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 and carries appropriate certification requirements.
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, the supply of attorneys to help low-income people in need of legal services cannot meet the demand. This is called the justice gap. More funding is needed.
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. More than 128,000 people age 60 and older received help from legal aid attorneys in 2015, according to LSC.
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, so states are encouraged to maintain service levels through sources other than OAA funding. 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.
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, such as illegal eviction. Attorneys help patients and staff navigate the complex system and address the root causes of problems.
LEGAL SERVICES: Policy
Policymakers should expand access to free or reduced-cost legal services for older adults with low and moderate incomes. This includes exploring legislative reforms to expand access to counsel in civil cases in which basic needs are at stake, such as eviction 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 includes 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, such as 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. This includes by authorizing legal assistants and paralegals to 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 should be supported.
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 (LSC)
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 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 people with low incomes and those in board and care homes who can be served only through specially designed outreach programs.