Gov. Rendell's 2007-08 Budget Proposal

On February 6, 2007, Governor Edward G. Rendell presented his Executive Budget Proposal to the Legislature for the Commonwealth's 2007-08 fiscal year. The full text of the Governor's Presentation Message is available here. If interested, you can watch the Governor's address to the Legislature through these links: Address via Windows Media Player or Address via RealPlayer.

Professionals & consumers interested in elder law issues should focus on two aspects of the Budget Proposal -- long-term care and health care.

The Governor's Office issued two press releases on February 6, 2007, specific to those issues:

• Governor Rendell Says 2007-08 Budget Offers Agenda for PA Progress; Tackles Long-term Challenges -- Excerpts:
• The 2007-08 budget includes $369 million to pay for federally-mandated services for increased Medical Assistance eligibility, increased rates for managed care, and increased Medicaid utilization services, on top of $41 million of these federal compliance costs built into our budget over the last four years.
• The Governor’s Pennsylvania Cares initiative also includes:
• Long Term Living includes $17.2 million in state funds to make significant investments that expand home and community-based services to serve an additional 2,200 persons over age 60 and 1,000 persons with disabilities; * * *
• PACE Plus Medicare – $276.4 million to fund a comprehensive state pharmaceutical benefit that complements Medicare Part D and ensures that PACE enrollees will not incur an increase in out-of-pocket costs; will enable 357,725 (10 percent increase) people to be served by PACE by June 2008;
• Medical Assistance – $5.1 billion in state funds to provide services to 1.969 million people, with no reduction in eligibility requirements.

• Despite Crushing Federal Cuts, Governor Rendell Says 2007-08 Budget Extends Commitment to Affordable, Accessible, Quality Health Care -- Excerpts:
  
• Facing another difficult year of dwindling federal support and rising health care costs, Governor Edward G. Rendell today said his bold “Prescription for Pennsylvania” would make quality health care accessible and affordable for all Pennsylvanians.
• The Governor also outlined his plans to create new and better options for Pennsylvania seniors and persons in need of long-term living services, and he extended his commitment to care for Pennsylvania’s most vulnerable citizens, including children and adults with developmental disabilities.

For a readable overview that touches on both these issues (among others), you can review a 73-slide presentation entitled "PA Cares" (2 MB, PDF format).

For analysis & public reactions to the Budget Proposal, you could watch "Call-In" programs about the proposed new budget broadcast on the Pennsylvania Cable Network:

Tuesday, February 6, 2007 - 7:00 p.m. (available for online replay here)
Topic: Governor's Budget Address
Guests: Mark Singel, Former Pennsylvania Lt. Governor
Robert Jubelirer, Former PA Senate Pro Tempore

Wednesday, February 7, 2007 - 7:00 p.m. LIVE (Update on 02/09/07: available for online replay here)
Topic: PA Budget
Guests: Michael Young, Managing Partner, Michael Young Strategic Research
Christopher Borick, Director, Institute of Public Opinion at Muhlenberg College

Thursday, February 8, 2007 - 7:00 p.m. LIVE (Update on 02/09/07: available for online replay here)
Topic: PA Budget
Guests: Lowman Henry, Chair & CEO, Lincoln Institute
Sharon Ward, Director, PA Budget & Policy Center

Wednesday, February 14, 2007 - 7:00 p.m. LIVE
Topic: PA Budget
Guests: Michael Masch, PA Budget Secretary

According to the House Calendar as of this date, a "Budget Hearing" is scheduled for Representatives on Wednesday, February 14, 2007, beginning at 9:00 am, in Room 140 of the Main Capitol Building, Harrisburg, PA. Detailed budget hearings will resume (according to that Calendar) on Tuesday, February 20th and thereafter.

Perhaps of greater interest to elder law attorneys might be a House committee session that will precede those budget hearings. Presently scheduled for Tuesday, February 13, 2007, beginning at 10:00 am, is a Joint House Legislative Budget and Finance Committee Meeting on "Medicaid reform efforts in other states and the applicability to PA." That session will be held in Hearing Room 3, Ground Floor, North Office Building, in Harrisburg.

* * *

PBI's 2007 "Estate & Elder Law Symposium"

The Eighth Annual "Estate & Elder Law Symposium", offered by the Pennsylvania Bar Institute, will be held on Tuesday, February 13, 2007, in Pittsburgh, and on Tuesday, February 27, 2007, in Philadelphia.

Take advantage of "the Best of" two of PBI’s most popular Institutes in our Estate and Elder Law Symposium. In this one-day Symposium we feature some of the most popular sessions from our annual Estate Law Institute and Elder Law Institute.

You’ll start off the day with highlights of the year important to both estate and elder law practices. Then you’ll have your choice of two concurrent breakout sessions each hour on a variety of estate and elder law topics. Offered in both Pittsburgh and Philadelphia, this course is a great choice for anyone who has an estate or elder law practice.

Although titled under the same "symposium" name, the two course offerings differ somewhat in their presentations:

Pittsburgh Program – Tues., Feb. 13, 2007

• 8:00 - 8:30 am -- Registration and Continental Breakfast

• 8:30 - 9:30 -- The Year in Review
• 9:30 - 9:40 am -- Break
• 9:40 - 10:40 am -- Concurrent Workshops
• 1. Keeping the Promise: "I will never put you into a nursing home"
• 2. Pennsylvania’s New Uniform Trust Act
• 10:40 - 10:50 am -- Break
• 10:50 - 11:50 am -- Concurrent Workshops
• 1. Crunching the Numbers – Calculating Medicaid Eligibility
• 2. Guardians & the Courts: The Rights, Responsibilities & Limits
• 11:50 am - 12:50 pm -- Lunch (included in your tuition)
• 12:50 - 1:50 pm -- Concurrent Workshops
• 1. Annuities After the Deficit Reduction Act and How to Use Them
• 2. Gifts to Grandkids: 529 Plans & More
• 1:50 - 2:00 pm -- Break
• 2:00 - 3:00 pm -- Concurrent Workshops
• 1. Advising the Dying Client (ETHICS)
• 2. Uses & Abuses of the Durable Power of Attorney
• 3:00 - 3:15 pm -- Break
• 3:15 - 4:15 pm -- Concurrent Workshops
• 1. Planning Options in the Post Deficit Reduction Act Era
• 2. Planning for Your Client’s Special Needs Child

Philadelphia Program – Tues., Feb. 27, 2007

• 8:00 - 8:30 am -- Registration and Continental Breakfast
• 8:30 - 9:30 am -- The Year in Review
• 9:30 - 9:40 am -- Break
• 9:40 - 10:40 am -- Concurrent Workshops
• 1. Keeping the Promise: "I will never put you into a nursing home"
• 2. Pennsylvania’s New Uniform Trust Act
• 10:40 - 10:50 am -- Break
• 10:50 - 11:50 am -- Concurrent Workshops
• 1. How Will PA’s Dept. of Public Welfare Implement, Apply and Enforce the Deficit Reduction Act
• 2. Life Insurance Trusts Powers of Attorney & Gifting Powers
• 11:50 - 12:50 pm -- Lunch (included in your tuition)
• 12:50 - 1:50 pm -- Concurrent Workshops
• 1. Key Drafting Provisions for Special Needs Trusts
• 2. The 60s Client – the New Middle Age: The Financial Issues
• 1:50 - 2:00 pm -- Break
• 2:00 - 3:00 pm -- Concurrent Workshops
• 1. Annuities After the Deficit Reduction Act and How to Use Them
• 2. Special Needs Trusts: Critical Uses & the Developing State of the Art
• 3:00 - 3:15 pm -- Break
• 3:15 - 4:15 pm -- Concurrent Workshops
• 1. Practice Tips for Planning After the Deficit Reduction Act
• 2. Ethics Update (ETHICS)

The Symposium's materials & speakers are drawn from two different Institutes held in the past year.

The two-day "Estate Law Institute", last held on November 1, 2006, offered 4 volumes of materials (2,785 pages). Held annually in October or November, as sponsored by PBA's Real Property, Probate & Trust Law Section (Probate & Trust Law Division), it is now being planned for its fourteenth incarnation in 2007.

The two-day Elder Law Institute", last held on July 1, 2006, offered 3 volumes of materials (1,742 pages). Held annually in June or July, as sponsored by PBA's Elder Law Section, it is now being planned for its tenth incarnation on July 19-20, 2007.

This seminar -- the "Estate & Elder Law Symposium" is co-sponsored by both PBA Sections. Such cooperation is laudable, since the substantive topics of the presenters and the law practices of the attendees for the two Institutes now overlap significantly. Over time, the offerings of the two separate Institutes appear almost to have converged.

* * *

“Improving End of Life Experiences for Pennsylvanians”

On February 5, 2007, the Pennsylvania Department of Aging delivered to Governor Edward G. Rendell, and made public through a Press Release found here, "a series of policy recommendations that are designed to improve the quality of life for seriously ill and dying Pennsylvanians, as well as their families and caregivers."

The Quality at the End of Life Report, entitled "Improving End of Life Experiences for Pennsylvanians" (40 pages, in PDF format), was transmitted by PA Department of Aging Secretary Nora Dowd Eisenhower from the Task Force for Quality at the End of Life. That group is described as "a diverse panel of experts assembled at the Governor’s direction".

Eisenhower said the task force outlined a series of challenges that exist in Pennsylvania today. Most Pennsylvania residents do not have a living will, which guides family members and doctors on the level of life-sustaining treatment that individuals wish to receive. Nearly half of all deaths in Pennsylvania occur in hospitals, despite the fact that nine-out-of-10 people say they would prefer to die at home. Less than one percent of health care providers are certified in palliative care. Only about two-in-10 Pennsylvania hospitals report having hospice programs.

“When we consider that 27 percent of Medicare expenditures pay for health care during the last year of life, it would seem prudent to invest in systems of care that makes efficient use of our limited resources, while maintaining patient preference for care,” Eisenhower said.

The Task Force also provided "Supporting Documents" for the Report, posted by the Department, including:

• 2005 Background Paper
• Quality at the End of Life Long Report

These are the "priority recommendations" of the Task Force, as summarized in the Press Release:

• Adopting and adhering to quality standards. Health care facilities around the state should adopt and adhere to the national standards set forth by the National Consensus Project and the National Quality Forum.
• Designing and implementing demonstration projects. Public/private partnerships should test new and innovative delivery and reimbursement systems to improve quality and continuity of care across health care delivery settings including home-based care.
• Documenting treatment preferences. In accordance with Act 169, the state should explore ways to adopt a tool to document people’s treatment preferences consistently across care settings.
• Improving education through licensing/accrediting/regulatory bodies and professional organizations. The core elements and principles of palliative care should be incorporated into health professions curricula and enforced by appropriate regulatory, accrediting, and professional licensing bodies.
• Engaging underserved communities. To meet the palliative care needs of underserved populations, such as ethnic minorities, individuals with disabilities, and children, members and advocates of these communities should be actively engaged in needs assessment and program design activities.
• Raising public awareness. A statewide public awareness and education campaign should be undertaken to improve Pennsylvanians’ access to palliative care and end-of-life services, to help them become more informed about palliative care, and to encourage planning around end-of-life issues.

The Report's recommendations dovetail into Governor Rendell's recently-announced "Prescription for Pennsylvania" health care reform initiative. See: PA Governor Unveils New Health Care Proposals

Eisenhower said the report also offers a solid framework that will help policymakers and legislators consider a broad range of options to improve end of life care and family supports.

“Enhancing the quality of life, including end of life experiences, for all Pennsylvanians is a challenge of increasing urgency,” Eisenhower said. “By involving everyone with a stake in this process – medical professionals, educators, government policymakers, advocates, and the public – we can address these most basic conditions of human life with intelligence and compassion.”

The Press Release concluded by listing those Task Force members who participated in the news conference on Monday, February 5, 2007, announcing the Report:

• Dr. David Barnard, director & professor of medicine, Institute to Enhance Palliative Care, University of Pittsburgh
• Steve Suroviec, executive director, Arc of Pennsylvania, Harrisburg
• Darlene Sampson, executive director, Pennsylvania Council on Aging
• Dene Liott, consumer advocate, Pottstown
• Nancy Zionts, Vice President of Program & Planning, Jewish health Care Foundation, Pittsburgh

* * *

Update: 02/06/07:

The Press Release was the subject of a news article published in the Pittsburgh Post-Gazette on February 5, 2007, entitled "Pennsylvania has new blueprint for a better death", by Gary Rotstein.

He noted that the Report was developed over two years by a wide-ranging group of health professionals, social service leaders, consumer advocates and others who "produced 160 recommendations covering how to expand hospice and palliative care, advance directives, medical training and more aspects related to patients' late-life treatment."

About 128,000 Pennsylvanians died in 2005, with at least 100,000 of them over 65 and 41,000 over 85. The report assumes that for many, death was more impersonal and painful than it needed to be.

A 2002 national report card on death-related issues rapped Pennsylvania, as it did many states, for lagging in key areas such as guiding late-life patients into hospice services instead of intensive care units. The low grades from the Last Act group prompted Gov. Ed Rendell to create the Task Force for Quality at the End of Life to recommend solutions.

The panel had no shortage of possible improvements to suggest. The daunting task for state officials and health-related groups, in fact, might be sorting out which of the 160 recommendations to tackle, and when and how to do so.

Revised Proposed Rules: Changes for Lawyers as Fiduciaries

On January 27, 2007, the Disciplinary Board of the Supreme Court of Pennsylvania published a Notice of Proposed Rulemaking in the Pennsylvania Bulletin, as Document No. 07-114, 37 Pa.B. 394 (1/27/2007), regarding the effects of an overdraft in an attorney's fiduciary account, where acting as an executor or trustee, or in other fiduciary roles.

The proposal is in in the form of amendments to existing Rule 1.15 ("Safekeeping Property") of the Pennsylvania Rules of Professional Conduct (Pa. R. Prof. Conduct), and to Rule 221 ("Funds of clients and third persons; Mandatory overdraft notification") of the Pennsylvania Rules of Disciplinary Enforcement. The amendments would bring funds or other property held by lawyers as a fiduciary within the scope of those rules, which currently apply only to a lawyer's client escrow account.

Such a concept has a history, as the Notice indicates in its first paragraph:

On June 10, 2006, The Disciplinary Board of the Supreme Court of Pennsylvania published a Notice of Proposed Rulemaking, Volume 36, Pennsylvania Bulletin, page 2801.

In light of the comments received in response to that Notice, the Disciplinary Board has made changes to the proposed amendments to Pennsylvania Rule of Professional Conduct 1.15 and Pennsylvania Rule of Disciplinary Enforcement 221.

The "comments received" from members of the bar were extensive & thoughtful. The Philadelphia Bar Association, the Allegheny County Bar Association, and the Pennsylvania Bar Association, through their respective practice sections, submitted detailed analyses of the previous proposed changes.

The Disciplinary Board responded by withdrawing its prior proposal for further consideration. Members of the bar awaited the Board's further response. The recently published Notice contains that further response.

The Notice was drawn to the attention of the Bar by Daniel B. Evans, Chair of the Real Property, Probate & Trust Law Section, of the Pennsylvania Bar Association, in his RPPT listserv posting on February 2, 2007.

The Notice invites further comment on the revised proposal:

Notice is hereby given that The Disciplinary Board is considering recommending to the Supreme Court that these Rules be amended as set forth in Annex A and Annex B. The changes to Rule of Professional Conduct 1.15 permit attorneys acting as fiduciaries to exercise appropriate fiduciary judgment, make prudent investments, and administer fiduciary assets in accordance with law and accepted practice.

The definition of ''Financial Institution'' is broadened to permit deposit of IOLTA funds in various instrumentalities in addition to traditional banks and savings and loan associations to the extent that such instrumentalities chose to qualify as ''Eligible Institutions'' under Rule of Disciplinary Enforcement 221(h), as well as to permit investment of entrusted funds in or through such entities, consistent with the Prudent Investor Rule or other applicable law.

Interested persons are invited to submit written comments regarding the proposed amendments to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, First Floor, Two Lemoyne Drive, Lemoyne, PA 17043, on or before March 1, 2007.

The amendments define the term "Rule 1.15 Funds" and then alter language throughout the two rules to maintain the basic principles of separation & safeguarding of such assets held, and retention of records relating to administration.

A revised Rule 1.15, consistent with the form published with the Notice, would provide (if finalized), in part, as follows:

(b) A lawyer shall hold all Rule 1.15 Funds and property separate from the lawyer's own property. Such property shall be identified and appropriately safeguarded.

(c) Complete records of the receipt, maintenance and disposition of Rule 1.15 Funds and property shall be preserved for a period of five years after termination of the client-lawyer or Fiduciary relationship or after distribution or disposition of the property, whichever is later. A lawyer shall maintain, in electronic or hard copy form, with backup at least monthly on a separate electronic storage device, the following books and records for each Trust Account and for any other account in which Fiduciary Funds are held pursuant to Rule 1.15(l):

(1) all transaction records provided to the lawyer by the Financial Institution or other investment entity, such as periodic statements, cancelled checks, deposited items and records of electronic transactions; and

(2) check register or separately maintained ledger, which shall include the payee, date and amount of each check, withdrawal and transfer, the payor, date, and amount of each deposit, and the matter involved for each transaction.

The amendments are far more complex, however, in the interweaving with the principles of "IOLTA" and "Non-IOLTA" accounts, which involve account interest earnings, and with reporting upon the occurrence of an overdraft.

These and other concerns will be addressed, I am certain, by the same folks in Philadelphia, Pittsburgh, and statewide who commented on the prior proposal.

Comments must be received in writing by the Disciplinary Board no later than Thursday, March 1, 2007.

* * *

Update: 02/07/07:

On February 6, 2007, an article appeared in the Morning Call (Allentown, PA), reporting an egregious case that the proposed rule changes likely are intended to address by early intervention.

In "Allentown lawyer stole $225,000 from client, prosecutors say", Matt Birkbeck reports that an Allentown lawyer, John J. Keller, 61, was held without bail pending a hearing. He reportedly "stole $225,000 from a client, siphoning the money to pay employee expenses and buy personal items, federal prosecutors said Monday."

Attorney John J. Keller, 61, of 1037 N. 28th St., was held without bail pending a detention hearing today in Allentown after a federal grand jury returned a 17-count indictment charging him with wire fraud. Keller allegedly stole the money over two years from his Interest On Lawyer Trust Account, or IOLTA.

If convicted, Keller could receive a sentence of life in prison and a $5 million fine. * * *

Most attorneys maintain IOLTA accounts, which keep clients' money separate from their own. But according to the indictment, in February 2002 Keller began to withdraw the client's money from his IOLTA account for personal and business needs. He continued to take varying amounts until 2004, when T.S. learned the account had been depleted despite receiving several written statements from Keller that $225,000 remained.

See also: "Allentown lawyer ordered to have evaluation", also by Matt Birkbeck, of The Morning Call, published on February 7, 2007:

An Allentown lawyer charged with stealing money from a client was ordered Tuesday to remain in federal custody and undergo psychiatric testing. * * *

Assistant U.S. Attorney Seth Weber requested the psychiatric analysis on Monday after portraying Keller as a threat to himself and others. * * *

* * *

AARP's Assessment & Advocacy in PA & US

On January 31, 2007, an article in the Patriot News (Harrisburg, PA) entitled State action needed on elder care, AARP says, by David Wenner, reported on the current agenda for change in Pennsylvania held by AARP, the Philadelphia-headquartered, national membership association of persons over the age of 50.

Following are some excerpts from the article:

The nation's long-term care system is fragmented and under-funded, and it's especially bad in Pennsylvania, AARP says.

During a symposium yesterday in Harrisburg, AARP outlined its goals for long-term care and hoped to persuade state legislators to take action.

John Rother, AARP's director of policy and strategy, pointed out that most people know little about long-term care, which refers to nursing homes and other programs that provide care for the elderly and disabled. * * *

Rother and other experts from AARP said the nation needs to create a publicly funded long-term care system that ensures access to nursing homes and programs that enable seniors to continue living in their homes or with family.

A major shortcoming in Pennsylvania is the lack of a single access point for long-term care services, they said.

AARP stresses the need for a broad range of long-term care offerings, with no one type of care, such as in nursing homes, considered most important. The organization also emphasizes the need to adequately pay providers, including workers involved with caring for the elderly and disabled.

AARP's advocacy agenda for America is set forth in Reimagining America: AARP's Blueprint For the Future. It is a document directed towards "professionals in aging", and can be downloaded in PDF format here.

The agenda reported by the article for Pennsylvania is consistent with AARP's positions, but is tailored to the Commonwealth's demographics, resources, and systems. For example, see: "Long-Term Care: You Decide Where", on the AARP website, addressed specifically to the needs of Pennsylvanians:

In early 2006, AARP Pennsylvania joined with other advocacy groups to encourage Pennsylvania to make home and community based services a more important part of the long-term care system in Pennsylvania. This Update provides information on developments that took place as a result of that effort, and describes the further need for advocacy on this important issue.

Pennsylvania's state spending on long-term care is heavily weighted toward nursing homes — only a few states use as high a percentage of their funding for long-term care on skilled nursing facilities.

Although Medicaid waiver programs for home and community based care do exist, a more innovative source of assistance for home and community based services is included in Pennsylvania's OPTIONS program, funded by the Pennsylvania lottery. This program assists individuals at income levels up to 300% above poverty with a portion of the costs of home and community based care on a sliding cost-share basis. Equally as important, there is a not a requirement for individuals to be nursing home-eligible in order to participate in the program. * * *

AARP's Executive Director and Chief Executive Officer, William D. Novelli, has written position statements posted by AARP, such as "Helping Aging Boomers to Age in Place" (2002).

Most recently, he went beyond the formal AARP "agenda", and considered broadly both the challenges -- and also the opportunities -- presented by the aging "baby boomer" generation. His book, written with Boe Workman, entitled 50+: Igniting a Revolution to Reinvent America (2006), was published by St. Thomas Press and is available at AARP Books & other online or retail outlets.

His book was noted in AARP's Pennsylvania Update Newsletter (Fall, 2006), after Mr. Novelli toured Pittsburgh and Philadelphia during his promotional tour late last year.

A renaissance of social, political and personal activism offers baby boomers an unparalleled opportunity to reinvent our country, according to a new book by AARP CEO Bill Novelli.

In 50+: Igniting a Revolution to Reinvent America, Novelli outlines how the generation that transformed America 40 years ago can now help change the way their children and grandchildren will live in the future.

The boomers' influence, he says, will reinvent the way we work, live and vote -- and even shop.

Baby boomers represent not only a generation great in numbers but also, with people living longer lives, a group that can put their convictions to use well into the future. Areas in which boomers are poised to make a difference include:

• Making the U.S. health care system more accountable and affordable.
• Building livable communities, both for themselves and their children.
• Adding vibrancy -- and products -- to the marketplace.
• Transforming the way people view the workplace and retirement.
  

The influence of baby boomers, writes Novelli, will extend to the ballot box, where older voters already make a huge impact. Voters age 50-plus can demand, with greater clarity than ever, that elected officials respond to their needs -- both for their own good and for the benefit of future generations.

AARP provides additional materials about the book, if you are interested:

• Book Excerpt & Audio Clips, from the AARP Magazine Online)
• Interview with Bill Novelli, from the AARP Bulletin Online)

Other reviews can be found online:

• 50+: Igniting A Revolution To Reinvent America, by Colorado's Channel 9 News (12/26/06)
  
• Boomers aren't finished yet, by Angela Leeper for the Society Book Page (2006)
• The Next Boomer Revolution, in Business Week Online, including a video (October 5, 2006)
• Editorial Reviews, posted on Amazon
  

“In laying down the gauntlet to perhaps the most idealistic generation living in the most exciting period of human history, Bill gives us great hope for our future and illuminates a path to fulfillment. Yes, there is life after 50. In fact, we can thrive and leave a lasting, positive legacy.”
--- Naomi Judd, singer, songwriter, & social activist

* * *

Update: 02/20/07:

Naomi Judd also authored a book in 2006 about the potential of the "boomer" generation, as it ages, and the individuals who comprise it, as we (yes, me too) age. See: EE&F Posting "The Caregivers" Series & Naomi Judd on CBS News (02/20/07).

Symposium on Ethical Standards for Elder Mediation

The First National Symposium on Ethical Issues for Elder Mediation will be held April 19-20, 2007 at Temple University s James E. Beasley School of Law, 1719 North Broad Street, Philadelphia, Pennsylvania.

The Montgomery County Mediation Center describes the Symposium as follows:

The Symposium will feature Harry R. Moody, Nancy Neveloff Dubler and Robert Baruch Bush who will be joined by distinguished panelists from the fields of mediation, elder law, gerontology, bioethics, and geriatric healthcare in an effort to examine the ethical issues that arise during mediation involving older adults.

Elder mediation is a rapidly growing specialty of mediation practice and reflects the confluence of two trends: an increasing elder population and the growing appreciation of the value of mediation. With the development of elder mediation practice has emerged a set of issues particular to the aging population.

The First National Symposium on Ethical Standards for Elder Mediation will bring together mediators and interested stakeholders from many disciplines within the aging services network to exchange ideas, share experience and work to define best practices and ethical standards.

Products of the Symposium will include recommendations for standards of practice, the identification of topics for further examination and published articles in a scholarly journal.

A movement in the American judicial system favors methods of resolution of disputes not involving courts, except as a resource of last resort. See: Mediation Solution, published by the National Arbitration Forum (NAF), which lists current articles about mediation. See also: "Practical Dispute Resolution" Seminar on "National Conflict Resolution Day", posted October 14, 2006, on the PA Elder, Estate & Fiduciary Law Blog.

In 2005, the American Bar Association's General Practice, Solo and Small Firm Division and the NAF collaborated on a survey designed to discover members’ needs and preferences regarding negotiation, mediation, and other forms of ADR. The result? "A decided majority (over 85%) of GPSolo respondents believe that their clients' interests are at least sometimes best served by offering ADR solutions."

Within this expanding "alternative dispute resolution" field, a distinctive aspect involves mediation of disputes involving older persons. The disputes are often very emotional and open-ended, involving family members of different relationship, locations, & ages. The issues arise from difficult & private decisions of an elderly person, who may have limited resources or options, and who also who may experience declining health or awareness, therefore greater vulnerability.

At the beginning of such a process, there may not be a formal dispute to be adjudicated, only a situation to be addressed before a crisis arises. Thus, fact-finding, communication, and professional advice likely will precede any effective consideration of options or the ultimate decision-making. ADR is more of a problem-solving process involving senior citizens than a dispute-resolution determination by a third-party adjudicator.

Mediation is premised upon a willingness by those people directly affected by the problem to communicate and, ultimately, agree, whether unanimously or with compromises. It also anticipates that further problems may develop, which should be addressed by the same approach or a more informal one modeled upon it.

Elder ADR involves professionals who can provide perspective, advice, and structure, and who encourage constructive movement towards firm decisions. Likely issues involving a senior citizen include mobility (like driving), suitable housing, effective care giving, management of finances, estate planning, health care provisions, medical decision-making, and maintenance of healthy family relationships. The role of a professional is less that of an advocate, and more that of a facilitator and advisor.

For a sampling of recent articles on this topic, see:

• "Mediators Ease Decisions on Elders", by Maggie Johnson, Boston Globe (12/03/06).
• "Elder Mediation: Optimizing Major Family Transitions", by Rikk Larsen & Crystal Thorpe, 7 Marq. Elder's Advisor 293-312 (2006).
• "When Aging Leads to Family Conflict", by Arline Kardasis and Rikk Larsen, Massachusetts Lawyers Weekly (April 2005).
• "Elder Decisions in the News", posted & updated by Elder Decisions.
  

So, it is important & noteworthy that a national symposium on this topic would be held here in Pennsylvania.

The promotional material recognizes this movement and the important distinction in the resolution process:

The Symposium is part of a larger national effort to offer high quality mediation services to older adults, their families and service providers. Private mediators, community mediation centers and statewide projects are developing elder mediation programs that intentionally reach out to older adults and collaborate with the aging services network and the courts. Many programs utilize older adult peer mediators to conduct intake, co-mediate and serve on advisory committees.

Although older adults may become involved in the same sorts of disputes as do adults of any age, there are conflicts which, by their nature, are experienced particularly in the lives of the elderly. These include: disagreements among family members over the appropriate caregiver and level of care for a parent in his or her own home; decisions around nursing home placement; financial and estate planning matters; the need for the appointment of a guardian and the selection of the guardian; and health care and end-of-life decision-making. Even in cases where the subject of a dispute is not specifically age-related, age may play a significant role in how well the older adult s voice is heard in the conflict.

When conflict involving an older person occurs, increased vulnerability and the challenges of decision-making can be experienced by anyone involved in the conflict spouses, family/non-family caregivers, grandchildren, neighbors, medical and long-term care personnel, etc. The level of concern rises when the older adult is physically frail or exhibits signs of cognitive impairment. Struggles may occur regarding an older adult s desire for independence and autonomy and others concerns about safety and the impact of the older adult s choices on both the older person and their own lives. Any participant in the dispute may feel loss of control. Even in families that are otherwise close and communicate well, confusion, fear and anxiety may increase as both older adults and family members struggle to understand each other and make decisions.

The First National Symposium on Ethical Issues for Elder Mediation is an effort to address the special practice issues that arise when working with the older population.

It aims to address these questions:

• What are the ethical issues involved in elder mediation?
• How do existing ethical standards apply in elder mediation and are additional standards needed?
• What is the impact of societal bias regarding aging upon the value of self-determination and the mediation process? Upon mediator neutrality and impartiality?
• What is sufficient capacity to participate in mediation? Under what conditions?
  
• Who determines capacity to participate?
• What are the ethical responsibilities of the mediator when a capacity issue is identified?
• Do new ethical and practice issues arise for the mediator when the content of the dispute has ethical dimensions?

The Symposium's planners or participants include:

• Montgomery County Mediation Center, a non-profit community mediation center in Pennsylvania that has developed expertise in elder mediation
• Elderly Law Project of the Temple University James E. Beasley School of Law
• Institute for the Study of Conflict Transformation, Inc., a national think tank on conflict interaction.
• National Elder Mediation Network, organized by The Center for Social Gerontology
  

For registration information, contact the Symposium Coordinator Kathryn Mariani at (610) 277-8909 or eldermediation@verizon.net.

Update: 03/12/08:

I updated some links in this posting. I note that materials (described below) from this Symposium can be obtained through the Montgomery County Mediation Center as summarized at this link.

Materials from the Symposium are available for purchase, including the participant handbook, a training video that addresses the ethical implications of practice decisions in elder mediation (currently being produced), and a DVD of a dialogue that occurred during the Symposium between Robert Baruch Bush and Nancy Neveloff Dubler, two intellectual powerhouses who have very different views about the mediator's responsibility for the ethical outcome of a mediation.