People are living longer. The aging of America has had and will continue to have a significant impact in Hawaii and across the nation on government, politics, communities, families, and business. The number of persons 65 years of age and over is expected to double by the year 2030 and the fastest growing segment of the population consists of people who are 85 years of age and older. Many experts are concerned that issues relating to aging will reach a critical point as early as the year 2010 when the "baby boom" generation first starts to reach the age of 65. By 2020 one in every four Hawaii residents will be sixty years of age or older. For some aging will bring chronic illness, incapacity and poverty. For many more aging will bring continued health and relative prosperity. For most aging will bring an increased complexity to life

Elder law is the relatively new and evolving field of law that addresses issues facing older persons. Rather than being defined by technical legal distinctions, elder law is defined by the client to be served. In a sense, most attorneys could think of themselves as elder law attorneys, especially when they are preparing estate planning documents, consulting a client on a pension plan or retirement timing or Social Security benefits. There are more and more attorneys who may have a broad or generalized base of experience who specialize in serving a specific type of clients--the aged, senior citizens, seniors, older persons, or whatever appellation is in vogue. Elder law attorneys focus on the legal needs of the elderly and work with a variety of legal tools and techniques to meet the goals and objectives of the older client. Elder law is different from traditional estate planning in that more emphasis is placed on planning for the contingencies of an extended lifetime. This includes planning for the time when finances, health, mental capacity and support structures may change, either rapidly or progressively. The elder law attorney works cooperatively with a host of allies, including medical professionals, social workers, finance and tax consultants and family and professional caregivers.

Using a holistic approach, the elder law practitioner handles general estate planning issues and counsels clients about planning for incapacity, especially with alternative decision making documents. Increasingly the elder law attorney also assists the client in planning for possible long-term care needs, including assistive living and care home and nursing home care. Locating the appropriate type of care, coordinating private and public resources to finance the cost of care, and working to ensure the client's right to quality care are all part of the elder law practice. The elder law attorney must also be able to assist the client in making preparations for death. Often time is of the essence and the elder law attorney must be able to confront emotional as well as legal issues facing a dying client and the surviving family.

The legal issues and needs of the elderly are many and diverse. The National Elder Law Foundation defines elder law as "the legal practice of counseling and representing older persons or their representatives." It goes on to itemize 13 substantive areas of legal services. The first five areas are treated as core areas for their elder law certification program which is approved by the American Bar Association.

Core Topics:

1. Health and Personal Care Planning
2. Pre-mortem Legal Planning
3. Fiduciary Representation
4. Legal Capacity Counseling
5. Public Benefits Advice

Extended Topics:

1. Advice on Insurance Matters
2. Residents' Rights Advocacy
3. Housing Counseling
4. Employment and Retirement Advice
5. Income, Estate, and Gift Tax Advice
6. Counseling about Tort Claims against Nursing Homes
7. Counseling with Regard to Age and/or Disability Discrimination
8. Litigation and Administrative Advocacy in connection with any of the above matters.

Some of the subject matters addressed by elder law attorneys include: Estate Planning and Probate; Wills and Trusts; Housing Options; Landlord-Tenant issues; Age Discrimination; Elder Abuse, Neglect and Exploitation; Financing Long-Term Care; Guardianship and Conservatorship; Alternatives to Guardianship and Conservatorship; Health Care Decisions; Death and Dying; Health Care Quality Issues; Independent Living Options; Pension Rights; Social Security, Medicare, Medicaid and Other Public Benefits; Grandparents Rights; and Alternative Dispute Resolution.

Elder law places special emphasis on issues surrounding long life instead of death. Health, isolation, and financial problems rank as the top worries of older persons. These concerns are rooted in our underlying cultural values of independence and autonomy and involvement and connection with family and community. These are values which permeate nearly every aspect of an elder law practice. . Elder law attorneys attempt to preserve the ability of a person to exercise his or her own self-determination, autonomy and independence for as long as possible. The elder law attorney is rooted in the concept of "successful aging," through which historical negative connotations of aging are replaced with more positive prospects of enhancing a person's ability to function in later life. This new approach to aging reflects the dramatic changes affecting the health, well being and productivity of older people. Older people are now more apt to maintain mental and physical function, to continue to be engaged in life, and to be productive and influential members of the community. The elderly population not only possesses a significant percentage of the wealth of the country but, for the most part, also desires to maintain control over their own fortunes and destinies while continuing to contribute to the community. The elder law attorney can assist in a variety of ways from providing legal strategies for enhancing and preserving wealth, to ensuring appropriate access to health care, to protecting against age discrimination in employment, to setting up blue prints for addressing disability and death.

Even an elder law attorney cannot overcome the certitude of individual mortality. The elder law attorney can, however, assist with planning for the inevitable. Within certain limitations, a competent adult has the right to make decisions about his or her own life and death. This can include decisions whether to prolong life through life-sustaining procedures such as surgery, resuscitation and tube feeding when the person no longer has the ability to communicate. Issues relating to decision-making capacity, including planning for future incapacity and dealing with current incapacity, are significant in the elder law practice.

Elder law integrates legal planning into the larger picture of planning needs. Clients often consult elder law practitioners about such matters as housing needs, long-term-care needs, financial management issues, public benefit eligibility problems, insurance needs, quality of life needs, personal life preferences, and health care decision-making questions. These personal so called "nonlegal" needs are intimately enmeshed with the law.

Elder law strives for an interdisciplinary planning perspective and collaborate with social workers, geriatricians, other health practitioners, geriatric case managers, financial planners, among others. It may be noted that elder law attorneys can face significant ethical conflicts when advising more than one generation, especially if the older client has lost the ability to make legal decisions. Deciding "who is the client" often becomes the major question.

For the elder law attorney ethical issues relating to identifying the client, maintaining confidentiality, exercising independent professional judgment, addressing multiple representation, and handling the questionable competent client are part of the practice of elder law. Issues of "undue influence" may be even more difficult to identify and resolve. The elder law attorney is particularly sensitive to the pressures that may be exerted on the client as well as on the attorney by third parties, including family members. Although the Hawai'i Rules of Professional Conduct form the foundation upon which to address ethical issues, elder law attorneys are often on the forefront of the development of solutions to perplexing ethical dilemmas.

Growing old has its share of challenges and opportunities. The elder law attorney can be a valued partner in addressing the needs and desires of older persons.

Professor Pietsch is the director of the University of Hawaii Elder Law Program (UHELP) co-author of The Elder Law Hawaii Handbook, co-editor of Cultural Issues in End-of-Life Decisoin-Making and teaches Elder Law and Health Law topics at the William S. Richardson School of Law and John A. Burns School of Medicine.

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