Elder Law

• Author: Jeffrey Lehman, Shirelle Phelps

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As of the early 2000s a relatively new specialty devoted to the legal issues of SENIOR 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

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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...