• Elder Law
  • Age Discrimination in Employment
    • California Fair Employment and Housing Act
    • Age Discrimination in Employment Act of 1967
    • Relationship Between FEHA and ADEA
  • Health Care Decisions and Protective Arrangements
    • Natural Death Act Declaration
    • Request to Forego Resuscitative Measures
    • Durable Power of Attorney for Health Care
    • Conservatorship
    • Commitment to a State Institution
  • Social Security
  • Resources

Elder law is one of the fastest-growing specialty areas of legal practice today. As recently as ten years ago, almost no one would have described his or her legal practice as an elder law practice, because most lawyers assumed that the concerns of elderly clients were indistinguishable from the interests of any other group. Because few lawyers focused their practices on senior citizens, many seniors felt their unique concerns were ignored by the legal profession.

All this is changing rapidly. As the average age of Americans rises, society is becoming increasingly aware of the unique problems facing elderly people, as well as the professional opportunities available in serving them. Governments have responded with a wide array of state and federal programs designed to guarantee financial and physical well-being for the elderly and to fight age-based discrimination. As senior citizens take a more active role in asserting their rights, an increasing number of the elderly have sought legal representation from lawyers sensitive to their needs.

Elder law is not a well-defined area of legal specialization. Elder law borrows from many other areas such as health law, estate planning and trusts, family law, civil rights, and even consumer protection. Each of these areas is discussed fully in separate chapters of this Guide.

With longer life expectancies and better access to health care, more people are staying active longer and want to remain in the work force past traditional retirement age. Also, many elderly people need the income from employment. Consequently, employers have far more elderly employees, and the number of elderly job applicants is higher than at any other time in history. Unfortunately, incidents of age-based job discrimination also are on the rise.

Seniors in California have two basic means--one state, one federal--with which to counter age discrimination in the workplace: the California Fair Employment and Housing Act and the Federal Age Discrimination in Employment Act of 1967.

California Fair Employment and Housing Act

The California Fair Employment and Housing Act (FEHA) is a comprehensive anti-discrimination law prohibiting labor organizations, employers and employment agencies from discriminating based on age, ancestry, color, creed, disability, marital status, medical condition, national origin, race, religion, or sex. Under the FEHA, it is illegal in most instances for an employer to use a person's age as a basis for decisions regarding hiring, recruitment, pay, promotion, transfer, discharge, discipline or privileges if the person is over the age of 40. For example, an employer cannot replace an older worker with a younger worker simply because the employer wants a young work force. Involuntary retirement before the age of 70 generally is prohibited. The FEHA does permit an employer to offer various insurance plans or other fringe benefits to an employee based on age, as long as the cost to the employer is reasonably equivalent for all employees.

Any person who feels victimized by a violation of FEHA must file a charge with the California Department of Fair Employment and Housing (DFEH) before pursuing a claim in court against the employer. A charge filed under the FEHA must be filed within one year of the discriminatory action. For example, if an older person is fired and believes the motive was age discrimination, the charge must be filed within one year of the employer's notice of termination.

Age Discrimination in Employment Act of 1967

The Federal Age Discrimination in Employment Act of 1967 (ADEA) also prohibits age-based discrimination by labor organizations, employers, and employment agencies. Under the ADEA, employers are prohibited from using age as a basis for making hiring, firing, promotion, or compensation decisions, and from limiting, segregating, or classifying employees in any way that would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect his or her status. ADEA specifically prohibits the use of job advertisements that specify an applicant should be "young" or a "recent graduate," or that use terms such as "retired" or "over 65."

The ADEA has five major exceptions to its coverage. Employers accused of violating the ADEA usually invoke one or more of these exceptions as a defense for their actions:

• Tenured faculty members. Until recently, the ADEA did not prohibit compulsory retirement at age 70 for tenured faculty members at institutions of higher learning. This exception expired on December 31, 1993, so compulsory retirement ages for tenured faculty no longer are permissible.

• Executives and policy makers. A small number of high-level employees with substantial executive authority are not covered by the ADEA and can be subjected to compulsory retirement at age 70. This exception is very narrow and does not allow for compulsory retirement policies for mid-level managers.

• Good cause. An employer is permitted to discharge an employee for "good cause," a catch-all category that includes many different forms of failure to do a job adequately.

• Occupational requirement. In certain narrowly defined situations, an action otherwise impermissible under the ADEA may be legal if the employer's action is "reasonably necessary to the operation of the business" or is based on "reasonable factors other than age." For example, employers may have mandatory retirement policies for firefighters and airplane pilots.

• Bona fide seniority systems and employee benefit plans. Generally, it is permissible for an employer to adopt a bona fide seniority system or employee benefit plan as long as the system or plan is not intended to evade the purposes of the ADEA.

A victim of age-based discrimination must bring an action under the ADEA against his or her employer within two years of a non-willful violation or within three years of a willful violation.

Relationship Between FEHA and ADEA

The relationship between the FEHA and the ADEA is complex, primarily because the ADEA was not intended to supersede or replace existing state regulations regarding age-based discrimination. Both laws cover age discrimination in employment. An aggrieved person must file a charge with the California DFEH for relief under the FEHA; the Department forwards the complaint to the Federal Equal Employment Opportunity Commission (EEOC). There are other rules concerning the relationship between the state and federal systems. Because of the complex interplay between the two laws and because they have different statutes of limitation, a lawyer or representative of the EEOC or DFEH can advise a victim of age discrimination on how, when, and where to proceed against an employer.

With people living longer than ever before and medical technology advancing at a rapid pace, more people are beginning to plan now for their future health care. California law provides for different arrangements in which people may set forth in advance what will happen should they become incapacitated and unable to make health care decisions. These arrangements are designed to protect individuals who, in varying degrees, are unable to care for themselves. Because much of the law in this area is new and is evolving rapidly, it can appear confusing, even contradictory, at times. This is one area of law for which it is especially important to hire good legal counsel who can be relied upon to stay abreast of important new laws and recommend appropriate changes.

Natural Death Act Declaration

California's Natural Death Act allows a person who is over 18 years of age and of sound mind to write a declaration stating what should happen if he or she develops an incurable and irreversible condition. In some other states, this kind of declaration is called a living will. These declarations are controversial and, although many states refuse to recognize them, they are recognized in California. California also recognizes a declaration or living will written in another state in accordance with that state's laws.

Any competent adult can make a declaration. Although many people have declarations drafted by their lawyers at the same time they have their wills drafted, declarations do not need to be drafted by lawyers. California has a suggested form, which people may use if they wish. Many people seek advice from a doctor before drafting a declaration so they can describe their wishes specifically, taking into account the kinds of medical technology currently available to them. The declaration states exactly what the declarant wishes if a terminal condition is diagnosed by two physicians, including the withholding or withdrawing of treatment or artificially administered nutrition and hydration that prolongs the dying process. It is useful for a person who signs a declaration to inform his or her doctor of what the declaration says. The most important point about a declaration of this kind is that the individual decides how much and what kind of health care he or she wants.

Request to Forego Resuscitative Measures

A request to forego resuscitative measures is a particular written document authorized by California statutory law. People who do not want emergency, hospital, or other health care providers to use measures to revive them in cases of medical emergency may register their wishes on this type of written document. This document must be signed by the individual who is the subject of the document, or by a legally recognized surrogate authorized to make health care decisions on behalf of the individual and a physician. If the surrogate and the physician sign the document in lieu of the individual, it must contain a statement that the request not to resuscitate is consistent with the known desires of the individual. A person may obtain and wear a medallion engraved with "do not resuscitate" or "DNR" as well as other identifying information that indicates the person has signed the do-not-resuscitate document.

Durable Power of Attorney for Health Care

Another type of document that governs health care decisions is a durable power of attorney for health care. A durable power of attorney for health care is a document that one person (the principal) signs in order to give another person (the attorney-in-fact or agent) authority to make health care decisions if the principal becomes incapacitated. A person's health condition does not have to be terminal for a durable power of attorney for health care to be effective.

The durable power of attorney for health care sets out exactly what the agent will do if the principal becomes unable to make health care decisions. Generally, it gives the attorney-in-fact the right to receive medical information about the principal; to receive or release medical records; and to consent to medical treatment, including abortion, commitment to a mental health facility, and sterilization. It may state that the agent has complete authority to make health care decisions based on what the agent believes the principal would want, or it may state specifically what the health care decisions should be. For example, the document may contain a general declaration that the attorney-in-fact may consent, refuse to consent, or withdraw consent to the principal's care or treatment.

Any person may be designated an attorney-in-fact for health care decisions concerning another person, except for treating health care providers and certain other health care workers. California has a suggested form for the durable power of attorney for health care, or a principal may write his or her own durable power of attorney for health care as long as it contains certain information required by law. The durable power of attorney for health care must name the attorney-in-fact, describe the power the agent will have, and be signed by the principal and dated while the principal still is able to make his or her own decisions. The form must be signed by witnesses, only one of whom may be related to the principal. Treating health care providers are not authorized to witness these documents.

A valid durable power of attorney for health care made in another state is recognized in California.

Conservatorship

California conservatorship law provides that a court may appoint a conservator--similar to a guardian--should the person ever become mentally or physically incapable of making personal or financial decisions. The conservator may be appointed as a conservator of the person or a conservator of the person's estate, or both. A limited conservator may be appointed to manage the person or the estate of a developmentally disabled adult. The purpose of a conservatorship is to protect and provide for adults in need of such assistance, in accordance with the best interests of those in need.

To create a conservatorship, a petition may be submitted to the court by any person, including any of the following:

• The proposed conservator

• The proposed conservatee (the person in need of a conservator)

• The spouse or a relative or friend of the proposed conservatee, or another interested person

• An interested state or local agency, employee of the agency, or public officer

Usually a petition is made by a family member or close friend concerned about the person's competence to manage property or make personal decisions. The petition must include the name, address, and other information about the proposed conservator and conservatee, relatives, and the petitioner, and the reasons why a conservatorship is necessary. Also required is information about:

• The proposed conservatee's inability to provide for clothing, food, health, and shelter

• Whether the proposed conservator will be able to live in the conservatee's residence

• The other alternatives considered and rejected by the petitioner

• Health and social services the proposed conservatee received during the year preceding the petition

• The proposed conservatee's inability to manage his or her finances

The petitioner has the burden of showing good cause why the conservator should be appointed by the court.

For many families, conservatorship causes a drastic change in the family relationship, especially when not all family members agree that a petition for conservatorship should be filed. Some of this potential stress can be avoided if aging people create documents such as a durable power of attorney for health care while they are legally competent. Another option is to create a living trust, which is discussed in the Estate Planning, Wills & Trusts Chapter of this Guide.

Commitment to a State Institution

Commitment to a mental hospital or institution sometimes becomes an issue for elderly people. Competent adults in California may request voluntary admission to a mental hospital or institution by way of written application. If the adult is not competent to make the application, his or her conservator may apply. (A minor may be admitted voluntarily by application of his or her parent, guardian, or conservator.)

The director of the facility will deem the individual suitable to be admitted upon receipt of the application. Once admitted, the person's records are copied to the California Department of Mental Health. Usually, the state pays for the care of a person who is committed to a state-run mental health facility, and insurance or Medi-Cal (discussed in the Social Security Law Chapter) covers the cost of care in a private institution. Any person admitted voluntarily to a mental hospital or institution must be discharged if the person or his or her conservator indicates a desire to leave.

The Social Security Act governs several public benefit programs of interest to elderly people. Most of these programs are financed by taxes levied on workers. The largest Social Security programs provide benefits for retired people and for people with disabilities. The Social Security programs are extremely complex. A description of the basic programs can be found in the Social Security Law Chapter.

Additional information on elder law is available from the following resources and offices:

Pamela Gaume, Long-term Care Insurance: A Consumer Guide for Californians (California Department of Insurance, San Francisco, CA 1990).

Commission on Legal Problems of the Elderly, American Bar Association, 740 15th Street N.W. Washington, DC 20005, (202) 662-8690.

California Department of Mental Health, 1600 Ninth Street #151, Sacramento, CA 95814, (916) 654-2309.

United States Equal Employment Opportunity Commission, Los Angeles District Office, 3660 Wilshire Boulevard Fifth Floor, Los Angeles, CA 90010, (213) 251-7278; San Francisco District Office, 901 Market Street #500, San Francisco, CA 94103, (415) 356-5100.

The California Department of Aging, 1600 K Street, Sacramento, CA 95814, (916) 322-3887, publishes a free pamphlet describing the Department, entitled California Department of Aging. It also runs the Long-term Care Ombudsman crisis line, which can be reached at (800) 231-4024.

For information or to file a charge of discrimination, contact the California Department of Fair Employment and Housing, 322 First Street West #2126, Los Angeles, CA 90012-3112, (800) 884-1684; 2000 O Street #120, Sacramento, CA 95814, (916) 445-9918, (916) 324-1678 (TDD); 30 Van Ness Avenue #3000, San Francisco, CA 94102, (415) 557-2005).

For information or to order The California Department of Health Services, a free pamphlet, contact the California Department of Health Services, 714 P Street #1540, Sacramento, CA 95814, (916) 445-0174; (916) 657-2861 (TDD).

For information on adult/elder services, including protective services, contact the California Department of Social Services, Adult Services Division, 744 P Street Mail Stop 17-01, Sacramento, CA 95814, (916) 657-2652.