The newsletter of the ISBA’s Standing Committee on Women and the Law
The future is almost here?
When I was in high school, my favorite movie was, and very possibly still is, “Back to the Future.” I was not the only one so fascinated with the idea of meeting your future self as the “Back to the Future” trilogy quickly became an American classic. (As a side note to my main point of the article, but one that I just cannot resist mentioning due to myself being a lawyer writing to an audience of lawyers, I laughed out loud when I recently watched the movie and the following exchange took place:
Doc (from the future): “The verdict came in.” Marty McFly (from the past): “So quickly? But the trial just started yesterday?!” Doc: “We’ve eliminated lawyers in the future. The system became so much more effective.”)
To get back to point though, the future, at least in the sense of predicting your lifespan and your potential for developing certain diseases, might not be very far off according to leading researchers in the field of genetic testing. Already there is substantial research pertaining to certain predispositions. For example, two genes have already been identified as possible culprits contributing to breast cancer. Stanford Medical School neurologists predict that we will soon be able to determine to a 90 percent certainty whether an individual will develop Alzheimer’s disease.1 A group of Boston University researchers announced in January of this year that a new blood test could predict a person’s chance of living to 100 years old with up to 85 percent certainty.2
What will we do when this information is available? As a lawyer, I cannot help but think of how this will change the legal landscape, specifically what kind of new regulations will have to be issued to define when this information may and may not be used and how people’s behavior may change with the knowledge of new information.
The law has already laid out certain rules for when genetic information may and may not be brought in as a factor. In 2008, then-President George Bush signed into law the Genetic Information Nondiscrimination Act.3 Also by 2008, at least 47 states had enacted their own legislation that prohibited genetic discrimination in the area of health insurance,4 and approximately 35 states had enacted legislation prohibiting genetic discrimination in the field of employment.5 Generally speaking, health insurance legislation at the state level prohibits the use of predictive genetic information when an individual applies for health insurance. In the context of employer-sponsored group health plans, federal law preempts and controls regulation of such plans. Employers are generally prohibited from using genetic tests as a precondition for employment or using such information in personnel decisions.6 I am sure the law will be further developing as genetic testing advances beyond the current point.
Having the information available will also allow for better planning. On the personal level, if we dared to genetically test ourselves and found out that we have an increased likelihood for certain diseases, what would we do differently? I would imagine that most of us would spend more time with the loved ones and would fret less about the little things. It would also allow us a better opportunity to plan for what is coming. From an estate planning perspective, a person who finds out that she may be disabled for a certain period of time may want to make arrangements for a trusted friend or a family member to take care of her financial matters during her disability by forming a living trust and naming the trusted individual as trustee. Maybe she will also make sure to execute a power of attorney for property to allow the trusted person to deal with her assets that are not in the living trust. Knowing the particular ailment that one may have a predisposition to would allow her to specifically address the particular treatments of that disease in her healthcare directive. If she has underage children, she will also have the chance to decide who will take care of her children by designating a guardian in her testamentary will. If she has substantial enough assets to fall under the estate tax, she may want to begin transitioning her wealth to her children earlier than she initially planned. If she does not have substantial assets and may be in need of government assistance if she in fact becomes sick, she may look into what would qualify her for help from the government.
Having the foresight that a person close to you is likely to become disabled for a prolonged period of time may also be helpful in deciding how to provide for her and possibly take advantage of the different special needs planning techniques available. In particular, one may want to set aside more resources for such loved one’s future medical needs in a special needs trust or otherwise.
Of course as genetic testing for diseases marches on, we all hope that medicine follows closely behind with treatments and cures. In the interim, it is interesting to see how law will continue to adapt to the advancements in science. ■