Elder Law
Elder law is a broad category that encompasses the legal protections specific to older people. "Older" is a relative term because the rights began as early as age 40. The area is governed by a combination of state and federal laws.
In this section, we'll discuss age discrimination, social security, Medicare, and planning for mental incapacity. If you want to know more about the financial considerations, see estate planning.
Age discrimination. The applicable federal law is the Age Discrimination in Employment Act of 1967 (ADEA), which prohibits certain employers from using age as a basis for making hiring, firing, promotion, or compensation decisions. Employers are also prohibited from depriving an individual of employment opportunities or otherwise adversely affecting his or her status. The law applies to any employee who is at least 40 years old. It does not apply to businesses with fewer than 20 employees.
In the typical federal age discrimination case, a complaint is first filed with the Equal Employment Opportunity Commission, who investigates and renders an opinion. It must be filed within 180 days of the discriminatory act. If the EEOC finds that discrimination has taken place, it will intervene on the employee's behalf with the employer. If the EEOC finds that no discrimination has taken place, the employee has 90 days from the date the EEOC opinion is issued to file suit under the ADEA.
Auto renewals. Illinois prohibits insurers from discriminating against older drivers in the renewal of automobile insurance policies.
The applicable state law is the Illinois Human Rights Act, which prohibits discrimination on a number of grounds, one of which is age. It prohibits employers from using age as a basis in hiring, pay, promotion, discipline, or discharge decisions. It applies to employees who at least 40 years of age.
In the typical state age discrimination case, a complaint is first filed with the Illinois Department of Human Rights. It must be filed within 180 days of the discriminatory act. If the IDHR decides not to act, the employee can file suit against the employer under the Illinois Human Rights Act.
Social security. The social security system is a federal safety net for qualifying individuals, usually the elderly and the poor. For purposed of this discussion, we'll address only those parts of the Social Security Act that affect the elderly.
RSI. When we speak of "Social Security," we usually mean the program that provides monthly checks to retirees. The program, called Retirement and Survivors Insurance, is funded by withholdings from current workers' paychecks. The amount a person receives depends on his or her pay while working. Spouses and children can receive limited coverage.
Individuals qualify for the monthly checks beginning at age 65, although they can begin receiving a reduced amount at age 62. Those who opt to receive benefits at age 62 will receive a smaller check at age 65 than they would have if they had waited to 65, so make sure that you talk to a lawyer before deciding to take benefits before age 65.
RRS. A federal program called the Railroad Retirement System is similar to RSI, but it applies specifically to individuals who worked for the railroad at least 10 years before reaching age 65. The rules for qualifying are similar to those for RSI.
SSI. Another federal program called Supplemental Security Income provides assistance to those in financial need who are at least 65, disabled, or blind. It differs from RSI in two important ways. First, the person's work record is not relevant to determining benefits. Second, it applies only those who can prove that they are in financial need of the benefits.
Medicare. Medicare is a federal program that covers certain health care costs for those who are at least 65 years old. Medicare has two parts, Part A and Part B. Part A covers costs for services such as inpatient hospital visits, nursing home care, hospice care, and some psychiatric care. Part B covers some costs not covered under Part A, such as outpatient hospital treatment and physical therapy. The difference between Part A and Part B is that Part A is free to those who qualify, while Part B is an optional program that requires the payment of a monthly premium. When you see ads on television for supplemental Medicare insurance for seniors, it's often for Part B coverage.
Planning for mental incapacity. Medical technology is able to keep people alive longer than ever before. One result has been an increase in the number of people whose bodies outlast their mental incapacity and in the number of people who are kept alive by machines. With people increasingly aware as they age of the possibility that they might reach a point where they are unable to make decisions for themselves, legal documents that set out the person's preferences and determine who will make decisions for them are becoming increasingly popular.
In the absence of such a document, the Illinois Health Care Surrogate Act determines who will make the decisions for Illinois residents. The law appoints a surrogate, usually a family member. Even if the family member is the one that the person would have wanted, the decisions made by the surrogate might not be the ones that the person would have wanted. Thus, it's important to talk to your lawyer about getting a living will or a power of attorney.
Living will. A living will is a document that sets out a person's wishes for medical care should they become terminally ill and incapable of communicating those wishes. Some states do not recognize living wills, but Illinois is not among them. Living wills are valid in Illinois, provided that all the conditions for validity are met, such as that the document is signed and witnessed.
Power of attorney for health care. A power of attorney is a document in which one person transfers decision-making authority to another person. In the medical care context, it means that one person is giving another person the authority to make medical decisions, if the first person cannot make them for himself or herself. The document will usually state the person's treatment preferences, such as that the person does not want his or her life to be prolonged with life-sustaining treatment or that the person does want his or life to be prolonged with life-sustaining treatment.