New Legal Field : ‘Elderlaw’ Meets Needs of the Aging

An alcoholic septuagenarian meekly agreed to sell her Malibu home for $48,000. Her concerned family lawyer pushed the price up to $125,000 but still felt certain that his client had been swindled.

So he consulted an expert. Attorney Marc B. Hankin quickly obtained court orders placing the woman under her son’s conservatorship and setting aside the sale. The house was sold at its market value--$582,000. Now sober, the woman is living comfortably on the proceeds.

Hankin is one of a small but growing cadre of lawyers who specialize in what they call “elderlaw,” legal services most needed by those past middle age.

“We need to recognize the legal context of aging,” said USC law Prof. Martin L. Levine, who has just written the first textbook in the field. “Elderlaw deserves to be recognized as a new field of law.”

Increasing Complexity

The growth of the new legal discipline is a result of the rapid graying of America and the increasing legal complexity of government programs to assist the elderly.

In 1982, Levine pointed out, 11% of the population was 65 or older, the familiar demarcation for senior citizens adopted by government benefit and private pension plans. By 2020, said Levine, nearly one in every five Americans will be in the senior population.

Elderlaw, as its practitioners define it, involves little of the traditional drafting of wills and trusts or other estate planning that has always been available to wealthy senior citizens.

“I define myself as an estate planner. I don’t practice elderlaw,” said Los Angeles solo practitioner Edna R. S. Alvarez, whose clients are older professionals with estates of $600,000 and up. “Elderlaw has the connotation of planning . . . for long-term illness and other things, but all in the context of the less propertied person,” she said.

Poor and Middle Class

Elderlaw, attorneys explain, means helping the poor and middle classes maintain or obtain:

--Income. A lawyer might, for example, sue over a person’s job termination based on age discrimination or establish eligibility for Social Security or Supplemental Security Income (in California the amount needed to bring a person’s total monthly income up to $565).

--Health and housing. A common legal service in this category would be to preserve a healthy spouse’s assets and home while obtaining Medi-Cal for a spouse who is placed in a nursing home with, say, Alzheimer’s disease.

--Autonomy. An example would be arranging for a conservatorship for someone able to remain in his own home but no longer competent to handle his financial affairs. Another would be setting up a durable power of attorney for health care under which a person states his preferences for medical care and names a surrogate to direct his final care.

Other legal goals include such services as winning rights for grandparents to visit children of their divorced offspring or protecting older people from economic or physical abuse, sometimes known as “granny bashing.”

Law students and lawyers, even when they recognize the need for legal services to the elderly, often have to be taught sensitivity.

“Unfortunately, we do have the YAVIS syndrome,” said Levine, 49, who has been trained in psychoanalysis and sociology as well as law. “Professionals in general, including lawyers, prefer to deal with young, attractive, verbal, intelligent and successful clients.”

Los Angeles and California are considered the crucible for these special services. After then-U.S. Sen. John Tunney (D-Calif.) conducted hearings in 1974 on the need for legal services for the elderly, Congress authorized $1 million for model projects.

Part of the money went to Levine, who established the still-functioning National Senior Citizens Law Center with offices here and in Washington.

‘Began Proselytizing’

Other funds went to the San Francisco Bay Area’s Michael Gilfix, who had begun working with the elderly in his Legal Aid office, to set up the Palo Alto Senior Center. Other money was provided by the Legal Services Corp.

“We began proselytizing. We had conferences all over the country getting everybody to believe,” said Gilfix, who with his wife, attorney Myra Gerson Gilfix, now runs a Palo Also-based private law firm specializing in elderlaw.

The legal specialists won the ruling that the Older Americans Act, which provides federal funding for legal services for the elderly, applies to all older citizens regardless of income.

Eventually, private attorneys were attracted to the field.

The American Bar Assn. set up a Washington-based Commission on Legal Problems of the Elderly, which conducts training programs throughout the country. The seminars cover such matters as the complex regulations of benefit programs and a lawyer’s ethical duty to represent the older client rather than the inheriting offspring.

About 30 states, including California, have organized state Bar committees to further assist lawyers with the intricacies of Social Security eligibility requirements or so-called “living wills,” written statements to withhold or withdraw life-sustaining treatment when death appears inevitable.

Welcomed to the ranks by overburdened legal aid lawyers, the private attorneys have just organized a National Academy of Elder Law Attorneys. Gilfix, the membership chairman, said 50 private lawyers throughout the country joined immediately and he expects another 50 soon.

The ABA commission’s conferences typically attract 500, including lawyers who want to make elderlaw a part of their practices even if they do not plan to specialize in it.

With Levine and others teaching in the field, the Assn. of American Law Schools has created a permanent Aging and Law section. And after international conferences in Rome, Paris and Tokyo, lawyers and scholars have recently formed an International Society on Aging Law and Ethics.

Private and public lawyers work elbow-to-elbow to solve the elderly’s thicket of legal concerns, usually motivated more by the desire to help than by money. Trying to make a living but keeping their services affordable to the non-wealthy, the private Bar charges relatively modest fees. Public attorneys rely on government grants and private donations.

Cost of ‘Cheap’ Will

The work they have been asked to do varies widely.

Gilfix, a Stanford law graduate who charges seniors $160 an hour when his classmates command up to $350, recently helped a family save several thousand dollars by setting up a trust for a senior citizen whose estate consisted of a Bay Area house worth $400,000. Many people with such income opt instead for wills, thinking trusts are only for people with greater assests than just a house.

Such homeowners often pay from $25 to $250 for an advertised “cheap” will, Gilfix said, only to have the lawyer and executor reap $18,000 to $20,000 in fees from the estate when it is probated in court. Gilfix said he charged $975 to do the trust, which will circumvent probate and allow the inheriting children to sell the house and keep the total proceeds.

Christine Masters, a Los Angeles lawyer in the well-known civil rights firm of Allred, Maroko, Goldberg & Ribakoff, represented a 19-year veteran personnel manager who was “reorganized” out of a job when he turned 65, even though mandatory retirement is no longer legal.

Masters won for her client a going-away party and 1 1/2 years’ salary tax-free, which he used to set up a consulting office.

Neil Dudowitz of the publicly funded National Senior Citizens Law Center recently won a suit forcing the Construction Laborers Pension Trust in Southern California to relax its eligibility requirements, making slightly smaller pensions available to far more workers.

A couple in their 70s who contracted to buy an unneeded water filtration system for $13,000, with their home as collateral, was represented by William Flanagan, director of litigation for Bet Tzedek Legal Services. He got the lien dissolved.

Hankin, a private Beverly Hills attorney whose parents divorced to obtain Medi-Cal for his father, who had Alzheimer’s disease, has used a 1984 California statute he drafted to help several elderly couples.

This law enables couples to divide joint assets and “spend down” only the ill spouse’s half to the $3,000 eligibility limit for Medi-Cal. That has permitted the healthy spouse to retain the family home and assets to support it while obtaining Medi-Cal-paid nursing home care for the sick partner.

Hankin is battling a new federal law, to be implemented by 1990, that would limit the assets a healthy spouse could retain to a figure between $12,000 and $60,000, to be set by each state.

Tom Weathered, managing attorney for Legal Assistance for the Elderly in San Francisco, and his three colleagues obtain from 110 to 120 court restraining orders a year against family members, neighbors or care givers to prevent them from physically abusing senior citizens.

The public lawyers also obtain court orders to halt economic or consumer abuse of senior citizens. Typically, Weathered said, a young family member takes an older relative’s Social Security checks to buy drugs. The abuse may be halted, he said, but the spent money is rarely recovered.

Despite competition among increasing numbers of lawyers, there are strong reasons why more do not jump on the bandwagon of serving the elderly.

“It is emotionally draining, and I think that is what keeps most lawyers out. Most attorneys don’t want to be reminded of what the end of life is about,” said Elaine Karron, a Rochester, N.Y., woman who went to law school and set up an elderlaw practice in her mid-50s while caring for her aged mother.

“I deal with grief all day, weekends and evenings,” she said.

Gilfix agrees: “You only do this if you love it. It is a lot of stress in a lot of ways. You deal with a ton of pain.”

The biggest reason voiced by lawyers for avoiding elderlaw is money--the fear that they cannot earn a living, much less the affluent income expected in their profession, by serving older clients.

“The first program we did on this was to show lawyers how to make money,” said the ABA commission’s director, Nancy Coleman. “I didn’t put it that crassly. I think we called it ‘Doing Well by Doing Good--Providing Legal Services to the Elderly in a Paying Private Practice.’ ”

Los Angeles lawyers Ellen S. Finkelberg and her brother Louis F. Finkelberg earn much of their income from fees specified by law for recovering Social Security payments (25% of retroactive awards). A high volume of cases for their disabled and terminally ill clients and long hours--4 a.m. to 8 p.m. six days a week--are the Finkelbergs’ formula for staying afloat.

Another drawback to elderlaw, lawyers agree, can be the clients themselves. They may hear or see poorly and require more time for explanations, want to fill idle time chatting unnecessarily, need consultation at their homes rather than in the lawyer’s office or just be crotchety and stubborn.

The attorneys learn to adjust.

“A lawyer is there to serve the client,” Masters said. “You may have a healthy client with a million dollars who just doesn’t want to leave his home. Are you going to turn him down? Many older people can’t drive, so you just arrange to stop by their home on the way to work.”

Despite the problems, both public and private practitioners agree that helping the aged is the most personally satisfying way they can imagine to use a law degree. The satisfaction is intensified, the attorneys say, by the challenge of mastering legal intricacies few colleagues understand.