The New Age of Elder Care Law - An Interview with Buckley Fricker, Attorney, Author and Advocate

According to Buckley, her experience working with the elderly has reinforced the idea that as the age of society changes, the challenges will change as well. Compared to other types of law, such as personal injury or criminal law, the legal field pertaining to elder care is still relatively young. This is due to the simple fact that with new medical technologies, diets and lifestyles, the age of society’s elderly continues to advance alongside these factors.

However, the lifting of the age ceiling has also uncovered a host of new logistical problems. Whether it’s the cost of end-of-life care digging deep into the pockets of patients and the government, or the complications that arise from permanent incapacitation, there are many issues that society is just now having to address.

But for the legal world, it has also created an entirely new demand for attorneys to help tackle these tough questions and put patients in the best position possible for their advancement into the later years of life. Though services such as will drafting might be obvious, there are also less conspicuous areas of elder care that lawyers are now starting to address.

Buckley Fricker is a licensed attorney who has worked extensively in estate planning and elder care, and most recently she has written a book titled Elder Care: The Road to Growing Old is Not Paved, in which she highlights some of the problems faced by seniors today, and how to address those problems. She is also the founder of the company Buckley’s For Seniors, LLC, which helps organize home care for senior citizens. According to Buckley, her experience working with the elderly has reinforced the idea that as the age of society changes, the challenges will change as well.

What is your legal background?

Buckley Fricker: I started out working in the field of elder law after law school - it was the family trade. My mother was an elder law attorney and she joined the National Association of Elder Law Attorneys in the founding year of 1988, so even before I went to college I had an understanding about this new wave of law that has come about recently in humankind because we are able to keep people alive longer through medical advancements.

How has elder care law changed to respond to changes in society?

BF: Well, people have been surviving strokes for many years, as well as people with dementia, where in the past that just wasn't possible. So elder law evolved out of the new reality of people surviving for long periods of time while incapacitated, and it really put a new twist on the estate planning side of the law which was intended to maximize assets and distribution after you died. It didn’t have a focus on what would happen if you became incapacitated, so it was really very new.

Back in the late 80s, my mother would literally have to go over to a hospital with a living will in her hand and wave it in the doctors’ faces and say “This is a living will, it's a legal document, and you have to adhere to it.” The doctors were terrified because they had always practiced the edict of “Do No Harm.” Up until the last few decades, the idea of Do No Harm was to keep people alive as long as possible no matter what. Slowly what's happened is that the medical community realized that Do No Harm might comfort somebody while they're dying, but not necessarily prolong their life. So we’ve gone from the late 80s where we had lawyers that said "My client doesn’t want the feeding tube," to today where you can't step into a hospital without having to sign something about what you want to do if it so happens that you enter into a vegetative state.

Soon we are going to have droves of people who are going to be getting very sick. Before, if somebody had a stroke they might not be able to speak or use the bathroom or move at night. Now we have a speech therapist to do swallowing tests, the patient can have a mechanical diet, we can bring in the aides, and bring in the physical therapists to get them up and about. It's a new age and vision whereas back in the early part of the century, even if a patient survived the stroke they wouldn't live very long.

What is the most surprising aspect of elder care law for people today?

BF: I think it’s that people still focus too much about needing a will. They think, “My stuff has to go somewhere when I die,” and while yes, that’s important, what's really important is to plan for possible incapacity. But people don't want to have to think about that. They think that if something happens to them, then someone will take care of it. The problem is that they may not agree how to take care of it; they may not do what you want if you don't direct it in advance. So I am still surprised by how few people actually consider that and how important it is.

How will elder care change as a result of the election?

BF: The visions of each candidate are fairly different, and we don't know yet what the next few years will hold. Both candidates said they will raise the age of who gets Social Security and Medicare to 67, but that would not happen until people who are currently younger than 55 reach 67. So there's quite a bit of time before these changes affect people, but when you think about when that will be - 12 years from now - that is going to be when we have the first baby boomers in their mid to late 70s, and that’s when you start needing that heavy duty care.

What does Mitt Romney want to do differently?

BF: Let’s say you have a fairly healthy older person. Romney wants to give a payment to seniors 67 and over, and the payment would be calculated on the average cost of the second-least expensive insurance plan out there. They would have the option to purchase a private health plan or traditional Medicare. Depending on what they choose to purchase, if they want an expensive plan, they'd have to make up the difference. The hope that Romney has is that by allowing them to choose between a private plan and a Medicare plan that would create competition and drive down costs. But I would stress that's a hope. He hopes that it would drive down costs. It's more of an unsure future because it's not very tested.

One way Obama wants to cut costs in the future is to streamline some parts of Medicare and Medicaid. Under the current system, there is Medicare which covers people 65 and over and there is Medicaid which covers the poor. However, about 15% of Medicaid recipients are also eligible for receiving cover for Medicare, and so they’re covered by both systems under a dual. Obama wants to streamline that and have one of the agencies take over.

What do you recommend to people who are worried about the future of the health care system in America?

BF: What will happen with the government, Medicare and Medicaid, is going to be up to who gets elected, and that’s somewhat out of the hands of all of us. But what is in our hands is making sure that you have an advanced medical directive in place. That's something that people have their own power to do. The other thing I want to say is that people now have the option to purchase a long-term care insurance policy. As a geriatric care manager, it’s the very first question I ask - do you have a long-term care insurance policy? Costs are going to rise, people will get sick, we don’t know what Medicare and Medicaid will cover, but if you do buy one of these policies that is something individuals can choose to do. Obama tried to create a federal version of that but nobody has found a way to fund it. So what it does is allows you to purchase a plan with either a single payment or pay over time. Very wealthy people don’t really need it because they can pay for their treatment. Very poor people can’t afford a policy if they wanted to. But for the average American, it is something they should all have. It can cut those later nursing home needs down by more than half. For instance, in the DC area its $250 dollars a day for a home health aide. Instead you could be paying $100 dollars a day.

So we can all worry about what will happen with the election, but if every individual goes to an attorney and gets their advanced directive in place and then gets a long-term care insurance policy, those are the two top things a person can do to ensure that their wishes will be carried out and that it can be paid for.

Alex Levin is a writer for Seeger Weiss LLP, a top ranking Plaintiff’s law firm specializing in consumer protection, commercial disputes, and injury cases.

Copyright Seeger Weiss LLP
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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