Speeches and Presentations

"Rally Against Ageism"

May 1st, 1996, Spertus Institute, Chicago
Wednesday, May 1, 1996

Speech by Marc J. Lane
President, The Law Offices of Marc J. Lane, A Professional Corporation.
All rights reserved. No Part may be duplicated without written consent.

Thank you for inviting me here today.

Elder Law attorneys like me are concerned about the absolute rights and the special needs of the elderly and their families.

Some of us are working with those who need living wills or advanced directives for health care. Others are offering advice about decisions our clients will need to make for an incapacitated spouse. We may be helping our clients secure Medicare reimbursements or addressing concerns about long-term nursing home care. We may be advocating the rights of those in nursing homes or, sadly, those who are victims of abuse or neglect.

But the issues affecting the elderly aren't only health-related. They face financial issues, too, and understandably are looking to preserve their assets and protect their incomes, as I help them do in my practice. They need estate and tax planning -- wills, trusts and durable powers of attorney. They may be motivated to direct their social capital through planned charitable giving. They have questions about their investments and their pensions.

They may be the targets of ageism in any of its malignant forms, including age discrimination in housing or in employment. They may need help in qualifying for Supplemental Security Income or veterans' benefits.

Apropos of today's theme, in every case, the elderly are called upon to become more self-reliant. They are invited to shatter negative stereotypes and assertively apply their talents to the job of healthy, productive and inspiring living.

Let's focus on a few illustrations.

First, Congress wants to shrink by almost one-third Federal funding to the National Legal Services Corporation, which oversees local legal aid programs. Last year, legal services programs helped 5 million of our country's neediest people, including the elderly poor, resolve civil -- not criminal -- legal problems.

Most of these cases were simple, such as foreclosures and evictions. Often advice, a referral or a few letters or phone calls were enough to solve the problem. Most of these cases were resolved out of court. Such basic assistance can head off more complicated legal troubles and make a world of difference in the lives of the elderly and legal aid's other beneficiaries.

While private law firms, bar associations and individual lawyers have increased their donations and pro-bono hours to make up for the lack of funds, legal aid clinics still have had to scale back dramatically on the number of cases they accept.

Right now Congress is further trying to tie the hands of legal aid lawyers by banning them from filing class-action suits, such as those on behalf of groups of the elderly poor who want to challenge unfair housing practices or consumer fraud. And even as Congress touts less Federal involvement in local programs, it is trying to restrict the funds that legal aid programs can raise from private sources.

Each time a legal aid lawyer forces a nursing home to live up to its contract by taking care of elderly residents, our country moves closer to its ideals. And each time Congress betrays this promise of justice for all, the elderly are left to fend for themselves. Or, more accurately, they are called upon to work collaboratively with all of us who see what's right and what's wrong and fight for the principles we hold dear.

And look at Medicare.
The Congressional Budget Office now reports that the trust fund that pays the hospital bills for 37 million elderly and disabled people will go bankrupt sooner and accumulate far deeper deficits over the next few years than we expected. By the end of 2001, it is now thought that, because of rising costs, the trust fund will have a deficit of $28.9 billion.

Both political parties are looking to overhaul Medicare. Republicans would cut projected Medicare spending by $168 billion over 7 years; the White House would reduce planned spending by $124 billion.

Under current law, the average amount Medicare would spend on each beneficiary is to increase by 8.5% a year. Republicans would raise that amount by only 5.6% a year; even the White House would raise it by only 6.5%.

Republicans and the White House both would encourage more elderly to migrate to managed-care plans, though the GOP plan does so more aggressively. Both would wring savings primarily from lower projected payments to doctors and hospitals who provide fee-for-service Medicare. And Republicans would require higher out-of-pocket premiums, about $11 a month more in 2002, for Part B doctor services.

The Social Security system presents similar challenges.
Some might argue that retirement benefits are contractual rights. "We've paid into the system and now is our time to withdraw from it. Under no circumstances are we legally or morally permitted to pirate the trust fund for nonretirement purposes."

Others also view the issue as one of fairness, but come to the opposite conclusion. They contend that simple demographics require that benefits be means-tested or that COLA adjustments be deferred or scaled down.

Still others see the problem as a flashpoint of intergenerational conflict, pitting wage earners against their parents and grandparents.

It is devoutly to be hoped that reason will prevail and the legitimate needs of the elderly will be met, both sensitively and cost effectively. However the political dust settles, older Americans should resist the most insidious form of ageism -- looking at oneself as a victim.

And, if one looks hard enough, the reality is he can find reasons here and there to celebrate opportunities to ensure one's future. And, most important, he finds that he is empowered.

More and more cases of age discrimination are properly being filed. Compensatory judgements are awarded and employers are starting to see the light.

In addition, the Senior Citizens Equity Act was signed into law on March 29. It increases the Social Security earnings limit to $30,000 over seven years and allows the elderly to remain productive bread winners. Good for them and good for us as a society.

And consider the health bills recently passed in both Houses of Congress, and headed for conference reconciliation. Whatever else one wants to say about them -- and there is plenty of room for controversy about their mental health provisions and the growing debate over Medical Savings Accounts -- the bills do, in fact, start to give older Americans a framework to render and afford their own health-care choices.

Long-term care contracts would receive the same favorable tax treatment as medical insurance. Benefits would be tax-free, up to $175 a day. Long-term care would be considered a medical expense. Long-term care insurance premiums could be claimed as itemized medical- expense deductions. Granted, it's only a start. But it's one example of many we see daily in our practice. The elderly can and must successfully plan for themselves with financial incentives for their autonomy.

The legal environment facing today's and tomorrow's elderly is apt to be a tougher one overall. But he who takes steps to ensure his legal and financial future, with the professional help that's here now, is most likely to do best in that environment. I urge you -- take charge of your destiny and you will own it as you deserve to.

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