|Vol. 9, nos. 3 & 4||
On Delivery of Legal Assistance to Older Persons
An Agenda for Action from the Symposium on Reinvigorating Legal Assistance for the Elderly
By: James A. Bergman, J.D.
" While this is not the worst of times, it is also not the best of times for legal assistance for the elderly poor nor for elder rights advocacy. This is, quite simply, a time of challenges and a time for reinvigoration." With those words, The Center for Social Gerontology (TCSG) opened it's Symposium on Reinvigorating Legal Assistance for the Elderly late last year.
It was for that reason -- the need for reinvigoration of legal assistance for the most vulnerable elderly -- that TCSG invited a group of over 60 key leaders in aging and legal services to come to Ann Arbor, Michigan for a two day brainstorming session to develop an agenda for actions at the national, state and local levels which would reinvigorate legal assistance and elder rights advocacy for the most vulnerable elderly. In this Best Practice Notes, we are publishing the recommendations developed at the Symposium so that they can serve as an Agenda for Action for elder advocates.
In the time since the Symposium, much work has begun on the recommendations that came out of it. For example, TCSG is working on plans for the first annual Elder Rights Conference, which will bring together elder advocates and elder law attorneys to work on broadening elder rights advocacy and increase collaboration of the law and aging networks on elder rights activities. Improvements have also been made in information sharing and use of technology in the law and aging field. However, there is still a significant amount of work to do.
As background to the Symposium, during the past few years the three major public funding sources for legal services for the most vulnerable Americans had been threatened or cut:
- the Legal Services Corporation (LSC) budget had been cut by 1/3, LSC support centers were eliminated and restrictions were enacted on the types of cases LSC programs could handle;
- one response to the LSC cuts and restrictions had been the creation of new legal programs for the poor which do not accept LSC funds and are unfettered by LSC restrictions;
- the state IOLTA (Interest on Lawyers Trust Accounts) programs had been threatened with extinction by a lawsuit before the U.S. Supreme Court (see related article in this issue of Best Practice Notes); and,
- the provision in Title III of the Older Americans Act making legal assistance one of three services which must be funded had been proposed for elimination, as had Title VII Elder Rights.
TCSG's National Survey of Legal Assistance for the Elderly showed that over 60% of Area Agencies on Aging (AAAs) funded LSC programs with their Title III-B legal grants, thereby demonstrating the importance to elders and the Aging Network of changes in LSC requirements and delivery systems. Yet, TCSG's Legal Survey indicated that, while AAAs were very supportive of legal services, most AAAs believed that funding for legal services in their state would drop if legal were not retained as a priority in the OAA; and, the Survey found that Legal Services Developers (LSDs) and AAAs were only minimally involved in state-wide LSC planning efforts which had a major impact on the re-design of LSC delivery systems. Thus, the civil justice system for the poor was being redefined -- new and changed programs, new partnerships, new approaches to delivery, increased use of technology, etc. -- but, the Aging Network had lacked significant involvement in these changes.
Simultaneously, elders faced new programs and challenges to their autonomy and rights; thereby, increasing their needs for legal and elder rights advocacy. New programs, businesses and delivery systems, such as Medicare and Medicaid managed care (including Long Term Care), assisted living, guardianship service providers (GSPs), electronic benefits transfers (EBT) of federal payments, etc., provided new opportunities, but also presented new challenges, e.g., lack of proper notifications of benefits restrictions and appeals processes in managed care, unscrupulous and negligent actions by GSPs towards elders for whom they are appointed guardians, etc. Skills, knowledge and timing are keys to effective advocacy; and, obtaining all these continued to be a major challenge.
A key challenge facing legal and elder rights advocates in the waning years of the 1990s was finding ways to reinvigorate legal assistance and elder rights advocacy in light of these adversities. This reinvigoration process included recognizing how the legal services and elder rights worlds had evolved, discerning ways of most effectively and efficiently using today's technologies, and reaching out to allies (new and old) to re-gain the sense of mission and passion needed to protect and enhance the rights of the most vulnerable elderly.
Planning and Convening the Symposium
TCSG's impressions that the legal advocacy network for elders had lost much of its energy were confirmed in 1997 by our Legal Survey which showed that communication and joint planning between legal services and aging networks was frequently inadequate and that this lack of on-going contact served to undercut support within the aging network for legal services. The findings of the Legal Survey concerning the lack of energy and communication were confirmed in TCSG's discussions with many leading elder law attorneys and Legal Services Developers. With their encouragement and the support of the Administration on Aging (AoA), TCSG convened a distinguished planning committee of aging and legal advocates to plan Symposium '97: Reinvigorating Legal Assistance for the Elderly. To enhance communication among the key stakeholders in elder rights advocacy, the Planning Committee concluded that the Symposium should include key representatives from the following groups: state units on aging; area agencies on aging; national aging membership organizations; legal services developers; legal services providers serving the elderly; Legal Services Corporation local programs; pro bono and law school programs; national legal support centers serving aging and other special populations; key national legal services offices, such as LSC, NLADA and CLASP; nursing home ombudsmen; and other key advocates.
In order to encourage the maximum participation of the invitees in developing an agenda for action, the Planning Committee concluded that work groups should be central to the Symposium and should focus on the following topic areas: Networking Actions; Legal Assistance and Elder Rights Delivery Systems Actions; Congressional/Legislative Actions; Funding Actions; and Issue Specific Actions in two topic areas -- Managed Care and Guardianship. The work groups were to recommend specific actions that should be taken in the coming months and next two to three years to provide a significant boost to the provision of legal assistance to the most vulnerable elders and to stimulate high impact advocacy to protect and improve the lives of older Americans.
With this format and with an outstanding group of participants, the Symposium was opened with an inspiring keynote address, titled "Legal Services for the Elderly -- Our Past Successes, Our Present and Future Challenges," by Jonathan Asher, the Executive Director of the Legal Aid Society of Metropolitan Denver and a long-time advocate for legal assistance for the elderly. (Jon's keynote address is re-printed elsewhere in this issue of Best Practice Notes.) Other key speakers during the Symposium included Alan Houseman of CLASP, Bill Benson of the Administration on Aging, and panel presentations by: Richard Ingham and Esther Houser of Oklahoma; John Hall of Vermont; Sally Hart and Stewart Grabel of Arizona; and Lenore Gerard of California. The remainder of the two-day Symposium consisted largely of intensive brainstorming work group sessions in which participants focused on discussing and developing specific recommendations for actions that should be taken on the local/state or national levels to reinvigorate legal assistance for the elderly and elder rights advocacy.
Following the Symposium, TCSG compiled the recommendations and circulated a draft of these recommendations to Symposium participants for them to review and comment upon. Because the various work groups had met simultaneously, there was some overlap in the recommendations, so that, following the review, we were able to combine many recommendations. Further, we suggested and participants agreed that the recommendations should be prioritized to as great an extent as possible and an attempt should be made to limit the final agenda for action to a realistic set of recommendations that would be capable of being implemented and would have maximum impact. While this was an arduous task, inasmuch as the Symposium participants had developed an excellent set of recommendations, the final agenda for action has now been winnowed to twelve key recommendations.
Twelve Key Recommendations: An Agenda for Action to Reinvigorate Legal Assistance for the Elderly & Elder Rights Advocacy
The twelve key recommendations from the Symposium constitute an Agenda for Action to Reinvigorate Legal Assistance for the Elderly & Elder Rights Advocacy, and consist of the following actions that apply to the local/state or national arenas:
- Legal assistance for the elderly and elder rights advocacy requires reinvigoration at the local, state and national levels; among key actions needed to achieve this reinvigoration are increases in the budget of and removal of the current restrictions on activities of the Legal Service Corporation, as well as retention of legal as a priority service in the Older Americans Act.
- There is a compelling need for an annual national conference on elder rights advocacy -- to include both special sessions for elder law attorneys and sessions for elder rights advocates generally -- as a key vehicle for reinvigorating and broadening elder rights advocacy on all levels and for increasing collaboration of the law and aging networks on elder rights activities.
- The legal assistance community needs to significantly increase collaboration with NASUA, NAAAA and the Aging Network on the national, state and local levels to reinvigorate legal services for elders and elder rights advocacy.
- LSC, NLADA, CLASP and other national legal centers need to increase their involvement in law and aging issues and encourage their local contractors/members to do the same; likewise, SUAs, LSDs and AAAs need to become actively involved in LSC state planning efforts in order to assure that the legal needs of elders are addressed and services are provided in a manner most conducive to the needs of older Americans.
- Legal providers for the elderly need to improve the quality of the information they compile on their services, and disseminate it more effectively to the Aging Network, policymakers and funders.
- Inasmuch as the legal needs of the elderly are vastly unmet, alternative funding sources for legal services/elder rights advocacy (including tobacco settlement funds) need to be vigorously pursued, in a collaborative manner by the legal and aging networks, while existing sources are maintained/increased.
- Greater use needs to be made of technology to enhance communication between/among legal providers and aging network elder rights advocates using e-mail, web sites, list serves, etc. to increase the scope and effectiveness of elder rights advocacy on key issues of concern to the most vulnerable elderly.
- Greater attention is needed to the uses of technology in legal services delivery and their impact on vulnerable elders, to assure that such technology is increasing access to justice for elders; one possible avenue for examining these issue is through the CLASP/NLADA Project for the Future of Equal Justice.
- State meetings like TCSG's national Symposium on Reinvigorating Legal Assistance for the Elderly should be held to coordinate and develop elder rights advocacy agendas which involve both the law and aging networks.
- The National Support Centers on Law and Aging (funded by the Administration on Aging), with NAELA state chapters, LSDs and AAAs, should promote the expansion of pro bono services for the most vulnerable elderly in order to address the large number of unmet legal needs of these older Americans.
- Aging network and legal providers should collaborate on conducting local training events on managed care and other emerging issues directly affecting vulnerable elders, in an effort to increase the knowledge and skills of members of the law and aging networks on these new and often complex issues and to maximize the limited resources of these elder rights advocates.
- The National Support Centers on Law and Aging and other legal providers need to disseminate substantive information more broadly and in a more timely manner to elder rights advocates on new and emerging issues of concern to the most vulnerable elderly, e.g., managed care, patients' rights, new guardianship issues, etc.
The recommendations from the Symposium on Reinvigorating Legal Assistance for the Elderly, from such a knowledgeable group of participants, provide a clear statement of need and direction for future action. Together these recommendations constitute a pathway for increasing the vitally necessary collaboration of the law and aging networks in order to meet the legal needs and protect the rights of America's most vulnerable older persons. Equally important, these twelve recommendations form an Agenda for Action for reinvigorating legal assistance for the elderly and elder rights advocacy at a time when such energizing is vitally necessary.
The challenges facing elder rights advocates are well known. The recommendations from this Symposium provide the direction to meet those challenges. The time is now to confront those challenges with action, for, as Frederick Douglas stated: "Power concedes nothing without a demand. It never did and it never will. If there is no struggle, there is no progress." As we confront these challenges, we must be prepared to struggle, for legal rights for the most vulnerable in society will never be popular, but our overriding goal must be to improve the quality of life of the most vulnerable elders in America.
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The Center for Social Gerontology, Inc.
A National Support Center in Law and Aging
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