Older adults have unique health and social needs. Many are on fixed incomes. Often, older adults depend on government benefits and services that have complex requirements. Navigating this system can require access to competent legal assistance. As such, elder law has become a recognized specialization within the legal profession. Appropriate certification is required.
Debt collection cases increasingly dominate state civil court caseloads. Studies show that consumers are more likely to win their case or reach a mutually agreeable settlement when they have counsel. Yet fewer than 10 percent of consumers have such representation, compared with nearly all plaintiffs. A number of factors make it difficult or impossible for many consumers to defend against debt collection lawsuits filed against them. These include:
- the inability to take time off from work,
- a lack of childcare or transportation,
- failure to receive or inadequate notice of the suit, and
- not recognizing the name of the company suing them. This can occur when debt buyers, rather than an original lender, file suit.
As a result, many of these cases are automatically resolved in favor of the plaintiff. This is known as a default judgment. This process exacts a heavy toll on consumers. It can lead to accrued interest and court fees, garnishment of wages or bank accounts, seizure of personal property, and even incarceration (see also Debt collection).
People with low incomes, including older adults, are eligible to receive free legal services from legal aid lawyers. The Older Americans Act also provides funding for free or reduced-cost legal services. These services are tailored to the specific situations of older adults. Congress established the Legal Services Corporation (LSC) in 1974 to fund legal aid programs. LSC promotes equal access to justice throughout the country. Despite these programs, in 2016, 86 percent of Americans with low incomes who reported civil legal problems received inadequate or no legal help. This is called the justice gap.
Legal aid attorneys work for nonprofits that receive funding from the LSC. These programs, on average, receive just over one-third of their funding from LSC. People with low incomes requested help from Legal Services organizations nearly 2 million times in 2021, according to LSC. However, half of requests are turned down as a result of lack of funding. About 138,00 people age 60 and older received help from legal aid attorneys in 2021.
The Older Americans Act (OAA) now permits states to meet legal service needs through pro bono or reduced-fee services rather than by using appropriated funds. The original statutory floor for funding legal assistance to older adults no longer exists. Therefore, states are encouraged to maintain service levels through sources other than OAA funding. LSC reports that in 2021, Americans age 60 and older with low incomes received inadequate or no professional legal help for 91 percent of their civil legal problems.
In addition, medical-legal partnerships enable clinics and hospitals to address the unhealthy social conditions that cause people to return for treatment again and again. These include illegal eviction. Attorneys help patients and staff navigate the complex system and address the root causes of problems.
Interest on Lawyers' Trust Accounts (IOLTA): This is a way to raise money to provide civil legal services to people with low incomes. IOLTA programs currently operate in every state, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. They represent a major source of unrestricted funding for legal services.
LEGAL SERVICES: Policy
LEGAL SERVICES: Policy
Policymakers should expand access to free or reduced-cost legal services for older adults with low and moderate incomes. This includes expanding access to counsel in civil cases in which basic needs are at stake, such as eviction and debt claims proceedings.
Legal funding in the Older Americans Act should:
- be sufficient to deliver services consistent with the growth of the older population,
- serve those most in need, and
- give priority to securing rights to critical services such as health care, housing, and public benefits.
Policymakers should help expand the use of qualified non-attorney advocates.
They should encourage all attorneys in private practice to serve people with low incomes. This can be through reduced-fee lawyer referrals, pro bono service, and education and training programs.
Policymakers should encourage the implementation of innovative programs to expand access to legal services. These could include medical-legal partnerships. They should promote, through technical assistance, best practices in linking health and legal services within the health care setting.
Policymakers should encourage and support the development of alternative mechanisms for funding legal services programs:
- Legal practice reforms to reduce clients’ costs should be advanced. For example, legal assistants and paralegals can provide simple legal services at reduced fees.
- Law firms should be encouraged to develop active pro bono practices.
- The unrestricted use of Interest on Lawyers Trust Accounts funds for legal services programs.
Legal services attorneys should be able to provide the same services as private practice attorneys. This should include providing representation for class-action lawsuits.
Legal outreach efforts should target vulnerable people. This includes those residing in institutions, those who cannot leave their homes, and those who are otherwise isolated. Particular focus should be trained on people from historically disadvantaged racial and ethnic groups.
Legal Services Corporation
Legal services programs should be fully funded.
Congress and the Legal Services Corporation (LSC) should improve and strengthen LSC services. This includes:
- establishing a national clearinghouse for legal services;
- developing and maintaining state and federal support and training centers;
- ensuring that LSC is not restricted from receiving attorneys’ fees;
- removing restrictions on lobbying for indigent clients’ rights, bringing class-action suits, the types of clients with low incomes 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 people with low incomes and those in board and care homes, who can be served only through specially designed outreach programs