Back in the early 1970's, when Michael Gilfix was a Stanford law student, he was considering different legal specialties when he noticed something peculiar:
Even though the population was rapidly aging, the elderly seemed to be virtually ignored by the legal profession.
So after graduating in 1973, Gilfix became a nationally recognized pioneer in what has become one of the fastest growing areas of legal practice today: elder law.
He became founding director of the non-profit Senior Adults Legal Assistance program in the South Bay, helping older people with such issues as obtaining government benefits, dealing with unscrupulous landlords and resolving consumer fraud complaints. In 1983, he started his own elder law firm in Palo Alto. And about four years later, he and his wife, Myra - one of six attorneys in the firm - helped found the National Academy of Elder Law Attorneys.
Among other things, elder law covers age discrimination, elder abuse, estate planning, independent living issues and a variety of health-care concerns.
One particularly controversial part of the practice involves helping older people legally preserve their life savings while also allowing them to qualify for Medicaid -known as Medi-Cal in California - which is the government health program for the poor. Under a new federal law that took effect Jan. 1, those who improperly transfer their assets to obtain Medicaid can be imprisoned and fined.
Back in the 1970s, when Gilfix was finishing up law school, people aged 65 and older accounted for about one out of every 10 Americans. Today, they account for one out of every eight, numbering more than 33 million nationwide and more than 3.3 million in California.
In a recent interview, the 49-year old Gilfix described some of the special problems that population group faces and the legal practice that has emerged in recent years to help them.
Q How are the elderly treated under the law compared to other age groups?
A Ageism is alive and well and thriving in our society. Even though we're making strides and getting rid of stereotypes that everybody over 70 is senile - you know, these jokes are perpetually, I mean they're still on TV they're everywhere.
Q What are the biggest legal problems older people face?
A The biggest one in terms of profound impact - the potential for profound negative impact - is this whole issue of long-term care. If somebody is going into a nursing home, what are their rights? A: How can they protect assets, to the extent that they want to do that? What does the law let them do? And B: Are they going to get quality care?
The second area that I would identify is HMOs, the impact of health maintenance organizations and managed care on older people. There already have been some studies…that suggest older people are getting fewer services and lower-quality services. If you have a system that among other things has a finite number of resources, the squeaky wheel is going to get more attention.
Q What can you do to insure people get good, quality care?
A Make sure that people again understand what their rights are…In the medical care system, most of us, I believe, are relatively passive. I mean the first thing that happens when you go in for any kind of a test is you disrobe. They strip you of your dignity.…In extreme situations, there is the possibility of going into court. Now I stress that's the last resort, that's only done when the internal procedures fail.
Q Are many people you see unaware of their rights?
A Oh, I can assure you, the vast majority of individuals who have a family member in a nursing home or who are looking at that issue on the imminent horizon don't know, just never learn about their rights and options. That's one of the most frustrating things about this practice.
If you learn about your rights and take advantage of them, it's unbelievable how much can be saved in an estate. But you know your next-door neighbor who has an identical situation who doesn't get good advice will maybe call the Medi-Cal office or call the IRS and either get wrong advice or insufficient advice . . . because it's not (the government official's) job to go beyond the very basic rules and explain what people can do to protect themselves.
Q What legislative changes would you like to see?
A The first would be legislation that would provide fundamental protection for people who face health-care problems (s0) they would not have to go to a lawyer and have that lawyer dig it out of obscure legislation. Simplifying things dramatically would be one of the goals. It ought not be the realm of smart attorneys to figure out how you should do your plan for your kids…Even though this would (put) most of us out of a job, it would be an incredibly healthy thing for society if we demystified this process.
Q How has elder law changed since you first got involved?
A When I started doing this, it was 1973 and it was an unheard-of concept. When I set up SALA - Senior Adults Legal Assistance - the overwhelming majority of attorneys denied that there was a need. I think it's an area of law that has finally gotten respect. Other fields of law are beginning to understand that we are not in isolation from them.
A couple of months ago at the annual State Bar meeting, I was on a panel with a couple of family-law attorneys and a judge, and we talked about what family lawyers - divorce attorneys - need to know about other law so that they can do a much better job for their clients. And I pointed out some areas where I think they are actually committing malpractice by not knowing about some of the things that we do.
Same for personal injury attorneys. If you've got a person of any age who is injured so badly that they become disabled, there are what they call special-needs trusts (where the person can shield their money in California).
(Then) you can get public benefits like Medi-Cal to pay most of your medical bills and this money is sitting there in reserve. Personal injury attorneys typically do not even know about that.
Q What about those who criticize elder law attorneys for using legal loopholes?
A I actually hear that a lot because in medical planning we are indeed doing what we can to protect assets for people. The first response is, if I don't do everything that the law allows for somebody, I've committed malpractice. Those who criticize attorneys who do a creative job for their clients, they are missing the point - especially in this area of the law.
Q Are older clients different to deal with than younger clients?
A There is a different perspective on life. You're a little farther along, and most people by the time they come to us have given some serious thought to what they want to do for their kids. So you have this looking to the next generation, this idea of transition of wealth, transition of values, transition of assets.
Where there's a marked difference is on those occasions when a person comes in who may have been diagnosed with Alzheimer's…where there is the possibility that a person lacks (mental) capacity. And then we have to be extremely careful and make sure we don't do any planning for a person who doesn't understand what the process is.
Q What do you do in a situation like that?
A You're just very careful. We have our own checklist of issues; there are questions that we tend to ask the person if we are concerned about the person' ability to understand…If we're concerned about the level of capacity - and especially if we are worried that somebody might challenge it - it's not uncommon to send that person to a professional who is in the business…of working with older people from a medical and psychological perspective. And they then will give us an assessment. That doesn't happen that often, but it certainly happens.
Q How profitable is elder law for attorneys compared to other legal specialties?
A As a general matter, it's not nearly as profitable…We're doing some litigation, but we're not doing the kinds of contingent-fee cases that can generate enormous windfalls.
We represent hundreds and hundreds of individuals, and there is a lot of inefficiency built into that. You obviously can't charge enormous amounts of money for most of the work we do, so we tend to work very hard, a lot of hours, but it's very gratifying; we do this because we love it.
Q Any advice for baby boomers, besides needing to plan for their own old age?
A Realize that they have an interest in their family's planning. I think it's incredibly healthy for parents and children - when the children are now in their 30s, 40s and 50s - to talk about al of these issues. This is not a greedy thing - this is not a how-to-protect-the-money-for-me. It's to understand the challenges that older people face.
I mean, people want to stay at home, they want to live at home no matter how much it costs. Sometimes they need to tap all of the equity in their home - these things called reverse mortgages. Kids have an interest in that, not in a negative sense. I would hope that children have an affirmative, supportive interest in helping their parents have their dreams come true first.
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