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16 Yale J. Health Pol'y L. & Ethics 147 (2016)
Reimagining the Risk of Long-Term Care

handle is hein.journals/yjhple16 and id is 159 raw text is: 


Reimagining the Risk of Long-Term Care

Allison  K  Hoffman*

     U.S.  law  and  policy  on  long-term  care  fail to address  the  insecurity
American   families face due to prolonged  illness and disability-a problem   that
grows  more   serious as the  population ages  and  rates of disability rise. This
Article argues that, even worse, we  have focused  on only part of the problem. It
illuminates two  ways  that prolonged  disability or illness can create insecurity.
The  first arises from the risk of becoming disabled or sick and needing long-term
care, which  could be  called care-recipient risk. The second arises out of the
risk of becoming  responsible for someone  else's care, which I call next-friend
risk. The law and  social welfare policy has focused on  the first, but this Article
argues  that the second  equally threatens the  wellbeing  of American   families.
While  attempting  to mitigate  care-recipient risk, in fact, the law has steadily
expanded  next-friend risk, by reinforcing a structure of long-term care that relies
heavily  on informal  caregiving. Millions of  informal caregivers face  financial
and nonmonetary   harms  that deeply threaten their own long-term security. These
harms are disproportionately experienced by people who are already
vulnerable-women, minorities, and the poor. Scholars and policymakers have
catalogued  and critiqued these costs but treat them as an unfortunate byproduct of
an inevitable system of informal care.
     This Article argues that if we, instead, understand becoming responsible for
the care of another as a social risk-just as we see the chance  that a person will
need  long-term care as a risk-it could fundamentally  shift the way we approach

    * Thank you to my excellent edit team at YJHPLE and to Alex Boni-Saenz, Sam Bray, Ann
Carlson, Scott Cummings, Ingrid Eagly, Jill Horwitz, Robert Hughes, Sung-Hui Kim, Dani
Kaiserman, Russell Korobkin, Gillian Lester, Timothy Malloy, Jon Michaels, Eric Miller, Jennifer
Mnookin,  Steve Munzer, Jason Oh, Jessica Roberts, Vicki Schultz, Dan Schwarcz, Joanna
Schwartz, Seana Shiffrin, Kathy Stone, Rebecca Stone, Seth Weisbord, Noah Zatz, and Eriz Zolt
and the participants at Harvard Law School's Petrie-Flom Center Workshop, the Southern
California Junior Faculty Scholarship Workshop, the Emerging Family Law Scholars and Teachers
Workshop, and faculty workshops at UCLA, Berkeley, Boston University, Irvine, Loyola, Penn,
and Southwestern Law Schools for valuable comments on various drafts of this project. For
research assistance, I am grateful to Scott Chandler, Erynn Embree, Billy Herbert, Kenneth
Kennedy, Doug  Merkel, Eli Tomar  and especially research librarian extraordinaire Lynn
McClelland. This article is dedicated to Elliot, whom I hope will never feel obligated to care for his
parents, and to some of the most admirable next friends I know-Bonnie and Les, Michael and
Muffy, Lizzie, Brent, Zannah, and Lilly, and Larry and Dianne.


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