Because older people have unique health, income, and social needs—and because they often depend on government services with complex requirements—they must have access to competent legal assistance. Elder law has become a recognized specialization within the legal profession, with appropriate certification requirements and professional organizations such as the National Academy of Elder Law Attorneys. Recognizing the need for legal representation tailored to the specific situations of older people, the Older Americans Act (OAA) provides funding for such services. However, the OAA now permits states to meet service needs through pro bono or reduced-fee services rather than using appropriated funds. The original statutory floor for funding legal assistance to older adults no longer exists, so states are encouraged to maintain service levels through sources other than OAA funding. In addition to OAA legal services, low-income older adults are eligible for help from Legal Services Corporation (LSC) grantees. In 2014, 16 percent of those assisted by LSC grantees were age 60 and older.
The “justice gap” between the number of people who need legal services and the resources available to meet their needs is very large. The most recent data from the Census Bureau shows that 63 million people, or one in five Americans, were eligible for LSC-funded services in 2014, though this number is projected to fall slightly next year.
Recent LSC studies show that 50 percent to 80 percent of all eligible people seeking legal aid services are turned away due to a lack of available resources. Congress has provided small increases in LSC’s budget over the last three years, but, the corporation’s current budget of $385 million is still 15.7 percent below what it was in 2010, even though the number of people qualifying for legal assistance over the past decade increased by 25 percent. LSC is seeking $475 million in 2017 funding to enable it to restore funding per eligible person to the level provided prior to the recession of 2007-2009. More robust federal funding for legal services is especially important because revenue from Interest on Lawyers Trust Accounts, traditionally a major source of funding for legal aid, has seen an 80 percent decline over the past nine years, resulting in a 68 percent reduction in grants provided to local programs.
Another emerging strategy for delivering crucial legal services to vulnerable older people is the medical-legal partnership (MLP). MLPs serve our nation’s most vulnerable individuals and families by providing legal remedies to social problems that adversely affect health outcomes. MLPs are community-based, locally administered programs that operate according to a set of nationally established best practices and values.
Legal Services: Policy
Legal Services Corporation (LSC)
Legal services programs should remain strong and fully funded. At a minimum, Congress should restore funding for legal services programs provided through the LSC and the Older Americans Act (OAA) to 1981 levels (adjusted for inflation) without additional restrictions.
Congress and the LSC should improve and strengthen LSC services by:
- increasing funding to LSC programs;
- establishing a national clearinghouse for legal services;
- developing and maintaining state and national support and training centers;
- ensuring that there are no LSC restrictions on receiving attorneys’ fees;
- removing restrictions on lobbying for indigent clients’ rights and bringing class action suits, as well as restrictions on the types of low-income clients who can receive assistance, the types of issues LSC lawyers can address, and the use of private funds for providing legal assistance;
- ensuring a fair, competitive bidding process for grants;
- improving grant oversight of LSC grantees; and
- providing funding targeted to institutionalized poor people and those in board and care homes who can be served only through specially designed outreach programs.
Legal services for older people
Congress should strengthen assurances that legal assistance to older people under the OAA can deliver levels of service consistent with the growth of the older population, that it serves those most in need, and that it gives priority to securing rights to critical services such as quality health care and treatment, housing, and public benefits.
Federal policymakers should help expand the use of qualified non-attorney advocates and should encourage all attorneys in private practice to serve low-income people through reduced-fee lawyer referrals, pro bono service, and education and training programs.
Legal services programs should not be prohibited from bringing class action suits or otherwise be restricted from providing the scope and types of representation available to clients of privately paid attorneys.
Congress and the executive branch should institute policies to encourage the implementation of medical-legal partnerships and to promote, through technical assistance, best practices in linking health and legal services within the health care setting.
- establish legal services programs to assist the low- and moderate-income elderly at a reasonable cost, and require such programs to use trained older people to the extent possible in providing assistance to legal services;
- support legal practice reforms that would reduce clients’ costs, such as authorizing legal assistants and paralegals to provide simple legal services at reduced fees;
- encourage law firms to develop active pro bono practices;
- encourage and support the development of alternative mechanisms for funding legal services programs for low-income people; and
- support the unrestricted use of Interest on Lawyers Trust Accounts funds for legal services programs.
States should support legislation that would require area agencies on aging (AAAs) to allot sufficient Title III-B funding for each legislative priority, including legal services, and ensure that all AAAs comply with the national priorities set out in the OAA.
Outreach to vulnerable groups
Special outreach efforts on legal issues should target vulnerable people in institutions, those who cannot leave their homes, and those who are otherwise isolated, especially racial and ethnic groups that have experienced discrimination.