June 01, 2014

Home Sweet Home: Real Estate Realities for Older People

Malinda C. Allen

Few topics within the field of elder law stir up quite as much emotion as that of the family home. After all, the place each of us calls home is far more than the materials that hold it together. It is also a place filled with our everyday lives and precious memories. Experience magazine takes a close look at the issue and options facing older clients as they deal with their desire to stay in their homes as long as possible. An AARP survey indicates that as many as 86 percent of older adults wish to do so.

When Henry David Thoreau went to live on Walden Pond in 1845, he mused that “The setting sun is reflected from the windows of the almshouse as brightly as from the rich man’s abode.” Of course, this observation is that of a man who jumped into a cold pond for a bath first thing in the morning and cooked a woodchuck for a meal—his standards were low. So the almshouse does not seem a very happy housing option and neither does the nursing home. But the aging process involves new life circumstances and needs and therefore requires consideration of an often complex array of options.

In his column for the Commission on Law and Aging, Professor David English provides an excellent road map for practitioners advising older clients seeking to preserve what is often the most valuable asset of their estates and at the same time maximize their chances of living out their lives in a familiar and secure place where the “heart resides.” As Professor English notes, this is not a simple task. There are danger signs to watch for, since older clients, especially those living alone, are often targets of fraud. There are also voluminous regulations—federal, state, and local—to consider. The fact that technology holds new possibilities for “aging in place” is certainly hopeful.

Professors Frolik and Kaplan observe in their work, Elder Law in a Nutshell, that “The reason there are so many housing options for older persons, after all, is that no one option is best for everyone.” Our first article looks at one of those interesting housing options. Think of it as the “Golden Girls” option. Authors John Larson and Elizabeth McGarry begin by describing a familiar client: the widow with no children living close by who needs to make a change in her living situation. The authors then outline the issues that legal counsel should consider when advising such a client. Communal living arrangements, also known as shared living residences, are becoming an important option. The authors walk us through the issues to be considered before a client makes a move to some form of communal living. The cohabitation agreement is essential to the success of such arrangements.

Linda Ershow-Levenberg alerts practitioners to the minefield that is out there when dealing with real estate transactions in the context of elder law planning. In her comprehensive article, Ms. Ershow-Levenberg outlines the questions practitioners need to ask and the consequences, intended or not, that various courses of action may produce. When Medicaid eligibility is a consideration, the landscape is indeed fraught with “minefields.” This article presents a clear, detailed study of the interaction of elder law planning and Medicaid.

Reverse mortgages have been around for decades, primarily as a way for older homeowners to realize their desire to stay in their homes as long as possible. But reverse mortgages have had a history that is somewhat similar to that of a new wonder drug. It looks like a panacea and then, much later, the negative side effects start to show up. Elliot Wong and Ingrid Evans take a fresh look at this once-popular means of converting home equity into a means of paying for ongoing expenses of living in the home.

Dustin Zacks gives the practitioner a specific pathway to follow when advising older clients who are caught in the foreclosure maze. “Short sale” is a term with its roots in securities law, but for the public nowadays, it often has a very specific meaning that literally hits closer to home. Zacks explains the meaning of the term as it relates to foreclosure. He also points to the federal income tax implications of such sales. This article provides practitioners with information needed in order to provide a client in this difficult situation with informed, accurate information.

Michael Van Zandt’s article broadens our core topic by examining the history of public land laws of the western United States. Many of the property rights he discusses were established after 1862, so this is not the kind of legal situation that generally comes up for real property attorneys out East. But the story is a truly fascinating, thoroughly researched one that holds many helpful pointers for those advising ranchers and others in the West.

With this issue, we are pleased and proud to provide a fresh and often surprising look at the contributions of experienced lawyers to the world we live in today. “Progress in Democracy and the Rule of Law: Evolving Election Standards and the Recent Elections in Afghanistan,” an essay by John Hardin “Jack” Young, inaugurates “Experience at Work,” a new column that will appear from time to time in this magazine.

At first blush, it may seem that, by including Jack’s essay, we have moved far afield from our stated topic of real estate. But in fact we are just focused on a very different piece of real estate: the place where American troops have been stationed for over a decade. Jack has spent his career dedicated to the belief that by helping to establish the rule of law in emerging democracies around the world, we provide the best hope for creating a sustainable country where individuals are free to pursue autonomous, secure lives.

Jack works through the United Nations Development Programme as an advisor to leaders of countries where conflict is present and where issues of free and fair elections are central to the establishment of the rule of law. He has spent time working in Armenia, Georgia, the Philippines, and South Sudan. His work in Afghanistan has been an ongoing effort with seemingly endless challenges and dangers. Most of us do not intend to ever drive across Kabul in an armored car with rockets firing overhead. But then few of us have the passion for a cause that characterizes Jack.

The second article in our new column, “Experience at Work,” introduces a lawyer who found significance in the work he has accomplished in a second career. Judge Francis Larkin sat down recently with General William Suter, an old friend, to talk about the life events that led General Suter to serve for 22 years as the nineteenth clerk of the U.S. Supreme Court. Professor Larkin’s article also provides an intriguing account of the early history of the Court building.

We look forward to future essays that highlight the remarkable efforts of many of the wise and experienced individuals who make up the Senior Lawyers Division.

Malinda C. Allen

Malinda C. Allen is chair of the Experience magazine Editorial Board, vice-chair of the Editorial Committee of The Voice of Experience newsletter, and a past SLD Council member. She is a solo practitioner in Cashiers, North Carolina, where she focuses on elder law matters.