Legal Resources for Seniors and Persons with Special Needs
When it comes to identifying vulnerable populations in our community, some of the more overlooked groups are the elderly and disabled. Many people consider the poor or the young to be venerable, but those who are elderly and those who are struggling with physical or cognitive disabilities are also quite vulnerable. Yet the laws surrounding the elderly and disabled in our population are often poorly understood. This is unfortunate, because these two groups of people make up a significant part of our population, and most likely someone you are close to could fall into one of these categories.
By the year 2020, the U.S. Census Bureau estimates that the population of those over the age of 65 will reach 50 million people. By 2030 one out of every five Americans will be in this elderly population. These individuals have specific legal rights that need to be protected, and also need to make important legal considerations to ensure their rights and desires are protected as they near the end of life.
The disabled among us also need legal protections. According to research performed by the Disability Research Institute, 53 million Americans, which is about a fifth of the population, deals with a disability of some sort. Of those, one out of every 10 is dealing with a severe disability. Most Americans will face the realities of disability at some point in their lifetime, whether due to an accident or due to old age. Unfortunately, the legal concerns of this population group are often left unheard.
Both the disabled and the elderly population have specific rights that are protected by law. From the right to fair housing to the right to be protected from fraud and abuse, these are clearly outlined in the law. Unfortunately those rights often aren’t met in day-to-day life as they should be. Also, these two groups of the population have additional legal concerns they must address, such as who will make financial or healthcare decisions on the behalf of someone who cannot do so independently.
Whether you are in one of these more vulnerable populations, or you are a caretaker who is caring for a disabled or elderly loved one, it’s critical to understand these legal concerns and the laws put in place to protect you. This guide is designed to provide information about what legal concerns elderly and disabled individuals might face, and how to address them appropriately if these rights are violated.
Legal Resources for Seniors
As we age, our attention turns to getting our legal affairs in order. It’s critical for seniors to have their end-of-life and estate planning documents in place, as well as those documents that can assist them with ensuring their desires for their senior years are protected. Here are some critical legal considerations that today’s seniors must make in order to protect their rights and desires.
First, seniors need to ensure their desires for health care and end-of-life concerns are met. Two of the most important documents to help in this regard are:
- Advance Medical Directive – An advance medical directive, which may be called medical powers of attorney or a living will, dictates the individual who will make medical decisions on behalf of the senior when the senior is unable to do so.
- Do Not Resuscitate Orders – These orders will indicate the individual’s desire for resuscitation, and on what terms the medical team should resuscitate, in the event of a serious medical event.
Next, seniors should take into consideration the need for estate planning. Some helpful documents include:
- A Will – A will is the bare minimum you need to ensure you restate is divided according to your desires.
- A Trust – The right type of trust can help keep your will out of the probate courts, which would leave beneficiaries scrambling.
- Durable Powers of Attorney – Powers of attorney documents allow a senior to designate a person to make legal and financial decisions on their behalf. This is different than a medical power of attorney. While the individual may be the same, you need both documents.
- Real Estate Titling – If a senior plans to gift real estate to a beneficiary, it may be beneficial to change the title or make the sale before the end of life to avoid problems with probate court. This is sometimes needed in order to qualify for Medicaid benefits in the future.
Sometimes seniors need someone to take over for their affairs because they have become incapacitated. A durable power of attorney can do this, but in the event that the senior is not willing or able to sign a power of attorney document, but is clearly unable to think clearly or care for daily life tasks, the loved ones of that senior may have to take action. Here’s what can help.
- Guardianship – Guardianship, or conservatorship, is a legal designation that gives someone the ability to make decisions on behalf of the person who is incapacitated in some way, but who is not able or willing to sign a power of attorney document. To get guardianship, you must be able to prove to the courts that the person is incompetent, at which time the courts will give you the right of guardianship. Typically your loved one’s doctor can help with this process, and an attorney can also assist.
- Court-Appointed Guardian – In rare instances the courts will appoint a guardian for a senior, rather than having someone come to the courts to petition for guardianship. The role is still the same.
Seniors may also need legal help with public benefits, which may include access to:
- Supplemental Security Income
- Veteran’s benefits
- Social Security
- Food stamps
Finally, seniors and their caretakers must be vigilant to watch for signs of abuse and get legal help if abuse is occurring. Here are some signs that may indicate your elderly loved one is the victim of abuse:
- Unexplained or too-frequent bruises, broken bones, burns, abrasions or pressure sores. Also, injuries that have strange explanations.
- Signs of neglect, such as unusual weight loss, a messy home, lack of medication or medical aids, bedsores, or soiled clothing.
- Withdrawal, apathy, unusual behavior, strained relationship with caregiver, forced isolation, or other signs of emotional or verbal abuse.
- Signs of sexual abuse such as bleeding from the genitalia, bruising, bruising around the breasts, or venereal disease.
- Bills not getting paid, money that’s not accounted for, or increased credit card use, which are signs of financial exploitation.
If you’re noticing these signs and symptoms of abuse or exploitation, talk to a lawyer right away to ensure your loved one is getting proper legal guidance.
For additional help, visit:
- Comfort Keepers: Legal Considerations for Seniors
- National Association of Realtors: Legal Considerations with Senior Homes
- Retire At Home: Legal Considerations for Seniors
- PBS.org: Caring For Your Parents – Finding Legal Resources
- Pennsylvania BAR Association: A Guide to Legal Issues for Pennsylvania Senior Citizens
- American Society on Aging: Recognizing the Behavioral Signs of Elder Abuse
Legal Considerations and Resources for Those with Developmental Disabilities
If you are in the role of caring for someone with developmental delays or cognitive disabilities, or if you have one of these diagnoses yourself, finding legal help is not always easy. Before you can seek legal services, you must first understand some of the concerns facing people in these demographics. Families affected by developmental disabilities need to be prepared for problems like:
- Profiling and Discrimination – Everyone, from educators and employers to law enforcement, can be guilty of this problem. It’s common for individuals with autism, for instance, to be incarcerated for resisting arrest because their special needs are not recognized at the time of the arrest. The autistic behaviors are viewed as resisting arrest, when better acceptance of the person’s disability would put the behavior in a different light.
- Bullying – Children and adults, especially those who are higher functioning but still struggling with delays and disabilities, may be bullied by their peers. Sometimes an attorney needs to get involved to put a stop to the bullying.
- Employer Discrimination. While sometimes difficult to prove, employer discrimination against those with cognitive disabilities does exist. Often these applicants will be overlooked when a job opening is advertised, even though minimal accommodations would allow them to be productive employees.
- Improper Education – Disabled children are given the right to an individualized education that’s as equal as possible to that of their peers, but sometimes school districts aren’t forthcoming with this. Parents may have to get an attorney on board to help insist on the proper education for their special needs children.
- Getting Proper Services. Finally, disabled individuals and parents of disabled children sometimes struggle to get the services they need that are provided through the government, such as speech or occupational therapy.
- Getting Disability Benefits. SSI and other disability benefits can help those with developmental disabilities have the income they need to pay for daily living needs, as well as insurance, but sometimes proving developmental or cognitive disabilities and qualifying for these programs is difficult.
- Getting Guardianship. As an individual with developmental disabilities nears adulthood, it may be necessary for parents, siblings, or other loved ones to petition the courts for guardianship status, particularly if the disability makes it impossible for the individual to live independently.
If you or your loved one is facing one of these problems, working with an attorney is going to be critical. Here are some steps to take.
- Document all factors that surround the incident. Whether bullying or discrimination, the more documentation you have, the better.
- Be thorough and complete in your application for services or benefits.
- Seek an official diagnosis to help with applying for benefits and services.
- Be proactive about education, and speak with teachers and administration at the first sign of a problem.
- Talk to an attorney if you suspect you are a victim of discrimination or bullying.
- Talk to an attorney if your application for SSI and other disability benefits was denied. You may have the ability to appeal the decision.
In addition, you need to be aware of the specific laws that apply to individuals with developmental disabilities. These include:
- The Americans with Disabilities Act (ADA) – This law protects the civil rights of those wit disabilities, preventing discrimination in government services, public accommodations and employment venues.
- The Developmental Disabilities and Bill of Rights Act (DD Act) – This law encourages states to provide programs to enhance the lives and independence of people with developmental disabilities.
- The Civil Rights of Institutionalized Persons Act – Sometimes people with disabilities have to be institutionalized for their own safety and well-being, and this law gives the Department of Justice the right to investigate abuse and neglect issues they may face.
- The Individuals with Disabilities Education Act (IDEA) – This act protects the right to public school education and meaningful education experiences to children with disabilities.
Finally, make sure you are watching for signs of abuse, especially for a disabled loved one who is in a care home or similar institution. These can be difficult to spot in developmentally disabled individuals, because some signs can be easily attributed to the disability, when in fact they are due to abuse. Signs of abuse may include:
- Unexplained injuries
- Sudden emotional withdrawal
- Sudden changes in behavior not connected to the disability
- Sudden loss of weight
- Change in financial status
For more information about legal issues surrounding cognitive disabilities, visit:
- U.S. National Library of Medicine: Approach to Caring for Developmentally Disabled Adults in the Community – Medical, Ethical and Legal Considerations
- The Arc: Public Policy and Legal Advocacy
- The Arc of Washington State: Federal Legal/Civil Rights Issues Affecting People with Developmental Disabilities
- Arizona Department of Economic Security Division of Developmental Disabilities: Navigating the System
- National Conference of State Legislatures: Autism Policy Issues Overview
Legal Considerations for Those with Physical Disabilities and Mobility Challenges
Mobility challenges can make it difficult to navigate the world on a daily basis. The good news for those with mobility challenges is that he ADA made provision that make it a requirement for buildings and businesses to accommodate those in wheelchairs or with other mobility assistance devices. However, there still may be legal issues that those who are mobility challenged will face.
Similarly, those with hearing and vision loss may struggle to find accessibility in the community. People with vision and hearing loss may face discrimination in the workplace, as employers assume that they cannot do a job simply because they are disabled. Here are some considerations that those with physical disabilities, including mobility issues, hearing loss, and vision loss, may need to address.
- The Right to Fair Housing – The Fair Housing Act of 1968, which has been amended since its original publication, protects those with disabilities in the sale and rental of housing. The act requires landlords, specifically, to make reasonable exceptions to policies in order to provide equal housing opportunities to people with disabilities. For example, an apartment complex with a “no pets” policy may need to bend the rule to allow a service dog for a blind tenant. A landlord may need to allow a tenant to make modifications to the living space to make it more accessible for their disability.
- The Right to Employment – The Rehabilitation Act requires federal agencies and programs aimed at employment to make changes so they are accessible to people with disabilities. Under this act, Individualized Plans for Employment must be drafted for individuals in employment programs, even if they are disabled.
- The Right to Travel by Air – The Air Carrier Access Act requires air transportation companies to make accommodations to people with physical disabilities or impairments, provided the carrier regularly serves the general public. This may include boarding assistance, priority seating, and accessible airport facilities. Those who fear their rights under this particular act have been violated can file a complaint with the U.S. Department of Transportation or a lawsuit in Federal court.
- The Right to Voting Access – Under the Voting Accessibility for the Elderly and Handicapped Act, handicapped individuals are given the right to physically accessible facilities for voting, including information provided by TTY or TDD for those who are vision impaired.
- Rights to Employment – Under the ADA Title I, employers who have 15 or more employees are required to provide individuals with disabilities an equal right to be employed. That equal right must be the same as others who are employed or who apply for employment. For instance, recruiters for a company cannot discriminate against an applicant because he is in a wheelchair. Also, hiring professionals cannot make inquiries about a disability before making a job offer, and employers must make accommodations to any known physical or mental limitations of qualified individuals. The U.S. Equal Employment Opportunity Commission hears complaints about this portion of the ADA.
- The Right to Public Transportation – ADA Title II protects a disabled individual’s right to use public transportation. City buses and public rail transit must accommodate the accessibility needs of those who are in wheelchairs or suffering from hearing or vision loss. In areas where it’s impossible for disabled individuals to use public transportation independently, para-transit should be provided.
- The Right to Education – Children who have disabilities, including visual or auditory disabilities, have the right to a free and appropriate education. The IDEA act protects this right. From age three to age 21, your disabled children should be given an accessible education that is on par with their peers. Physical disabilities should not prevent a child from learning alongside their peer group.
- The Right to Healthcare Communication – Deaf and blind individuals may need accommodations to communicate or read in settings like hospitals and doctors offices, and the ADA allows for this. For instance, a deaf individual who goes to the doctor has the right to request an interpreter who uses sign language, or a blind individual can request to have all paperwork read aloud.
If you feel that your rights under one of these laws have been violated, you need to do the following:
- File a complaint with the governing body that oversees the program, if applicable. For example, the Aviation Consumer Protection Division of the U.S. Department of Transportation hears complaints about the Air Carrier Access Act.
- Discuss your concerns with an attorney who is knowledgeable about disability law.
- Keep good, thorough records about the supposed discrimination to ensure, should you go to court, that you have the necessary proofs.
- Remember that proving discrimination, especially in employment, isn’t easy. An employer who has 10 applicants for any one position and chooses to overlook the disabled individual can cite any number of reasons why the other candidate was chosen. Working with an attorney if you suspect discrimination will help you determine if you have a leg to stand on.
In addition to these specific rights, you need to be aware of the following:
- If your disability prevents you from working, you have the right to apply for Social Security disability and Supplemental Security Income (SSI) to help pay for your expenses. Social Security disability starts after six full months of disability, but SSI can begin within a month of disability. In order to qualify, you must pass the Disability Evaluation Under Social Security.
- If you are denied SSI and disability, but believe you should qualify, a lawyer may be able to help you fight the denial.
- Prejudice and discrimination may also be the grounds for a lawsuit if they are disability related.
- Disabled individuals can be the victims of fraud and abuse, and again a lawyer can help in these instances by holding accountable those who are responsible for the abuse or fraud.
For more information about protecting the legal rights of those who have physical disabilities and mobility challenges, visit:
- National Institutes of Health: The Rights of Blind People
- American Foundation for the Blind: Civil Rights Policy
- American Foundation for the Blind: Disability Rights Resources for People with Vision Loss
- National Association of the Deaf: Civil Rights Laws
- Huffington Post: Deaf Rights – What You Need to Know
- Chicago Hearing Society: Rights of Deaf and Hard of Hearing People to Accessible Communication
- Center for an Accessible Society: The Americans with Disabilities Act
- Federal Transit Administration: Questions and Answers Concerning Wheelchairs and Bus and Rail Service
- Center for Persons with Disabilities: Disability Awareness Information
- Social Security: Benefits for People with Disabilities
No Matter the Disability, Understand Your Rights!
No matter the type of disability, including age-related disabilities, it’s critical to understand your legal rights. Unfortunately, disabled individuals are often the victims of discrimination and fraud. Whether you are an individual with a disability or are caring for an elderly or disabled loved one, know where you can turn for legal services, so you can take every precaution to protect your rights and the rights of those you love.
Original Article found at JustGreatLawyers.com