As an elder law attorney I guide clients through the maze of the senior chronic care system to help marshal all possible resources to provide the best care possible and at the same time preserve some of their life savings. In addition, many elder law attorneys provide planning advice for persons of all ages with disabilities.
What will the elder law practice look like in 2020? I believe it will be very different because our health care system will be very different. Clearly, the system will get worse rather than better.
Three Crises Loom On The Horizon
The confluence of three crises illustrates the scope of challenges facing seniors and the disabled. First is the continued growth of Alzheimer’s disease in an aging population. The Alzheimer’s Association predicts that Alzheimer’s disease alone will break the public benefits system unless a cure or effective treatment is found within the next ten years.
Second is the terrifying rise and cost of autism and related disorders. Autism prevalence has gone from 4 in 10,000 a few years ago to 1 in 166 (according to some accounts, the rate is 1 in 150). The number of those diagnosed continues to rise. Lifetime direct and indirect costs to treat and care for an autistic child exceed 3.2 million dollars. If the rate of growth in autism continues to rise or even remains constant, it is enough to break our public benefits system.
Third is the aging of the baby boomers. If this age wave needs, wants and expects the level of care currently provided by Medicare and Medicaid, we will have costs rising at a rate most citizens and politicians are likely to find unacceptable. Federal Reserve Chairman Ben S. Bernanke has cautioned that “…the coming demographic transition will have a major impact on the federal budget…continuing for many decades” (Oct. 4, 2006). Bernanke predicts that Social Security and Medicare will change from the current 7% of domestic product to 13% by 2030. Bernanke also says the country will have to choose among higher taxes, reduction in payments for entitlement programs, a sharply higher budget deficit, or some combination of these; and goes on to suggest that taxes would have to be increased by at least one-third over the next 25 years.
We May Be Moving Toward The Rationing Of Healthcare
As the 2008 presidential election moves into full swing, candidates are proposing new health care systems for the United States that may be more affordable, comprehensive, and include the more than 47,000,000 Americans with no health care coverage at all. Will universal health care solve the senior and special needs population health crisis? Will we move to a health care rationing system that will effectively make care less available rather than more? How will the new health care system treat chronic illness and disability?
Medicaid has already surpassed education in Florida’s budget at a time when casualty insurance and real estate taxes are perceived to be beyond the taxpayer’s ability and willingness to pay. Where will the cuts be made as the state’s crisis deepens? Long-accepted planning techniques for disabled persons will eventually come under the government microscope. Special Needs Trusts that provide for supplemental needs and allow the individual to collect government benefits are likely to be in bipartisan trouble.
William Mitchell School of Law Professor Kim Dayton believes that rationing will inevitably accompany universal health care. In her paper “The Future of Elder Law: End of Life Issues,” prepared for the National Academy of Elder Law Attorneys Institute November, 2006, Professor Dayton suggests that the new system consider the following rationing choices:
• You get a certain number of years, but that’s all (how many?)
• You get a certain quality of life, but that’s all (what is quality, anyway?)
• You get what you can pay for yourself, but that’s all (it’s the American way)
• You get basic treatment, that’s all
• You get what you need, but not if your diseases or disabilities are self-induced (no liver transplants for alcoholics or triple bypass surgery for smokers)
• You get what you need if you are someone of past, current, or future importance
• The closer you are to dying (due to age or disease), the less health care you get
Three Ways Elder Law Attorneys Can Help
How can elder law attorneys deal with these extremely negative possibilities for the future?
1. Take Personal Financial Responsibility. Each of us must advise our clients to take personal financial responsibility for the care of our special needs loved ones. Elder law attorneys and estate planners must budget long-term care into client estate and financial plans. Once a person makes age 60, she or he has a 60% likelihood of needing long-term care. Instead of planning for death, as we traditionally have, we need to plan for life, taking into account the strong probability that each client will have chronic illness. It is foolish to believe that government benefits will adequately provide for seniors and the disabled by the year 2020.
2. Become Politically Involved and Politically Active. As elder law and estate planning attorneys, we see and hear many wrenching stories from a generation Tom Brokaw named “The greatest.” We are positioned to advocate for their fair treatment. Their stories touch us; their plight trumps the economic concerns expressed by elected officials at the municipal, state, and national levels. We can make public officials who are in a position to help aware of the challenges facing seniors. We must find cures for these terrible chronic illnesses and disabling afflictions.
3. Be Visible. The public needs to experience the ways in which seniors have a positive impact on all of us. Aging is not just about illness. Elder lawyers can help laypeople understand that aging is not synonymous with inevitable decline but can be as a stage in which we share the wisdom we’ve accumulated.
Elder Law attorneys deal with the legal, health and social issues connected with aging. Medicare does a good job for seniors with cancer, heart disease, and other acute illness. The Medicare patient who needs open heart surgery is likely to run up medical and hospital bills in the hundreds of thousands of dollars with out-of-pocket share of cost being a few thousand dollars at most. However, seniors afflicted with chronic illness such as stroke, Alzheimer’s, Parkinson’s, MS, and Lou Gehrig’s are very limited in Medicare coverage. Medicare may provide up to 100 days of skilled or rehabilitative care if preceded by at least a three-day hospital stay. The patient must be making progress with rehab and most do not receive anywhere close to 100 days of coverage. When Medicare benefits terminate, the payment sources for the $6-7,000 per month cost of nursing home care are limited to long term care insurance (hard to get and expensive). I am a founding member of the Special Needs Alliance, a national invitation-only organization of lawyers specializing in assisting people with special needs. Special Needs Trusts allow disabled people the opportunity to live more comfortable lives with the combined benefit of public benefits and protected private resources. Other trusts protect seniors whose income exceeds Medicaid limits but is well below the monthly cost of care.
Elder law and estate planning attorneys must take on these challenges now, not only for the current generation but for future generations. We must choose whether we want to drive our own vehicles and end up where we want to be or be mere passengers dropped off wherever others decide. There is little likelihood that our health care system will become any easier to navigate in the future. As we advise senior and disabled clients of all ages to be proactive and creative, we can do no less.
[This article was published in 2007]
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