Evolution of Elder Law

By: James E. De Martino, Atty – Elder Law Strategies

www.njelderlawfirm.com

www.estateplanninglibrary.com

When it became apparent that Americans were living longer, new laws were needed to address the phenomena. Perhaps the first President to realize this was Franklin Delano Roosevelt. In accordance with his “New Deal” in the l930’s and l940’s, the Social Security Act was passed. Arguably, it was a program designed to help those over 65 achieve a fair standard of living once they retired.
It was never intended to be a “full-scale pension” program.

During the l960’s, the advisors to Presidents John F. Kennedy and Lyndon B. Johnson alerted them to the following:

a. Americans were living longer.
b. for the first time in American history,
a large segment of the population would see their bodies outlive their minds.
c. this problem would be further amplified when the post-World War II baby boomers would deluge the Social Security System.

From these concerns, medical care to the aged surfaced in the form of Medicare and Medicaid. In their time, they were deemed, by some, to be radical concepts. To be sure, the Kennedy-Johnson administrations faced opposition for such aid to the elderly. At times, some of their opponents claimed these programs had socialist, Marxist, or even communist trappings.

Notwithstanding the pressure of many arch-conservatives, Social Security, Medicare and Medicaid were here to stay. Elder Law can trace its embryonic roots to the administrations of Presidents Franklin Delano Roosevelt, John F. Kennedy and Lyndon B. Johnson.

Medicaid originally created to help indigent citizens pay for their hospital, doctor and medical care. Eventually, it was expanded to help the middle class segment of the population pay for long-term care in skilled nursing facilities.

The terms “Elder Law” and “Estate Planning Law” are often used interchangeably. Although Elder Law incorporates Estate Planning Law, the former places emphasis on planning for a longer life expectancy. This includes, but is not limited to, planning for a time when the client must address legal, financial and health matters with diminished cognitive or physical ability.

The Elder Law attorney becomes an important component of an interdisciplinary approach with medical personnel, social workers, financial advisors, accountants and caregivers. Along these lines, an Elder Law practitioner:

a. helps the loved one find the care that meets his/her emotional, physical, spiritual or mental needs.
b. get the best level of care for that person (whether at home or in a skilled nursing facility)
c. pay for it without becomming financially depleted.

The issue of health care, for the elderly, may be approaching a crisis point in the not-too-distant future. This may come at a time when the nation confronts a two-fold problem:

a. high costs of medical treatment
b. inability of people and companies to pay spiraling health insurance premiums.

Clearly, there appears to be no easy solution to the problems at hand. Radical or drastic change, to the status quo, is definitely needed. Although we can’t exactly predict the success of any huge overhaul, one thing is certain:

WE KNOW WHAT WILL HAPPEN IF WE REMAIN ON THE PRESENT PATH.

“A TREE WHOSE BRANCHES WILL NOT BEND, IS SURE TO BE BROKEN BY THE WIND.”

The laws which govern medical care, for the elderly, will undoubtedly be transformed as America confronts this problem head-on.

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