Fighting for older Americans' rights. A growing number of lawyers are taking on legal problems of the elderly
Boston — The maturing of America has spawned a new and growing legal specialty: It is called ``elder law.'' Elder law attorneys work on untangling the thicket of legal, economic, even ethical challenges that confront older Americans. Among these challenges:
Access to benefits. Cost-conscious federal officials have stiffened eligibility requirements to the point that sometimes even those genuinely entitled to benefits have difficulty getting them.
Ethical dilemmas posed by advances in medical technology. Extraordinary means now are available to keep medical patients alive. Should one avail oneself of such means? What steps can be taken to ensure one's wishes are followed?
The enormous cost of extended health care. A nursing home can cost $40,000 a year, far beyond the means of all but the very rich or the well-insured. Many middle-class patients are having to impoverish themselves in order to qualify for medicaid benefits. ``The costs of living a longer life are much higher,'' says John Regan, a professor of health care law at Hofstra University.
The growth in elder law is partly simple demographics, says Wayne Morris, head of the American Association of Retired Persons' legal counsel for the elderly department. With the aging of the ``baby boomers'' and the fact that Americans are living longer, the US Census Bureau predicts that America's population age 65 and over will grow from the current 12.1 percent to 21 percent over the next 30 years.
Elder law's growth from ``a couple handfuls'' of specialists five years ago to 82 lawyers from 25 states in their own newly formed association is also the result of a growing federal deficit and the emergence of an improved law ``product,'' Mr. Morris continues.
Five years ago, medicaid eligibility laws changed. It used to be a relatively simple matter to shield one's assets when faced with the prospect of having to ``spend down'' to qualify for medicaid. Today such sheltering requires a lawyer's help.
Medicaid is ``where the middle class meets the welfare system,'' says Scott Severns, who practices elder law in Indianapolis. In his state, all but 2 percent of the residents in nursing homes are paid for by medicaid or by the patients themselves - and the latter usually are quickly becoming eligible for medicaid.
For many, ``you have to go into poverty to afford long-term care,'' Mr. Severns explains. This ``spending down'' to qualify for medicaid is an unsatisfactory solution, many observers note. Long-term care for the middle class will be ``the foremost issue in the domestic arena'' in 1989 says Burton Fretz, director of the National Senior Citizens Law Center.
Even those needing other, nonmedical, federal benefits have found them harder to obtain and keep. The prospect of further belt-tightening in Washington means ``the amount of controversy is going to increase,'' says Nancy Coleman, director of the American Bar Association's Commission on Legal Problems of the Elderly. Older people ``will have to fight harder.'' The appeals process does not lie with the courts, but knowledgeable lawyers can help.
Conventional powers of attorney expire when the person making such a grant becomes incompetent - the very time when such a function is most needed, Morris notes. The concept of ``a durable power of attorney'' that survives incompetency emerged about 10 years ago.
This legal mechanism is now recognized in all 50 states. In the absence of a durable power of attorney, a court appoints a guardian or conservator, a time-consuming process.
The purpose of the new power of attorney arrangement is two-fold, says Severns.
If a person becomes incapacitated, a durable power of attorney can ensure that the person's values and life style are carried forth. It also helps family members cope with the changing situation because they will have discussed it beforehand.
The Tucson-based American Academy of Elder Law Attorneys, which met as a body for the first time this fall, is an attempt to set minimum qualifications, educate members, and establish a referral network.
Many of those in elder law found their way to this specialty through work in legal-aid services.
The American Association of Retired Persons, headquartered in Washington, has set up telephone hot lines for senior citizens with legal questions in Pennsylvania and the District of Columbia, and is in the process of setting up similar services in Florida and Texas. AARP also has plans for hot lines in California, Illinois, Massachusetts, Michigan, New York, and Ohio.