Power = Legal assistance
“The most important
thing a lawyer can do is become an advocate
of powerless citizens. . . Lawyers should represent systems of justice.”
-- Ralph Nader,
public
interest lawyer (attorney)
This month’s Legal
Assistance to the Elderly (LAE) fundraiser was attended mostly by lawyers. In California ,
the July bar exam results are released just before Thanksgiving; the pass rate
was 69% for first-time takers from ABA-accredited law schools. But how many of these new admittees will
practice elder law in public interest settings or empower older adults to
exercise their legal rights to income, employment, health care, housing, etc.?
Ageism takes away power from older adults, who may protest that they’re not heard so
they seek “magical attorney letters” on law office letterhead to get attention,
or sue oppressors to regain control over their lives – whether it’s potential
loss of respect (elder abuse), home (evictions, habitability), standard of living (public benefits), independence (service dogs as reasonable accommodation), etc. As Gray
Panthers founder Maggie Kuhn noted, people go through more psychological
changes in the last 20 years of their life than they do in the first 60: “Older persons experience the traumas of
retirement; death of friends, spouse, children; lack of income, health,
mobility.” (Maggie Kuhn on Aging, 1977, p. 98)
San Francisco Main
Library’s exhibit, HEAL! Veterans and Their Service Dogs, is a photographic series about veterans with post-war
disabilities and their service dogs for hearing, psychiatric service, mobility
and medical alert provided through Operation Freedom Paws.
According
to David Solie, physician assistant and author of How to Say It to Seniors: Closing the Communication Gap with Our Elders
(2004),
the “secret mission” of older adults is to maintain
control over their lives in face of almost daily losses (physical strength,
health, peer group, consultative authority, identity, physical space, financial
independence) and simultaneously to discover
their legacy. In trying to resolve this conflict (need for control
v. reflection to discover legacy), elderly will wander from subject to subject,
repeat stories we’ve heard, postpone decisions, go off on tangents, or describe
something in endless detail.
Solie
argues that older adults’ communication style is not a problem, but an attempt at problem-solving based on
developmental psychology to fulfill needs like self-esteem (associated with autonomy that is threatened by loss of
control) and legacy (a larger issue for consideration if one is not consumed by
focus on control). In the elderly,
attempts to resolve this developmental crisis propel them backward (v. forward) to reflect on what their lives have
meant. If this crisis is not resolved in
favor of generativity (creating legacy), then they experience stagnation.
Further, Solie theorizes
that what appears to be diminished
capacity in the majority of older adults is “slowing down” due to awareness
of their different developmental mission, which results in refocusing life’s
priorities from the goal-oriented productivity of middle-age years to reflective
activity. He explains that an aging
brain’s physiology changes to promote an older person’s need for reflection and
insight at the end of life: the prefrontal cortex (platform for working memory
capacity, processing information) takes longer to process multiple points of
information, so the external world may begin to fade, distraction sets in and
focus is compromised – but this lag time allows for wisdom to surface.
LAE Director Howard
Levy greets arriving guests at fundraiser.
Donations to LAE always welcome at http://laesf.org/#/donate/
“You teach yourselves the law, but I train your
minds. You come in here with a skull
full of mush; and if you survive, you leave thinking like a lawyer.”
-- The Paper Chase’s Law Professor Charles W.
Kingsfield, Jr.
While working with the
elderly seeking legal assistance in eviction cases based on nuisance claims, I
considered Solie’s ideas and wondered if any allegations of hoarding
and cluttering might be related to an older tenant’s need for control and
legacy: in the face of overwhelming losses, this creates a need to
“hang on tight” to a lifetime of collectibles (repository of memories), which
may represent one's legacy? Thus, we argue that nuisance was due to client’s mental health impairment
and request reasonable accommodation for additional time to clear out stuff to maintain tenancy? Yet, some clients will not acquiesce to a
defense that they find stigmatizing like a mental health disability, and might decide to pay for storage space rather than
their tenancy.
LAE’s staff attorney/lawyer
Tom Drohan plays stand-up bass with Shut-Ins, who play “Hulabilly,” a lively
amalgam of hillbilly, hula, folk and country music. Their CDs include Sing Songs of Pain and Joy and A Very Shut-Ins Xmas. Tom also plays “Roadhouse Swing” with ChazzCats,
and keeps his busy day job as housing lawyer.
“Lawyers know how to
apply law to power.” – Ralph Nader
In my visits to the
elderly living in SROs, what appears to be hoarding and cluttering is really a
lack of adequate physical space. Though
hoarding behavior seems to be more problematic (deferred maintenance, falls,
fire, pest infestation, etc.) as people age,
hoarding documents is empowering evidence!
For example, in determining a tenant’s lawful rent in San Francisco , the Administrative Law Judge
will evaluate each rent increase going back to the commencement of the tenancy
or April 1, 1981, whichever is later. This hoarding advantage made a huge
difference in the case of an elderly couple who received a three-day notice to
pay (back rent) or quit: after reviewing
their “hoarded” documents from 20 years of rent increase notices, rent receipts
and canceled checks, we identified a pattern of improper rent increases; after computing the lawful rent, it was determined that this
couple actually overpaid rent to their landlord!
Shut-Ins' drummer is LAE’s
tech guy. As landlords seek to take
advantage of rising real estate values fueled by the tech boom, low- and
moderate-income tenants including nonprofits risk losing their tenancies. Due to new building ownership,
LAE and other nonprofit tenants (including Eviction Defense Collaborative) are being
displaced from their office space within Twitter tax break zone (Market and 6th
Streets) next year while tolerating remodeling work this past year.
Legal assistance empowers the elderly by listening and working with them to honor their needs. In a case involving an elderly client who
faced eviction because he did not trust his building's management to perform bed bug control treatment in his rental unit, I was aghast hearing an Adult Protective Services worker
suggest a mental assessment for possible conservatorship or 5150 (involuntary
psychiatric hold). Fortunately, empathetic
LAE staff intervened to speak on behalf of client (too frail to be present at
hearing) who felt manhandled by property management team but could be persuaded
to agree to pest control when approached in a more respectful manner and with his input in making arrangements.
“It’s hard to avoid the ‘doing for.’ Some people are hungry
for attention and are quite ready to be cared for, well on the way to wrinkled
babyhood.”
–Maggie Kuhn
On Aging (1977, p. 23)
According to Robert
Butler’s Why Survive? Being Old in
America (1975), there was no public or private legal program for older people until 1968 when a
grant from the Office of Economic Opportunity funded Legal Research and Services for the Elderly under
sponsorship of the National Council of Senior Citizens. In 1972, National Senior Citizens Law Center
(NSCLC) was formed to be a national resource to protect the rights of low-income older
adults in America .
In California , there are more legal aid agencies serving older adults that are doing “for”:
·
Alameda County ’s Legal Assistance for Seniors was founded in
1976 by three women graduates of the Displaced Homemakers
Paralegal Program at Mills College (which had Maggie Kuhn as member of the advisory board).
In contrast, San Francisco
County ’s Legal Assistance
to the Elderly began serving elders in 1977 as a pro bono program, then hired paid
staff shortly after becoming a non-profit corporation in 1979. In 2003, LAE expanded to serve younger adults
with disabilities (though this is not reflected in organization’s name).
Grammar lesson: “For” is used to indicate on behalf (e.g., do for seniors), while “to” is used to indicate directed action (e.g., do to seniors).
“Words are the essential tools of the law. In the study of law, language has great importance; cases turn on the meaning that judges ascribe to words, and lawyers must use the right words to effectuate the wishes of their clients. . . .”
At Books, Inc. in
San Francisco, Timothy Shriver introduced his new memoir, Fully Alive:
Discovering What Matters Most, about finding inspiration (overcome fear of
judgment) from his aunt Rosemary Kennedy and people with intellectual
disabilities he’s met as Special Olympics Chairman, collaborating with Farrelly
brothers in The Ringer film, campaign not to use r-word,
and his preference for using “diffabilities” (different abilities) to
rethink that there are multiple intelligences. When asked about Alzheimer's, he mentioned his late father Sargent with Alzheimer's demanded much compassion and his sister Maria's work with The Alzheimer's Project.
Elderly v. Seniors
“We are not ‘senior citizens’ or ‘golden
agers.’ We are the elders, the experienced ones; we are maturing, growing adults
responsible for the survival of our society.
We are better educated, healthier, with more at stake in this
society. We are not wrinkled babies,
succumbing to trivial, purposeless waste of our years and our time. We are a new breed of old people. There are more of us alive today than at any
other time in history.”
– Maggie Kuhn On Aging (1977, p. 14)
– Maggie Kuhn On Aging (1977, p. 14)
What do we call old people? How do we define an old person? Should laws treat older adults as a special
class “deserving” of special treatment due to ageism that makes them vulnerable
to discrimination and disadvantage?
·
In San
Francisco evictions based on owner or relative move-in (under rent control), older adults age 60+ or disabled (SSI eligible) tenants with 10 or more years
tenancy, or catastrophically ill tenants with 5 or more years tenancy have protected
status and cannot be evicted from a building of two or more units.
·
In San
Francisco evictions based on landlord removing building from rental market (Ellis Act, under rent control),
older adults age 62+ with at least one year tenancy are entitled to one-year notice (rather than 120
days notice) and additional relocation payment.
·
There are challenges in
representing older adults:
·
lack of capacity
due to cognitive impairment from dementia, stroke, depression or other
condition
·
sudden death
(LAE had sad case of elderly couple with more than 5 years but less than 10 years
tenancy, when catastrophically ill husband died leaving wife to fight owner move-in eviction without
his protected status)
·
frailty so older adult accompanied by relative (spouse, child) who may have conflicting interests
(always communicate directly to older adult as client)
In 1961, President John F.
Kennedy convened the first White House Conference on Aging. Four years later, his successor President
Lyndon B. Johnson included three bills to assist older adults as part of his
Great Society reforms:
- Older Americans Act (OAA), which established the federal Administration on Aging, to provide comprehensive services for older adults;
- Medicare to provide basic hospital and supplemental medical insurance to older adults and younger persons with disabilities; and
- Medicaid to provide health coverage for low-income persons of all ages and funding expansion of nursing home industry.
OAA’s Title III programs
(nutrition, community services) are not means-tested
and are not permitted to charge for
their services (though voluntary donations are encouraged), but expected to
target services to individuals with the greatest economic or social needs
(low-income minorities) and yet Congress has never appropriated sufficient funds
to make them universal in practice. In
fact, OAA expired in 2011, and we’re waiting for Congress to restart the
reauthorization process next year.
Though most OAA programs
are age-segregated,
they end up benefiting all ages; for
example, providing adult day care, meals and transportation frees mobile
younger adults from providing direct care or support to their aging parents. However, developing a coordinated long-term
care system remains a public policy challenge due to partisan politics and the
existing fragmentation of programs and services with different entitlements and
eligibility requirements.
Organizing around common concerns for social justice (Gray Panthers’ motto is
“Age and Youth in Action”) is the legacy of Maggie Kuhn, a proponent of
generational interdependence (v.
independence), cooperation (v.
competition), intergenerational
involvement (v. age segregation), public
interest (v. self interest)—for more Power to the People including Elderly!
Legacies
“ . . .the day of death is better than the day of birth . . . The heart of the wise is in the house of mourning, but the heart of the stupid is in the house of rejoicing."
Legacies
“ . . .the day of death is better than the day of birth . . . The heart of the wise is in the house of mourning, but the heart of the stupid is in the house of rejoicing."
-- Ecclesiastes 7:1, 4
Perhaps it’s my
introverted nature, but I prefer memorial services than other occasions for reflection and inspiration. This year I
attended two services that stand out: my
94-year-old landlord, who knew me for more than half my life; and a 61-year-old
tenant advocate, who never met me.
First, my landlord: a
retired County District Attorney —a fact that he never
volunteered to me (but I learned from his daughter) because he was so
endearingly unassuming (one obituary described him as “homespun”). As a clueless and unemployed twentysomething recent graduate when I became his tenant, my landlord provided gentle encouragement as I searched for gainful employment that would enable me to pay rent J.
When my landlord got out of his pickup truck with toolbox, he passed as a handyman, a real do-it-yourself landlord who repaired my windows and often accompanied electricians and plumbers doing work in his multi-unit apartment building. Even after he retired from landlording, delegating duties to a property management firm, he continued to check on the building, which I saw as an opportunity to check on him – how was he and his wife doing in their retirement community inSacramento ? Since I knew them with their children and grandchildren, it seemed unusual to live in an age-segregated community.
When my landlord got out of his pickup truck with toolbox, he passed as a handyman, a real do-it-yourself landlord who repaired my windows and often accompanied electricians and plumbers doing work in his multi-unit apartment building. Even after he retired from landlording, delegating duties to a property management firm, he continued to check on the building, which I saw as an opportunity to check on him – how was he and his wife doing in their retirement community in
After my landlord died, I
attended a celebration of his life at the retirement community. As the only tenant present, I could say he
was the model landlord, embodying the fruitages of the spirit (“love, joy, peace, patience, kindness, goodness, faith, mildness, self-control” from Galatians
5:22-23) along with being fair and responsive – the same qualities consistently
mentioned by his family, friends, neighbors, and colleagues. I was inspired learning about my landlord’s
legacy in representing justice in his legal career. . .and doing so with
civility, which made a comeback with this year's California bar admittees who took
a new oath: “As an
officer of the court, I will strive to conduct myself at all times with dignity,
courtesy, and integrity.”
Second, the tenant
advocate: Ted Gullicksen,
director of San Francisco Tenants Union since 1988 until his sudden death in October.
Though I never met Ted in person, I admired his advocacy work from afar
so his memorial was an opportunity to learn more about his life and legacy from
his associates.
Just outside Mission High School auditorium was a wall papered with a collage of photos, posters and news
clippings of Ted's work to fight displacement and protect rent control; a table
held the tools of his trade—bolt-cutters (to get into locked abandoned buildings
to occupy in his Homes Not Jails campaign), bullhorn (to shout his messages), chocolate espresso beans (for sustenance) and SFTU Tenants Rights Handbook (given to members and updated annually
that often included legislation that he helped draft) among other items.
Prayer flags created by attendees and strung outside auditorium. Ted liked donuts so one flag had a picture of a donut with message, "I donut want a San Francisco without Ted." Ted spoke out against landlords making unilateral changes to leases, like one who evicted an elderly couple who had goldfish in their unit.
Upon entering the
auditorium, we received a 12-page booklet filled with photos and remembrances
about Ted’s lifelong commitment to social justice. Inside the auditorium, Brass Liberation Orchestra welcomed attendees: Housing is a human right!
Artist Hugo
Kobayashi wears his portrait of Ted and dog Falcor, who was adopted by
Sara Shortt of
Housing Rights Committee.
Sheriff Ross Mirkarimi in dark suit standing in back row. Sheriff’s
Office took a break from carrying out usual Wednesday evictions on Xmas Eve and
New Year’s Eve this year.