Tales Told in the Times Leader

Four articles separately appeared earlier this week (March 25-29, 2007) in one newspaper, the Times Leader (Wilkes-Barre, PA) -- a major publication in Northeastern Pennsylvania -- that highlight issues of many Pennsylvania seniors, and that offer an alert to younger residents who will deal with a growing "senior hood".

Read sequentially and considered together, these four separately sourced articles appearing in one newspaper over a short time, spotlight trends facing seniors and our society over the next twenty years.

Whether addressed by revolution or evolution, these situations will have both societal and individual effects that likely will create confusion and spawn creativity similar to the period described by Charles Dickens in A Tale of Two Cities.

The First Article -- "$1 million isn’t what it used to be — but it’s still awfully nice", by Eileen Alt Powell (published Sunday, March 25, 2007):

Renee Weese has reached an enviable goal — she’s become a millionaire. But like many others whose net worth has risen in recent years to seven figures, she doesn’t feel particularly wealthy.

Not that long ago, the word “millionaire” conjured up visions of chauffeured limousines, extravagant shopping trips and elegant yachts.

These days, a millionaire is more likely to be the guy or gal next door who saved carefully — and perhaps benefited from the sharp run-up in housing prices — but still worries about covering the exploding costs of children’s educations, caring for aging parents and funding their own retirements. * * *

The Second Article -- "Health costs strain retirement stash" (Wednesday, March 28, 2007):

Rising health care costs are eating up more of retirees’ savings, with a 65-year-old couple retiring this year needing about $215,000 to cover medical costs over the rest of their lives, Fidelity Investments said Tuesday.

The $215,000 represents a 7.5 percent increase from Fidelity’s estimate last year of the amount a typical U.S. couple would need during retirement to pay for health care, including medical and surgical expenses as well as prescription drugs.

That increase is slightly higher than the average annual increase of 6.1 percent since Fidelity began calculating retiree health care expenses five years ago. Since then, the highest increase came in 2005, when the estimate rose 8.6 percent. * * *

Those costs are rising faster than overall inflation because of increasingly expensive medical technologies, costlier prescription drugs and longer life expectancy. * * *

The Third Article -- "School retirees hear presentation on long-term care" (Wednesday, March 28, 2007, which included the photo above):

Bill Pitzer, long-term care insurance representative with Professional Insurance Services, presented a seminar to the Luzerne/Wyoming counties chapter of the Pennsylvania Association of School Retirees. His topic was on a long-term care program endorsed by the association. * * *

The Fourth Article -- "State lawmakers seek input on health care changes" -- Eachus says new legislation is possible now that Democrats are in the majority", by Rory Sweeney (Thursday, March 29, 2007, with a link to referenced pending legislative Bill):

A new majority in state government has opened legislative opportunities that were blocked during past sessions of the General Assembly, a local lawmaker said.

Health care reform had been “impossible to get” while Democrats were in the minority, state Rep. Todd Eachus, D-Butler Township, said. Eachus, who has been in Harrisburg for 10 years, is the Democratic policy chairman in the state House of Representatives.

Now, legislators are crisscrossing the Commonwealth, soliciting insight from the public on how to improve health care availability in the state.

The meetings have highlighted some key points, such as the fact that health care cost increases are straining the ability of Pennsylvania employers to pay for employees’ coverage, Eachus said.

“They are tired of insurance companies increasing health insurance … every year,” he said.

Ideas gleaned from the talks will figure into what Eachus calls “an aggressive … array” of more than four and fewer than 15 bills developed as a strategic plan by House Democrats.

“ … That’s going to be the framework for discussing health care reform in Pennsylvania,” he said.

The bills will be introduced within the next five weeks, according to Eachus. * * *

On March 28, 2007, the Daily & Sunday Review (Towanda, PA) published an editorial entitled "A long-term repair for long-term care in Pennsylvania". It asks the Legislature to provide effective services, with efficiency, to the aging population in Pennsylvania:

Pennsylvania’s roster of services for older residents is among the most comprehensive of any state. The state has the third-oldest average age among the states, with 20 percent of the population older than 60.

Yet, as the Times-Tribune in Scranton put it, the state is well behind most other states in adapting to financial trends affecting long-term care, a crucial but sometimes forgotten aspect of health care. * * *

Now Democratic Gov. Ed Rendell and two legislative Republicans have proposed changes akin to those in the 37 other states that have reduced their costs. Assisted-living facilities would be defined under state law as institutions that may accept Medicaid patients and be regulated by the state government.

There is a dispute in Pennsylvania between operators of personal care homes and assisted-living centers over legal definitions, Medicaid eligibility and regulation.

But for the state, the objective is to find less costly, alternative forms of care for older residents who need some assistance short of the round-the-clock nursing services provided by nursing homes.

Following the lead of other states by creating more options for older residents, short of the most expensive option, is a good idea that will help stretch reduced federal funding of Medicaid.

We agree with the Times-Tribune [Scranton PA, Editorial, March 27, 2007, "Long-term repair for long-term care"] that the Legislature should seize the opportunity.

"It was the best of times, it was the worst of times; it was the age of wisdom, it was the age of foolishness; it was the epoch of belief, it was the epoch of incredulity; it was the season of Light, it was the season of Darkness; it was the spring of hope, it was the winter of despair; we had everything before us, we had nothing before us; we were all going directly to Heaven, we were all going the other way."

-- Charles Dickens, Opening Lines of A Tale of Two Cities
(published serially, April-November, 1859)

Secretary of Aging on PA's AAA Network

Nora Dowd Eisenhower, as Secretary of the Pennsylvania Department of Aging, offered testimony before the Aging and Youth Committee, of the Pennsylvania State Senate, on March 27, 2007. [Why? See the Update below.]

Secretary Eisenhower reported to that Senate Committee's Chairs -- Patricia H. Vance and Leanna M. Washington -- and to the other members, about local services offered to residents over sixty years old by the statewide network of "Area Agencies on Aging", in conjunction with her Department and other state agencies, such as the Department of Public Welfare.

She distinguished the roles of the Department of Aging from those of the local agencies:

It is the responsibility of the Department to ensure:

• that consumers receive fair and consistent treatment in every county,
• that state and federal funds are used judiciously, and
• that we define our expectations of the network which include issuing clear guidance and direction around performance outcomes, data tracking, cost reporting, and customer service.

The AAA network is equally responsible to assure high-quality, timely services for our seniors. In achieving this, each AAA is accountable:

• to use tax dollars responsibly,
• to have a productive, well-trained staff, and to
• operate in an efficient manner.

It is our collective responsibility to provide the highest quality services to our elders in need and to be accountable to Pennsylvania taxpayers.

Recent discussions between these two levels of government resulted in "our shared commitment to three basic goals":

• Consistency and equity in eligibility determinations across the Commonwealth. In order to gauge consistency, we monitor the number of medical conditions identified and the amount of help (Activities of Daily Living – ADLs) that a senior needs, such as feeding, bathing, dressing and toileting. We want to make sure that similarly situated, clinically comparable consumers can count on similar outcomes – equivalent eligibility determinations – no matter where in the state they reside.
• Consistency in cost. We’re trying to make sure that the cost of performing the eligibility assessments is reasonably consistent and uniform across the Commonwealth so that our resources are fairly distributed among the AAAs and throughout the state.
• Consistency in productivity. Again, I believe our partners at the AAAs share our commitment to prudent use of the Commonwealth’s resources. In this regard, we have pledged to share with the AAAs data on the relative numbers of staff the agencies dedicate to the assessment process, as well as comparative data on the number of assessments completed by the staff over the course of a year. We want to make sure that we are all managing the system effectively and getting the best possible results from our tax dollars.

She acknowledged that "challenges exist at both levels, and that change is needed within the Department, as well as in the network."

She reviewed some of the recently implemented changes that affect seniors in need of services or resources, which are available through the Aging system. She then explained the present steps for a resident to initiate requests, and for the agencies to respond.

She also took note of "some of the concerns I have been hearing from directors, counties, legislators, and other stakeholders":

First, I want to assure county commissioners and workers that the dialogue has just begun. We do not foresee any impact on jobs.

Second, we are committed to spending the time to get this right, to address these important issues.

Third, we will not make any changes that result in a less responsive system for consumers; in fact our goal is the opposite.

She ended her testimony with these assurances:

In closing, I want to assure you that we are committed to a productive process that directly engages the AAA network, and we share the same goals of creating a timely, effective, equitable, and accountable system that allows us to serve the greatest number of older Pennsylvanians.

The text of her complete testimony, as posted by the Department of Aging on March 28, 2007, can be found online here.

Update: 03/30/07:

Do you want to learn the "story behind the story" as to why such testimony was presented before the Senate's Aging & Youth Committee?

Well then, see: "Rendell's elder services plan is raising doubts", by Gary Rotstein, published in the Pittsburgh Post-Gazette on Tuesday, March 27, 2007.

Here are some excerpts:

The Rendell administration wants to centralize the state's system for evaluating older adults who apply for government-funded services, but local aging officials worry the plan will just delay getting help to consumers.

The state Senate Aging and Youth Committee meets in Harrisburg today to hear about the plan from both Pennsylvania Department of Aging officials and representatives of county aging agencies. The agencies would be stripped of one of their primary functions if the plan is implemented in 2008, as the Rendell administration wants.

The proposal calls for a private or public agency to be contracted anew to assess the status of adults seeking aging services, which can include qualifying for in-home assistance, subsidized nursing home care or other help. Fifty-two aging agencies across the state now perform the evaluations and follow up by coordinating services for those who are eligible. * * *

Local aging officials * * * say state officials failed to consult with them about the changes, which they contend would add an extra step and possible confusion for the often-frail individuals seeking help. Two people and agencies, instead of one, would be responsible for evaluating someone's health and resources and arranging help.

Officials from the agencies covering Allegheny, Westmoreland, Fayette, Greene and Washington counties, among others, fail to see any positives from such a move. * * *

After reading the entire newspaper article, go back and reread the Secretary's testimony. It will make more sense in the reported setting.

PA Governor's Six Sweeping Reform Proposals

On March 26, 2007, during a public appearance, Governor Edward G. Rendell announced six major proposals for reform in Pennsylvania that would affect open public records, campaign finances, legislators' term limits, merit selection of judges, reduction in the size of the Legislature, and designation of elective districts.

The Governor's Press Release, dated March 26, 2007, is entitled "To Improve Accountability, Governor Rendell Unveils Historic Reform Proposal". It opens with a statement of the need for reform in six fundamental areas of Pennsylvania government:

Governor Edward G. Rendell today unveiled a six-pronged proposal that would dramatically change the way Pennsylvania government operates and help restore the public’s trust.

The package, unveiled during an appearance before the Pennsylvania Press Club, would give the public and the press a wider look at the business functions of state government, impose limits on campaign contributions and otherwise tighten campaign finance rules, change the constitution to limit lawmakers’ time in office, establish new requirements for legislative redistricting, provide for the merit selection of judges, and have the General Assembly form a commission to make recommendations on how to reduce the size of the legislature.

“Citizens will not rest until there is an end to perks, an end to control by private interests and an end to political rules that shut them out of the process,” the Governor said as he noted the changes the House and Senate are already debating and the media coverage they’re receiving. * * *

The Governor said some of his proposals have been debated – and proposed – before, but he said the time is right to make these changes now.

The Press Release explains the proposed initiatives (some of which would require amendment to the Pennsylvania Constitution) under headings, with longer explanations after the introductions:

Open Records

Governor Rendell said there have been significant changes to the commonwealth’s open records laws, but he said more work remains. More than 5,000 right-to-know requests have been received by his administration since he became Governor in 2003, yet the constraints of current law forced the denial of half of those. * * *

Merit Selection of Judges

The Governor’s proposal for merit selection would replace the current election of state appellate court judges with a system that requires nominations from the Governor based on a list of judges recommended for appointment by an Appellate Court Nominating Commission. Nominees would require Senate confirmation. * * *

Campaign Finance Reform
Governor Rendell’s proposal to change the way candidates can raise money would also restore the public’s faith in the election process. * * *

Legislative Reapportionment

Under his proposal to ensure that State legislative districts are not configured to benefit candidates or political parties, Governor Rendell is calling for the creation of a nine-member citizens’ commission to replace the current method of reapportionment. * * *

Reducing the Size of the Legislature

Governor Rendell said he is proposing an 11-member commission to study the size of the legislature and to make recommendations for an amendment to the Pennsylvania constitution that would reduce the number of members of the General Assembly. * * *

Term Limits

Governor Rendell said his term limits proposal will require an amendment to the state constitution and will be phased in after it is adopted in two sessions of the General Assembly and is approved by voters. Once in place, members of the House of Representatives and the Senate would only be allowed to serve eight years – or four, two-year terms in the House; and two, four-year terms in the Senate. * * *

The Press Release reported Governor Rendell's optimism in proposing such fundamental changes:

“Legislators’ passion for these changes is what makes this state and this nation great and the press’s work to continue to report on the progress and flaws in these efforts is critical to making sure we don’t ever stop moving this work forward.”

Would you be surprised if you read the following reaction by the press?

On first glance, Governor Rendell's Plan for a New Pennsylvania looks like the proverbial kitchen sink. It is crowded with a multitude of proposals. * * * The Plan, by any reckoning, is aggressive, complicated, and not the way Pennsylvania usually does things.

The debate on it hasn't really started. When it does, we can expect that each part of the Plan will generate vocal advocates, critics, and at least 45 alternative proposals. But now is a good time to take a quick look at the issues behind the governor's proposal.

Actually, that is not a reaction to the Governor's present six-pronged proposal.

No, this reaction, as reported in an article entitled "Putting big issues on Pennsylvania's policy table", which was posted online by IssuesPA (an initiative of the Pennsylvania Economy League), had occurred in response to another Press Release issued four years ago -- on March 26, 2003.

That prior proposal related to Governor Rendell's "Plan for a New Pennsylvania", which was not funded by the Legislature thereafter, according to subsequent reports. See: "Killion Releases Statement on House Defeat of Tax Increases" (09/16/03).

Back then, with the Governor's political party in the minority, a compromised, limited property tax reduction enactment eventually resulted from Rendell's initial proposals. This time, the Democrats hold a slight majority in the Legislature.

What will be the outcome of these new proposals? Only the ensuing political debate will tell.

At least in discussions on the "Open Records" aspects of the Governor's six new proposals, I hope that someone will advocate the public's need for online availability of already-enacted Pennsylvania statutes. See: "Sunshine Week" in PA Neglects Statutes" (03/20/07).

But that should not be a political agenda item. It should be an executive implementation of a routine "good government" practice, as already conducted in the other 49 states.

* * *

Update: 03/29/07:

The Philadelphia Bar Association publicly endorsed Governor Rendell's proposal for merit selection of Pennsylvania judges. See: Press Release, dated March 28, 2007, entitled "Bar Association Applauds Governor's Proposal for Merit Selection of Judges":

The 13,000-member Philadelphia Bar Association today applauded Gov. Edward G. Rendell's announcement on Monday proposing an appointment-based system to replace the current system of electing Pennsylvania appellate court judges.

"We commend the Governor for taking this important step and look forward to working with him and the Legislature in finalizing this proposed Constitutional amendment for consideration by the citizens of Pennsylvania," said Association Chancellor Jane Dalton.

Calling the current system "a terrible process" for selecting judges, the Chancellor noted that the state's system of electing judicial candidates is based on an appearance of "pay-to-play" tactics that force those candidates to accept contributions from lawyers and special interest
groups that will, one day, argue cases before them.

"That is the opposite of everything we stand for in a fair justice system," Dalton said. * * *

* * *

Update: 04/13/07:

For a further development, see: " Officials hold 3d hearing on revamping Pa. government", by Vernon Clark, published April 12, 2007, in the Philadelphia Inquirer.

At the University of Pennsylvania Law School, two state senators heard testimony yesterday on the convening of a constitutional convention for the reform of state government.

State Sens. Jeffrey E. Piccola (R., Dauphin) and Michael Folmer (R., Lebanon) held the third hearing on the topic, listening to the views of three speakers: an area lawyer and author, a Rutgers University law school professor, and the president of the local League of Women Voters. Previous hearings were held in Harrisburg and Pittsburgh.

* * *

New Estate Attorney Blogger in PA

Attorney Charles R. Goerth, of Exton, PA, began posting blog entries onto his sole practitioner website on February 23, 2007. Since then, he has posted his thoughts frequently on estate planning and elder law topics, some peculiar to Pennsylvania.

According to his website, Charles wrote professionally before practicing law.

Prior to embarking on the practice of law I was a publisher and editor of several small business and professional magazines. I combined law and business for a number of years through business journalism. I wrote a column called “The Legal Impact” for a business magazine in Chicago. * * *

Since October, 2004, Charles wrote a newsletter in conjunction with his law practice, which he began upon his transplantation from Illinois to Pennsylvania for family reasons. He distributed it in paper form monthly -- most recently to a mailing list of approximately 750 recipients.

In recent email exchanges, he told me that he converted all prior newsletters (Oct, 2004 - Nov, 2006) into web postings, and then embarked on "blogging" as a replacement for his newsletter. His newsletter archive, with an index of content of each issue, is found online here.

Of the postings made by Charles since late February, 2007, I find these the most interesting:

• Must a deceased person’s Will always be filed with the Register of Wills? (02/27/07)
• The Postnup is getting new attention (02/28/07)
• PA puts new Medicaid rules in writing (03/07/07)
• In search of a universal Will (03/12/07)
• How old is that Property Power of Attorney? (03/16/07)
• How safe is your home safe? (03/20/07)
• Do HCPA Agents have discretion? (03/23/07)
  
• How best to dispose of your mortal remains (03/26/07)

Charles was the teacher of three, eight-week courses for adults held at the Chester County Night School, focusing on personal legal documents, such as a Last Will and advance care directives. These are workshops for his ideas in practice.

I first met Charles on March 21st, at the Montgomery Bar Association building. I had completed a 1 1/2 hour "Act 169 -- Advance Health Care Directives" presentation, made jointly by me and by elder law attorney Harris J. Resnick, Esq., to 85 lawyer-members. Charles mentioned that session in his March 23rd posting, when he considered how to address the provisions of Act 169 for his clients and students.

I wish Charles all the best as he writes his personal views publicly on topics encountered in his practice.

Update: 01/02/08:

On January 1, 2008, Charles suspended writing his blog, hopefully temporarily. His posting on that date entitled "Blog is taking a leave of absence -- Or, after 113 postings Blog and I need a rest" indicated his reason:

I have decided that as a result I haven’t done justice to my practice, to my Blog or to myself and family.

So, Blog and I are taking a leave of absence until I can organize my practice in a way to do justice to all three. * * *

I hope that Charles resumes his blog writing. His observations were incisive, witty, and practical.

Cremation, "Car Talk" Style

Car Talk is the weekly radio show by automobile mechanics/engineers/entertainers Tom Magliozzi & Ray Magliozzi ("Click and Clack, the Tappet Brothers"), of Boston, Massachusetts (the "Car Guys").

This focused -- and sometimes funny -- question & answer exposition about cars, car repairs, or car junk, offers much to professional advisors and consumers alike, as heard throughout America on National Public Radio. The show is described by Wikipedia, here.

This is an example of the kinds of issues introduced on the show by the Car Guys:

I have two brothers. One is in auto sales.

The other brother was just sentenced to death in the electric chair for murder.

My mother died from insanity when I was three years old. My two sisters are prostitutes and my father sells narcotics.

Recently I met a girl who was just released from a reformatory where she served time for smothering her illegitimate child to death, and I want to marry her.

My problem is: If I marry this girl, should I tell her about my brother who is in auto sales?

Their reach extends not only through their radio show, but also from their extensive, eclectic, educational Car Talk website (which does not bear any Circular 230 Disclaimer -- so, rely all you wish).

Over the years, many professionals -- accountants, attorneys, bankers, charitable giving officers, financial planners, and IRS income tax auditors, to mention a few -- have attended to the sage on-air advice delivered by the Tappet Brothers, who speak freely & unrehearsed.

For example, Tom & Ray have provided such needed guidance as:

• How to make the donation of an automobile to a local public radio station and thereby achieve an income tax deduction:
• "Why not donate it to benefit your local public radio station? Thanks to the Car Talk vehicle donation program, you can now clear out your driveway, support your local public radio station and get a tax deduction — all in one fell swoop. Interested — or know someone who might be? Check out the full scoop, below. And thanks — for supporting your local NPR station, and for listening to our lousy show."
• How to adjust a vehicle's two outside mirrors properly to attain a full field of rear vision & thereby avoid accidents from the "blind spot" (and, therefore, premature death) -- Developed with Allstate as one of many safety & good driving tips listed in their website's "Car Talk Safe Driving Zone":
• "For years, we'd been setting our side-view mirrors so that they gave us a view of the back corner of our cars. This is the way it's been done for generations -- from grandfather, to father, to us! But we finally discovered something very interesting. The back corner of the car never moves. It always stays in the same exact place. So there's really no reason to keep an eye on it."
  
• How to calculate the cost of a vehicle acquisition -- in conjunction with Cars.Com
• How to value a used vehicle -- with values provided by Kelley's Blue Book
• How to deal with vehicles -- with information or links provided on topics of buying, selling, or owning

Previously, some more personal material was discussed or posted by the Car Guys relevant to elder law or eternity matters, including:

• Senior Personal Ads
• Fatal Gift
• Funeral
• That's Entertainment
  
• Lawyers and the Devil
  
• Nobody Loves a Lawyer
• Lawyer Bashing Through the Ages

I believe that the closest the Car Guys got to personal commentary about a funeral was their reading & posting of an obituary for English Professor Louis Casimir, Jr., who taught at Bucknell University (before, during & after the time I studied there as an undergraduate English major). Louis died in Lewisburg, Pennsylvania, on February 5, 2004.

This past weekend, however, the dynometric duo revealed their expertise on car-related cremation arrangements. On March 24, 2007, their radio broadcast began with the rendering of advice on advance funeral arrangements, from their specialized Estate Planning Department.

On-the-air they answered a written inquiry by Sanjay Shah, of Venice, California. See: Something Sanjay in the Air:

On this week's Car Talk, Tom and Ray open things up with a macabre question from a Hindu car enthusiast with a flair for afterlife planning.

End of the Road?

Hey guys,

I have a macabre question. I'm both Hindu and a car enthusiast. Hindus customarily get cremated when we die.

I'm putting together my will and would like to require my ashes to be deposited into the gas tank of my favorite car. Then, I want the car driven down my favorite river road in California. This is how I want my ashes poetically spread.

My question is: Will this also poetically destroy the car? If so, I need to make sure the car is then driven directly to a Pick-N-Pull.

Thanks guys.

After first suggesting that the car could be cremated too, the Car Guys confirmed that there would, indeed, be serious problems with such a special additive to gasoline.

Ashes in gas likely would clog the fuel filter first. Those ashes not trapped by the filter then would likely plug up the fuel injectors. The cremation car would sputter to a dead stop.

So, yes, a tow truck would be necessary if a long drive towards eternity would be contemplated.

But Ray offered a viable, creative alternative for Sanjay's advance funeral directions.

Instead, he suggested, the ashes could be placed into an open urn placed on the back seat of the car (with the rear windows open), or affixed somehow to the outside of the car.

Then, when the car would be driven on the "river road", the rushing wind would "suck the ashes out" to be "better distributed" over the entire countryside.

Brother Tom disputed that this method would not carry out Sanjay's original wishes. Ray responded by saying that he didn't write the original letter with that request. He was trying to suggest something that would work.

You can hear the Tappet Brothers play taps to cremation ashes as a fuel additive here, using Internet Explorer and RealPlayer on a multi-media computer: Segment One: Show Open: Ashes To Air Filter: Sanjay's Last Wish.

* * *

"Don't drive like my brother."

-- Tom Mazliozzi

"And don't drive like my brother."

-- Ray Mazliozzi

* * *

Update: 03/27/07:

Attorney Charles R. Goerth, of Exton, PA, commented & expanded on my posting, by way of his personal law blog, on March 26, 2007. See: "How best to dispose of your mortal remains".

Update: 03/31/07:

Attorney Sam Hasler, who writes the Indiana Civil & Business Lawyer blog, noted this posting in his entry "Final Resting Place a Gas Tank?", dated March 30, 2007.

Disposal of Remains in PA: Pt II

[This is a continuation and the conclusion of Disposal of Remains in PA: Pt I, posted March 22, 2007.]

The trial court judge had ordered Alternative No. 3 among the proffered choices -- a division of the deceased son's ashes into two parts, with each parent authorized to dispose of their portion in an individual urn.

The Superior Court found error in the principles applied by the trial court judge to arrive at such a division. A decedent's remains were not a property interest that could be owned, claimed, or divided as tangible property among survivors.

Instead, the dispute must be resolved upon the statutory and common law "authority" granted to certain qualified next of kin to direct disposition of the remains of a deceased person. A dispute about that authority should be adjudicated by a judge separately from property matters.

The court reviewed the current applicable Pennsylvania statute -- Section 305, Chapter 3, of Title 20, captioned "Right to dispose of a decedent's remains".

I summarize key points of Section 305:

• A living person can provide -- in a valid, executed Last Will to take effect after death -- for a particular manner of disposition of their remains.
• A person can make an anatomical gift from their body under §8611(a). [Unofficial Citation]
• If no provisions or gift are made, then §305(a) governs who will make the "determination of the final disposition of a decedent's remains".
• A person so designated under §305(a) still may waive that authority and agree to other arrangements.
• When a married person dies without directions, then the "surviving spouse shall have the sole authority in all matters pertaining to the disposition of the remains".
• However, a surviving spouse can forfeit that authority due to "enduring estrangement, incompetence, contrary intent, or waiver and agreement, which is proven by clear and convincing evidence" to a court.
• "Contrary intent" is "an explicit and sincere expression, either verbal or written, of a decedent adult or emancipated minor prior to death, and not subsequently revoked, that a person other than the one authorized by this section determine the final disposition of his remains."
• If there is no surviving spouse (and absent the same disqualifying events), then "the next of kin shall have sole authority in all matters pertaining to the disposition of the remains of the decedent."
• If those disqualifying events are alleged, a court must hold a hearing "within 48 hours of the death or discovery of the body of the decedent, whichever is later".
• Pending its determination, a court may order that no final disposition of the decedent's remains take place.
• Notice of the hearing must be provided "to each person with equal or higher precedence than the petitioner", to their counsel (if known), and to "the funeral home or other institution where the body is being held".
• The court may require posting of a bond, which could be applied against counsel fees if the petitioner does not prevail.

Section 305(d) addresses the situation when two or more persons with equal standing as next of kin disagree on disposition of the decedent's remains. Then, a judge's task is to determine who should have "the authority to dispose", which "shall be determined by the court, with preference given to the person who had the closest relationship with the deceased."

The Superior Court cited two cases to guide a trial court in making a determination:

• Pettigrew v. Pettigrew, 56 A. 878 (Pa. 1904); and
• Novelli v. Carroll, 420 A.2d 469 (Pa. Super. 1980)

Despite being issued over a hundred years ago and having addressed a "reinterment" situation, the Pettigrew case remains a central case in Pennsylvania law concerning burial rights. The Pennsylvania Supreme Court held that the paramount right to control the body of a deceased person for interment is in the surviving spouse, but, if there is no spouse, then in the "next of kin".

Pettigrew required that "the wishes of the decedent and the interests of the public [must] be considered"; and also held that "the rights and feelings of the surviving spouse or next of kin are paramount".

Nearly eighty years later, in Novelli, the Superior Court expanded upon the factors that must be considered by a court in deciding a request for "reinterment."

In the current Kulp case, the Superior Court found that some of those factors would be relevant, also, in the resolution of a dispute under Section 305:

• the degree of relationship that the party seeking reinterment bears to the decedent and the strength of that relationship;
• the degree of relationship that the party seeking to prevent reinterment bears to the decedent;
• the desire of the decedent, including the “general presumption that the decedent would not wish his remains to be disturbed,” or a specific statement of desire by the decedent;
• “the conduct of the party seeking reinterment, especially as it may relate to the circumstances of the original interment;”
• the conduct of the person seeking to prevent reinterment;
• “the length of time that has elapsed since the original interment;” and
• the strength of the reasons offered in favor of and in opposition to reinterment.

The Superior Court held that the trial court did not consider the governing factors set forth in Pettigrew, as expanded in Novelli. The trial court's ruling was vacated, and the case was remanded for further fact-finding under these factors.

So a resolution in the Kulp dispute cannot be reported yet. Separately, while unaware about the pending Kulp appeal (and long before the deaths of Brown & Smith), I suggested that Section 305 should be evaluated for fairness and effectiveness. At the February, 2007 meeting of the Advisory Committee on Decedents' Estate Laws to the Joint State Government Commission, a small, ad hoc study group was authorized to examine and report upon Section 305. I am a member.

The laws of various states on these matters are summarized in a listing provided by the Funeral Consumers Alliance, of South Burlington, Vermont, entitled "Personal Preference Laws for Body Disposition". Pennsylvania's provisions are summarized by FCA, as follows:

"Pennsylvania statute Pa.C.S., Subsection 305, gives citizens the right to make a "statement of contrary intent" that will override the next-of-kin's usual authority and let the citizen designate whom he wants to control the disposition of his body."

For a more modern approach, we will review a recent statute enacted in Ohio (§ 2108.70. -- Definitions; declaration assigning right of disposition to representative), effective October 12, 2006, that authorizes an individual to appoint another to carry out specific wishes regarding disposition of remains, as specified in a statutory form ("Declaration for Disposition of Bodily Remains"). The person named in the form would have superior rights over all other individuals, including the decedent’s family members, on such matters.

Texas similarly provides a 3-page standard form (PDF) for exercise of Texans' rights, as granted under Texas Health and Safety Code §711.0, to express personal wishes, or to name an agent, regarding the disposition of remains.

Any comments on these issues, feedback on the effectiveness of the existing PA law, or suggestions as to revised statutory provisions or a new standard form, would be gladly received and taken into consideration.

Disposal of Remains in PA: Pt I

No advance directions and different post-mortem proposals for disposition of the remains of Anna Nicole Smith (buried March 2, 2007) and James Brown (buried March 12, 2007) resulted in disputes among their survivors.

These disputes stirred general interest in funeral planning. Ronald Hem, Esq. wrote a short, excellent article about the subject, entitled "Let loved ones know your funeral plans", published on March 18, 2007, in the Chicago Beacon (Chicago Sun-Times News Group).

If you have signed your will and/or trust, powers of attorney and retitled your assets, if appropriate, you are probably ahead of most people when it comes to getting your affairs in order. However, you should not consider your task complete unless you have also given some thought to your funeral and the disposition of your remains.

Planning your funeral and making your wishes known to your loved ones is important in order to avoid placing them in the uncomfortable position of guessing what you would want to have done. Doing so also increases the likelihood that your wishes with respect to major issues such as whether to have a funeral service, a memorial service or no service, a visitation or no visitation, a closed or open casket, burial or cremation, will be carried out.

Too often estate planning attorneys (included this writer) fail to give sufficient emphasis to the importance of funeral planning.

Vendors and non-profit organizations promote advance funeral arrangements. For example, Consumer Advisory Association asks (& answers) relevant questions on its website:

Why should I leave written instructions about my final ceremonies and the disposition of my body?
Why not leave these instructions in my will?
What happens if I don't leave written instructions?
What details should I include in a final arrangements document?

As to failure to plan, CAA indicates a possible result:

Disputes may arise if two or more people -- the deceased person's children, for example -- share responsibility for a fundamental decision, such as whether the body of a parent should be buried or cremated. But such disputes can be avoided if you are willing to do some planning and to put your wishes in writing.

The Pennsylvania Funeral Directors Association commissioned & then published online a study regarding funeral arrangements in Pennsylvania. The 43-page report was entitled 2005 Funeral Planning Study.

To obtain these opinions, telephone interviews were conducted with a random sample of Pennsylvania residents 50 years of age and older.

Topics that investigated in this research included:
• Persons who would prearrange or prefinance a funeral
• Perceived importance of using a licensed funeral director
• Benefits of prearranging or prefinancing a funeral
• Interest in prefinanced funds being portable between funeral homes.

Some of the findings relate to the extent of pre-planning:

Respondents were fairly evenly divided when asked if they know anyone who has prearranged a funeral. Slightly over half (52.9%) report knowing someone who has done so.

Respondents are less likely to know someone who has prefinanced a funeral (43.8%).

Almost three-fourths of the respondents (70.4%) know someone who has made arrangements with a cemetery. Of these, most have purchased a cemetery plot only (69.7%).

See the entire report for the detailed findings and data analysis.

If no "funeral planning" is done, what rules apply to disputes about the disposition of remains in Pennsylvania?

On March 12, 2007, the PA Superior Court issued an 11-page opinion providing guidance.

In Kulp v. Kulp (Pa. Superior Court, No. 269 MDA 2006), the setting of the dispute was a divorce action. Separated parents disagreed about the disposition of their late son's cremated remains. In conjunction with equitable distribution of their marital property, a trial judge was called upon to resolve the dispute.

There were three alternatives considered by the Judge. Which, if any, would you choose?

1. That the ashes be buried in a memorial park or cemetery of mutual choice within Schuylkill County, with a portion remaining in a keepsake for each party;
2. That the ashes be placed in an above-ground urn niche in a memorial park or cemetery of mutual choice within Schuylkill County; or
3. That the ashes contained in the present urn be divided and placed in two separate urns, with each party placing their individual urn at a site of their choosing.

The Superior Court accepted an appeal from the Judge's ruling.
The Superior Court considered two issues:

• Were the ashes of the parties’ deceased child property of the parties and therefore divisible?
• What factual analysis was required in making a decision for disposition of remains?

In Part II of this posting, I will analyze the Superior Court's decision, and then ask for input: How might Pennsylvania's law on this matter be reformed?

* * *

Update: 03/23/07:

Part II of this posting is: Disposal of Remains in PA: Pt II (EE&F Law Blog, 03/23/07).

"Ethical Perspectives on Elder Care" in N.E. PA

On March 19, 2007, the Ethics Institute of Northeastern Pennsylvania at College Misericordia announced its sponsored program, Ethical Perspectives on Elder Care.

The Program will be held in the Educational Conference Center at Luzerne County Community College, Nanticoke, PA, on Thursday, April 26, 2007, from 1 p.m. to 8:45 p.m.

The Ethics Institute is described on its webpage:

The Ethics Institute of Northeast Pennsylvania at College Misericordia is an institution directed by some fifteen community leaders and educators who are committed to the discussion of ethical issues both theoretical and practical.

We believe that responsible ethical action requires informed rational deliberation and hope to facilitate this process both in the academic community as well as in the community at large.

To this end we organize various forums, workshops and symposia dealing with a broad range of ethical topics such as ethical theory, ethics in the classroom, business ethics, ethics in the health sciences, to name just a few.

We do not intend for the institute to function as an instructor of rights and wrongs regarding these issues, nor even as a consciousness raiser in the sense that would suggest some implicit agenda, but rather simply as a mediator or moderator providing information and models for the open discussion of complex ethical topics.

In its posted announcement, the Ethics Institute describes the upcoming Program:

Twelve informative lectures on a wide spectrum of topics will be presented by experts in geriatric care, including keynote speaker Mario Cornacchione, DO, CMD, president, Geriatric Research and Consulting Group, and clinical assistant professor of the Institute for Successful Aging at the University of Medicine and Dentistry New Jersey School of Osteopathic Medicine.

The lecturers will address, for example, dementia, elder abuse, cultural diversity, technology, spiritual care, moral dilemmas and legal issues that arise in the care of the elderly. People interested in the conference can choose which sessions to attend. * * *

The objectives of the conference include educating participants about adapting computers for elderly usage, understanding signs of dementia, the associated ethical issues, signs and prevalence of the disease and its impact on society, plus the role of emerging therapies, medication and non-drug therapies in treating and managing dementia. It will also address the importance of understanding behavioral and psychological symptoms of dementia, the physical and cognitive changes of aging that affect a person’s ability to safely drive, health literacy, ethical dilemmas and other related issues.

The inter-disciplinary nature of the Ethics Institute is reflected in the intended audience for the Program:

The conference is intended for physicians, psychologists, nurses, nurse practitioners, physician assistants, social workers, nursing home administrators, personal care administrators, allied health care professions and family members who are actively engaged or interested in elder care. The conference is eligible for continuing education credits.

The announcement lists the names & positions of each of the twelve presenters, who represent College Misericordia, the Area Agency of Aging for Luzerne/Wyoming Counties, Temple University's Institute on Protective Services, private practice elder law attorneys, Penn State University, King’s College, and Georgetown University School of Medicine.

A brochure about the Program is available for download here.

For more information or to register for the conference, you may call 570-674-6201 or send email to ethics@misericordia.edu. You could also register for the Program online here (www.misericordia.edu/ethics).

The registration deadline is Friday, April 20, 2007.

* * *

"Sunshine Week" in PA Neglects Statutes

Last week (March 11-17, 2007) was designated as "Sunshine Week" in Pennsylvania by certain advocacy groups.

Consider the agenda of open public access to government documents & processes that "National Sunshine Week" addresses annually. Then reflect on this: Pennsylvania Statutes are not posted officially online, in one place, by state government.

That deficiency should be added to the agenda for government records reform.

Wikipedia explains "National Sunshine Week" as follows:

Sunshine Week is an initiative spearheaded by the American Society of Newspaper Editors to educate the public about the importance of open government and the dangers of excessive and unnecessary secrecy.

Each year, in mid-March, coinciding with James Madison's birthday and National Freedom of Information Day on the 16th, hundreds of media and other participants write news and feature articles and opinion columns; post special Web pages and blogs; create infographics; draw editorial cartoons; create public service advertising; [and] put on public seminars and forums to engage public discussion. * * *

Funded by the John S. and James L. Knight Foundation, the first nationwide Sunshine Week took place March 13-19, 2005. The Knight Foundation continues to support the event until 2008.

The Pennsylvania Newspaper Association promoted "Sunshine Week" in Pennsylvania, as indicated in its posted article entitled "It’s Sunshine Week: Do you know where your state legislators stand on open government?":

Sunshine Week, held this year from March 11-17, is a national initiative to increase awareness and encourage discussion about open government and freedom of information.

At the Pennsylvania Newspaper Association, the trade association for Pennsylvania’s newspapers, we are involved in open records and open meetings issues all year long. Our legal hotline received over 2100 calls last year and over half of these related to difficulties that newspapers and citizens had in gaining access to government records and proceedings.

You may have already heard that Pennsylvania has one of the weakest open records laws in the country. What you may not know, however, is what this lack of access means to Pennsylvania citizens and how our law, known as the Right to Know Law, could be corrected to improve access and accountability in government. In honor of Sunshine Week, we’d like to take this opportunity to tell you a few things about Pennsylvania’s Right to Know Law that you may not know. * * *

Pennsylvanians need greater access to their government. After years of working on these issues, we at the PNA are convinced that the fundamental first step toward meaningful reform is to amend our state Right to Know Law to create a presumption of access to public records. * * *

PNA’s open records initiative is called "A Brighter Pennsylvania". Various articles appeared in newspapers throughout Pennsylvania consistent with this agenda, noting "Sunshine Week" and advocating greater openness & accountability in government operations at all levels.

For example, see: "Sunshine Week Highlights Some Lowlights", by David Hare, published March 14, 2007, in the Reporter Online (Philadelphia, PA).

Debra Gersh Hernandez is unequivocal in her estimation of the importance of Sunshine Laws that regulate open government and freedom of information.

“It’s extremely important because in this democracy the people have a right to know what their government is doing and why‚” Hernandez said.

The rule applies for governments in the White House to city‚ state and county seats‚ she said.

The Pennsylvania Sunshine Law‚ enacted in 1987‚ requires all public agencies to take all official actions and conduct all discussions and deliberations at public meetings. No behind-closed-doors maneuverings allowed.

The exceptions to that rule are few – such as discussion of litigation and personnel matters. * * *

Charles Davis is executive director of the National Freedom of Information Coalition at the University of Missouri‚ Columbia‚ where he also is an associate professor.

If Missouri’s adherence to Sunshine Laws ranks somewhere in the “muddled middle‚” as Davis said‚ then Pennsylvania would be closer to rock bottom.

“It’s pretty bad. The culture of government secrecy in Pennsylvania has been so incredibly powerful‚” he said.

Still‚ Davis pointed out signs of change such as Gov. Ed Rendell’s proposed legislation that would widen access to public information.

"Sunshine Week" concluded with its advocates issuing demands for change. See: "Sunshine Week concludes with a call to action", dated March 18, 2007, published in the Pottstown Mercury.

Governor Rendell appears favorably inclined towards further legislative change of Pennsylvania's laws regarding availability of public records. See: "Rendell pushing for improved public access", by Jessica VanderKolk, published March 19, 2007, in the Altoona (PA) Mirror.

Local lawmakers differ on how transparent to make state government, but Gov. Ed Rendell said Tuesday [March 13, 2007] that he will propose legislation this month to widen public access. * * *

According to an Associated Press report Tuesday, Rendell plans to change that by drafting a revision law making most government records open to the public. He also will propose an ombudsman’s office to improve access. * * *

Rendell’s proposal would be a significant change to Pennsylvania law.

“We’re very encouraged by it,” she said of Rendell’s proposal. “It would make it clear government records are presumed to be public records.”

Several lawmakers are drafting open records legislation, and the House Speaker’s Commission on Legislative Reform is considering changes to allow better public access.

The debate will swirl around issues of affected governmental bodies, covered governmental actions, privileged documents, availability & examination of public records, applicable legal presumptions, and on & on.

I pose a much simpler, more fundamental request that does not involve any of those issues: Please make all Pennsylvania statutes available publicly, free, updated, officially, in one place, on the internet!

PA is alone among all the states in not making its statutes -- already-enacted public laws governing the conduct of people in this Commonwealth -- available on the internet. This situation is intolerable, and must be changed.

How can one governed by Pennsylvania's laws follow those laws -- or know if others are following the laws -- if statutes are not made available in an easily-accessed, reliable form by the government that enacted those laws? This seems pretty fundamental to me. Yet the situation continues to our disadvantage.

The lack of online Pennsylvania statutes is confirmed by Pennsylvania's own internet port into all of state government -- the PAPowerPort -- when it posted an answer to its own question (circa 2004):

Where can I find [Pennsylvania] state laws or statutes online?

State laws or Statutes are not available online. You can research state laws in any of the state libraries across the state. Please see the Blue Pages of your phone book for the location of state libraries near you. If you are unable to obtain this information locally,you can get a paper copy by contacting the Legislative reference Bureau at 717.783.1960. Legislative bills, however, are available via the Internet. Please visit the online Bill Room

Content Last Modified on 9/1/2004 7:30:01 AM

According to a message posted by Dan Giancaterino on April 11, 2005, viewable on the website of the Jenkins Law Library (a library in Philadelphia that has provided legal resources since 1802), Pennsylvania stands alone in not providing public access to its governing state laws:

Pennsylvania is the lone U.S. state without a free version of its statutes on the Web. And that won't change anytime soon.

Last year [2004] the PA House Parliamentarian was quoted as saying, "It's come up before, and all I can say is we periodically discuss it. There are some of us in favor of it, but it's just never gotten off the ground."

Recently I emailed Thomas Martin, a local attorney, for an update on his unofficial PA statutes Web site. He told me that he hasn't been able to update the site for several years now.

As anyone who's managed the care and feeding of a Web site can attest, it takes a lot of time and money. If anybody ever deserved public support for a Web site, it sure is Tom Martin!

The Philadelphia Inquirer urged a change in an article entitled "Alone among states, Pa. keeps statutes out of cyberspace", by Mark Scolforo, published November 20, 2004.

In 49 states, state laws that govern everything from landlord-tenant relations to the number of penalty points a motorist can earn for a speeding ticket are just a few mouse clicks away.

Web sites maintained by the individual state governments give the general public the power to do their own legal research without paying for pricey legal textbooks or visiting a law library. The one exception: Pennsylvania.

"It's come up before, and all I can say is we periodically discuss it," said House parliamentarian Clancy Myer. "There are some of us in favor of it, but it's just never gotten off the ground."

Although its proud legal tradition dates to the earliest colonial times and includes the nation's oldest Supreme Court, Pennsylvania remains mired in last century when it comes to electronic access to 79 groups of statutes that run from Aeronautics to Zoning.

The main reason is that a legal publishing company owns the copyright to "Purdon's Pennsylvania Statutes Annotated," a multi-volume behemoth that represents the definitive version of state statutes, said Joel Fishman, an assistant director for lawyer services at the Duquesne University Center for Information and Allegheny County Law Library.

"You don't know how many people from across the country are trying to use Pennsylvania statutes every day that are unable to access the materials," Fishman said. * * *

But, no such change in this situation was suggested during "Sunshine Week".

Last year, I sent email messages to a few legislators suggesting a route for change. I now renew my suggestion publicly.

I had proposed introduction of a resolution in the Senate or House, backed by appropriate funding, directing the Joint State Government Commission, with the cooperation & assistance of the Legislative Reference Bureau, to study the problem of no public internet posting of a reliable, official version of Pennsylvania's enacted statutes, with a view towards making all Pennsylvania statutes available online within three years. Understanding the magnitude of the undertaking, I now would suggest a five-year period.

If you are disturbed by this situation too, I suggest that you contact your legislator, affected state offices, or the Governor's Office. You can find a list of state agency contacts here. You can find a list of current House members here; and a list of current Senate members here.

I just looked at the lists. I found them through a quick search -- of the internet.

* * *

Update: 03/21/07:

An article appeared in The Intelligencer (Philadelphia) on March 20, 2007, entitled "Law could open up state records" by Brian Scheid.

The article noted federal legislation passed last week by the House of Representatives (now going to the Senate for consideration), in Washington, D.C., which spotlights "freedom of information" issues nationally, and which may influence legislative developments in Pennsylvania on similar issues.

The article repeated the Pennsylvania Newspaper Association's views of "freedom of information" in Pennsylvania:

“In Pennsylvania, we have bad, unworkable and impractical open-records laws,” said Melissa Melewsky, a media law attorney with the Pennsylvania Newspaper Association, a trade group.

“The government has all the information and the public has all the burden.”

“If there's any way people in Harrisburg can keep something from the public, unfortunately, they do,” said Gilliland, managing editor of the Potter-Leader Enterprise in north-central Pennsylvania. “The knee-jerk reaction is to keep everything secret.”

Four new open-records laws are being bandied about Harrisburg, including one that Gov. Ed Rendell's staff is drafting and one that was introduced by state Rep. Tim Mahoney, D-Fayette County. Both would change Pennsylvania law by making the presumption that state records are public. Mahoney's bill also calls for setting up a statewide clearinghouse for records requests.

Unfortunately, I still find nothing in such reports about official public posting of already-enacted laws -- the Commonwealth's governing statutes.

Update: 04/03/07:

I note another editoria about the need for open records in Pennsylvania, as published in the Philadelphia Inquirer on April 2, 2007, entitled "Make Pa. records more open --The law now is among the weakest in the nation, with lots of small rules than can keep state data under wraps", by Bob Martin.

Unfortunately, still no mention about public posting of enacted statutes.

Update: 04/26/07:

Perhaps my email messages sent to some Legislators in late 2006 & again prior to my posting, or the energy & focus brought by "Sunshine Week", did have some effect on the issue of public posting of PA statutes online, after all.

I was not aware on March 20th (when I wrote the original posting) until today, that a large group of PA Senators introduced SB 422 on March 14, 2007. It simply was not reported prominently in the news.

Then, after my posting, on March 29, 2007, various PA Representatives introduced a similar (but not identical) bill, HB 976, to accomplish the same result: Public availability on the world wide web of PA statutes.

See: PA EE&F Law Blog posting "Bills Propose PA Statutes Online!" (04/26/07) for the text of the bills introduced.

Now I have hope again. It is time to press forward and get this done.

Update: 06/13/07:

For an update on the Legislature's progress, see: "Pa. House reform panel supports wider open-records law", by Mark Scolford, posted on June 13, 2007, by the Centre Daily Times:

A state House commission on Tuesday unanimously recommended widening Pennsylvania's Right-to-Know Law to make most government records, beyond a list of exceptions, available for public inspection.

Pennsylvania law currently defines just two categories of government records as public, making it among the weakest access laws in the country.

"I'm pretty impressed," said Common Cause of Pennsylvania executive director Barry Kauffman after the vote by the Speaker's Legislative Reform Commission. "They've made a very clear statement that we need to make major strides in opening government records to the public."