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What is Aging and Longevity Law?

 
Aging and Longevity Law Defined: A confluence of the numerous substantive areas of law which individually and collectively address the diverse legal challenges and related life contingencies that impact the evolving and growing demographic of the approximately 100 million Americans who are 50 years of age and older.
 
The following is an outline of the many substantive and procedural subject areas that constitute Aging and Longevity Law:
 
1. Abuse, Neglect and Financial Exploitation
  • Susceptibility of vulnerable persons who are isolated and alone
  • Victimization of individuals with diminished mental capacity
  • High incidence of abuse by family members
  • Mandatory/voluntary reporting by attorneys and/or other professionals
  • Misuse/abuse of advance directives
  • Role of government to reduce and prosecute criminal acts committed against the aging and longevity demographic
  • Litigation skills: orders of protection; civil actions against perpetrators
2. Advance Directives and Declarations
  • Familiarity with available statutory instruments such as powers of attorney and healthcare proxy
  • Selecting agents
  • An agent’s rights and obligations
  • Revocation and/or change of agent(s)
  • Acceptance or rejection by third parties, including healthcare facilities and financial institutions
  • Advance directives and Article 81 guardianships
  • Plenary actions to challenge/validate advance directives
3. Age Discrimination
  • Definition of “older” person and/or “disabled” person
  • Statutory and constitutional protection for older persons
  • Awareness of areas of age discrimination including:
    • Adoption and other family issues
    • Employment
    • Healthcare
    • Housing
    • Insurance
    • Government benefits
    • Workplace accommodations
4. Autonomy and Personal Choice (Civil and Constitutional Rights)
  • Right to self-determination
  • Right to Privacy and confidentiality
  • Right to Remain in Personal Residence (see “Olmstead Act”)
  • Right to vote
  • Right to travel
  • Right to challenge discriminatory practices
  • Eligibility for and access to government benefits
  • Enjoyment of privileges such as driving
5. Banks and Other Financial Institutions
  • Full disclosure of fees, early withdrawal penalties, etc.
  • Personal guarantee and other forms of collateral
  • Reverse mortgages, equity lines and other loan products
  • Convenience accounts
  • Spousal obligations
  • Acceptance of advance directives
6. Business Law
  • Sale, transfer and/or purchase of business interests
  • Special tax considerations for transfers between family members
  • Impact of employment on individuals eligible for Social Security
  • Preparation of partnership and other business documents, including clauses that address potential disability and/or incapacity of one or more parties, mandatory retirement; valuation calculations; applicable law; etc.
  • Capital gains, income, gift and estate tax considerations
  • Relationship between Medicare, Private Health Insurance and Medicare Supplemental Policies
  • Debtor/Creditor law
7. Consumer transactions
  • Scams:
    • Counterfeit drugs
    • Credit card fraud
    • Health Care/Medicare/Health Insurance Fraud
    • Internet Fraud
    • Mail Fraud
    • Telemarketing
    • Unsolicited and/or unnecessary home repair work
  • Identity theft
  • Government and private protection/assistance for victims of consumer fraud
  • Applicable criminal statutes
8. Contracts
  • Requisite capacity to enter into a contract
  • Common “boiler plate” language
  • Familiarity with common contracts including, but not limited to, insurance contracts, reverse mortgage contracts and contracts with hospitals, nursing homes and other healthcare providers
  • Special attention to clauses including personal guarantees, mandatory contribution, liquidated damages, applicable law, etc.
  • Statute of Frauds
9. Criminal law
  • Criminal procedure
  • Requisite capacity to commit a crime
  • An “older” defendant
  • “Crimes” committed by residents in healthcare facilities such as nursing homes, psychiatric facilities and hospitals
  • An Aging Prison Population: Treatment and release of “older” prisoners
10. Disability law
  • Prevalence of mental and physical disabilities in aging and longevity demographic
  • Federal statutes including the Americans with Disabilities Act and Family Leave Act
  • State statutes designed to protect and respect individuals with disabilities
  • Required accommodations by employers, business owners, municipalities, healthcare providers, etc.
  • Government benefits, including but not limited to, Social Security disability and Medicare
11. Emergency preparedness
  • Personal (and familial) responsibility
  • Parens Patriae powers of federal and state government
  • Applicable local, state and/or federal laws regarding vulnerable individuals
  • Responsibility of healthcare providers
12. End of Life
  • Right to Die/Desire to Live
  • Organ Donation
  • “Do Not” Orders: Resuscitation, Intubation, Hospitalization, etc.
  • Acceptance/rejection of artificial nutrition/hydration
  • By whom and how are decisions made for mentally incapacitated individuals
  • Who takes control of body upon death
  • Definition(s) of terminally ill and financial consequences of such a definition
  • Hospice care
  • Assisted suicide: a state by state issue
13. Estate Administration and Litigation
  • Familiarity with state(s) probate and intestacy laws
  • Domicile of decedent at time of death
  • Probate vs. non-probate assets
  • Spousal rights
  • Distinguish Surrogate’s Court Practice from types of civil litigation with emphasis on notice provisions and rules of evidence, including applicability of Dead Man statute
  • Court Fees
14. Estate Planning
  • Basic considerations in preparation of estate planning, including estate vs. probate assets; understanding and analysis of financial instruments and contracts; retirement instruments; spousal rights and obligations; minor and adult children, including non-marital children and special considerations involving real property
  • Use and implications of inter-vivos and testamentary trusts
  • Gift and estate tax issues
  • Pros and cons in regard to avoidance of probate
  • Special issues for high net worth clients such as generation skipping tax, overseas investments, valuations of active and passive investments
15. Family law
  • Evolving definition of family
  • Marriage and spousal rights and obligations
  • Divorce and annulments
  • Family caregivers
  • Special issues that impact LGBT community
  • Adult children in need of supervision and support
  • Grandparents rights
  • Rights and obligations of domestic partners
16. Federalism
  • Knowledge of federal statutes that directly impact the aging and longevity demographic including, but not limited to, Medicare, Social Security, Veterans Administration Benefits, Americans with Disabilities Act, Older Americans Act, Family Leave Act, etc.
  • Federal/state laws such as Medicaid where state law must meet minimum standards/criteria set by federal government
  • Applicability of constitutional law including the supremacy clause and tenth amendment
  • Implication of recent Supreme Court decisions regarding Defense of Marriage Act on other federal laws and initiatives involving state action
17. Food, Drugs and Cosmetic Law
  • Prevalence of prescription drugs and over the counter medication within the aging and longevity demographic
  • By whom and how are medications paid including but not limited to Medicare drug coverage, private insurance, private pay, Veterans Administration, Medicaid, etc.
  • Drug subsidies for low income individuals
  • Possible adverse impact of prescription and over the counter drugs on mental capacity
  • Addiction to pain medication and other drugs
 
18. Government Benefits/Programs
  • Eligibility requirements for Medicare, Social Security, Veterans benefits, Medicaid and other federal and state programs
  • Dispute resolution, including pursuing administrative and judicial relief
  • Familiarity with community resources to assist clients in identifying and accessing services
 
19. Guardianships and Surrogate Decision-Making
  • Familiarity with alternatives to and requirements of Article 81
  • “All or nothing” mandate of Article 17A
  • Family Decision Making Act and other “priority” based statutes
  • The States Parens Patriae power
20. Health Law
  • Familiarity with the healthcare continuum
  • Knowledge of the applicable statutes, regulations and case law concerning healthcare providers
  • Special attention to the admission and discharge policies of hospitals and nursing homes
  • By whom and how is healthcare paid for?
  • HIPAA and other privacy regulations
  • Decisions made by or on behalf of patients/residents which require knowledge of advance directives, Family Decision-Making Act; guardianships and other forms of Surrogate Decision-Making, MOLST, POLST, etc.
  • Respective rights and obligations of providers and patients
  • Sale or transfer of real property pursuant to Article 81
21. Insurance law
  • Familiarity with common insurance products relied on by the aging and longevity demographic including life, disability, health, Medicare supplemented policies, home, car, and umbrella policies
  • Use of hybrid policies such as conversion of life insurance policies to pay for healthcare
  • Evaluation of financial viability of insurer
  • Impact of cash value of life insurance policy on Medicaid and other government programs
  • Analysis of long term care insurance policies which includes familiarity with trigger provisions such as waiting period; functional limitations and/or activities of daily living; at home or in-facility placement; qualifications of healthcare provider(s), etc.
22. Labor and Employment Law
  • Special issues, including workplace accommodations for older workers and/or workers with disabilities
  • Taxation of wages for Social Security recipients
  • Mandatory/voluntary retirement
  • Termination of an employee who begins to exhibit signs of diminished mental capacity
  • Age discrimination
23. Litigation
  • Familiarity and comfort with substantive and procedural litigation issues
  • Knowledge of basic fundamentals involving Article 81 and 17A guardianships, estate administration, personal injury, medical malpractice and other types of litigation involving the aging and longevity demographic
  • Litigation costs
  • Courtroom and litigation etiquette
24. Municipal Law
  • Obligation of local, state and federal municipalities to the aging and longevity demographic
  • Local and state administration and enforcement of federal programs such as Medicaid
  • Outreach to low income and/or vulnerable individuals
  • Tax incentives for and obligations of aging and longevity demographic
25. Real Property Law/Landlord Tenant Issues
  • Types of ownership and legal implications of such ownership
  • Life estates and other estate planning options involving real property
  • Reverse mortgages
  • Tax considerations
  • The appropriate use of Lis Pendens
  • Impact of real property ownership in connection with eligibility for Medicaid and other government programs
  • Respective rights and obligations of landlords and tenants
  • Special issues regarding assisted living and other senior housing apartments
  • Aging in Place
  • Naturally Occurring Retirement Communities (NORCs)
26. Retirement planning
  • Familiarity with applicable financial and life planning strategies
  • Calculation of projected life expectancy and analysis of current and projected financial needs
  • Obligation to spouse and other family members, with an emphasis on loved ones with special needs
  • Ability to remain in home depending on financial, health and safety considerations
  • Social Security calculations and rules
  • Healthcare needs and coverage
27. Rules of Professional Conduct and Rules of the Chief Judge
  • Familiarity with New York Rules of Professional Conduct
  • Good Faith efforts to help a client who suffers from diminished mental capacity
  • Mandatory and/or voluntary reporting of violations of rules by other attorneys and judges
  • Self-reporting
  • Compliance with Part 36 rules: Court Appointments
  • Preparation and execution of retainer agreements
  • Maintenance of Escrow accounts
  • Representation of two or more family members, whether or not matter is adversarial
28. Taxes
  • Deductions, tax credits and other benefits to impact behavior of the aging and longevity demographic
  • Gift and estate taxes
  • Family discounts in transfer of business ownership
  • Required mandatory distributions from retirement accounts
  • Taxation of social security income
  • Adult family members as “dependents”