, but ranks among the worst states for providing senior citizens with access to home care." The Report's "Executive Summary" then continues:

Most seniors who need long term care in the Commonwealth end up living in nursing homes, despite the significant cost savings of home care, and polling that shows the vast majority of Pennsylvanians would prefer to receive care at home instead.

Those who do receive home care report problems finding and keeping qualified caregivers due to high turnover. The turnover is fueled by poverty-level wages and a lack of benefits such as health care coverage, sick days, and vacation time for caregivers.

Pennsylvania's senior population is growing rapidly, so our elected leaders should take steps now to improve access to home care and build the stable, professional care-giving workforce that will be needed to meet the growing need for home care before it becomes a major crisis.

The organizations releasing the Report appear from their websites to be pro-labor, and so offer a different perspective on the problem of long-term care in seniors' homes. The article draws attention to portions of the Report focusing on workers who provide seniors with personal care in a home setting:

Those who do receive home care report problems finding and keeping qualified caregivers," the report said, noting that 40 percent of home health workers have been with their employer less than one year.

"The turnover is fueled by poverty-level wages and a lack of benefits such as health-care coverage, sick days, and vacation for caregivers," it said.

"The pay is bad, the working conditions are bad, the protections are bad, and they have no medical benefits," said Pedro Rodriquez, president of Action Alliance. "And seniors can identify. They want the person taking care of them to be taken care of as well."

The report also said that in 2004, Pennsylvania spent nearly three times more on nursing homes than on home care.

The PA Department of Aging maintains a web page regarding long-term care. The Department states: "In recent years, more and more people are choosing to stay in their homes and arrangements are being made for the care and services to come to them."

On its web page devoted to Long-Term Care "In Your Home", the Department says:

"In general, you have the greatest independence in your home and that is where you may prefer to stay. You don’t have to move from your home or apartment to get most long term care and services. Most home health care agencies, homemaker service companies, physical therapists, etc., will make arrangements to visit your home to provide them."

The article reports the Department's assertion that "the administration funded 2,800 more people in home and community care . . . [and it] also provided funding for 1,500 people with disabilities to receive care at home."

Yet the Report remains critical of long-term home care in Pennsylvania, stating:

• 80,000 Pennsylvanians are in nursing homes, 54,000 of them paid for with money from taxpayers.
• Fewer than 15,000 Medicaid recipients get home care.
• By 2020, 18.8 percent of Pennsylvanians are expected to be older than 65, an increase of half a million since 2000.
• The over-85 population is expected grow by 52 percent.
• There is a shortage of about 10,000 direct-care workers.

The full report can be accessed online here.

How does it feel?
To be on your own,
With no direction home,
Like a complete unknown,
Like a rolling stone?

-- Bob Dylan, "Like a Rolling Stone"

(Copyright © 1965; Renewed 1993 - Special Rider Music)

SB 628 Passes Senate(!) & Goes to House

On October 16, 2006, the Pennsylvania Senate adopted Senate Bill 628 in Printer's No. 2117, described online here. In its caption, SB 628 is declared to amend Title 18 (Crimes and Offenses) and Title 20 (Decedents, Estates and Fiduciaries) of the Pennsylvania Consolidated Statutes to provide, generally: for offenses of neglect of care-dependent person; for living wills and health care powers of attorney; and for implementation of out-of-hospital non-resuscitation. SB 628 would affect provisions of existing 20 Pa.C.S. Chapters 54 and 54A. This brief statement understates the tremendous importance of SB 628 for Pennsylvanians.

SB 628 is successor legislation to the former Senate Bill 492, which was introduced and adopted during the 2003-04 Legislative Session unanimously by both the Pennsylvania Senate (50-0) and the House (192-0). Unfortunately, SB 492, in its final form found online here, was vetoed by Governor Rendell on November 30, 2004, as explained in his veto message found here:

Senate Bill 492 addresses the difficult issue of end-of-life-care. In making the decision to veto this bill, I carefully considered the letters urging a veto of this bill sent to me by the Pennsylvania Medical Society, the Pennsylvania College of Internal Medicine, the President of Compassionate Choices of Delaware County, and numerous medical professionals who are part of hospital ethics committees or providers of Palliative Care. We all know that end-of-life decisions are best made before the onset of a severe illness or the occurrence of a severe injury. These letters point out, however, that unfortunately most Pennsylvanians do not have living wills and illness or injury is often sudden and unexpected. This leaves incredibly difficult decisions to be made by a patient’s family in consultation with the patient’s physicians. Although Senate Bill 492 would allow greater control for those with living wills or health-care powers of attorney, it could result in doing a tremendous disservice, and may even be harmful, to the overwhelming majority of Pennsylvanians who do not have formal advance directives. * * *

While I believe the intent of this legislation is worthy, I would look forward to working with members of the legislature to craft a bill that is broad enough to encompass the many painful and urgent realities of the family members who are intimately involved with the end of care decisions of their loved ones.

Due to the Session ending, the Legislature did not have an opportunity to override that veto. For the history of Senate Bill 492, see its legislative history here.

On April 13, 2005, SB 628 was introduced in the 2005-06 Legislative Session in a form identical to that of the former SB 492. Between May, 2005, and late June, 2006, SB 628 lay fallow in the Senate Appropriations Committee.

But discussions were occurring in 2006 among interested groups, particularly those that had opposed SB 492. The Governor's Office and the Department of Aging heard from the Pennsylvania Medical Society, the Pennsylvania Bar Association, the Joint State Government Commission, a coalition of disabled persons advocates lead by the ARC of Pennsylvania, and the Pennsylvania Catholic Conference, among others.

SB 628 was "removed from the table" in the full Senate on September 20, 2006, received two quick successive readings (on 09/27/06 & 10/03/06), and then received unanimous approval on October 16th. It was referred to the House for consideration. It may receive House Judiciary Committee review next week.

The ARC of PA, on its website here, predicts that "Senate Bill 628 as amended should pass this session." Given the unanimous approval in the Senate after input from some interested organizations which previously urged veto of SB 492, I would agree (assuming that there will be sufficient session days in October and November to secure House approval).

My good friend from Pittsburgh, Bob Wolf, of the law firm Tener, Van Kirk, Wolf & Moore, P.C., in an email alert sent October 17th, made the following points about SB 628 [Links added]:

1. It provides a full statutory framework for a health care power of attorney. An agent can have all of the power to control medical care as the principal. This is a very good thing.
2. It provides for Health Care Representatives to make decisions for those who do not have a guardian or a health care agent. The choice of representatives is based generally on blood relation like the intestacy law.
3. It gets rid of the old statutory form of living will and puts in its place a combined form of living will and health care power of attorney which is different from, but originated with, our Allegheny County [Bar Association] Form. It is a bit more complicated with more places to check, but much better than the old form.
4. It provides a more full description of the decision making process for health care agents and health care representatives -- it approaches nutrition and hydration on a basis consistent with the preservation of life and its priority and still allows flexibility to family members having to make decisions for a patient in the absence of an advance directive.

If the assessment as to the likely passage of SB 628 by the Legislature and signature by the Governor indeed will ring true, Pennsylvanians will finally be able to rely upon a statute that addresses surrogate health care decisionmaking and end-of-life caretaking.

New Uniform Orphans' Court Forms in PA

On October 16, 2006, the Pennsylvania Supreme Court, through its Administrative Office of Pennsylvania Courts, issued new uniform Orphans' Court Forms for practice before the Registers of Wills and the Clerks of the Orphans' Court Divisions in the Commonwealth. 

The Orphans' Court adjudicates matters involving agency (under power of attorney), guardianship, estate, and trust relationships. The proposed forms were published previously in the Pennsylvania Bulletin for comment on June 18, 2005, and November 5, 2005.

The Press Release, found online here, announces a single set of uniform forms for use thirty days after publication of the notice of proposed Supreme Court rulemaking. The new forms will be mandated for use in all counties of the Commonwealth for certain types of Orphans' Court filings.

It is appears that the forms will be of the PDF "fill-in" type, which can be printed by users after completion.

Following are some of the contents of the Press Statement:

The Supreme Court of Pennsylvania today adopted new rules for standardized forms for use in estate, trust and guardianship matters to make them easier to use and more accessible to lawyers and citizens across the Commonwealth.

The action creates - for the first time - a uniform set of filing forms for use statewide in Pennsylvania's Orphans' Courts and the Offices of the Register of Wills. The new forms will be available on the Internet through a section of the Pennsylvania Judiciary Web site (www.courts.state.pa.us) by the time the new rules take effect within 30 days. The Supreme Court directive promotes uniformity in the state's 67 counties and standardizes Orphans' Court matters in counties where no judge is assigned exclusively to such cases.

Because the forms will be available online, users will no longer be limited to completing only preprinted forms supplied by a Register of Wills or Clerk of Orphans' Court that required information to be typed or written onto the documents. Attorneys and citizens filing such forms may fill them out directly on a computer, and print them for submission at a county courthouse or file them electronically in counties with that capability. Electronic filing of Orphans' Court matters is now available only in Philadelphia County, but is expected to expand throughout the Commonwealth.

The online forms are grouped in an appendix which includes forms for use in both the Orphans' Court Division and the Office of the Register of Wills. As an added convenience provided by the court Web site, the Pennsylvania Department of Revenue's Estate Information Sheet is included in the listings. This sheet is used by the Department of Revenue to track the filing of Pennsylvania Inheritance Tax Returns and is submitted to the Register of Wills at the commencement of the estate administration process.

"These new forms further underscore the Supreme Court's commitment to consolidate Orphans' Court procedures to make sure they are more easily understood and uniformly applied," Chief Justice of Pennsylvania Ralph J. Cappy said. "Ending this lack of uniformity will certainly make the forms less confusing and streamline their use by citizens and our courts."

Chief Justice Cappy said the changes were adopted after careful study by the Orphans' Court Procedural Rules Committee over several years with input from judges and lawyers from various parts of the state.

Technically, the Supreme Court's Order takes five actions:

• Adopts Supreme Court Orphans’ Court Rule 1.3;
• Amends existing Supreme Court Orphans’ Court Rules 5.6, 6.9, 6.12, 10.1, 14.2, 14.5, 16.5 & 16.10;
• Repeals Supreme Court Orphans’ Court Rules 5.7, 16.11, & 16.12;
• Approves the explanatory "Committee Comments—2006" to Supreme Court Orphans’ Court Rules 5.5, 5.6, 5.7, 6.9, 6.12, 10.1, 14.2, 14.5, 16.5, 16.10, 16.11, & 16.12; and
• Adopts new uniform forms, including their index, as an Appendix to the Supreme Court Rules.

The Supreme Court's Order can be found here; and the Uniform Orphans' Court Forms can be found here. Both are in PDF format.

The Index of forms is as follows, with my addition of individual reference links:

Orphans’ Court and Administration Forms:

A. Audit and Administration Forms

1. Petition for Adjudication - Decedent’s Estate (Pa. O.C. Rule 6.9) - OC-01
2. Petition for Adjudication - Trust Estate (Pa. O.C. Rule 6.9) - OC-02 
3. Petition for Adjudication - Guardian of Estate of Incapacitated Person (Pa. O.C. Rule 6.9) - OC-03 
4. Petition for Adjudication - Guardian of Estate of Minor (Pa. O.C. Rule 6.9) - OC-04 
5. Petition for Adjudication – Principal’s Estate under POA (Pa. O.C. Rule 6.9) - OC-05 
6. Notice of Charitable Gift (Pa. O.C. Rule 5.5) - OC-06 
7. Notice of Claim - OC-07

B. Guardianship Forms

1. Important Notice - Citation with Notice (Pa. O.C. Rule 14.5) G-01 
2. Annual Report - Guardian of Estate - G-02 
3. Annual Report - Guardian of Person - G-03 
4. Guardian’s Inventory - G-04 
5. Petition for Adjudication - Guardian of Estate of Incapacitated Person - OC-03∗
6. Petition for Adjudication - Guardian of Estate of Minor - OC-04∗∗

∗ "Form OC-3 is not reprinted here and is located under Audit and Administration Forms at No. 3."
∗∗ "Form OC-4 is not reprinted here and is located under Audit and Administration Forms at No. 4."

C. Abortion Control Act Forms

1. Minor’s Application for Judicial Authorization of an Abortion (Pa. O.C. Rule16.10) - ACA-01 
2. Confidential Unsworn Verification by a Minor (Pa. O.C. Rule16.10) - ACA-02

D. Register of Wills Forms

1. Estate Information Sheet - RW-01 (Not adopted by Supreme Court; form promulgated by Department of Revenue and maintained with Register of Wills forms for convenience)
2. Petition for Probate and Grant of Letters - RW-02 
3. Oath of Subscribing Witness(es) - RW-03 
4. Oath of Non-subscribing Witness(es) - RW-04 
5. Oath of Witness(es) to Will Executed by Mark - RW-05 
6. Renunciation - RW-06 
7. Pa. O.C. Rule 5.6 Notice - RW-07 
8. Certification of Notice under Pa. O.C. Rule 5.6(a) - RW-08 
9. Estate Inventory - RW-09 
10. Pa. O.C. Rule 6.12 Status Report - RW-10

Update: 01/18/11:

The RW-02 form, "Petition for Probate and Grant of Letters", must be updated. See: PA EE&F Law Blog posting Update to Probate Petition in PA (01/18/11).