NYSBA FALL 2012 | VOL. 4 | NO. 2 TThehe SSeniorenior LLawyerawyer A publication of the Senior Lawyers Section of the New York State Bar Association IInsidenside • A SSecondecond SSeasoneason ooff SServiceervice • DDataata BBreachesreaches • DDealingealing wwithith tthehe RRealitiesealities ooff AAgingging • EEthicsthics aandnd EE-Mails-Mails • EElderlder EEffiffi ccacyacy • DDepressionepression iinn OOlderlder AAdultsdults • RResolvingesolving YYourour EEmploymentmployment • MMissingissing AAnnuitiesnnuities DDisputeispute • SSalaryalary CCapap RReductionseductions iinn tthehe NNFLFL • HHealthealth CCareare DDecision-Makingecision-Making • NNewew YYorkork SStatetate EEthicsthics LLawsaws • EEthicsthics MMattersatters • CChoosinghoosing aann AAgentgent fforor HHealthealth CCareare • AAtypicaltypical PProvisionsrovisions iinn LLastast WWillsills aandnd • TThehe DDosos aandnd DDon’tson’ts ooff WWillill TTestamentsestaments PPreparationreparation Make the Most of www.nysba.org with Senior Lawyer Section Resources at www.nysba.org/SLS • About the Section — Learn about the section purpose, profi le, scope of activities and offi cers • The Senior Lawyer — Instant access to past issues and the electronic citation enhanced version of the section publication • Committees — Your opportunity for increasing your involvement with 10 substantive committees • Materials and Web Links of Interest — 100+ links to a large variety of resources including scams to avoid, health, jobs, fi nancials and entertainment • Senior Lawyer Searchable Directory — Look up and network with your peers • Upcoming Events Login now to instantly access these tools designed for you. Table of Contents Page A Message from the Section Chair . .4 Susan B. Lindenauer A Message from the Editor. 5 Willard H. DaSilva Feature Articles A Second Season of Service—Exploring Multiple Pro Bono Opportunities . .6 Lynn M. Kelly Impact of Aging on Lives and Health: Dealing with the Realities of Aging . 8 Monsignor Charles J. Fahey Elder Efficacy: What to Do and How to Do It . 11 Robert Abrams A Fact-Finding Process Might Be the Solution for Resolving Your Employment Dispute . 17 Jeffrey T. Zaino For Your Information: Older Voters Constitute New Majority / New Alzheimer’s Study . .19 Advance Directive News: Topsy-Turvy Health Care Decision-Making . .20 Ellen G. Makofsky Ethics Matters . 22 John Gaal Getting the Last Word, or, “A Good Stout Rope” . 24 Eric W. Penzer Data Breaches . 27 Mary Noe Ethical Obligations Regarding Inadvertently Transmitted E-Mail Communications . 30 Eric M. Hellige and Durre S. Hanif Understanding Depression Among Older Adults . 34 Lisa Furst and Jacquelin Berman The Missing Annuity Mystery . 37 Mark E. Sullivan Dropping the Ball: Legal Issues in the NFL’s Salary Cap Reductions . 42 Thomas Grove Assessing a Century of Ethics Laws in New York State . 50 Blair Horner and Russ Haven Common Sense Suggestions to Reduce Legal Barriers Facing New Yorkers Who Wish to Choose an Agent to Help Them in Obtaining and Paying for Their Health Care . .59 Albert Feuer The Dos and Don’ts of Preparing and Supervising the Signing of Wills for the Elderly, Impaired and Infirm . 74 Joseph H. Gruner NYSBA The Senior Lawyer | Fall 2012 | Vol. 4 | No. 2 3 A Message from the Section Chair As I sit here preparing are worth your time as are the other Section newsletter my Senior Lawyers Sec- topics. One that is particularly timely as I write is the pre- tion Newsletter message in sentation on ”Older Voters Are the New Majority.” mid-October, I look out at In October 2012, the Section presented a program autumn in New York with with a provocative title ”How to Stay in Touch, Keep In- gold, red and orange leaves formed, and Provide High-Quality Legal Services without beginning to appear on the a Formal Offi ce from Wherever You Are. ” The program trees. I realize that you will was truly a 21st Century topic about how electronic receive this message and the technology has made it possible to have an anywhere law newsletter after the New offi ce and presentations included practical and how to go Year in bare branched and about it discussions and demonstrations about how to use far colder January. My pur- the technology to maintain your offi ce, your fi les, your re- pose is not to refl ect on the search and do so ethically protecting client confi dentiality. change of seasons but rather to refl ect on the accomplishments of the Senior Lawyers In January 2013, at the New York State Bar Associa- Section in 2012 and the expectations for 2013. The Section tion Annual Meeting, the Section will have two important has continued to grow at a pace that is outstanding for a presentations, both of which will be CLE accredited. The Section that is just about four years old. I believe that our fi rst is “Transition Planning For You and Your Law Firm” growth in membership is tied to the exemplary programs and the second is on the Attorney Emeritus Program that the Section presents and the breadth of the content of sponsored by the court system. Both should be of great the Senior Lawyers Section newsletter. interest to all members of the bar. In January 2012, at the New York State Bar Associa- In addition, in 2013 the Senior Lawyers Section Com- tion Annual Meeting, the Senior Lawyers Section present- mittee on Age Discrimination will take a look at the cur- ed a program that focused on the varieties of ways that rent status of the NYSBA-sponsored effort to move law lawyers might approach retirement, including increased fi rms to voluntarily adopt policies that end age-related emphasis on pro bono service, combining pro bono or mandatory partners retirements. Through its Pro Bono other community service with continued practice, mov- Committee the Section has plans to strengthen its rela- ing from one practice setting to another, or continuing tionship with the Attorney Emeritus Program. We have to practice without considering retirement. The program many active and interesting committees. I urge all mem- also contained thoughtful presentations about how to bers of the Section to become active participants on our consider what will be next for you and the need to consid- Committees and in our work. er the impact of aging on lives and health. Summaries of some of the January 2012 presentations are to be found in Susan B. Lindenauer this issue of the Senior Lawyers Section newsletter. They 4 NYSBA The Senior Lawyer | Fall 2012 | Vol. 4 | No. 2 A Message from the Editor “Time fl ies when you tasks to others, we have had more time available to are having fun!” So goes an broaden the scope of our activities. Pro bono activities are expression that I have used now a source of providing services to those who are not for years. But now that I am able to fund legal activities, especially litigation. Lynn M. qualifi ed to be classifi ed as Kelly, for example, has furnished some of the opportuni- a ”senior citizen” (with dis- ties for us to provide legal services to those who cannot counted movie and museum afford highly paid attorneys. She has given us insight into admission prices), I realize exploring various kinds of pro bono activities. that time fl ies faster as we Dealing with the realities of aging (a process I refuse grow older (or as I prefer to to accept) is the subject of the presentation of Monsignor say, as we mature). Charles J. Fahey. A problem with that And then there are especially pertinent articles writ- “fl ying time” is that my ac- ten by knowledgeable writers in various fi elds of law. ceptance of growing ”more mature” is much slower than Health care decisions are the subject of the article by Ellen the “time” that “fl ies.” Consequently, I do not consider my G. Makofsky. ”Ethics Matters” is presented by John Gaal. age based upon the year of my birth. Instead, my self- perceived age is at least twenty years less. In addition to the insight of the speakers at our An- nual Meeting, are articles written especially for this issue For that reason, like many others (perhaps most of of The Senior Lawyer as well as articles of particular inter- us), the thought of retirement has not yet arrived. Never- est published by other Sections of our Association. theless, especially since I have been in the Senior Lawyers Section of our bar association, I am mentally nudged to Each of you has thoughts worthy of our articles for pursue not “retirement planning” but rather what I call this publication and have read articles written by oth- “maturity planning.” ers, articles that deserve the attention of all of us. You are urged to forward to me any of the articles written by you The Annual Meeting of our Section a year ago focused or by others that you believe will benefi t our members. on ”maturity planning.” Only about ten percent of the There are practically no bounds to the scope of pertinent ever-growing members of our Senior Lawyers Section subject matter. Of course, accreditation w ill be given. were able to attend the meeting. Because of the impor- tance of its subject matter and the superb content of the Please give me the benefi t of your thinking and com- program and the message delivered by its participants, it ments, good or bad, so that you and I and other members is essential that the information of that program be dis- of the editorial board may review them and make this seminated to the ninety percent of our members who did publication your Senior Lawyer magazine. not, for many reasons, attend. Among the articles in this issue of The Senior Lawyer Willard H. DaSilva are some of the highlights of that Annual Meeting. As Editor many of us have diverted some of the time-consuming SSeniorenior LLawyersawyers SSectionection Visit us on the Web at WWW.NYSBA.ORG/SLS NYSBA The Senior Lawyer | Fall 2012 | Vol.