Elder law is a rapidly-growing practice area driven by a graying American population with diverse legal needs. In addition to handling matters traditionally encompassed by estate planners, elder law attorneys take a more holistic approach to address the client’s financial, physical, and emotional requirements. Few practice areas touch upon the range of issues that elder law attorneys encounter. Because of this variety and the steady need for these services now and into the future, elder law is an excellent career choice.
This practice encompasses state and federal laws involving Medicare, Social Security, other social services and veteran’s benefit programs, guardianship proceedings, disability rights, end of life decisions, estate planning and administration, federal and state taxes, short- and long-term housing needs, financing healthcare and caretaking needs, pension and other retirement plans, business succession, consumer protection and fraud, elder abuse and neglect, and family matters, such as grandparent visitation, and even divorce. Few lawyers are expert in all of these; thus, elder law practitioners can specialize in just some of these areas and have a network of other professionals to whom they refer their clients as appropriate.
Elder law practice grew out of the Older Americans Act (OAA) passed by Congress in 1965 and which provides grants for a panoply of service programs through a national network of 56 state agencies on aging, 629 area agencies on aging, nearly 20,000 service providers, 244 tribal organizations, and two native Hawaiian organizations representing 400 tribes. Given the sheer number of programs, the uncertainty of their funding, and the questionable future of the Affordable Care Act under the new administration, elder law lawyers certainly have their work cut out for them!
The rising costs of health care and the increasing prevalence of disability and debilitating diseases such as dementia among seniors make proper elder law planning more important than ever. Furthermore, approximately 9.5% of elderly population are victims of elder abuse and neglect. To maintain their dignity and some independence, aging Baby Boomers need a wide range of professional health and social service expertise, as well as home care and residential support and services. The steep and rising cost of long-term care can quickly wipe out an estate; yet, relatively few Americans have long-term care insurance, partly because the costly premiums, especially for those with poor health histories. Helping an older person through the maze of health and social services to obtain the care they need is an important part of the elder law attorney’s practice.
In 2014 (the latest year for which data is available), about one in every seven Americans was aged 65 or older, and that number will double by 2060. Therefore, over the next 30 to 40 years, an estimated $30 trillion in financial and non-financial assets is expected to pass from the large generation of baby boomers to their heirs. Aging boomers will need legal assistance to navigate this transition.
Unfortunately, rather than being concerned about wealth management and transfer, elderly clients may face foreclosure or bankruptcy. Many failed to save enough money for retirement and few companies offer pension plans. Social Security often is not enough, so elder law practitioners are called upon to help these clients access appropriate benefits from the dizzying array of government and private programs.
Business and real estate
In addition to navigating the transfer of wealth, elder law attorneys aid clients with business succession plans and personal real estate needs. As some senior clients downsize their homes or choose to share accommodations for financial or family reasons, elder law attorneys get involved in purchases, sales, reverse mortgages, cohabitation agreements, and, possibly, zoning matters such as where variances are required for building “mother in law” apartments on the lots of relative’s homes. Legal issues also arise regarding guardianship and the selection and financing of assisted living or nursing homes, and long term care facilities.
Regardless of the size of their estates, in addition to the standard estate and tax planning services, older clients need help managing their retirement accounts and financing long term care and housing. Baby boomers are expected to live longer than past generations, with an average life expectancy of 84 years once they reach the age of 65. The number of retirees will double by 2030, from 12 percent of the U.S. population to almost 20 percent. While some clients are financially sophisticated, many need help understanding their 401(k) and individual retirement accounts, rolling over a 401(k) into a retirement account, or taking over the retirement account of a deceased spouse.
On the other hand, many seniors remain in the labor force because they want to or need to work. According to AARP, one in five American workers is over the age of 55, and 65% of them reported seeing or experiencing age discrimination in the workplace. In 2015, age discrimination comprised almost a quarter of all discrimination claims filed with the EEOC, and they are on the rise. Consequently, in addition to employment contracts and severance agreements, elder law practitioners may find themselves handling discrimination claims.
So-called “gray divorce” also is on the rise. Among those aged 65 and older, the divorce rate roughly tripled since 1990, to six people per 1,000 married persons in 2015. Moreover, with the high divorce rate among the younger generation, more children are being raised by their grandparents and more grandparents are fighting for visitation rights. Hence, elder law practitioners may find themselves involved in family law issues. Later-life divorce also may necessitate further financial and estate planning as well as real estate and business transfers. Senior divorcees, particularly women, tend to be less financially secure than married and widowed adults, further complicating matters.
Elder law as a practice specialty is evergreen as there is increasing need with no sign of abating. In addition to servicing a potentially vulnerable population, it provides a varied and steady career choice for its practitioners. Below are three well-established resources for attorneys in this practice area:
The National Academy of Elder Law Attorneys, Inc. (NAELA) was founded in 1987 as a professional association of more than 4,500 attorneys dedicated to improving the quality of legal services provided to people as they age and people with special needs.
The National Elder Law Foundation is the only national organization certifying practitioners of elder and special needs law. There are nearly 500 Certified Elder Law Attorneys across the country.
The American Bar Association Commission on Law and Aging is a collaborative and interdisciplinary leader of the ABA’s work to strengthen and secure the legal rights, dignity, autonomy, quality of life, and quality of care of aging persons.
National Council for Aging Care's guide on Elder Abuse provides information regarding elder abuse and additional resources for assisting elderly clients.