March 3, 2021 – Older adults are an increasingly large and active group. We are just living longer, better lives. Still, we inevitably decline.
Our physical decline makes health care laws and income security (often SSI) incredibly important, while our mental decline, which is not actually inevitable for most of us, can leave us susceptible to financial and emotional abuse.
Elder law is broader than these decline-related subjects, though, and includes laws that help preserve autonomy and independence for as long as possible – including financial and health care decision support laws and those that control inheritance, with or without a will.
Here is a list of resources to help you in your elder law practice.
Best Bets: Go-to Sources
Advising Older Clients and Their Families (AOC) is a two-volume treatise published by State Bar of Wisconsin PINNACLE®. Now in its 4th edition (2020), AOC is among the most useful starting points for researching elder law.
Ed Wallace, Georgetown 2017, practiced elder law and estate planning in Milwaukee, and now works at UW-Milwaukee libraries. He is a member of the Law Librarians Association of Wisconsin (LLAW), whose members regularly contribute to InsideTrack.
The volumes are available both in print and in an electronic version from the State Bar’s Books UnBound® collection. You can also access copies at Marquette Law Library, the Wisconsin State Law Library (in print and on public access stations), and UW Law Library (on reserve, ask for it at the circulation desk).
Other State Bar InsideTrack articles and research guides include Legal Research 101: Estate Planning (Sept. 2, 2020) and other elder law related publications.
Check out these professional and advocacy groups to keep current:
These are good email lists to join:
For some related diversion:
State Resources Online
Wisconsin State Law Library
State Bar of Wisconsin Resources
National Resources Online
The National Institute of Health's National Institute on Aging resources include:
The HHS’s Administration for Community Living (ACL) website has links to community living websites devoted to supporting elder justice. They include:
The Consumer Financial Protections Bureau has a searchable and archived index, including on topics relevant to older adults. For example, you can find resources available for older adults’ financial caregivers, as well (including agents, guardians, trustees, and government fiduciaries).
Journals and Periodicals
Benefits and Social Welfare Law Review from Marquette Law School (formerly the Elder's Advisor.)
NAELA News+Journal: the National Academy of Elder Law Attorneys' updates on significant topics and developments.
The Elder Law Journal (Univ. of Illinois): Student-published analysis and practice guidance, available from HeinOnline.
The Elder Law Review (Univ. of Western Sydney); a more international perspective, found at HeinOnline.
Additional Online Resources
The ABA's Commission on Law and Aging. Some of the most useful resources include: a capacity assessment (with a PDF version), the PRACTICAL tool for supported decision-making, resources on elder abuse and guardianship and supported decision-making (with extremely detailed and useful checklists like this one on elder investment fraud and financial exploitation).
The National Academies of Sciences’ report on cognitive aging.
National Resource Center for Supported Decision-Making has a full library of supported decision-making resources.
The Kaiser Family Foundation has resources for older adults (news releases, fact sheets, and issue briefs) that are indexed (tagged) under "seniors." A representative example is this report on seniors in poverty.
The Hastings Center Bioethics Briefings: their publications and resources go beyond the scope of elder law, but they introduce some relevant ethical questions objectively. They have a very interesting report about brain science and the stages of mental decline.
Statutory Context: Federal Rules and Regulations
The Social Security Act has critical health care and retirement income legislation:
SSI: Supplemental Security Income (42 U.S.C. §§1381-1383f, subchapter XVI, chapter 7. Regulations are contained in chapter III, Title 20, C.F.R.).
Medicare: Health Insurance for the Aged and Disabled (42 U.S.C. §§1395-1395lll, subchapter XVIII, chapter 7. Regulations are contained in chapter IV, Title 42, and in subtitle A, Title 45, C.F.R.).
Medicaid: Grants to States for Medical Assistance Programs (42 U.S.C. §§1396–1396v, subchapter XIX, chapter 7. Regulations are contained in chapter IV, Title 42, and subtitle A, Title 45, C.F.R.).
The Older Americans Act funds community social services for older adults:
- 42 U.S.C. chapter 35 is administered by the Administration for Community Living (U.S.C. §§3001-3058ff, Title 42. Regulations are contained in subchapter C, chapter XIII, subtitle B, Title 45, C.F.R.)
Older adults are protected from age discrimination by the Age Discrimination in Employment Act:
- 29 U.S.C. §§ 621-634 (administered by the Equal Employment Opportunity Commission under Chapter XIV of Subtitle B, Title 29, C.F.R.)
Some select areas of federal taxation that relates to older adults include:
pension and retirement plan payments: I.R.C. 401-420;
residence sales and other home equity provisions:
I.R.C. 121(b)(1) et seq.: exemption of gain from sale of primary residence;
I.R.C. 1041(a)(1): basis step-up at death;
I.R.C. 213(d)(1)(C): nursing home costs are deductible, under certain circumstances; and
Social Security benefits: I.R.C. § 86 sets up a two-tier tax on benefits.
Nursing and other residential care facilities involve some of the issues already covered (especially Medicare and Medicaid), as well as:
Statutory Context: Wisconsin Rules and Regulations
- Several statutes cover guardianships for older adults, mostly in Wis. Stat. chapter 54.
Health Care and Financial Decision-making (forms are available)
- Wisconsin's unique statutory marital property regime is primarily Wis. Stat. chapter 766, while many other statutes also cover property interests.
This DHS A to Z document describes Wisconsin's programs.
Several programs are available in Wisconsin for seniors, including Family Care (long-term care support) and SeniorCare (prescription drug assistance)