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

Aging Population
– Defining Elderly
o Factors à age, functional capacity, social involvement, physical/mental health
o Functional characteristics à loss of physical/mental capacity; loss of endurance
– Statistical Elderly Population
o Increasing w/ boomers
o Caucasian women = greatest segment
o Minorities & men less likely to take advantage of elder services

Practice of Elder Law
– General hurdles in representing the elderly
o Client characteristics that c/ present hurdles to atty
§ Diminishing physical/mental capacity
§ Economic vulnerability
§ Chronic illness
§ Dependence on others/diminishing support network
§ Autonomy vs. protectionism à does client truly need help & protection or are they truly independent and lazy
o Attorney hurdles that client c/ face
§ no stairs, or an elevator; accessible parking in close distance, good lighting
§ make sure document font sizes big enough
§ allow more than enough time for client visits à they will not understand everything nearly as easy
– Ethical Hurdles
o Dealing w/ other persons
§ Client’s kids à NOT the client
§ Other persons helping the client (neighbors, etc.) à NOT the client
o Legal ethical issues to keep in mind
§ 4 things Owed to every client à competence, loyalty, diligence, confidentiality
§ Conflicts of Interest à transferring property/estate planning other areas of law might implicate dual representation btw your client & his child/spouse
§ Charging Fees à must be reasonable, can’t take advantage of your client
§ Communication à need to communicate w/ client continuously, and not just the client’s family (unless capacity issues)

Age Discrimination
– Various federal laws provide some protection
o Age Discrimination in Employment Act | protects applicants & EEs > 40
§ Applies to private ERs, employment agencies, and some unions
§ ER must have @ least 20 EEs
§ Prohibits retaliation and advertising an age preference
o Age Discrimination Act | protects older individuals w/ federal or federal assisted services & benefits
o Rehabilitation Act | protects persons w/ handicaps from discrimination in housing/employment
o Equal Pay Act | protects against discriminatory salary & pay levels based on age
o Americans w/ Disabilities Act | requires reasonable access for public accommodation
o Equal Credit Opp Act/Truth in Lending | protects against age discrimination in credit & lending practices based on age

– State law (Similar to ADEA) à Applies to ERs w/ fewer than 20 EEs and have broader remedies
– Employment Issues
o Exceptions in ADEA (§623)
§ Bona fide occupational qualification
· unreasonable to expect an elder to fulfill such roles:
o commercials/modeling for a specific demographic
o anything involving driving at night
o jobs requiring great deal of physical effort
· D must show all those excluded are in fact disqualified (the ER had set mandatory retirement at 62 à thus everyone must retire @ 62) – Rasberg
§ seniority system & benefit plan
· Voluntary Early Retirement Plans
o must be a knowing AND voluntary process
o an offer of early retirement constitutes constructive discharge when choice is early retirement or continuing to work under intolerable conditions – Smith v. World
o mere offers of early retirement, even those w/ attractive incentives do not = constructive discharge under ADEA – Vega v. Kodak
§ Older Workers benefit Protection Act
· EE can waive ADEA rights but only if done knowingly and voluntarily
· EE can’t waive an ADEA claim unless the release satisfies the law – Oubre
o Facts: P signed a release of claims in termination agreement; rec’d severance & sued ER
o Hold: P’s non return of the severance is not sufficient as a justified ratification of waiver b/c the release did not conform to ADEA requirements
· Defines terms for observing EE benefit plan
o EEOC enforcement
§ Remedies – §626
· Must exhaust admin remedies first
· If fired à c/b reinstated
· Lost benefits à get back pay + associated benefits
· If reinstatement not possible à front pay
· If violation willful à double back pay
· EE has duty to mitigate damages
§ Proving discrimination – McDonnell Douglas Burden Shifting Test
· (1) Complainant must prove PF case
o PF factors
§ Client must be in a protected group
§ Client must have applied for the job
§ Client must have qualified for the job
§ Someone else filled the position & that person not in the protected group
o P’s case
§ A mere showing that job duties were assigned to a younger worker does not = PF case; must show age was factor in firing the EE – Greyhound
§ P can’t prove disparate impact by pointing to generalized age discrimination policy; must isolate & identify specific employment practice resulting in disparities – Smith
· (2) D must show it was a legitimate nondiscriminatory reason
o D will make his case if some other feature other than age was the factor, even if corr

ation of Benefits
o Average monthly earnings of highest earnings in 35 years – adjusted for inflation
o At full retirement receive 100% of PIA (primary insurance amount)
o Benefit reduced by 30% if retire early
o Benefit increased by 8% for each year of delay if postpone retirement past 67
– “RE-retiring” boost
o people who began collecting SS at age 62 can “restart” retirement benefits at age 70 if repay SS benefits paid to them in those years
o this w/ result in about 76% more a month
o due to legislative loophole, may not be around forever
– Dependent benefits – dependant share = 50% of PIA
o Spouses
§ Spouses of disabled or retired wage earner; – OR – disabled spouse of a wage earner are eligible
§ Divorced spouses – get benefits if married 10 years
§ Spouse gets larger of own PIA or dependent share
§ Spouse will get 100% of PIA if worker deceased
§ Must file application for spouse’s benefits
§ Must be 60 or older or be caring for a child entitled to the child dependent benefits
o Children under 18
o Disabled children – if disabled before 22

SSI (Supplemental Security Income)

The Program
– Overview
o Federal means-tested welfare income program
o Sets national criteria and benefit
o Designed to provide income up to 75% of poverty level











**note: add $3,740 for each add’l person**
– Eligibility
o Categorical Requirements
§ Must be 65 or older; – OR –