Lawrence A. Frolik

Later Life Legal Planning

In response to client needs, elder law has expanded and is gradually redefining itself into “later life planning.” While some still identify elder law with helping clients pay for long-term care, specifically in the United States by qualifying for Medicaid, the reality is that the practice of elder law is a rich mosaic of legal planning that is continually evolving to better meet clients’ legal, financial and social needs and concerns. While ten years ago, Medicaid planning to pay for long-term care was the focus of the practice of many, if not most, American elder law attorneys, that is no longer the case. Certainly Medicaid planning remains a core element in any elder law practice, but it is only one of many aspects of the practice that includes guardianship and mental capacity issues, long-term care planning, basic estate planning, drafting trusts, advising trustees, acting as trustees, creating special needs trusts, and advising clients as to their rights vis-a-vis assisted living facilities, nursing homes, and continuing care retirement communities. Elder law is even expanding into financial planning and “life care” planning that assist the client to address their financial and care needs of what for many is likely to be a very long life. Though elder law attorneys have clients of all ages, because of the vicissitudes of aging, the very old have a particular need for legal assistance. The reality is that growing old, particularly growing very old, presents a host of legal problems. Consequently, for elder law attorneys, the very old, those age 80 or older, are becoming the foci of their practice.

Law and Aging

A notable demographic characteristic of the twentieth century has been the increase in the number and percentage of older persons. Particularly in industrialized nations, an increasing percentage of the population is aged 65 and older. These aging populations, whose members often suffer physical and mental disabilities, create significant challenges to law and legal institutions, particularly with respect to public benefit programs. The elderly specifically require assistance in obtaining and paying for health care, in making up for lost income due to retirement or age discrimination, and in obtaining adequate housing. Many countries provide public subsidies to meet these needs. Yet the mental incapacity and/or dependence of many seniors places them in a special relationship with the state. Where a person is mentally incapable of making decisions, the law must address the need for a substitute decision-maker (or guardian) while respecting the autonomy and self-determination of the elderly. This issue is particularly actue in health care matters, wherein the law must establish which party—patient, family, or physician—should decide the level of appropriate care for an elderly patient.

Appropriate Housing for the Elderly of the United States

Quality of life for the elderly rests upon the triad of adequate income, good health, and appropriate housing. For the elderly “the good life” means the avoidance of poverty, maintenance of health and adequate health care, and appropriate, affordable housing. The absence of any one of these fundamental factors can seriously erode the quality of life of an older person. And the three are interdependent. Like a house of cards, disruption in any one of them, income, health, or housing, can initiate the collapse of the other two. Thus, older persons with low incomes often cannot afford decent housing or must choose between adequate housing and paying for their health care. Similarly, those elderly with poor health spend more on medical expenses and have less disposable income that often results in poorer quality housing.