The Dynamic Practice of Elder Law

September 2007

by Jennifer B. Cona, Esq.

There is nothing static about the field of Elder Law. For a relatively new practice area, Elder Law has seen dramatic changes, both in the changes to the federal and state laws governing the practice and in how Elder Law attorneys address the needs of our clients. From the genesis of the field, which grew out of a traditional trusts and estate practice, through the “Granny’s goes to jail years” and the short-lived “Granny’s advisor goes to jail” years, we are now left struggling with the ever-tightening noose of the Deficit Reduction Act of 2005 and other budget-cutting initiatives on both the federal and state levels aimed at dealing with an exploding senior population and equally exploding costs of healthcare.

It’s a simple fact that America is “graying.” Healthcare, medical and technological improvements are helping us live longer and, therefore, our seniors are the fastest growing segment of our population. Further, as the baby boomers approach their 60s, their aging and planning issues are becoming paramount. As a result, the field of Elder Law is becoming ever more multigenerational. The adult children are often involved in the parents’ asset protection planning process and the children themselves become aware of the need to plan earlier. This is especially true since the passage of the Deficit Reduction Act with its harsh five-year look-back period and new commencement of penalty period rules. Baby Boomers are witnessing the value of early planning as they struggle through the process with their parents.

Elder Law is also becoming more of a women’s issue. Not only do women live longer than men statistically, women suffer from more chronic conditions than men. As a result, women engage health care services in greater numbers. Further, women are by and large the caregivers in the family. Women take more time off or quit their jobs altogether in order to care for aging and/or ill family members. As such, their own retirement plans and Social Security benefits are cut short and when those caregivers ultimately face old age themselves, they will be in a less viable economic position, leading of course to greater reliance on public health benefits.

It’s of course not just the United States dealing with the issues of an aging population. According to Dr. Jeffrey Rosenfeld, Gerontologist at HofstraUniversity, “While America grasps with addressing the needs of its aging population, other countries are addressing their own aging population in their own way. For example, the Japanese have created a robot called Yorisoifbot to assist the elderly. Yorisoifbot has the ability to remind the elderly when to take their meds and provide them with assistance in multiple areas.” In Germany, criminal activity among the elderly is rising as the incidence of elderly Germans robbing banks because they have no money for food. Also in Germany, prostitutes are being taken off the streets and re-trained as home health care workers. Stories abound of adult children taking their parents to live in Mexico or India where, for a fraction of the cost, they can get medical care and one-on-one attention and assistance that would be prohibitive in the United States.

With the passage of the Deficit of Reduction Act, Elder Law attorneys have been forced to invent creative planning solutions on short notice. As a bar, we were quite comfortable with the planning options available and could navigate our clients through each scenario with relative ease. Not so any longer. In many circumstances the attorney is educated along with the client all at the same time. It can be very difficult to “advise” a client by offering a series of untested options, each being more difficult to explain than the next and none of which offer any guaranteed outcome. While professionally challenging and offering room for legal creativity, which is very exciting, clients don’t generally appreciate being the guinea pig in our sometimes elaborate plans.

Only time will tell how our seniors will be able to plan to preserve their hard-earned assets, whether in advance or in the more typical “crisis planning” mode. Many Fair Hearings and Article 78 proceedings must be held before the Elder Law bar has some semblance of a body of law upon which to rely. In the meantime, those of us who are along for the ride should take the time to relish the creative opportunities, the advocacy opportunities and look forward to the day when we can again have all the answers and a concise set of rules upon which our clients can rely on for some peace of mind.

As a field, Elder Law is, of necessity, likely to expand into ever-increasing bioethical issues, housing issues, grandparents’ rights and more. As Elder Law attorneys, we need to grow and adapt to these changes in order to meet our clients’ demands. Further, we need to focus on the dignity of and take steps to ensure that our seniors are protected not only legally and financially but that their dignity remains place for the rest of their years.

Note: Jennifer Cona, partner and director of the Melville law firm, Cona Elder Law, practices Elder Law and Trusts and Estates, advocating for seniors and their families on Medicaid planning and Estate planning. Ms. Cona also represents hospitals and nursing homes, providing counsel on institutional benefits, guardianships and regulatory issues. She is a member of the National Academy of Elder Law Attorneys (NAELA) and the founder and chair of the New York Advanced Elder Law Focus Group.