Power to the Elderly

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 6^th 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.

  

Preposition use:  to v. for

“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).

·         Monterey County has Legal Services for Seniors in Salinas and Seaside.

·         Sonoma County has Council on Aging Services for Seniors in Santa Rosa.

·         Yuba-Sutter County has Legal Center for Seniors in Marysville.

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. . . .”

http://www.law.du.edu/index.php/law-school-learning-aids/legal-language

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)

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.  

·         California’s elder abuse law covers anyone age 65+ and “dependent adults.”
                                                       

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)

  

Get into the Act  

 

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.  

These government safety net programs and Social Security have reduced the elderly poverty rate from 35% in 1960 to 9% in 2012.  There is broad public support for entitlements like Social Security and Medicare.  Yet means-tested programs like public housing, Medicaid (Medi-Cal), SSI or SNAP (CalFresh) are stigmatizing (like mental health disease) to the Greatest Generation (born 1901-1924) and Silent Generation (born 1925-1945) cohorts who are reluctant to apply for welfare though they qualify. 

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. 

Aging America: We Can Do Better

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."

-- 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 in Sacramento?  Since I knew them with their children and grandchildren, it seemed unusual to live in an age-segregated community.

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.