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First E-Newsletter of the Elder Law Section - December 2010
In This Issue
Section Meetings
Areas of Future Interest
2010 Recap
Section Meetings

The Board meets approximately six meetings per year. Section members are welcome at all meetings, including its annual meeting, to discuss the ongoing business of the Section. At both the regular meetings and at the annual meeting conference call access is provided for those members not able to attend the meetings in person.

Quick Links
Areas of Future Interest

The Section continues to look at ways to affect our general purpose to facilitate and improve the law and practice of law in areas of particular concern to the elderly.



Eight Annual Elder Law Seminar: May 6, 2010 and an all-day 2011 Fall Elder Law Institute.



Serve as the New Mexico state liaison for programs such as National Healthcare Decisions Day, a nationwide program committed to ensuring that all adults with decision-making capacity have the information and opportunity to communicate and document their healthcare decisions.

This e-mail newsletter is a publication for the members of the Elder Law Section of the State Bar of New Mexico. The content of this newsletter does not reflect the opinions of the members of the board of directors of the Elder Law Section or the Board of Bar Commissioners of the State Bar of New Mexico. The source of content obtained from the Internet is, when possible, attributed to the original source. The content may be time dated, and references to Internet sites may change. This newsletter is informational only, does not constitute legal advice.



I am pleased to introduce you to the first biannual newsletter of the Elder Law Section, which includes a recap of Section activities in 2010, areas of future interest and summaries and links to a few articles that may be of interest. I hope that you find this letter to be informative, interesting and helpful in your practice.


The number of older individuals in the population is projected to increase to 71.5 million in 2030, representing nearly 20 percent of the U.S. population. As a result the need is growing for specialized legal advice about aging-related issues. Elder law attorneys are dedicated to improving the lives of seniors, people with disabilities and others. Our law practices are diverse and include the key areas of Estate Planning and Probate, Estate and Gift Tax Planning, Guardianship/Conservatorship, Medicaid, Medicare, Entitlement Programs, Retirement Benefits, Age Discrimination, Elder Abuse/Neglect, Housing, Long Term Care Financing, Medical Decision Making, Disability Planning and Insurance law.  I hope that each of you will become active in the Elder Law Section  in 2011 and that you will encourage your colleagues to join the Section, so that we can  better serve, expand our programs and increase participation in 2011.


Laurie A. Hedrich,

Chair of the Elder Law Section of the State Bar of New Mexico

2010 Recap

VOLUNTEER OPPORTUNITIES: The purpose of the Elder Law Section is to: A To facilitate and improve the law and practice of law in areas of particular concern to the elderly, including preserving and enhancing the rights of physically and mentally challenged individuals with respect to care, housing and asset management and to lead, coordinate and serve as a coordinating agent and clearinghouse for the efforts of the various agencies involved in service to the elderly.


Consistent with its purpose, the Section sponsors quarterly Estate Planning/Probate Workshops with the State Bar of New Mexico, which begin with a presentation by volunteer Elder Law Section attorneys, followed by a question and answer period. After the lecture, attorneys meet with individuals for a free one-on-one consultation to discuss specific estate planning and probate issues. Elder Law Section members as participate as volunteers for: (1) the Lawyer Referral for the Elderly Program; (2) Bridge to Justice Referral Program; and (3) Second Judicial District Voluntary Attorney Pool; and as directors of participant in organizations, such as (4) Senior Citizens Law Offices, (5) New Mexico Guardianship Association, (6) New Mexico Association for Continuity of Care and (7) the Albuquerque Guardianship & Conservatorship Group.



EDUCATIONAL OPPORTUNITIES: This year the Section held two seminars. The first was the Seventh Annual Elder Law Seminar:  Getting Old in These Changing Times on April 30, 2010, chaired by Kevin Hammar. The topics were:

  • What Have They Done to Us NowC and What (If Anything) Can We Do About It? Case Law and Legislative Update: Recent Changes affecting guardianship, and powers of attorney and tax law
  • What every Elder Law Attorney needs to know about levels of incapability and how it matters
  • Predatory Lending, Consumer Fraud, Exploitation and Abuse Against Elderly Victims
  • Attorney/(elderly, fragile) Client relationships - Tales from the trenches presented

For the first time, based on the survey of our membership, on October 1, 2010, the Section held an all-day 2010 FALL ELDER LAW INSTITUTE, chaired by Sara Traub, Richard Stoops, Maria Martinez-Siemel, Willow Misty Parks and Laurie A. Hedrich. The topics presented were:

  • The Use of Trusts in Protecting Public Benefits for Elderly and Disabled Clients:
  • Income Diversion Trusts
  • Medicare Set Aside Trusts
  • Special Needs Trusts
  • Panel Discussion Regarding Use of Trusts:
  • Evaluating Guardianship and Conservatorship Cases for Representation
  • Counseling to Avoid Undue Influence: How Chapman v. Varela Has Shaped the Definition of Undue Influence
  • Panel Discussion: Navigating the Minefield of Family Dynamics in Elder Law Situations

For information regarding availability of Video replays of these seminars, contact the New Mexico State Bar Center for Legal Education, (505) 797-6020 or check the CLE website under topic "Elder".


The Section will continue to look for opportunities to collaborate with other sections and non-lawyer groups to advance the practice of Estate Planning and Probate, Estate and Gift Tax Planning, Guardianship/Conservatorship, Medicaid, Medicare, Entitlement Programs, Retirement Benefits, Age Discrimination, Elder Abuse/Neglect, Housing, Long Term Care Financing, Medical Decision Making, Disability Planning and Insurance law in New Mexico.

Thoughts from the Chair

As your Chair, I have the privilege of sharing my thoughts with you about some of the larger issues facing elder law practitioners. In this newsletter, I focused on three news articles and the recently published GAO Report on Guardianship Abuse. Although the articles and the report are lengthy, I believe they are worth reading, and I hope that Section members will find it both interesting and valuable. I welcome your feedback and response.


The New York Times has recently published a series of articles about the elderly and loss of mental capacity. There are two of particular interest to me:


1. Katy Butler's recent article in the New York Times entitled What Broke My Father's Heart focuses a variety of issues related to caregiving, healthcare choices, and difficult end-of-life decision making. It is tough reading - a wrenching, sad, and frightening personal account of her father's deterioration and death - which was prolonged by a medical technology that was intended to bolster the quality of life rather than detract from it. The article raises many issues relevant to how to counsel a client who is making healthcare decisions for a family member in this situation, as it focuses on questions about medical choices, along with end-of-life issues.


2. Gina Kolata's October 30, 2010 article in The New York Times Vanishing Mind series, entitled, Money Woes Can Be Early Clue to Alzheimers. New research shows that one of the first signs of impending dementia is an inability to understand money and credit, contracts and agreements. This article correlates with a 2009 study, published in the journal, Neurology, which that older people with mild cognitive impairment who went on to develop dementia scored poorly on tests involving cash transactions, bank statement managements and bill payments in comparison to people with cognitive impairment who did not develop dementia and the healthy people. The article raises many issues relevant to how to financial and legal services providers face these issues, particularly when clients, suspicious, forgetful, disturbed by or denying their impending dementia, do not want their lawyer to discuss their behavior with their families or others.

A remarkable article in the August 2, 2010, issue of The New Yorker magazine may be of interest to elder law attorneys who wish to become more adept at counseling clients about end-of-life planning.


In Letting Go - What should medicine do when it can't save your life? Dr. Atul Gawande, a Boston surgeon, writes about the ambiguities that plague end-of-life care. With the candor that makes his writing credible and moving, he acknowledges that, as a physician, he too has great difficulty A letting go@ of a dying patient. The article seems especially pertinent to elder law attorneys. Of particular interest is the author's advice on the best way to discuss end-of-life issues with patients/clients, his belief that patients/clients should discuss end-of-life issues with family and also complete a written health care directive while healthy, and his description of end-of-life procedures which a patient/client may accept or decline.


Finally, on October 27, the U.S. Government Accountability Office released a report entitled, Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of Seniors. The report is on the GAO Web site at: While the GAO A could not determine whether allegations of abuse by guardians are widespread,@ it identified hundreds of such allegations by guardians in 45 states and the District of Columbia between 1990 and 2010. The Office examined 20 cases in which criminal or civil penalties resulted, and found significant exploitation of assets from 158 incapacitated persons. The GAO showed that in many instances guardians are not sufficiently screened or monitored by the court. Additionally, GAO investigators tested guardian certification programs in selected states and found the programs failed to adequately screen potential certified guardians. The GAO cautioned that A case study findings and undercover test results cannot be projected to the overall populations of guardians or controls over guardian certification programs.


Thank You

2011 was a fabulous year for the Elder Law Section! I wish to thank all of you who planned, worked giving generously of your time and talent and participated. A final reminder, this newsletter is for you, to help in your elder law practice. I would like to encourage you to send us your news and articles for inclusion in future newsletters, let us know what you would like to see in future issues and find ways to get involves with the Elder Law Section.