The ABA Commission on Law and Aging: Past, Present, and Future

In 1977, then-ABA President William B. Spann presciently determined that the concerns of older persons needed to be added to the association’s roster of public service priorities. At that time, the term “elder law attorney” did not exist, nor did a discernible field of law and aging. President Spann proceeded by designating a special task force to examine the status of the legal problems and needs confronting our older population. His goal was to determine whether the ABA could play a constructive role, and to suggest what structure and broad priorities for an association program seemed most promising.

In mid-1978, the task force report, affirmed, the value of an ABA initiative and recommended the creation of an interdisciplinary commission. It identified four priority areas that, at that time, seemed most worthy of attention: provision of legal services to the elderly, discrimination against the elderly, simplification and coordination of administrative procedure and regulation, and rights of persons subject to institutionalization or subsidized care. Over time, many other issues would rise to the top of the Commission’s priority areas.

The task force report was favorably received and at the ABA’s 1978 Annual Meeting, the establishment of a Commission on Legal Problems of the Elderly was authorized by the ABA Board.

Appointments to the Commission were made in late 1978, and its first meeting was held in February 1979. This initiative brought together an outstanding group of practicing attorneys, legal educators, specialists in aging, and nonlawyer experts on the issues  older adults faced, including key federal officials, national organization leaders, and two former secretaries of the U.S. Department of Health, Education, and Welfare.

By the ABA Midyear meeting in 1979, the Commission was intensively engaged in problem analysis and program development efforts. A grant award from the American Bar Endowment made it possible to retain a small full-time staff to support the Commission’s efforts in its first year of activity, which grew steadily over the next few years to reach a plateau of roughly eight to 10 well-chosen staff during the 1990s as its funded project portfolio grew. Nancy Coleman, the Commission’s first director, served for 26 years as the glue and fuel of the Commission’s work.

From these beginnings emerged a truly significant and extraordinary effort that went on to produce 46 years and counting of steady leadership, service, hard work, and contributions to the cause and interests of our older population.

Interdisciplinary Perspective

Over the years, a number of ABA groups and subgroups have focused on legal issues of older people, but the Commission stands out as unique in its interdisciplinary nature. Around the table at any given meeting, one might see gerontologists engaged in spirited exchange with state or federal officials, or law firm leaders with clinical specialists in aging. These dynamic discussions often generated ideas that in turn led to trailblazing research or triggered a needed stance on policy.

Commission members, appointed by the ABA president, generally include about half lawyers and half non-lawyers who were at the forefront of their fields. There is always a judge who brings the thinking of the bench, and a physician or medical professional who adds clinical insights. Bioethicists raise ethical concerns, and researchers suggest empirical approaches to murky problems. This potent mix resulted in Commission subcommittees to follow up on ideas, and sent staff scurrying to put pieces together. It also prompted a large body of ABA policy on aging, on which Commission members actively advocated for changes in law and regulations at the national and state levels.

The Commission has included some giants in the field. Arthur Fleming had served as Secretary of Health, Education, and Welfare, president of three universities, and chair of the U.S. Commission on Civil Rights. His decades of federal experience, reaching back to President Roosevelt, and his knowledge of Social Security and other federal policy strengthened the Commission’s voice. John Pickering was a founder of a prominent DC law firm and had a long record of pro bono work for people who were poor or disadvantaged. For many years, he was a leader in the ABA House of Delegates, where he frequently advanced Commission proposals for ABA policy.

And there have been a host of others -- for example lawyer/ethicist Nancy Dubler brought new approaches to bioethics in hospital settings; Dr. JoAnne Lynn pioneered in advance care planning and end-of-life treatment policies; and Hon. Kristin Booth Glen, a state court judge, brought an international perspective to the Commission’s thinking on fundamental rights of older people and persons with disabilities.

Bridging Key Sectors

The Commission draws together the public and private bar, as well as the aging and legal fields. Within the ABA, it has always sought to support and collaborate with other ABA entities to advance work on aging issues. The Commission has been described as “a think tank on the cutting edge of law and social policy” as well as a convenor of key stakeholders to solve problems. A few examples stand out.

From the beginning, the Commission took on the multi-faceted problem of decision-making limitations and dementia, as well as its challenges in legal representation, guardianship, medical consent, contractual matters, estate and personal planning, and a host of other contexts. An intensive collaboration with the American Psychological Association Committee on Aging produced a series of practice handbooks that have set the standard for understanding and assessing the capacity of older adults for the past two decades, specifically a handbook for lawyers, a handbook for psychologists, and a handbook for judges making guardianship decisions. The last was produced jointly with the National College of Probate Judges. Presentations on all three ABA-APA assessment tools continue to support professionals working with older adults with diminished capacity, aiming to preserve autonomy within an overall legal framework.

Other longstanding partnerships were built around the delivery of legal services for older persons. An innovative Commission panel at an ABA Annual Meeting in the 1980s brought together for the first time lawyers who had begun to focus their practice on older clients – a meeting that led to the birth of the term “elder law” and the eventual formation of the National Academy of Elder Law Attorneys (NAELA).

Additionally, the Commission’s many university connections led to the growth of elder law courses and clinics at institutions throughout the country -- including one created and taught at Georgetown University by Commission staff. The Commission’s corporate connections led to pro bono efforts at corporate law departments, and its law firm members advanced public service programs for older clients. Several Commission members were Legal Services Corporation officials who promoted legal aid priorities on aging. The Commission’s funding from the U.S. Administration on Aging supported a host of projects that reached across the legal and aging fields such as guides for lawyers on communication techniques in counseling older clients; Senior Law Day planning; and work on “emeritus” programs that allow retired lawyers to waive bar requirements to serve older adults pro bono. The Commission further partnered with the Association for Conflict Resolution’s Elder Mediation Section in early efforts to establish elder mediation.

The Commission’s work in the area of guardianship reform led to the creation of Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS) groups. Funding from the Administration on Community Living (ACL) helped the Commission to support the country’s first WINGS groups, with the goal of avoiding unnecessary guardianship, preventing and addressing abuse, developing less restrictive alternatives to guardianship, and advancing guardianship reforms to enhance the self-determination, health, and safety of individuals who need decision support. To date, at least 25 states have some form of ongoing WINGS or “WINGS-like” groups that drive changes to guardianship laws and policies through collective planning and action. The Commission’s longstanding collaboration with the National Guardianship Network and the Network’s partner organizations led to its involvement in the planning and participation in four national guardianship summits. Since the last Summit in May of 2021, the Commission has proposed two policies adopted by the ABA House of Delegates supporting a national Guardianship Court Improvement Program and Guardianship Bill of Rights.

Finally, the Commission’s tracking and consultative efforts in support of state law development produced ongoing resources for lawyers and policymakers in advance care planning, elder abuse and neglect, guardianship, and in early efforts to regulate assisted living and continuing care. Some of the Commission’s recent work includes the publication of a “Defense Against Guardianship” handbook, providing best practices and strategies for assisting clients in guardianship or conservatorship cases, and the creation of statutory charts relating to elder abuse, voting rights, guardianship, and selected issues in power of attorney law. The Commission also recently co-created a website, “Fostering Stability in Aging,” with the Commission on Homelessness and Poverty to provide resources for attorneys and advocates assisting older adults at risk of poverty and homelessness.

Addressing Ongoing Challenges in Aging

This work continues today, albeit with ever greater funding challenges. The lion’s share of Commission funding has always come from government grants, contracts, and private foundations. For example, the Administration on Aging, formerly within the federal Administration for Community Living, has been a consistent founder of the Commission almost from the beginning, and the Borchard Foundation Center on Law & Aging has sponsored several groundbreaking symposia and educational events, including the 2024 National Aging and Law Conference.

As traditional sources have contracted, greater reliance on donations and planned giving has become necessary. Little doubt exists about the continuing need for the ABA to address the ongoing challenges of personal and societal longevity where, by 2040, persons aged 65 and older will comprise more than one out of every five Americans, and the oldest -- those 85 and older -- will more than double their current 6.5 million to 13.7 million. These are our parents, grandparents, and our current or future selves. The goal is to preserve and enhance the autonomy, dignity, and quality of life of each and every person who travels this road.