Thursday, September 20, 2012
Kim Dayton (Professor of Law and Director, Center for Elder Justice and Policy, William Mitchell College of Law) and Dr. Isreael (Issi) Doron (Professor of Law, Faculty of Welfare and Health Sciences, University of Haifa, Haifa, Israel) recently published their article entitled Municipal Elder Law: A Minnesota Perspective, 20 Elder L.J. 33 (2012). The introduction from the article is below:
Elder law in the United States has historically been regarded as the domain of federal and state law in relatively equal parts. Federal law is preeminent in such matters as income security in retirement (Social Security, Supplemental Security Income, employee pensions); basic health care for older persons (Medicare); and most aspects of discrimination against older persons and those with disabilities in employment, housing, and other arenas. State law dominates in the areas of elder abuse and neglect, guardianship and conservatorship, probate matters, and the regulation of private insurance. In some areas, such as planning for long-term care and nursing home regulation, both federal and state law have comparably significant roles.
Moreover, in an increasingly globalized world, many advocates for older persons are looking principally to international law as the means to expand the legal rights of elders. This trend is evident in the current debates on issues such as the need for an international convention on the rights of older persons or the application of the Hague Convention for the Protection of Adults to situations involving the elderly.
This Article considers an alternative approach by asking whether local law can be the future of elder law. Scholarly discussions of law and aging have largely overlooked the role that local governments might play in defining, expanding, and protecting the rights of older persons. As one of the authors has previously observed:
[E]xisting approaches to Elder Law fail to recognize that their legal “ideologies” are most often developed and implemented at the level of the local authorities, municipalities, or communities . . . . Furthermore, such novel local initiatives ought to be substantiated through available legal frameworks. In this regard, it is up to the local attorneys specializing in Elder Law to take significant steps to guarantee that these initiatives are upheld through innovative local legislation. It is imperative to all the existing approaches to Elder Law to acknowledge the importance of the local legislature in order to materialize their jurisprudential rationale. Ultimately, this opens up a broad range of activities that remain to be effectively implemented by attorneys in the field of municipal Elder Law.
Notwithstanding this challenge, there is little in the elder law literature on the role of local law in shaping the rights and privileges of older persons.
This Article comprises an empirical exploration of the field of local or municipal elder law in the United States. It reports on the results of a pilot study, conducted in Minnesota, to determine the extent to which local government units in Minnesota have, or have not, embraced the field of elder rights. Part II of the Article outlines the general principles that define the scope of local government power generally and provides examples of how local governments typically exercise their authority with regard to the rights of individuals and particular demographic groups. Part III describes the research design and methodology and summarizes the quantitative and qualitative findings. Part IV contains conclusions and recommendations for further research and reform.