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April 3, 2003

Law prof examines “elder law in a nutshell”

With Americans living longer and older Americans accumulating more wealth than previous generations, an increasing number of legal questions have emerged, including health care decision-making, protection of assets and public benefits entitlements.

To address these issues, a new discipline has emerged since the 1980s: elder law.

According to Pitt law professor Lawrence A. Frolik, an expert in elder law, “There is a constellation of legal problems that arise as a consequence of being age 65-plus, including the planning for transfer of assets and dealing with later-life health care issues, since increasing age usually means increasing medical costs and caregiver costs.”

As a guide to wade through the legal quagmire, Frolik and colleague Richard L. Kaplan, a University of Illinois law professor, wrote “Elder Law in a Nutshell” (3rd Edition, Thomson West, 2002).

Primarily intended for health care professionals, social workers, insurance agents and financial planners, as well as lawyers and law students, “Elder Law in a Nutshell” also is accessible to the lay population as a self-help book that winds through a myriad of elder care issues, addressing frequently asked questions.

Among the subjects covered are: Medicaid laws and strategies; health care directives and power of attorney; living wills; ethical considerations of older clients; long-term care insurance; nursing homes and other assisted-living facilities and housing alternatives; legal guardianship; Social Security and supplemental security income; pension plans; veterans’ benefits; abuse and neglect issues, and age discrimination.

Frolik, who teaches, among other courses, one called Law and the Elderly, said that elder law started in the late 1980s, growing out of law practice that concentrated primarily on benefits for the disabled, and estates and trusts, two areas of his private practice prior to his entering academia.

He said there are two key ages in elder law. The first is the traditional retirement age of 65, when many people get a one-time cash settlement and need advice on how to secure an income for life and still have some money left to pass on to their children.

“Sixty-five can be a kind of wake-up call: When you retire you may take a step down in regular income; you may want to move to Florida. There’s usually a planning opportunity if you get a lump sum retirement fund,” Frolik said.

The second significant age is 85, when roughly half the population suffers measurable diminished mental acuity. “How do we manage people’s money when they are losing mental capacity? Who’s responsible for that? How do we know what that person’s values are and how do we make sure those values are honored?” Frolik said, citing typical legal questions associated with aging. “People with some financial resources still might have problems paying for their long-term care in nursing home. They’re looking for alternatives, but they don’t want to move in with their relatives. They need advice on planning their estates so the money doesn’t just run out.”

With 4 million Americans now over 85, rights regarding end-of-life and other health care decisions come more into play, Frolik said. Allowing people to control their health care even though they’ve lost mental capacity can require legal documents such as living wills, powers of attorney, advanced health care directives and termination-of-life-sustaining-treatment directives.

“What happens as you create these legal rights for people, such as the right to terminate health care, and the patient’s right to get Medicaid if you’re in a nursing home, almost by definition you create the need for lawyers, because people need advocates to get their rights enforced,” Frolik said.

So lawyers dealing with these common issues eventually developed the discipline of elder law, a group that today numbers some 4,000.

“Naturally, academics followed right behind, and that became an area of interest for me,” Frolik said. He has been teaching law for 28 years, the last 14 in elder law. “It’s the rapid and increasing growth in numbers of elderly people, combined with the fact that more of those people are arriving at those ages with some money and that money is causing legal problems — that is the focus of teaching elder law,” he said.

Elder law also has brought into prominence concern with elderly abuse and neglect, which has resulted in specific laws to protect the elderly against fraud, and federal mandates about what is acceptable care in nursing homes, something that patients and families should be aware of, he said.

Other issues include long-term health insurance, a relatively new and popular option, Frolik said. “The problem is not with insurance companies offering a new product, it’s whether these policies are delivering as promised. I think we can expect increasing litigation about what these policies mean, what the language means.”

In addition, “Elder Law in a Nutshell” suggests strategies for dealing with the complexities of Medicaid law.

“At the core of elder law is planning to pay for long-term care through the Medicaid program, which in this country pays for most of that care, and which is governed by a very complex law,” he said.

Ironically, if a person is really poor, there is no legal problem qualifying for Medicaid. “But people were looking for a way to become poor more rapidly by giving away assets, or otherwise creating eligibility by transfer of assets,” Frolik said.

“If you make gifts to your children, for example, that will cause a period when you’re ineligible for Medicaid, because the government doesn’t want you to give away all your money and then go into a nursing home on the dole.”

The law requires reporting all gifts for three years prior to entering a nursing home. Eligibility for Medicaid is determined under a formula that factors in the cost of a nursing home.

“So, if you gave away $100,000 in the last three years and the nursing home costs $5,000 a month, then you’re ineligible for Medicaid for 20 months, because you could have paid that amount.”

However, under the same formula, an individual can give away $50,000, be disqualified for 10 months, but have $50,000 remaining to cover that expense prior to becoming eligible for Medicaid, he pointed out.

“Strategies like this are perfectly legal and just as ethical as lowering your income tax by taking normal deductions,” he added.

Frolik said elder law is popular among today’s law students because it gives attorneys a chance to work directly with clients and to cater to an individual’s needs.

“I usually have 40-50 students in my class. Often my students have had a domestic situation in their own lives that has put them in touch with older people. Many of them lived with their grandparents, for example,” said. “I also think elder law gives students an opportunity to see how the law intersects with public policy, which has long been an interest of mine.”

—Peter Hart

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