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Elder Law
St. Louis University School of Law
Gilchrist, Barbara J.

ELDER LAW

I. Introduction to the Aging Population
II. The Practice of Elder Law and Ethical Issues
III. Employment Protection and Discrimination
IV. Income Maintenance
o SSR
o SSD
o SSI
o SS Policy Issues
o Pensions
V. Healthcare Costs and Long-Term Care
o Medicare
o Long-Term Care Insurance
o Future of Health Care Reform
o Medicaid
VI. Medicaid Estate Planning and Recovery
VII. Housing
VIII. Planning for Incapacity
o Financial Management
o Health Care Making Decisions
o Guardianship
IX. Divorce

INTRODUCTION TO THE AGING POPULATION

Summary: There has been a huge growth in the aged population due to improvements in medicine and nutrition beginning more than 60 years ago, increasing the life expectancy for those 65 and older. While the elderly do share some general characteristics (such as acute and chronic medical conditions, the onset of loss of mental capacity, and economic vulnerability), they are still a disparate and non-homogenous group, with differences in gender, race, religion and economic status.

The Elder law lawyer needs to solve problems quickly because client’s death may make the situation moot or the changing circumstances in the client’s health, income, or social support may limit the choices of the attorney. Thus, the Elder law lawyer’s must be aware of the passage of time, while being concerned with balancing protection against the need for autonomy and independence.

Introduction and Who is Elderly

· There has been a huge growth in the aged population due to improvements in medicine and nutrition beginning more than 60 years ago, increasing the life expectancy for those 65 and older.

· The US now has more elderly people than ever before
o 2006 – 12.5% was 65 or older
o 2020 – expected to be 16%
o 2030 – expected to be 30%

· Elderly Defined By:
o Chronological age
o Functional capacity
o Social involvement
o Physical and mental health

· Generalized Characteristics of Elderly (not true for all):
o Loss of physical capacity (strength, flexibility, endurance, acuity of senses)
o Loss of mental capacity and alertness

· Age 65 is used in our society to demarcate the elderly, due to German social welfare in which people are forced to retire at age 65, and because it’s easier to designate a number to group the elderly

Statistical Profile of the Elderly

· Elderly population is increasing due to increased birth rates 65 years ago (known as the “baby boom”) and also because of immigration.

o Minorities have a lower elderly population than Caucasians, however the minority elderly population is expected to increase due to lower birth rates, improved health care and reduced rate of immigration.

· Increased Life Expectancy – another factor that contributes to increase in elderly population is that more people are expected to reach age 65 and those that do reach age 65 live longer

i. Life Expectancy By Race in 2000:
1. White male = 75
2. White female = 80.2
3. Black male = 68.6
4. Black female = 75.5

ii. Average Number of years remaining to live in year 2001 (for those who reached age 65 in year 2001)
1. White male = 16.5
2. White female = 19.5
3. Black male = 14.4
4. Black female = 17.9

Growth in Population over age 85

· The Elderly Can Fit Into 3 Categories:

Young old (ages 65-75)
Old (ages 75-85)
Old-old (85+)

In 1985 this was the fastest growing segment of the population

1) loss of physical capabilities; (2) mental capacity; and (3) economic vulnerability

Alzheimer’s disease

Elderly more often suffer from loss of mental capacity because they are susceptible to dementia. Alzheimer’s is prevalent in elderly. Symptoms include:
a. Progressive decline in cognitive and emotional integrity
b. Mood changes, delusions, depression
c. Motor skills decline, ability to speak also declines until it is lost
Alzheimer’s presents a problem for elder law attorney of the client’s competency level. Power of attorney can help in these situations.

Economic vulnerabilities
Most elderly have modest income. However, over 59% of the elderly poor are women.
Causes of elderly poverty can be:
d. Low wages, lack of pension plans, disability, poor health, widowhood, age discrimination in hiring, and health care costs (chronic illnesses increase living expenses).

The old depend on the promises of the young

Elderly are vulnerable to become economically dependent on the nonelderly – either directly dependent (depend on children for financial support) or indirectly dependent (social security)
Family Support Statutes (Filial Responsibility Statutes)
30 states have filial responsibility statutes, however enforcement is infrequent.
2 models:
1. Requirement that an adult child with financial means support a parent because of the existence of the relationship between them.
i. Status of parenthood creates a duty to assist.