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33 (6) BIFOCAL 77-78, (July-August 2012)

The Longevity of Elder Law

(The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 33, Issue 6.)

Charles Sabatino

Some years ago I wrote a speculative article on the future of elder law, which began by noting three characteristics that distinguish it from traditional practices of law.

First, elder law places emphasis on issues arising from a long life, rather than death. The average person today who reaches age 65 will likely live to age 84. As 2010 came to a close, the media lit up with the news that the oldest baby boomers were about to turn 65. Meanwhile, the 85-plus population remains the fastest growing subgroup of older persons. Americans are living their later years in better health than their forbearers, but most will also live for some number of years with chronic conditions that will impair and eventually kill them. It is the quality of life while living that concerns both aging Americans and Americans with disabilities today, much more than what happens to their estate after dying.

Second, elder law integrates 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. Isolating the purely “legal” part from the larger picture risks short-sightedness and is non-responsive to the client’s perspective. Thus, elder law has always embraced a “big-picture,” holistic approach.

Third, elder law strives for an interdisciplinary planning perspective.Social workers, geriatricians, other health practitioners, geriatric case managers, financial planners, and others all serve as allies in the legal planning work of elder law attorneys. Often, elder law practitioners provide an entry point for clients into aging and disability community resources. Experienced elder law attorneys know how to connect to or provide the supportive services their clients need.

These three characteristics still hold true today, but they are insufficient in themselves to define the practice. The field is dynamic and ever changing. If thought of as a practice specialty, it turns the notion of “specialty” on its head. Instead of a targeted and narrow expertise, elder law cuts across a multitude of legal matters, making it almost impossible for any one practitioner to focus on every subject that fits within the concentration. The ABA-approved elder law certification program of the National Elder Law Foundation tests applicants for certification on five separate core substantive topics and eight "extended topics."

What then, conceptually, defines elder law today? My own paradigm has emerged over many years. It starts by identifying the underlying values or goals of representing older persons and persons with disabilities. These core goals are the 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, 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 tend to concentrate around three broad, but concrete focal points connected to these underlying goals:

  • Housing issues (or, more broadly speaking, one’s entire living environment);
  • Financial well-being; and
  • Health and long-term care.

When you populate the myriad subtopics of these issues, you have a very full picture substantively 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 who seek to do their own planning and, especially, younger clients with special needs. "Elder and special needs law" more accurately describes a large segment of the practice today. 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, financial planning options, housing options, and health care options and issues are likely to change significantly in the years to come.

The maturation of elder law stands out in relief when you look back in history. Elder law claims its roots in the Older Americans Act of 1965, which made senior citizens’ law programs a permanent fixture in the aging network. Support programs, such as the National Senior Citizens Law Center and our ABA Commission on Law and Aging, nurtured the beginnings of a national identity of this type of law. Gradually, the field matured to include national private bar groups, particularly the National Academy of Elder Law Attorneys (NAELA), which emerged in 1988. On the state level, some 39 state bar associations have elder law sections or committees encompassing both aging and disability issues.

Within the ABA, elder law issues have become established in the collective ABA entities that address the diverse issues of aging, including Senior Lawyers, Real Property Trust and Estate Law, Health Law, Family Law, General Practice/Solo, Criminal Law, and Young Lawyers. These groups network through quarterly conference calls hosted by the Commission on Law and Aging and through a variety of collaborations in CLE programming. Dedicated journals on elder law in ABA publications, such as Experienceand Bifocal, signal the importance of the field today within the bar. And, the special ethical issues of elder law have gained more meaningful attention in the last two decades, first in the changes to Model Rule 1.14 (Clients with Diminished Capacity) that were enacted as part of theEthics 2000 initiative, and, currently, in the debate over alternative practice of law structures in the Ethics 20/20 initiative. Because many elder law practitioners work hand in hand with social work and nursing professionals, the opportunity for non-lawyer ownership in elder law firms is of heightened interest.

The longevity of elder law is now a fact of life. But, it will continue to develop with the times. In future columns, I will examine some of the emerging issues in law and aging that the Commission on Law and Aging is addressing and attempt to shine a light on opportunities we have to bring to life those goals of autonomy, dignity, and quality of life for aging members of society, of any age.

Charles Sabatino

About the Author: Charles Sabatino is Director of the ABA Commission on Law and Aging.