Spring 2008

Elder Law 101
By Karen C. Buck, Esq
Aging Well
Vol. 1 No. 2

As attorneys who represent and advocate for older adults exclusively, we are often contacted by professionals who seek a presentation on elder law. What does this term mean? What does it encompass? The answers are as diverse as those who practice it.

At the SeniorLAW Center in Philadelphia, where we have been protecting the legal rights of older adults for almost 30 years, our view is nonrestrictive. However, we prefer the term law and aging. The legal needs of older adults are extraordinarily diverse and wide ranging, affecting critical aspects of their lives, including health, family, economic security, safety, and quality. 

Elder law, of course, includes the traditional issues of healthcare and long-term care, advance and estate planning, decision making, guardianship, Medicare, Medicaid, Social Security, and other public benefits for older adults. But it also includes some surprising paradoxes such as financial security and exploitation, family caregiving and violence, housing choices and aging in place, and even the risk of homelessness. Grandparents’ rights, grandparents raising grandchildren, consumer protection, fraud, predatory lending, employment, discrimination, diversity, and addressing cultural and linguistic issues of immigrant and minority elders further cloud the legal landscape of older adults.

Law and aging practice also includes attention to new, innovative models of delivering legal service and information—beyond the traditional private attorney-client model—including elder legal help lines, electronic newsletters, preventive education, and in-home, as well as community-based, legal services.  

To serve older adults well, it’s important to look at their lives holistically in the context of today’s complex world, extending vision beyond conventional notions.

Far-Reaching Concerns
The National Elder Law Foundation, which provides voluntary certification for elder law attorneys, defines elder law traditionally, but, importantly, also acknowledges that practitioners must be capable of recognizing concerns that arise during counseling and representation of older adults, including abuse, neglect, exploitation, insurance, housing, long-term care, employment, and retirement. It also expects certified elder law attorneys to be familiar with “professional and nonlegal resources and services publicly and privately available to meet the needs of the older person.”

Because the challenges facing elders deal not only with death but also with the complexities of modern life, the holistic model of elder law is critical today.

Look at the law as a partner in your work, as an empowering tool for elders that can help preserve autonomy, dignity, and independence, and as a forum that sparks questions and thoughtful debate. Some of the pressing legal issues in the field of elder law today include the following:

Advance Planning and Decision Making
What is the difference between a healthcare power of attorney and a living will? New combined healthcare forms in some states attempt to include both. Has this simplified the decision-making process or made it more confusing? Should a surrogate be identified in an advanced healthcare directive—or does this defeat the purpose? Can a document executed in one state be legally binding in another? What level of capacity is needed to execute the various planning documents, and who should make that assessment?

Housing
Many elder advocates identify housing as perhaps the No. 1 legal issue for older adults. With the emphasis on community-based services and aging in place, we look to the place that an older adult calls home. How can elders age in place if their homes are uninhabitable or unsafe? The subject of housing covers elder homeowners and tenants, senior housing, housing discrimination, and the impact of disabilities and mental health impairment, reverse mortgages, predatory lending, fraudulent deeds, tangled title, and effects on long-term care eligibility following the transfer of an older adult’s home.

Capacity, Guardianship, Hospice, and End-of-Life Issues
As advocates for elders, we seek autonomy, empowerment, and independence for our clients for as long as possible. Well-drafted advance-planning documents fulfill that goal when the client is no longer able to care or speak for himself or herself. A carefully drafted power of attorney is the best safeguard against guardianship, which can be emotional and expensive, and against stressful litigation, especially when determination of an older adult’s capacity leads to dispute. Similarly, the legal issues related to hospice care and other end-of-life environments have rarely been examined. A new project to be launched at the SeniorLAW Center will provide an attorney as a member of the hospice team in order to assess and address the wide-ranging end-of-life legal needs.

Grandparents’ Rights and Kinship Care
Some 2.4 million grandparents in the United States are primarily responsible for the basic needs of grandchildren living in their homes. Increasingly, grandparents are responsible for meeting the basic needs of their grandchildren when birth parents cannot due to death, military service, incarceration, AIDS, addiction, illness, death, or other family or community crisis. More often than not, these are long-term “kinship care” arrangements—almost 40% have cared for their grandchildren for five years or more. The issue of kinship care spans the economic spectrum: One in 10 grandparents has been the primary support for a grandchild at some point in his or her life and this number is expected to increase. What are grandparents’ rights as caregivers? Can they consent to medical care, enroll children in school, or make decisions about their religious upbringing?

Consumer Protection
Older adults are targeted in shocking numbers for financial exploitation, securities fraud, identity theft, predatory lending, egregiously shoddy demolition and repair work by contractors, and even the attempted theft of their homes through fraudulent dealings by neighbors or total strangers. They are frequently asked to co-sign loans, open joint bank accounts, or participate in telemarketing schemes and lotteries. For many older adults living on a limited or fixed income, these practices can be devastating.

Elder Abuse and Domestic Violence
Elder abuse is not confined to nursing homes. The incidence of elder abuse and neglect is increasing, not only in long-term care facilities but also in older adults’ homes by adult children, grandchildren, spouses, and others. Such abuse sometimes results from caregiver stress, illegal drug use, unemployment, or economic crisis. Older victims of domestic violence need and deserve special attention and protection under the law.

Employment and Retirement
Older adults are choosing to extend their working careers. The Age Discrimination in Employment Act of 1967 uses the age of 40 as its threshold in examining age discrimination. What is its impact in the modern employment environment, and how can mandatory retirement rules be applied? Pensions and retirement benefits, for those lucky enough to have them, have enormous impact on the economic security of older adults. What protections does the law provide for plan participants, spouses, and survivors? How does one track down a lost pension, and what are the key provisions of the Employee Retirement Income Security Act of 1974 that everyone should know?

Long-Term Care, Resources, and Filial Responsibility
Should adult children be legally responsible for the costs of long-term care for their aging parents? More than 25 states have filial responsibility statues that say they may be. With tightened rules on Medicaid eligibility, there is a possibility that states will begin to enforce these legislated responsibilities that are often overlooked.

These are some of the many critical legal issues encompassed by elder law or law and aging. As those of us who work with older adults recognize, aging is a universal truth. We should embrace it, for as we live, we age. And we anticipate that justice and the protection of the law will be there for us when we face elder legal issues. 

— Karen C. Buck, Esq, is the executive director of the SeniorLAW Center in Philadelphia, an independent nonprofit organization celebrating its 30th year of providing legal services, education, and advocacy for elders.