Volume 1, Number 1
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What is Elder Law?
As the elderly population in this country continues to grow, elder law has emerged as an extremely “hot” area of practice. Much of the law in this field is very unsettled, perhaps reflecting the reality that the elderly population of today is very different than the elderly population of ten or twenty years ago. As the field has grown, resources and organizations have developed to assist the elderly and those who practice law for their benefit. This article will provide a brief summary of the development of this field and the tools available to the elder law practitioner.
Elder law is a remarkably diverse area of practice. It encompasses issues touching on the lives of the “elderly,” a population which may include anyone from a ninety-five year-old nursing home patient to a sixty-five year-old tri-athlete. Issues affecting this diverse group may touch upon, but are not limited to Medicare, Social Security, guardianship proceedings, estate planning, financing nursing home care, pension and other retirement plans, elder abuse, and family matters, such as grandparent visitation and even divorce.
An “older” American is typically defined as one who is age sixty-five and older. 1 Today, about one in eight Americans, or approximately 12.4 percent of the total population, is considered an “older” American. 2 This population is rapidly growing; the number of people over age 65 amounted to 35.6 million in 2002 – a 10% increase from ten years prior. 3 This population will continue to grow with the graying of the Baby Boomer generation, most of whom will reach age sixty-five between the years 2010 and 2030. 4 By 2030, it is estimated that there will be about 71.5 million older persons 5 - more than double the older population in 1990, which numbered only 31.2 million people. 6
The foundation for elder law as a specialty practice area was laid in 1965 with the passage of the Older Americans Act, signed into law by President Johnson. 7 The Older Americans Act has been revised fourteen times since its original passage. The objectives of the Older Americans Act are to provide:
(1) An adequate income in retirement in accordance with the American standard of living.(2) The best possible physical and mental health which science can make available and without regard to economic status. (3) Obtaining and maintaining suitable housing, independently selected, designed and located with reference to special needs and available at costs which older citizens can afford. (4) Full restoration services for those who require institutional care, and a comprehensive array of community-based, long-term care services adequate to appropriately sustain older people in their communities and in their homes, including support to family members and other persons providing voluntary care to older individuals needing long-term care services. (5) Opportunity for employment with no discriminatory personnel practices because of age. (6) Retirement in health, honor, dignity--after years of contribution to the economy. (7) Participating in and contributing to meaningful activity within the widest range of civic, cultural, education and training and recreational opportunities. (8) Efficient community services, including access to low-cost transportation, which provide a choice in supported living arrangements and social assistance in a coordinated manner and which are readily available when needed, with emphasis on maintaining a continuum of care for vulnerable older individuals. (9) Immediate benefit from proven research knowledge which can sustain and improve health and happiness. (10) Freedom, independence, and the free exercise of individual initiative in planning and managing their own lives, full participation in the planning and operation of community-based services and programs provided for their benefit, and protection against abuse, neglect, and exploitation. 8
Funding from the Older Americans Act lead to the creation of legal services projects aimed at assisting senior citizens. For example, the well-known Senior Adults Legal Assistance (SALA) program in Santa Clara County California was established in 1973 with funding from the Older Americans Act. SALA serves Santa Clara County residents over 60 years of age, regardless of income levels. 11 SALA’s mission “is to support older persons in their efforts to live independently, non-institutionalized, and with dignity.” 12 Other legal services programs also received funding under the Older Americans Act to provide direct legal services and educational opportunities to older Americans.
The organized bar also recognized the growing need for research on the legal problems facing the elderly. In 1978, the American Bar Association formed the Commission of the Legal Problems of the Elderly (now called the Commission on Law and Aging). 13 The Commission consists of a fifteen-member body to “strengthen and secure the legal autonomy, quality of life, and quality care of elders.” 14 Issues studied by the Commission include the provision of legal services to older persons, housing needs, public benefit programs (e.g., Medicare, Medicaid, Social Security, etc.), elder abuse, health care decision making, and professional ethics issues. 15 State bar associations have also not missed the importance of organizing attorneys devoted to the practice of elder law, and many state bar associations have elder law committees. 16
In 1988, the National Academy of Elder Law Attorneys (NAELA) was formed as a non-profit professional association for attorneys focused on the legal needs of the elderly. 17 The mission of NAELA “is to establish NAELA members as the premier providers of legal advocacy, guidance, and services to enhance the lives of people as they age.” 18 To accomplish its mission, NAELA provides its members with an array of practice materials and educational opportunities. NAELA currently has over 4,500 members and chapters in several states. 19 NAELA is also affiliated with the National Elder Law Foundation (NELF). Formed in 1993, NELF provides certification programs for elder law attorneys. 20 NELF is the only organization approved by the American Bar Association’s Standing Committee on Specialization to offer certification in elder law. 21 Attorneys certified by NELF must meet rigorous practice requirements and have passed a written examination. 22 Currently there are more than 300 certified elder law attorneys nation-wide. 23
Law schools have not ignored this growing field. In 1985 the Association of American Law Schools formed the section on aging and the law. 24 Numerous law schools now offer classes focusing on elder law, public benefits law, or some other topic related to aging and the law. In 1993, the University of Illinois College of Law went beyond elder law classroom instruction with the creation of The Elder Law Journal. 25 Published twice a year, The Elder Law Journal is the only scholarly journal devoted to the topic of elder law. 26 Articles in the journal encompass a wide-range of standard and cutting-edge legal aspects affecting the elderly.
Today, there are numerous practice tools available to the elder law practitioner. The American Bar Association publishes a number of books addressing the legal needs of the elderly. Most legal publishers also carry similar volumes. State bar associations provide sections related to elder law, and often present continuing legal education seminars related to elder law. 27 The Internet has also proven to be a veritable gold mine for elder law information. Organizations such as the AARP, 28 Alzheimer’s Association, 29 Center for Medicare Advocacy, 30 ElderWeb, 31 National Center on Elder Abuse, 32 National Citizens’ Coalition for Nursing Home Reform, 33 Seniors Unlimited, 34 and U.S. Government sites, 35 among others, provide literally hundreds of pages of information for elder law practitioners (and the public generally), as well as all-important “links” to other sources of information.
Elder law has become a fast-growing practice area that is focused on the needs of an increasingly diverse population. Elder law attorneys address the needs of older clients in an attempt to preserve and ensure the client’s autonomy, safety, and well-being. Few practice areas encompass the range of emotional, practical, and legal considerations that elder law attorneys often encounter.
1 See U.S. Department of Health and Human Services, Administration on Aging, A Profile of Older Americans: 2003, 2 (2003). Elder law has traditionally been concerned with the legal needs of those aged sixty-five or older. Lawrence A. Frolik, The Developing Field of Elder Law: A Historical Perspective, 1 Elder L. J. 1, 2 (1993).
6 See Economics & Statistics Admin., U.S. Dep’t of Commerce, Census 2000 Brief: The 65 Years and Over Population: 2000, 1 (2001). As a percentage of total population, the older population dropped from 12.6 percent in 1990 to 12.3 percent in 2002, but the total number of people age 65 years and older increased between 1990 to 2000. See id.
11 See < http://www.sala .org> (visited June 2, 2004)
13 The website for the Commission of Law and Aging can be accessed at < http://www.abanet.org/aging/>.
14 See < http://www.abanet.org/aging> (visited June 2, 2004).
15 See < http://www.abanet.org/aging/mission.html> (visited June 2, 2004). Ethics issues can pose quite a concern for the elder law attorney and is a topic to be explored in a future article.
16 A very quick survey of state bar association web sites finds specific elder law sections or committees in the following state bar associations: Alabama, Alaska, Colorado, Connecticut, Florida, Georgia, Hawaii, Illinois, Indiana, Maine, Maryland, Michigan, Minnesota, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Tennessee, Washington, and Wisconsin.
17 See < http://www.naela.org> (visited June 2, 2004).
18 See < http://www.naela.org/pdffiles/Factsheet2.pdf> ( visited June 2, 2004).
20 See < http://www.nelf.org/index.htm> (visited June 4, 2004).
21 See < http://www.nelf.org/release> (visited June 4. 2004).
22 Elder law certification is open to attorneys who have been in practice five years or more. During the three years prior to application for certification, the attorney must have spent at least 16 hour per week practicing elder law. In addition, the attorney must have handled at least 60 elder law matters in specified subject areas, and must have at least 45 hours of continuing legal education in elder law topic areas. Attorneys must be re-certified every five years.
23 See < http://www.naela.org/pdffiles/Factsheet2.pdf> ( visited June 2, 2004).
24 See < http://www.aals.org/sections/index.html> (visited June 4, 2004).
25 The web page for The Elder Law Journal, containing abstracts of past articles and subscription information is < http://home.law.uiuc.edu/elderlaw/>.
26 Editorial Forward, 1 Elder L. J (1993). In its Tenth Anniversary volume, the Journal published an article by Lawrence A. Frolik regarding the changing nature of elder law, which is a highly recommended read for any elder law practitioner. Frolik, Lawrence A., “ The Developing Field of Elder Law Redux: Ten Years After,” 10 Elder L. J. 1 (2002).
27 The Elder Law Section of the Indiana State Bar Association presents a very popular, two-day, continuing legal education seminar on elder law in December of each year, and space always fills up quite quickly.
28 See < http://www.aarp.org/> (visited June 4, 2004).
29 See < http://www.alz.org/> (visited June 4, 2004).
30 See < http://www.medicareadvocacy.org/default.htm> (visited June 4, 2004).
31 See < http://www.elderweb.com/> (visited June 4, 2004).
32 See < http://www.elderabusecenter.org/> (visited June 4, 2004).
33 See < http://www.theconsumervoice.org/> (visited January 31, 2013).
34 See < http://www.seniors-unlimited.com/> (visited June 4, 2004).
35 For example, the U.S. Administration on Aging, < http://www.aoa.gov/> (visited June 4, 2004).; Social Security Online, < http://www.ssa.gov/> (visited June 4, 2004).; the Medicare website, < http://www.medicare.gov/> (visited June 4, 2004); and FirstGov for Seniors, < http://www.firstgov.gov/Topics/Seniors.shtml> (visited June 4, 2004).