As of the early 2000s a relatively new specialty devoted to the legal issues ofsenior citizens, including estate planning, health care, planning for incapacity or mental incompetence, the receipt of benefits, and employment discrimination.
The genesis of elder law can be found in the convergence of several profound social developments. One phenomenon is a rapid increase in the elderly population. According to statistics from the 2000 U.S. census, more than 12 percent of the population in the United States was over the age of 65; and that percentage was expected to rise to 20 percent by the year 2050. Another phenomenon is that generally, older U.S. citizens in the early 2000s are wealthier and better educated than ever before. These two circumstances have led to a rise in the collective political clout of older U.S. citizens. This newfound political strength has coincided with a trend toward cutting the government benefits and entitlements on which many elderly U.S. citizens depend. At the same time, healthcare costs have skyrocketed. As a result of this confluence, more and more elderly U.S. citizens are seeking legal assistance to protect their financial interests.
Another phenomenon behind the elder law specialization is that older people in the United States are subjected to age discrimination by a populace obsessed with youth and afraid of aging. Ageism stigmatizes the process of growing old and leads to abuse and neglect of some elderly persons. It also leads to discrimination against older workers by employers who perceive them as less productive than younger workers. These same older workers often receive higher pay because of their years with the company. For these reasons, employers often try to replace older workers with younger workers, who may produce more and work for less compensation. Elder law addresses these and other special legal problems of the elderly.
A primary issue for older people is planning for final medical care. Many people, especially older individuals, write a living will. This document gives individuals advance control over their final medical situation. Through a living will, a person may direct the termination of life support in the event of terminal illness, permanent unconsciousness, or brain death.
An elderly person may wish to place healthcare decision making in the hands of a trusted third party, with an advance healthcare directive. All states allow this directive for property management, but not all states allow it for health management. The legislative trend favors the allowance of advance healthcare directives through a durable power of attorney. This legal document allows an elderly person to appoint a trusted third party to make major healthcare decisions in case of mental incapacity.
Without a durable power of attorney, a guardian will be appointed, in the event of mental incapacity, to make healthcare decisions. A conservator will be appointed to manage property. The appointment of a guardian and a conservator is accomplished by a judicial proceeding. This proceeding is involuntary, and the court is free to appoint whoever will act in the best interests of the person who is mentally incompetent. A court appointee may or may not be a friend or relative, so the durable power of attorney is a more effective way to ensure that a person's healthcare wishes will be followed in case of sudden mental incapacity.
Older persons must also prepare for the possibility of living in a nursing home. Nursing homes are regulated by the Nursing Home Reform Act (NHRA) (42 U.S.C.A. § 1396), enacted as part of the Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100–203, 101 Stat. 1330. The NHRA covers a host of requirements for the licensing of nursing homes. It also contains a list of the rights of nursing home residents. These rights include privacy, confidentiality, and freedom from abuse and restraints.
Many older people are forced to move into nursing homes to convalesce from surgery or to receive long-term custodial care. Without adequate planning, the financial consequences can be devastating. Nursing homes are very expensive, ranging in cost from $2,000 to $6,000 a month. Most older individuals are unable to make such payments and must rely on the federal government programs medicare and medicaid for support.
Medicare (42 U.S.C.A. § 1395 et seq.) is authorized by the U.S. Congress to provide for the acute health care of older citizens. Any person who is age 65 or older and is eligible for social security benefits is entitled to Medicare coverage. Medicaid (42 U.S.C.A. § 1396 et seq.) pays for the medical expenses of low-income individuals who are aged, blind, or disabled.
Medicare is more available than Medicaid, but it generally provides less coverage. For example, Medicare covers nursing-home care for only a short period of time, whereas Medicaid provides extended nursing-home care but requires that the recipient be impoverished to qualify. In other words, elderly persons with property and income have to deplete their own resources before qualifying for Medicaid's coverage of long-term health maintenance. Seniors who need custodial care but do not qualify for Medicaid often buy private long-term care insurance. This type of insurance pays for nursing-home care and home health care and is governed by state statutes.
The issues surrounding Medicare and Medicaid are complex, amorphous, and political. The coverage under these programs is subject to numerous exceptions and caveats, and many people, politicians and others, dispute the wisdom of public funding of health care for seniors. Medicare and Medicaid exist only so long as Congress maintains the statutes that enable them, and the statutes can be changed to increase or decrease eligibility and coverage.
After retirement, seniors rely on a variety of benefits for financial support. One common source is old-age survivors and disability insurance (42 U.S.C.A. § 401 et seq.), a part of the Social Security program. Social Security provides lifetime monthly payments after age 65, derived from payroll taxes collected from
employees and employers. The amount of the applicant's monthly payment is based on her or his earnings history.
Eligibility for Social Security benefits is determined by a measure called quarters of coverage. Generally, the applicant must have earned a specified minimum amount of wages within a three-month period at least 40 times. Anyone over age 65 who has earned 10 years, or 40 quarters, of coverage qualifies for Social Security. Social Security also provides benefits for surviving spouses and children under age 18, and disability benefits for those unable to work until an expected retirement age.
Monthly Social Security benefits will be adjusted up or down if older workers postpone retirement or retire early, respectively. Wages earned after retirement and above a certain amount will lower monthly Social Security benefits, and benefits may be taxed by the federal government if a recipient gains income from another source. A dispute over qualification or payments must be heard by the social security administration before it can go to court.
Many seniors receive income from other sources. Military personnel wounded in action qualify for veterans' benefits. The amounts of these benefits vary with the severity of the disability. Veterans' benefits are also available to parents, children, and spouses of deceased veterans. The Veterans Benefits Administration processes claims and oversees the dispersal of veterans' benefits. Appeals must proceed through administrative hearings and reviews before they can be heard in court.
About half of all older people receive benefits from pension plans. A pension is compensation paid by an employer to an employee upon retirement. Pensions are not a general public benefit paid by the government, and thus, pension disputes are not required to pass through any administrative hearings and instead go directly to court. Unionized companies, large employers, and the government typically provide pensions for their workers. The Pension Benefit Guaranty Corporation, a federal agency authorized by the U.S. Congress, provides insurance to workers whose employers are unable to redeem pension plans.
Supplemental Security Income (SSI) is a federal program created to provide cash payments to aged, blind, or disabled persons living below the poverty line. An elderly person with no income and no Social Security payments can benefit from SSI. Any senior who qualifies for SSI automatically qualifies for Medicaid. A denial-of-benefits or denial-of-payment dispute must be heard by the Social Security Administration before it can be heard in court.
Elder law is also concerned with protecting older workers. The primary piece of legislation in this area is the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. §§ 621–634 (1996). Originally enacted by Congress in 1967, the ADEA protects workers age 40 and over from discrimination in hiring, firing, compensation, and conditions of employment. The purpose of the ADEA is to promote the employment of older persons, prohibit arbitrary age discrimination in employment, and encourage solutions to the problems associated with aging workers.
However, not all workers over age 40 are protected by the ADEA. Workers in a business with fewer than 20 employees are not protected. Moreover, executives and policy makers are excluded if they have nonforfeitable retirement benefits of at least $44,000 a year.
To establish a case of discrimination in hiring, generally, a person must (1) be age 40 or over; (2) apply for and be qualified for a job for which the employer was seeking applicants; (3) be rejected for the job; and (4) show that the position remained open after the rejection, and that the employer sought applicants with similar qualifications or filled the position with a younger person possessing comparable qualifications. In case of discharge, a worker must gather information showing that the reason for the discharge was old age. A worker may also use statistics to try to prove a pattern of discrimination in hiring or firing.
A clause in the ADEA allows employers to defend an age discrimination suit by showing that the refusal to hire or the discharge was based on "reasonable factors other than age" (29 U.S.C.A. § 623(f)(1)). Thus an employer may discharge an elderly worker for lack of production, even if age is contributing to the lack of production. Employers may facially (with obvious intent) discriminate based on age if youth is a "bona fide occupational qualification reasonably necessary to the normal operations of the particular business" (29 U.S.C.A. § 623(f)). This defense is effective where a position calls for physically strenuous activity or involves public safety, such as that of airplane pilot, air traffic controller, or bus driver.
The U.S. Supreme Court has noted that older people do not constitute a discrete and insular group. Instead, they form a fluid group of which everyone with a normal life span will be a member. According to the Supreme Court, this means that older individuals, as a group, do not need "extraordinary protection from the majoritarian process" (Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed 2d 520 ). Because aging necessarily involves some physical and mental deterioration, age discrimination in employment receives less judicial scrutiny than does either racial or sex discrimination.
Many state bar associations have formed elder law sections. These sections consist of attorneys who volunteer time to keep older people abreast of changes in the law that affect them as a group. The challenge for the law is to find and enforce the rights of older citizens, being ever mindful that the human frailties that make elder law necessary await us all.
Department of Commerce, Census Bureau. 2001. The 65 and Over Population: 2000. Census 2000 Brief. Available online at <www.aoa.dhhs.gov> (accessed June 2, 2003).
Flint, Margaret M. 1995. "Nursing Homes." Practising Law Institute/Estate Planning and Administration 239.
Frolik, Lawrence A., and Richard L. Kaplan. 1995. Elder Law. St. Paul, Minn.: West.
Kass, Richard G. 1986. "Early Retirement Incentives and the Age Discrimination in Employment Act." Hofstra Labor Law Journal 4.
Lofton, F. Douglas. 1995. "Determining Legal Mental Capacity." National Bar Association Magazine 9 (June).
McCue, Judith W. 1995. "Disability Planning for the Senior Citizen." American Law Institute-American Bar Association C126.