Elder law is a practice area that started out as an outgrowth of the more traditional trusts and estates field, but is essentially a general practice area that is concerned with the needs and legal challenges of older people (elders) as the American lifespan continues to increase. With medical advances and relative affluence, people are living longer, and periods of incapacity are more common, along with a greater incidence of cognitive and physical disability.
Other factors that impact the growth of elder law are the outsourcing of some of the care that families have traditionally provided elders, which has resulted in no small part from the number of women in the workforce, along with family members living apart from each other geographically. There have never been so many octogenarians on the face of the planet, and this has important implications for attorneys practicing law, particularly for those of us who are baby boomers.
What are some of the “legal problems” associated with longevity relevant to elder law? Here are some to consider:
- Wills (especially important if part of a blended or nontraditional family, or if no children)
- Durable Powers of Attorney (preventive tools used, among other things – to keep people out of guardianship or conservatorship proceedings in probate court);
- Longevity Estate (financial and tax) Planning;
- Elder Abuse and Financial Exploitation: Prevention, Detection and Redress;
- Age and Disability Discrimination in Housing;
- Marriage, Common Law Marriage; Divorce and keeping the peace in a blended family;
- Health Care Power of Attorney and Advance Directives (living will);
- Guardianship and Conservatorship probate litigation;
- Capacity Issues in a variety of contexts (especially troubling financial concerns for someone who is starting to “slip” cognitively);
- Probate Decedent’s Estate or Trust Administration; and
- Medicare and Medicaid planning.
Because elder law is a practice area defined by the client served, which means the representation of older people (elders), this sometimes involves the presence or participation of family members or other persons who are involved with caring for or supporting the elder. Elder law has developed from a relative niche practice when it was first recognized as such about thirty years ago – to more of a general practice area. As a practice area elder law is constantly developing, and will continue to do so as we see the number of baby boomers age. The durable power of attorney for health care is probably the most recognized symbol of the rise of the number of elders in our population. Our society will continue to grapple with many longevity and bioethics issues, and quality of life questions will loom larger as baby boomers age and the number of elders rises.
So how do elder law attorneys help their clients? I like to say that the law in this practice area is “a healing profession.” We help individuals, who are often supported by and rely on family members and other loved ones manage disability – negotiating the short term and long term measures to assist an elder in financial and health care decision-making. We can also identify the legal requirements for maintaining an elder’s safety net (aging in place in community, what is effectively “social security”). An elder law attorney with some EQ (emotional intelligence)and empathic skills can also have frank conversations and look at legal problems in the context of financial, medical, emotional , and autonomy factors and values important to the individual. Many elder law attorneys have a wide and deep network of allied professionals who perform work for elders as professional guardians, professional fiduciaries, money management and bill paying services, geriatric care managers, among others.
A big part of elder law is about counseling clients about how available options and alternatives can serve their identified strategy and goals. Each of us who has attained “elderhood” has done so in an individual way, based on certain values, attitudes and approaches to life. You may not think that an attorney would be asking clients about these personal matters, but they are often a substantial part of how an elder law attorney approaches a client’s problem. Why would this be beneficial to the client and his or her family or community? I think it is because many of us – me included – take a big picture approach to our client’s problems, applying helping principles in a multidisciplinary way and with a focus on empathic listening.
Here I would also offer an insight from a favorite book of mine – Daniel Pink’s “A Whole New Mind,” which talks about “high concept, high touch” and in terms of the elder law attorney’s work, it takes us from being a document preparer to being a symphony conductor. A symphony conductor . . . . really Barb?! What I’m talking about is an ability to do my work for clients with sensitivity to the big picture of creating something unique for them that is beautiful, an artistic expression of legal craftsmanship. What Pink writes about is a shift from IQ alone to include also EQ (emotional intelligence), an increased value placed on creativity, and the importance of meaning-making in our work lives. All of these are important considerations for solo attorneys, particularly those working in elder law where there is often chaos, loss, grief, and high levels of emotionality among clients and their family members. I know that focusing on how I am helping people in creative and compassionate ways makes all the difference for me – it is why I love doing the work I do for clients.