By Peter J. Strauss, J.D.

The population of the United States is 310 million. 40 million (13%) are over 65 years of age and 5.7 million (1.8%) are over 85. By 2050, when the population will be 439 million, 20% of all Americans - 88.5 million - will be over 65. The over 85 cohort is the fastest growing segment of the population and by 2050 there will be 19 million Americans over 85 - about 4% of all Americans.

But as most caregivers know, our increasing longevity has a dark side: many of us are not living well. Chronic diseases such as arthritis, diabetes, loss of cognitive functioning, hearing impairment, hypertension, heart disease and stroke become more prevalent as we age causing quality of life to diminish. The increasing prevalence of dementia among older Americans is a major factor; it is estimated that Alzheimer's disease is the cause of 70% of all dementia. 50% of persons over age 85 cannot function independently and need significant assistance in daily functioning.

And, our national health care system for the elderly - Medicare - is far from perfect. When Medicare was enacted in 1965, President Lyndon B. Johnson said this about Medicare's benefits for the elderly:

"Every citizen will be able, in his productive years when he is earning, to insure himself against the ravages of illness in his old age. No longer will illness crush and destroy the savings that they have so carefully put away over a lifetime so that they might enjoy dignity in their later years."

President Johnson may have been a great politician, but he was a terrible prophet. In fact, seniors spend more out-of-pocket today than they did before Medicare was enacted. In part, this is because health care costs have risen dramatically each year, more than twice as much as general inflation, but more importantly it is because Medicare does not cover the costs of long-term, chronic care. Sadly, most Americans wrongly believe that Medicare will pay for the costs of long-term care. They are shocked to learn that when it comes to paying for the costs of aides and companions to assist them in performing activities of daily living or paying for nursing home or assisted living facilities they are on their own.

Unfortunately, most Americans fail to consider the possibility that they may become incapacitated as a result of accident or illness and do not think about how they will be able to pay for long-term care. Nor do they establish systems to manage their financial affairs or execute advance directives so that health care decisions can be made for them when they can not speak for themselves. Without a power of attorney, health care proxy and a "living will" it will be necessary for the caregiver to seek the appointment of a guardian by a court to make decisions for a person who can no longer decide for himself or herself. This remedy can be time consuming and expensive (and often contentious) and may result in the appointment of a guardian who would not be the choice of the impaired elder.

In this series of articles, I will address the issues of planning ahead and many others of interest to caregivers and loved ones. My message will be clear: take action now. Each one of us needs to address these concerns while we are healthy. We have a duty to protect ourselves and our families by putting the management and decision making tools in place so that our spouses and children can be effective caregivers when called upon to serve.

Don't assume it is too late to do the planning. In many cases a guardianship is not necessary, but occurs because of a mistaken belief that it is too late for a person with some limitations (perhaps who has recently been diagnosed with dementia) to execute legal documents. This results from the failure of law and medicine to have adequately analyzed and defined whatlevel of capacity is required for a specific task. Too often a physician or lawyer will conclude that the patient who has been diagnosed with dementia lacks capacity to make a decision when better understanding about the quantum of judgmental ability needed for that particular decision might lead to a different conclusion. It may not be too late to take action.

In future articles, I will discuss the various legal tools that should be adopted by senior citizens and younger persons with disabilities, Medicare, Medicaid and other ways to pay for long-term care, guardianship issues, dealing with physicians and hospitals, home care issues, nursing homes, access to health care information, protecting the civil rights of incapacitated persons, the rights of residents of assisted living facilities and nursing homes, age discrimination, insurance issues, elder abuse, both physical and financial, rights and benefits available to persons in non-traditional relationships, and many, many more. I hope you will find these articles clear and useful. If you need immediate assistance, please know that there are Elder Law attorneys who can help. A good place to start your search for a qualified attorney is the National Academy of Elder Law Attorneys, Inc. (NAELA) at www.naela.org.