What is elder law?

Elder law is the practice of law relevant to the legal issues faced by persons 65 and older. Currently, the United States has a large population of older persons, whose numbers are predicted to increase as the baby boom population approaches retirement age.

Who is covered by elder law?

The term elder law is a collective title for the multiple legal issues that impact on the elderly. Because age 65 denotes traditional retirement age and the age at which Social Security retirement benefits usually begin, the term elder law is commonly interpreted to apply to this age group.

On a practical level, however, precise chronological age is not important because elder law practice is more appropriately defined by the wide range of activities performed by the attorney. Thus, elder law may apply to persons younger than age 65 as well.

What are elder law issues?

In the past, attorneys serving the legal needs of the elderly traditionally focused on estate planning. They primarily dealt with the financial needs of the healthy retiree and focused on the distribution of estates at death thereby maximizing the amount of the estate to be distributed.

As America’s older population has grown and as health care expenditures for the elderly and disabled have increased dramatically, the field of elder law has rapidly evolved to address the host of problems created by these changes. The goal of elder law is to shift and expand the emphasis from the limited focus of estate planning and the financial issues surrounding death to include life planning issues.

Life Planning

Life planning is about individuals and their families working with professional legal advisors to design strategies focusing on two major areas:

Health and personal care planning
Income and asset protection and preservation
The legal issues involved in planning for the needs of the elderly may therefore require decision-making across a wide range of problems, ranging from issues of basic housing needs to health care to various financial planning management needs.

Health Care Needs

Older individuals face a higher incidence of legal issues in relation to health care needs than the younger population. In addition to the physical decline associated with aging, the elderly suffer more chronic illness than younger individuals. As a result, the elderly require greater custodial and long-term care. Life planning emphasizes advance preparation to determine the individual’s concerns and needs in the event of disability or incapacity.

Guardianship & Conservatorship

Traditionally, state laws allow for the appointment of a surrogate decision maker for an incapacitated or disabled person who has lost the physical or mental ability to make or communicate the informed decisions needed to manage their affairs. A court hearing, called a guardianship proceeding, is held to:

Determine the existence and extent of an individual’s incapacity
Appoint a guardian to act on behalf of the incapacitated individual, occurs in a hearing in court
Guardianship proceedings are expensive and time-consuming. While the powers of the guardian may vary from state to state and may be specified by the court’s order, powers granted to the guardian to manage the incapacitated individual’s personal or financial affairs might be broad.

The loss of the elderly individual’s autonomy may be preserved to some extent through conservatorship or limited guardianship, which limits the exercise of broad authority over the affairs of the incapacitated individual. The conservatorship process is expensive and time-consuming.

Durable Powers of Attorney & Living Wills

Advance directives for health care are written statements of a competent person’s medical care preferences in the event of future incapacity. Living wills and durable powers of attorney for health care are types of advance directives allowing individuals to make their wishes known concerning their future health care, should they lose capacity because of illness or progressive problems associated with aging. Most states have enacted laws allowing individuals to make advance directives.

Financing long-term care of the elderly

Financing long-term care is one of many financial issues faced by the elderly. Currently, in some areas, long-term care can cost as much as $30,000 to $100,000 a year.

Medicare

Medicare, the nation’s public health care system for the elderly, does not cover the cost of long-term custodial care. Furthermore, Medicare does not provide for most nursing home and home health care services.

Medicaid

Medicaid, on the other hand, is the nation’s primary health insurance program for low-income families and finances acute and long-term care for low-income elderly and disabled individuals. For those who cannot afford to pay home health or nursing home costs, Medicaid is the major source of payment for long-term care services. However, before Medicaid will pay for services, an elderly person whose assets exceed Medicaid income and asset limitations must “spend down,” or deplete, almost all personal assets to satisfy eligibility requirements.

Medicaid benefit rules governing exemptions, spousal protections, and asset transfers are complex. Planning for Medicaid eligibility requires the expertise of a professional who is knowledgeable about Medicaid laws.
In addition to Medicaid benefits, planning for long-term care involves consideration of other financing options that may be more appropriate in some cases. These options include long-term care insurance, reverse mortgages, and adult living communities.

Furthermore, the tax implications of any of the planning strategies selected by the elderly client must be evaluated.

Elder Abuse

Unfortunately, the prevalence of elder abuse in American society has increased as the elderly population has grown. An estimated 2 million elderly citizens are affected by elder abuse yearly.

While the legal definition of elder abuse varies from state to state, the United States House Select Committee on Aging has defined elder abuse as the physical, sexual, psychological, or financial abuse of the elderly, or otherwise causing the deprivation of their human rights by their relatives or caretakers.

Reporting Abuse

Elder abuse may occur within the family home or in institutional settings. Most states have enacted mandatory reporting laws requiring physicians and other health care workers, caregivers, professionals, as well as individuals who know of or suspect abuse, to report elder abuse to social service or law enforcement agencies. Many states grant some level of legal immunity for reporting elder abuse. In addition, all states have enacted adult protective service law providing preventive, supportive, and surrogate services to help the elderly maintain independent living skills and avoid abuse and exploitation.

Nursing Homes

The federal Nursing Home Care Act establishes national standards of care applicable to nursing homes and specifies the rights of nursing home residents.

Private litigation may be an available course of action for the victim of elder abuse based on negligence, breach of contract, or violation of state laws.

Elder law issues in employment

Elder law is not limited to planning for the health care needs of elderly persons. The elderly may also have concerns relating to work and retirement issues.

Discrimination

Many seniors work beyond traditional retirement age. Currently, an estimated 14 million people over the age of 55 are members of the work force. Some elderly persons may believe that they have been discriminated against in their employment based on age or disability. Federal laws prohibit discrimination based on age or disability and older individuals may require legal assistance in determining whether the laws apply to their particular situation.

Resolving Benefits Issues

Many elderly may require assistance in understanding or resolving problems concerning their retirement benefits under employer-provided pension plans, an area that is also subject to federal regulation.

Social Security

Elder law also encompasses issues concerning Social Security benefits. The Social Security system not only provides benefits to retired workers, but also provides:

Retirement benefits for spouses of workers
Disability benefits to disabled workers and their dependents
Survivor benefits to spouses and children of deceased workers
Supplemental Security Income (SSI), a need-based program for low-income individuals age 65 years and over, and the blind or disabled of any age.

Estate planning for the elderly

While elder law has expanded to address the multiple life planning issues facing the elderly, traditional estate planning remains a central part of elder law practice.

The drafting of wills and trusts are important property management concerns of the elderly. Today, elder lawemphasizes advance planning within the context of property management as well.

Durable Power of Attorney

The durable power of attorney is a valuable tool in planning for potential future disability or incapacity. The power of attorney allows an individual (the principal) to authorize another (the agent) to act on their behalf to manage the principal’s financial and property-related affairs. The durable power of attorney remains effective after the onset of a disability. In many states, the durable power of attorney can be designed to take affect only upon the occurrence of incapacity.