Minutes of the Elder Law Section Council

Friday, September 21, 2001

ISBA Chicago Regional Office

Presiding: Bill Cleaver

Present: Lee Beneze, Lionel Brazen, Tina Coffey, Susan Dawson-Tibbits, Janna Dutton, John Erbes, Thomas Giger, Richard Hart, Karl Menninger, Dan Moore, Sherri Rudy, Connie Renzi, Naomi Schuster, Ed Stanula, Rhoda Sweeney.

Absent: Stanley Balbach, John Foltz, Dan Hawkins, George Johnson, Ford June, Lori Levin, Jamieson Long, Marc Miller, Ed Mitchell, Mardyth Pollard, Jay Rheingold, Larry Smith, Marjan Staniec.

Others present: Selina Thomas, Staff Liason; Laura Sakas, guest; Tim Eaton, ISBA President(near the end of the meeting).

• Call to Order: The meeting was called to order at 11:00 a.m. by the Chair, Bill Cleaver.



• Introduction: The Chair asked the members present to introduce themselves and make any corrections to the Roster of members.



• Guest Speaker: Laura Sakas, Managing Attorney for the Office of State Guardian, Northern Division, distributed material to the council members concerning the Illinois Guardianship and Advocacy Commission, of which OSG is a part, along with the Legal Advocacy Service and the Human Rights Authority, and spoke about the need for attorneys in the southern part of the state (below I 80), to represent clients as petitioning attorneys in guardianship cases. She indicated the hope that these attorneys would serve voluntarily, but indicated the possibility of a small fee from the client's estate. Ms. Sakas fielded numerous questions from council members.



• Approval of Minutes: the Minutes of the June 22, 2001 Meeting were reviewed. A motion to approve the Minutes was made, seconded and carried.



• Newsletter: Co-editor, Karl Menninger indicated that Issue #1 of the Elder Law Newsletter had been mailed to ISBA for printing. Co-editor, Connie Renzi will be contacting those section council members who are scheduled to submit an article for Issue #2, which has a scheduled deadline of November 16th.



• Education: Susan Dawson-Tibbits announced that the sections's CLE Committee's proposal to the Bar's CLE Committee for a program at the Midyear Meeting had been approved. The program, entitled "Planning in the 21^st Century for the Older Client" will be an all day program on Friday, December 14^th. Topics to be presented will include - Advance Directives, Guardianship, Medicaid Planning, Estate Planning and Ethics. The program will feature a case study with breakout groups. Volunteers were solicited and interest was shown on the part of the council members present to serve as facilitators in the breakout sessions. In light of the scheduling of the CLE program, there was discussion and consensus to move the section council's meeting to Thursday, December 13^th at 2:00 p.m.



• Internet Liaison & Website Report: No report



• Long Range Planning: Naomi Schuster requested that the LRP Report be deferred.



• Legislation: Dan Hawkins was not present, so there was no formal report submitted. Naomi Schuster brought up for discussion the new DNR legislation. P.A. 92-0356, which was passed on May 23, 2001 and became effective on July 1, 2001, provides for a new DNR Order Form. The form, which pursuant to the Act was to be created by the Illinois Department of Public Health, has created various problems. The form itself is unclear, especially the witness section. In addition, the form states that it is to be reproduced on "brightly colored orange paper". Although the Act indicates that DNR Orders need not be on the form created by Public Health, apparently, health providers in at least the northern part of the state, in particular, Emergency Medical Service (EMS) personnel, will not honor the DNR if it is not on orange paper. Printed information from Naomi, including a faxed transmittal from the Illinois Council on Long Term Care and the Illinois State Medical Society to section council member, Ford June, was shared with the council members by Naomi. This information has various references to the need to have an "orange copy" of the form. The council reviewed and discussed the new legislation and the information provided by Naomi. The possibility of a Newsletter article to address this new legislation and the resulting confusion was also discussed.



• Publications and Media Relations: Jaime Long was not present, so not report was presented.



• Old Business:

Legislative Proposals regarding Advance Directives/Powers of Attorney are being

worked on by Dan Moore and Sherri Rudy. They will be meeting to discuss this after the conclusion of the section council meeting.

• New Business



• Coalition of Bar Leaders (Exhibit E): the ABA Senior Lawyers Division is seeking the establishment of a Coalition of Bar Leaders from the states with large senior populations to act as an apolitical advocacy and resource group for lawyers and other professionals who deal with senior issues. Naomi Schuster and Stanley Balbach attended the initial meeting on August 2, 2001, during the ABA Annual Meeting in Chicago. According to Naomi, Walter Burke of Albany, NY would be the Chair of this coalition. He advised the group that attorneys from the states of Texas, New York, New Jersey, Florida and Illinois have shown an interest in being part of the coalition. The intent of the group would be to share information among elder law attorneys and to possibly create ABA publications in such areas as "assisted living". There was a general discussion by the council members. Lee Beneze questioned whether this was another act of lobbying. The Chair, Bill Cleaver inquired as to what we are supposed to do as a group. It appeared that a consensus of the council was to not take a lead role in this matter as a group.



• Proposed Rule on Attorney's Financial Responsibility : A proposed Supreme Court Rule issued by the ISBA Special Committee on Attorneys Financial Responsibility was introduced to the ISBA Board of Governors in July of 2001. The Board of Governors has asked that the proposed rule be distributed to and reviewed by Section Councils. The rule would require attorneys engaged in the private practice of law to maintain adequate professional liability insurance or other forms of adequate financial responsibility to compensate clients for the attorney's professional negligence. At the meeting an Amended Proposed Rule, dated 9/12/01 was distributed by staff liaison, Selina Thomas. The amendments relate to exemptions for those attorneys employed by the federal, state or local government, employed full-time by a non-governmental entity and those who receive less than $10,000 per year in gross fees. The amended rule also eliminated the provision of joint and several liability for attorneys in a law firm.

There was a lively and lengthy discussion by the section council members. Many individual comments were made. The comments were taken down by Selina Thomas. It was also suggested that individual members could contact the ISBA directly about their positions. It was also noted that much discussion concerning this proposed rule had occurred on the ISBA e-mail list serve and at local bar association meetings. The Council as a whole, decided to take no opinion on the proposed rule at this time.

• Illinois Guardianship Reform Project Symposium: Information regarding the symposium which was held at the University of Chicago on September 14^th was provided by Lee Beneze. There was also a general discussion by the council members regarding the state of guardianship law in Illinois. Particular mention was made of the provision in the existing law relating to a person's gambling and the concern that the law proposed by the Guardianship Reform Project would take away this provision.



• Informational Items: Exhibits F and G were noted by the council. Exhibit F is the newspaper article about elder law attorneys with quotations from council members, Janna Dutton and Connie Renzi (along with Connie's photo). Exhibit G is a newspaper article about gambling problems/addictions among the elder population as a result of the casinos in California.

Bill Cleaver mentioned a recent Iowa Supreme Court decision regarding grandparents' rights, Santi v. Santi, (633 N.W.2d 312), in which the Iowa statute was found unconstitutional. (The statute in Iowa allowed a grandparents' Petition for Visitation even though the family unit was intact, was opposed by the parents). Naomi Schuster brought up a recent Illinois Appellate decision from the 5^th Circuit, Defoe.

• Next Meeting: In addition to the scheduling of the council's meeting during the Midyear Meeting on December 13^th, the following meeting was scheduled for February 8, 2002 at 11:00 a.m. in Chicago.



• Adjournment: There being no further business, a motion was made and seconded and the meeting adjourned.

Respectfully submitted,

John F. Erbes

Secretary

Elder Law Section Council