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TEACHING ELDER LAW

This Volume of the Stetson Law Review focuses on teaching Elder Law. I am extremely excited about this Volume because it covers two of my favorite topics: Elder Law and teaching. I would like to thank the editors for producing this Volume, as well as the previous editors who approved this project. I am also extremely grateful to the authors for their willingness to write about their approaches to teaching Elder Law. I hope that this Volume will not only contribute to the body of literature on Elder Law, but also offer guidance, insight, and ideas to those currently teaching Elder Law, as well as those who are considering teaching Elder Law in the future.

ELDER LAW AS PROACTIVE PLANNING AND INFORMED EMPOWERMENT DURING EXTENDED LIFE

Like most people, I did not plan my initial involvement in Elder Law. I had taught Federal Income Taxation and related subjects for nearly eleven years when my mother began needing assistance following a series of health incidents. She passed away after six months and, as I reflected on that period, I realized that I had acquired a voluminous amount of knowledge regarding various discrete legal regimes, and that much of this knowledge would be very valuable for students to learn in a structured context.

About this time, I received one of those occasional mailers from the American Bar Association touting an upcoming seminar on something called “Elder Law.” As I reviewed the contents of what was to be covered at that seminar, I realized that what I had spent the preceding half-year doing fit within this rubric and that I could create an experimental course under this title. I have taught this course continuously since that time to anywhere from twenty-five to one hundred students each time, depending upon the vagaries of the academic calendar and competing curricular alternatives. This article explains the current content of this course and some of the pedagogical decisions involved in determining its scope.

EVERYTHING YOU EVER NEEDED TO KNOW ABOUT GOOD LAWYERING, YOU CAN LEARN FROM ELDER LAW

The academic territory we now know as Elder Law did not exist when most of us writing for this symposium were in law school. Something both daunting and liberating resonates about driving the first covered wagons over new territory. Lacking a map, we learned from one another and through trial and error. A discipline defined by the client rather than by a discreet body of law, Elder Law reminds the student that law practice should be, above all else, client-centered.

THE ACCIDENTAL ELDER LAW PROFESSOR

Let me be up front about this: a little more than fifteen years ago I knew nothing about the then relatively new legal practice specialty known as “Elder Law.” Medicaid vs. Medicare? You mean there’s a difference? What the heck is a QTIP trust anyway? I was reading, writing, teaching, and thinking about many interesting things—the Federal Rules of Civil Procedure, the Confrontation Clause, the role of mandatory arrest laws in combating domestic violence—but the legal issues facing seniors were not among them. My course load consisted of various civil and criminal procedure classes, with a dash of intellectual property and feminist legal theory thrown in to keep things interesting. To be honest, I had never even heard of Elder Law. So, how does someone whose early writing comprised theoretical and empirical articles about civil and criminal procedure become fascinated with, and intellectually embroiled in, the practice-oriented particulars of a field as prosaic and academically irrelevant as Elder Law? More specifically, how does someone whose fantasy was to be the next Mary Kay Kane end up co-authoring a casebook and a treatise on Elder Law and eventually joining the Board of Directors of the National Academy of Elder Law? And how has the varied nature of my pre-Elder Law life affected both my philosophy about teaching Elder Law and the content of my courses?

ETHICS AND ELDER LAW: TEACHING STUDENTS TO ASK THE RIGHT QUESTIONS

Nowhere in teaching is this quote truer than in the area in which ethics and Elder Law intersect. Teaching professional responsibility generally is not an easy task, but when it is combined with the sometimes-complicated issues in Elder Law, it poses obstacles, challenges, and great rewards. Many times the best way for practitioners to solve the ethical dilemmas they face is to know the right questions to ask. Teaching students that the applicable Model Rules of Professional Conduct (Model Rules) many times may not answer all of the questions they will have as practitioners leaves them, at times, unsettled and unappreciative. The most important goal in teaching professional responsibility is to help the students understand that the Model Rules are in many cases the baseline, and the students will have to exercise discretion to decide difficult questions.

THE HUMAN TOUCH: CLINICAL TEACHING OF ELDER LAW

Many of the fundamental skills needed to represent older clients are best learned when law students work with actual clients. To describe a client’s options, the students first learn the options and then explain them in their own words. The legal concepts tend to sink in better. While doing this, the student addresses the client’s intellectual and emotional responses. Being focused on the client’s needs and engaged on many levels allows students to experience one of the most rewarding parts of being a lawyer. Clinical teachers get to help students find this moment, when they, too, can enjoy the satisfaction of solving problems for real people.

THE LESSON OF THE IRISH FAMILY PUB: THE ELDER LAW CLINIC PATH TO A MORE THOUGHTFUL PRACTICE

During the autumn of 2009 and the spring of 2010, I worked on sabbatical projects from points on the globe that were some three thousand miles away from my desk in the Elder Law and Consumer Protection Clinic at the Dickinson School of Law of the Pennsylvania State University (Elder Law Clinic). In practical terms, however, I was never very far away, as I found myself speaking about the clinic to academics around the world.2 In 2011, Penn State’s Elder Law Clinic will celebrate its tenth anniversary of operations; about twenty other law schools in the United States have clinics dedicated to providing legal services to older adults, and there is growing international interest in clinical education connected to elder clients. Possibly, Elder Law clinics are helping to pave pathways for the study of the discipline of Elder Law. For example, one study describes the first documented course offered on Elder Law at a United States law school as an Elder Law clinic.

TEACHING ELDER LAW AT THE UNIVERSITY OF HAWAII—INTEGRATING HEALTH LAW AND CULTURAL ISSUES INTO THE CURRICULUM

The University of Hawaii Elder Law Clinic students were excited and proud, yet humbled. Seeing a picture of one of their clients on the front page of the Sunday edition of Hawaii’s largest newspaper made them realize that what they were doing in class was “real.” The headline accompanying the picture read: “Financial Abuse ‘Huge’ Issue for Isles’ Elderly.” The article summarized the tribulations of eighty-two-year-old “Mr. H,” with whom three of the students had spent several hours just days before. Earlier in the week, three other students did their best to assist ninety-four-year-old “Mrs. T,” who was the subject of a guardianship proceeding designed to protect her from potential abuse. Mrs. T clearly had diminished capacity, but she was nonetheless more than willing to sign “papers” for her son, who was suspected of neglecting her. The following week, all of the Elder Law Clinic students met with healthcare providers at a community health center that serves a clientele consisting largely of immigrant Pacific Islanders. Many of these patients’ cultural values clash with the traditional “Western” approach, which champions the use of both advance healthcare directives and selecting surrogate decisionmakers once determining a patient is mentally incapacitated.

MY APPROACH TO TEACHING ELDER LAW

I have the privilege of teaching Elder Law at two different law schools. At the University of Kansas School of Law, I teach a two-hour introductory course that surveys the area of Elder Law. It meets once a week for two hours during the fall semester. I also teach a one-hour class at the University of Missouri-Kansas City School of Law. This course meets once a week for two hours for the second half of the spring semester and focuses on selected Elder Law issues an estate planning attorney will encounter.

My overall objective in teaching these courses is to expose students to the various facets of Elder Law in a way that makes the topics as interesting and realistic as possible. I want the students to understand that the subjects that comprise Elder Law impact people in a very personal way, and every one of us will encounter some of these as we pass through life.

A VALUES APPROACH TO TEACHING ELDER LAW

In 1987, I had the good fortune and terror of being invited to co-teach a seminar on Aging and the Law at Georgetown University Law Center. “Why not?” was my immediate response, and the result has been a twenty-three year extra-curricular vocation as an adjunct professor of law.

I learned certain realities of teaching right away, such as do not try to cram the universe into a weekly two-hour class. But other realities took longer to appreciate in full, such as the superior teaching value of personal experience over abstract mental exercises. One challenge that evolved slowly over the years was creating a structure for the course that was both conceptually sound and practical for teaching purposes.

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