|
Introduction
How often are we confronted with issues related to aging? The aging of the American population impacts all of society. Whether we are seeing a TV drama dealing with
physician-assisted suicide, listening to the Ronald Reagan family discussing their ability to deal with Alzheimer's, watching Bill Moyers' outstanding recent PBS series on
end-of-life, "On Our Own Terms," reading a newspaper article about an abused elder, dealing with a relative's announcement of a terminal illness, answering six
telemarketing calls in twenty minutes while visiting your mother's home, or a having a valued employee quit to care for an ill parent, we are dealing with aging issues at an
ever accelerating pace.
Americans 65 and older are the fastest growing segment of the population.1 It stands to reason, we will all be increasingly affected by the unique issues relating to the elderly, on both a personal and professional level. Attorneys are no exception. We must be able to recognize the problems which our older clients are likely to have and be aware of resources available to address these problems.
To aid us in the challenge, this special issue of the Utah Bar Journal is devoted to elder law issues. Obviously, since we cannot address all topics in this short amount of
space, we tried to include articles with useful resources, on some of the most prevalent and difficult issues.
Lawyers have always dealt with older clients, but the term "elder law" is relatively new. This article will attempt to give a brief overview of elder law, reasons for
its growth, and related Bar activities.
Overview of Elder Law
Definition of Elder Law - Elder law describes a body of laws that focuses on a population group, older persons, and the variety of legal
problems faced by individuals within that group. Rather than being defined by technical legal distinctions, elder law is defined by the client to be served.2 In other words, the lawyer who practices elder law may handle a wide range of issues but has a specific type of client, seniors, and works with a variety of legal tools and techniques to meet the goals and objectives of the older client.3
Lifetime Planning - Increased longevity and the possibility of long term illness or incapacity has forced clients and their families to seek new ways to plan for old
age. It is a variation and expansion on traditional estate planning. Life planning has clients take the necessary steps to establish systems to manage their financial affairs
and make health care decisions in event of illness or incapacity, and consider ways to pay for chronic long-term health care.4 This approach includes areas of law such as public benefits advice (Medicaid, Medicare, social security, Veteran's benefits); legal capacity and commitment matters; employment, pension, and retirement advice; insurance advice (health, life, long-term disability); housing and mortgage alternatives; and residents rights (nursing home, assisted living facilities).
Unique Challenges -
Elder law attorneys may be immediately confronted with ethical issues when the older client arrives at the law office with a family member. Although the family member may have the best interest of the older relative in mind, there will likely be conflicts. The family member may be exacerbating negative conditions unwittingly, or even contributing to a potentially abusive situation. The elder law attorney must have a heightened awareness of potential problems arising with mental incapacity, elder abuse, and fraud.5
In addition, working with older clients involves being present in an environment where there may be intense grief. Clients are anticipating their own death, and the attorney
may be dealing with families with a member who is demented or nearing life's end.6 Even in domestic matters, such as remarriage, unique issues arise, such as avoiding a new spouse's medical obligations or dealing with adult children.7
New Ancillary Disciplines -
The care of the older client is not something that can be ignored. The elder law attorney should be aware of young and growing disciplines, such as geriatric care management, which have evolved in response to the increased aging of our population. Geriatric care managers are professionals from various backgrounds, such as social work or nursing, who help families learn how to cope with and care for dependent family members.8
Reasons for Growth in Elder Law
U.S. Demographics - The older population (persons 65 years or older) in the United States numbered 34.5 million in 1999.9 They represented 12.7% of the population, about one in every eight Americans.10 The number of older Americans increased by 3.3 million or 10.6% since 1990, compared to an increase of 9.1% for the under-65 population.11
The older population itself is getting older. In 1999, the 65-74 age group (18.2 million) was eight times larger than in 1900, but the 75-84 group (12.1 million) was 16 times
larger, and the 85+ group (4.2 million) was 34 times larger.12 This segment of the population referred to as the very old (those over the age of eighty-five), is larger and living much longer than at any point in history.13
By 2030, there will be about 70 million older persons, more than twice the number in 1999.14 People 65+ will represent almost 13% of the population in the year 2000, a figure expected to grow to be 20% of the population by 2030.15
Utah Demographics - If you think those statistics don't apply in Utah, think again. The older component of Utah's population has grown significantly in the last 10
years. In 1999, Utah's 65+ population was 185,603.16 That was 8.7% of Utah's total population, and less than the 12.7% national average.17 But Utah's increase of 65+ population from 1990 to 1999 was 23.1%, as opposed to the national average of 10.6%.18
This Utah growth rate will be even faster over the next 20-30 years. Looking at Utah residents aged 65 and older, it is estimated that there will be 341,593 in 2020 and 482,542
in 2030.19 By 2030, there will be 43,566 Utahns over 85, an increase of 223% over 1990.20 Utahns aged 60 years and over are estimated to comprise 17.14% of the state's population in 2030.21
Increased Caregiving Burdens and Medical Costs -
The miracles of modern medicine have created a situation where older Americans suffer from serious chronic illness and incapacity, which can create independence and costly long-term care. Limitations on activities because of chronic conditions increase with age. In 1997, among those 65-74 years old, 30.0% reported a limitation caused by a chronic condition.22 In contrast, over half (50.2%) of those 75 years and over reported they were limited by a chronic condition.23
Older Americans may need in-home assistance with daily living, or they may need the type of assistance available in alternative day care or other institutions. In 1994-95 more
than half of the older population (52.5%) reported having at least one disability, 21% reported difficulties with instrumental activities of daily living (IADLs).24 IADLs include preparing meals, shopping, managing money, using the telephone, doing housework, and taking medication.25 Many older Americans are providing assistance to each other. Slightly more than one-fourth (26%) of Americans aged sixty-five and older provided assistance to a sick or disabled relative, friend, or neighbor.26 This raises legal questions regarding the rights of care recipients, the responsibilities and capabilities of care providers and the financing and monitoring of this health care.
In 1965, the year Medicare and Medicaid were enacted, national health expenditures were $41.6 billion, representing 5.3% of the Gross Domestic Product (GDP).27 In 1991 that had risen to 13.2% of GDP, or $751.8 billion.28 In 1992, health care costs rose to $800.2 billion.29 In twenty-seven years, the cost of health care increased 1,900%.30 This has resulted in an ever expanding maze of bureaucratic rules and regulations to be interpreted, in order to understand how healthcare is to be financed. This makes it increasingly difficult for seniors and their families to attain and maintain quality health care.
Bar Activities
Nationally -
A major step in attorney participation in elder law on the national level began in 1978 when the American Bar Association formed the Commission on Legal Problems of the Elderly (CLPE) . The Commission is dedicated to examining the law-related concerns of older persons. It has sought to improve legal services for the elderly, particularly through involvement of the private bar, and has explored issues such as long-term care, surrogate decision-making, housing, social security, and elder abuse.31 In 1985 the American Association of Law Schools (AALS) formed the AALS Aging and the Law Section. There is an increasing number of elder law courses in law schools and state bar associations with elder law sections or committees.
The CLPE, in partnership with the Albert and Elaine Borchard Foundation Center on Law and Aging, sponsors The Partnerships in Law and Aging Program (PLAP). They award
mini-grants to a variety of organizations developing collaborative projects focused on serving the legal needs of the elderly. Utah has been the recipient of two of these
grants, the most recent being an award in 2000 to the Multi-Cultural Legal Center of Salt Lake City to develop a program that coordinates outreach efforts in cases of elder
abuse, neglect, and exploitation.32
The National Academy of Elder Law Attorneys, Inc. (NAELA) is a non-profit association that was founded in 1987. It assists lawyers, bar organizations and others who work with
older clients and their families and provides information, education, and networking services.33 The National Academy of Elder Law Foundation (NAELF), created by the NAELA, offers elder law certification.
Utah Bar and Legislative Activities - In 1993, the Senior Lawyer Volunteer Project (SLVP) was launched. The SLVP utilizes volunteer lawyers, mostly retired, to provide free
legal help to financially eligible clients, regardless of age, in the area of simple estate planning and end-of-life issues. These volunteer lawyers, along with the project's
staff, meet with clients in the Salt Lake office of Utah Legal Services or in the residences of homebound clients statewide. Clients interested in receiving services should
call Utah Legal Services at (801) 328-8891.
In 1999, the Utah Legislature created the Office of Public Guardian (OPG).34 This is the state agency responsible for public guardianship and conservatorship services in Utah. The OPG is to serve as a guardian, conservator, or both, to incapacitated persons who have no one else to serve as their guardians or conservators. Because of limited resources, the OPG will give priority to persons who are in life-threatening situations, or who are experiencing abuse, neglect, self-neglect, or exploitation. The OPG telephone number is (801) 538-8255.
The Utah State Bar Needs of the Elderly Committee (NOE) has been an active committee for over a decade. The Committee has focused on education and conducted CLE sessions in
1998 and 1999 on guardianship and conservatorship. Their two CLE sessions in 2000 on end-of-life issues helped expand the dialog between physicians and attorneys.
For several years the NOE has run the Volunteer Lawyers Senior Legal Clinics. The purpose of this program is to help seniors evaluate whether they need legal assistance and
help them access legal services and other appropriate resources to solve their problems. Volunteer lawyers meet one-on-one with clients for 20 minute consultations over a
two-hour period. The goal is not to provide in-depth legal representation, but to determine whether the individual has a legal problem and then to identify potential legal
services to address the problem. The volunteers are currently visiting approximately 14 senior centers every month, and that number is growing. Volunteers need not have
expertise in elder law. If you wish to volunteer, please contact, Vicki Firestack at (801) 355-3431 Ext.338. It is two hours of pro bono service that you will truly enjoy. The
NOE website is http://www.utahbar.org/sites/noecomm/html/.
Conclusion
In 1998, persons reaching age 65 had an average life expectancy of an additional 17.8 years.35 Hopefully, that 17.8 years can be spent as productively as possible. Gene D. Cohen, M.D.,Ph.D., in his book, The Creative Age: Awakening Human Potential in the Second Half of Life, challenges us to create new metaphors for aging, "if we view our aging adults as a national resource of talent and creativity, then the challenge for our society is to cultivate that resource and tap it for the common good. In terms of public policy and in many other ways on the whole, society has not yet risen to a sense of challenge or responsibility to maximize the benefits of this enormous and growing national resource." As attorneys, we can meet that challenge by helping our clients make choices that will contribute significantly to their peace of mind, autonomy, and financial security in their later years.
Footnotes
1 Administration on Aging, Profile of Older Americans: 2000, http://www.aoa.gov/aoa/STATS/profile/
2 This is the description of elder law given by the National Academy of Elder Law Attorneys, Inc., http://www.naela.org
3 Id.
4 Peter Strauss, Et al., Aging and the Law, CCH, Inc., ¦115 (1999).
5 For a more complete and extensive discussion of the older client, see William E. Adams
and Rebecca C. Morgan, Representing The Client Who Is Older In The Law Office And In The Courtroom, 2 Elder L.J. 1-38 (1994).
6 Clifton B. Kruse, Jr., The Elder Law Attorney: Working with Grief, 3 Elder L.J.99-109 (1995).
7 Joanna Lyn Grama, The "New" Newlyweds: Marriage
Among the Elderly, Suggestions To The Elder Law Practitioner, 7 Elder L.J. 379 - 407 (1999).
8 For an example of how private care managers work, see Margy M.
Campbell, Private Care Managers: Assisting the Newly Appointed Guardian/Conservator 2 Intermountain Aging Review 2 (Fall/Winter 2000-2001) 20-21.
9 Administration on Aging, Profile of Older Americans: 2000, http://www.aoa.gov/aoa/STATS/profile/
10 Id.
11 Id.
12 Id.
13 Id.
14 Id.
15 Id.
16 Id.
17 Id.
18 Id.
19
State of Utah Long Term Economic and Demographic Project, Governor's Office of Planning and Budget, Demographic and Economic Analysis Section UPED Model System, http://www.qgetstate.ut.us/projections/demographic/DemoFrame.htm
20 Id.
21 Id.
22 Administration on Aging, Profile of Older Americans: 2000, http://www.aoa.gov/aoa/STATS/profile/
23 Id.
24 Id.
25 Id.
26 Gene D. Cohen, M.D., PH.D., The Creative Age: Awakening Human Potential in the Second Half Of Life, Avon Books, Inc. 278 (2000).
27 Peter Strauss Et al., Aging and the Law, CCH, Inc. ¦101 (1999).
28 Id.
29 Id.
30 Id.
31 See the CLPE website at http://www.abanet.org/elderly/
32 20 BIFOCAL 4 (Winter 99-00)12.
33 See the NAELA website at http://www.naela.org
34 Utah Code Ann. ¤62A-14-101 to ¤62A-14-112 (2000).
35 Administration on Aging, Profile of Older Americans: 2000, http://www.aoa.gov/aoa/STATS/profile/
|
