It is also wise to have it reviewed by a doctor or attorney, the Family Doctor Web site suggests; that way you can be assured that what you wish to have done with you and to you if you become incapacitated is "understood exactly as you intended" (Family Doctor).
The advance directives are sensitive and private, and they are very important for seniors. But the advance directives can be controversial, so it is wise for older people to know the law and understand the facts. To wit, there have been rumors and falsehoods spread on the World Wide Web and elsewhere about the advance directives that are spelled out in the recent overhaul of the healthcare system. Former governor of Alaska Sarah Palin made news in the summer of 2009 by asserting that the advance directives in the healthcare overhaul created a "death panel" of bureaucrats who will "decide, based on a subjective judgment of their 'level of productivity in society' whether [certain older people] are worthy of health care" -- or should just be allowed to die (Malcolm, 2009).
In fact there are no death panels, and for her politically motivated smear of the Obama healthcare reform Palin's assertion was voted by an online contest as "the biggest political lie of the year" (Malcolm, p. 1). The non-partisan site Politifact.com, an independent fact-checking site run by the Pulitzer Prize-winning "Truth-O-Meter" (published by the St. Petersburg Times), explained that Palin's lie "stood out from the rest" (Malcolm, p. 1). Of course Palin isn't the only person in the political area who has made untrue or uninformed statements about senior citizens' healthcare needs and opportunities. Indeed, the passage of Obama's legislation (the Affordable Care Act) has been attacked as a "government takeover of healthcare" and there have been accusations such as seniors will not have access to Medicare Advantage plans (which is not true).
Moreover, the Affordable Care Act is designed in part to help older people live longer and healthier lives. As of September 23, 2011, the Affordable Care Act will provide (in most cases at no cost for seniors on Social Security and Medicare) preventative services such as: blood pressure, diabetes and cholesterol tests; cancer screenings (mammograms and colonoscopies); counseling on weight loss, quitting smoking, treating depression, healthy pregnancies and reducing alcohol use; vaccines against measles, polio or meningitis; and more (HealthCare.gov).
An article in Businessweek (Young, 2009) points out that because the number of Americans aged 65 and over is predicted to reach 71.5 million by 2030, the field of elder law is growing "rapidly." Elder law concerns by older people typically involve estate planning, healthcare, and housing issues, and because of the increase in the population of older people, and their legal needs, the National Academy of Elder Law Attorneys (NAELA) has grown from 549 professionals in 1990 to "nearly 4,000" in 2009 (Young, 74). One problem that occurs often, according to journalist Lauren Young, is that about three-quarters of older people who contact an attorney skilled in elder law "are in crisis mode," Young writes. The writer suggests that the hardest time to make good, sensible decisions is precisely when a person is in a crisis mode (74).
Young cautions that besides not waiting until there is a crisis, older people in need of legal support should take great care in the selection of an attorney. Young claims that many elder care lawyers wear "too many hats" (74). In fact an older person coming into contact with any lawyer that claims he or she represents all thirteen areas of elder law should be "skeptical," Young continues. The author quotes NAELA president Craig Reaves (also an elder law attorney) who said, "I don't know anyone who does everything that falls under the umbrella of elder law" (75). Some of the major areas that elder law encompasses include: retirement benefits; age discrimination; guardianship; and "planning for the disabled" (75).
This article offers advice on how to carefully select and hire an attorney appropriate to what the older person requires help with. For one thing, a senior can get referrals on good attorneys from organizations like Alzheimer's Association chapters, or senior citizens organizations in their community. Ideally, the older person looking for an attorney should find one in his or her community, and even more important, that older person should hire an attorney that has "interview, Young suggests; instead, interview at least three before settling on one that you feel you an trust. On page 75 the journalist relates the story of Larry Lazzarini, a computer programmer in Chicago, who went the whole nine yards and interviewed a total of seven attorneys specializing in elder law, so his parents could receive competent, trusted legal advice.
Of those seven lawyers, two tried to sell Lazzarini various insurance and annuities programs. Lazzarini couldn't help but wonder of those two attorneys were offering legal advice or trying to "collect a big commission" (Young, 75). When it comes to hiring an elder care attorney, the bottom line -- besides competence, experience in the field, and honesty -- is cost. The going rate in 2009 when this article was published was about $300 an hour (in New York it goes up to and beyond $700 an hour), so choosing the right attorney is indeed vitally important.
Meanwhile, attorneys David Okrent and Claudia Salazar explain in the Journal of Retirement Planning that an elder law attorney must be "well informed" in matters such as advance directives (living wills, health care proxies, powers of attorney, trust law, last wills and testaments), asset protection strategies, and of course the attorney should be up-to-date on available social services (Medicare, Medicaid, Social Security, etc.) as well. But the phrase that Okrent and Salazar offer is pivotal: "As an elder law attorney, your work is to create a plan… [that is] designed to help your client now, in the future, and at the time of death" (Okrent, et al., 2009, p. 14).
And so the big picture in this field is that elder care attorneys are not just getting their $300 an hour to offer advice for today or next week -- rather, they should be creating a workable plan for the remainder of the senior's life. The attorneys in this article (both with resumes that reflect advocacy work in senior citizen movements and programs) assert that it is imperative to help the older person develop a plan that anticipates essential medical needs, and that takes into consideration "the client's mental capacity" (Okrent, 17).
Discrimination and Abuse Among Elderly Persons
Jane Black reports in the St. John's Law Review that congressional studies have shown "…somewhere between 500,000 and 5 million elderly persons are abused, neglected, or exploited each year" (Black, 2008, p. 290). In many if not most instances, those instances of abuse are not reported to authorities, Black explains. The author uses data from the National Center on Elder Abuse to point out that 65.7% of elder abuse victims were female, and of those victims over the age of sixty, 42.8% were "80 years of age or older" (Black, 290). Where does the abuse typically take place? Black says nearly ninety percent of incidents of abuse occur in "domestic settings"; and it may seem shocking but the data shows that "the most common relationship of victims to alleged perpetrators was parent/child and other family members" (290).
The top three categories of elder abuse, according to the National Center on Elder Abuse, are "Self-neglect," "caregiver neglect," and "financial exploitation" (Black, 291). In fact financial exploitation is the fastest growing category, Black continues, and it refers to the following situations: a) theft (robbery, burglary, etc.); b) fraud (this can include scams through telemarketing and homeowner rip offs, including the man who comes to the door and promises a discount roof or driveway repair at a huge discount); c) "intentional misuse of assets by a fiduciary or caregiver"; and d) the "negligent use of assets, such as mistakenly depleting assets to become Medicaid eligible" (291). Another scenario that Black provides as an example of "c" would be a nephew who "dupes" his older uncle into giving that nephew power of attorney and the nephew then helps himself to little "gifts" (potentially thousands of dollars) each month from his uncle's bank accounts (Black, 291).
Black (294) goes into great depth pointing out the ways in which "power of attorney" can be misused by caregivers and family members; this opening for fraud and blatant stealing is made possible in many instances simply because "…an elderly person is more likely to choose a family member to handle his or her financial affairs." In truth, older people often turn to a "trusted relative" rather than…
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