November 01, 2015

GP Mentor: When Does Serving Older Clients Become Elder Law?

Charles P. Sabatino

My first job as a freshly minted lawyer was in a senior citizens’ law project of a legal aid program. I really had no background in law and aging, but I was naive enough to take on anything. Initially, most of my cases involved public benefit appeals, debt collection defense, and simple wills. The term “elder law” didn’t even exist then, and I no idea that law and aging would become such a focus of my career. But I was deeply moved by the life stories and challenges faced by my clients. After six years I left the legal aid program to do a grant-funded sabbatical of sorts with the ABA Commission on Law and Aging. It was a chance to do some policy research and writing. Thirty years later, my sabbatical has turned into a long-term learning experience in advocacy for older persons, and I am still with the Commission on Law and Aging. At the same time, the field of law and aging has become a real practice focus, though how the practice is defined depends on who you talk to.

Most practitioners agree on a couple things. First, when you serve older clients, you will deal primarily with issues arising from a long life, rather than death. The reason for that is pretty obvious as average longevity stretches into seven, eight, and nine decades, typically accompanied by progressive limitations in function. Second, older clients force us to integrate legal planning and problem solving into a larger picture of personal planning needs. Clients’ “non-legal” personal goals regarding health, housing, personal autonomy, and quality of life ultimately intersect with legal planning and protection. Because of this breadth, lawyers serving older clients have had to embrace an interdisciplinary planning perspective. Social workers, geriatricians, geriatric case managers, financial planners, and others serve as allies in the legal planning work. Lawyers are often an entry point for clients into aging and disability community resources.

Apart from possessing these characteristics, when does serving older clients become an “elder law” practice? One could define it according to the percentage of one’s client pool that is older, but I’m not satisfied without a conceptual base.

My own conceptual paradigm has emerged over many years. It starts by identifying the underlying values or goals of representing older persons: preservation and enhancement of autonomy, dignity, and quality of life. These goals apply to adults of all ages, but, not surprisingly, they become particularly important and acutely stressed in the face of old age, chronic disease, frailty, or disability.

Arising directly from these goals is a core set of legal issues: matters of decision-making capacity and control, surrogate decision making, and protecting those with diminished capacity. Thus, core legal tools of elder law include planning devices such as durable powers of attorney, inter-vivos trusts, advance directives for health care, and, when protection is needed, guardianship and conservatorship.

Beyond these immediate issues of personal decision making, elder law issues concentrate on three broad but concrete focal points: financial well-being, health and long-term care, and housing issues.

When you populate the myriad subtopics of these issues, you have a very full picture of what elder law encompasses. An advantage of this paradigm is that it avoids defining elder law merely by the clients it serves. It is increasingly common for elder law attorneys to serve younger generations of clients with special needs. In addition, the paradigm allows for a great deal of flexibility in the evolution of elder and special needs law. While the core goals and general challenges remain the same over time, the particular benefits and financial, housing, and health care options and issues are likely to change significantly in the years to come.

Whether or not you see yourself as an elder law attorney or as a general practice attorney who happens to have a lot of older clients, you are working within this elder law paradigm. One measure of the foothold elder law has attained over this period is the fact that about 40 state bar associations now have elder law sections or committees encompassing aging and disability issues.

The longevity of elder law is a fact of life. It will continue to change with the times. But those core goals of autonomy, dignity, and quality of life will remain.

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Charles P. Sabatino

Charles P. Sabatino (charles.sabatino@americanbar.org) is the director of the ABA Commission on Law and Aging.