Timothy M. Vogel, Esq.
Matthew R. Dubois, Esq.
Elder Law Q&A
The Changing Face of Elder Law
Why do elders need special lawyers? Who are Elder Law Attorneys? What can they do? A basic article that is still a relivant introduction to these issues.
By T. Vogel
Published in the Maine Lawyers Review, March 22, 1996
Elder Law is gaining recognition in Maine and throughout the nation. Elder Law has grown from a few practitioners scattered around the country to become a recognized concentration of legal practice. In 1987 there were 35 founding members of the National Academy of Elder Law Attorneys. Now there are almost 3000 NAELA members who are active in all parts of the country. The Elder Law Section of the Maine State Bar Association has over 75 members.
Elder Law: focuses on the ever changing and special needs of older persons and their families.
Unlike virtually every other field of law, Elder Law focuses, not on a particular subject matter, procedure or forum, but on a particular type of client -- the older person and the involved family structure. As a result Elder Law covers a broad range of legal issues: estate planning, access to health care, agency decision making through Advance Directives, public benefits, financing nursing home and long term care expenses through private or public methods, guardianship and conservatorship, age discrimination, long term care insurance, housing, personal injury, retirement planning, end of life decisions, undue influence and exploitation, and heath care law.
As with other areas of the law, the focus is on providing answers for the client, but for the Elder Law attorney, the condition of the client impacts the shape and timing of the answers. Some clients may be suffering from a disability that is just beginning to be noticed, while other clients may be under the stress of significantly deteriorating physical and mental disabilities. Other clients are interested in legal and financial planning with the prospects of potential disabilities in mind.
The disability, commonly Alzheimer's Disease or other dementia, may be the focus of the legal representation. The entire family may be asking the lawyer for advice and guidance. The task of identifying the specific identity of the client may raise difficult ethical questions. The client's condition may make it more difficult to explain legal concepts to the client and to receive direction from the client.
For years many lawyers have had a significant number of older clients. Many lawyers have grown older with their clients from the early Wills, home purchases, business transactions, domestic problems, to estate planning and finally probate of decedent's estates. Many estate planners have focused on middle age and older clients.
However, Elder Law is a response to contemporary American demographics. We are experiencing significantly higher life expectancies. The largest rate of growth of any segment of the population is for 85 and older. The Baby Boomers are passing 50 at a time when their parents, and in some cases, grandparents are still alive.
Older persons have increased expectations as to their lifestyles. Many persons now expect to, and do in fact, live to enjoy their 'golden years' in vigorous lives with continuing influence over political and cultural areas. Some elderly individuals and their families expect that they will be sick or disabled for an extended period at the end of their life. However there are many examples of productive, competent and vital persons in their 80's and 90's, members of the 'old old' population who stand out in any collection of individuals. Disease and dementia are not essential components of aging.
Who are Elder Law Attorneys?
Some attorneys focus a significant portion of their practice on Elder Law. Many more attorneys combine Elder Law with more general practices. Some large firms are encouraging associates to learn Elder Law. A significant number of attorneys discover they need to learn about Elder Law because older clients, as well as the children of older clients, persist in asking questions whose answers involve Elder Law.
Some Elder Law attorneys come from a 'high tech' background of Medicaid, Medicare, Social Security, SSI, HBCA, MED94 and the elder network programs. Other lawyers come to Elder Law as they refocus their careers from other legal areas. Law graduates and new lawyers see a future in Elder Law. However, they face several hurdles. Few law schools include Elder Law in their curriculum. The breadth of Elder Law's scope requires the new lawyer to learn many diverse areas of law quickly. Many established lawyers and estate planners learn Elder Law to better serve their existing clients.
There are an increasing number of quality commercial publications available for the Elder Law attorney. A selection of these will be reviewed in future columns. Solid training programs in Elder Law are offered by the National Academy of Elder Law Attorneys, the Continuing Legal Education programs of the Maine State Bar Association, and several private CLE seminar companies.
You should note that NAELA's Elder Law Symposium: Elder Law in a Changing Environment will be held from this May 16 through 18 in Cambridge, Massachusetts. More about this first national NAELA meeting to be held in New England in the next column.
The Changing Scope of Elder Law
Many older persons have focused in recent years on the growing costs of long term care -- nursing home, assisted living and home health care. Nursing home costs have risen to current levels of $55,000 to $60,000 per year. It is no wonder that older persons asked their lawyers how they could afford such costs without bankrupting themselves and their families. What these Initially these clients wanted was called 'Medicaid planning'. Many early Elder Law attorneys were in rooted in their knowledge of how Medicaid, Medicare and other state and federal programs could help clients with nursing home and home health care expenses.
However in the mid 90's the breadth of Elder Law has expanded because of increasing demographics, and contemporary political, economic and governmental changes. Nursing home planning is no longer just Medicaid planning. It has evolved into long term care planning with consideration of how clients can achieve to quality long term care through long term care insurance, investments, home equity and family assistance.
With the development of Elder Law has come the realization that there are a variety of legal issues faced by the older clients, who age may vary from 'old old' to 'young old'. These same issues also are frequently experienced by younger disabled clients. The focus of Elder Law remains on making answers for the older client, but the focus of the answers is changing towards positioning the client to have access to quality options emphasizing client choice, input, control and flexibility of planning.
It is becoming essential for the Elder Law attorney to have a solid referral network of professionals in various fields who understand how issues impact older persons and their families. These professionals include, at least: accountants, investment advisors, long term care insurance professionals, elder care managers, book keepers, and real estate agents.
Elder Law is about making answers for older persons and their families across a range of issues. To achieve a diverse selection of legal, financial, long term care, and health care for clients, many issues require the attention of the Elder Law attorney. Many of these issues and answers will be the subjects of future columns, including: Maine's new Uniform Health Care Decisions Act and end of life medical treatment; Changes in the legal standards for nursing home care and resident's rights with the possible elimination of OBRA87; Older persons and the ADA; Financial exploitation and undue influence of older persons; Conflict in the dysfunctional family of the older client; Standards by which to determine a client's legal capacity to execute documents; Medicaid estate recovery; Elder abuse; Advance Directives; Grandparent's rights; When is long term care insurance right for your clients, and maybe yourself.
Vogel & Dubois
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