It was the first day on the job for my new staff attorney. He did not expect that his first day would be spent at a funeral. But there he was, with me.

In the casket was a client of mine. She was beautifully dressed in pink, her face peaceful, and her son and family stood nearby. I paid my respects, and they expressed their joy that the final days of her life had been spent at home.

If the local adult protective services (APS) agency had its way, things would have been different. She would have died in a nursing home. She would have been taken away from family, and from her caretaker son.

She had metastatic breast cancer, and she had decided not to pursue further treatment. For some reason, APS had received a call and came to visit. She didn’t let them in. At the door, the caseworker observed that her shirt was stained (because she had fallen asleep with a little tobacco chew in her mouth.)

The next day, the caseworker returned with a police officer. My client still refused to let them in. She had the right to do that under Wis. Stat. section 46.90(5m)(c). The next thing the family knew, she had been removed from the home, and a temporary guardianship was initiated.

The program I directed at the time, SeniorLAW at Legal Action of Wisconsin, got a call from the son. I took the case, represented the mother, and got the matter dismissed. Her decision to end care was perfectly rational, and she had the capacity to make it. She returned to her home to live out the last days of her life.

And that was how I found myself at her funeral, at the invitation of the family, with the new staff attorney at my side.

I Believe That Race Makes a Difference in Justice for Elders

Did I mention that her caretaker son had a past felony conviction for drugs, and that my client and her family were Black? At the time it happened, and even more so now, I believe in my heart that the involuntary intervention would have not happened to a white woman who chose to give up treatment at the end of her battle with cancer.

Well, I’ve been thinking about that a lot lately.

We are being called upon by the movement of these times to become more aware of the presence of racial inequity in our society, and as elder law attorneys, we need to examine where it exists in our own field of practice. I’ve started to do some reading to learn more.

Here are a few areas where racial inequity appears to be present:

Elder abuse. Two empirical studies¹ on the prevalence of financial exploitation and psychological exploitation among Black and non-Black populations showed that Black elders were more likely to be victims of financial exploitation and psychological exploitation.

Yet, in Wisconsin, the 2018 annual elder abuse statistics report indicated that where race was identified, only 4.5% of the cases involved Black elders. If Black elders are more likely to be victims of certain types of abuse, then why are the reported cases so small? Is it because of the fear of unwanted government intervention, or something else?

Nursing home care. This could make up an article by itself. The opening sentence of one study I read recently stated, point-blank, that it is common knowledge that Black and Hispanic elders reside in lower-quality nursing homes. Another study found that, compared with white residents, Hispanic and Black elders with Alzheimer’s disease or related dementia received care in segregated nursing homes with fewer resources and lower quality of care. The disparity is not just limited to nursing home care – the health outcomes are lower in many aspects of care for Black Americans across all age levels.

Dementia. According to the Alzheimer’s Association, nonwhite elders are disproportionately affected by Alzheimer’s and other dementias. Black elders are about twice as likely as white elders to have dementia, and Hispanic elders are about 1.5 times as likely.

Estate planning: 50-70% (depending on which article one reads) of Black Americans die without a will.

Medicaid planning: What is the comparison between the amount of money as a percentage of overall wealth that is saved by white elders through Medicaid planning, and the amount saved by Black elders?

As a whole, I believe Black families are less likely to engage in planning, while at the same time having fewer resources to begin with – thus potentially being able to receive a greater benefit in relation to their total wealth from any planning that they do.

Let’s Discuss the Next Steps

Where do we go with this? I challenge each of you to think through areas where you see racial inequity in our field, and then we must discuss what steps can be taken to address it. Let’s continue this discussion on our section elist, which members can join by going to our section webpage on WisBar.org or via the elist page.

One elder law firm, Haskins, Short & Brindley, has taken up the lead by offering pro bono services to lower-income families of color.

I urge us, as a section, to focus time and attention on our ability to recognize and remedy racial injustice in our field, whether as a larger effort, or simply fighting for one woman’s right to die in her home.

Endnote

¹ Since this is a blog which primarily represents views and opinions of the author, I am not going to fill it up with citations. If you would like to see the background material, feel free to send me an email, and I will happily share it with you.