Elder Law: current issues and future frontiers

Abstract

In the last two decades, Elder Law has developed into a known and recognized field of expertise and specialization within the legal discipline. However, due to the relatively young history of this new field of law, very few attempts have been made to analyze the ways in which it has developed in the past and the directions in which it should develop in the future. Furthermore, within gerontology, Elder Law has received much less attention or recognition. Existing literature in the field of Elder Law provides a broad and rich analysis of current developments from a positivist approach, through feminist and therapeutic approaches, up to “law and economics” approach—all attempt to implement known legal theories to the gerontological experience. This article argues that exploring the future development of Elder Law beyond existing trends reveals three new frontiers. These future frontiers of Elder Law are (1) the international Elder Law arena; (2) the municipal Elder Law arena; and finally (3) the jurisprudential gerontology arena. Realizing that Elder Law should continue to develop in new and diverse directions will determine its future ability to contribute to gerontology and influence the lives of the older population.

Introduction

But aging and law related to it is too important a matter to be left to lawyers. And the research, language and analysis of lawyers are too important to be ignored by gerontologists (Cohen 1978, at 229).

Law or legal philosophy has never played a significant role in the development of gerontology (Achenbaum 1995; Bruce 2001; Doron and Hoffman 2005). From a historical perspective, scientific fields such as biology, medicine and psychology were the first to confront the complex issues that surround human aging process. Later on, other disciplines and fields of knowledge such as sociology, anthropology and economy joined the emerging multidisciplinary and interdisciplinary field of gerontology (Achenbaum 1995). In the long process of building a new and unique field of knowledge and professional cooperation in the field of aging, law as such was largely left out as legal scholars and professionals opted to focus their efforts on developing their own unique and specialized field—that of Elder Law (Cohen 1978).

In the last two decades, the field of Elder Law has developed significantly, as evidenced by the well-established body of literature now connected with the field (Griffiths and Roberts 1990; Powers and Klingensmith 1990; Frolik and Kaplan 2003; Strauss 1993; Kapp 1999, 2003; Kaplan 2004). This development has been taking place across different areas of practice and interest as well as across borders and legal jurisdictions. Private attorneys who specialize in estate planning for wealthy clients are becoming “Elder Law” attorneys as their clients age. Health and poverty advocates are finding their practices increasingly focused on legal issues involving poor older people, such as pensions, housing, or long-term care legislation. In the wake of the growing international activity (e.g. the Madrid International Plan of Action on Ageing of 2002) as well as regional initiatives (e.g. European Commission Green Paper on Demographic Change), various national and local community legal services are providing information, advocacy, and representation for older persons in need. Legal academia, law schools, and legal scholars are developing courses and clinics for law students in this field, as well as promoting a legal journal dedicated to this field (e.g. Elder Law J, The Elder Law Review, International Journal on Ageing, Law and Policy). Furthermore, strong and influential national organizations have emerged to support development in this field, e.g: Age Concern (in the UK and various other European countries), AGE (the European Older People’s Platform), CCELS (Canadian Centre on Elder Law Studies), NAELA (the American National Academy of Elder Law Attorneys), or the American Bar Association commission on Law and Aging.

Today, in several European and other developed countries, Elder Law has evolved and matured into a known and recognized field of expertise and specialization in law (Eekelaar and Pearl 1989; Alexander 1992; Beaulieu and Spencer 1999; Doron 2001). However, due to the relatively young history of this new field of law, very few attempts have been made to analyze the ways in which Elder Law developed in the past and the directions in which it should develop in the future.

In similar ways that gerontology was criticized in its early days (Achenbaum 1995), scholarly discussions about the nature of Elder Law address questions of definitions and justifications. What is Elder Law? Is there a valid justification for acknowledging it as a separate and unique field of law? Should it be defined by its target population, meaning, is it simply a practical grouping of legal issues that surround older people? Or should it be defined by the substantive content of the legal issues that are embedded within it, such as estate planning, health, disability, age-discrimination or poverty law? Various other questions arise on the practical level as well. Is Elder Law a “practice” or some kind of a “specific specialisation” within the private practice of law? Or is it a unique field of jurisprudence that should be located within gerontology and defined as “geriatric jurisprudence” (Kapp 2003)?

In its first part, this article will describe how various scholars attempted to provide different answers to the above questions. This part would be mostly descriptive, building upon the works of prominent Elder Law scholars. In its second part, this article will attempt to present a creative argument, looking into the future of Elder Law. The argument will present the future frontiers of Elder Law, frontiers that current Elder Law literature has neglected to identify.

Part 1: the developing field of Elder Law

The traditional approach to Elder Law adopted a definition that placed it well within the positivist boundaries of the legal profession, and could be found both in legal writings. A typical example of such an approach could be found in Abrams and Russo’s (1991) definition. They defined Elder Law as follows:

Elder Law embodies the diverse areas of law employed for the resolution of legal problems for senior citizens. It is not a separate corpus of legal rules as may be applicable to subjects such as real property, torts, corporations and trusts. Rather, the Elder Law practitioner must be prepared to advise the client(s) and his/her family on a variety of legal and quasi-legal issues.

A more detailed description of the positivist approach can be found in the writings of many other Elder Law scholars, one of which is Lawrence Frolik. Frolik wrote the opening article in the first issue of Elder Law J. In this article, he (Frolik 1993) outlined not only the historical factors that led to the development of this field, but also the field’s future course of development. In this context, he proceeded to define the realms in which the field, in his assessment, would have an impact: “Elder Law can be roughly divided into two categories: (1) health law issues and (2) income and asset protection and preservation.” Stated in other words: “Elder Law, then, is a legal practice that combines something old (e.g. estate planning) with something new (e.g. Medicaid planning).”

Ten years later, Frolik (2002) presented once again, from a positivist approach, how Elder Law has developed and changed since his first article. He argued that Elder Law actually deviated from its “original path” and evolved into a field of “later life planning.” Frolik went on to explain why this concept is much more comprehensive than what used to be considered “estate planning” when referring to the wealthy, or “Medicaid planning” when referring to the poor. It addresses a wide variety of issues, such as legal guardianship and how it can be avoided, as well as legal planning for long-term care. Here, the elder-law attorney, in his or her role as counselor, serves as a guide in helping the family arrange an affordable and safe living arrangement as well as to use systems and legal tools, such as the will.

In recent years, Elder Law has broken the boundaries of positivist jurisprudence and new and novel approaches to Elder Law have emerged. For example, in the realm of therapeutic jurisprudence, Marshal Kapp (2003) argued that many aspects of Elder Law should be examined under this legal doctrine. Citing David Wexler (1999), Kapp described how:

The therapeutic jurisprudence perspective suggests that the law itself can be seen to function as a kind of therapist or therapeutic agent. Legal rules, legal procedures, and the role of legal actor constitute social forces that, like it or not, often produce therapeutic or anti-therapeutic consequences. Therapeutic jurisprudence proposes that we be sensitive to those consequences, rather than ignore them. (pp. 5).

Implementing this approach to Elder Law, Kapp moved on to argue that:

Commend and control regulation of many aspects of older persons’ lives has evolved over time largely as a matter of the public’s faith ... in the benevolent powers of government ... There are a number of persuasive reasons for inquiring at this time how well, if at all, the proof of Elder Law’s positive effects on its putative beneficiaries justifies the faith undergirding the zeal for geriatric legal activism (pp.5–6). ... [Thus] a thorough therapeutic jurisprudence analysis of the law as it affects the real lives of actual older persons in specific contexts and ways needs to be undertaken ... (pp. 8).

A different approach was developed by feminist Elder Law scholars. From a feminist jurisprudence perspective, an attempt was made to argue that in light of the feminine character of the older population, a better understanding of Elder Law could be achieved by its analysis under the feminist “ethic of care” philosophy. For example, Rebecca Korzec (1997) argued that:

Displacing contemporary Elder Law principles of autonomy and independence with the feminist ethic of relational care can help alleviate these gender-based inequities (regarding care roles of elderly parents...This jurisprudence establishes gender-neutral relational care as the cornerstone of family life...Relational caring has been demonstrated to add to a personal sense of well-being and to conscious control over life responsibilities. (pp. 560–561).

A final example for a different approach could be found in the “law and economics” stream, which argues that Elder Law is actually just another field of law where economic analysis can explain its true rationale. One of the prominent backers for this approach towards Elder Law is Richard Posner (1995), a federal judge in the USA, who argued that:

Economics can do a better job of explaining the behavior and attitudes associated with aging, and solving the policy problems that aging presents, than biology, psychology, sociology, or any other single field of natural or social science (pp. 1–2)

Once again, implementing this approach on various Elder Law issues, led Posner to argue, for example, that the American Age Discrimination in Employment Act is:

Largely ineffectual, and to the extent effective is probably perverse in its effects on the distribution of income and causes harm to elderly workers. It exemplifies the fact, which is often overlooked, that “social” as well as “economic” regulation may deserve any plausible conception of the public interest once the actual presuppositions and consequences or the regulation are understood...(pp. 12).

The array of approaches described above, portray the richness and diversity of the developing field of Elder Law today. However, two interesting traits are shared by most, if not all, of the above approaches. The first is their agreement that Elder Law is still in the process of developing and, therefore, “is not yet fully formed because there are many parts of it that could either expand or contract” (Frolik 2003). The second is that none of the above approaches claims that Elder Law, as such, establishes a unique and different philosophy of law: they all “imported” known legal approaches into the existing field of Elder Law. These characteristics raise the question that will be answered in the next part: what is the future of Elder Law?

Part 2: the future frontiers of Elder Law

As will be shown, there are at least three specific courses or directions for development that were not seriously discussed by existing Elder Law scholars, which may indeed reveal the future frontiers of the developing field of Elder Law.

From national to international Elder Law

An important development in the field of Elder Law is its evolution from a national to an international law. This shift is illustrated through several important developments. First, both scholars and lawyers in this field have found international cooperation to be an effective method for promoting knowledge and expertise in the field of Elder Law. There are several salient examples that demonstrate this point. In recent years, attorneys from countries outside the US have been added to the ranks of the National Academy of Elder Law Attorneys (NAELA), and the organization has dedicated a complete issue of its journal to the topic of international perspectives on Elder Law (NAELA 2000, 2002). Several years ago, a German initiative has established an international body of lawyers and professionals in the field of guardianship, which cooperates and exchanges information on this subject (IGN 2003). In England, an English-based project has focused on the aging of Europe as a central theme within EU emerging law (Meenan in press). In addition, the AARP (American Association of Retired Persons) has recently founded an international network for attorneys and other professionals interested in the field of Elder Law, and a special forum has been established to this end as well (AARP 2003). Finally, both Canadian and Australian projects in Elder Law have given significant attention to international cooperation and perspectives (Canadian Centre on Elder Law Studies 2005; Elder Law at the University of Western Australia).

An awareness of the importance of international comparative legal research in expanding the knowledge and expertise within the field of elderly law has also been demonstrated in academia. For example, a course on Comparative Law and Ageing, offered twice by the Wake Forest University School of Law, and conducted in Venice, Italy, includes a variety of international perspectives on major issues in Elder Law (Mewhinney 1998). Additional examples can be found in comparative legal research and writing, with analysis of specific Elder Law issues such as elder guardianship (Doron 2002), children’s legal responsibilities toward their elderly parents (Moskowitz 2002), euthanasia and physician-assisted suicide systems (Little 1997; Mackellar 2003).

Various international establishments, such as the United Nations and the World Health Organization, together with their committees and institutes, also demonstrate an increasing awareness of the significance of issues pertaining to Elder Law and the relationships between law and aging. This can be seen in the widespread activity regarding the status of the elderly since the early 1980s, with the adoption of the International Plan of Action on Aging in the 1982 World Assembly on Aging in Vienna (World Assembly on Ageing 1982). This vibrant international activity continues today, especially after the recent Second World Conference on Aging held in Madrid in 2002 (World Assembly on Ageing 2002).

Although the rights of older persons are usually addressed within broader international human rights agreements, there is an increasing awareness of the need for formulation of international conventions that deal directly with the legal rights of older persons (Rodriguez-Pinzon and Martin, 2003). The most noteworthy example in this matter is the Hague Convention on the International Protection of Adults. This new international convention, finalized on January 13, 2000, constitutes a significant legal breakthrough regarding the rights of incapable adults. It is the first international legal convention to directly address a legal issue that may not be unique to the older population in theory, but is so as a matter of fact. The aim of this convention is to protect and promote the rights of the elderly in foreign territory (which is particularly relevant these days as older people travel throughout the world or emigrate from country to country) by ensuring that legal planning tools, such as advance medical directives executed in the home country, would still be legally valid and enforceable (Hague Convention 2002; Fagan 2002).

Finally, also worth noting is the increasing importance attributed to public international law as a constitutional and jurisprudential tool for interpreting national laws. Despite philosophical and ideological differences between countries, there is broad agreement on the relevance and even the importance of international law as a vehicle for interpreting legal principles and national legislation (Kinney 2001). Although there has been no significant impact of public international law in the field of Elder Law, general international conventions and documents are available to support legal claims pertaining to most areas of the field (UN 1995).

It appears, then, that attorneys specializing in Elder Law who uphold any of the legal approaches described in the first part of this article will find themselves increasingly exposed to international law and will have to demonstrate a greater awareness and familiarity with this aspect so as to offer their clientele the full range of relevant planning tools, not only when living in their own country, but also while residing or travelling abroad.

From national and state to local and municipal Elder Law

Complementary to the view toward international law is the development of Elder Law in the direction of local and municipal legislation. To date, the field of Elder Law has focused mainly on state or federal legislation. Little attention has been directed toward secondary legislation at the local or municipal level, such as bylaws of the local authorities, municipal or provincial ordinances, and regulations of cooperative societies or communities. Furthermore, neither academic nor professional training programs have sufficiently addressed the potential advantages of promoting Elder Law using legal tools at the local and municipal level.

This neglect of the local dimension of law runs contrary to a growing awareness of the relevance of local autonomy and democracy in a global context (Teune 1995). In the struggle of nation-states to crystallize and reorganize their relationships within regional and international associations, localism and local democracy have re-emerged as useful concepts for facilitating flexibility in framing policy solutions. Moreover, in a number of specific legal fields that are central to the lives of the older population, such as property tax, land use regulation, housing rights, and public transportation, the substantive legal regulation is done at the local and municipal level, rather than at the national or international level.

The lack of Elder Law’s focus at the local level legally is particularly apparent given the numerous social projects devoted to caring for the elderly that are, in fact, initiated at this level. Thus, examples of novel local initiatives can be found in a variety of realms, especially those in which the national or international legal arrangements fail to provide legal solutions or clear policies. In the field of elder abuse and neglect, local projects have always been at the front line of developing new ideas and projects to prevent and combat it (McKenzie 1995). Such local initiatives include establishing a specialized police unit, the “Gray Squad,” to deal more effectively with elderly victims of crime (Zevitz and Gurnack 1991). In the field of housing, one finds local projects such as “Adopt-a-House,” which help elderly citizens perform the necessary repairs to their homes and thereby prevent their institutionalization (Harris and Salazar 1989). On the political level, one can find diverse examples of activities and involvement of older persons in local politics, including organizational cooperation, establishment of local political parties and lobbies, and running for local elective offices such as city councils—all in an attempt to influence and shape the local social policies and legal rights of the older population (Reitzes and Reitzes 1991; MacManus and Newmark 1998; Martin and Boaz 2000). These are but a few examples demonstrating not only the successful but also the multifaceted approach of novel social intervention at the local level. Furthermore, it seems that these examples are only the tip of the iceberg, as many of these local initiatives are not reported and receive little academic attention in academic publications.

The existing approaches to Elder Law fail to recognize that their legal “ideologies” are most often developed and implemented at the level of the local authorities, municipalities, or communities (Trydegard and Thorslund 2001). Furthermore, such novel local initiatives ought to be substantiated through available legal frameworks. In this regard, it is up to the local attorneys specializing in Elder Law to take significant steps to guarantee that these initiatives are upheld through innovative local legislation. It is imperative to all the existing approaches to Elder Law to acknowledge the importance of the local legislature in order to materialize their jurisprudential rationale. Ultimately, this opens up a broad range of activities that remain to be effectively implemented by attorneys in the field of municipal Elder Law.

From Elder Law to jurisprudential gerontology

The heated debate about what gerontology is and what it should be is beyond the scope of this paper. However, it is safe to assume that gerontology is both multidisciplinary (entails collaboration among various disciplines) and interdisciplinary (entails integrated and emergent approaches) (Ferraro and Chan 1997). Thus, an important, if not crucial, characteristic of gerontology is its ability to promote cooperation among professional academic activities of different scientific disciplines, as well as to integrate the knowledge, synthesize the findings, and incorporate the conclusions of research studies from a variety of fields (Achenbaum 1995; Levine 1982).

Elder Law should not limit itself to a specialized field of law, but should rather become an integral part of gerontological science, or transform into “jurisprudential gerontology.” In light of the interdisciplinary and multidisciplinary nature of gerontology, it is only natural for legal knowledge, methodology and philosophy to contribute its own unique perspective to the gerontological imagination. This integrative movement serves the interests of Elder Law and will allow this specialized field of law to become a significant and relevant factor in the formulation of social policy for the elderly. Reaching this integrative goal mandates the change of today’s gerontological education by adding Elder Law to the “core knowledge” of gerontology curricula. Likewise, a similar approach should be taken with regard to the core knowledge within Elder Law courses in law schools (Levine 1982; Bruce 2001; Doron and Hoffman 2005).

On the professional level, attorneys in the field of Elder Law need to broaden their knowledge and expertise beyond the legal aspects of old age to include the biological, psychological, social, and other major dimensions that are relevant to understand the human experience of old age (Schatz 2000). Other legal institutions, especially the courts and the judges, also need to become more aware of the wide-ranging social changes related to the aging of the population (Shone 1991; Sappideen 2004). This could be done, for example, through educational projects, which directly target lawyers and judges or through clinical inter-disciplinary cooperation within law schools or private legal firms (Schatz 2000; Shone 1991).

Numerous examples demonstrate the significance of inter/multidisciplinary cooperation and its contribution to the field of Elder Law. One such example is found in the struggle to construct a legal policy regarding the licensing of older drivers. On the one hand, this policy issue could be approached from a narrow legalistic perspective of human and civil rights, focusing on the need to protect the individual’s civil liberties. This perspective lends itself to classic legal analysis, which critiques laws and analyzes rulings based on judicial values and constitutional principles (Klein 1995). On the other hand, this issue can be considered from a social and behavioral perspective, which would lead to an empirical examination of the number of private vehicles used by elderly drivers, the elderly population’s attitudes toward driving, the degree to which social interaction among the elderly relates to the ability to drive, and, of course, empirical findings regarding the involvement of elderly individuals in road accidents and their outcomes (Siren 2002). Joining these two separate approaches together represents the essence of jurisprudential gerontology and holds the promise of creating more effective social policies and formulating legal directives that are relevant to the changing conditions of the elderly population. Obviously, only the integration of both scientific approaches—the legal and the gerontological—will lead to the formulation of an appropriate social policy in this field.

The importance of inter/multidisciplinary cooperation is not limited to the policy or academic dimensions, and this approach can be applied to service provision for the older population. For example, such an approach may be useful to teams of professionals in law firms specializing in Elder Law or to clinical teams comprising medical facilities. While a typical law firm employs only attorneys, the team in a modern law firm specializing in Elder Law may encompass social workers, psychologists, and community workers, as well as general medical practitioners or geriatric physicians. The functions of counseling, informing, and representing are integral components of an interdisciplinary framework that make it possible to practice long-term planning for old age in a comprehensive manner, providing elderly clients with all the help, information, and care needed (Kapp 2000; Amazon et al. 2001; Pannen 2001).

Finally, the transformation of Elder Law into jurisprudential gerontology should also touch one of the problems that is repeatedly being faced when promoting the rights of the older population. Whenever law meets the older population, one almost always finds an enormous gap between the formal letter of the law and the actual social reality experienced by older persons. Understanding this gap is a complex task, which involves political failures, socio-financial gaps, and even psychological factors.

Maybe more than anyone else, it is the lawyers in the field of Elder Law who know precisely the scope and the manner in which this gap is revealed. Whenever a new client enters a law office specializing in Elder Law and a dialogue ensues between client and attorney, both sides quickly discover that the client is not aware of his/her legal rights and that there is a plethora of legal areas in which the attorney can intervene. Inevitably, however, lawyers themselves must learn from the social reality in which their clients are living.

Indeed, almost every new empirical study regarding the elderly reveals the disparity between the law and reality. Oftentimes, the elderly are not informed of their legal rights; when they are informed about them, there are various barriers that prevent their use; and finally, when they do attempt to use their rights, the professionals in many cases ignore or disregard them (Larson and Eaton 1997; AARP 2000). This gap demonstrates the potential contribution that can be derived from public and professional intervention, hitherto left unexploited in the field of Elder Law. The breach between the law and reality is a well-known issue in sociology of the law and is not unique to the realm of Elder Law. Within the field of Elder Law, it seems that a major challenge is to identify such legal breaches, find their causes, and repair them. This is not a simple task. However, through the cooperation and integration of legal and gerontological knowledge, there is a better chance for identifying and minimizing the gap between Elder Law and the reality of human ageing (Frolik 1998).

Conclusion

Existing Elder Law literature presents a rich and diverse spectrum of approaches to the intersection of law and ageing. However, as described above, looking to the future one realizes that there are at least three new frontiers waiting to be recognized: local, international, and philosophical. The uniqueness of these new frontiers in not only in their geographic boundaries (international and local) but also in the fact that the time has come to try and establish a unique understanding of jurisprudential jurisprudence, and not to limit ourselves to the implementation of existing legal approaches.

All existing approaches to the developing field of Elder Law conclude their discussion with an affirmation that the field will continue to constitute an important component of the field of law in the future. The present article supports this affirmation, but adds to it the call to broaden the perspective of Elder Law internationally, locally, and scientifically. These new frontiers will allow law and gerontology to join forces not only in advancing society’s knowledge and understanding of human ageing, but also in further establishing the place and rights of the older population.