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About 70 million baby boomers are close to hitting their retirement years, a seismic demographic shift that will dramatically alter the way attorneys and courts do business in the coming decades. “With increasing age comes dementia, issues of capacity, appointments of guardians-the courts should expect a significant increase in their caseloads,” asserted Sally Hurme, a consumer protection attorney at the Washington headquarters of AARP, the elder advocacy group. Hurme added that “[e]lder abuse and financial exploitation will appear in increasing numbers on the civil and criminal dockets.” The readiness of courts is “uneven” across the country, she said. Every “court needs to take a close look at their preparedness, because the numbers are coming whether they’re prepared or not.” Because people live longer with more disabilities, elder lawyers are already seeing family members fighting over the assets of the living-as though it were a will contest. These kinds of problems and others will only exacerbate as the clock keeps ticking. The National Center for State Courts (NCSC) laid out the startling demographic facts in its publication “Future Trends in State Courts-2004.” There were 72 million children born in the United States between 1946 and 1964-the baby boomers. By comparison, only 18 million were born between 1964 and 1979-otherwise known as “Generation X.” Predictions regarding baby boomers in the NCSC report include: Increased probate, retirement and pension plan litigation. Increased emphasis on Americans With Disabilities Act compliance for the elderly. More traffic accidents involving the elderly will spur stricter restrictions for license renewals and changes in insurance practices. More identity theft and more of it by family members. Increased opportunities for fraud, abuse and crime by health care workers. The practitioners The fortunate elderly pouring into the legal system will be accompanied by “elder lawyers”-attorneys trained in both counseling and representation. Lawyers are flocking to continuing education courses in health care decision-making, age discrimination and the other areas that comprise “elder law,” said Laury A. Gelardi, executive director of the Tucson Ariz.-based National Academy of Elder Law Attorneys (NAELA). But many of them-”burned out litigators and corporate types”-find that it’s “not their cup of tea,” said Stuart D. Zimring, president of NAELA, which is devoted to the education and training of attorneys who deal with legal issues affecting the elderly, the disabled and their families. “They see the amount of handholding that’s required and a lot of them drop by the wayside because that’s not what they want to do,” added Zimring, of the Law offices of Stuart D. Zimring, in North Hollywood, Calif. “I do a lot more counseling than I do lawyering-getting people through crises-it’s a compassionate and passionate practice.” In the 16 years since its incorporation in 1988, NAELA has grown from 35 attorneys to almost 4,700. Arizona and California have been at the vortex in the development of elder law. “The [California] Legislature has manifested an intent to encourage the legal community to take on the causes of the elderly by extending some statutes of limitations, and allowing punitive damages and attorneys fees in some situations,” Zimring said. That includes a presumption of undue influence of deathbed gifts to caregivers, he said. “‘Incompetency’ no longer exists in California-the days of black and white are long gone,” Zimring noted. “It’s now incapacity to do something specific.” In Arizona, for example, treble damages may be awarded for abuse, neglect or exploitation of vulnerable people, said Allan Bogutz of Tuscon-based Bogutz and Gordon. There is also a fiduciary certification program, administered by the Arizona Supreme Court, for unrelated people who provide financial management. An ugly trend Both Bogutz and Zimring foresee an ugly trend in conservatorships. “We’re beginning to see will contests before the body stops breathing,” Zimring said. “The kids are fighting for it now. Some don’t want the money spent on their parents’ care. And then, there are of course the issues of how different members of a family define quality of care.” Bogutz, a past president of NAELA and one of its founders, agreed. “We’re seeing that a lot,” he said. “People protecting their position. We say ‘Mom saved for a rainy day and now it’s pouring.’ We have no sympathy for family members who see it any other way. The courts need to carefully and aggressively monitor the actions of fiduciaries, whether family members or professionals.” Zimring worries that the confluence of cash-strapped courts and the needs of increased staffing and staff training to deal with the future flood of disability issues does not bode well. “We’re dealing with personal freedom and independence. We don’t want to be taking away all a person’s rights just because they can’t balance a checkbook,” Zimring said. “To get it right takes time.” Getting it right will mean educating judges, explained Vincent J. Russo of Vincent J. Russo & Associates in Westbury, N.Y., a NAELA founder and past president and currently president of its New York chapter. “Judges across the board need to be sensitized to the issues of the elderly,” Russo said. “And it doesn’t matter if we’re talking dementia or an automobile accident that renders the person incapacitated, the issues are the same.” Russo added that the reason “we’re focusing on the baby boomers is not only their numbers, but the fact that they are a generation that is still taking care of their own parents and their children. We’ll be seeing disabled baby boomers who are being relied upon for support-financial, mentoring, emotional, coordinating care services-how are we going to deal with the domino-type effect? It presents an enormous challenge for us all.” Few firms have gone quite as far as Bogutz and Gordon in their efforts to be a hub between justice and social services. That firm employs a full-time social worker and a full-time registered nurse who provide care management as needed, said Bogutz, a former Legal Aid lawyer. The American Bar Association is doing its part to reduce the potential torrent of baby-boomer litigation by working to make aspects of the law friendlier to elders. “We’re on the edge of law and social policy,” said Nancy Coleman, director of the ABA Commission on Law and Aging. For example, the commission fought for two years along with the Alzheimer’s Association to win a rule change so that elders with a primary diagnosis of Alzheimer’s disease no longer had to appeal to, or sue, Medicare when they required ancillary services-such as physical therapy, speech therapy and psychotherapy. “When Reagan [the late president] fell and broke his hip, he got physical therapy under Medicare, but no one else got it without a battle-until we got the rules changed,” Coleman asserted. The 15-member commission is working on several other fronts, which could reduce the boomer burden on courts and federal agencies. The commission is monitoring 2004 amendments to the Social Security Act, which the ABA fought for and won. When someone can’t handle his or her own money, the Social Security Administration appoints a person or a nonprofit agency-without going through the courts-to use the money for the benefit of the beneficiary, Coleman explained. Before the amendments, if the payee misspent the money, a beneficiary typically got a legal services lawyer who almost had to show criminality before the agency would act, and then “the beneficiary still couldn’t get repaid unless the agency could recover it from the bad actor,” Coleman said. The amendments should make changing the payee and reimbursing the beneficiaries easier, she said. The Elder Justice Act-which never made it out of U.S. Senate committees last year, but is expected to be reintroduced this session-would provide, among other things, funding for research to determine how many seniors are under various types of guardianships and how they are faring. “What we expect we’ll find is a lack of uniformity in guardianships, which make them more difficult to transfer from one state to another, and that there are less intrusive kinds of guardianships some courts could be using,” said Coleman. “We also expect to find ways for courts to be more efficient, including the diversion of many guardianships out of the courts and into less threatening forums.” The friendly courtroom Stetson University College of Law in Gulfport, Fla., is building a courtroom readily usable by the elderly, with some features that can be adapted to existing courtrooms at little expense, said Rebecca Morgan who holds Stetson’s Boston Asset Management Faculty Chair in Elder Law. It will have the largest possible television monitors, glare-free lighting that doesn’t buzz, tables with rounded edges, color schemes that maximize vision for the visually impaired and different color and shape cues in the carpeting where elements of the courtroom intersect. In addition, there will be no steps to get to the witness box, and wide spacing between the rows in the jury box and the rows in the gallery, which will permit walkers and wheelchairs, Morgan said. “Most of the changes are just about being alert to the subtle challenges that elderly people have in a courtroom,” said Bobbi Flowers, the director of Stetson’s Advocacy Center. Other changes are more expensive. For example, adding extra baffles to an air conditioning system and making the ducts longer will cut down on the “whoosh for people who have hearing devices,” Morgan said. “The idea behind the courtroom is twofold: to raise the consciousness of designers so that they build cost-effective courtrooms that are inviting to the elderly, and to use it as a research laboratory to look into changing the way we do things, so that the elderly are able and not afraid to pursue their claims.” The Stetson courtroom also features a touch-panel outside the courtroom-and accessible by computer from the counsel table-that allows a person to identify the various positions in the courtroom. “That’s the bailiff and that’s the court reporter,” said Flowers, imitating what a person might find. “And if the person forgets, they can just touch it again.”

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