GPSOLO July - August 2008
The Rise of the Elderly
Most people are aware of the enormous demographic rise of the elderly as a percent of the U.S. population during the last half-century or so. Most also understand that this trend will continue over the next few decades with the aging of the baby boomer generation. But when looking at the changes related to the elderly that the American legal profession has experienced during the last two decades, it becomes clear that the elderly have “risen” in more than sheer demographics. Although the increase in their numbers and in their percentage of the population has been significant, their circumstances have changed in two other ways that also have been historic: The elderly are now increasingly affluent, and thanks to advances in modern medicine, they can be sustained in ever more difficult physical conditions, far beyond what used to be possible.
It is not surprising that affluence and modern medicine have been the central wellsprings of the elderly-related changes experienced in recent years by the American legal profession. These changes have centered mainly on matters of health care and income and asset protection.
A Tale of Two Rises
Throughout most of human history and for the great majority of people, old age has meant straightened financial circumstances if not actual destitution. In fact, it was this reality that was cited in connection with the creation of the Social Security system. That system itself, particularly with the introduction of Medicare and Medicaid in the 1960s, would help bring about the elderly’s rise in circumstances.
In 1967 a portentous case appeared in the California appellate court. In re Christiansen (248 Cal. App. 2d 398, Dist. Ct. App., 1967) approved the request of a guardian to gift away some of his ward’s assets so as to lessen the ward’s estate tax exposure. This was something that no court had ever really allowed before. The decision might be seen as the herald of a new age in a number of ways. The modern elderly were now far more affluent than ever before, and they very much wanted to control and protect their assets and then ultimately pass them on as they wished. They did not want to see their assets go to the government in taxes. And, when Congress changed the Medicaid statute in 1988 to increase the amount of assets and income that the spouse of a nursing home resident could keep, the elderly did not want to see their assets go to nursing homes, either.
In 1967 this emerging trend was new and indistinct. But then in 1976, the New Jersey Supreme Court decided the case of In Re Quinlan (355 A.2d 647 (1976)), which triggered a revolution of sorts. It is difficult to convey to anyone who didn’t live through it the sense of national shock that accompanied the case. The litigation concerned a young woman named Karen Ann Quinlan, who was in a persistent vegetative state and was being kept alive solely by means of artificial life-sustaining technology. Her parents and guardian had petitioned to have that technology withdrawn. Ultimately, the New Jersey Supreme Court agreed. But while young Ms. Quinlan was far from being the first person to be so kept alive, for some reason the case seemed to strike an enormous chord in the nation. For many, it seemed as if they had not previously realized that modern medicine could indefinitely sustain life in such extreme circumstances. And there was the jarring fact that the legal system simply provided no good way for people to have their own advance say in the matter, either. Worse yet, the legal system would also perhaps deny the right of an appointed guardian or conservator to withdraw artificial life-sustaining measures.
Clearly, this brave new medical world would have a hugely disproportionate impact on the elderly.
In response to the Quinlan case, California passed the country’s first living will legislation, allowing people to make some advance medical decisions for themselves. Soon, most other states followed suit. But the strength of the popular reaction to the new medical reality—as well as the new financial reality—was shown by the demand for something better yet. Living wills proved to be somewhat awkward and inflexible. And, of course, they did nothing to allow people to have any advance say about the management of their finances in the event of incapacity.
Consequently, durable powers of attorney for health care and financial matters were soon authorized by state legislation. The Uniform Durable Power of Attorney Act was drafted by in 1979. It is no exaggeration to say that the use of these legal instruments simply swept the nation. Then, too, just as was foreshadowed in Christiansen, the ability of guardians or conservators over the persons and properties of wards to make substitute health care and financial decisions for their charges was expanded. In essence, the contemporary stage was being set.
Owing in no small part to such developments, Americans are now living much longer and in far better financial circumstances than ever before. Both of these successes are nothing less than historic. Success can still demand tending, however, which might well describe much of the reaction of the legal profession to the new circumstances of the elderly.
The Substantive Consequences
If there is any modern innovation of the legal profession that symbolizes the impact made by the rise of the elderly, it is the durable powers of attorney. The use of these instruments across the country to provide for future health care and financial decision making is now so widespread and routine that it may justifiably be thought of as emblematic of that impact. The vast majority of law offices now have these instruments readily available in stock, and there is a wide understanding of them among the lay public. In some states, embodied in statutorily dictated forms, they are routinely handed out at hospitals, physician’s offices, nursing homes, and many other places. They are simply ubiquitous.
To understand their impact, consider their fundamental nature. Without the need for any court involvement or any governmental supervision whatsoever, persons can privately designate one or more others to act for them into the future, no matter what their future circumstances may be. The authorization of these instruments by state legislatures was not just a recognition of the new medical and financial realities; it was an open invitation for everyone to plan for their medical and financial futures.
The durable power of attorney is now part of the everyday language of our clients and thus an essential tool of general practitioners. Small libraries’ worth of books and articles now exist on how these instruments can be used. But what of the other substantive changes to the legal profession that have been occasioned by the rise of the elderly? Most of these changes concern health care or asset and income protection.
With the elderly’s increasing reliance on nursing home care, most general practitioners need at least some understanding of Medicaid. Knowledge of Medicare is also necessary, as this program handles more routine, non-nursing home health care costs and now includes many prescription drug costs, too.
Changes in the field of guardianships and conservatorships also have been enormous and should be understood by lawyers counseling the elderly. These changes have been motivated by the same concern that lies behind the innovation of living wills and durable powers of attorney: trying to maintain autonomy for the incapacitated. In many jurisdictions, it is a new day in guardianship and conservatorship courts.
Although trust law long predated the modern rise of the elderly, that rise has caused an explosion in this arena, too. One significant development has been the increasing use of revocable “living” trusts as an estate planning instrument. Like powers of attorney, these are instruments that permit transfers of assets of incapacitated persons without court supervision, besides allowing asset transfers at death outside of probate courts. No longer are the great majority of such instruments set up for the wealthy. The rise of the elderly has brought American trust law to the masses.
The areas noted above apply mainly to lawyers counseling families and elderly individuals, but what about those practices more weighted toward the representation of businesses and organizations? It is difficult to conceive of businesses operating now without working knowledge of the new laws banning age discrimination in employment and housing, the Employee Retirement Income Security Act concerning pensions, the Americans with Disabilities Act, and many other pieces of legislation. Even the horizons of criminal law practitioners have been expanded by the rise of the elderly via recent laws combating their physical and financial abuse.
In short, at least some understanding of these elderly-influenced laws is necessary in the average practitioner’s professional tool box.
The Changed Form of the Profession
Just as so many other societal changes have produced increasing specialization within the American legal profession, the same is true with the rise of the elderly. But because of the broad nature of “elder law” (which seems to be the most common rubric used to describe the field), its story might be a little different.
Oddly, many lawyers are “specializing” in elder law without even realizing it—or without choosing to think of it in that way. As to the former, the great dean of American elder law studies, Professor Lawrence Frolik, relates an illuminating anecdote: He was asked by a lawyer once for a definition of elder law and explained what he thought it was, at which point the lawyer replied in obvious surprise, “Oh, that’s what I do.” And as to the latter, there are practitioners who, no matter how elder-intensive their practices have become and no matter how clearly they understand that, still see no need to limit the public’s perception of what kind of law they practice.
There have been more formal manifestations of the movement toward specialization in elder law. These include what is perhaps the most formal manifestation of all: certification. The National Elder Law Foundation ( www.nelf.org), founded in 1993, provides the sole ABA-accredited elder law specialization program in the country. Its certification process requires a certain amount of time and experience in the practice of elder law-related matters, as well as the successful passing of a daylong examination. There are now some 386 certified elder law attorneys in 42 states.
The other main elder law organization is the National Academy of Elder Law Attorneys, Inc. ( www.naela.org), which was formed in 1987. It currently has approximately 5,000 members, including judges, law professors, and students. NAELA’s primary mission is essentially to foster education about elder law issues. It also promotes changes in the law that protect the interests of the elderly.
Of course, there are other “official” bodies concerned with elder law, such as the ABA Commission on Law and Aging ( www.abanet.org/aging) and sections or divisions of many state bar associations. Many local bar associations also may have elder law subgroups now, formal or informal.
Despite how relatively young it is as a recognized specialty, elder law also has been developing its own substantive resource base, with notable examples being the University of Illinois’ annually produced Elder Law Journal ( http://home.law.uiuc.edu/elderlaw),Stetson University College of Law’s Journal of International Aging, Law and Policy ( www.law.stetson.edu/centers/aarpjournal),and Marquette University Law School Elder’s Advisor ( http://law.marquette.edu/cgi-bin/site.pl?current/eldersAdvisor).
Elder law has developed a unique form of specialization. Because of the circumstances of the modern elderly, legal representation of them tends toward providing more comprehensive legal care rather than just the provision of discrete services. The circumstances of the elderly client who arrives at a law office concerned about preserving financial assets can vary widely. And that same person is almost always concerned about health care autonomy, too. Because of this, the notion has emerged that the ideal elder law practice is to provide nothing less than total “life care” or “later life” planning and services for the aged. The nature of what this may eventually involve seems boundless.
The Big Picture
For many elder law practitioners, the biggest impact of the modern rise of the elderly has been the opportunity to establish a way of practicing that in essence provides what Professor Frolik has termed “a new way to perceive what a lawyer does.” Because of the nature of the elderly and their modern legal needs, many practitioners feel that their practices are qualitatively different from many other modern forms of legal practice. Proactive, non-confrontational, mediating, and moderating, they have an acute sense of their role in what is a huge societal change affecting both individuals and families. To some this might seem an attempt to return to some gentler form of past legal practice, but given the complexities of modern elder law, this can only be superficially true. Instead, it may just be the wave of the future for ever more kinds of legal practices in an ever more complex and closely regulated society.
Paul A. Sturgul practices elder law in Hurley, Wisconsin. He may be reached at firstname.lastname@example.org.