Elder Law & Special Needs Section Blog | Elder Law and Special Needs Section

This blog focuses on protecting the rights of the elderly and individuals with disabilities, and  provides advice, information and advocacy in areas relating to the legal issues that affect their lives. Published by the State Bar of Wisconsin's Elder Law and Special Needs Section.

Members of the State Bar of Wisconsin may join the section by visiting https://www.wisbar.org/formembers/groups/pages/join-a-group.aspx (login required).

Website: https://www.wisbar.org/forMembers/Groups/Sections/ElderLawSection/pages/home.aspx

COVID-19, the job market, and now inflation consume us. Older Americans and those with disabilities are more drastically affected by all three, especially due to the consistent need for quality caregiving services in an unstable economy.

In January 2019, a Harvard Business School Report compelled the country to acknowledge the “caregiving shortage crisis,” which has only worsened post the pandemic. Millions of seniors and people with disabilities require long-term services and support, and most want these services at
Continue Reading Drafting Caregiver Agreements that Combat the Caregiving Crisis

Many of us became attorneys because our reaction to math was “Ugh, not if I can avoid it!”

Not to say any of us are bad at math, but after years of watching lawyer dramas, we didn’t exactly envision our legal careers involving intricate spreadsheets of income and asset classes, monthly care costs, divestment divisors, and so forth.

However, providing the best guidance to our clients often requires exactly that: a deep dive into what puts the client and
Continue Reading Basic Math in Elder Law

One of the many things I have appreciated about becoming an attorney is working with people who care deeply about the clients they serve and the work they do.

It is a great honor to watch attorneys meet with clients, listen, and do their best to make clients feel comfortable. That includes working with disabled clients, who are often dealing with substantial barriers, ableism, and disrespect.

However, even though lawyers are making strides in accommodating individual clients, our systemic
Continue Reading Accessible Content Broadens Your Client Base and Improves the Way You Work

Established in 2003, Wispact, Inc., is a private nonprofit organization that maintains and administers pooled special needs trusts for nearly 4,000 individuals with disabilities throughout Wisconsin. What Is a Pooled Trust? A pooled special needs trust (PSNT) is a type of trust arrangement where there is one master trust document that details the pertinent definitions, powers, and duties that control all the sub-accounts created under it. A sub-account is created under a PSNT when a beneficiary or
Continue Reading Wispact at a Glance

As elder law and special needs planning attorneys, many of us are involved in what might be considered “extracurricular” work activities – i.e., all those things we do that flow directly from the profession we have chosen.

We serve on boards. We volunteer for nonprofits and organizations. We advocate for causes that are important to us. We coordinate with other groups and professionals who help serve our clients. We identify gaps in the systems we work with, and daydream
Continue Reading Elder Law Lawyers: There’s a Grant for You

The Elder Law and Special Needs Section is a very collegial and welcoming section of the State Bar of Wisconsin.

I know this from personal experience. I have served on committees and in a leadership position with the section for seven years. I personally witnessed that the members of the section and the board go above and beyond when it comes to sharing their expertise with new members and attorneys who are striving to expand their practice of law
Continue Reading Diversity and Inclusion is a Top Priority of the Elder Law and Special Needs Section

For those of you who have not seen the cinematic classic that is Legally Blonde, the above title is a nod to the main character’s most notorious line.After Elle Woods successfully gains admission to an Ivy League law school, one of her classmates cannot fathom how she was admitted, and her response is the above phrase of incredulity.Amy K. Greske, William Mitchell 2014, is an attorney at O’Neill Elder Law, LLC, in Hudson. She practices elder law and
Continue Reading Transferring Guardianship to Another State Under Chapter 53: ‘What? Like It’s Hard?’

Wisconsin summers invite many enjoyable activities: boating, hiking, fishing, and of course, trips to the family cabin. A hallmark of Wisconsin’s Northwoods, the family cabin, is a treasured piece of Wisconsin culture. Its foundation tells the story of a family’s hard work, close bond, and dedication. Families gather, laughter is shared, and memories are made.

It is no surprise that the cabin is often a family’s most valuable asset. As such, protecting it from devastating long-term care costs requires
Continue Reading Protecting the Family Cabin with a Family LLC

Thinking about becoming a Certified Elder Law Attorney (CELA)? Here is my experience.

Greg J. Banchy, Marquette 1987, is an attorney with Banchy Law Center LLC in Eau Claire, practicing in elder law and estate planning.

Last September, I sat for the certification exam to become a CELA – a designation given by the National Elder Law Foundation (NELF).

I was warned that the exam would be difficult – and it was. The biggest challenge was actually the breadth and
Continue Reading Becoming a Certified Elder Law Attorney

An algorithm is a set of steps that leads to a conclusive result. Both humans and computers can process algorithms – even simple arithmetic is an algorithm. Computers use complex algorithmic formulas that reference large quantities of data in order to make automated decisions.

Governments, employers, insurance companies, and health care providers are dramatically increasing their reliance on automatic decision-making software. Decisions as diverse as evaluating risk during criminal sentencing, deciding where to prioritize police resources, sorting resumes, ranking
Continue Reading Algorithm Bias: Due Process versus Trade Secrets

It seems as if we are starting to see, once again, some of the actions of Wisconsin nursing homes that led to the original Nursing Home Reform Act.

Now is a good time to take a look back and review what that federal law was all about.
The Nursing Home Reform Act of 1987
In 1986, Congress authorized the Institute of Medicine to conduct an analysis of complaints against the nursing home industry by its residents and their families.
Continue Reading Why We Should Revisit the Nursing Home Reform Act

The Elder Law and Special Needs Section (ELSNS) Board has had a carryforward of funds from one budget to the next.

While the board will use some funds in an emergency or for unforeseen circumstances, it also plans to spend funds each year to further the goals of the section, its members, and the public.

Fund Policy

The board has a policy to set forth the use of the funds. The board plans to spend funds on the following:
Continue Reading Grant Opportunities with the Elder Law and Special Needs Section

In Being Mortal: Medicine and What Matters in the End, Dr. Atul Gawande writes about how often medicine fails the elderly and those with terminal illness.

His first example is a man who chose a surgery that didn’t stand a chance of giving him what he really wanted (“his continence, his strength, the life he had previously known”). Despite seeing his wife die in intensive care and resolving to avoid the same fate, the man chose a risky
Continue Reading The Hardest Lesson to Learn in Elder Law

On July 1, 2019, I did something I never thought I would do: I became “of counsel” to my firm.

During most of my career as an elder law attorney, I planned to keep working until I died. I remember mentioning this to a colleague, Robert Fleming, when I was at his office in Tucson in 1996. Robert, Charlie Sabatino, Craig Gordon, and I – all National Academy of Elder Law Attorneys (NAELA) members – were at Robert’s office
Continue Reading Life of an Elder Law Attorney after Retirement

Nothing stops a dinner party conversation quicker than when people inquire of your profession and you reply, “I’m a lobbyist.”
Lobbying gives people a certain impression – maybe created by movies or TV, or even by politicians themselves, who often swear off lobbyists on the campaign trail. As often the case, the perception is much different from the reality – and lobbying and advocating for justice and the legal system has never been more important.
About State Bar Lobbying
Continue Reading State Bar Lobbyists: Advocates for the Elder Law and Special Needs Section

Note: This article was originally posted in the McCarty Law blog.

COVID-19 has been hard on all of us, but especially on residents of nursing homes. Because nursing homes house our most vulnerable population, extra precautions needed to be implemented to protect them.

This resulted in nursing homes being “locked down,” meaning residents were not allowed to leave, nor were they allowed visitors. Early on during the pandemic, we all saw heartbreaking pictures of families waving at a
Continue Reading Medicaid Issues with COVID-19