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Establishing an elder law practice

VIEWS: 17 PAGES: 16

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                     By Kristianne Cox
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                              ccording to the Oregon Office of Eco-          the population that needs legal help in these
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                              nomic Analysis, 246,787 Oregonians             areas grows, the need for competent elder
                              will be age 75 or older this year. In          law attorneys grows. As more clients request
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                     another fifteen years, the number will have             help with elder law issues, established attor-
3RUWODQG             increased to 298,108. Many individuals in               neys wonder how to add elder law to their
                     this age group will seek the knowledge and              existing practices, and new attorneys seek to
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                     legal expertise of elder law attorneys.                 develop elder law practices. But how does
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6DOHP                   Elder law is a general description cover-            an attorney learn elder law?
                     ing several areas of law, including Medicare,           /HDUQ IURP RWKHUV
3DVW &KDLU           Medicaid, estate planning, planning for dis-
&LQGD &RQUR\G                                                                   Joining the Elder Law Section of the Ore-
                     ability, guardianship and conservatorship               gon State Bar is an easy first step. Section
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                     law, probate, trust administration, elder               members receive this quarterly newsletter,
6HFUHWDU\            abuse, fraud recovery, and long-term care
:HVOH\ )LW]ZDWHU                                                             which contains helpful articles, topical arti-
                     issues. Different elder law attorneys focus             cles, and information about available
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                     their practices on different areas of law. As           resources.
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                                                                                Internet discussion lists are also helpful.
6 -DQH 3DWWHUVRQ
*UHVKDP                                                                      Elder Law Section members are entitled to e-
                                                                             mail elder law questions, comments, or
                       ,Q WKLV LVVXH                                       announcements to other members of the
0HPEHUV                                                                      group via a “Listserv” program. When other
                       Basics of elder law practice
6KLUOH\ %DVV                                                                 subscribers respond to a question, it can be
3RUWODQG                 Establishing an elder law practice .1               like having several experienced mentors give
'DG\ . %ODNH            Using interpreters . . . . . . . . . . . . . . .4   advice. The e-mail discussion group has the
3RUWODQG                                                                     benefits of speed and broad dissemination of
$OO\Q %URZQ              Clients with hearing impairment . .5
                                                                             questions to many elder law attorneys
1HZEHUJ                  Clients with vision impairment . . . .6             around the state. Be careful though of how
+RQ &ODXGLD %XUWRQ                                                           specifically you describe a factual situation
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                         Comparing SSI & SSD . . . . . . . . . . .7
                                                                             or reveal your intended strategy. The oppos-
3HQQ\ 'DYLV              Medicare supplemental insurance .9                  ing party you describe today may walk into
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                         Representative payee program . . .10                another subscribing attorney’s office tomor-
6WHYHQ +HLQULFK                                                              row. Information about the discussion list
&RUYDOOLV              Plus...                                               can be found on page 15 of this newsletter.
/HVOLH .D\               Important elder law numbers . . . .10               The National Academy of Elder Law Attor-
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                         Conflicts of interest . . . . . . . . . . . . .11   neys (NAELA) also has a discussion list.
:LOOLDP .XKQ                                                                 Keeping up with the NAELA list can be a
+HSSQHU                  Message from the Chair . . . . . . . . .13          full time hobby. Information is available on
0LFKDHO /HYHOOH                                                              the NAELA Web site at www.naela.org.
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                         Agency subcomittee report . . . . . .13
                                                                                For Portland area attorneys, the free
0DWW 0XOODQH\            Member news . . . . . . . . . . . . . . . . . .8
                                                                             monthly elder law discussion groups spon-
0F0LQQYLOOH              Resources for attorneys . . . . . . . . .14         sored by Multnomah County Legal Aid’s
5XWK 6LPRQLV                                                                 Senior Law Project provide live speakers on
$ORKD                    Web sites you can use . . . . . . . . . . .15
                                                                             elder law topics. There are two discussion
0DUN :LOOLDPV            Changes to note . . . . . . . . . . . . . . . .16   groups: the Taylor Street group, which meets
3RUWODQG

                                                                                                        Continued on page 2
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the first Thursday morning of each month;         the audiotapes of CLE presentations can be a practical investment.
and the Lloyd Center Tower group, which           Keep them in your car and listen to them over and over while you
meets the second Thursday morning of each         drive to the office. It’s a quick and fairly painless way to gain new
month. In addition to information about spe-      knowledge. You can claim MCLE credits for your driving time, too.
cific subjects, these meetings provide oppor-     Use MCLE Form 6 (on page 113 of the 2002 Bar directory) to keep
tunities to meet and talk with other Portland     track of individually screened tapes.
area elder law attorneys. To receive the          5HDG WKH OLWHUDWXUH
monthly flyer that describes upcoming top-           Elder law periodicals and newsletters are also useful resources. The
ics, contact Anne Stacey at 503.224.4094.         NAELA Quarterly and the NAELA News are published by the National
.QRZ WKH UHOHYDQW VWDWXWHV                        Academy of Elder Law Attorneys, Inc. For membership information,
DQG UXOHV                                         call 520.881.4405 or visit NAELA’s Web site at www.naela.org.
    If your chosen elder law areas will              The ElderLaw Report is popular with Oregon elder law attorneys. It
include probate (such as wills, administering     is published 11 times a year by Panel Publishers, a division of Aspen
decedents’ estates, guardianships and con-        Publishers, Inc. For subscription inquiries call 800.562.1973.
servatorships, trusts, and elder abuse), read,       Also of interest is the AARP Foundation’s quarterly Elder Law
highlight, and tab with “Post-It” flags the       Forum. Contact AARP at 202. 434.2151; Web site www.aarp.org/litiga-
relevant chapters in ORS Volume 3. If you         tion/elf.html.
plan to counsel clients on Medicaid, you will        The National Senior Citizens Law Center publishes NSCLC Wash-
need the applicable Oregon Administrative         ington Weekly 50 times a year. Subscribers can choose to receive the
Rules (OAR). Contact Ann Birch at                 Weekly via regular mail or as an e-mail attachment. Contact Christy
503.945.6089 and request a publication price      Ross at 202.289.6976 or cross@nsclc.org.
list and order form for AFS and OMAP man-            Other useful publications are Regan’s Tax, Estate & Financial Plan-
uals and guides. Also bookmark the Adult          ning for the Elderly; Carlson’s Long Term Care Advocacy; Begley & Bar-
and Family Services Division OAR search           rett’s Representing the Elderly [Law & Practice]; and Margolis’s semi-
Web page at afsmanuals.hr.state.                  annual The Elder Law Portfolio Series.
or.us/adminrules/search.htm.                         Tennessee elder law attorney Tim Takacs publishes the free Elder
7DNH DGYDQWDJH RI &/( VHPLQDUV                    Law eBulletin, available by e-mail. Sign up for e-mail delivery at
   CLE publications provide detailed infor-       www.tn-elderlaw.com/telb.html. Back issues are archived on the site.
mation about the various substantive areas        9ROXQWHHU IRU 6HQLRU /DZ 3URMHFW
of elder law and can be a good source of             Nothing motivates an attorney to learn, however, like having a
forms. The Elder Law Section and the OSB          client with an actual issue. Many Portland area elder law attorneys cut
co-sponsor an Elder Law CLE presentation          their teeth on elder law issues through the Senior Law Project, a pro
each year, usually in the fall. In recent years   bono program offering 30-minute sessions of free legal counseling to
this CLE has focused heavily on Medicaid          county residents 60 years or older. The Senior Law Project is well
topics. In addition to CLE programs and           established in Multnomah, Clackamas, and Washington counties.
their accompanying handbooks, in 2000 the         Clients are screened and scheduled for the volunteer attorneys, each
OSB published an Elder Law CLE book               of whom donates a three-hour block of time and meets with up to six
(available both on CD-ROM and in a 3-ring         clients at a local senior center, community center, or church. If your
binder format). The Oregon Law Institute          county or city does not have a Senior Law Project program, contact
(OLI) has presented several annual CLE pro-       the state’s new legal services developer, Pam Edinger, at 503.945.8999
grams on guardianships and conservator-           and ask for help setting one up. Since many of the attorneys who
ships. The Multnomah Bar Association is           attend the elder law discussion groups in Multnomah County support
another source of elder law CLE materials.        the Senior Law Project, new elder law attorneys trying to resolve legal
Its Probate Court Update CLE, featuring one       problems for Senior Law Project clients may find willing mentors.
or more of the tri-county probate judges or       /HDUQ DERXW FRPPXQLW\ UHVRXUFHV
commissioners, is always popular. The MBA            Good elder law attorneys help their clients not only by knowing
tapes most seminars and sells the tapes and       the law, but also by being familiar with community resources. Grief
handouts. Both the written materials and          counseling, providers of low-cost burials and cremations, and respite
audiotapes are needed to earn MCLE credit.        care providers are examples of services that older clients are likely to
For a list of available topics and sets, call     need. Start a collection of labeled file folders that contain articles,
503.222.3275.                                     brochures, and pamphlets on topics and services that may be useful to
   Before investing in CLE publications to        your clients. When you counsel a client on spending down, and she
stock your elder law library, decide which        thinks aloud about having work done on her house, can you tell her
particular elder law areas appeal to you, and     how she can check up on contractors? 1 If your client can’t understand
ask established elder law attorneys which         a Medicare invoice, can you refer him to a free, trained State Health
publications they recommend. Purchasing
                                                                                                       Continued on page 3
Page 2
(OGHU /DZ 6HFWLRQ 1HZVOHWWHU                                                                                 6SULQJ 
(VWDEOLVKLQJ DQ HOGHU ODZ SUDFWLFH                                 Continued from Page 2

Insurance Benefits Assistance (SHIBA) volunteer? The next time                  Have access to a large conference room,
you’re at a senior center volunteering for the Senior Law Project, look      and learn to ask before the initial consulta-
through the center’s collection of pamphlets. Take those that look           tion how many people will be coming to the
interesting, and call the publisher to get more copies. Case managers        appointment. It’s not unusual for adult chil-
are another good resource for learning about community services. Ask         dren and grandchildren to accompany an
them whether programs exist to meet specific clients’ needs.                 older client who is visiting the attorney. If six
*HW \RXU RIILFH LQ RUGHU                                                     family members are coming with your client,
   Elder law attorneys, like other attorneys in private practice, need to    you’ll want to know ahead of time.
develop forms and office systems. For a motivating book on building          %H DZDUH RI SRWHQWLDO FRQIOLFWV RI
systems for small businesses, read Michael Gerber’s short work, The E-       LQWHUHVW
Myth Revisited. NAELA attorneys are so enthusiastic about Mr. Ger-              That relatives often attend an initial elder
ber’s ideas that they had him speak at their November 2001 Advanced          law office consultation brings up an extreme-
Elder Law Institute in St. Louis, Missouri. For a recent article on sys-     ly important issue: identifying your client
tems for an elder law practice, see Thomas D. Begley Jr. and Vincent         and avoiding conflicts of interest. If you are
A. Russo’s “Creating Systems for the Elder Law Office.”2 Also see the        counseling six people in your conference
PLF’s free book, A Guide to Setting Up and Running Your Law Office:          room, how many of them view themselves
Avoiding Malpractice through Efficient Office Systems, 1999 Revision. A      as your client? Spend time discussing whom
CD of forms and checklists comes with the book. The PLF also offers          you view as your client, the duties you owe
free and confidential assistance with office systems through its Prac-       to your client, and how that affects commu-
tice Management Advisor Program. Call 503.639.6911 or 800.452.1639           nications between you and your client. You
for more information.                                                        may decide to advise the group that you will
   Many new attorneys are attracted to elder law in part because it          wait until after the consultation to decide
lends itself to a home-office-based practice. For an interesting article     which person you want as your client. Edu-
on home-office law practices, see “The House Rules: Solo and Home-           cate yourself about typical conflicts of inter-
Office Law Practice,” Arizona Attorney November 2001 issue, pub-             est that occur in elder law, and set up proce-
lished by the State Bar of Arizona. Call 602.252.4804 or read the article    dures to minimize conflicts and to respond
online at www.azbar.org/ArizonaAttorney, by selecting “November,             to them if they do develop. Among elder law
2001” in the Past Issues window, and clicking on “Solo Lawyer                attorneys, there is growing concern that the
Roundtable.”                                                                 potential for conflicts of interest is greater
   For those based out of a home office, a challenge can be finding a        than previously recognized.
place to meet privately with clients. Check with local sole practitioners
with traditional offices—they may be willing to rent you a conference        )RRWQRWHV
room and copy machine privileges by the hour. Home visits with               1 To check the complaint record of any prospec-
clients are also an option. To furnish your home office inexpensively,          tive contractors, call the Construction Contrac-
rent a van and make a trip to Ikea in Renton, Washington (Web site:             tors Board at 503.378.4621 or check the CCB
www.ikea-usa.com).                                                              Web site at www.ccb.or.us
   Whether you are considering practicing from home or have a tradi-         2 The ElderLaw Report, Vol. XIII, Number 4
tional office, bring yourself up to speed on the latest law office tech-        (November 2001).
nology by visiting the Web site of attorney Dennis Kennedy (2001
Technolawyer of the Year) at www.denniskennedy.com.
%HFRPH D QRWDU\ SXEOLF
   Get an application packet by calling 503.986.2200 or downloading it       Kristianne Cox is an elder law sole practitioner
from www.sos.state.or.us/corporation/notary/notarynewcom.htm.                in southeast Portland. She serves on the Elder
0DNH \RXU RIILFH HOGHU IULHQGO\                                              Law Section’s Agency and Professional Relations
   For the elder law attorney with a traditional office, anticipate and      Subcommittee, and is a frequent volunteer for the
accommodate the physical limitations of elderly clients. Ideally, this       Senior Law Project.
means a ground-level office with curb cutaways for wheelchairs and
walkers, and handicapped parking spaces near the office entrance.
Avoid loose carpets and soft chairs in your office lobby. Firm chairs
with sturdy armrests give older clients the leverage they need to get
up. Consider buying an assistive listening device for your conference
room. Not all clients with hearing deficiencies wear hearing aids, and
not all hearing aids work effectively. For an overview of assistive lis-
tening devices, see www.shhh.org/ALDS/asld.cfm.



                                                                                                                         Page 3
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By Leslie Kay



A
       ccording to a new report by the Cen-        guage Line Service ™, which can be reached
       sus Bureau, the population of limited-      at 800.782.4921. It provides 24-hour service
       English speaking elders is expected to      in 168 languages, although the interpreters
grow rapidly over the next twenty-five years.      are not necessarily certified.
As a consequence, you will likely employ              Counsel should retain the interpreter and
both interpreters and document translators         bill interpreter services as “costs” after dis-
in your practice.                                  cussing this matter with the client. Hourly
+LUH D TXDOLILHG LQWHUSUHWHU                       fees can range from $35 to $280.
   In order to hire a qualified interpreter, you      Once you have hired an interpreter, estab-
need to make an initial assessment of what         lish that your client is able to understand
language skills your limited-English speak-        you.
ing client possesses. Suggested questions to       0D[LPL]H DFFXUDWH FRPPXQLFDWLRQ                   /HVOLH .D\ LV WKH
make this determination are:                          Interpreters, regardless of bilingual and      VWDII DWWRUQH\ IRU
• Where was your client born and raised?           bicultural skill, must constantly weigh choic-    WKH 6HQLRU /DZ
• In what countries has your client lived          es in search of the best ways to convey           3URMHFW DW WKH
   and for how long?                               shades of meaning and speaker intent. You         0XOWQRPDK &RXQW\
• How long has your client lived in the            must be aware of the task faced by an inter-      2IILFH RI /HJDO $LG
   United States?                                  preter and participate in maximizing the          6HUYLFHV RI
• What language(s) does your client speak?         accuracy of the interpretation.                   2UHJRQ 3ULRU WR
• What is the level at which your client                                                             MRLQLQJ /$62 ODVW
                                                   $GGUHVV D OLPLWHG(QJOLVK VSHDNLQJ                \HDU VKH VSHQW WHQ
   speaks the language?                            FOLHQW GLUHFWO\                                   \HDUV UHSUHVHQWLQJ
   Once you make this language assessment,            Avoid addressing the interpreter with          WKH 6SDQLVK
hire a qualified interpreter. The interpreter      phrases like “tell him that…” and “ask her        VSHDNLQJ
should be a neutral professional who enables       if….” Counsel should never use this third-        FRPPXQLW\ ZLWK
communication between attorney and client.         party form of address. Instead, maintain eye      WKH ODZ ILUP RI
Family members or friends of the client            contact with your client, not the interpreter,    /LQGD )ULHGPDQ
should never serve as interpreters because         and speak directly to your client. Think of       5DPLUH] 3& LQ
they may not be able to provide detached           the interpreter as a language conduit. Posi-      3RUWODQG
and accurate interpretation. An interpreter is     tion the interpreter next to you, if possible,
much more than a person who merely knows           so that the client can maintain eye contact
the source language. Interpretation from a         with both of you.
source language to English requires conserv-
ing the language level, tone, style, and intent    %H DZDUH RI \RXU ODQJXDJH
of the speaker. This task requires acute mem-      SDWWHUQV
ory, concentration, and analytical skills. Legal      Avoid the passive voice and double nega-
interpreting involves familiarity with legal       tives: “Isn’t it true that you have not had
terms, concepts, and procedures. A compe-          any contact with your niece for 20 years?”
tent interpreter must have the ability to          This form is often alien to limited-English
orchestrate these linguistic tasks.                speakers and a “yes” or “no” answer will
   Interpreter services can be found in the        have a 50 percent chance of being wrong.
Yellow Pages under “Translators and Inter-            Indicate the gender of neuter English
preters.” Your local courthouse will have lists    words that have a feminine or masculine
of interpreters certified by the State of Ore-     form in the language spoken by your client.
gon.1 The most recent roster of certified          Examples of words of this type in Spanish are
interpreters can be obtained from the Certi-       “cousin,” “friend,” “teacher,” “supervisor.”
fied Interpreter Program in the office of the         Clarify pronouns. In English, the second
State Court Administrator. Contact Kerry           person pronoun “you” is both singular and
Hammerschmith at 503.986.7025. In the              plural. In other languages, such as Spanish,
future, the list may be posted on a Web site       French, and Mandarin, the singular second
now under development. If you have                 person pronoun may be different from the
exhausted court-generated lists, interpreter       plural second person pronoun. You can
services, or referrals by other attorneys, you     avoid confusion by refining the use of “you”
may want to turn to telephonic or televideo        in English by saying “you yourself” or “you
language line services like the AT&T Lan-
                                                                               Continued on page 5
Page 4
(OGHU /DZ 6HFWLRQ 1HZVOHWWHU                                                                                      6SULQJ 
&RPPXQLFDWLQJ ZLWK FOLHQWV                                                     /LPLWHG(QJOLVK FOLHQWV
ZKR DUH KDUG RI KHDULQJ                                                        Continued from page 4
By Wayne Seely                                                                 and Mrs. Jones,” or “you, Mr. Ramirez.”
                                                                               'RFXPHQW LQWHUSUHWDWLRQ DQG

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    nevitably, some clients with whom an elder law attorney meets are
    hard of hearing. This can pose some challenges to the communica-           WUDQVODWLRQ
    tion process.                                                                 If you will be reviewing documents with
   As a person who has had severe hearing loss for the past 40 years, I        your client that have not been translated
have learned to cope with that loss and also remain involved in a              into the language the client speaks, provide
hearing world. This is often not easy, since so much of our daily life         your interpreter with copies of these docu-
activity requires the use of hearing.                                          ments beforehand to maximize the accuracy
   People who are hard of hearing sometimes have hearing aids, but             of the interpretation when you meet with
many do not. Approximately 70% of those who could benefit from                 your client.
hearing aids do not have them. This may be due to the cost, past neg-             Attach a certification affidavit signed by
ative experience, or a perceived stigma attached to using a hearing            the interpreter and your client regarding the
aid. Even when clients have hearing aids, you may find they do not             fact of the interpretation of the document
eliminate communication difficulties, and hard-of-hearing people may           into the client’s native language.
try to fake understanding to avoid embarrassment.                              ,QWHUSUHWHUV LQ WKH FRXUWURRP
   Reading lips and writing notes are not always effective or accurate            You can maximize the effectiveness in the
ways to communicate with clients.                                              courtroom by positioning the interpreter so
0HHWLQJ $'$ UHTXLUHPHQWV                                                       that the interpreter can hear witnesses and
    Under the Americans with Disabilities Act (ADA), attorneys have the        they can hear the interpreter. Schedule
responsibility to provide accommodations that may be needed to com-            breaks for the interpreter every hour or so.
municate. Both Title III of the ADA and the U.S. Department of Justice         Be aware of your own speech patterns as
regulation pursuant to Title II, 28 C.F.R. Part 36, specifically include the   well as those of opposing counsel. Do not
offices of lawyers in the definition of public accommodations.                 turn your back to the interpreter when mak-
    Under Title III, public accommodations are required to provide             ing opening or closing arguments. Do not
auxiliary aids and services to ensure effective communication. Assis-          speak rapidly. Make questions to witnesses
tive devices and real-time captioning are the most common auxiliary            as brief and unambiguous as possible. Dou-
services. Devices that may improve communication include assistive             ble negatives should be avoided, as should
listening systems that make sounds louder and lessen the impact of             two-part questions and strings of subordi-
background noise and reverberation. They work by placing a micro-              nate clauses. Urge the court to record the
phone close to the speaker’s mouth and transmitting the sound direct-          interpretation so that it can become part of
ly to the listener’s ears. The device uses a hard-wired system, an FM          the record for appeal2. The reporter’s tran-
radio signal, or infrared light to transmit the voice. With the micro-         script will only contain questions and
phone close to the speaker’s mouth, background noise and reverbera-            answers after interpretation into English.
tion are kept to a minimum.
    Real-time captioning enables the person to read what is being said. A      )RRWQRWHV
specially trained court reporter uses a steno machine connected to a           1 ORS 45.272 et seq establishes a program for the cer-
computer system and software to generate captions the hard-of-hearing            tification of court interpreters. The program estab-
person can read. This is especially useful in a courtroom setting, where         lishes minimum competency requirements, testing,
the use of multiple microphones is difficult, and having line of sight           and educational programs on ethical, substantive,
with the lips of all speakers may not be possible. If you will have any          and procedural issues. The law creates two classes
court appearances with your hearing-impaired client, it is important to          of court interpreter—certified and qualified—and
notify the court in advance that you require assistance.                         allows the court to appoint a “qualified” interpreter
:D\V WR LPSURYH FRPPXQLFDWLRQ                                                    when a “certified” interpreter is unavailable. The
   There are some specific things you can do to improve communica-               law provides for the appointment of interpreters for
tion with a hard-of-hearing person.                                              persons who are unable to readily understand or
• Meet in quiet surroundings.                                                    communicate in the English language because of a
• Have good light on your face when you speak.                                   limited-English-speaking cultural background or a
• Avoid sitting in front of a window.                                            disability.
• Have one person speak at a time.                                             2 Like other complaints about the conduct of trial,
• Make sure speakers’ lips are visible. Mustaches should be                      challenges to the competence of an interpreter or
   trimmed. Make sure there is nothing else in front of the face or lips.        the accuracy of the interpretation must be made in a
• Be relaxed and do not shout.                                                   timely fashion.
• Repeat or rephrase if not understood.

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By Carole Barkley, Newsletter Editor



M
          ost elder law clients are middle-       tions of magnification power and light source. Advise your clients to
          aged and older, and many have           bring their own magnifiers, if they use them.
          some degree of vision impairment.          The degree of magnification your client requires will affect how
This may be as simple as needing reading          quickly he or she can read a document. Low magnification devices
glasses, or as complicated as significant         cover a wider field of vision. When type is highly magnified, the
vision loss due to macular degeneration or        reader may be dealing with one letter at a time.
diabetic retinopathy. Since so much that goes     6LJQLQJ RQ WKH OLQH
on in a lawyer’s office involves paperwork, it       Sometimes it is difficult for a client to see the place where he or
is important to make accommodations for           she is to sign a document. A signature guide is a plastic card with a
people affected by vision impairment.             cutout that can be placed over the signature line. You can get one
    According to Evelyn Maizels, executive        from the Oregon Commission for the Blind, phone 503.731.3221.
director of the nonprofit organization Vision        For signing documents, experts recommend the Sanford 20/20
Northwest, three things make reading easier       easy-to-read pen. In addition to inscribing a bold signature, it doesn’t
for a person with limited vision:                 bleed, doesn’t spread, and doesn’t dry up if left uncapped.
    • Good light
    • Good contrast                               -XVW DVN
                                                     It is important simply to ask your clients whether they will require
    • Magnification
                                                  assistance and what kind. If you send out an informational question-
&DVW VRPH OLJKW RQ WKH VXEMHFW                    naire before a client comes in for the first time, be sure it is printed in
   Make sure you have adequate lighting in        large type, and include questions that will alert you to the need for
your office. You should have more than one        special accommodations.
light source available, since individual eye-
sight varies. General room lighting should be
supplemented by a lamp on or near the table
where your client will sit to review docu-        9LVLRQ 1RUWKZHVW SURYLGHV SUDFWLFDO KHOS
ments. Bright halogen light is helpful to


                                                  E
many people, particularly those with macu-               very elder law attorney should be aware of community services
lar degeneration; but it may create too much             available to clients. Vision Northwest is one such service. It is a
glare for a person with cataracts or diabetes-           nonprofit organization dedicated to helping those affected by
related retinal atrophy.                          vision impairment and providing information and support for care-
                                                  givers and family members.
3XW LW LQ EODFN DQG ZKLWH                            Vision Northwest employs a specially trained occupational thera-
   Contrast is very important. Print all docu-    pist who works with individuals to identify lighting, special equip-
ments in black or dark blue ink on white          ment, and skills that make it easier to live independently.
paper. Sometimes, putting a sheet of yellow          The organization also provides special workshops for caregivers
film over a page makes it easier to read.         and families, to help them understand the effect of vision loss and
0DNH LW ELJJHU                                    how best to help. It facilitates peer support groups throughout Oregon
   According to Ms. Maizels, a sans serif         and southwest Washington, and operates a 24-hour telephone line
type is best for persons with low vision.         which provides recorded TV listings, grocery ads, and other informa-
Arial, Verdana, and Helvetica are common          tion (503.684.2849 or 800.422.7787).
sans-serif computer fonts. Make the type             Vision Northwest also operates a retail store in Tigard, which car-
large: 14 to 16 points. “You'll use lots of       ries a wide variety of low-vision accessories. Hundreds of items are
paper, “ she says.                                available, such as talking clocks and calculators, a telephone that tells
   Take a look at your business card. Can a       you the number you have just entered, large-button TV remote con-
client who does not see well read it easily? If   trols, a talking medication sleeve that reports what is in the bottle and
not, consider having a second version avail-      how to use it, oversize check registers and check-writing guides, mes-
able with larger type.                            sage recorders, and many kinds of specially-adapted household gad-
:KDW DERXW PDJQLILHUV"                            gets. The store has just about every kind of magnifier available,
   Magnification requirements vary widely         including one that attaches to a TV set, so that a person can see an
from one person to another. Both the Casey        enlarged version of a document on the TV screen. There is also a free
Eye Institute and Vision Northwest point out      lending library of popular films that have been modified to include
the impossibility of trying to provide a mag-     narration as well as dialogue.
nifier that will work for everyone. There are        Vision Northwest and its store are at 9225 SW Hall Boulevard. The
dozens of options, with various combina-          phone number is 503.684.8389 or 800.448.2232.

Page 6
(OGHU /DZ 6HFWLRQ 1HZVOHWWHU                                                                              6SULQJ 

8QGHUVWDQGLQJ 66' DQG 66,
By Alan Stuart Graf


A
         s an elder law attorney, it is important   type and amount of benefits to be paid for
         for you to know whether your client is     the next calendar year.
         receiving Social Security Disability       7KH WZR IHGHUDO GLVDELOLW\ SUR
Benefits (DIB or SSD) or Supplemental Secu-         JUDPV±WKHLU EDVLF FKDUDFWHULVWLFV
rity Income (SSI). They are not the same. DIB-      DQG GLIIHUHQFHV
SSD payments are not affected by a client’s            The Social Security Act includes 21 titles.
resources, while SSI payments are affected          The disability programs found in Title II are
both by resource and income changes. In             Disability Insurance Benefits (DIB–otherwise
addition, DIB-SSD benefits, while not affected      known as SSD), Disabled Adult Child
by a client’s resources, may be affected by         (DAC), and Disabled Widow (DW). The dis-
additional sources of income such as other          ability programs found in Title XVI are Sup-
disability program payments.                        plemental Security Income (SSI), which             $ODQ *UDI LV D
    For example, if your client is about to         includes Child Disability Benefits.                SUDFWLFLQJ 6RFLDO
receive an inheritance that will raise his or                                                          6HFXULW\ ODZ\HU
her resource amount over $2,000, the funds          7LWOH ,, ',% 66' GLVDELOLW\
                                                                                                       ZKR FRDXWKRUHG
received will in all probability disqualify         EHQHILWV
                                                                                                       WKH ERRN
your client from receiving continuing SSI              SSD benefits under Title II are based upon
                                                                                                       ³3HUIHFWLQJ WKH
benefits. Trusts may be designed to circum-         a worker’s past contributions to the Social
                                                                                                       6RFLDO 6HFXULW\
vent this disqualification. [See 20 C.F.R. §        Security fund. These contributions are paid
                                                                                                       'LVDELOLW\ &ODLP´
416.1201(a)(1).] On the other hand, the receipt     through the FICA payroll tax or self-employ-
                                                                                                       26% DQG
of an inheritance, gift, or legal settlement will   ment tax. The worker attains “insured” sta-
                                                                                                       ZKR VHUYHV DV
not affect a DIB-SSD client’s continuing eligi-     tus after paying a certain amount into the
                                                                                                       FRFKDLU DQG
bility for funds.                                   fund for a period of time related to the
                                                                                                       IRXQGHU RI 2UHJRQ
    If the client attempts to go back to work,      worker’s age. A worker can claim disability
                                                                                                       6RFLDO 6HFXULW\
he or she can earn up to $740 per month             benefits for any time period he or she was
                                                                                                       &ODLPDQWV
without losing eligibility for funds for an         insured under the plan.
                                                                                                       5HSUHVHQWDWLYHV
indefinite period of time. Under DIB-SSD, the          If the worker is insured, the next step is to
                                                                                                       2UJDQL]DWLRQ
client’s $740 per month earnings will not be        prove disabled status. The worker has the
                                                                                                       266&5 LQ
offset against disability benefit payments.         burden of proving that she or he has a med-
                                                                                                       3RUWODQG <RX PD\
Under SSI, there will be an offset of about         ically determinable impairment or combina-
                                                                                                       VHQG HPDLO ZLWK
one-half of the earned income against bene-         tion of impairments that is severe and has
                                                                                                       TXHVWLRQV WR
fits, providing that unearned income is gener-      lasted or can be expected to last for 12 con-
                                                                                                       SHRSOHVODZ\HU#
ally offset dollar for dollar against benefits.     secutive months or will result in death. A
                                                                                                       TZHVWQHW
[See 20 C.F.R. § 416.1112 for details, and see      five-step analysis is required.
20 C.F.R. 416.1120-1121.]                           1. The worker must prove that he or she has
    The client is entitled to a nine-month trial       not earned any money over substantial
work period at any time during the alleged             gainful activity (SGA)—equal to $740 per
disability under both programs. Months                 month or the equivalent in work effort—
worked are cumulative. During this trial               in the time period disability is claimed. A
work period, the client can earn above the             person is allowed an unlimited amount of
$740 a month limit without endangering dis-            unsuccessful work attempts in this time
ability eligibility under both DIB-SSD and             period, which can last up to six months.
SSI. DIB-SSD disability payments will contin-       2. The worker must have a severe impair-
ue. SSI payments, however, will be offset by           ment which more than minimally limits
the money earned.                                      ability to work.
    If your client is uncertain as to what pro-     3. The worker must have an impairment
gram he or she is on, a call to your local             whose severity matches one of Social
Social Security office at 503.326.5019 should          Security’s listed impairments.
clarify matters. Have your client with you          4. If the worker does not have a listed
when you call, since SSA will not release              impairment, he or she must show that the
information without the client’s permission.           impairment prevents return to the past
Ask the client if he or she has the letter SSA         relevant work (PRW) of the last fifteen
sent out when the claim was approved,                  years.
detailing the type of benefit, the monthly          5. If a person cannot return to past work, the
benefit rate, and any deductions. The client           burden shifts to the commissioner, who
may also have the annual SSA notice entitled           must show that the claimant cannot work
“Your New Benefit Amount” that shows the                                       Contimued on page 8
                                                                                                                   Page 7
6SULQJ                                                                        (OGHU /DZ 6HFWLRQ 1HZVOHWWHU
8QGHUVWDQGLQJ 66' DQG 66,
Continued from page 7

  full time and sustain work at any jobs list-     • must have less than $2,000 in countable resources ($3,000 for a
  ed in the national economy, considering             couple).
  age, education, and past work. If your              Also, any income received by a claimant either in cash or in kind
  client is over fifty years old, a transferable   that could be used directly or by conversion to meet the claimant’s
  skills analysis comes into play. If your         basic needs can reduce the benefit amount to zero, thus making the
  client is limited to part-time work, he or       individual financially ineligible for SSI. Resources excluded as count-
  she will be found to be disabled under the       able include the home in which the person lives, one car, personal and
  Act. [See Willis v. Callahan, 979 F. Supp.       household goods under $2,000, and others. [See 20 C.F.R. § 416.1210.]
  1299, 1305 (D. Or. 1997) citing Rodriguez           If an SSI claimant makes it past these hurdles, the claimant (like the
  v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989).]    SSD claimant) must prove that he or she has a medically determinable
    The amount of cash benefits under Title II     impairment or combination of impairments that is severe and has lasted
that a disabled worker will receive varies         or can be expected to last for 12 consecutive months or result in death.
with the worker’s contribution to the sys-         The SSI claimant must also go through the five-step analysis cited above
tem. Once awarded, SSD benefits begin after        to prove disability. This does not apply to claimants over 65.
a five-month period subsequent to the date            Once a claimant has qualified for SSI payments, an increase in
of the alleged onset of disability. Once the       resources or income can serve to disqualify him or her from continu-
waiting period has been calculated, retroac-       ing payment of benefits. [20 C.F.R. § 416.1205.] An SSI beneficiary
tive benefits can be issued for up to 12           who receives any money or property has a duty to report what he or
months before the date of the worker’s             she received to SSA, regardless of whether it comes from wages, gov-
application.                                       ernment benefits, a gift or inheritance, or the sale of something.
    The Title II beneficiary also is entitled to      Beneficiaries can receive both SSD and SSI payments although the
Medicare health insurance similar to that          two payments offset each other. Both of these programs are governed
provided for retirees. Medicare does not start     through statutes, regulations, administrative rules, internal memoran-
until 24 months after disability cash benefits     da, and case law. More information about both of these important dis-
have been received. That means that the ben-       ability programs can be found at the Social Security Administration’s
eficiary will not receive Medicare until 30        Web site at www.ssa.gov.
months after date of onset (five month wait-
ing period plus the 24 month disability pay-
ment period).
    Title II beneficiaries have an affirmative
duty to report earnings. As noted above,
                                                   (OGHU /DZ 6HFWLRQ PHPEHU QHZV
they are allowed a nine-month trial work           Kara Daley recently opened a law office in Corvallis, where she
period in which they will still receive bene-      focuses on elder law and senior needs, as well as business and corpo-
fits. When that one-time trial period is suc-      rate work. Her phone number is 541.738. 2445 and her e-mail address
cessfully completed, benefit eligibility may       is k2_daley@yahoo.com.
be terminated.
    Reductions in benefits can also occur from     Pamela K. Edinger is the new Legal Services Developer at Oregon’s
entitlement to other benefit programs and          Seniors and People with Disablilites Service. After moving from Seat-
other earnings. [See 20 C.F.R. § 404.407           tle in 1992, she worked at the Oregon State Supreme Court and then
through 404.416 for details.]                      as a Senior Assistant Attorney General in the General Counsel Divi-
                                                   sion of the Department of Justice. Since 1998, she has been in-house
7LWOH ;9, 6XSSOHPHQWDO 6HFXULW\                   counsel for a financial planning software company. The Legal Services
,QFRPH 66,                                       Developer ensures there is adequate, effective and high quality legal
   The Supplemental Security Income pro-           assistance available to older persons in the state. This includes work-
gram guarantees a minimum income for per-          ing with legal services providers, elder law activists, ombudsmen and
sons with low income and resources on the          the Bar to expand and improve direct legal representation. Edinger
basis of age (65 and older), blindness, or dis-    welcomes input from any members of the Elder Law Section. Phone:
ability. The current federal rate of payment       503.945.8999, e-mail: Pamela.K.Edinger@state.or.us
for 2002 is $545 per month.
   Most states, including Oregon, also pro-        Kitri C. Ford, a shareholder at Bryant Lovlien & Jarvis in Bend, has
vide Medicaid for eligible claimants. In order     joined her firm’s elder law and estate planning practice. Prior to 2001,
to be initially eligible for SSI the claimant:     her practice focused on civil litigation. Ford has been a member of the
• must be a resident of the U.S. or Northern       Oregon State Bar since 1991 and of the Washington State Bar since
   Marianas Islands                                1989. Before obtaining her law degree she practiced as a Registered
• must be a citizen or meet the eligibility        Nurse.
   requirements under the 1996 Welfare Act
   and 1997 Balanced Budget Act
Page 8
(OGHU /DZ 6HFWLRQ 1HZVOHWWHU                                                                            6SULQJ 

+HOS ZLWK 0HGLFDUH VXSSOHPHQW FKRLFHV
By Margaret L. Scott

                                                                           mium, pay coinsurance and sometimes

M
         edicare does not pay for everything. Therefore, people usual-
         ly buy insurance to go along with Medicare. The options are:      deductibles, and follow the plan’s rules.
                                                                           2WKHU RSWLRQV
•  Standardized Medicare supplements, a.k.a. “Medigap”                        Another option in some areas of the state
•  Medicare + Choice (M + C)                                               is Cost Health Maintenance Organizations
•  Cost Health Maintenance Organizations (HMOs)                            (HMOs). Cost HMOs are not M + C plans.
•  Employer Group Health Plans (EGHP)                                      In a cost plan, enrollees must live in the geo-
   All insurance choices must be reviewed carefully, comparing cov-        graphical area of the plan, not have end-
erage, cost, and company information, but comparisons can be tricky.       stage renal disease when joining the plan,
Fortunately, the state offers help with sorting out the various options    pay the Medicare Part B premium and a
through its Senior Health Insurance Benefits Assistance (SHIBA) pro-       plan premium, pay coinsurance and some-
gram.                                                                      times deductibles, and follow the plan’s
0HGLJDS                                                                    rules. However, enrollees may use providers
   The Omnibus Budget Reconciliation Act (OBRA) of 1990 created 10         outside of the plan. Medicare will pay sub-
standardized Medigap plans, A through J. An insurer may market one         ject to Medicare limits and the enrollee will
or more of the standard plans. Plan A is the most basic and Plan J the     be responsible for the coinsurance and
most comprehensive, with the other plans falling in between. Plan A        deductibles as if he or she were in tradition-
offers basic core benefits which are available in all 10 plans.            al Medicare.
   Some plans pay Medicare’s hospital deductible. Some pay                    A person may also be eligible for an
Medicare’s coinsurance for days 21-100 of care in a skilled nursing        Employer Group Health Plan (EGHP).
facility. Some plans pay for emergency care on trips outside the U.S.      EGHPs vary, based on employer contracts.
   Other plans pay Medicare’s $100 per calendar year deductible for        6+,%$ KHOSV VRUW LW RXW
medical services, although for this benefit one should calculate              To help your clients make sense of all the
whether the premium is going to cost as much as or more than the           options, the State of Oregon Department of
maximum benefit the beneficiary can receive.                               Consumer & Business Service provides the
   A plan may pay for short-term personal care services when               Senior Health Insurance Benefits Assistance
Medicare is paying for home health care services after an illness,         program (SHIBA). SHIBA is funded by the
injury, or surgery, provided certain requirements are met.                 Centers for Medicare & Medicaid Services’
   Under federal law, doctors who do not accept Medicare assign-           State Health Insurance Assistance Program,
ment cannot charge more than 115% of the Medicare approved                 and the State of Oregon.
amount. An available benefit pays the difference between Medicare’s           SHIBA volunteers across the state provide
approved amount and the 115% limit. However, if most or all of the         confidential, uniform, and objective health
Medicare beneficiary’s doctors accept Medicare assignment, he or she       insurance assistance to people with
may not need this benefit.                                                 Medicare (Medicare beneficiaries) and their
   Some plans cover $120 per year for health care screening and other      representatives. They answer general
preventive health services, as long as they are ordered by the benefi-     Medicare questions, help with Medicare and
ciary’s physician. Again, weigh the premium versus the benefit.            Medicare + Choice appeals, explain insur-
   Several plans provide 50% coverage for prescription drugs, after a      ance options, identify potential insurance
$250 deductible. The most two of these plans will pay for drugs is         violations, and refer people to federal, state
$1,250 per year, so to get the full benefit a person must have at least    and county offices. There is no cost for
$2,750 in yearly drug costs. Another plan pays up to $3,000 per year,      SHIBA assistance. To find local volunteers,
but to get the full benefit one must have at least $6,250 in drug costs.   visit the SHIBA Web site at www.oregonshi-
The beneficiary must file his or her own claims, so keeping good           ba.org or call 800.722.4134.
records of prescription drugs is essential.                                   SHIBA also has two helpful brochures:
   For all Medigap plans, the beneficiary pays both the Medicare Part      Oregon Consumer Guide to Medicare Supple-
B premium and a premium to the insurance company. The beneficiary          ment Insurance & Medicare + Choice and Your
may see any Medicare approved physician.                                   Medicare Health Plans. These can be down-
0HGLFDUH  &KRLFH                                                          loaded at the Web site or ordered in alterna-
   In Oregon, M + C plans include Medicare Managed Care Plans              tive formats by calling 503.947.7980.
(MCO), a Provider Sponsored Organization (PSO), and a Private Fee
for Service (PFFS) Plan. In most M + C plans the beneficiary must use      0DUJDUHW 6FRWW LV RQH RI WZR 6+,%$ )LHOG
plan providers. However, in a PFFS plan, beneficiaries can use any         2IILFHUV ZKR FRQGXFW RXWUHDFK WR SHRSOH
Medicare approved provider who agrees to accept the terms and con-         ZLWK 0HGLFDUH DQG WKHLU UHSUHVHQWDWLYHV
ditions of the plan. In an M + C plan enrollees must live in the geo-      WKURXJKRXW WKH VWDWH 6KH RYHUVHHV
graphical area of the plan, not have end-stage renal disease when          DSSUR[LPDWHO\  VSRQVRULQJ DJHQFLHV DQG
they join the plan, pay the Medicare Part B premium and a plan pre-         FRRUGLQDWRUV DQG YROXQWHHUV LQ QRUWK
                                                                           HUQ 2UHJRQ
                                                                                                                   Page 9
6SULQJ                                                                                                               (OGHU /DZ 6HFWLRQ 1HZVOHWWHU
6RFLDO 6HFXULW\¶V UHSUHVHQWDWLYH SD\HH SURJUDP
By Penny Davis, Portland



A
        n elder law practitioner must be                            If there is a guardian or conservator, SSA will accept a certified
        aware of the representative payee                        copy of the order that determined incompetence as proof of the need
        program of the Social Security                           for a representative payee. [20 CFR 404.2015 and 416.615] Otherwise,
Administration (SSA). The SSA does not rec-                      the SSA will get statements from the beneficiary’s doctors and others
ognize the authority of an agent under a                         to make that determination. In fact, the representative payee program
power of attorney, no matter what the docu-                      may be an alternative to conservatorship if the beneficiary’s only asset
ment says. The SSA also does not recognize                       is Social Security or SSI payments, or if other assets are being man-
the authority of a guardian or a conservator.                    aged under a trust or a power of attorney.
A conservator may first learn about the                             A potential representative payee can contact SSA by calling
SSA’s representative payee program when                          800.772.1213, making a trip to a local office, or going online to
he or she tries to deposit benefit checks into                   www.ssa.gov. The Request to Be Selected as Payee is form SSA-11-BK.
the newly opened conservatorship account.                           The SSA notifies the beneficiary of its intent to name a representa-
+RZ WKH SURJUDP ZRUNV                                            tive payee. The beneficiary can appeal the decision to make payments
   If the SSA determines that a person who is                    to a representative payee or the decision to name a particular payee.
entitled to Social Security or Supplemental                      )LGXFLDU\ UHTXLUHPHQWV
Security Income (SSI) benefits is a minor,                          The representative payee has the usual fiduciary duties with regard
legally incompetent, or otherwise mentally                       to finances. The SSA recommends that payments be kept in a bank
or physically incapable of managing his or                       account titled “[Representative Payee’s name], representative payee
her benefits, SSA will appoint a representa-                     for [Beneficiary’s name].”
tive to receive and manage benefits.                                The agency requires the representative payee to complete form
   The SSA gives preference to the guardian                      SSA-623 each year, which summarizes receipts and disbursements.
or conservator when appointing a represen-                       SSA mails the form to the representative payee. The conservator’s
tative payee. The agency also considers the                      annual accounting or the guardian’s annual report cannot be substi-
relationship with the beneficiary. [20 CFR                       tuted for the SSA form.
404.2020; 404.2021; 416.620; and 416.621]




                                                                                                                                                ,PSRUWDQW
 6XSSOHPHQWDO 6HFXULW\           Eligible individual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $545/month
 ,QFRPH 66, %HQHILW                                                                                                                           HOGHU ODZ
 6WDQGDUGV                       Eligible couple . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $817/month
                                                                                                                                                QXPEHUV
                                 Asset limit for Medicaid recipient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,000
                                                                                                                                                -DQXDU\  
 0HGLFDLG 2UHJRQ               Burial account limit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,500
                                 Personal needs allowance in nursing home . . . . . . . . . . . . . . . . . $30/month
                                 Room & board rate for community-based
                                                                                                                                                3OHDVH QRWH
                                 care facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $446.70/month
                                 OSIP Maintenance Standard for person
                                                                                                                                                7KH FKDUW
                                 receiving in-home services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $546.70         SXEOLVKHG LQ WKH
                                                                                                                                                :LQWHU  LVVXH
                                 Long term care income cap . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,635/month
                                                                                                                                                FRQWDLQHG DQ HUURU
                                 Community spouse minimum resource standard. . . . . . . . . . . . . . . $17,856                                LQ WKH URRP
                                 Community spouse maximum resource standard . . . . . . . . . . . . . . $89,280                                 ERDUG UDWH IRU
                                 Community spouse minimum                                                                                       FRPPXQLW\EDVHG
                                 monthly maintenance needs allowance . . . . . . . . . . . . . . . . . $1,452/month                             FDUH IDFLOLWLHV
                                 Excess shelter allowance . . . . . . . . . . . . . . . . . . Amount above $436/month
                                 Food stamp utility allowance used
                                 to figure excess shelter allowance . . . . . . . . . . . . . . . . . . . . . . . . $246/month
                                 Average private pay rate for calculating ineligibility
                                 for applications made after October 1, 2000 . . . . . . . . . . . . . . $3,750/month

                                 Hospital deductible per illness spell . . . . . . . . . . . . . . . . . . . . . . . . . . . . $812
 0HGLFDUH                        Skilled nursing facility co-insurance for days 21-100 . . . . . . . . $101.50/day
                                 Part B premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $54/month
                                 Part B deductible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $100/year

Page 10
(OGHU /DZ 6HFWLRQ 1HZVOHWWHU                                                                             6SULQJ 

3RWHQWLDO FRQIOLFWV RI LQWHUHVW
By Dady K. Blake
                                                    1. The elder law attorney meets with the

A
         recent Bar disciplinary ruling, (In Re
         Snell, Or. Sup. Ct, no. 99-49; August         wife to revisit her estate planning in light
         6, 2001), has increased awareness by          of the new situation. The attorney advises
elder law attorneys of the potential for con-          her as to changes in Medicaid rules and
flicts of interest. Recent discussions on this         addresses changes to her estate planning
topic between well-established and respect-            documents.
ed elder law attorneys alerted the author to        2. The attorney assists the wife, in her
the fact that there is no clear consensus on           capacity as fiduciary (e.g., agent, trustee)
elder law ethics, and in particular, conflicts         for her husband, to transfer assets into
of interest. This article is intended to start a       her name alone and maximize the cou-
dialogue and possibly (and perhaps opti-               ple’s resources for her benefit. This may
mistically) encourage the formation of a               include drafting a deed to transfer the
consensus on various ethical issues related            house held by the couple to the wife
                                                                                                      'DG\ . %ODNH LV DQ
to elder law practice.                                 alone, amending an existing trust, creat-
                                                                                                      HOGHU ODZ DWWRUQH\
    For the purpose of discussion, I present a         ing a trust, and withdrawing assets from       LQ 6( 3RUWODQG
hypothetical situation.                                a joint trust into the wife’s name alone.      6KH LV PHPEHU RI
,QLWLDO UHSUHVHQWDWLRQ RI KXVEDQG                      All these activities are authorized under      WKH ([HFXWLYH
                                                       the terms of the husband’s estate plan-        &RPPLWWHH RI WKH
DQG ZLIH
                                                       ning documents (prepared by the same           (OGHU /DZ 6HFWLRQ
   The elder law attorney represents an
                                                       attorney) and represent the attorney’s         DQG FXUUHQWO\
elderly couple regarding their estate plan-                                                           VHUYHV DV FRFKDLU
ning. Included in the discussion of estate             understanding of the husband’s prior
                                                                                                      RI WKH 6HFWLRQ¶V
planning is Medicaid planning. Among the               stated wishes.
                                                                                                      /HJLVODWLYH
estate planning and Medicaid planning doc-          3. The attorney prepares a petition for the       6XEFRPPLWWHH
uments prepared by the attorney are provi-             wife for spousal support in order to
sions that allow each spouse, as agent or              increase resource or income preservation
trustee, to transfer assets to him/herself (i.e.,      for the wife over that allowed by Medic-
self dealing), in order maximize the preser-           aid rules. The attorney advises the wife
vation of assets by a well spouse in the               that her husband will need his own attor-
event of long-term care, to establish or               ney, because an attorney cannot advise
amend trust in order to preserve assets for            both husband and wife in this matter,
the well spouse, and to nominate each                  since they are opposing parties. The
spouse to serve as conservator or guardian             preservation of assets for the wife is con-
for the other.                                         sistent with the attorney’s understanding
$VVXPSWLRQV                                           of the husband’s prior stated wishes.
1) Neither spouse has awareness of an ill-          4. The elder law attorney prepares a petition
     ness that portends a future need for              for the wife for the appointment of a con-
     long-term care.                                   servator and/or guardian for the husband
2) There are no concerns regarding the                 (or other protective proceeding). Again,
     “capacity” of either spouse.                      assume that the attorney has prepared the
3) There are no children from a former                 nomination of a conservator/guardian,
     marriage or outside the marriage.                 and the above appointment is consistent
4) The customary disclosure re potential of            with the husband’s nomination.
     conflict of interest in estate planning for    ,V LW DSSURSULDWH IRU WKH HOGHU ODZ
     a couple is discussed by the attorney          DWWRUQH\ WR UHSUHVHQW WKH ZLIH"
     and dual representation is consented to           In the above scenarios, the wife is the cur-
     by both clients.                               rent client and the husband is (arguably) a
/DWHU UHSUHVHQWDWLRQ RI ZLIH RQO\                   former client. Rules related to conflicts of
   Some time later, the wife calls and indi-        interest provide generally that an attorney
cates to the attorney that her husband now          shall not represent a client in the same or a
needs long-term care. The attorney deter-           significantly related matter when the inter-
mines that the husband is no longer able to         ests of the current and former clients are in
make decisions effectively for himself. One         actual or likely conflict. [See OSB DR 5-
or more of the following scenarios occurs.                                    Continued on page 12

                                                                                                                 Page 11
6SULQJ                                                                          (OGHU /DZ 6HFWLRQ 1HZVOHWWHU

&RQIOLFWV RI LQWHUHVW                      Continued from page 11

105(C) (conflicts of interest between current and former clients); ABA       7KH ,Q 5H 6QHOO GHFLVLRQ
Model Rule of Professional Conduct 1.7] A lawyer may represent a                In the recent disciplinary decision, Oregon
client in instances otherwise prohibited by DR5-105(C) when both the         attorney Susan Snell represented a client in
current client and the former client consent to the representation after     petitioning for conservatorship over a former
“full disclosure.” Full disclosure requires an explanation sufficient to     client. Ms. Snell had represented the former
apprise each client of the potential adverse impact on him or her, a         client related to estate planning, and had in
recommendation by the attorney to seek independent legal advice to           the course of that representation prepared a
determine whether consent should be given, and that consent to rep-          Nomination of Conservator, wherein her for-
resentation be contemporaneously confirmed in writing by each                mer client nominated Ms. Snell’s current
client. [See DR 10-101(B)]                                                   client. Ms. Snell did not get the consent of
6FHQDULR  &RQWLQXHG UHSUHVHQWDWLRQ RI ZLIH                                 either her former or current clients related to
   My opinion is an unqualified yes. Representation of the wife is           her representation of the petitioner in the
appropriate. There is neither a likely or actual conflict of interest pre-   conservatorship proceeding. The Stipulation
sented.                                                                      for Discipline states that Ms. Snell’s action of
                                                                             petitioning for conservatorship “was signifi-
6FHQDULR  5HSUHVHQWLQJ ZLIH DV ILGXFLDU\ IRU IRUPHU
                                                                             cantly related to [Snell’s] prior representation
FOLHQW
                                                                             of [her former client] in her estate planning.”
   In my opinion, this is a qualified yes. Representation of the wife
                                                                                Additionally, the stipulation states that
may be appropriate. While the attorney cannot assist her in breaching
                                                                             representation of petitioner “resulted in an
any of the duties that she owes her husband as his fiduciary 1, based        actual or likely conflict of interest between a
on the facts provided the attorney should be able to continue to rep-        current and a former client.” One of the miti-
resent the wife as fiduciary for her husband.2                               gating factors noted in the stipulation was
   Practice Tip: An attorney should, in the course of initial represen-      that Ms. Snell had sought ethics advice from
tation of husband and wife, seek written authorization to continue to        the Bar before undertaking to represent the
represent either spouse in his or her capacity as fiduciary for the          petitioner.
other
                                                                             &RQFOXVLRQ
6FHQDULR  5HSUHVHQWLQJ FXUUHQW FOLHQW SHWLWLRQLQJ IRU                         I do not expect this to be the last word on
VSRXVDO VXSSRUW IURP IRUPHU FOLHQW                                           this topic and welcome your comments at
   An unqualified no. In my opinion, it is inappropriate for the attor-      dady@dsl-only.net. If there is sufficient
ney to represent the wife in her capacity as petitioner for support.         input, I will compile the responses and
Absent consent of both wife and husband following full disclosure,           report them in a future issue.
the attorney should not represent the wife. In the facts presented, the
husband is not able to give meaningful consent to the attorney’s rep-        )RRWQRWHV
resentation of the wife. Husband and wife are opposing parties in the        1  Wright, Jennifer L., “Stumbling Blocks and Pitfalls:
matter before the court, that matter is substantially related to prior          Spotting, Avoiding, and Dealing with Ethical Prob-
                                                                                lems,” OSB Elder Law CLE, Chapter 8, 8-2 (2000)
representation, and there is an actual or likely conflict of interest pre-      Also see Oregon Formal Ethics Opinion 1991-119
sent.                                                                           and 1991-62.
   Discussion Point: Elder law attorneys have discussed the possibil-        2  ABA Model Rules appear to allow an attorney to
ity of advance disclosure and consent to this type of representation.           work through an agent in representing a client.
                                                                                Brisk, William J., “Model Rule 1.7-Conflicts of
The chief problem with advance disclosure and consent is that clients           Interest and Elder Law,” 14/1 NAELA Quarterly 16
and attorney may not know at the time of consent the facts related to           (Winter 2001). Also see Crosby, Eleanor M. and
the later potential conflict, and hence would be unable to give a fully         Leff, Ira M., “Ethical Considerations in Medicaid
informed consent.                                                               Estate Planning: An Analysis of the ABA Model
                                                                                Rules of Professional Conduct,” 62 Fordham Law
6FHQDULR  5HSUHVHQWLQJ FXUUHQW FOLHQW SHWLWLRQLQJ                             Review (1994).
IRU FRQVHUYDWRUVKLSSURWHFWLYH SURFHHGLQJ IRU
IRUPHU FOLHQW
   Again, my opinion is an unqualified no. It is inappropriate for the
attorney to represent the wife in her capacity as petitioner for protec-
tive proceeding over her husband without both parties’ consent. (See
Scenario 3.) It would also be inappropriate for an attorney to repre-
sent anyone else as petitioner for a protective proceeding over the
husband, who is the attorney’s former client.




Page 12
(OGHU /DZ 6HFWLRQ 1HZVOHWWHU                                                                             6SULQJ 

0HVVDJH IURP &KDLU
                                                    we will see changes ahead. Additionally, all

W
           elcome to the fifth year of the OSB
           Elder Law Section! Thanks to the         estate planners can only wonder at the pos-
           efforts of many, we’ve attained a        sible estate tax scenarios we’ll see before
number of goals.                                    2011, when estates above $675,000 are tax-
    2002 is the first full calendar year of the     able.
Section’s Public Policy Subcommittee, led              On the larger horizon, federal Social
by Michael Levelle. We’ve identified specific       Security and Medicare Trust Funds have
policy goals and will work with our Legisla-        been invaded since September 11, the oldest
tion Subcommittee, Dady Blake and Ruth              boomers are now nine years from age 65,
Simonis, co-chairs. The Section’s Agency            and we’re further from a middle-class long
and Professional Relations Subcommittee,            -term-care safety net than ever. Based on
led by Donna Meyer, Cinda Conroyd, and              current rates of incidence, the Alzheimer’s
Sam Friedenberg, has maintained a continu-          Association estimates that at some point in
ing dialogue with staff of Seniors and Per-         the next 30 years, the entire Medicare/Med-
sons with Disabilities (SPD).                       icaid budgets will be consumed by boomer             %\ 7LP 1D\
    The economic effects of September 11 and        dementia alone. These challenges are
the highest state unemployment rate in the          daunting but inescapable.
nation have produced an almost $900 mil-               Please join the efforts of our members by
lion revenue deficit in Oregon. Unfortunate-        participating in any Section activity that
ly, the few legislative victories for our           touches your heart and imagination. Fellow
clients in Oregon’s 2001 session all seem to        boomers, this is your life!
be back on the chopping block. Inevitably,


$JHQF\ DQG 3URIHVVLRQDO 5HODWLRQV 6XEFRPPLWWHH XSGDWH
By Sam Friedenberg

1HZ '+6 3URJUDPV                                                            meet with the agency immediately after the
     The Department of Human Services informed us of two new pro-           publication of rules and will report back to
grams which may benefit our clients. Effective April 1, 2002, for           Section members.
women under 65, there will be a Breast and Cervical Cancer Program
                                                                            0HGLFDLG 3ROLF\ &KDQJHV
to cover all treatment related to breast and cervical cancer, including
                                                                                The subcommittee has been concerned
the cost of hospice. There are no resource or income requirements, but
                                                                            about recent policy changes at DHS with
it is subject to estate recovery. To find out more, call Roger
                                                                            regard to its implementation of Medicaid
Staples at 503.945.6072.
                                                                            rules. Of course, there have always been and
    Effective July 1, 2002, there will be a Senior Prescription Drug Pro-
                                                                            always will be changes, especially after a
gram for individuals over age 65. It will allow qualified individuals to
                                                                            change in personnel. Accordingly, a meeting
purchase medications at the Medicaid level (approximately 20% off
                                                                            was held between various subcommittee
list price). The income eligibility requirement is 185% of the poverty
                                                                            members and agency administrators, includ-
level and the resource limits are the same as for Medicaid. There is no
                                                                            ing Nancy Talbot, James Toews, and Eliza-
estate recovery. To find out more, call Sandy Wood at 503.945.6530.
                                                                            beth Lopez. We presented our concerns
    Jeff Miller also reminded us that the agency reimburses for adult
                                                                            about recent actions by Senior and Disabled
day care. The rules are in chapter 411 of the OAR. To find out more
                                                                            Persons Services and advocated for the fol-
call Delores Miller at 503.947.5162.
                                                                            lowing:
1HZ 0HGLFDLG 5XOHV                                                          • changes pursuant to rules and notice
   Those who receive the Notices of Proposed Rules Changes will             • a rule-making process that includes the
have reviewed the many changes proposed both for eligibility and               Elder Law Section of the Bar
estate recovery. Our Section has many concerns about how the pro-           • rules and policy based on legal standards
posed rule changes will affect our clients. The Agency and Profession-      • consistency in policy over time
al Relations Subcommittee filed comments to eight rules, and the            • rules and policy that are not always the
committee hopes other members of the section have also filed com-              most restrictive and no retroactivity in
ments. The agency will review the comments and issue final rules for           any new rules.
April 1, 2002. Since we cannot now determine what the agency will              The administrators were receptive to our
decide, we will not discuss the specifics in this newsletter. However,      concerns and agreed to discuss these matters
practitioners should be alert to pending changes. This committee will       further. Let us hope there is a change.
                                                                                                                  Page 13
6SULQJ                                                                  (OGHU /DZ 6HFWLRQ 1HZVOHWWHU

5HVRXUFHV IRU HOGHU ODZ DWWRUQH\V
(YHQWV        Crossing the Great Divide                             Hosted by the Alzheimer’s Association
              2002 Joint Conference of National Council on the      Web site: www.alz.org/internationalconference/
              Aging & American Society on Aging                     respite.htm
              April 4–7, 2002                                       E-mail: internationalconference@alz.org
              Denver, Colorado
              Phone: 800.537.9728                                   OSB Elder Law Section CLE
              Web site: www.agingconference.org                     Friday, October 11, 2002
                                                                    Oregon Convention Center
              Elder Abuse: The Role of the Healthcare               Portland
              Professional
              April 5-6, 2002                                       International Conference on Family Caregiving
              Newport Beach Marriott Hotel                          Oct 12–14, 2002
              Newport Beach, California                             Washington, DC
              Sponsored by University of California, Irving         National Alliance for Caregiving
              College of Medicine, Program in Geriatrics.           Phone: 800.537.9728
              Phone: 310.314.2536; fax 310.314.2589                 Web site: www.caregiving.org
              e-mail: elderconference@bscmanage.com                 Email: info@asaging.org
              Web site: www.elderaseconference.org
                                                                    2002 NAELA Institute
              2002 NAELA Symposium                                  November 14–17, 2002
              April 17–21, 2002                                     Hyatt Regency Albuquerque
              Hyatt Regency                                         Albuquerque, NM
              Baltimore, Maryland                                   Contact Jenifer Mowery at 520.881.4005 ext 114, or
              April 17 offerings are Basics Day, CELA certifica-    jmowery@naela.com
              tion review course, or a day on Capitol Hill. (Sep-
              arate registration required for these sessions.)      Elder Law Section Executive
              Tracks on technical and business practice, public     Committee Meetings
              benefits, and hot topics will be featured. Speakers   Lake Oswego OSB Center
              include Tom Scully, Director of CMS (formerly         2:00 p.m.–5:00 p.m. on the following days:
              HCFA); Howard Zaritsky, nationally renowned           April 19, 2002             July 12, 2002
              tax expert; and Senator James Reed.                   Sept. 13, 2002             Nov. 8, 2002
              Contact Jenifer Mowery at 520.881.4005 ext 114,
              or jmowery@naela.com, or register online at           Monthly Elder Law Discussion Groups
              www.naela.org.                                        Elder Law I meets second Thursday
                                                                    Lloyd Center Tower, NE Portland
              Eighth International Conference on Alzheimer’s
              Disease and Related Disorders                         Elder Law II meets first Thursday
              July 20–25, 2002                                      Legal Aid Services, Downtown Portland
              Stockholm, Sweden                                     Details: Anne Stacey 503.224.4086




                 The National Legal Training Project offers
7UDLQLQJ      substantive law training modules, which can
                                                                        • Protective Arrangements
                                                                        • Financial Planning
PRGXOHV       be used both as training materials and as a
                                                                        • Health Care Decision-Making
              stand-alone reference. They are in outline
DYDLODEOH     form with citations to statutes and regula-
                                                                        • Representing Older Persons with
                                                                          Diminished Capacity—Ethical Con-
              tions, and include advocacy tips, charts,
                                                                          siderations
              model problems and answers, and resource
                                                                        •Americans with Disabilities Act
              sections.
                                                                        •Food Stamps
                  Subjects are:
                 • Supplemental Security Income                         The cost is $10 per module, or $50 for a
                 • Social Security Disability                        full set. To order, send a written request to
                 • Social Security Retirement                        Legal Counsel for the Elderly, Inc.; PO Box
                 • Medicare                                          96474; Washington, DC 20090-6474. You
                 • Nursing Home Law                                  will receive a bill with your shipment.
                 • Protective Services Series
                 • Elder Abuse

Page 14
6SULQJ                                                                            (OGHU /DZ 6HFWLRQ 1HZVOHWWHU

:HE VLWHV \RX FDQ XVH
                                                       LexisOne has a large number of free forms

Y
        ou may often find yourself searching
        for the elusive document or form.              and also offers forms for sale at its site
        After you have exhausted your own              www.lexisone.com. Both Lexis and West-
library and the libraries of your friends, your        Law also have forms available to subscribers
next stop should be the Internet.                      to these research services. AmJur Forms can
   One of my favorite research sites is Ver-           be found on Westlaw.
susLaw, www.versuslaw.com. For $8.95 per                  Forms for Oregon appellate courts may be
month per attorney, you have access to                 found on the Oregon Judicial Department’s
unlimited online research for state and fed-           Web site at www.ojd.state.or.us/
eral cases. The service also offers a wide             Records/Records.nsf/pages/FORMS. That
variety of legal forms for relatively low cost.        location also has links to the Oregon Rules    %\
There is an extensive collection of court-             of Appellate Procedure.                        6XVDQ )RUG %XUQV
required probate forms for a number of                    Many Oregon circuit courts also have        3RUWODQG
states, which can significantly reduce your            local forms and rules on their Web sites.
time in dealing with ancillary probate issues          Links to the various circuit courts can be
outside Oregon.                                        found via the Judicial Department’s Web site
   The best compilation of both state and              at www.ojd.state.or.us/ojdinternet.nsf/
federal court forms that I have found is on            circuit_court_web_sites.htm.
LLRX at www.llrx.com/courtrules. This                     When you obtain forms from the Web,
LLRX site also offers a way to find the court          confirm that they are the current versions.
dockets and rules online. Many of the LLRX             Some Web sites are better than others at
links lead to US Court Forms at                        indicating the date the list was revised.
findforms.uscourtforms.com. This site                  Check the current law and check with the
requires a free registration, although it also         court where you plan to file the document to
offers subscriptions to its services. US Court         be sure that the forms have not been revised
Forms has general state forms as well as               since they were posted. This is particularly
forms for Marion, Linn, and Lincoln coun-              true when you are relying on a third-party
ties in Adobe Acrobat format.                          site rather than the site owned and main-
   Another listing of court forms can be               tained by the court itself.
found on FindLaw at forms.lp.findlaw.com.



                                                       5XOHV DQG JXLGHOLQHV                           (OGHU ODZ
T
       he purpose of the Oregon State Bar
       Elder Law Section’s electronic mail dis-        • Include a subject line in messages to
       tribution list is to facilitate communica-         the list. When replying to a message        ,QWHUQHW
tion among members. This is a private list.               from the digest version of the list, edit   GLVFXVVLRQ
Participation is open only to Section mem-
bers who have e-mail addresses registered
                                                          the subject line to indicate the topic of   OLVW
                                                          the reply.
with the Bar.                                          • Be polite. Do not post any defamatory,
+RZ WR XVH WKH OLVW                                      abusive, profane, threatening, offen-
     To subscribe, send a message to listserv-            sive, or illegal materials.
er@lists.osbar.org with the following in the           • Sign your messages with your full
body of the message:                                      name, firm name, and appropriate con-
Subscribe eldlaw<yourname>                                tact information.
     To send a message to all members of               • Do not send attachments. The list soft-
the list, e-mail it to eldlaw@lists.osbar.org.            ware will not accept messages with
Replies are directed by default to the sender             attachments and will return your mes-
of the message only. To send a reply to the               sage. Instead, copy and paste material
entire list, you must change the address to               from the attachment into your plain
eldlaw@lists.osbar.org.                                   text message.
     To receive your messages in digest                • Get permission from the original
form, (combined into a single message sent                sender before forwarding a message
once each day): digest eldlaw<yourname>                   from this list to someone who does not
                                                          subscribe to this list.
                                             Page 15
6SULQJ                                                                             (OGHU /DZ 6HFWLRQ 1HZVOHWWHU

6RPH FKDQJHV WR QRWH




                                                                                  Presorted Standard
,56 IRUP UHYLVHG




                                                                                  Portland, Oregon
                                                                                  Permit No. 341
    The IRS revised its SS-4 form, effective December 2001. There is
now a space on the form which authorizes a third party to receive the




                                                                                  US Postage
Employer Identification Number and answer questions about the
application, thus doing away with the need to send a form 8821 with




                                                                                  PAID
the SS-4 for that purpose.
    Perhaps more important, there is a change in where we fax the
SS-4 forms. Forms for Oregon and Washington now go to Philadel-
phia, Pennsylvania, instead of Ogden, Utah.
    New fax TIN number: 215.516.3990; new tele-TIN number:
866.816.2065.
    You can download the revised SS-4 form and the instructions
(with the new numbers and address) from www.irs.gov.

'+6 WHPSRUDU\ UXOH FKDQJHV
    On February 26, 2002, the Oregon Department of Human Services
issued two temporary rule changes. The first amends OAR 461-140-
0220, which describes when a resource transfer will not disqualify an
applicant or recipient from receiving Medicaid assistance or other
public benefits. The second amends the definition of a court-ordered
community spouse resource allowance in OAR 461-160-0581. The
changes affect transfers and increases in community spuse resource
allowances made pursuant to court orders. Members of the Section’s
Agency and Professional Relations Subcommittee are reviewing the
temporary rules, which were not included in the agency’s recent
package of proposed rule changes.
    The temporary rules are available online at
afsmanuals.hr.state.or.us. They will expire on June 30, 2002.



   1HZVOHWWHU %RDUG
   The Elder Law Newsletter is published quarterly by the Oregon State
   Bar’s Elder Law Section, Tim Nay, Chair. Statements of fact are the
   responsibility of the authors, and the opinions expressed do not imply
   endorsement by the Section.

   Editor:
   Carole Barkley                                    carole424@aol.com
                                                           503.796.0351
   Advisory Board:
   Penny Davis, Chair                        eldlawfirm@spiretech.com
                                                         503.452.5050
                                                                            Lake Oswego, OR 97035-0889




   Shirley Bass                                      sbass@cybcon.com
                                                           503.241.9455
                                                                            5200 SW Meadows Rd




   Hon. Claudia M. Burton              claudia.m.burton@ojd.state.or.us
                                                                            Elder Law Section




                                                         503.378.4621
                                                                            Oregon State Bar




   William J. Kuhn                             ksmhepp@centurytel.net
                                                        541.676.9141
   Matthew Mullaney                            mattesq@onlinemac.com
                                                         541.676.9141
   Holly Robinson                         Holly.L.Robinson@state.or.us
                                                         503.986.1254
   Prof. Bernard F. Vail                                vail@lclark.edu
                                                           503.768.6656

Page 16

								
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