New York Estate Planning & Elder Law Blog
UNIFORMITY OF LAWS
Many laws across the country are the result of non-profit civic minded legal entities. The American Legal Institute is perhaps the most well known of these groups. Not all laws are “laws” in the traditional sense. Some are written by these legal entities and the various states adopt them as compacts, which are in essence legal contracts between states as to how they will handle intra-state legal problems. For example, there is a drivers compact that enables one state to recognize and punish out of state drivers for driver under the influence infractions.
For example, New Jersey driver receives a driving under the influence infraction in New York. The worst thing that New York can do is to revoke that driver’s right to operate a vehicle in New York state. Indeed this does happen. In addition, under the driver’s compact, New York also forwards this conviction to New Jersey and New Jersey then punishes the driver in accordance with New Jersey law, thereby suspending his/her driving privileges. Congress has never weighed in on this issue because there was no need to. Almost every state partakes in the Driver’s compact. States also cooperate with the placement of foster children across state lines to relatives or family friends via a compact. Once again, Congress has not created any statutory framework for the states. At the current moment there is some general agreement between the states when it comes to the laws that deal with Adult Protective Services (“APS”). The key term is that there is “general agreement.”
To call it uniformity would be an overstatement. It is certainly not a compact, in that a compact requires each state to adopt the compact as it, with out any change to the language, although each state’s Court is free to interpret the language in the compact in any way it deems proper. There is a movement, however, to create uniformity to APS laws. By 2030, it is estimated that the number of individuals who are 65 years or older will double to approximately 71 million and will be about 20 percent of the overall population, with some states having over 25 percent of its population over the age of 65. Legal changes moves at a glacial pace at times and if there is going to be a change over to uniformity, the movement must begin now.
DRAFT REGULATIONS FROM FEDERAL DEPARTMENT OF HEALTH AND HUMAN SERVICES
In the case of model legislation for APS, the Federal Government is weighing in, creating non-binding legislation to help states mold a more uniform approach to APS legislation. The Department of Health and Human Services, Administration on Aging, Administration for Community Living, created the guidelines due to its commitment to helping states develop effective APS, to “ensure adults are afforded similar protections and services, regardless of their state or jurisdiction.” In other words, the federal government is trying to ensure that there is a floor or basic minimum of protections in effect, with similar responses across the country to protect against elder abuse. You can download a copy of the proposed voluntary guidelines. The guidelines are not law, formal regulations or binding on any state, entity and only suggested guidelines; they do not create any legal rights or obligations on anyone or any entity.