Vol. 6, No. 2, Pg. 14. Elder Law: A New Response to an Age-Old Problem.

• Author: By Franchelle C. Millender

South Carolina Lawyer

1994.

Vol. 6, No. 2, Pg. 14.

Elder Law: A New Response to an Age-Old Problem

14Elder Law: A New Response to an Age-Old ProblemBy Franchelle C. MillenderElderly Americans make up the fastest growing segment of this country's population. In 1980 there were 25.7 million people aged 65 and over in the United States. By 1992, this figure had increased to 32.3 million. Projections indicate that the population of persons aged 65 and older will swell to 70.2 million by the year 2030. The combination of this trend and the realization that the elderly have substantial legal needs that are not being effectively met has resulted in the creation of a new practice area called elder law.

Elder law is defined not by the area of law but by the client to be served. Elderly clients have many of the same legal problems (e.g., estate planning, tort litigation and real estate transactions) as younger clients. Other legal problems are more specific to the elderly.

Although the public has long been aware of the need to plan for death, few have actually planned for the possibility of future incompetence or disability. Yet people are living longer, and there is a greater likelihood today that extended care needs will arise. Meanwhile, the costs of medical care have skyrocketed.

These and other factors have led older Americans to recognize the need for planning. Many people are beginning to consider what will happen if they are unable to care for themselves, asking such questions as:

* Who will handle my affairs?

* How will my assets be managed?

* Will my resources be adequate to take care of me?

* What will happen to my spouse/ disabled child?

* How can I get help from outside sources?

The practice of Elder Law has grown out of a need to provide answers to these and similar client questions.

Often the simplest request will require the most diligence from a lawyer who wishes to protect a client's interest. An older client appears in the lawyer's office with the deed to his residence in hand. He wants the lawyer to prepare a deed conveying the property from him to his daughter. The lawyer could prepare the deed and send the client on his way believing that his request has been taken care of in a timely and efficient manner at a reasonable cost. Or the lawyer could take the opportunity to ask why the client wants the property transferred. This simple question often opens up a discussion that uncovers many underlying concerns of the client.

Usually there are issues the client has not considered before making the decision. Has the client considered the effect of such a transfer on potential Medicaid eligibility, or the loss of the homestead exemption, or the gift tax consequences or the carryover basis to the donee? Whenall the issues involved have been raised, it may turn out that a transfer of his residence is not the way to accomplish what the client wants to do.

A client makes an appointment with her lawyer, saying she needs some assistance in long term care planning for her parents. Her mother needs to enter a nursing home, and they have very little money. The client goes on to say that her parents deeded their house to her a month earlier.

After the client has provided some additional information about her parents' financial situation, it appeared that her mother would clearly qualify for Medicaid assistance if she entered a nursing home and the father could retain all the assets--except for one problem. The transfer of the home had turned an exempt resource into a...