The legal needs of the elderly: rights, wrongs and remedies – includes bibliography, and related information on social work advocacy functions
Sia Arnason
According to the Commission on Legal Problems of the elderly of the American Bar Association, many older Americans do not recognize that some of their problems are legal in nature; as a result they do not seek help. I 11″ they i re lucky, they talk to someone who is able to identify the nature of the problem and knows where to turn for assistance; if they are not so lucky, the problem can become a crisis. Poor elderly persons are probably most vulnerable since they are more dependent on government benefits, are less likely to have access to information and assistance, and may be more timid about approaching a public agency. What Are the Legal Needs of the Elderly?
Since 1973 legal services for the elderly have been provided under Title Ill of the Older Americans Act.
Although the need for special legal services for the elderly was recognized early on, there were no data available, nor are there any now, about the magnitude of this need. However, several surveys done in various parts of the country including impoverished older persons) indicate that poor households have on average 1.2 legal problems per year.2
Some of the legal problems facing America’s elderly citizens are common to all Americans but there are other problems that stem from an older person’s age and status in society. Such age-related legal problems include private pensions, wills and probate (to a greater extent than found in the general population), guardianship and conservatorship, surrogate decision-making mechanisms (durable power of attorney, trusts, living wills) and age discrimination. There is also another set of legal problems older Americans face – these concern government benefits. Upon retirement. most elderly enter into a radically different relationship with the government and its administrative bureaucracy. Thus older Americans frequently find that they have difficulties they have never encountered before. These problems can have a profound effect.
A peculiar aspect of the legal problems of the elderly (and the poor) concerning their entitlements is that one legal problem often results in another. Loss of income is likely to create a landlord/ tenant problem or may result in foreclosure on a home; it may cause utility shut-off’s. Thus a legal, entitlement problem may go hand in hand with other legal, social or psychosocial problems. Government benefits are governed by complex regulations regarding eligibility requirements, benefit standards and reporting and documentation guidelines. Beneficiaries generally have little knowledge or access to information concerning laws and regulations or their obligations or rights. Most are not aware that an entitlement problem is a legal problem, and do not know their due process rights as beneficiaries and how to make use of them. What Are the Legal Rights of the Elderly? In 1970 the U.S. Supreme Court decided in Goldberg v. Kelly that welfare recipients have a right to due process. The court found that “. . . to cut off a welfare recipient in the face of… brutal need, without a prior hearing of some sort is unconscionable, unless overwhelming considerations justify it.
The key to this decision is that benefits are considered the property of the recipient and can therefore not be denied, reduced or terminated without established procedures following specific standards. The rights of due process apply to all government benefits, whether these rights are embodied in federal or state law. Due process rights do not apply to private sector programs and services and they are not a guarantee against a lawful denial, reduction or termination of public benefits. Due process rights focus on fairness in the procedures. hey include the following:
RIGHTS * to timely and specific written notice of the intended government agency action; * to challenge the intended government action before an impartial decision-maker; * to appear and present evidence in support of beneficiary’s claim; * to be represented by an attorney or another advocate (social worker, friend, relative); * to access to the government ageney’s files on the case; * to present witnesses in support of the beneficiary’s claim; * to subpoena and cross-examine witnesses; and * to a written decision, following the procedure. Due process is critical to make it possible for beneficiaries, to prove that the government agency has made an error in their case. More than 50 percent of all adverse administrative decisions which are challenged are reversed following an administrative hearing. With A H These Rights, What Can Go Wrong? Notwithstanding the many existing benefits and due process rights, major problems remain; o The laws and regulations of public programs are exceedingly complex and ever changing; they are confusing to the average person. There are more than 80 federal programs and a host of state and local programs available to the elderly that are administered by a myraid of different agencies. They have different eligibility criteria and benefit levels and sometimes affect each other negatively. Most beneficiaries of public programs do not know the details of the regulations and have no easy access to adequate information. * Legal language and bureaucratic jargon can be difficult to understand for the average untrained person. * Most people do not know how to appeal a negative decision or notice from a public agency and do not know where to turn for help; some are afraid to “make waves” for fear of losing what little remains. * Many applicants or beneficiaries will not be able to handle their own appeal without getting at least some help from an expert in preparing documentation to support their claim, because of the complexity of the entitlement laws and regulations. * There are not enough legal services attorneys available to represent older persons at judicial proceedings or administrative hearings. Many legal services offices haye waiting lists and focus their efforts on representing clients with emergencies or serious crises. * The participation of the private bar, pro-bono attorneys and the use of dispute resolution techniques have had mixed results in the area of entitlement law. Administrative appeals tend to generate no fees (or low fees in some few instances) and training on the various laws is usually required before a private or pro bono attorney can effectively represent a client. Mediation in public benefits disputes has not been fully explored or developed and more work needs to be done in this area.’ * Social workers or center directors, to whom many elderly turn for information and assistance, may provide advocacy assistance to their clients but frequently lack the current information or the resources to accurately inform their elderly clients of their rights, or how to prepare for a “fair hearing”. Trained Social Work Advocates May Offer Some Remedies.
The Wisconsin Center for Public Representation has identified the following four advocacy functions which can be performed by social workers:
(1) Identifying client needs by determining from the client’s story the issues which require legal or other advocacy assistance.
(2) Providing assistance through informal advocacy (a telephone call or a letter to a public agency) or by representing the client at an administrative hearing and presenting the appropriate evidence and witnesses.
(3) Serving as an intermediary by informing clients of the issues raised by their claims, identifying the type of legal assistance needed, and making referral to an attorney or legal services program, when necessary. (4) Acting as a group or community spokesperson by speaking out on behalf of the elderly at public hearings or by contacting a public agency concerning a systematic or administrative problem which causes difficulties for many clients. The key to effective social work advocacy is to provide training in major public entitlement laws and regulations, administrative appeals procedures, and community resources to staff at nutrition sites, senior centers, and information and referral programs, and to ombudsmen, case managers and others in the aging network. Close cooperation between social service agencies and legal services providers is the most effective way to do this.
Unlike lawyers, social workers generally do not have access to written information concerning public entitlements. The lack of easily understandable up-dated legal information for lay advocates is a serious impediment to providing appropriate entitlement advocacy.
In addition to training, it is important for social service agencies to develop a mechanism which enables them to remain up-to-date concerning changes in public benefit programs, which occur frequently, through annual refresher courses or dissemination of written material such as a newsletter or bulletins. This kind of service might be provided by a State or Area Agency on Aging. Given the importance of the benefits in the lives of their clients, social workers must have access to a legal services attorney or other entitlement expert who can consult with them on a case by case basis about solving the client’s problem and ensuring that they are not missing important points.
Finally, community education programs are needed for elderly people who need specific information on public benefits, how to gain access to them, what obligations and rights are associated with each benefit, how to appeal a denial, termination, recoupment of an alleged overpayment, underpavment or other problem and where to turn for further help.
Since many public benefits are state specific, advocates must work with their local legal services network, local private bar association or elder law attorneys to ensure that the legal needs of the elderly are addressed with maximum efficiency and a minimum chance for error and misrepresentation. 2
SOCIAL WORK ADVOCACY FUNCTIONS * Empowering clients before problems occur by providing community education programs, including talks on major public benefits and due process rights; * Interviewing clients who have questions about public benefits or other legal problems and helping them rephrase the question by putting questions in the proper (legal) perspective; * Asking the client to bring in all documentation notices and other correspondence with the administrative agency to determine the issues at hand; * Urging the client to request an administrative appeal when in doubt and time is running out, to ensure that the client does not lose rights by acting too late; * Deciding what type of assistance is needed by the client, whether an attorney is needed, determining what type of attorney, and referring the client to the proper source. If an attorney is not needed, evaluating who will be able to assist the client; * Determining what, if any, role there may be for the social worker (agency) by realistically assessing strengths and weaknesses of the worker (agency) in light of the client’s needs; * Explaining to the client what the client can expect from the social worker (not promising more than can be reasonably delivered) and how the client can help to prove the case; * Consulting with a legal services attorney about the case to ensure that the worker’s assessment of the case is correct and that the case can be handled by a non-legal advocate; * Assisting an attorney in the development of evidence and gathering documentation (under the direction of the attorney); * Informing the client of all required steps and providing status reports on the case; * Before the conference or hearing, explaining to the client what is to be expected at the hearing and rehearsing with the client what questions will have to be asked and answered and how to answer them; * Representing the client at the hearing or acting as witness; and * Following up with client when a hearing decision has been received to ensure that client receives the relief specified in the decision.
COPYRIGHT 1990 U.S. Government Printing Office
COPYRIGHT 2004 Gale Group
