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| Leading Illinois Elder Law Attorneys |
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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, probate, estate planning and trusts, civil rights, and even consumer protection. Each of these areas is discussed fully in separate chapters of this Guide.
Seniors in Illinois have two basic means--one state, one federal--with which to counter age discrimination in the workplace: the Illinois Human Rights Act and the federal Age Discrimination in Employment Act of 1967.
Illinois Human Rights Act
The Illinois Human Rights Act (IHRA) is a comprehensive anti-discrimination law prohibiting labor organizations, employers and employment agencies from discriminating based on age (over the age of 40), ancestry, arrest record, citizenship, color, disability, marital status, national origin, race, religion, sex, or unfavorable military discharge. Under IHRA, 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. IHRA 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 IHRA may bring a civil action directly against the employer or may file a charge with the Illinois Department of Human Rights. If a person files a charge of discrimination with the Department of Human Rights, he or she must do so within 180 days of the discriminatory act. For example, if an older person is fired and believes the motive was age discrimination, the charge must be filed within 180 days of the employer's notice of termination.
Any individual who files an employment discrimination lawsuit must show
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 ADEA, employers are prohibited from using age as a basis for making hiring, firing, promotion, or compensation decisions, or 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," a "recent graduate," or that use terms such as "retired" or "over 65."
ADEA has five major exceptions to its coverage. Employers accused of violating ADEA usually invoke one or more of these exceptions as a defense for their actions:
Relationship Between IHRA and ADEA
The relationship between IHRA and ADEA is complex, primarily because 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 may file a charge with the Illinois Department of Human Rights for relief under IHRA, or may file a charge with the federal Equal Employment Opportunity Commission (EEOC) based on discrimination in employment under the ADEA. However, there are 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 Illinois Department of Human Rights can advise a victim of age discrimination how, when, and where to proceed against an employer.
Living wills and powers of attorney for health are two written documents covering decisions in this area. If people do not create these documents, their health care decisions may be covered by the Illinois Health Care Surrogate Act. Under this act, a surrogate or a guardian--usually a family member--may be appointed to make important decisions about a person's health care if he or she becomes unable to do so. When a patient becomes unable to make a decision about life-sustaining treatment, and is diagnosed with a condition that will require such a decision, the health care provider must inquire about the existence of a living will or power or attorney for health care. If neither of these documents exists, the physician is authorized to rely upon a surrogate to make the decision. The patient must be informed that a surrogate has been appointed and who the surrogate is. Any decision made by the surrogate decision maker should be made in accordance with the patient's wishes.
Living Will
Despite its popular name, a living will is not actually a will at all. A living will is a document spelling out how much and what kind of medical care its writer (declarant) wants if he or she becomes terminally ill and incapable of communicating his or her wishes. "Terminally ill" means the person has an incurable or irreversible condition and the use of medical procedures only delays and prolongs the dying process. Living wills are controversial and, although many states refuse to recognize them, they are recognized in Illinois.
Any competent adult can make a living will. Although many people have living wills drafted by their lawyers at the same time they have traditional wills drafted, living wills do not need to be drafted by lawyers. Illinois has a suggested living will form, which people can use if they wish. Many people seek advice from a doctor before drafting a living will so they can describe their wishes specifically, taking into account the kinds of medical technology currently available to them. Also, it is useful for a person who signs a living will to inform his or her doctor of what the living will says. The most important point about a living will is that the individual decides how much and what kind of health care he or she wants.
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Declaration This declaration is made this ________ day of ________ (month, year). I, ________________ , being of sound mind, willfully and voluntarily make known my desires that my moment of death shall not be artificially postponed. If at any time I should have an incurable and irreversible injury, disease, or illness judged to be a terminal condition by my attending physician who has personally examined me and has determined that my death is imminent except for death delaying procedures, I direct that such procedures which would only prolong the dying process be withheld or withdrawn, and that I be permitted to die naturally with only the administration of medication, sustenance, or the performance of any medical procedure deemed necessary by my attending physician to provide me with comfort care.In the absence of my ability to give directions regarding the use of such death delaying procedures, it is my intention that this declaration shall be honored by my family and physician as the final expression of my legal right to refuse medical or surgical treatment and accept the consequences from such refusal. Signed ________________________ City, County and State of Residence ________________________ The declarant is personally known to me and I believe him or her to be of sound mind. I saw the declarant sign the declaration in my presence (or the declarant acknowledged in my presence that he or she had signed the declaration) and I signed the declaration as a witness in the presence of the declarant. I did not sign the declarant's signature above for or at the direction of the declarant. At the date of this instrument, I am not entitled to any portion of the estate of the declarant according to the laws of intestate succession or, to the best of my knowledge and belief, under any will of declarant or other instrument taking effect at declarant's death, or directly financially responsible for declarant's medical care. Witness ________________________ |
Power of Attorney for Health Care
Living wills can be used only for terminal illnesses. Treatment decisions for non-terminal illness can be addressed by the creation of a power of attorney for health care. A power of attorney for health care is a document that one person (principal) signs in order to give another person (agent) authority to make health care decisions if the principal becomes incapacitated. Unlike a living will, a person's health condition does not have to be terminal for a power of attorney for health care to be effective.
The power of attorney for health care sets out exactly what the agent will do if the principal becomes unable to make health care decisions. It may state that the agent has complete authority to make health care decisions based on what the agent believes is best, or it may state specifically what the health care decisions should be. For example, the principal may declare that every measure should be used to keep him or her alive, or that medical treatment should be stopped under certain circumstances.
A principal must be at least 18 years old in order to create a power of attorney for health care. Illinois has a suggested short form power of attorney for health care, or a principal may write his or her own power of attorney for health care as long as it contains certain information required by law. The power of attorney for health care must name the agent, 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.
Guardianship
The Illinois Guardians for Disabled Adults Act provides that a court may appoint a guardian, if a person (ward) becomes mentally or physically incapable of making personal or financial decisions. The guardian may be appointed as a guardian of the person or guardian of the person's estate, or both. The purpose of guardianship is to promote the well-being of disabled adults, and to prevent abuse, neglect, and exploitation.
To create a guardianship, any person can petition the court, whether that person is a potential guardian, a potential ward, or a third person. 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. A petition must include the name and other information about the person, the value of the person's property, and the name and other information about the proposed guardian. It also must set forth the reasons why guardianship is needed. The petitioner has the burden of proving the ward's incapacity and the court applies a standard of the best interest of the ward in making its decision.
A ward can be restored to capacity by petition to the court. Anyone can bring a petition and must show by a preponderance of the evidence that the ward no longer is incapacitated and is able to make provisions for personal care or management of his or her property.
For many families, guardianship causes a drastic change in the family relationship, especially if not all family members agree that a petition for guardianship should be filed. Some of this potential stress can be avoided if an aging person creates a living will or power of attorney for health care while still legally competent. Another option is to create a living trust, which is discussed in the Estate Planning, Wills & Trusts Law Chapter of this Guide.
Commitment to a State Institution
There are three ways an individual in Illinois can be committed to an institution for mentally ill persons. Commitment sometimes becomes an issue for elderly people.
The three largest programs within the Social Security Act are Retirement, Survivors, and Disability Health Insurance (RSDHI); Supplemental Security Income (SSI); and Medicaid. RSDHI is the name of the federal government's benefits program for workers and retirees, and therefore is of special interest to seniors. RSDHI itself contains three separate programs to cover retirement, disability, and health insurance (Medicare). These three programs are extremely complex. Although detailed descriptions are beyond the space limitations of this book, a general familiarity with them is helpful for understanding one's entitlements.
Retirement and Survivors Insurance
Despite the fact that Retirement and Survivors Insurance (RSI) is only one branch of RSDHI, which in turn is only one branch of the Social Security Act, when most people refer to Social Security they actually mean RSI. Payments from RSI are the Social Security checks that millions of Americans receive each month. Social Security was not intended to be a person's sole source of income, but to supplement other income sources such as pensions, insurance, savings, and investments. However, for many, RSI is their only source of income.
A worker gains RSI coverage by performing covered employment for a certain amount of time. The term "covered employment" means most types of work including full- or part-time wage or salaried work, self-employment, farm work, membership in the United States Armed Services, employment in private nonprofit organizations, most domestic work, and most federal, state, and local government employment. The only major exceptions are railroad employees separately covered by the Railroad Retirement System, federal workers hired before 1984, and certain religious workers. The rules of eligibility and benefit amount are quite complex and provide limited coverage for spouses, children, and survivors.
Generally, a person begins receiving RSI benefits at age 65; however, a worker has the option of initiating benefits at age 62. All benefits are based on what is called the primary insurance amount (PIA): the amount a worker is entitled to if he or she retires exactly at age 65. The amount of the monthly check varies depending on how much the worker made each year. The higher his or her pay, the higher the benefits, up to a maximum dollar amount. A person who initiates benefits at age 62 receives a reduced monthly amount equal to a percentage of his or her PIA. This is a permanent reduction that amounts to approximately seven percent of the PIA for each year a person receives benefits before age 65. Postponing the receipt of benefits until after age 65 can entitle a worker to receive higher monthly amounts. Cost-of-living increases are built into the system so that the monthly amount automatically increases each year as the national cost of living rises.
Family members receive benefits based on the worker's retirement benefits. The spouse of an eligible worker draws spousal benefits on the worker's account--usually one-half of the worker's PIA--if the spouse is at least 62 years old or cares for a child eligible for child's benefits on the worker's account. Other bases for family eligibility are
Railroad Retirement System
The Railroad Retirement System is a federal income insurance program specifically for workers in the railroad industry. Originally, this system was independent of the Social Security Administration, but in 1974 its provisions were integrated into the Social Security System. The integration was not entirely smooth, however, which has led to complex and confusing rules that are often the source of errors in awarding benefits.
Most of the rules for Railroad Retirement closely parallel those for RSI. A retired railroad worker is eligible for monthly benefits if he or she worked for a railroad employer for at least ten years before reaching age 65. As with RSI, a worker can opt to retire earlier, at age 62, but will receive reduced benefits. Anyone with fewer than ten years employment in the railroad industry is ineligible for railroad benefits, but the years of railroad employment can be added to years of non-railroad employment for purposes of calculating RSI benefits.
Some railroad workers who retired before January 1, 1975, are entitled to draw both full RSI benefits and full Railroad Retirement benefits. Most other workers, however, have their RSI benefits reduced by the amount of the Railroad benefits.
Disability Benefits
The federal government has two disability benefit programs administered by the Social Security Administration for qualified applicants: RSDHI Disability Insurance and Supplemental Security Income (SSI). These two programs are similar and are governed by many of the same rules. An individual who qualifies for one program occasionally can receive benefits from both programs simultaneously.
Both RSDHI and SSI programs define disability as "inability to engage in any substantial gainful activity by reason of any medically determined physical or mental impairment which can be expected to last for a continuous period of not less than 12 months." The physical or mental disability must be "of such severity" that an applicant not only is unable to do the work he or she did previously, but is unable to engage in any kind of gainful work. The applicant for either RSDHI disability or SSI has the burden of proving by medical evidence that he or she is disabled or blind. Most applicants must wait five full months before their benefits begin. Each applicant's case is reviewed periodically to determine whether his or her condition has improved to the point that he or she is able to resume working.
To receive SSI, a person must be 65 or older, be blind or disabled, and have financial need. The formula for determining SSI eligibility and benefits takes into account both income level and assets. A person qualifying on the basis of blindness or disability must be referred to vocational rehabilitation services. If the disability is related to alcohol or drug dependency, the applicant may be required to enroll in an appropriate treatment program or risk losing eligibility. Residence in a public institution, such as a prison or certain hospitals, disqualifies an applicant. These people should take appropriate steps to get any pensions, annuities, retirement, disability benefits, worker's compensation benefits, unemployment insurance, or veterans benefits to which they may be entitled.
When the federal government created SSI, it replaced many state-administered welfare programs for the elderly, blind, and disabled. The State of Illinois chose to continue its own program to supplement SSI benefits. This program is known as State Supplemental Payments (SSP). SSP provides additional assistance to qualified elderly, blind, and disabled persons, including those whose income levels are above the SSI standards. The purpose of SSP is to help very poor Illinois residents who are unable to work but whose needs are not met by other federal or state programs.
Medicare
Medicare--also called Medical Assistance in Illinois--is a federal program administered by the Social Security Administration designed to cover some basic medical and health care costs of eligible individuals over age 65 as well as many people with disabilities. Medicare has become an enormous federal program, providing billions of dollars in coverage every year.
Medicare should not be confused with Medicaid. Medicaid is a program administered by the Social Security Administration to pay doctor and hospital bills of people with limited income and assets. Medicare benefits are available to qualified individuals regardless of financial need. Because Medicare is closely linked to RSI, Disability Insurance, and Railroad Disability benefits, a basic understanding of the eligibility requirements and application procedures for those programs is helpful for an understanding of Medicare.
Medicare Part B, commonly known as Medical Insurance, is a voluntary health insurance program designed to cover some of the costs not covered by Medicare Part A, such as outpatient hospital services, outpatient physical therapy, speech pathology services, necessary ambulance service, and medical equipment. Unlike Part A, which is paid for out of Social Security taxes and is free to anyone who qualifies, Part B is an optional program that carries a monthly premium of under $50.
The federal government contracts with private insurance companies to handle routine claims processing, payment, and other functions under Parts A and B.
Illinois seniors who are refused health insurance by private health insurance companies, or who can obtain insurance but only at an excessive rate may be able to get coverage under the Illinois Comprehensive Health Insurance Plan. This program was intended as an alternative to traditional health insurance, and provides coverage for medically necessary treatment such as hospital services.
In Illinois, two additional programs help older people and people with disabilities pay for their Medicare coverage. In order to be eligible for these programs, an individual must have assets of no more than $4,000 and must live in Illinois. The Qualified Medicare Beneficiary Program (QMB) assists those who have Part A Hospital Insurance and whose income is at 100 percent or less than the federal poverty level. The Specified Low-Income Medicare Beneficiary Program (SLMB) covers Part B Medical Insurance for individuals with incomes between 100 percent and 110 percent of the poverty level. These programs are run by the Illinois Department of Public Aid.
Illinois Attorney General, Senior Citizens Advocacy, toll-free phone: (800) 252-2518.
Contact the Illinois Department of Human Rights, State of Illinois Center, 100 Randolph Street West, #10-100, Chicago, IL 60601, phone: (312) 814-6200, TDD: (312) 263-1579; or 222 College South, #101, Springfield, IL 62706, phone: (217) 785-5100, TDD: (217) 785-5125 for information on age discrimination or to file a charge. Contact the Illinois Department of Public Aid, Division of Medical Programs, Prescott E. Bloom Building, 201 South Grand Avenue East, Springfield, IL 62763, phone: (217) 782-2570 or toll-free: (800) 252-8635 for information about Medicaid, Medicare, SSI, or SSP.
Contact the Illinois Department on Aging, Division of Older American Services, 421 Capitol Avenue East, #100, Springfield, IL 62701-1789, phone: (217) 785-3356 or (312) 917-2630 or toll-free: (800) 252-8966 for information about elder services and protective services or to order the free pamphlet, Partners in Aging: A Guide to Programs, Services and Advocacy Organizations Serving Older Adults in Illinois, 1993-1994 or other publications.
The Illinois Secretary of State, Department of Human Services, Senior Citizen Division, 450 Howlett Building, Springfield, IL 62756, phone: (800) 252-2904 (voice or TTY) offers services for seniors.
Illinois Securities Department, Secretary of State, Lincoln Tower, 520 Second South, #200, Springfield, IL 62701, phone: (217) 782-2256. Call to order the free pamphlet, Senior Citizens Securities Fraud.
Illinois State Bar Association, Illinois Bar Center, Springfield, IL 62701-1779. Call (217) 525-1760 to order the free pamphlets, Estate Planning & Living Wills and Your Health Care: Who Decides?
Call the Social Security Administration at (800) 772-1213 to order the free pamphlets, Understanding Social Security and You May Be Able to Get SSI.
United States Equal Employment Opportunity Commission, Chicago District Office, 930A Federal Building, 536 Clark Street South, Chicago, IL 60605, phone: (312) 353-2713.
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