The Maturing of Elder Law: Later Life Legal Planning
In 1986, I offered a new course, “Elder Law,” that dealt with a practice area that barely had a name. Today, 20 years later, both Elder Law and I have “matured.”
In its early years, Elder Law was commonly identified with Medicaid planning (known in Pennsylvania as Medical Assistance), which helps pay for the cost of nursing home care. While Medicaid planning remains a core element in any elder law practice, the area of Elder Law encompasses much more, including guardianship and mental capacity issues, long-term care planning, tax planning, basic estate planning, drafting trusts, advising trustees, acting as trustee, and creating special needs trusts. With the expansion of the practice, today I think it better described as “later life legal planning.”
Gerontologists classify the elderly, those age 65 or older into three groups. Those age 65 to 75 are the “young-old.” (Good news: I will soon be “young” again.) Those age 75 to 85 are the “old,” and those age 85 and older are classified as the “old-old.” With the rapid growth in those over age 85 (currently numbering over four million), it is not surprising that elder law attorneys so often find themselves sitting across a desk from a very old client.
By the age of 85, most individuals will have physically declined. No matter how many hours spent at the gym feeling the burn and despite “rejuvenating” trips to the spa, those 85 and older lose strength and flexibility. Hearing and vision will decline. Short-term memory will be less effective. (Can you remember who wrote this article?) Though not necessarily incapacitated, the old-old often need help with their personal or financial affairs. They and their families increasingly turn to attorneys for advice and counsel.
For example, more than half of the old-old suffer from dementia or other mentally debilitating conditions and clearly need assistance. Counseling clients with dementia is practically a sub-specialty in itself as it requires planning for surrogate health care decision-making, property management planning, and long-term care.
One of the less uplifting aspects of old age is the very real possibility of death. Consequently, the old-old must consider the complex health care decisions that they are likely to face—decisions that literally mean life or death.
Long-term care planning is also a critical element of later-life planning. While no one wants to move into a nursing home, no one should assume that they will live at home till the very end (nor, unfortunately, at the Ritz Carlton). Any elder law attorney can tell of phone calls from adult children who fearfully relate that Mom or Dad “just can’t live alone any more” and are desperately hoping that the lawyer will guide them to an affordable, safe living arrangement for the parent such as in-home assistance, a continuing care retirement community, assisted living or a nursing home. And they expect the attorney to help them craft a way to pay for the costly long-term care, including Medicaid reimbursement.
Later life wills are another common client need as many very old clients, often surviving spouses, revisit wills made in their younger years. But before writing the will, the client and the attorney must work out a plan for paying for potential costs of long-term care. With nursing homes costing in excess of $7,000 a month and even quality assisted living costing $4,000 a month, unexpected long-term care expenses can quickly deplete the estate.
One common reason for a new will is the behavior of the client’s children, grandchildren and other potential heirs. Unfortunately, too often the very old client must write a will that addresses the reality of family divorces, remarriages, second families, alternate lifestyles, and drug and alcohol abuse. (Oh, the joys of growing old.)
Some old-old clients must be encouraged to focus more on their own needs and less on “leaving it all to the children.” The attorney must help them make reasonable decisions while respecting their right of autonomy. (It helps to keep repeating the mantra, “It’s their money. It’s their money.”)
Retirement planning is also a growing part of the practice of later life legal assistance. It is characterized by financial planning and especially by planning for distributions from 401(k) plans and Individual Retirement Accounts. The role of attorneys in this field is still uncertain as attorneys are understandably reluctant to give financial advice. Some attorneys, sensing a rapidly growing opportunity, have begun to partner with financial advisors. Still other attorneys are now licensed to sell long-term care insurance, again in the belief that if such insurance is called for, there is no reason not to be able to sell it to the client.
Some elder law firms have become full-service legal, financial and social service responders. They have a multidisciplinary practice in which legal advice is only part of a large mosaic of client services. These firms employ or contract with other professionals such as geriatric social workers to be the client’s “case manager,” and so become a “one-stop” provider for the old-old client.
Other law firms are entering into life-care contracts with clients in which the firm agrees to provide assistance in obtaining and paying for appropriate long-term legal care for the life of the client. The firm creates a long-term care plan, monitors the client’s condition, and sees to it that the client obtains the proper level of care in the appropriate environment.
While the practice of later life legal planning will not appeal to all, those attorneys who are willing to offer more broad-based services that meet the later life needs of their clients are likely to prosper. For better or worse, we live in an age of convenience and competition—clients and their families want a single source solution to the intertwined problems of aging. Simply put, the future belongs to the attorneys who adapt their practices to the changing needs of their clients. 
