Bylaws of the Elder Law Section

Article I

Identification

This section shall be known as the Elder Law Section of the Tennessee Bar Association (TBA) and hereinafter designated as the “section.”

§2.2            Purpose

This section exists to promote the objectives of the TBA, particularly as they relate to the areas of laws encompassed within the name of the section. To that end, the section shall serve as a medium through which its members may undertake activities designed:

(1)  to enhance their knowledge, competence and skills within this field, including the support of qualified members who seek certification in the field of Elder Law,

(2)    to assist and cooperate with each other in addressing problems within this field,

(3)  to seek uniformity and improvements in this field of law by collaborating with the

TBA regarding legislative recommendations,

(4)   to encourage better communication between those lawyers engaged in this field of

law. In so doing, the section may act alone or in concert with other sections or committees of the TBA, or such other organizations as shall be deemed appropriate by the council created in Article VI; and

(5) to encourage the development of information resources which will enable the membership to be apprised to developments in the field of Elder Law.

§ 2.3 Elder Law

Elder Law is a practice area which is defined in terms of the age of the client rather than area of practice. It includes, but is not limited to, the following:

1. Health and Personal Care Planning, including giving advice regarding, and preparing, advance medical directives (medical powers of attorney, living wills, and health care declarations) and counseling older persons, attorneys-in-fact, and families about medical and life-sustaining choices, and related personal life choices.

2. Pre-Mortem Legal Planning, including giving advice and preparing documents regarding wills, trusts, durable general or financial powers of attorney, real estate, gifting, and the financial and tax implications of any proposed action.

3. Fiduciary Representation, including seeking the appointment of, giving advice to, representing, or serving as executor, personal representative, attorney-in-fact, trustee, guardian, conservator, representative payee, or other formal or informal fiduciary.

4.Legal Capacity Counseling, including advising how capacity is determined and the level of capacity required for various legal activities, and representing those who are or may be the subject of guardianship/conservatorship proceedings or other protective arrangements.

5.Public Benefits Advice, including planning for and assisting in obtaining Medicare, Medicaid, Social Security, Supplemental Security Income, Veterans benefits, and food stamps.

6. Advice on Insurance Matters, including analyzing and explaining the types of insurance available, such as health, life, long term care, home care, COBRA, medigap, long term disability, dread disease, and burial/funeral policies.

7. Resident Rights Advocacy, including advising patients and residents of hospitals, nursing facilities, continuing care retirement communities, assisted living facilities, adult care facilities, and those cared for in their homes of their rights and appropriate remedies in matters such as admission, transfer and discharge policies, quality of care, and related issues.

8.            Housing Counseling, including reviewing the options available and the financing of those options such as: mortgage alternatives, renovation loan programs, life care contracts, and home equity conversion.

9.            Employment and Retirement Advice, including pensions, retiree health benefits, unemployment benefits, and other benefits.

10. Income, Estate, and Gift Tax Advice, including consequences of plans made and advice offered.

11. Counseling about tort claims against nursing homes.

12. Counseling with regard to age and/or disability discrimination in employment and housing.

13. Litigation and Administrative Advocacy in connection with any of the above matters, including will contests, contested capacity issues, elder abuse (including financial or consumer fraud), fiduciary administration, public benefits, nursing home torts, and discrimination.

§2.1 Enrollment

Article II
Membership/Dues

Any member in good standing of the TBA shall, upon proper application accompanied by advance payment of annual dues for the current year, be enrolled as a member of the section.

§2.2            The Membership

Members so enrolled and whose dues are paid pursuant to the provisions of this Article shall constitute the membership of the section.

§2.3            Dues

Dues for membership in the section shall be the amount set by the Tennessee Bar Association and shall be payable upon enrollment and thereafter annually, in advance, at the beginning of each TBA fiscal year succeeding such enrollment.

§2.4            Delinquency

Any member of this section whose annual dues shall be more than six months past due shall thereupon cease to be a member of the section.

§2.5            Payment of Dues

The annual dues of the section shall be payable to the TBA at its headquarters in Nashville, which shall deduct therefrom an appropriate amount for the performance of its administrative functions. All other funds collected by the TBA on behalf of the section shall be segregated by the treasurer of the TBA, who shall maintain said funds for the sole use and benefit of the section.

Article III
Committees

§3.1            Establishment

The council, as defined in 6.2, of the section is authorized to establish, or to empower the chair of the section to establish, such committees as it may deem necessary and desirable to promote effectively the activities of the section within the jurisdiction of the section.

§3.2            Appointment of Committees and Chairs

The chair of all committees shall be appointed pursuant to and in accordance with the 3

provisions of Article V of these bylaws. The section chair shall announce the chair of each committee of the section for the following section year, no later than the council meeting held during the annual meeting of the section.

§3.3            Death or Resignation of Committee Chair or Member

In case of the death, resignation or disability of any committee member or chair, the section chair shall appoint his successor to fill out the unexpired term.

§3.4            Authority of Committees

The power and duties of each committee, as well as the area of its proposed activities, shall be determined by the council. No action of a committee shall establish a policy of the section unless it has been submitted to and approved by the council.

§3.5            Special Committees

Special committees may be created by the chair of the section with the consent of counsel. The powers and authorities, terms of office and size of such special committees may be determined by the council at the time of creation of said special committee.

§3.6            Standing Committees

Standing committees may be created by the council of the section. Standing committees shall be the Legislation Committee, Continuing Legal Education, the Nominating Committee and Publications which are hereby established. The nominating committee shall seek to identify a committee chair for each committee (other than itself) and the chair of each committee shall appoint committee members from the Section membership. The chair elect shall be chair of the standing committee on Continuing Legal Education.

§ 3.7            Nominating Committee

The nominating committee shall, not later than 30 days prior to the announced annual meeting, submit to the membership the names of persons who are seeking election, either as an officer of the section or as a member of the council. In the event that more than one person seeks the same office, the nominating committee shall be authorized, consistent with Section 5.6, to make non-binding recommendations to the section. The primary purpose of the nominating committee shall be to ensure that all section offices are filled each year by active members.

§3.8            Suspension, Discontinuance or Consolidation of Committee

The council may suspend or discontinue any committee whose function may not be considered necessary in carrying out the objectives of the section or may consolidate the functions of one or more committees so as better to accomplish such objectives, and may designate and establish additional committees.

Article IV
Meeting of the Membership

§4.1            Annual and Special Meetings

The section may hold an annual meeting of members in conjunction with the annual meeting of the TBA but, regardless of timing, shall hold at least one annual meeting each year. The section may, upon approval of the council, hold other meetings of members throughout the year, within or without the state of Tennessee.

§4.2            Notice

(A)            Special Meetings. Notice in writing of the time, place and general purpose of a special meeting shall be mailed no fewer than 10 nor more than 40 days prior to the meeting to each member entitled to vote at the meeting.

(B)            Annual Meeting. Notice in writing of the time and place of the annual meeting shall be mailed no fewer than 20 nor more than 40 days prior to the meeting to each member entitled to vote at the meeting. In lieu of such separate notice, the notice may be reprinted in an issue of the Tennessee Bar Journal or Across the Bar and mailed to each member entitled to vote.

(C)            Notice by Other Means. Any notice required to be given under these bylaws may be delivered electronically to an “e-mail” address which the member provides to the section or by other means reasonably calculated to provide the member with notice of the meeting and the intended action at said meeting.

§4.3            Quorum

The members of the section present at any meeting shall constitute a quorum for the transaction of business; provided, however, that at least 5 members shall be present to elect officers or to modify these bylaws.

§4.4            Voting Eligibility

Any member of the TBA and the section whose good standing can be certified by official TBA records for 30 days prior to the time of the voting, shall be eligible and entitled to vote.

§4.5            Mail Voting

The council may direct that a matter be submitted to the members of the section for vote by mail. In that event, binding action of the section shall be by a majority of the votes received from members in accordance with the rules fixed by the council.

§4.6            Agenda

Among the matters of business to be transacted at the annual meeting of the section shall be at least the following:

(a)            Election of officers and council members (b)            Report of the section chair (c)            Report of the secretary/treasurer (d)            Installations as may be appropriate.

The agenda shall also consist of other matters as decided by the chair or council.

§4.7            Speaking

Absent the approval of a majority of those members present, no member may speak on any question for more than five minutes. Absent the assent of a majority of those members present, no member may speak more than once on a question, except that the member bringing the question before the meeting has the right to close debate thereon. A member who desires to speak for more than 5 minutes or who desires to speak more than once on any question shall bring the matter to the attention of the chair, who shall, if appropriate, put the matter to a vote.

§4.8            Parliamentary Procedure

The parliamentary rules of order contained in Roberts’ Rules of Order, except as otherwise herein provided, shall govern all meeting of the section.

Article V Officers

§5.1            Terms

The terms of each officer commences upon his/her election and continues until his/her qualified successor is elected.

§5.2            Officers of Section

The officers of the section shall be the chair, the chair elect, and secretary/treasurer and such other officers as the nominating committee may from time to time suggest.

§5.3            Chair

(1)            preside at all meetings of the section and of the council;

(2)            appoint the chair and members of all committees of the Section who are to hold

office during his/her term as chair;

(3)            superintend the performance of all activities of the section;

(4)            keep the council duly informed and carry out its decisions;

(5)            present at each annual meeting of the TBA a report of the work of the section for

the year then ending;

(6)            call meetings of the council when, in his/her discretion, such are required or when

at least three council members request in writing that he/she do so; and

(7)            perform such further duties and have further powers as usually pertain to such officers as the chief executive or as may be designated by the council.

§5.4            Chair Elect

The chair elect shall be the automatic successor to the office of chair at the annual meeting of the section next following his/her election as the chair elect. The chair elect shall:

(1)            in consultation with the chair, arrange for the appointment to all committees of the chairs and members thereof who are to hold office during the next TBA year;

(2)            have the responsibility for the continuing legal education programs offered by or under the sponsorship of the section during his/her term as chair elect, including programs of the section offered at its meetings;

(3)            aid the chair in the performance of the chair’s responsibilities in such manner and to such extent as the chair may request; and

(4)            perform such further duties and have such further powers as may be designated by the council. In the event of the death, resignation or disability of the chair, the chair elect shall perform the duties of the chair for the remainder of the chair’s term of office or for the duration of the disability, whichever first ends.

§5.5            Secretary/Treasurer

The secretary/treasurer shall be the automatic successor to the office of chair elect at the annual meeting of the section next following his election as the secretary/treasurer. The secretary/treasurer shall:

(1)            be responsible for the publication of any newsletter published by the section;

(2)            consult with and assist all officers of the section as to the work of the section,

generally in such manner and to such extent as they may request;

(3)            be the custodian of all principal books and documents of the section;

(4)            arrange for the preservation of such of the records and reports of the section and

its committees as he deems advisable;

(5)            (may) permit the custody of other property of the section by the staff of the

section;

(6)            give or cause to be given due notice of, and shall keep the minutes for, all

meetings of the section and of the council, and a record of all action that may be

taken by consent without a meeting;

(7)            be responsible for the financial affairs of the section, and shall be accountable for all funds of the section;

(8)            recommend to the chair and the council financial policies for the section; and

(9)            perform such further duties and have such further powers as may be designated by the council. In the event of the death, resignation or disability of the chair elect, the secretary/treasurer shall perform the duties of the chair elect for the remainder of the chair elect’s term or for the duration of his disability, whichever first ends.

§5.6 Rotation of Officers Among Grand Divisions

It is the policy of the section as of 2004 that the offices of chair, chair elect and secretary/treasurer shall rotate among the three Grand Divisions of the state of Tennessee. This policy, however, shall not be binding on the section if active members in one or more of the Grand Divisions are unwilling or are unable to serve.

§6.1            Powers

The council shall:

Article VI
The Council

(1)            establish such policies of the section as it may determine which are not inconsistent with any policy of the TBA;

(2)            at the annual meetings, approve a budget of the section for the fiscal year commencing with the adjournment of that annual meeting;

(3)            authorize the expenditure of all monies of the section or appropriated for its use, but it shall not authorize commitments or contracts involving the payment of money during any fiscal year in an amount exceeding the monies of the section or appropriated for its use;

(4)            hear all reports of the officers and committees of the section;

(5)            hear, consider and act upon such propositions, resolutions and matters presented to it which pertain to the activities of the section; and

(6)            subject to the action of the members taken at meetings of the section, have general supervision of the affairs of the section. Between annual meetings of the section, the council may fill vacancies of its own membership.

§6.2            Composition

The council shall be composed of the following persons:

(a)            Officers

(b) the last retiring chair; and

(c)            three members elected to the council by the section membership for three-year terms (hereinafter “the elected members”). Past chairs of the section, but not the last retiring chair or the officers or the elected members of the council, shall be honorary members of the council. As such, they shall be given notice of, and have the right to attend, all meetings of the council and to participate in the discussions, but shall not have any voting rights at any such meeting.

§6.3            Term

(a) Original Elected Members. Those elected members of the council who are elected at the 2003 organizational meeting shall constitute the original elected members of the council (hereinafter “the original elected members”) and shall serve the following staggered terms: one elected member, shall reside or practice in the Western Grand Division of the state and shall serve until the adjournment of the 2004 annual meeting; one elected member, shall reside or practice in the Middle Grand Division of the state and shall serve until the adjournment of the 2005 annual meeting; and one elected member, shall reside or practice in the Eastern Grand Division of the state and shall serve until the adjournment of the 2006 annual meeting. In the event the original elected members are not elected at the 2003 annual meeting, they shall be appointed by a majority vote of the officers elected and shall serve as though elected at the annual meeting.

(b) Successor Elected Members. It is the policy of the section that those elected members elected for three-year terms after the 2003 annual meeting to the council shall, at the time of their election, reside or practice in that Grand Division of the state represented by the retiring elected members whom they replace.

(c) Vacancy. Members elected by the council to fill a vacancy created by the death, resignation or disability of an elected member shall serve only until the adjournment of the next annual meeting of the section, whereupon the section members shall elect a successor who shall serve only for the unexpired remainder of the term.

§6.4            Eligibility for Re-election

It is the policy of the section that no person then a member of the council continuously for three years or more shall be eligible for election as a member of the council, but this provision shall not bar election as an officer. Notwithstanding the foregoing, if after diligent search has been made, no active member seeks the office to be vacated by a serving member, the nominating committee may re-nominate a member to an addition term of office.

§6.5            Quorum

A quorum is required to conduct council business. A quorum exists when a majority of the council members in office are personally present at a council meeting.

§6.6            Controlling Vote

Once a quorum exists as provided by §6.5, action of the council shall be majority vote of those members present.

§6.7            Meetings and Notice

The council shall hold at least two regular meetings each year, at least one of which shall be at the time and place of the annual meeting of the association, to dispatch any necessary business. The chair may, and upon written request by at least three members of the council shall, call special meetings of the council between annual meetings. At least 15-days’ written notice of the time and place of the council shall be given by mail to each member of the council at his address as shown on the records of the TBA. Any notice required to be provided may be delivered electronically to an e-mail address provided by the member of by facsimile.

§6.8            Poll of Council

Notwithstanding the provisions of §6.5, a meeting personally attended by a majority of the council members in office is not essential for certain action by the council. The chair of the section may, and upon written request by three members of the council shall, submit or cause to be submitted to each of the members of the council, in writing, any proposition upon which the council may be authorized to act, and the members of the council may vote upon the proposition either by written ballot or by telephone vote, confirmed in writing over their respective signatures ~ to the secretary/treasurer, who shall record the proposition and votes in the matter. Action of the council under this section shall require the concurrence of a majority of the council in office and shall constitute the binding action of the council.

§6.9            Council Authority

Between meetings of the section, the council shall have full power to do and perform all acts and functions which the section itself might perform.

§6.10            No Compensation

No salary or compensation for services shall be paid to any officer, member of the council or member of any committee. No salary or compensation for service as an employee of the section or the TBA shall be paid any such person, except as may be specifically authorized by the Board of Governors.

§6.11            Executive Committee

The executive committee of the council shall consist of the immediate past chair, chair, chair elect and secretary/treasurer.

Between meetings of the council, this executive committee, shall have full power, and authority to do and perform all acts which the council itself might perform; provided, however, the executive committee shall not rescind any action taken by the council. The executive committee may meet by conference telephone or similar communications equipment.

A meeting of the executive committee may be called by the chair or by any two other members thereof, who in either case shall give at least 24-hours’ notice in person or by telephone of the time and place or manner of meeting to each other member of the committee. The executive committee may act at a meeting by a majority vote of the members of the committee in office, or by the written consent of the majority of the members of the committee after notice to all such members.

Article VII
Elections

§7.1            Elective Officers

Commencing with the 2003 annual meeting of the section, the membership shall elect:

(a) a secretary/treasurer to serve a term of one year (and thereafter the offices of chair elect and chair, respectively);

(b) the original members of the council to serve those terms provided for herein; and

(c) officers or council members to fill vacancies in any offices or upon the council as provided in Article VIII.

At subsequent meetings, the section shall elect officers for those positions which are

vacant.

§7.2            Chair

The chair elect shall automatically succeed to the office of chair and shall serve a term of one year. In the event the office of chair elect shall be vacant, then a chair shall be elected in the manner set forth in §7.5.

§7.3            Chair Elect

In the event of the death, resignation or disability of the chair elect, the secretary/treasurer shall not succeed to the office of chair elect but shall, in addition to performing the duties of secretary/treasurer, perform the duties of the chair elect as defined in §5.4.

§7.3            Secretary/Treasurer

Between annual meetings of the section, the council may fill a vacancy in the office of secretary/treasurer to serve until the next annual meeting of the section.

§7.4            Absenteeism

If any officer or member of the council shall fail to attend two successive meetings of the council, council shall at its next meeting declare the office vacant unless the council then finds,

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or has therefore found, that good cause existed for one or both of the absences.

§ 7.5 Re-election

It is the policy of the Section that no officer shall serve more than one successive term in each office. However, if after diligent search, the nominating committee is unable to identify any member who is willing to assume an office, the Section may re-elect a serving member to an office. The nominating committee shall call for and shall take nominations from the floor prior to any such re-election.

Article VIII
Representation of TBA Position

§8.1            Representation

No action by the section shall become effective as the action of the TBA unless and until it is approved by the Board of Governors of the TBA. Any resolution adopted or action taken by the section may, on request of the council or the section, be reported by the chair of the section to the Board of Governors of the TBA, or to the annual meeting of the association, for action thereon.

Article IX
Bylaws

§9.1            Approval

These bylaws shall become effective upon the approval of the majority of those present at the first organizational meeting of the section held on the 5th day of December, 2003, Nashville, Tennessee, as certified by the chair elected at that organizational meeting.

§9.2            Amendments

These bylaws may be amended at any annual meeting of the section by a majority vote of the members of the section present and voting, provided notice of the amendment has been sent to all section members at least 30 days prior to the annual meeting.

§9.3            Limitations

These bylaws, and any amendment duly adopted, shall be subject to the constitution and bylaws of the TBA.

Article X
Miscellaneous Provisions

§10.1            Fiscal Year

The fiscal year of the section shall be the same as that of the TBA.

§10.2 Disbursements

No invoice, statement or other evidence of expenditure on behalf of the section shall be forwarded to the secretary/treasurer of the section or the treasurer of the TBA for payment without having been approved by the chair of the section.