The Law and Aging in America

The Golden Years should be a time to relax and enjoy the fruits of one’s labors. Unfortunately, the high costs of healthcare quickly exhaust retirement savings and Social Security income for many older adults. Older people do not want to be a burden, and do not reach out to their adult children or community services until it is too late.

There are many resources for older Americans, but older people and their families need to know how to access community-based programs and low-income services. For more information on elder outreach options and government service providers, talk to a local elder law attorney.

Legal Issues Affecting Older Americans

Silence has long been a problem. “We don’t like to talk about things that are uncomfortable: Death, dying, disability, mortality,” says Marco Chayet, an elder law and probate litigation attorney in Denver.

“But the alternative to not planning and not facing those issues is horrific. Communication is key.”

Workplace Age Discrimination

Your manager could drop hints that you’re not as valued as you thought you were. Or you interviewed for a job you seemed perfect for, but never heard back.

“Employees should be on guard for differences in treatment between themselves and similarly situated coworkers with regard to disciplinary action, performance requirements, and overall treatment by supervisors or management,” says Archibald J. Thomas III, an employment litigator for plaintiffs in Jacksonville, Florida.

“There are code words people use for discrimination, talking about how they want a ‘young, vital work force,’ things like that,” says Lynne Jaben Bratcher, a discrimination attorney from Independence, Missouri. “They say, ‘You don’t have enough energy,’ or ‘You’re not good with computers.’ They’re stereotypes.”

Proving Age-Based Discrimination

Age discrimination may be difficult to prove, but some actions are blatant. Thomas remembers one such case.

“An employee, under the guise of ‘reorganization,’ had to repost for a position he held for many years with satisfactory performance. The employee was ultimately replaced by a substantially younger employee who had no prior experience,” he says. The case settled out of court.

Bratcher remembers a situation “where an employee was going to leave because the CEO was so difficult, and the board decided to fire the CEO and keep her,” she says. She cautions: “That’s the only time out of hundreds of cases that that’s happened.”

Will and Estates: You’re Not as Young as You Think

Here are three reasons people don’t make out a will, according to Samara Nazir, an estate planning and probate attorney based in Overland Park, Kansas. First, people think they’re not rich enough. Second, they think they’re not old enough. Third, they don’t want to think about death.

“And a fourth reason is that it seems very overwhelming to people,” Nazir adds. “It feels like they have to have all of this homework done before they start planning, which is not true.”

If discussing money and death feels bleak, she adds, what can happen if you don’t plan may be much worse — particularly if you become incapacitated.

“Estate planning is to put a plan in place so that somebody can step in and make those decisions for you,” says Nazir. “If not, then your family members or loved ones have to go to court and go through the process of what’s called a living probate, to be able to get the authority to make those decisions on your behalf, which is a very tedious, expensive, and ongoing process.”

Even families sometimes disagree — as Chayet discovered when his grandmother started to suffer from diminished capacity while he was in law school.

“There was disagreement — and that’s an understatement — between my mother and my uncle about my grandma’s care and assets,” says Chayet. The dispute was so severe that it led Chayet to pursue elder law. “A big part of my practice is trying to prevent or stop the exploitation of the disabled and incapacitated or elderly.”

Elder Abuse and Financial Exploitation

Relatives are responsible for elder abuse and neglect most of the time. Adult children or spouses make a show of caretaking with one hand while draining resources with the other. “The exploiters themselves are often family members,” says Chayet. “It’s a very tricky and complex area.”

How do you convince a person whose memory is failing not to give any more money to a beloved grandson? How do you protect people who feel they are already under a loved one’s protection? “There is no such one-step solution. It needs to be all-encompassing, holistic,” says Chayet. “Communication is the most important first step here.”

After Chayet and his family made the mistake of “not really dealing with the issue until it got really bad,” he was inspired to support both tighter protections — including “a newer uniform guardianship-conservatorship act that requires, if there’s an emergency guardianship, that an attorney get appointed immediately for the respondent” — and looser ones, so that, for instance, a person who is under a guardianship can try to regain their independence and terminate the guardianship.

Health Insurance and Medicaid: Protecting Assets

The rising costs of healthcare for older people can quickly burn through retirement savings. Many older people cannot afford the premiums for long-term care insurance. What does this mean for your future quality of life?

“When we talk about Medicaid planning, we talk about the ability to try to preserve assets in the event you need long-term care in the future,” says Anthony Enea, who practices elder law in White Plains, New York. “The way they normally do that is by utilizing a Medicaid asset protection trust. It’s an irrevocable trust where you transfer, for example, your house and some savings into the trust.”

Timing is everything. Medicaid kicks in once you’ve exhausted many of your assets. You need to transfer your assets to the qualifying trust at least five years before applying for nursing home benefits. “Once five years go by,” Enea says, “Medicaid doesn’t count those assets anymore.”

Laws surrounding Medicaid vary by state. Some states have different rules for the lookback period. “Medicaid in New Jersey is not as generous as it is in New York,” says Enea. “Medicaid in Florida is not as generous as it is in New York. We have many clients who retired to Florida, spent 15 to 20 years there, and then when they need Medicaid, they come back to New York.”

Enea adds: “My clients are individuals and families, they’re not corporations. What we do is help individuals. That’s what we take care of.”

Assisted Living Planning

Putting your parent or yourself into an assisted living facility or nursing home is not an easy decision. With baby boomers currently the largest adult age group in the U.S., there’s an opportunity to create better facilities for older adults — or even to provide care at home, says Florida attorney Bennie Lazzara Jr.

“That’s what the future should hold for us,” says Lazzara, who specializes in nursing home cases. Instead, he says, the industry is “just building more and bigger nursing homes, which is not going to solve the problem of getting better or more dignified care. They want to try to keep what they call ‘heads in the beds’. It’s probably going to exacerbate problems.”

Unlike elder attorneys who can work proactively, Lazzara is almost always called once the damage is done — damage often avoidable but for financial incentives baked into the system.

“The biggest problem of all in nursing homes is not having enough staff to meet the needs of the residents,” he says. “No one disputes that. The other problem is how the government is taken advantage of. The sicker the resident, the more needs the resident has, the more the government will pay. Unscrupulous owners are trying to get sicker residents because the sicker the residents, the more money they can make. If you’re doing that at the same time you’re cutting back on staffing, it’s a disaster.”

Assessing the Quality of an Assisted Living Facility

The government assesses nursing homes annually, and the surveys are available both on-site and online at Medicare.gov. Lazzara advises people to read these before choosing a facility, and to be both observant and skeptical.

“There are going to be some obvious signs that it’s not a good place. What it smells like; what it looks like,” he says. “You want to ask them, ‘Can I see copies of the last three surveys you had?’ Then you take them home and read them. They’re not difficult to read, and they will alert you to whether it has had any major deficiencies in the last three years. They’ll cite a nursing home for having insufficient staff to care for residents. They’ll cite them for not dealing with falls appropriately.”

Lazzara says you need to visit a care facility not only before putting your mother there, but also again when she is living there. Visit at irregular times to ensure she’s receiving quality care.

In some states, you can sue a care facility for loss of dignity. In such cases, Lazzara notes, they can be difficult and expensive to bring. “If you go up there and find your mother day after day, time after time, lying in her own feces or urine, sometimes with no bedclothes on, those things are a little bit easier to prove,” he says. “The dignity case gets wrapped up in whatever the injury is.”

Lazzara is not condemning the industry. But with the trend toward big, national, for-profit chains, he finds “the emphasis really is on profits over people. There’s got to be a better way of doing it.”

Nursing Home Alternatives and Community Support

Congress passed the Older Americans Act (OAA) in 1965 to address the lack of social services for older Americans. The OAA also established the Administration on Aging (AOA) to administer new grant programs and provide advocacy for the aging population. However, it has been more than 60 years since the OAA, and older people continue to make up a growing demographic.

There are resources for Americans aged 65 and older. However, accessing those resources is a problem. Many one-size-fits-all options do not work for healthy aging people who want to stay in their community and spend time with family and loved ones. Family caregivers and community living provide a healthy alternative to nursing home care.

Where Is Society Going With Elder Rights?

“You have to respect the dignity of people,” says Heidi Isenhart, an elder law attorney in Orlando, Florida. Working in guardianship, estate issues, and probate, Isenhart’s work can be complicated by the intense emotions that attend incapacitation and end-of-life issues. “You’re doing a bit of social work as well as the practice of law at the same time.”

The bottom line is trying to prevent the exploitation of older people. “Sometimes an exploiter can be the pool guy coming by to get paid every day. Sometimes the worst exploiter can be a child, given this inherent conflict of interest. Is the child going to spend her inheritance to put the parent in the best place and give them the best care, or not? Does the child have a manipulative spouse that wants to control things and has their eyes on money?”

She adds, “People who do this type of law are pretty committed, and generally they do their best to protect people. It may not be the flashiest area. But if we don’t protect the most vulnerable, what are we doing? Where is our society going?”

Get Legal Help for Elder Law Questions

A local elder law attorney can explain your legal options and help you take the right steps to provide for your older family member and protect them from abuse. Contact a local elder law attorney for legal advice.