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

B. Gilchrist for Elder Law Spring 2011
 
 
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
 
 
Aging Patterns by Gender
 
·         Women outlive men.
 
·         This is a problem, as many elderly women were not in the work force when they were younger.  Thus, they may not have an adequate amount of independent income. 
 
·         Social Security benefits represent a large portion of income of elderly women, there is a larger population of them in nursing homes (many women can provide long-term care to their husband at home). 
 
 
Aging Patterns by Race
 
·         The current elderly population is predominately white – however, minorities and specially Hispanics will increase.
 
·         Since whites live longer, they enjoy social security benefits for a longer amount of time than minorities.
 
 
Dependency Ratio and “The Gap”
 
·         The “dependency ration” is the statistical ratio in the population of workers (18-64) to the elderly (65+).
o   1970 – 18 elderly for every 100 workers
o   2000 – 20 elderly for every 100 workers
o   2020 – expected 27 elderly for every 100 workers
·         The gap is closing, so there is a fear that workers will not be able to afford to maintain the elderly population.
·         However, the ratio may also be misleading because it assumes that everyone over age 65 is dependent and everyone 18-64 is a worker. 
The Physical Effects of Aging
 
·         Elderly tend to suffer from eye sight loss, hearing loss, memory loss, loss in physical strength
·         Elderly also suffer more from chronic conditions
§  Acute condition: temporary condition (can be serious or nonthreathening)
§  Chronic condition: permanent or long-term condition (diabetes, heart disease, arthritis, deafness)
·         Those age 65+ have highest incident of chronic conditions
 
 
The Challenge to the Law: The Unique Circumstances of the Elderly
 
Mortality
 
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
 
Complications of declining physical and mental capacity
 
The Elderly population is unique because they have the greater frequency of (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’

by the elder law attorney is who the client is – especially when there is family involvement in advising, assisting, and directing of financial and practical arrangements for care.  An attorney can represent several members of the family so long as there is no conflict of interest, each member provides knowing and voluntary written consent, and the attorney withdraws as soon as a conflict arises.    The lawyer should explain that there must be a true unity of interest for her to fulfill the duties of the client-lawyer relationship.    If the attorney decides she can only represent the elderly client, she must explain to the other family members that this will impose limitations on interactions with them to preserve confidentiality.   Payment of attorneys fees by a family member is okay, however the elderly client must knowingly consent, and the payment cannot compromise the loyalty of the attorney to the client.  (next page)
 
Another ethical problem faced by the elder law practitioner is determining client capacity.   The attorney should look to the client’s thinking process rather than to the decisions themselves (as even capable people make bad decisions).  The attorney should elicit all possible client input to the extent of his or her capacity, and cannot make decisions that the law requires the client to make.  Once the attorney reasonably believes that the client’s capacity is too diminished to act in his or her own best interest (that they risk substantial physical, financial or other harm unless action is taken), the attorney may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client, and in appropriate cases, seeking the appointment of a guardian ad litem, if the attorney believes this would serve the client’s best interests.  In doing this, the attorney should only reveal information to the extent necessary to protect the client’s interests. 
 
 
The Legal Needs of the Elderly
 
–          Types of legal problems consistently affecting elderly
o   Age discrimination
o   Obtaining federal benefits such as Social Security and Supplemental Security Income
o   Appeals from denial of Medicare benefits
o   Establishing Medicaid eligibility
o   Housing problems (landlord and property tax exemptions and assessments)
o   Mental incapacity and guardianship
o   Abusive or poor quality nursing home care