All fifty states have adopted statutes designed to protect older adults from abuse and neglect. While those statutes have been critiqued on functional and moral grounds, their legal implications have largely been ignored. In this Article, I fill that conspicuous gap and, in the process, show how...

Attorneys frequently represent clients who have a surrogate decision-maker with authority to make decisions on the matter underlying the representation. Such representations raise important questions for both attorneys and the courts in which they appear. Key questions include: From whom should...

States' default surrogate statutes allow family or friends to make health care decisions for incapacitated patients who lack advance directives. Although such statutes are commonly justified on the grounds that they honor the wishes of incapacitated persons, our review of empirical research on...

Keynote address for a symposium entitled "Aging in the U.S.: The Next Civil Rights Movement?" Argues that elder rights can – and should – be the United States' next civil rights movement, and discusses the value of applying a civil rights perspective to the aging experience

Every day, hospitals are filled with incapacitated patients whose healthcare decisions are made by other people. The law recognizes such decisions as the patients’ own and, accordingly, the primary purpose of surrogate decisionmakers is to make the decisions that patients would make if able....

In a political climate in which the role of government is actively being questioned, Martha Fineman’s “vulnerability theory” is rapidly gaining momentum as a justification for expansive social welfare laws. Despite the growing body of literature applying vulnerability theory to a broad...

The explosive growth of the field of elder law raises questions about how best to prepare lawyers for elder law practice, and how to ensure that those currently in the area have the training they need to serve their clients. We therefore surveyed approximately three hundred elder law...

A person subject to guardianship has been judicially determined to lack legal capacity. Stripped of legal personhood, the individual becomes a ward of the state and his or her decisions are delegated to a guardian. If the guardian abuses that power or the guardianship has been wrongly imposed...

The durable power of attorney (DPOA), one of the nation's most ubiquitous and powerful legal documents, is a popular planning tool for seniors anticipating a decline in cognitive or physical well-being. By executing a DPOA, seniors can grant an agent (typically an adult child) broad authority to...