Advocacy in an Aging Society: The Varied Roles of Attorneys

By Kapp, Marshall B. | Generations, Spring 2004 | Go to article overview

Advocacy in an Aging Society: The Varied Roles of Attorneys


Kapp, Marshall B., Generations


'Thinking like a lawyer.'

Unlike their counterparts in many other spheres of professional education, law professors do not strive primarily to foster in their students a working mastery of an enormous body of arcane factual information. Instead, the main goal of legal education (as every law student is tired of hearing by the end of the first week of school) is to teach students how to "think like a lawyer." An essential aspect of learning to think like a lawyer is growing to comprehend and appreciate the various advocacy roles that may be played by an attorney, with the contours and details of those roles shaped greatly by the particular professional "hat" one is wearing at any specific time.

Some of the different advocacy roles that an attorney in the United States might play in the context of an aging society are illustrated by an analysis of the following adapted version of the case problem used in the 2003 (November 7 and 8) National Health Law Moot Court Competition co-sponsored by the American College of Legal Medicine and the Southern Illinois University Schools of Law and Medicine.1 In this adapted hypothetical, the plaintiff (Sue) is an older woman who needs regular help in performing a number of activities of daily living (ADLs). She is deemed "medically needy" for Medicaid financial eligibility purposes, although she has too much income from a small pension to qualify as "categorically needy." Until this year, Sue had received personal care services in her home that were paid for by her state's Medicaid program under a home and community-based long-term-care waiver obtained from the federal government by the state. These services, coupled with unpaid help from her family, enabled Sue to live alone in her own home. Today, paid personal care services are no longer available to Sue because of a state budget cut eliminating home and communitybased long- term-care services for the medically needy from coverage under the state's Medicaid program. In order to receive necessary personal care services, which she cannot afford to purchase with her own personal funds, she has had to move to a nursing home. Sue has brought a lawsuit challenging the state's administrative action in changing its Medicaid program in this manner. She argues that the state has violated the mandate of Tide II of the Americans With Disabilities Act, 42 U.S.C. § 12132, as implemented through Department of Justice regulations, 28 C.F.R. § 35.130(d), and interpreted by the United States Supreme Court (Olmstead, 1999), that public services to disabled people be provided in the most integrated setting appropriate to the needs of those people.

There are several distinct roles that an attorney might play as an advocate in the sort of scenario just described. The precise dimensions of the attorney's role depend on whether that legal professional is acting as a private practitioner, public interest attorney, or government employee.

ATTORNEY AS PRIVATE PRACTITIONER

Many attorneys working in private law firms arc involved in providing services, including advocacy, for specific older clients. According to the National Academy of Elder Law Attorneys (2003):

Rather than being defined by technical legal distinctions, elder law is defined by the client to be served. In other words, the lawyer who practices elder law may handle a range of issues but has a specific type of clients-seniors. 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.

In the scenario presented, Sue may have purchased legal advocacy by individually contracting with, hiring, and paying an attorney employed in the private practice of law. The attorney, in deciding initially whether to accept Sue as a client, may have been influenced by a belief in the "lightness" of Sue's position. However, the attorney certainly was influenced in making this decision at least in part by financial (namely, the likelihood of making a significant fee) and other personal motives (for example, to obtain publicity that will serve the attorney positively in attracting future clients or assisting with political aspirations) (Olson, 2003). …

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