Right to Keep and Bear Arms: Part II

How does the ruling in District of Columbia v. Heller (PDF, 172 pages), issued June 26, 2008, by the U.S. Supreme Court, involve senior citizens?

Already, much commentary has analyzed the decision, including a prior posting on this Blog, "Right to Keep and Bear Arms: Part I", by Joshua G. Prince.

One media source alone -- National Public Radio -- has posted nine articles in three days since the decision's issuance:

• NRA Seeks to Overturn Handgun Bans Beyond D.C. (Jun-28-2008, Weekend Edition)
• Views Diverge over Gun Ruling (Jun-27-2008)
• Chicago-Area Gun Owners Praise D.C. Ruling (Jun-27-2008, Morning Edition)
• Gun Ruling Reverberates with Politicians, Police (Jun-27-2008, Morning Edition)
• McCain Praises Gun Ruling; Obama More Cautious (Jun-27-2008, Morning Edition)
• Gun Case Attorney Targets Laws in Other Cities (Jun-27-2008, All Things Considered)
• What the Handgun Ruling Really Means (Jun-27-2008, Day to Day)
• U.S. Gun Laws: A History (Jun-26-2008)
• Q&A: D.C. Gun Ban Overturned; What's Next? (Jun-26-2008)

I found the last article in this listing -- "D.C. Gun Ban Overturned; What's Next?", by Bill Chappell -- grounded and practical. Primary source documents regarding Heller are available on the Supreme Court of the United States Wiki.

Second Amendment rights are important to senior citizens, because gun ownership by that group appears common. For example, a 2001 survey in Marin Co., CA reported that about 21% of seniors in a household there had a gun. A 2005 Gallup Poll that indicated that about one-third of older Americans possess guns.

Americans aged 18 to 29 are slightly less likely than those who are older to be gun owners.

Only one in five 18- to 29-year-olds (21%) say they own a gun, while 32% of 30- to 49-year-olds and 31% of those aged 50 and older report ownership.

That Poll addressed the purposes -- hunting, target shooting, or self-protection -- for the guns owned:

Male gun owners are more likely than female owners to say they use a gun for hunting (63% to 45%, respectively) or for target shooting (68% to 59%), while female owners are slightly more likely than male gun owners to use a gun for protection (74% to 63%, respectively). * * *

There are essentially no differences between younger and older gun owners who use their guns for crime protection (67% among 18- to 49-year-olds and 64% of those aged 50 and older). * * *

Advocates of gun ownership argue that seniors gain a sense of well-being and safety because guns provide self-protection.

An article by Joe Guillen, published June 19, 2007, by The Plain Dealer (Cleveland,OH) asserted "Seniors feel safer when they carry [a] gun."

Jeff Garvas, president of Ohioans for Concealed Carry, said seniors should consider carrying a gun because criminals can interpret their physical weakness as an opportunity.

John R. Lott, author of the book More Guns, Less Crime: Understanding Crime and Gun-Control Laws, said guns are a safer method of self-defense for seniors because they may run slower or have less strength.

But gun-control advocates say society is safer with fewer armed citizens, not more. Senior citizens are no more at risk of being attacked than any other demographic group, said Toby Hoover, executive director of the Ohio Coalition Against Gun Violence. * * *

[Russ] Geis, of Stark County, isn't taking any chances. He refuses to rely on the habits of criminals and even law enforcement for his personal protection. He would rather count on his gun.

"That's the last thing a criminal wants to see," he said.

The collective effectiveness of such a deterrent resource is placed in question by study results recently released, according to an article, "Prof Says D.C. Handgun Ban Didn’t Affect Number of Murders", by Debra Cassens Weiss, posted on the ABA Journal on June 30, 2008:

A Florida State professor says the handgun ban in the District of Columbia did not affect the murder rate.

Gun control advocates argue handgun bans are needed to keep the weapons out of criminals’ hands. Gun control opponents, on the other hand, say the bans take guns away from law-abiding citizens who can use the weapons to deter crime.

Neither side is right, according to a study by Gary Kleck of Florida State’s College of Criminology and Criminal Justice. Kleck concludes in an interview with the New York Times that “the law itself had no effect one way or the other.” * * *

On the other hand, clearly handguns are a risk factor for suicide by elderly folks. And suicide rates for the elderly are higher than the general population. See: EE&F Law Blog posting "PA Aging Department Encourages Suicide Awareness" (09/13/06).

Generally, there are more deaths from handgun suicides than from handgun murders, according to a 1997 analysis of statistics. An article entitled "Mortal Allies: Guns and Suicide", by Matthew Miller, published in the Harvard Public Health Review (Summer, 2002), concluded:

A growing body of evidence indicates that the means at hand matter: where there are more guns, more people are taking their own lives.

For example, American case-control studies all find that a gun in the home is a strong risk factor for suicide, not only for the gun owner, but for other household members as well.

The risk of suicide associated with the presence of a firearm in the home is large (an increase of two- to five-fold in most studies), especially when the gun is a handgun or is stored loaded or unlocked.

See also: "Handguns In Home Boost Suicide Risk Among Elderly" (07/01/02), posted by the University of Rochester Medical Center.

Joan Arehart-Treichel noted in her article entitled "Several Factors Mitigate Seniors’ High Suicide Risk" (08/16/02), posted by Psychiatric News (Vol. 37, No. 16), that the increased risk of suicide posed by a firearm in a home can be offset by other factors.

The presence of a firearm in the home was found to be associated with an increased risk of suicide, even after controlling for psychiatric illness.

Elevated risk was accounted for by access to handguns rather than to long guns and was more pronounced in men than in women.

However, it is probably not the presence of a firearm in the home per se that constitutes a risk factor for senior suicides, but rather the recent purchase of a firearm, Conwell and his team contended. The reason, they explained in their study report, is that firearm suicide rates for the elderly have declined markedly in states that have instituted waiting periods or background checks, or both, for handgun purchases.

Yet just as depression, poor sleep quality, limited social support, and the recent purchase of a handgun may put seniors at risk of suicide, social support and religious beliefs may help protect them against it. * * *

On July 28, 2003, the U.S. Senate Committee on Aging heard testimony about suicide and seniors. A presentation by Donna Cohen, Ph.D., entitled "Depression and Violent Deaths in Older Americans: An Emergent Public Mental Health Challenge" (PDF, 10 pages), indicated that firearms are used for suicide 72% by persons over 65, versus 57% by persons of the general population.

The Physicians for Social Responsibility posted an article entitled "Firearms and Suicide" (PDF, 2 pages) that advocated limiting access to firearms as a means of reducing suicide rates. See also: MCES Quest Newsletter (March 2006) (PDF, 12 pages) regarding suicide prevention generally.

In their recently published book, Alive & Kicking, Kenney F. Hegland and Robert Fleming addressed some of these issues in their commentary, "Self-Abuse: Vegas, Booze, and the Question of Guns":

Handguns, not rifles, are the weapon of choice in elderly suicides. Guns don't require much planning: they are quick, easy, and the stuff of momentary despair.

Further, guns in the house, at the time of a heated argument, often prove lethal. * * * The lurking threat of domestic violence suggests that the presence of weapons is a very bad idea.

But what about self-defense? The presence of guns, rather than affording protection, may make things worse. With guns drawn, stakes are definitely raised and home invaders may simply disarm, and then shoot, their victim.

Gun critics, however, overlook the peace of mind having a gun may bring. An elderly couple with a gun in their home may not be, in fact, safer and, in fact, statistically may be less safe. However, they feel safer and live less fearful lives. As home invasions and suicides are rare, the psychic benefits of gun ownership may outweigh the risks. * * *

A recent study occurred in Pennsylvania that considered these matters using data from the Philadelphia area. The study, entitled "Firearms and Violence: Issues for Elder Health and Well-Being in Southeastern Pennsylvania" (2005), was conducted by Rose Cheney Ph.D., Douglas J. Wiebe Ph.D., Pamela Errico B.A., & Therese S. Richmond Ph.D., CRNP, FAAN, for the Firearm & Injury Center at the University of Pennsylvania. This research was presented in 2005 & 2006 to various groups.

The results were reported & summarized in a comprehensive graphic poster, available online, which included their conclusions:

• Firearm issues are important to the health and well-being of the elderly and are not limited to urban youth.

• Issues surrounding firearms and violence are complex. They cross individuals, households, and communities; risks and protection; feedback, interaction and anticipation.

• Information on firearms and the elderly is limited. Assessments on possible firearm risks should be collected or included in assessments of elderly health and safety.

• While for some elderly, firearms may serve a protective function, assessment of possible risks to self and others should be part of a safety assessments.

Tomorrow, we will conclude this three-part series with consideration of guns in nursing homes.

Update: 06/30/08 @ 7:30 pm:

One hour ago, Comcast posted an article entitled "Surprising fact: Half of gun deaths are suicides" (06/30/08) by Mike Stobbe, an Associated Press Medical Writer. The article was posted also by Yahoo, Fox News, MSNBC, and many newspapers.

The article contemplated the effects of the Heller decision on public health isssues, and highlighted a prevailing use of handguns to commit suicide:

The Supreme Court's landmark ruling on gun ownership last week focused on citizens' ability to defend themselves from intruders in their homes. But research shows that surprisingly often, gun owners use the weapons on themselves.

Suicides accounted for 55 percent of the nation's nearly 31,000 firearm deaths in 2005, the most recent year for which statistics are available from the Centers for Disease Control and Prevention.

There was nothing unique about that year — gun-related suicides have outnumbered firearm homicides and accidents for 20 of the last 25 years. In 2005, homicides accounted for 40 percent of gun deaths. Accidents accounted for 3 percent. The remaining 2 percent included legal killings, such as when police do the shooting, and cases that involve undetermined intent.

Public-health researchers have concluded that in homes where guns are present, the likelihood that someone in the home will die from suicide or homicide is much greater. * * *

The high court's majority opinion made no mention of suicide. But in a dissenting opinion, Justice Stephen Breyer used the word 14 times in voicing concern about the impact of striking down the handgun ban.

"If a resident has a handgun in the home that he can use for self-defense, then he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence," Breyer wrote. * * *

The article noted the availability online of statistics from the Centers for Disease Control about gun injury statistics.

The article validates many of the points that I made above, using different sources.

Update: July 01, 2008:

For Part III of this Series, see: "Right to Keep and Bear Arms: Part III" (07/01/08).

Right to Keep and Bear Arms: Part I

On June 26, 2008, the U.S. Supreme Court ruled 5-4 in District of Columbia v. Heller (PDF, 172 pages) upon the meaning of the Second Amendment to the U.S. Constitution regarding "the right of the people to keep and bear Arms."

The Supreme Court upheld the District Court's ruling that the Second Amendment protects an individual’s right to possess firearms, and that the city’s total ban on handguns -- as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense -- violated that right. This landmark ruling is that Court's first comprehensive consideration of the Second Amendment since its enactment in 1791.

The ruling was covered extensively by the media. See, for example, the Associated Press article entitled "High court affirms gun rights in historic decision" (06/26/08) posted by Comcast. See also: "Supreme Court Rules 5-4 that Second Amendment Protects Right to Own Guns" (06/26/08), & "Most Gun Laws Legal Under High Court Ruling, But Chicago’s Is an Issue" (06/27/08), both by Debra Cassens Weiss, posted by the ABA Journal Blog; and "Not So Fast! Sizing up the Heller Ruling’s Immediate Effect on D.C." (06/26/08), by Ashby Jones, posted on The Wall Street Journal Law Blog (source of graphic).

Postings on this Blog will consider the ruling in three parts.

Part I is written by law student Joshua G. Prince, who has written three prior articles posted on this Blog about firearms in the context of estates or trusts. See:

• "I bequeath my machine gun to . . ." (Sep. 12, 2007) -- Grandpop’s Machine Gun in the Chest, Part I
• "I Inventory the SBR, AOW, DD, & Suppressor at . . ." (Oct. 19, 2007) -- Grandpop’s Machine Gun in the Chest, Part II
• Estate Planning for Grandpop's Gun in the Chest (Nov. 11, 2007) -- Estate Planning 101 under the National Firearms Act

Part II will be written by me, to be posted on Monday, June 30th, about the relevance of this ruling to senior citizens.

Part III will be written by both me & Josh as to potential effects of the ruling upon residents of long-term care facilities.

Josh was present in the U.S. Supreme Court building yesterday morning when Justice Scalia read the majority opinion of the Court. He considers aspects perhaps overlooked in initial media reports. I thank Josh for his continuing contributions to this field of law.

District of Columbia v. Heller:
The Rebirth of the 2nd Amendment
Copyright © by Joshua G. Prince

June 26, 2008 marks a day in history when a Constitutional Right, which to some was ambiguous was reborn. Reborn not in the sense of something new and different from that of before, but in the sense of something that was forgotten and left to wither until new life was breathed into it.

In District of Columbia v. Heller, Dick Heller, a D.C. resident and special police officer (authorized to carry a handgun while on duty at the Federal Judicial Center) sued the District of Columbia after being denied the ability to register a handgun for home protection.

Specifically, “[h]e filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home.” (D.C. v Heller, at p. 1).

The Supreme Court of the United States held:

1. “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. . .”
2. “Like most rights, the Second Amendment right is not unlimited. . .”
3. “The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment.” (Id. at pp. 1-3).

As hundreds of thousands of people review the decision, the legal community combs through it with a fine-tooth comb, and the media makes up their own interpretations and theories of the decision, many lay citizens are left to scratch their head wondering if all gun laws throughout the U.S. are now null and void.

The answer is simple: No.

So, what effect does this decision have on the present? The answer is not much outside the District of Columbia; and even in D.C., the effect is limited. In D.C., after 21 days, residents will be able to register handguns. This may present a problem because there aren't any firearm dealers in the District currently, due to the regulations. Thus, there will likely be an onslaught of entrepreneurs looking to open up firearm businesses, which requires a Federal Firearms License (FFL).

To acquire an FFL, one must go through the licensing requirements set forth by Bureau of Alcohol, Tobacco, Firearms, and Explosives. However, licensing takes several months, and thus, will result in further delay, especially since the D.C. Code §§ 7-2502.01-7-2506.01 bans possession, sale, transfer, manufacture, purchase or repair of handguns, and it is forbidden to sell ammunition within the District. Moreover, one must have a "retail dealer" license to sell any goods in DC, and no license can be given for selling things that are banned. Hence, now that handguns, in total, are not banned, individuals should be able to acquire FFLs.

The current law in the District provides that any semi-automatic pistol is a “machinegun.” Senator Hutchinson, from Texas, is currently working on legislation to bring D.C.'s Code into conformity with Federal law on what constitutes a “machinegun”; thus, a semi-automatic pistol would not equate to a “machinegun.”

Hence, as many are saying, so what is the big deal with the decision?

The key point in this case was the decision that the the 2nd Amendment Right to Bear Arms is an individual, not a collective, right. While the decision as it pertains to the regulations of D.C. was a 5-4 vote, the decision on whether the 2nd Amendment was an individual right was a 9-0 vote. (D.C. v Heller, at p. 1; J. Stevens dissenting, joined by J. Souter, J. Ginsburg, and J. Breyer at p. 1).

What are the ramifications of this decision for the future? As the National Rifle Association has already declared, it will be initiating follow-up litigation in Chicago to deal with the handgun ban there and in California and D.C. where individuals cannot receive public housing unless they agree not to own any firearms. Then, as time progresses, it is likely that bans on particular weapons, including weapons termed “assault weapons” merely because of their appearance, will be challenged. It is also possible that at some point in the future the Firearm Owner Protection Act (FOPA), which banned the making of machineguns after 1986, will be challenged.

However, given the narrow majority of the Court's decision and the language used by the majority, it does not appear that a current-day challenge to FOPA would result in a favorable decision.

Hence, as the Court noted, the boundaries of the 2nd Amendment have yet to be determined.

What is clear is that each and every individual citizen of the United States has a right to keep and use Arms. What those “Arms” are, will be decided in the months and years to come.

Update: June 30, 2008:

For Part II of this Series, see: "Right to Keep and Bear Arms: Part II" (06/30/08).

Update: July 01, 2008:

For Part III of this Series, see: "Right to Keep and Bear Arms: Part III" (07/01/08).

"Older Americans 2008: Key Indicators of Well-Being"

The Federal Interagency Forum on Aging-Related Statistics recently released a report entitled "Older Americans 2008: Key Indicators of Well-Being " (March 2008; PDF, 179 pages).

The 2008 Report was announced by a Press Release, dated March 27, 2008, entitled "Americans Living Longer, Enjoying Greater Health and Prosperity, but Important Disparities Remain, Says Federal Report" (Word format, 5 pages).

Older Americans 2008, the fourth chartbook prepared by the Forum since 2000, provides an updated, accessible compendium of indicators, drawn from the most reliable official statistics about the well-being of Americans primarily age 65 and over.

The indicators are categorized into five broad areas — population, economics, health status, health risks and behaviors and health care.

The 160-page report contains data on 38 key indicators — and a one-time special feature on health literacy. * * *

The press release was also posted by the National Institute on Aging and Eurek Alert, among others, and was the subject of an article posted by Reuters, which noted the American aging trend:

The report forecasts that by 2030, the number of Americans over the age of 65 will nearly double to 71.5 million, or 20 percent of the U.S. population, up from 12 percent, or 37 million people, in 2006.

These are the most general conclusions of the 2008 Report:

Average life expectancy continues to increase, and today’s older Americans enjoy better health and financial security than any previous generation.

However, rates of gain are inconsistent between the genders and across age brackets, income levels and racial and ethnic groups.

Some critical disparities also exist between older Americans and older people in other industrialized countries. * * *

The 2008 Report represents a massive, comprehensive, and detailed statistical presentation about Older Americans, assembled by the membership of the Forum, which includes fifteen Federal agencies that use or produce data about older Americans.

The comments in the Press Release highlight what is in the 2008 Report and why it is important.

“This report comes at a critical time,” according to Edward Sondik, Ph.D., director, National Center for Health Statistics.

“As the baby boomers age and America’s older population grows larger and more diverse, community leaders, policymakers and researchers have an even greater need for reliable data to understand where older Americans stand today and what they may face tomorrow.”

“The ‘greatest generation’ made enormous gains in health and financial security, although the gains were not shared equally,” says Richard Suzman, Ph.D., director of the Behavioral and Social Research Program at the National Institute on Aging, part of the National Institutes of Health.

“We’ll be tracking their children, those just reaching their 60s, to see whether those gains can be sustained or even improved.”

Suzman cautions that there could be problems, however. For example, he notes that increased rates of obesity among today’s middle-aged could threaten the health of these adults as they age.

“The sheer size of the baby boom cohorts is certain to affect our health, long-term care and pension systems," says Benjamin E. Sasse, Assistant Secretary for Planning and Evaluation, Department of Health and Human Services.

“As we look ahead, it is imperative that we collect and analyze quality data to help policymakers plan for the future of these programs so important to aging Americans.” * * *

Both the Press Release and the 2008 Report summarize, then support, trends noted.

• Population – The demographics of aging in the United States continue to change dramatically, as the baby boomers accelerate growth in the percentage and numbers of older people and other important parameters change. * * *
  

• Economics – More older people enjoy increased prosperity than any previous generation, with an increase in higher incomes and a decrease in the proportion of older people with low incomes and in poverty. However, major inequalities continue to exist for older blacks and for people without high school diplomas, who report smaller economic gains and fewer financial resources. * * *
  

• Health Status – Americans’ longevity continues to increase, although life expectancy at age 65 in the United States is lower than that of other industrialized countries. While older people experience a variety of chronic health conditions that often accompany aging, the rate of functional limitations among people age 65 and older has declined in recent years. * * *
  

• Health Risks and Behaviors – Factors affecting the health and well-being of older Americans, such as smoking history, influenza and pneumonia vaccinations and mammogram screenings, are key indicators that have shown long-term improvements but no significant change in recent years. * * *
  

• Health Care – Health care costs, particularly for prescription drugs, have risen dramatically for older Americans. * * *
  

The 2008 Report and its component parts, including statistical tables, can be download selectively here.

The Forum's website also provides resources related to the 2008 Report:

• PowerPoint Slides of Charts
• Press Notes (DOC)
• Excel Spreadsheets
• Historical Experience of Three Cohorts (PDF)

The Press Release noted the availability of the 2008 Report in forms other than online download:

Single printed copies of Older Americans 2008: Key Indicators of Well-Being are available at no charge through the National Center for Health Statistics while supplies last.

Requests may be made by calling 1-866-441-6247 or by sending an e-mail to nchsquery@cdc.gov.

For multiple print copies, contact Forum staff director Kristen Robinson at (301) 458-4460 or send an e-mail request to agingforum@cdc.gov.

JSGC's Final Report on Assisted Reproductive Technologies

In May, 2008, the Pennsylvania Joint State Government Commission, through its Subcommittee on Assisted Reproductive Technologies, issued its final study & complete recommendation report entitled "The Proposed Assisted Reproductive Technologies Act, 2008" (PDF, 77 pages).

The ART Subcommittee functioned from April 2005, until May 2008. It was comprised of representatives from:

• JSGC's Advisory Committee on Adoption Law
• JSGC's Advisory Committee on Decedents’ Estates Laws
• JSGC's Advisory Committee on Domestic Relations Law
• Experienced private practitioners familiar with "assisted reproductive technologies"
• Consultants from the Pennsylvania Department of Health
  

These members included: Lawrence A. Kalikow, Esq. (Chair), Craig B. Bluestein, Esq., Frank P. Cervone, Esq., Mitchell E. Chadrow, Esq., Lisa W. Clark, Esq., Mary Cushing Doherty, Esq., Neil E. Hendershot, Esq., Albert Momjian, Esq., and Prof. Robert Rains.

For two years, the Subcommittee reviewed the proposed model Uniform Parentage Act (2002 Version) approved by the National Conference of Commissioners on Uniform State Laws), current Pennsylvania statutes, Pennsylvania court decisions (which further developed even while under study), present Pennsylvania court practices in counties, and current statewide procedures of the Department of Health, Vital Statistics.

Its Initial Report, issued in May 2007, proposed and explained a partial statutory framework for assisted reproductive technologies (ART).

An ART statute would be placed into Chapter 59 of the Domestic Relations Code (Title 23 of PA Consolidated Statutes), as Subchapters A, B, & C. It would cover "gestational agreements", also known as "surrogacy arrangements". See: PA EE&F Law Blog posting "Assisted Reproductive Tech Act Proposed in PA" (05/27/07).

But more work remained, as outlined in that Initial Report:

• The Subcommittee recommended that the Pennsylvania Supreme Court consider conforming Orphans’ Court rules to the provisions of the proposed new 23 Pa.C.S. Chapter 59 (if adopted into law).
• The Subcommittee further recommended review of the report issued by the President’s Council on Bioethics, entitled Reproduction and Responsibility: The Regulation of New Biotechnologies (March 2004).
• The Subcommittee announced its intention to continue studying provisions relating to children of assisted reproduction and to records, which would be added as Subchapters D & E of the proposed act in a subsequent report.
  

After concluding its additional work in Spring 2008, the Subcommittee published its entire proposed Assisted Reproductive Technologies Act (Subchapters A-E) Report, with a recommended new statutory Chapter, which begins at Page 23 of the Final Report.

This report, therefore, reflects the latest recommendations of the subcommittee -- a fully integrated proposed Assisted Reproductive Technologies Act.

As was the case in the May 2007 report, notes and comments follow the statutory provisions. Official comments may be used to construe a statute and determine the intent of the General Assembly.

This report also contains a summary of the statutory recommendations and a detailed table of contents for the statutory provisions.

Following the proposed statutory provisions are conforming amendments to §§ 711 and 713 of the Probate, Estates and Fiduciaries Code * * * and transitional language (applicability and effective date provisions). * * *

Thus, its Final Report superseded its Initial Report, expanding and further annotating a complete proposal for an Assisted Reproductive Technologies Act for Pennsylvania.

The Final Report addresses some issues affecting the estate & trust area, where inheritance or beneficiary rights might arise in the context of births provided by assisted reproductive technology. See: Proposed Section 5932 ("Legal parentage") and Section 5935 ("Parental status of deceased individual").

The Final Report's summary regarding the "Parental status of a deceased individual" (Pages 11 & 12), explains one interface between the Domestic Relations law and the Probate Code, and offers a customized approach for resolution:

A decedent is not a parent of a child conceived as a result of assisted reproduction after the decedent’s death unless consent is given pursuant to § 5935. In addition, for the decedent to be a parent of the child in this case, the placement of eggs, sperm or embryos must occur within 18 months of the decedent’s death and the decedent’s surviving spouse must file the consent with the clerk of the court and serve notice on the executor or administrator within six months after the decedent’s death.

Section 5935 could cause a result that is contrary to the decedent’s intent, as in the case of an individual who intends the embryos to be implanted but who then dies unexpectedly before consenting in a dated, signed writing.

Absent written consent, the death of an individual whose genetic material is subsequently used either in conceiving an embryo or in implanting an already existing embryo into a womb ends the potential legal parenthood of the deceased. Section 5935 is designed primarily to avoid the problems of intestate succession which could arise if the posthumous use of a person's genetic material leads to the deceased being determined to be a parent. Of course, an individual who wants to explicitly provide for such children in his or her will may do so.

Section 5935 eliminates the possibility of having a deceased individual’s estate open indefinitely. It balances the interest of effectuating the decedent’s intent to be a parent (and have an heir) and the practical need to close the decedent’s estate after a reasonable amount of time.

The section is to be broadly construed to effectuate the purposes of the Probate, Estates and Fiduciaries Code, including provisions concerning inheritance, succession and notice requirements.

Although Subchapter D contemplates that a woman who may be the genetic mother of the child will give birth to the child, a situation may occur where that is not the case, thereby implicating § 5935.

For example, the surviving husband of a deceased woman may use his deceased wife’s eggs to create a child. If the requirements of § 5935 are satisfied and the surviving husband uses his deceased wife’s eggs and enters into an agreement regarding assisted reproduction with a carrier, who will carry the child, his deceased wife would be the parent of the resulting child. In this circumstance, parentage would be determined under § 5904(b), since neither § 5932(b) nor Subchapters B or C are instructive in resolving the parentage issues regarding the mother of the child. To wit, § 5932(b) provides that the woman giving birth to a child is a legal parent of the child, and Subchapters B and C concern gestational agreements, a term specifically defined in § 5902.

In this case, the agreement executed by the surviving husband and the carrier would not be a “gestational agreement” as defined in § 5902 because the deceased wife would not have executed the agreement.

In addition, in this case, the Division of Vital Records of the Department of Health would need some type of order determining that the deceased wife, instead of the carrier, is to be listed as the mother of the child. * * *

The proposed legislation would provide guidance on these complex substantive and procedural issues that develop in the context of new, more frequently-employed medical technologies resulting in planned births.

As one who served on the Subcommittee, I now encourage careful consideration of its Final Report by the Legislature regarding these important matters.

Planning for Long-Term Living/Care in PA

The Executive Branch of Pennsylvania government continues to consider the consequences of an aging population that may require extended living or care arrangements.

As to citizens' private efforts, on June 19, 2008, the PA Governor's Office issued a Press Release entitled "Rendell Announces Record Response to Pennsylvania’s ‘Own Your Future’ Long-term Care Planning Effort".

Governor Edward G. Rendell said today that more than 200,000 people have requested Own Your Future planning kits since March, when Pennsylvania launched its outreach effort urging individuals to take a more active role in planning their own long-term care needs.

The federal government says Pennsylvania’s 13 percent response rate is approximately double the rate seen by any of the 16 states that took part in similar outreach efforts. The typical response rate reported by states is between 5 and 7 percent.

“The strong response to our Own Your Future campaign suggests that Pennsylvanians are seriously considering their future long-term living needs,” Governor Rendell said. “Individuals who begin planning today will have a broader range of options available to them in their later years, which can help to ensure greater financial security and peace of mind.”

By 2020, one in four Pennsylvanians will be age 60 or older. Many consumers are not aware that Medicare does not cover the cost of many long-term care services. * * *

As to public efforts on behalf of citizens, on June 21, 2008, the PA Department of Aging published in the Pennsylvania Bulletin (PA Bulletin, Doc. No. 08-1166) a Notice establishing the Senior Care and Services Study Commission.

The purpose of this notice is to announce the establishment of the Senior Care and Services Study Commission (Commission) under the act of June 30, 2007, (P. L. 49, No. 16) (Act 16). See 62 P. S. §§ 801-D--803-D.

Act 16 provides for the establishment of the Commission for the following purposes:

1. Reviewing the care, services and resources available to Commonwealth residents 65 years of age or older.
2. Projecting the future need for care and services through the year 2025.
3. Evaluating the ability of the current assessment and delivery systems to meet the projected service needs.
4. Projecting the resources necessary to meet the projected need and making policy recommendations as to how the projected need can best be met considering the resource limitations that may exist at the time the Commission completes its work. * * *

The Senior Care and Services Study Commission was created under House Bill 1367, enacted as Act 16 of 2007, which also extended the sunset date on the nursing home provider assessment, and confirmed the rate cap authorized by the General Assembly & the appropriations process.

According to the Hospital Association of Pennsylvania, which supported the bill into enactment in 2007, the "Senior Care and Services Study Commission [will be] responsible for projecting future needs for senior care services and making recommendations on how to meet those needs. The commission [will consist] of 19 persons, including one individual representing hospital-based nursing facilities."

The Governor appointed some members of the Commission during February, 2008, as confirmed in a Press Release, dated February 22, 2008:

• Mark Greene, of Waukesha
• Kevin Hefty, of West Reading
• Vicki Hoak, of Camp Hill
• Shikha Iyengar, of Murrysville
• Crystal Lowe, of York
• Joseph Murphy, of Elizabethtown
• Marlin Peck, of York
• Alvin Poppen, of Fayetteville
• Florence Reed, of Homestead

The appointment of another member, Eileen M. Sullivan-Marx, of Broomall, was announced in a Press Release dated May 12, 2008.

The making of such appointments without further delay had been advocated by interested groups, such as the Lutheran Advocacy Ministry.

The Press Release noted that the last appointment to the new Commission was made by the Governor in May:

Under Act 16, the date of the establishment of the Commission shall be the date the last member is appointed to the Commission.

The date of the last appointment occurred May 1, 2008. Therefore, May 1, 2008, shall be considered the date of the establishment of the Commission. * * *

This new Commission joins other Pennsylvania governmental groups concerned with long-term care.

Its future studies may supplement or update prior reports delivered to, or issued by, the Pennsylvania Intra-Governmental Council on Long-Term Care, including:

• "Assisted Living: A Choice for the Future" (July 1999, PDF, 38 pages);
• "Pennsylvania’s Frontline Workers in Long Term Care: The Provider Organization Perspective" (February 2001, PDF, 146 pages);
• "Report: Home and Community-Based Services Barriers Elimination Work Group" (March 2002, PDF, 29 pages); and
  
• "Final Report: Pennsylvania Transition to Home (PATH) Project" (March 2004, PDF, 52 pages).

Colliton on a Cigarette Carton Will Contest

Janet Colliton, Esq., of West Chester, PA, wrote an article published on June 9, 2008, in The Daily Local News (West Chester, PA), entitled "How Formal Must a Will Be?" regarding the decision issued on June 2, 2008, by the PA Superior Court in the case captioned Estate of Norman F. Shelly (PDF, 13 pages), 2008 PA Super 116.

Among other holdings, that Court found that handwriting by a decedent on a cigarette carton was without "testamentary intent", and therefore was not a valid will.

Since I am returning from a week's vacation, I welcome Janet's offer for me to post her article. I have edited it only slightly for posting on this Blog.

Janet Colliton, Esq., of Colliton Law Associates, P.C. (790 East Market St, Ste. 250, West Chester, PA 19382; Ofc: 610-436-6674; E-mail: colliton@collitonlaw.com) is a West Chester attorney whose practice is limited to elder law, Medicare, Medicaid, life care, special needs, and retirement planning and estates.

How Formal Must a Will Be?
Copyright © by Janet Colliton, Esq.

Curious inquirers sometimes ask me what is the least formal legal document that will still be considered valid. Must the Power of Attorney be notarized? Will it be accepted without witnesses? What happens if the maker of a Will cannot easily locate someone outside the family to witness the signing of his Will? Can he ask a family member named in the document to sign without having it rejected later? Can one witness be used instead of two? Suppose the Pennsylvania statutorily required Notice and Acknowledgment forms are not attached to a Power of Attorney as in documents that are taken from the Internet?

I discourage this kind of “how low can you go” thinking. If anything, my experience has been that cutting corners at such times can cause major problems later. The expression to use instead of “how low can you go” is “better safe than sorry.”

Because of this belief, a Pennsylvania appellate court case decided last week caught my attention. The Will in that case tested the limits of minimalist thinking.

In the case of In Re: Estate of Norman F. Shelly, the Pennsylvania Superior Court was asked to decide whether a cardboard panel from a cigarette carton that was submitted for probate needed to be accepted as a Will by the Orphans Court of Franklin County.

While the material on which the “Will” was drafted was unorthodox, its deficiencies did not stop here. The maker’s signature failed to be notarized or witnessed and the language of the alleged “Will” was open to interpretation.

At least as to an unclear “Will” written on the side of a cigarette carton that is not notarized or witnessed, Pennsylvania courts will draw a line. The Superior Court rejected the Will.

These are the facts. Norman Shelly died on July 27, 1999. Following his death, an attorney submitted a cardboard panel of a cigarette carton for probate on August 25, 1999.

The Register of Wills of Franklin County issued letters of administration c.t.a. naming an unrelated person, Michael J. Cook, as administrator. Two people who stated that they recognized Mr. Shelly’s signature signed Oaths of Non-Subscribing Witnesses attesting that the signature was his.

On November 5, 1999, the first of several appeals were filed from the decree of probate by a relative of Norm Shelly who would have been an intestate heir, that is, who would inherit if there is no Will. Eventually a group of would-be intestate heirs (referenced in the opinion as the “Four Heirs”) filed motions for summary judgment asking the Orphans Court to find as a matter of law that the writing on the cigarette carton was not a Will.

When the Orphans’ Court found against the administrator of the cigarette carton “Will” and alleged beneficiaries, they filed an appeal to Superior Court, which also examined the wording.

The carton writing was titled ‘FIRST AND LAST ONLY WILL.” Somewhere on the box, perhaps inside, the word “DRAFT?” appeared.

Items were listed with names of individuals beside them. The word “DEVIDE” appeared used as follows: “MONEY, DEVIDE MICHAEL COOKS SONS.” An arrow ran from that section to another section which read: “FARM MACH + MACHINES AND TOOLS MICHAEL COOK SR LIVING MY AGE”. The Superior Court found the language to be unclear and could not determine whether it meant a split among Michael Cook’s sons or his sons and Michael Cook.

Here are some lessons to take from the case.

• First, although a person preparing a Will can do so in his or her own handwriting in a document known as a “holographic” Will, I would strongly recommend against this. Handwriting, abbreviations, misspellings, and even location of words can cause the document to be misinterpreted or even rejected.

• Second, although an issue not covered in Shelly, once a typewritten Will has been properly drafted, signed, witnessed, and notarized, the maker should not write additional changes on the document. He should have another Will prepared or, for small changes, have a Codicil which amends one or more sections of the Will. A small misspelling or missed initial can be corrected and initialed

• Third, if the maker of a Will believes that going to an attorney or following formalities in executing legal documents might be expensive, she can consider the cost of litigation. The Shelly case required appeals first to Orphans Court and then to Superior Court and a total of eight years and seven months of litigation.

I offer additional suggestions after reading the Court's opinion and Janet's article:

• Don't write "draft" on a document intended to be enforced legally.

• Don't rely on graphics in a legal document.

• Try to spell correctly, whatever you write, wherever you write it.
  

• Don't smoke -- it'll kill you.

"Elder Abuse Awareness" in PA on WEAAD

Sunday, June 15, 2008 will be recognized as the third "World Elder Abuse Awareness Day" (WEAAD), when advocates "wear something purple" in honor of the cause to protect seniors from abuse.

The first "World Elder Abuse Awareness Day" was held on June 15, 2006, at the United Nations Headquarters in New York City. This year's "Global Celebration" will be held Ottawa, Canada on Monday, June 16th.

Elder abuse is a frequent topic on this Blog, with postings categorized under the topic "Elder Abuse".

What is "elder abuse"?

The National Center on Elder Abuse describes seven types of conduct involving an elderly person that is objectionable:

• Physical abuse is defined as the use of physical force that may result in bodily injury, physical pain, or impairment.
• Physical abuse may include but is not limited to such acts of violence as striking (with or without an object), hitting, beating, pushing, shoving, shaking, slapping, kicking, pinching, and burning.
• In addition, inappropriate use of drugs and physical restraints, force-feeding, and physical punishment of any kind also are examples of physical abuse.

• Sexual abuse is defined as non-consensual sexual contact of any kind with an elderly person.
  
• Sexual contact with any person incapable of giving consent is also considered sexual abuse.
  
• It includes, but is not limited to, unwanted touching, all types of sexual assault or battery, such as rape, sodomy, coerced nudity, and sexually explicit photographing.

• Emotional or psychological abuse is defined as the infliction of anguish, pain, or distress through verbal or nonverbal acts.
• Emotional/psychological abuse includes but is not limited to verbal assaults, insults, threats, intimidation, humiliation, and harassment.
• In addition, treating an older person like an infant; isolating an elderly person from his/her family, friends, or regular activities; giving an older person the "silent treatment;" and enforced social isolation are examples of emotional/psychological abuse.

• Neglect is defined as the refusal or failure to fulfill any part of a person's obligations or duties to an elder.
• Neglect may also include failure of a person who has fiduciary responsibilities to provide care for an elder (e.g., pay for necessary home care services) or the failure on the part of an in-home service provider to provide necessary care.
• Neglect typically means the refusal or failure to provide an elderly person with such life necessities as food, water, clothing, shelter, personal hygiene, medicine, comfort, personal safety, and other essentials included in an implied or agreed-upon responsibility to an elder.
  

• Abandonment is defined as the desertion of an elderly person by an individual who has assumed responsibility for providing care for an elder, or by a person with physical custody of an elder.

• Financial or material exploitation is defined as the illegal or improper use of an elder's funds, property, or assets.Examples include, but are not limited to,
  
• cashing an elderly person's checks without authorization or permission;
  
• forging an older person's signature;
  
• misusing or stealing an older person's money or possessions;
  
• coercing or deceiving an older person into signing any document (e.g., contracts or will); and
  
• the improper use of conservatorship, guardianship, or power of attorney.

• Self-neglect is characterized as the behavior of an elderly person that threatens his/her own health or safety.
• Self-neglect generally manifests itself in an older person as a refusal or failure to provide himself/herself with adequate food, water, clothing, shelter, personal hygiene, medication (when indicated), and safety precautions.
• The definition of self-neglect excludes a situation in which a mentally competent older person, who understands the consequences of his/her decisions, makes a conscious and voluntary decision to engage in acts that threaten his/her health or safety as a matter of personal choice.

According to Pennsylvania Statistics noted by Temple University, physical abuse is the conduct most reported & substantiated by investigations:

The Department´s 2002-2003 data reveal that over 25 percent of the substantiated reports involved abuse (physical abuse, sexual assault and other forms of assault.)

Another 13.5 percent of the substantiated cases involved financial exploitation of the elder´s assets (theft of funds or property).

All three of these categories of elder mistreatment (physical abuse, sexual assault and theft of funds) are criminal acts.

The vast majority of these crimes are not reported to the police, nor prosecuted. When they are reported, frequently so much time has passed since the commission of the crime that evidence has been lost, witness accounts have gone undocumented and suspected perpetrators have had the opportunity to fabricate explanations, making prosecution difficult, at best. * * *

The Institute on Protective Services at Temple University (Harrisburg) -- under its heading "Elder Abuse and Protective Services in the News" -- tracks news stories of elder abuse in Pennsylvania as a demonstration of the prevalence of such conduct.

Governmental agencies and the criminal justice system remain the strongest forces in limiting elder abuse. These include the U.S. Agency on Aging with the U.S. Department of Justice, and also state aging departments with their attorney general offices (such as the PA Department of Aging & its Area Agencies on Aging, with the PA Attorney General's Office & local district attorney offices).

For example, the PA DoA sponsors a Commonwealth "elder abuse hotline" (1-800-490-8505), to facilitate reporting and investigation of incidents; and the PA AG maintains an Elder Abuse Unit with its own reporting hotline (1-866-623-2137).

Many counties in Pennsylvania sponsor "elder abuse task forces", comprised of representatives from the local area agency on aging, district attorney's office, and elder advocacy groups. See, for example, an article that appeared in the Allentown Morning Call on June 12, 2008, by Brian Callaway, entitled "Task force looks to protect seniors", which noted such targeted "[e]fforts to include police training, cooperation among agencies" in Lehigh County, PA.

Given the difficulties of prosecution, awareness & education appear as alternative approaches to improve the lives of the elderly and reduce elder abuse.

Charitable organizations or consortiums -- some sponsored or funded in part by governments -- provide referral resources, educational programs, and communication forums regarding elder abuse. The primary one is the National Center on Elder Abuse.

Also, various geriatric and aging educational centers operating in Pennsylvania address the topic of elder abuse, among other concerns for the elderly. Such centers -- usually affiliated with a university or a medical center (or both) -- include:

• Delaware Valley Geriatric Education Center

• Gerontology Center at Penn State

• Geriatric Education Center of Pennsylvania

• Temple University Institute on Aging, and its PA DoA-sponsored Institute on Protective Services at Temple University (Harrisburg)

• University of Pittsburgh Institute on Aging

For a more extensive list of such geriatric centers nationwide, see: "Online Resources" provided by the Geriatric Education Center of Pennsylvania.

Thus, through both enforcement (prosecution) and education (awareness), instances of elder abuse, in its various forms, can be reduced.

The latter approach is highlighted by "World Elder Abuse Awareness Day" every year on June 15th.

Update: 06/13/08 @ 4:45 pm:

On June 13, 2008, at 4:04 pm, the PA Department of Aging issued a Press Release, entitled "PA Department of Aging Urges Reporting of Suspected Elder Abuse, Neglect":

June 15 is World Elder Abuse Awareness Day. The observance was created by the World Health Organization and the International Network for the Prevention of Elder Abuse to help prevent the abuse and neglect of older people.

“Abuse of the elderly is a horrific crime, and protecting vulnerable older adults from abuse is a priority for the Department of Aging,” said Secretary Nora Dowd Eisenhower. “Because we are also deeply concerned about the problem of self neglect, we encourage residents to keep an eye out for older neighbors who may have trouble caring for themselves as they age.”

Suspected elder abuse or neglect may be reported to any of the 52 Area Agencies on Aging in Pennsylvania. * * *

Elder abuse comes in many forms, including:

• Neglect such as failure to provide food, water and personal hygiene; self neglect.
• Physical abuse such as hitting and beating.
• Emotional abuse such as isolating a person from friends and family.
• Sexual abuse such as improper touching and rape.
• Financial and material abuse such as stealing money and coercing an individual to sign checks or documents. * * *
  

Reports can be made anonymously and individuals have legal protection from retaliation for making a report. Calls to the statewide elder abuse hotline at 1-800-490-8505 will be investigated promptly.