ELDER LAW
As of the early 2000s a relatively new specialty
devoted to the legal issues of SENIOR CITIZENS,
including estate planning,HEALTH CARE, planning
for incapacity or mental incompetence, the receipt
of benefits, and employment discrimination.
The genesis of elder law can be found in the
convergence of several profound social develop-
ments. One phenomenon is a rapid increase in
the elderly population. According to statistics
from the 2000 U.S. census,more than 12 percent
of the population in the United States was over
the age of 65; and that percentage was expected
to rise to 20 percent by the year 2050. Another
phenomenon is that generally, older U.S. citizens
in the early 2000s are wealthier and better edu-
cated than ever before. These two circumstances
have led to a rise in the collective political clout
of older U.S. citizens. This newfound political
strength has coincided with a trend toward cut-
ting the government benefits and entitlements
on which many elderly U.S. citizens depend. At
the same time, HEALTHCARE costs have skyrock-
eted. As a result of this confluence, more and
more elderly U.S. citizens are seeking legal assis-
tance to protect their financial interests.
Another phenomenon behind the elder law
specialization is that older people in the United
States are subjected to AGE DISCRIMINATION by
a populace obsessed with youth and afraid of
aging. Ageism stigmatizes the process of grow-
ing old and leads to abuse and neglect of some
elderly persons. It also leads to discrimination
against older workers by employers who per-
ceive them as less productive than younger
workers. These same older workers often receive
higher pay because of their years with the com-
pany. For these reasons, employers often try to
replace older workers with younger workers,
who may produce more and work for less com-
pensation. Elder law addresses these and other
special legal problems of the elderly.
A primary issue for older people is planning
for final medical care. Many people, especially
older individuals, write a LIVING WILL. This
document gives individuals advance control
over their final medical situation. Through a liv-
ing will, a person may direct the termination of
life support in the event of terminal illness, per-
manent unconsciousness, or brain death.
An elderly person may wish to place health-
care decision making in the hands of a trusted
third party, with an advance healthcare direc-
tive. All states allow this directive for property
management, but not all states allow it for health
management. The legislative trend favors the
allowance of advance healthcare directives
through a durable POWER OF ATTORNEY. This
legal document allows an elderly person to
appoint a trusted third party to make major
healthcare decisions in case of mental incapacity.
Without a durable power of attorney, a
guardian will be appointed, in the event of men-
tal incapacity, to make healthcare decisions. A
conservator will be appointed to manage prop-
erty. The appointment of a guardian and a con-
servator is accomplished by a judicial proceeding.
This proceeding is involuntary, and the court is
free to appoint whoever will act in the best inter-
ests of the person who is mentally incompetent.
A court appointee may or may not be a friend or
relative, so the durable power of attorney is a
more effective way to ensure that a person’s
healthcare wishes will be followed in case of
sudden mental incapacity.
Older persons must also prepare for the pos-
sibility of living in a nursing home. Nursing
homes are regulated by the Nursing Home
Reform Act (NHRA) (42 U.S.C.A. § 1396),
enacted as part of the Omnibus Budget Recon-
ciliation Act of 1987, Pub. L. No. 100–203, 101
Stat. 1330. The NHRA covers a host of require-
ments for the licensing of nursing homes. It also
contains a list of the rights of nursing home res-
idents. These rights include privacy, confiden-
tiality, and freedom from abuse and restraints.
Many older people are forced to move into
nursing homes to convalesce from surgery or to
receive long-term custodial care. Without ade-
quate planning, the financial consequences can
be devastating. Nursing homes are very expen-
sive, ranging in cost from $2,000 to $6,000 a
month. Most older individuals are unable to
make such payments and must rely on the fed-
eral government programs MEDICARE and MEDICAID for support.
Medicare (42 U.S.C.A. § 1395 et seq.) is
authorized by the U.S. Congress to provide for
the acute health care of older citizens. Any per-
son who is age 65 or older and is eligible for
SOCIAL SECURITY benefits is entitled to
Medicare coverage. Medicaid (42 U.S.C.A. §
1396 et seq.) pays for the medical expenses of
low-income individuals who are aged, blind, or
disabled.
Medicare is more available than Medicaid,
but it generally provides less coverage. For
example, Medicare covers nursing-home care
for only a short period of time, whereas Medic-
aid provides extended nursing-home care but
requires that the recipient be impoverished to
qualify. In other words, elderly persons with
property and income have to deplete their own
resources before qualifying for Medicaid’s cover-
age of long-term health maintenance. Seniors
who need custodial care but do not qualify for
Medicaid often buy private long-term care
insurance. This type of insurance pays for nurs-
ing-home care and home health care and is gov-
erned by state statutes.
The issues surrounding Medicare and Med-
icaid are complex, amorphous, and political.
The coverage under these programs is subject to
numerous exceptions and caveats, and many
people, politicians and others, dispute the wis-
dom of public funding of health care for seniors.
Medicare and Medicaid exist only so long as
Congress maintains the statutes that enable
them, and the statutes can be changed to
increase or decrease eligibility and coverage.
After retirement, seniors rely on a variety of
benefits for financial support. One common
source is OLD-AGE SURVIVORS AND DISABILITY
INSURANCE (42 U.S.C.A. § 401 et seq.), a part of
the Social Security program. Social Security pro-
vides lifetime monthly payments after age 65,
