During the 1990s, a new term increasingly became fashionable within the ranks of legal practitioners. The term is elder law, and it refers to the legal representation of individuals who are older members of society.
Although there is no fixed date at which a person becomes “old” (retirement age in many companies is sixty-five or seventy; membership in the American Association of Retired Persons – AARP – is available to individuals at fifty-five), there is a rough sense that sometime during this period people cross the threshold from being middle-aged to elderly.
People reach a time in life where their children have grown up and moved away (the so-called “empty-nesters”) and they can think about more leisure time, retirement, and babysitting grandchildren. They are likely to contemplate the necessity of disposing of their worldly possessions after they die.
It should not be surprising, then, that the legal concerns of older citizens would be different from those of younger people.
Three specific factors contribute to the rise of elder law issues today. First, actuarially, people are living longer now than ever before. Advances in medical science, changes in eating habits and lifestyles, and economic prosperity have all combined to push life expectancies in the United States well into the seventies.
In fact, someone who has survived the mortality risks of childhood and youth can expect to live well beyond eighty. Second, the baby boomers are getting old.
The same post-World War II bulge in population that swelled the elementary schools in the 1950s, graduate schools in the 1970s, and the workforce through the 1950s will swell the ranks of older citizens for the first part of the twenty-first century.
Third, these relatively healthy aging baby boomers are predicted to lead lifestyles very different from those of their grandparents. They will have leisure time and money to spend. When they have problems, whether medical or political, they will be proactive in forging solutions.
They will, as they always have, turn to the law as a vehicle for establishing and protecting their rights.
Elder law is a field that is defined by the clientele rather than the substantive legal problems. In fact, the field is more of an umbrella for many types of substantive practice that are commonly provided for older clients.
It is a buzzword to describe the legal services that elder citizens are likely to require in the areas of estate planning, health law, real estate, Social Security, pensions and retirement, and others.
• Estate Planning. Older individuals contemplating the end of life often seek legal assistance in developing a plan for disposing of their estates. This can be done through a will during the life of the individual.
• Health Law. The fact that older people are statistically more likely to experience health problems means that more of them will have contact with the health care system. As that system changes, and to the extent that lawyers are involved in representing people with health care problems, health law issues will be a major component of elder law.
• Real Estate. Many retired people at some point sell the homes they have lived in and move to retirement communities, small homes, condos, or health-care facilities. Thus, there is a high probability that older people will have one or more experiences with real estate law.
• Social Security. At age sixty-five, most individuals become eligible for Social Security, Medicare, and other government benefits. As with any government system, many people encounter problems getting the right benefits in a timely fashion. Frequently, they require legal assistance.
• Pensions and Retirement. A variety of legal problems are associated with the process of retirement itself. The terms of companies’ retirement policies are not always clear. The timing of retirement is not always agreed upon by employees and their employers. The value of a departing business owner’s equity in the business or succession to leadership is not always clear. The right to manage and control pension-plan assets and benefits may be ambiguous or confusing. These and other issues frequently end up in the hands of lawyers or the courts..
• Other Issues. The elderly also face all of the other legal problems that can be found in society. Sometimes age is a factor in the way those problems are handled. Often the personality of the lawyer – being able to communicate with and relate to older people – is significant. The old as well as the young need to feel that they can trust their lawyers.
In one sense, the denomination elder law is shorthand for saying that a firm or individual lawyer concentrates in or is particularly sensitive to older people and their specific legal needs. Anyone practicing law over the next two decades is likely to encounter elderly clients.
Regardless of whether it is a minor or major aspect of a person’s practice, elder law issues will continue to be an important part of law practice in the United States.