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The Expanding Field of Elder Law

Kevyn Burger February 18, 2019
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Older people are taking legal steps to protect themselves, while law enforcement gets more aggressive on their behalf.

At age 25, Allen Williams is preparing for a career as an advocate for older people. Currently pursuing a master of arts in gerontology at the acclaimed Leonard Davis School of Gerontology at the University of Southern California, Williams’ next stop will be law school.

“I’m going to specialize in elder law. I’m interested in public policy related issues in aging and public interest law,” he said. “And I want to work with elders who can’t afford legal services. There’s such a need and that’s only going to continue.”

Today, elder law practitioners are in demand as never before. A growing number of attorneys have developed the practice specialty to serve the diverse and complex needs of the expanding pool of aging clients.

At the same time, law enforcement efforts to protect seniors and prosecute and punish those who mistreat them are also on the rise. There are more specialized investigators now assigned to crimes against older citizens in response to more Americans aging into their most vulnerable years.

The ‘Big Tent’ of Elder Law

“With elder law, not everyone does the same thing. Elder law is a big tent, a conglomeration of legal areas that get bunched under this specialty,” said Charles Sabatino, who has taught elder law at the Georgetown College of Law for three decades and is director of the Commission on Law and Aging of the American Bar Association.

“Elder law is unusual because it involves so many areas of the law—estate planning, probate and trust administration and long term care planning but also housing, benefits, pensions, guardianship issues. Practitioners may focus on one or two of these areas and develop a specialty within a specialty,” he explained.

While some clients seek the counsel of an elder attorney proactively, many more arrive on their doorsteps they have an urgent need.

“We love it when they try to prevent problems but we expect to see clients when there’s a crisis—a death in the family or a diagnosis of dementia. We see them when someone goes into a nursing home,” said Robert Fleming. The author of The Elder Law Answer Book, his Tucson-based practice is devoted to concerns of older clients.

Fleming is one of the nation’s 500 some Certified Elder Law attorneys. The specialty is relatively new; the National Elder Law Foundation has certified attorneys since 1992. To qualify, lawyers must pass a rigorous exam in 12 content areas, undergo a review by legal peers and have at least three years experience focused on the legal needs of older clients.

In addition, the National Academy of Elder Law Attorneys is a nonprofit professional association of approximately 5000 practitioners who routinely represent the concerns of older clients.

“I would say that anyone with the CELA designation has worked with social workers, medical professionals, accountants, financial planners. We are comfortable working in an interdisciplinary team,” Fleming explained. “We have those existing relationships or know how to form them.”

Elder law attorneys are also prepared to help clients who arrive seeking special needs planning for a disabled child, grandchild or other loved one. 

“If a client leaves them money, it may reduce the public benefits they are eligible for, so they must be thoughtful about this,” Fleming said. “There has to be someone in place to manage their finances and their life and health decisions.

“Someone who may have spent much of their life taking care of a child with a disability may be isolated or may have fractured relationships, with no family to step in,” he said. “That happens, and that’s when we can be particularly helpful.”

Fleming notes that his colleagues are also frequently called to address the legal needs of the growing number of so-called ‘elder orphans,’ people without a robust circle of family and friends to assist with their needs.

“When they become incapacitated, who will manage their money and make health care decisions, and who will handle their estate after they die? That cohort is challenging to work with; you have to figure out how to hook up with a case manager or a fiduciary organization or do it yourself,” he said.

“We find those resources, from handling financial holdings to figuring out what to do with their dog.”

The Role of Prosecution and Protection

The Centers for Disease Control calls elder abuse a “significant public health problem,” with one out of ten people over 60 who live at home experiencing some form of abuse, neglect or exploitation. The CDC qualifies that statistic, noting that it is likely artificially low because “many victims are unable or afraid to disclose” their mistreatment.

From a prosecutorial standpoint, ever more local, state and federal resources are being allocated to protect older people and to pursue those who financially defraud or physically abuse them.

“Because many of today’s seniors have more resources than seniors in the past, the criminal element is focusing on their money,” said Mike Freeman, Hennepin County Attorney and Chairman of the Board and immediate past president of the National District Attorney’s Association.

“Financial stuff is tricky. Older people don’t want to admit or acknowledge that they did something stupid. Or it’s a family member who has ingratiated themselves, and they don’t want to turn on them,” added Freeman, who recently assigned two of his staff attorneys to work full time on pursuing crimes against the elderly.

Research cited by the National Center on Elder Abuse confirms Freeman’s assertion that those nearest to older people are the most common perpetrators, preying on them and plundering their holdings. The NCEA highlights a study that found almost 60 percent of older adults who were financially exploited suffered at the hands of adult children, grandchildren or spouses, the very people entrusted with their care. That was followed by friends and neighbors (17 percent) and home care aides (15 percent).

“When we get cases, we are aggressive to charge. When a family member is victimizing their parent or grandparent, the other victims are relatives who are cheated out of their inheritance,” said Freeman.

Earlier this decade, Freeman was among the group of advocates who successfully lobbied the Minnesota legislature for reforms to strengthen the state’s penalties for elder abuse. The tougher approach had been opposed by the state’s hospital and long-term care industries.

Now caregivers, whether family members or in institutional settings, can face felony prosecution and even incarceration if they intentionally abuse, maltreat or neglect the elderly in their charge.

“Previously the most we could charge most of them with was misdemeanors or gross misdemeanors,” he said. “We find police are much more willing to do the investigation and bring us those cases now that we have the tougher punishment options. We’ve had several instances where we’ve sent people to prison.”

Freeman has seen law enforcement and charging agencies working hand-in-glove with elder law practitioners in the quest for justice.

“We love working with elder law attorneys, they see what’s going on in the community and refer cases to us,” he said. “There’s good communication with private bar; we respect each other.”

The Scope of the Elder Abuse Problem

But even in the era of advanced analytics, the scope and metrics of the problem of elder abuse remains unclear.

Since the 1970’s, states have been required to follow a federal mandate to compile statistical data on children who are abused. But there is no similar mandate to do the same regarding the abuse and neglect of the elderly and other vulnerable adults. Various states differ in how such crimes are identified and reported.

As a result, the National Center on Elder Abuse maintains that knowledge about maltreatment of the elderly lags by as much as two decades behind the fields of child abuse and domestic violence.

Pointing out that there is not even a universally accepted definition of elder abuse at this time, the Center has called for a ”coordinated, systematic approach” to the problem, with input from policy-makers, researchers and funders.

Currently, the federal Administration for Community Living, which is part of the US Department of Health and Human Services, is building a national database on the abuse of seniors.

The National Adult Maltreatment Reporting System, began collecting Adult Protective Services data from the states in 2016. The NAMRS website explains that this centralized system will directly inform prevention and intervention practices in the future, and identify system gaps for responding to and preventing maltreatment.

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Kevyn Burger

Kevyn Burger is a freelance feature writer and broadcast producer. She was named a 2018 Journalist in Aging Fellow by the Gerontological Society of America. Based in Minneapolis, Kevyn is the mother of three young adults and one rescue terrier.

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