-Elder Law Outline – Spring 2013 – Prof. Kisthardt
I. The Aging Population: Challenges for the Law (Jan. 28)
a. Growing Numbers – The extraordinary growth in the number of old people is attributable to improvements in medicine and nutrition beginning more than 60 years ago that greatly increased life expectancy.
b. Who is Elderly? – Chronological age merely measures the passage of time. Yet it also denotes certain rites of passage or the granting of legal rights such as the right to drive or the right to vote. Late in life, chronological age determines other legal rights, such as the right to receive income for retirement rather than work.
i. We shall generally use age 65 as the entry age for those referred to as elderly or old. Although this is an arbitrary age, it is the traditional age of retirement. The reliance of age 65 is attributed to Germany’s Chancellor Otto von Bismarck, who in 1889 created the German social welfare system.
ii. A few other countries such as Japan are “ahead” of the U.S. in aging demographics, having a greater percentage of the population age 65 and older.
iii. By virtue of the unprecedented rise in average life expectancy, the 65 and older age group has grown more than twice as fast as the population as a whole.
c. Common Misperception – A common misperception regarding the elderly is that they are trapped in a cycle of poverty and despair, isolated from the community, abandoned by family and friends, and incapable of self-sufficiency.
d. Growth in the Population over age eighty-five: In recognition of the wide age span, many observers now subcategorize the elderly into three groups:
i. The young old, ages 65-75
ii. The old, age 75-85, and,
iii. The old-old, ages 85 and over.
1. The population age 85 or older by percentage is currently the fastest growing segment of the population. The ideal of long, vigorous old age and swift decline to death might not be a realistic expectation.
e. Aging patterns by gender:
Age 65 and over
Age 80 and over
Men
16,900,000
3,300,000
Women
22,600,000
6,100,000
i. When we refer to elderly people we should visualize women. How society allocates its resources to assist the elderly should (but does not always) take into account that the elderly are mostly women. Social security benefits represent a larger portion of the income of elderly women than of men, as nearly half of older men receive income from a private sector pension compared to less than a quarter of older women. On average women who do have a private pension receive only half of the amount received by male pensioners.
ii. When considering health care support, planners should be aware that women and men do not share the same health problems.
f. Aging patterns by race:
i. Of those age 65 and older in 2008, 80.4 percent were white, 8.3 percent were Black, 6.8 percent were Hispanic, 3.4 percent were Asian and Pacific Islander.
ii. Hispanic elderly, for example, are expected to increase to 16 percent of all elderly by the middle of the century.
iii. Although all employees, regardless of their race or gender, pay social security taxes, many minorities’ employees, because of their higher death rates, will not live long enough to collect retirement benefits. When the minimum age for collecting Social Security benefits is raised, all employees are disadvantaged, but minorities suffer greater harm because on average they will collect benefits for fewer years than will white retirees.
g. Dependency Ratio:
i. Most over age 65 are retired and receive Social Security retirement benefits paid by the tax on younger workers’ wages. This statistical ratio in population of workers (age 18 to 64) to elderly (age 65 and older) is commonly referred to as the “Dependency Ratio.”
1. In 1970, there were about 18 persons age 65 or older for every 100 persons age 18 to 64. By 2000, the ratio was about 20:100. In 2020, the ratio is projected to be about 27:100.
2. With fewer young to support so many more elderly, the question arises whether the younger population will be able to afford to continue providing the same level of benefits, including Medicare and Social Security.
3. Note: The “dependency ratio” assumes that everyone over age 65 is a dependent and that everyone from age 18 to 64 is a producer.
ii. It is estimated that in four or five years the average retiree receives in retirement benefits an amount equal to all he or she contributed to the Social Security trust fund during a lifetime or employment.
h. The Physical Effects of Aging
i. Generalizations about the elderly include:
1. Inevitable decline in physical vigor is the most salient feature of aging
2. Almost all of the elderly suffer some loss of vision, including loss of ability to see close objects, sensitivity to glare, loss of peripheral vision, and difficulty adjusting from light to dark.
3. Hearing also declines with age.
4. Some mild short-term memory loss is common among those in their seventies or eighties.
ii. Acute v. Chronic Conditions:
1. A condition, which may be acute or chronic, is any departure from physical or mental well-being.
a. Acute Condition: An acute condition is a temporary condition, whether as serious as pneumonia or as nonthreatening as a head cold.
b. Chronic Condition: A chronic condition is a permanent or long-term condition, such as diabetes, heart disease, arthritis, or deafness.
i. Complications of declining physical and mental capacity
i. Why identify the elderly for special legal consideration? The question is central to the definition of elder law. Three aspects unique in the aging population, at least in proportion to the larger population, call for special legal recognition. There are:
1. The greater frequency of the loss of physical capabilities,
2. The decline in mental capacity, and
3. Greater economic vulnerability.
j. Chronic Illness
i. Chronic illnesses, which are disproportionately experienced by the elderly, include atherosclerosis, cancer, emphysema, diabetes, cirrhosis, and osteoarthritis. The severity of chronic symptoms is contingent upon the individual patient’s genetic predispositions, previous lifestyle, and willingness to follow medical advice.
k. Economic Vulnerability – Most Elderly have modest incomes, but that obscures great disparities in income as revealed in comparing median versus mean incomes, as well as comparing incomes among sub-populations of those age 65 and older in 2009.
i. Approximately 10 percent of those age 65 and older have incomes below the poverty index.
ii. Impairments caused by chronic illness and the need for long-term care increase with age.
l. The Old Depend on the Promise of the Young
i. The elderly are vulnerable because they are often economically dependent on the nonelderly. Most of the elderly are not so explicitly dependent, but almost all are indirectly by virtue of their receipt of various government benefits.
ii. Formal Assistance:
1. The elderly find support in both formal and informal networks. Formal support and resources are provided by institutions, agencies, and their representatives.
2. Federal and state benefit programs provide a crucial margin of income and health care access for many elderly persons, yet, the continuation of these programs depends greatly on the willingness of the nonelderly to continue to assist the elderly. For example, social security retirement benefits represent almost 40 percent of income of those age 65 and older. For over half of those over age 65, Social security provides more than 90 percent of their income. Medicare which is financed partly from general tax revenues pays over half of the enrollees’ health care expenses, while Medicaid pays all of the basic health care costs of the poor and about half of the nation’s total nursing home bill.
iii. Family and Social Networks:
1. Married women can expect an average widowhood of 11 years
2. The use of informal, nonfamilial support systems also depend upon the individual’s attitude toward self-reliance, an attitude is often culturally as well as individually based.
iv. Familial Support Statutes:
1. Some adult children voluntarily provide financial support for their aging parents. As estimated 10 percent of the elderly receive regular or significant financial assistance from children and grandchildren.
2. An estimated 30 states have so-called filial responsibility laws. Two models dominate,
a. The first being the requirement that an adult child with the financial means support a parent because of the existence of the relationship between them. That is, the statute assumes that the status of being an adult child create a duty to assist.
b. The second type of statute allows the adult child, upon suit for support of a needy parent, to offer evidence that the parent failed in fulfilling the duties of parenthood and thus is not worthy of support by the child.
m. Autonomy v. Protection:
i. Autonomy elevates the rights of the individual over the wishes, opinions, or needs of others.
ii. An autonomous and altruistic person may feel responsible for others and as a result act in the interests of others even at a cost to that individual.
iii. The more that individuals are dependent upon others or institutions not under their control the less they are autonomous.
iv. Autonomy and personal rights reduce dependency. To diminish elderly people’s dependency we must recognize and expand their rights. Personal autonomy translates into personal power. Autonomy for the elderly means increasing their personal power at the expense of the power of institutions and individuals who would otherwise control or direct their lives.
1. Protection often is opposing to autonomy.
n. Age discrimination
i. The elderly are selected as the favored group b
when attempting to fulfill the ethical requirements of the attorney-client relationship with a client who has lost some degree of mental capacity.
i. The attorney has only choices:
1. Advocate the express desires of the client, regardless of how those desires are affected by the client’s disabled condition, or
2. Determine what the attorney believes are the “best interests” of the client and advocate them, regardless of the desires of the client.
ii. The Model Rules are more helpful because they do include a rule addressing the relationship between the lawyer and a client of questionable mental capacity.
1. Model Rule (MR) 1.14(a) – When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship. (This is much different than a nonadversarial role similar to a guardian ad litem.
iii. Steps outlined in class:
1. Presume capacity
2. Talk to them alone, and you may need to speak with them more than once
3. Take steps to maximize capacity
4. Don’t covet the mini-mental status exam
h. Determining Client Capacity –
i. Decision-making capacity requires, to a greater or lesser degree:
1. Possession of a set of values and goals
2. The ability to communicate and to understand information; and
3. The ability to reason and to deliberate about one’s choices.
ii. This definition emphasizes the individual’s thinking process rather than the outcome of a decision and, though drafted with health care decisions in mind, seems to apply equally well to legal decisions.
iii. Steve Fox – Is it Personal Autonomy or a Personality Disorder
1. In the process of assessing a client/patient’s decision-making capacity and autonomy, there are four common pitfalls:
a. Underestimating the patient’s ability, that is, “age equals disability.”
b. Relying solely on a diagnosis;
c. Lack of independent assessment, that is, relying only on past records or hearsay reports, and
d. Failure to consider the patient’s life history-adaptive behaviors, social skills, values, beliefs, personality traits and characteristics, and past psychiatric history.
i. How should the attorney respond if the client seems to lack mental capacity?
i. Comment (5) to MR 1.14 provides:
1. If a lawyer believes that a client is in risk of substantial physical financial or other harm unless action is taken, and that a normal client-lawyer relationship cannot be maintained…protective measures may include consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decision-making tools such as durable powers of attorney or consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client.
a. Remember that under the rules a lawyer can take protective action if they feel that the client will incur some form of ham. See Model Rule 1.14. You want to determine whether or not there is a durable power of attorney.
j. No express or limited agreement:
i. In certain circumstances, a lawyer may act as lawyer for a purported client even without express or limited agreement from the purported client, and may take those actions necessary to maintain the stauts quo or to avoid irreversible harm, if:
1. An emergency situation exists in which the purported client’s substantial health, safety, financial, or liability interests are at stake.
2. The purported client, in the lawyer’s good faith judgment, lacks the ability to make or express considered judgments about action required to be taken because an impairment of decision-making capacity;
3. Time is of the essences; and
4. The lawyer reasonably believes, in good faith, that no other lawyer is available or willing to act on behalf of the purported client.
