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The nation's population is aging, resulting in many people with impaired vision, impaired mental capacities, limited mobility, and financial pressures. With a growing number of elders, the United States has also experienced a growing number of instances of physical abuse and financial exploitation.

Elder laws are designed to protect vulnerable elderly people from abuse and neglect. This area of the law also encompasses regulation of matters surrounding decisions on long-term residency and care. Elder law falls within the category of family law, and it overlaps with the area of estate planning and insurance law.

The Omnibus Budget Reconciliation Act of 1987 (OBRA) is the federal law regulating nursing home and assisted-living facilities. This Act sets the standards of care and the circumstances under which physical or pharmaceutical restraints can be used as interventions.

Other Federal and State Laws

Federal passage of the Medicare and Medicaid programs in 1965 also encompass regulations for the elderly. This act determines, for instance, what nursing home or assisted-living facility expenses will be covered by Medicare or Medicaid. Coverage for hospice care, for terminally ill individuals, is also regulated by Medicare Part A. The Community Spouse's Resource Allowance (CSRA) is another Medicaid regulation; it ensures resources are preserved for the spouse of an institutionalized person.

Another federal law enables appointment of a “representative payee,” who may act as a surrogate on behalf of an individual no longer capable of making decisions. The payee may receive and handle Social Security checks, for example. This arrangement is sometimes more desirable than retaining an attorney to institute a guardianship or conservatorship proceeding (which would require a judicial finding of incapacity), since incompetency is not always permanent.

In addition to federal laws, elder laws differ from state to state. For example, California has a law making it a criminal act to fail to report elderly abuse; this is not the case in some other states. California, as of February 2005, also sponsored a bill regarding financial institutions and their employees' obligations to report crime to law enforcement in an effort to protect the assets of the elderly.

Elder Abuse

If you suspect elder abuse, or are concerned about the well-being or safety of an older person, report it immediately. If it's an emergency, call the police.

Roles and Services of Elder Law Attorneys

Advice and Planning — Difficult issues arise when planning an elderly person's future, and it's fertile ground for future lawsuits. Expert legal advice can save you hours of worry and help you make informed decisions. Should the elderly individual be allowed to live independently, move to a nursing home or assisted-living facility? Should you consider a “life settlement” — the sale of a life insurance policy for a lump sum of cash less than the policy's face amount but more than the cash surrender value?

Litigation — Be aware that attorneys practicing in the area of elder law often have overwhelming caseloads. Elder law litigation is complex and often involves lengthy investigation. Complexities in an instance of abuse from a family caregiver start with determining who is responsible for the neglect. Who is the official caregiver; or does everyone in the home have a duty of care? An abuse crime (lack of medical treatment, neglect, etc.) becomes even more complex if the elderly victim has died. In the case of financial exploitation, some states require attorneys to prove the defendant's specific intent to embezzle or steal assets. This requirement may involve search warrants for financial records and additional legal costs for auditors.

By Kathleen Goolsby           

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