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The Emergence of Elder Law

young speciality serves long-lived population

Death is a minor problem: the real challenge is dealing with extended life, attorney William J. Brisk says without hint of irony.

Brisk, a solo practitioner in Newton, Massachusetts, is a published author, a BC Law instructor and a pioneer with a national reputation in the field of elder law. That said, although estate planning has been around since the Romans, elder law pioneers are of rather recent vintage. And, judging by membership in the National Academy of Elder Law Attorneys (NAELA), the number of practitioners in the field remains somewhat select. Demographics are on their side, however.

The baby boom population is aging, promising to bring many potential clients through the door in the next decade. The boomer bubble is insignificant and transitory, however, compared with the inalterable fact that Americans are living longer, Brisk says, a trend that is certain to continue.

A child born in the year 2000 can expect to live 76.9 years, about 29 years longer than a child born in 1900, according to figures from the National Center for Health Statistics. The US Census reports that in the decade1990-2000, the population of people living past age 65 increased 12 percent. Not coincidentally, in about that same time frame, elder law has emerged from the shadows of traditional estate planning practice to become a dynamic area of the law.

"There is always a gap before people in the legal community perceive a social trend and react to it," says Brisk. "Alzheimer's Disease has been known of for 100 years, but it wasn't a social problem until large numbers of people started living long enough to suffer from it. Extended life creates tremendous social problems that estate planning, with its emphasis on wealth transfer at death, does not address. It's much more difficult to plan for a long life."

Brisk taught a course on elder law last semester that attracted 19 students. The unofficial historian of the Massachusetts Association of Elder Law Attorneys and board member of the national organization, Brisk says the practice area evolved locally in the late 1980s by a small group of attorneys that included Harry Margolis. Margolis, the first instructor of the elder law course at BC Law some eight years ago, and a founder of the national organization, started the Massachusetts chapter in the early 1990s, with informal meetings of 35 attorneys from around the state. Today, NAELA has grown to 4,000 members, while membership in the Massachusetts chapter, the largest in the country, is nearly 500.

What draws lawyers to this field? The inescapable demographics is one lure. An older population with substantial advocacy and counseling needs, and a social system ill-equipped to address those needs attract a certain type of person, says Brisk. But the appeal goes far beyond the numbers. Elder law, he says, offers "intellectual bite," "remarkable variety," and "a chance to make a difference, often an immediate difference, in the quality of people's lives."

The development of the field was initially inspired by Medicaid planning, says Brisk. Medicaid is a federally funded program, administered by individual states, that pays for long-term nursing home care for elderly and disabled people who cannot afford the cost on their own. Medicaid is an entitlement program, and as such, requires enrollees to qualify financially and medically for benefits. The rules, which vary somewhat from state to state, are complex and change frequently as governments tighten eligibility requirements to control costs.

In the early days, middle-class families and individuals, frightened by the prospect of losing everything in the process of paying for long-term care, turned to elder law attorneys primarily for assistance qualifying for Medicaid.

Helping people in crisis is still a large part of the practice, but elder law attorneys also confront other aspects of long-term planning, a logical evolution, considering people are living well beyond retirement age. "Elder law attorneys have become something akin to the general practitioner or primary care physician," Brisk says. "The practice has evolved considerably to include all of the issues of extended life: health care, financial management, tax planning, housing, litigation."

The projects Brisk's students worked on last semester signal the diversity of the specialty. One student analyzed how Vermont's social and legal systems deal with elder abuse. Another wrote a guide to annuities for elders who are frequently the targets of unscrupulous annuity salesmen. A third devised a long-term care plan for his disabled brother. Class sessions dealt with such topics as the changing image of aging; ethical considerations in working with clients who may have diminished intellectual capacity; guardianship; housing options; retirement, social security, pension, and tax issues; health insurance; trusts; and estate and long-term care planning.

Brisk is hopeful that the class, now offered every other year, will become a permanent fixture in the BC Law School curriculum. "This is still a young field," he says. "It's a great practice for those looking for ways to combine a professional legal career with service to others."

-by Carol Cioe Klyman

Carol Cioe Klyman practices elder law at Shatz, Schwartz, & Fentin in Springfield, Massachusetts.

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