THE FORGOTTEN POPULATION

Growing up you never think about who is taking care of your grandparents. Children don’t wonder if they are getting their bills paid, getting all the benefits they qualify for, or getting their medication on time. You just enjoy the time that you get to spend with them. You get used to ignoring that someday, you will be in their position. Thinking about health decline, disability, or dying is not pleasant. It often is human nature to avoid or delay dealing with unpleasant issues. Which means that many families will find themselves in an emergency situation with their loved ones and realizing they desperately need the advice of a lawyer. It wasn’t until I went to law school and learned about elder law that I realized there is a lot of behind-the-scenes work, either by family and/or a facility, that goes into taking care of our elderly population. An elder law attorney can help a family explore their options for their loved one’s current situation and explain what the road ahead might look like.

During my time in law school, I was privileged to learn as much as I could about elder law. What I quickly came to realize was how often the older generation is forgotten about. They seem to be out-of-sight, out-ofmind to those not in a career that focuses on elders. Many folks do not realize that isolation, whether self-compelled or imposed, leaves a person vulnerable to abuse, exploitation, and loneliness. Not only do nursing home residents all too often rarely have visitors, mainstream culture in the U.S. generally has evolved to keep our seniors and elders separate and alone. Social isolation is a risk for those living at home as well as in memory care or nursing home environments.

I believe most people would prefer to remain completely ignorant to the aging process because it is never easy to see ourselves or our loved ones in decline. If we don’t think about it, then it won’t happen. Before I started practicing in this field, I was guilty of the same. Thinking about death and dying was an incredibly emotional topic for me. I preferred to remain ignorant. As little as five years ago, I knew nothing about assisted living, nursing homes, or home healthcare. I did not know anything about conservatorships or the legal process involved with stepping up to assist individuals who are no longer capable of managing their own lives. Like most people, I had always assumed there was one government program that helped everyone with these kinds of situations. Instead, there is a complex network of private and public agencies who may assist depending on multiple factors, including age and assets, and what limited public resources we do have available simply are overwhelmed with everexpanding demand.

And what happens to those that don’t qualify financially or otherwise for public assistance and have no one in their life who is capable or willing to help them? Frequently, elderly folks, especially those with hoarding tendencies, will get injured somehow and get sent to the hospital. If admitted at the hospital, the doctors have a duty to release them only if it is safe to return to their homes. Hospitals vary in how that standard is interpreted depending on staff involved, management, insurance pressures, and overwhelming healthcare demands. But in many cases, individuals may get stuck in the hospital. The hospital cannot transfer them to a rehab or long-term care facility, and the hospital cannot in good conscience let them leave to go back home. Elders in these types of situations need a personal connection or professional to step in as fiduciary or conservator to develop a safety plan and provide informed consent to be transferred to a facility where they can get the care that they need. It is a privilege to help elders in need, but it also is hard work for relatives, friends, and professionals. In my private practice I work with another local attorney, Sarah Malia, and it seems that more and more the primary focus of our work is in serving as a professional fiduciary. And to say that professional fiduciaries have a negative perception in the public eye is an understatement. We walk delicate lines daily in order to consider our clients’ best interests while limited by their varying available resources. Sadly, it is becoming all too common for someone to no longer be able to take care of themselves and have no one in their life realistically who is willing or able to take on that responsibility. Candid conversations with loved ones of people in these types of situations about what the future might look like are hard. Even after having a few years of experience in this area, I still struggle with how to approach those types of conversations.

One of the greatest privileges I have as a lawyer is being able to tell my clients and their families that they don’t have to go through difficult times alone. I am there for them as a resource and, if needed, to handle some of the more difficult tasks that can be delegated. As a professional fiduciary, I can step in and handle stressful and emotionally wrenching financial or healthcare decisions in order to allow the family to focus on spending time with their loved one. While this is a difficult job for someone who is an empath as I am, if I can take even a small amount of families’ grief or stress off their shoulders, I consider that a successful day.

By: Jason Long Lewis Thomason, P.C.