Tag Archives: Elder Law

Calibrating the Convenience and Constitutionalism of Chronological-ism

Oct 17, 2025 Tom SimmonsElder LawAdd a Comment

Since 2022, voters in both Nevada and New York have overwhelmingly approved state constitutional amendments characterizing age as a protected class. As a result, a host of age-based policies and practices may soon become legally impermissible there. If the enactments in those states are part of a trend, the scrutiny on classifications based on adults’ chronological age will only intensify.

Nina Kohn’s Ageless Law ought to be required reading for any Elder Law class. It constructs a comprehensive intellectual scaffolding on which all the different sorts of age-based classifications and justifications thereof are strung. “Policies that differentiate based on older age are so common in modern America that they are often treated as unremarkable,” (P. 7) she observes. Excavating that which may have become unremarkable is an important and often overlooked academic enterprise. Professor Kohn undertakes this enterprise with remarkably sensitive concision.

First, she notes, “When age-based policy is discussed, it is often assumed that those policies benefit older adults” (P. 8). Not so. Age-based rubrics are commonplace in allocating government benefits based on age (e.g., Social Security), but they also appear in the form of interventions to address abuse and exploitation, tax breaks, mandatory retirement ages (e.g., for judges) and in the allocation of healthcare resources – both affirmative and negative.

During the COVID epidemic, for example, older adults were prioritized for preventative care such as scarce vaccines. At the same time, some states adopted triage standards which deprioritized older adults for curative care interventions like respirators. Older patients face de-prioritization barriers in other contexts as well. The United Network for Organ Sharing, a nonprofit network which contracts with the Department of Health and Human Services, assigns priority scores for organ transplants based, among other factors, on age.

After outlining the various forms of age-based classifications, Professor Kohn excavates the policy justifications for them. One primary reason we discriminate based on age is that it is so easy to do so. An individual’s chronological age is much cheaper to determine that the individual’s vulnerability, frailty, or maturity indexes. But age is almost always a proxy for something else and often a poor one at that.

Interestingly, another policy justification for age discrimination is the promotion of egalitarianism. But depending on the context, it may be invoked to favor the old, favor the young, or even to argue that individuals ought to be treated with equal degrees of favoritism without regard to their phase in life (a “temporal egalitarianism”).

Thus, the “fair innings” theory coined by John Harris avers that younger adults should be prioritized via age-based rationing since older people have already had more opportunities (fair innings) than younger people.¹ If rationing is to be based upon projected life span, it follows that those with more life to live ought to be favored since allocating more resources to them will achieve greater impact. The theory assumes that older individuals have “taken” more than younger individuals—which is true to a certain extent insofar as the consumption of fossil fuels, nutrition, and other consumables.

On the other hand, favoring older adults finds justification on the ground that the old are more deserving. The “fair deserts principle” says that pro-elderly policies recognize that old age is a sort of “earned status” (P. 21) – an idea posited by Douglas Nelson.² The idea here is that during adulthood, one contributes to society. The longer one has lived, the more they have given to others. In old age, those still living ought to be repaid.

Yet this raises the question of why exclude those adults who die prematurely from the scope of repayments. Kohn says, “Old age is not an equitably allocated resource” (P. 28). Many adults never become older adults, whether because of illness, accident, or violence, and statistically speaking, those of higher socio-economic status live longer than the less privileged. Prioritizing older adults might be simply rewarding those for having won the life expectancy lottery, which seems a poor justification for chronological-ism.

Finally, Kohn highlights the potential ramifications in states which recognize age as a protected class under their constitutions. Louisiana has long recognized age as a protected class, but its constitution’s text and the jurisprudence applying it essentially only applies a rational basis level of scrutiny to government-enacted age classifications. The impact of New York and Nevada’s recent enactments are less certain.

Kohn considers whether heightened scrutiny will be applied both to private actors and local government classifications. She also unpacks the disparate impact theory and analyzes whether states are likely to restrict their new constitutional age-classification protections to disparate treatment (intentional) discrimination.

Whether age can or should be used as a classification system for older adults depends in large measure on alternative rubrics. Age is a very imprecise proxy for need, vulnerability, or cognitive decline. Alternatively, for example, a sorting mechanism could be employed which scores an individual’s vulnerability to a specific problem such as financial exploitation. The “vulnerability theory” articulated by Martha Finman would target resources based on vulnerability rather than age.³

Certainly, alternative classification rubrics to age such as vulnerability would be more costly to administer than age-based classifications. But the benefits associated with reducing chronological-ism would include both more efficient allocations and a reduction of the associated ageism which government-mandated age-based classifications inevitably endorse. Kohn’s article contains a wealth of additional points and considerations. It helps us understand why we discriminate based on age and to ask whether – and in what contexts – we still should.

Miss Daisy – Driving?

Jan 20, 2025 Tom SimmonsElder LawAdd a Comment

Sadly, age and cognitive decline often go hand in hand. Approximately one in ten Americans over the age of 65 have dementia. As much as half of individuals with dementia still drive. The statistics on how many additional accidents occur as a result are somewhat murky. Some studies reveal twofold increases in risk of car crashes. But one study actually revealed lower risks among drivers with dementia possibly because that set of persons reduces their driving frequency so much relative to the non-dementia set that the occurrence of accidents drops despite the greater risks associated with cognitive impairments (and also because not everyone with dementia is incapable of driving safely). Still, no one doubts that the risks of driving with dementia are real, yet the law has had very little to say about the matter.

In Patient Autonomy, Public Safety, and Drivers with Cognitive Decline, Professors Hoffman and Robertson assess the predicament of drivers with cognitive impairments. Even individuals with only mild dementia are about ten times more likely to fail an on-the-road driving test than comparators without dementia. Currently, however, only one state requires road re-testing for all drivers above a certain age (75 and above, in Illinois). Simply renewing a driver’s license in-person is too anemic. Across-the-board mandatory road re-testing is too costly. A more thoughtful solution has thus far been elusory, but Hoffman and Robertson articulate and defend a multifaceted framework of enhanced protocols which is both compelling and thought-provoking.

The solution to roads filled with too many drivers with dementia, they explain, may lie in imposing responsibility among stakeholders and encouraging interventions by medical providers. Previous proposed solutions have relied too heavily on a single point of responsibility (whether it be the DMV, the primary treating physician, or family members). Interestingly, the tort system has already provided some degree of relief in the form of potential liability for family members and doctors who fail to intervene. While caretaker liability scares might move the needle a bit, a more comprehensive framework is more likely to significantly curtail crashes caused by cognitively compromised drivers.

Interestingly, the authors also explicate the precise nature of how cognitive impairments affect one’s driving abilities. “This is because driving requires a multitude of cognitive abilities” (P. 6.) First, there is working memory capacity, which involves the retention and manipulation of short-term events. Second, there is time-sharing ability which permits one to perform several tasks simultaneously, rapidly switching attention from one to another. Spatial skills allow a driver to monitor objects such as pedestrians and obstacles and locate them in relation to the driver by using forward vision, side vision, and – in the case of driving, in particular – those pesky rear-facing mirrors. Finally, a driver must blend all these cognitive operations together while abiding by a small constellation of rules of the road and adhering to the goal that will enable her to ultimately arrive at her destination. Toss in verbal commands from a smart phone and distracting conversations from a passenger and even experienced non-impaired drivers must fully engage different areas of their brains to avoid mishaps on the highway.

It shouldn’t be surprising, then, that a number of popular cognitive tests fail to evaluate the particular skills required for driving or their multifaceted combinations. One helpful cognitive test, for example, involves drawing the hands of a clock to reflect a particular time of the day. Others assess verbal cues and word recall. Just because a cognitive test proves to be a helpful diagnostic tool does not mean that it has anything to say about the individual’s ability to drive a car. The precise contours of any given individual’s cognitive decline must be assessed across multiple dimensions. Some of the more appropriate tests, the authors emphasize, are time-consuming and impractical. Still, primary care physicians are at the front-line of the problem and are better equipped to at least refer a patient for further driving assessments, if they could be properly incentivized to do so.

The problem of drivers with dementia is further exacerbated by the cultural/regulatory landscape of our extremely car-centric way of life, especially in low population density areas of the country with few options for mass transit. The authors convincingly demonstrate how the law not only fails to ameliorate the public safety hazard of drivers with cognitive impairments, but actually works to enhance Americans’ dependence on automobile transportation. Citing Gregory Shill and Jesse Singer, they explain how “the legal system isn’t merely responding to personal preference for automobile travel or allocating responsibility for traffic harms caused by individuals – instead, our law and policy create the very context in which those preferences and harms arise” (P. 20.)

Hoffman and Robertson’s full set of recommended protocols – which would involve doctors as well as law enforcement officers, insurance companies, families, and DMVs – cannot be fairly summarized in a jot. For that, a careful study of their readable, lively article is highly recommended.

Ultramodern Undue Influence

Nov 22, 2023 Tom SimmonsElder LawAdd a Comment

In The New Undue Influence, Professors Horton and Weisbord contend that a newfangled sort of undue influence has recently emerged. As a means to challenge testamentary gifts, undue influence has endured its share of critics who claim it often takes the form of prejudiced views of “unnatural” objects of the donor’s bounty—such as same-sex spouses or age-differentiated partners. The popularity of undue influence once seemed to be fading. But the doctrine has now developed new teeth, resulting in a more effective tool for unwinding bequests produced by improper pressures on vulnerable, often elderly, testators.

This reinvigoration of undue influence can be discerned, Horton and Weisbord explain, in three areas. First, undue influence claims have been economically incentivized in some states by means of legislatively authorized fee-shifting as well as double damages (“a punitive makeover”) (P. 33) along with a relaxation of the standing rules governing who can bring a claim. Second, an evidentiary makeover has generated presumptions for claimants when the alleged culprit stood in a confidential relationship with the testator. Third, coupling undue influence with a new cause of action—elder abuse—can enhance the leverage of claimants with more generous statutes of limitation. Tracing these three related developments alone would constitute an important piece of scholarship. But the second half of The New Undue Influence also introduces an empirical analysis of these trends.

It’s in the empirical analyses that the article gets particularly interesting. California was selected as a geographical point of inquiry. California serves as an especially appropriate state for the authors’ assessments since it “is the leader of the undue influence pack” having “adopted the full rainbow of new undue influence laws….” (P. 35.)

The authors sifted nearly 7,000 probate and trust matters from the Alameda and San Francisco Counties to extract and assess some fifty variables. Using this data set, the authors identified 175 cases of undue influence. Of those, only nine (5%) proceeded to a verdict. Of those nine, the undue influence claimant prevailed in only a single case, but the data from settlements is more revealing.

Because California requires judicial approval of most estate settlements, the data set yielded key information concerning undue influence claim settlements. Horton and Weisbord were able to extract a success rate by dividing the settlement sum by the dollar figure the claimant would have recovered had she prevailed at trial. They were further able to compare the success rate for claimants utilizing the new undue influence remedies against those which featured conventional undue influence claims. For claimants relying on the latter, the success rate was 31.5%. But for claimants invoking the new undue influence frameworks, the success rate was 51.9%. Thus, cases with new undue influence allegations are correlated with significantly higher mean success rates. The new undue influence frameworks are working.

The article goes on to statistically disprove the concern of some legal scholars that undue influence protects family bequests at the expense of less traditional donees such as non-relatives and unmarried partners. This “family protection theory” posits that factfinders unfairly penalize “unnatural bequests” to non-family members in undue influence contexts. Statistically speaking, however, that’s simply not the case, the authors explain: claimants “who were members of the testator or settlor’s family did not fare better than those who were not.” (P. 42.)

Indeed, in some cases, alleged wrongdoers qualifying as “family” may have fared worse than unrelated individuals. The authors uncovered four cases in which a spouse of a testator was accused of undue influence and furthermore, the contestants claimed, the union was the product of a sham marriage. “Two of these ‘weddings’ occurred in secret, one took place less than a week before the owner died, and another happened two days before Adult Protective Services found that the settlor lacked mental capacity.” (Pp. 42-43.) Deathbed marriage ceremonies, it seems, can serve to arouse suspicions rather than allay them.

Additional nuggets of interest are peppered throughout this engaging, impressively researched (and copiously footnoted) article. Probate files are particularly well-suited to empirical study since there are so many of them. The future of elder law and estates scholarship will undoubtedly see more and more statistical inquiries. Horton and Weisbord show us how it’s done.

Fraud Reconsidered

Nov 4, 2022 Tom SimmonsElder LawAdd a Comment

In The Age of Fraud, James Toomey challenges a heretofore unchallenged assumption: that elderly persons are more vulnerable to scammers than younger adults. We all unthinkingly assume that the elderly are riper for fraud victimhood. In fact, Toomey’s empirical research reveals, young adults are more often the targets of fraud than older adults. Younger adults are also more susceptible to engaging with and ultimately falling victim to fraud. Perhaps all of our assumptions concerning older adult fraud victims were just a bit of ageism. Older folks, it turns out, do a pretty good job protecting themselves from scammers.

Toomey’s study polled two cohorts: one age 65 and older and another age 25 to 35. Toomey notes: “We tend to think of scams and frauds as primarily a problem for older adults—lonely, trusting, and possibly experiencing cognitive decline.” (P. 2.) We also take for granted that the elderly are more attractive targets to scammers since they may be more affluent. Toomey debunks both assumptions and outlines important policy considerations which necessarily follow.

Over the past decade or so, legal reforms on several fronts have singled out fraud against senior citizens as a distinct problem. Elderly fraud victims have been treated as a discrete problem, and concern for them has generated distinct legal responses, such as the SEC’s 2018 safe harbor for reporting suspected fraud targeting older account holders with its Rule 2165. Congress debated the Protecting Seniors from Emergency Scams Act. Numerous state law initiatives have also been implemented, typically imposing stiffer penalties when the scam victim is an older adult (or an individual with a disability). Some jurisdictions have allocated more funding to contend with older adult scam victimization.

All these reforms rest upon the supposition that older Americans are more susceptible to scams than others – that senior scams “represent a discrete social problem” requiring “a discrete legal solution.” (P. 10.) Many reformers claim we still have not gone far enough. But in fact, the claim that seniors are more likely to be financially victimized is wrong. When actual evidence is considered, the qualitative assertion underlying various legislative responses is simply unsupported.

Disrupting conventional wisdom on important matters is what good empirical scholarship does best. Toomey’s study, focusing primarily on COVID-19-related scams with a sampling of some six hundred Americans, is not necessarily conclusive. (He suggests that the public focus on senior scams may have worked to achieve its aim and put the elderly more on guard against scammers.) However, it does strongly suggest that to the extent the criminalization of fraud against older Americans was premised on their enhanced targeting by fraudsters and heightened vulnerabilities of older targets, those assumptions are wrong. And here is where Toomey’s article really gets interesting.

He posits: “It might be that taking advantage of older adults is qualitatively worse as an ethical matter.” (P. 4.) It might be that targeting a senior is morally worse than targeting a young adult. Could the legal reforms be justified on the grounds that targeting senior fraud victims is more morally offensive–qualitatively? This is the justification underpinning hate crimes; not that hate crimes are more common than other crimes but that their moral blameworthiness simply exceeds that of other crimes (a deontological claim which cannot be empirically disproven). It’s worse to victimize an older person because it is more despicable. It’s worse because it is worse. As a result, it demands a greater retributive sanction against the perpetrator.

Alternatively, it could be that some crimes are more blameworthy because they are more harmful (a consequentialist claim which might be susceptible to proof). How could the motivation behind a particular crime (say to target a senior citizen rather than a younger adult) result in more harmful consequences? Theoretically, retirees would have a harder time rebuilding their nest egg from the devastating effects of a successful scam than working-age folks. Retirees might also suffer greater emotional distress as a consequence of being targeted by scammers than younger adults. Older Americans might be too trusting – less resilient, more fragile. And therefore, they might suffer more emotional and financial harm than younger victims.

These stereotypes, however, seem to be leading us right back to the problem of ageism which assumed older victims were more vulnerable than was actually the case. Toomey does not call for a dismantling of the legal reforms associated with financial abuse targeting older individuals. But he does call for a reassessment.

Reinforcing Autonomy and Displacing Guardianships with SDMs

Aug 16, 2021 Tom SimmonsElder LawAdd a Comment

In Legislating Supported Decision-Making, Professor Nina Kohn tackles the deficiencies of the supported decision-making paradigm, beginning with its definition, which varies tremendously depending on who you ask. She defines it as “an umbrella term for processes by which an individual who might otherwise be unable to make his or her own decisions becomes able to do so through support from other people.” (P. 4.) Supported decision-making (or SDM) represents a fundamental shift in the fields of elder law and disability rights. It is an extension of the people-centered approach. SDM promoters claim that it enhances the dignity of individuals with cognitive limitations by permitting decisions to be made with them—rather than for them.

States can and should use SDM in many contexts. Individuals under a guardianship ought to be empowered to participate in decisions about their lives, their healthcare, their financial affairs, and so on. SDM can thereby permit more limited guardianships. Moreover, for higher functioning individuals, SDM can provide an alternative to a guardianship proceeding altogether. Because SDM is less restrictive alternative, it should be preferred to a guardianship whenever feasible.

However, Kohn argues, SDM has fallen short of its aim of providing an alternative to guardianship in several respects. Indeed, SDM agreements may even erode autonomy by limiting the rights of individuals with cognitive limitations to revoke the agreements. In addition, SDM legislation typically treats SDM supporters as non-fiduciaries while providing few if any remedies or rights for the supported individual—while creating “new legal rights for the supporters” (P. 21) (emphasis in original) and third parties.

Kohn’s indictment of SDM implementation is compelling. She notes the convergence of political interests underlying the widespread support for SDM legislation – legislation which, by authorizing SDM agreements, gives them an official imprimatur. She then proceeds to critique the existing ’ shortcomings. Finally, she frames five coherent and straightforward proposals to remedy those failings. I’ll highlight three of them.

First, Kohn proposes, state guardianship statutes ought to “be amended to explicitly prohibit the use of guardianship where supported decision-making would meet the individual’s needs.”(P. 39.) This approach is embedded in the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (or UGCOPAA) approved by the Uniform Laws Commission in 2017, but so far, is enacted in only two states.

Second, Kohn explains: “Despite the common rhetoric used to promote them, [most existing guardianship] statutes do not provide individuals with a right to use supported decision-making.” (P. 18.) Kohn’s point rests on a reality of the legal landscape: The majority of individuals under a guardianship retain a host of rights, including the right to contract. Thus, no enabling statute is required to permit the exercise of this right. Formal legal status (i.e., legislation) is redundant. SDM-enabling legislation can suggest that individuals with cognitive limitations lack the power to make decisions for themselves unless a formal SDM contract appointing a supporter is in place. As a result, legislation which expressly authorizes individuals under guardianships to utilize SDM can actually have the effect of diminishing their autonomy and authority over their own lives.

Thus, Kohn’s second proposal is to promote SDM agreements through the dissemination of forms without any enabling legislation. Stakeholders, state agencies, and non-governmental advocates can simply encourage SDM agreements. A useful form, for example, would identify the parties (the supported party and his or her supporter), address compensation, impose duties, describe the decisions with which the supporter will assist, identify the type of assistance to be provided (e.g., with identifying different options; with evaluating them, etc.), and clarify the overlap between multiple supporters. The form should also – contrary to some examples of SDM legislation – permit the supported person to revoke the agreement at will.

Third, Kohn advances the idea of constructing a public system for supporters, designed along the lines of public guardianship programs. Supporters could be trained and any individuals with disabilities who lack a network of trusted family members could use staff from publicly funded programs for their SDM agreements. Indeed, Kohn suggests, doing so might already be required by federal law pursuant to the mandates of Title II of the Americans with Disabilities Act (ADA). She notes, “Arguably, when a public entity provides decision-making support to individuals with disabilities only if those individuals are subject to guardianship, the entity violates the ADA by not offering a less restrictive alternative.” (P. 45-46.)

Kohn’s article is a rousing call to action accompanied by a comprehensive battle plan. It should be required reading for disability rights advocates, elder law attorneys, and state legislators everywhere. It is practical, meaningful, and important scholarship.