Everyday Law for Seniors

Lawrence A. Frolik, Linda S. Whitton

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781317260066
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

Seniors are a wide ranging and exponentially growing special status group that the law treats differentially with respect to rights, responsibilities, and benefits. This book is written to inform and assist seniors and those who care for them. The topics covered range from retirement strategies, housing options, and long-term care to federal benefit programs such as Social Security, Medicare, and Medicaid, and ultimately, to end of life decisions. Whether you are someone looking out for your parents; a new retiree concerned about your legal rights; or one of the growing number of "old old" eighty-five years or older who needs answers to confusing legal issues, this book provides essential information in clear language about timely topics such as reverse mortgages, long-term care insurance, powers of attorney, guardianship, and the hidden problem of elder abuse. Each chapter includes "Did You Know?" opening outlines as well as web-based resources for additional information. The authors are nationally known elder law experts and are frequently asked to consult with national commissions, legislatures, bar associations, and individuals from every walk of life. In Everyday Law for Seniors, they provide advice appropriate for everyone, senior or not (yet).

1

Law and Seniors

Did You Know?

• Your average life expectancy at age 65 ranges between twenty and twenty-three additional years, depending on your gender.

• Twenty-five percent of those who reach age 65 will live to at least age 90.

• The percentage of the population over age 85 is continuing to increase.

• The likelihood of a person developing a chronic disabling condition or dementia increases significantly after the age of 85.

• If you retire at the normal Social Security retirement age, you may live more than twenty years without earned income.

Who Are “Seniors”?

A book about the law and seniors must necessarily define what is meant by the term “senior.” Popular senior discounts are triggered at a variety of ages. For example, you can qualify for AARP membership as early as age 50, but not for a National Parks Senior Pass until age 62. The ages at which movie theaters, restaurants, and other businesses offer special senior discounts often range anywhere from age 55 to age 65.

Although chronological age is certainly one way of determining whether you qualify for senior status, it tells us very little about you as an individual. In reality, no particular chronological age can tell us much about how anyone ages. Indeed, some persons seem old at age 65, whereas others much older seem young in terms of their physical and mental abilities.

Studies confirm that individuals of the same chronological age show great differences in mental and physical abilities. Even within the same individual, physical and mental capabilities often deteriorate at different rates. When a doctor tells a 70-year-old physically fit patient that she has the heart of a 50-year-old, the doctor is focusing on the functional level of her cardiovascular system rather than its chronological age. Not only do individuals age at different rates; so do their bodies. For example, an Alzheimer’s patient with severely diminished mental function may still be in sound physical condition.

Determining what senior status means is further complicated by the wide range of ages that fall under this umbrella term. For example, a 65-year-old son and his 87-year-old father may both be described as seniors and yet have very different needs. With the increasing number of individuals who are living to age 100 and beyond, a person could potentially qualify as a senior for more than thirty years!

Given the diverse population to which society applies the label “senior,” why make the distinction at all? The answer is that society and the law use chronological age and senior status for practical reasons. Age-based categories are a more cost- and time-efficient way to provide special benefits than are case-by-case individual evaluations.

The use of arbitrary age requirements to trigger benefits eligibility does not, however, always yield just results. For example, federal law provides that those who are age 65 are eligible for Medicare, a federally subsidized health care insurance. Thus, at age 63, Cindy is not eligible for Medicare even though she is unemployed and in poor health, but Bob at age 66 is eligible even though he is a millionaire who has barely been sick a day in his life.

Although basing eligibility for benefits on an arbitrary age requirement may not always produce satisfactory results, experience suggests that the law often performs poorly when eligibility is based on individual case-by-case evaluations. For example, Social Security pays benefits to younger, disabled workers who can substantiate that they are unable to work. Determining who is disabled, however, is not always easy. Often individuals believe they are disabled, but the Social Security Administration disagrees and rejects their claims. The result is excessive delays in benefits to deserving claimants and a disability system clogged with numerous appeals. In contrast, Social Security old-age benefits are paid to all who have reached their full retirement age. There is almost no litigation because either the individual is age 66 (the current eligibility age) or is not. No one can argue with the date on a birth certificate.

Although chronological age—usually age 65 or older—is arbitrarily used by the law to establish eligibility for a number of senior benefits, an important underlying question remains: Why should seniors receive special treatment? The answer to this question is complex and based on a number of demographic and policy considerations.

Even though we all age in different ways and at different rates, in time most of us will suffer a decline in physical strength, flexibility, and endurance, as well as deterioration in hearing and vision. Some will experience serious physical ailments such as congestive heart failure or stroke, and others will experience a decline in mental ability ranging from short-term memory loss to serious dementia. Based on the probability that most seniors will need some degree of help as they age—assistive services, supplementary income, or access to health and long-term care benefits—they receive special treatment under the law. The remainder of this chapter outlines factors that are relevant to why seniors receive this special treatment.

Population Age Trends

The number of seniors in the United States is increasing, as is the percentage of seniors in the total U.S. population. In 2008, about 13 percent of the population was age 65 or older. The percentage of seniors will remain at about 13 percent until the “baby boomers,” those born between 1946 and 1964, begin to turn age 65 in 2011. Then the percentage will gradually rise to about 20 percent sometime after 2020.

The actual number of seniors and the percentage of seniors in the total population are increasing both because of declining birthrates and because of longer life expectancies. Not only do more individuals survive until age 65; they also have a longer life expectancy once they reach that age. In 1950, the average life expectancy of a U.S. resident was 68.2 years; by 1985, that figure had increased to 74.9 years. In 2005, it was 77.7 years. More revealing, however, is the life expectancy, not at birth, but at age 65, when women can expect to live twenty-three more years and men about twenty years. In fact, of those who reach age 65, more than 25 percent will live to at least age 90.

Seniors, those age 65 or older, are a diverse population, and it may not make sense to group someone age 65 with someone age 90. In fact, gerontologists subgroup seniors into the “Young Old,” those age 65 to 75; the “Old,” those age 75 to 85; and the “Old Old,” those age 85 and older. Although there may be differences of opinion about where the dividing lines should be drawn for these subgroups, by whatever age someone is considered old, surely those over age 85 qualify.

Today more than 4 million Americans are age 85 or older, with the number growing at an ever-increasing rate. Some are alarmed at this, noting that those over age 85 are more likely to suffer from chronic illnesses, are heavy users of medical care and long-term care, are more dependent and likely to need supportive living arrangements, and have higher levels of poverty. The current legal and social support systems for seniors were created when the number of older individuals was much lower. Some commentators fear that our current programs for assisting seniors, particularly Social Security and Medicare, will become too expensive in the years to come as the number of seniors, and particularly those age 85 and older, continues to climb.

Gender and race are also important elements in understanding the challenge of our increasingly older society. Because women outlive men, there are only seventy-four men age 65 and older for every one hundred women.The older the population is, the greater is the gender disparity. For example, there are only forty-six men over the age of 85 for every one hundred women. The gender disparity is important because older women on average have lower incomes and fewer savings than men. The health needs of older women differ from those of men, and some would argue that older women have different social needs.

Unfortunately, for a host of economic, health care, and cultural reasons, an African American has a shorter life expectancy than a Caucasian. For example, whereas the average life expectancy of a Caucasian male age 65 is about twenty additional years, the average life expectancy of a 65-year-old African American male is only sixteen additional years. Older African Americans on average have poorer health than Caucasian Americans and suffer higher rates of poverty. Consequently, support from governmental programs—such as Medicare, which provides subsidized health care coverage, and the federal food stamp program, which fights poverty—is critically important to the well-being of many older African Americans.

Physical Effects of Aging and Health Concerns

With advanced age comes an inevitable decline in physical vigor and wellbeing. Bones gradually lose calcium, become weakened, and may fracture. Joints are likely to become stiff and painful, thus making everyday activities more difficult. Stairs may become an impediment and possibly even a danger. A decline in balance, physical strength, and endurance may also threaten independence. Macular degeneration, or the loss of core vision, affects millions of seniors, preventing them from driving and reading. Loss of hearing, known as presbycusis, is also common and may make it difficult for someone with this condition to talk to others, causing frustration and a sense of isolation.

The incidence of chronic conditions—permanent or long-term ailments such as diabetes, heart disease, arthritis, and congestive heart failure—rises with age, as does the severity of such conditions. Someone who lives past age 80 is very likely to suffer from a chronic condition, at least in the last few months of life. For some seniors, severe chronic conditions signal the end of life, but other elderly live for years with chronic, disabling conditions that make them dependent on others for care and assistance.

Mental decline also afflicts many, but not all, seniors. Most older persons experience mild short-term memory losses, such as trouble remembering a new phone number. Fortunately, there are simple coping strategies to deal with mild “senior moments.” These include the use of lists and electronic storage of important information. For example, cell phones and computers can be programmed to store frequently used addresses and phone numbers.

Far more serious is the loss of memory caused by dementia. Most seniors do not have dementia, though the chances of developing it rise rapidly after age 85. It is estimated that from one-quarter to one-half of those age 85 or older suffer from some form of dementia. Particularly devastating is Alzheimer’s disease. During the early stages, the individual suffers episodes of disorientation as to time and place. Failing memory produces confusion and uncertainty. As the disease progresses, mental and physical skills decline until the victim loses the capability of self-care. In time, speech and all meaningful awareness are lost, and the individual may fall into a coma if death does not come first.

Because elderly seniors as a whole are not as healthy as the rest of the population, they are more likely to be hospitalized and have longer hospital stays. For most Americans, the cost of health care is paid by medical insurance. Given that most medical insurance is acquired as a benefit of employment, retirement often means the loss of, or a significant reduction in, medical insurance. As a result, there is significant subsidized governmental health care assistance for seniors in the form of Medicare and Medicaid. These programs raise the issue of how much health care assistance society can afford for seniors and how to allocate it. An even more fundamental question is whether advancing age reduces an individual’s moral right to medical aid. Other questions include who should make the allocation decisions, whether some lives are more valuable than others, and whether the maintenance of life is always the highest priority. Our society has not formally answered these difficult questions. As with other puzzling questions of public policy, the answers are never clearly articulated, but public programs do provide a sort of answer because they reflect society’s prioritization of generational rights and obligations.

Economic Vulnerability

Because of the loss of physical and mental vigor, seniors are less likely to be employed and more likely to have lower incomes. Many are economically very vulnerable, with low incomes and little or no savings. In response, America has created programs for seniors such as Social Security and Medicare. Although these financial assistance programs are open to almost all elderly, other programs, such as Medicaid, are designed to assist poor seniors or seniors made poor because of the expense of paying for their health care needs or the cost of a nursing home.

Although these programs and others have been very successful in reducing poverty among seniors, such programs are very costly. There is constant pressure on government to reduce costs (or raise more revenue) and to require seniors to pay for more of their own care. Unfortunately, there is no easy way to reduce the cost of these programs without reducing benefits.

With the increase in the senior population and the growing strain on federal and state budgets, the national debate over how much assistance should be provided to seniors has intensified. This debate brings into question whether we can expect the same level of benefits in our old age as was enjoyed by our parents and grandparents.

At present, most seniors who need financial help do receive some assistance. Consequently, in terms of percentages, fewer seniors are officially poor than are younger persons. However, that statistic underplays poverty among seniors because many have incomes just above the poverty line. They are able to survive financially only with the income they receive from Social Security and the subsidized medical care provided by Medicare. Even though not officially poor, they are impoverished and dependent upon governmental assistance.

Notwithstanding that some seniors are poor, alone, and isolated, most are married, are not poor, and are in good health. For example, at any one time only 5 percent of seniors—about 1.5 million—live in a nursing home, and most of those live there for less than a year. Most younger seniors enjoy relatively good health, have adequate though modest incomes, and live in the community, many with a spouse or life partner. Of course, that picture changes with age. The older a person is, the more likely she or he is to be poor, to be in bad health, and to live alone. In short, generalizations about the economic state of seniors are not of much use because of the wide discrepancies in individual well-being.

Social and Family Support

Due to the infirmities of old age, many seniors need support and assistance that can range from occasional help with household chores or a ride to the grocery store to daily personal assistance with dressing and bathing. If you are old and in need of help, it is likely to be provided by your spouse, family, and friends or possibly by volunteers from your church or community.

As long as you live with your spouse or a partner, the two of you can usually care for each other as needed. For example, one of you may shop for groceries, and the other one cooks. One may pay the bills, and the other takes responsibility for keeping the two of you in touch with family and friends.

Those who live alone often replicate the advantages of having a spouse by calling on friends or relatives for help. For example, if you live alone, you may have an arrangement with a family member or a neighbor who checks on you daily and assists as needed. Perhaps a grandchild or niece will move in with you to help take ...