As the percentage of U.S. residents aged 65 or older continues to grow, more and more seniors are left facing legal needs, from estate planning and guardianship issues to dealing with financial exploitation and other forms of abuse. But a shortage of attorneys with specialized training and the steep cost of services is keeping many seniors from getting the help they require. (iStock.com/yaom)
Megan Wood has seen a lot during her years as a staff attorney with Prairie State Legal Services, an organization that provides civil representation to low-income people in Illinois, but there are a few cases that stand out.
One involved a client who was nearly 80 years old and was experiencing memory loss. Extremely hard of hearing but unable to afford hearing aids, he relied on family to make phone calls for him. He lived in a mobile home with a daughter who was supposed to help him — but instead, the daughter signed the title to the trailer over to herself and evicted her father.
The man's sister and a private attorney connected him to the legal services agency.
"In Illinois, there's a cause of action for financial exploitation," Wood told Law360 in a recent interview. "And so we filed a lawsuit, and [the daughter] ended up agreeing to give his mobile home back to him."
That anecdote illustrates the power of a skilled elder law attorney to change people's lives for the better.
Elder law attorneys can protect elderly or disabled people from caregivers who steal their money or otherwise abuse them. They can help clients sign up for Medicaid or other public benefits to pay for nursing home care, keeping families from burning through their savings to cover massive bills. They can write wills and trusts, ensuring that money is properly transferred from one generation to the next, and use guardianships and related legal measures to safeguard people with dementia and similar conditions.
But the anecdote also illustrates the fact that many of the seniors most in need of legal assistance are also those who are least able to afford it.
Elder law has emerged as an important access to justice issue in recent years. The United States has a burgeoning share of elderly residents, and many of them need legal help. At the same time, only a small number of lawyers possess specialized training to meet their needs, and an even smaller number of those are willing and able to serve people who have little or no money to pay.
Multiple organizations are working to help address the problem — Wood, for instance, was among a growing number of lawyers trained through an elder law fellowship established by Equal Justice Works, a nonprofit designed to help prepare lawyers for careers in public service.
Wood, whose office is in Bloomington, Illinois, had already been working for her organization for nearly 10 years when she began her fellowship in 2020, and says she gained access to specialized elder law training not readily available in the mostly rural area where she works. The two-year fellowship is currently training a cohort of 22 attorneys at legal aid organizations across the U.S.
Other organizations are taking creative approaches such as offering legal services in hospitals or operating telephone legal hotlines for elders.
Still, the demand for elder care is so significant that the existing efforts are falling well short of the need.
"Our phone rings off the hook," said Michael Delaney, a Chicago elder law attorney and founder of DDV Law who also serves as president of the board of directors of the National Elder Law Foundation, an organization that trains and certifies practitioners in the field.
"Everyone I know that practices this area of law, quite frankly, is exhausted," Delaney added. "And we know there's not enough elder law attorneys in the country to help all the people that could be helped by elder law attorneys."
A Growing Need
According to the Administration on Aging, a federal agency within the U.S. Department of Health and Human Services, there were 55.6 million people aged 65 or older in the country in 2020, representing 17% of the population. That share is expected to grow to 22% by 2040.
Meanwhile, the National Academy of Elder Law Attorneys, a major professional organization for practitioners in the field, has a membership of about 5,500, Delaney said. In other words, for each one of the group's members, there are roughly 10,000 seniors.
And many of those senior citizens simply don't have the money to pay legal fees. An estimated 5 million people aged 65 and above were living in poverty in 2020, and another 2.6 million were "near-poor," according to a 2021 report from the Administration on Aging.
Seniors frequently experience housing, medical or other legal problems that could potentially be resolved with a lawyer's assistance. In a survey, a full 70% reported one or more legal problems in the past year, according to a 2022 study from the Legal Services Corporation, a publicly funded organization created by Congress.
But the seniors surveyed only sought help for 26% of legal problems. Overall, the study concluded that seniors did not receive any help — or not enough help — for 91% of substantial legal problems.
Wood, the Prairie State attorney, said she's learned over the years that many people who experience elder abuse don't necessarily see themselves as victims, and they don't always recognize they have a legal issue. She said her organization is trying to reframe the issues to encourage these people to apply for services.
"If they don't apply, we can't do anything," she said.
For instance, Wood runs a walk-in clinic at a high-rise building with many elderly, low-income residents. She's also learned to avoid legalese when giving know-your-rights presentations. Instead of using the term "public benefits" to talk about Medicaid and other programs, she'll use the specific name of the program.
"More Than Most People Have Ever Paid"
While the number of legal aid attorneys for low-income seniors is limited, people with middle incomes may not even qualify for services at all. Elder law attorneys in private practice, meanwhile, may charge hundreds of dollars per hour.
Even a typical scenario — getting a loved one qualified for Medicaid benefits and doing estate planning to protect their assets — can carry a substantial price tag, according to Massachusetts-based elder law attorney Patrick J. Kelleher.
"From my experience, I've heard costs in the industry from $10,000 to as much as $18,000, depending on the level of work and the scope of work that elder law attorney may do," Kelleher said in a YouTube video explaining elder law basics to the public.
Nursing homes are also extremely expensive. In the Chicago area, for example, nursing homes can cost anywhere from $7,000 to more than $13,000 per month, said Delaney of DDV Law and the National Elder Law Foundation.
"That's more than most people have ever paid per month for anything. Over the course of a year, it's sometimes more than a lot of our clients have ever paid for their house," he said. "Clients coming to us are often facing a situation where they've been told — and it is true — that unless they do something, they don't have anything left. It will all be gone."
A private elder law attorney, however, can help families secure Medicaid and other benefits to help cover the costs. As Delaney sees it, even as he's accepting fees for his work, he's helping clients to avoid ultimately bankrupting themselves.
"The money that they're paying you is really money that is essentially already spent if they do nothing," he said.
Still, Delaney called the complexity of the system "certainly unfortunate."
"I have always been of the opinion that it is unfortunate that we have a health care system that you need a lawyer to help you navigate," he said.
Even highly educated people need help navigating the system. Amy Delaney, Michael Delaney's law partner and wife, pointed to a case involving one of her recent clients, Robert Furto.
Furto, a retired pharmacist, told Law360 he had been married for 45 years when his wife experienced a severe stroke in 2018. While she largely recovered physically, her personality had changed. The kind and caring wife he'd always known was replaced by someone who would insult him, telling him things like, "I hope you get run over by a car today," said Furto, now 72.
"These types of comments I heard all the time," he said. "It really wore thin on me."
Robert Furto hired an attorney last year to establish a guardianship for his wife about four years after she experienced a stroke that left her prone to sometimes violent outbursts against him. (Courtesy of Robert Furto)
The situation got so bad that he called the police to the family home near Chicago more than once, Furto said. He also said he badly bruised his knee while trying to move his wife.
Eventually, Furto realized he just couldn't care for his wife anymore. After hearing a public lecture by Amy Delaney in 2020, Furto decided to hire her in 2022. Amy Delaney helped him establish a guardianship to take control of his wife's finances and medical care, and to set her up in a nursing home to ensure she got the care she needed — while keeping him safe.
"She's in a beautiful nursing home," Furto said, adding that he owed his attorney all the thanks for the change. "I really do."
The couple has since reached their 50th wedding anniversary. Furto said he still visits his wife four or five times a week, taking care of chores like washing her clothes — but when the visits end, he can go home to a safe and peaceful environment.
Building Up the Elder Law Subspecialty
Multiple efforts are underway both to bring more practitioners into the elder law field and to expand access.
Bobbi K. Flowers, director of the Center for Excellence in Elder Law at Stetson University College of Law in Florida and president of the National Academy of Elder Law Attorneys, told Law360 that leaders within the field especially want to bridge the access gap for seniors of color.
"We have come to realize that the majority of clients that come to elder law attorneys are white," she said. "Communities of color are really not well served right now, and possibly don't even understand the need to go see an elder law attorney because they may think it's for the rich."
To help improve access, Stetson University has created a fellowship to train law students of color in elder law. As part of the program, fellows will be required to go into diverse communities and give presentations about elder law services, Flowers said.
Sarah Galvan, managing director for elder rights at the organization Justice in Aging, pointed to partnerships between medical providers and legal services.
In San Francisco, for instance, the Medical-Legal Partnership for Seniors Clinic gives seniors at the San Francisco VA Medical Center a chance to talk with law students from University of California College of the Law, San Francisco, about advance health care and estate planning, public benefits and other issues, according to the program's webpage.
Legal hotlines also aim to make legal services more readily available to older adults. In Florida, for instance, seniors across the state can talk with attorneys and paralegals by calling 888-895-7873. The service is free, and the hotline professionals can refer more complex cases to other free legal providers in the community.
Meanwhile, the Legal Services Corporation, the Administration for Community Living and the National Center on Law & Elder Rights banded together this year to launch a webinar training series on elder law, tackling specialized topics such as nursing facility eviction cases and representing clients with dementia or other cognitive problems.
Galvan said elder law matters to everyone, because people who might imagine they would never need this type of legal assistance might discover that they really do. And legal help can support older adults in living independently in the communities that they choose, she said.
"Having older adults in our communities living vibrant lives is really a benefit to us all," Galvan said.
--Editing by Alanna Weissman.
Have a story idea for Access to Justice? Reach us at email@example.com.