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2401 W. Bay Drive,
Suite 414
Largo, FL 33770-1941
Tel 727.559.0588
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Practice Group
	Community Association
	Disaster Recovery
Areas of Emphasis
	Real Estate
	Employment Law
	Construction Litigation

Introduction
As we face the turn of the century, one of the major challenges facing condominium associations and their members is the aging of the populations within the units, and the problems which accompany diminishing health and capacity. In 1995, the U.S. Department of Commerce and U.S. Department of Housing and Urban Development American Housing Survey for the United States in 1995 (Washington, D.C., GPO, 1997) showed 41% of the homes in America occupied by individuals who are 55 and over. Between the years 1998 and 2010, the population in the 55+ age group is expected to increase by more than five million people, according to the U. S. Census Bureau.

Once clustered predominantly in areas like Florida, Arizona, Texas, California and Nevada, today, an estimated 205,000 community associations, with more than 16.4 million units, now exist in every part of the country, and the issues of aging in place are destined to touch the lives of all of us, either professionally or personally. The average age of the population in this country has increased dramatically from the 1960's when teenagers ruled the market place to the 1990's when the post World War II generation has reached its mid-life crises. And, a growing number of seniors have chosen to remain in their homes and familiar surroundings, rather than moving to traditional retirement destinations. This trend is creating what has become known as a "Naturally Occurring Retirement Community" (NORC).

As professionals, board members, and residents in the community association industry today, we can no longer focus on the traditional options. We are now looking at a brave new world of seniors who are healthier, and more active and independent than any generations have ever been in our history, and focusing on the sad new world of broken family structure and economic struggle that is increasingly taking its toll on the previously comfortable middle class and baby boomers as they age. Consider the over-55 population today. In our community association work, most of us come in contact with the retirement population on a daily basis. They can be argumentative, querulous, aggressive, rude, generally difficult to deal with, fearful, frustrated, adrift, lonely. They can also be actively intelligent, cheerful, fulfilled, talented leaders, and valuable contributors to their immediate environment and the larger global community.

How do seniors see themselves? Most people see themselves as much younger than their chronological age. They still picture themselves as competent and capable, both mentally and physically, well able to stay in control of their lives and their persons, and they are often not aware of the gradual deterioration of reflexes and health of body and mind, which are the inevitable results of aging. This kind of vibrant aliveness adds immeasurably to the quality of those retirement years. These seniors maintain a sense of humor about the challenges of aging. When my friend's grandmother was living out her 90's in a hospital level "old age home," I asked her how she was feeling and she responded that she had cancelled her tennis lesson for that day. My clients tell me to rush my letters to them. After all, they say, we don't buy green bananas.

An inaccurate self concept can lead to serious trouble and even danger. Consider the resident who clearly remembers her apartment in the city and how easy it was to walk for groceries and take care of her place 35 years ago. She is now convinced that she can still care for herself and her condominium unit in Retirement Village, USA. This is the same lady who has filled her kitchen with bags of garbage and trash, and the remainder of her apartment with boxes and bags of odds and ends collected over many years, until there is barely a path through the possessions to go from room to room, and the cockroaches have spread to the neighboring apartment. Or consider the gentleman who still dresses in a business suit every day, but has become incontinent.

In communities designed for assisted living and adult congregate living facilities, the monitoring of and accommodations for aging in place are relatively straight forward, and are automatically built into the system. But what are the aging issues which challenge the senior living in an ordinary residential community and how are we going to deal with them in the 21st Century?

Current Issues and Challenges
From the people perspective, there are the physical challenges of gradual loss of strength and coordination, and mental acuity, which are the natural concomitants of the aging process. This diminution of physical ability affects all individuals to some extent over time. There are also the immediate challenges, which result from catastrophic illness, such as cancer, heart attacks and strokes.

There are the challenges which are a result of the family having placed an aging relative in an apartment in a retirement community, withdrawing both attention and support from a parent or grandparent, and leaving the responsibility to the rest of the world, where it falls on the condominium association board of directors to deal with the problems of irrational behavior, and the resident's inability to care for himself.

There are other physical challenges associated with drug and alcohol abuse, which are very real problems among senior citizens. Abuse of over-the-counter and prescription drugs and anti-depressants has become a serious a problem in the older population, and retirees who were previously able to control their drinking because they had appointments to keep, people to see, and reasons to get dressed in the morning, now drink for something to do to fill in the time. However, alcohol is not a stimulant. It can lead to depression, insomnia and malnutrition. Abuse of alcohol can cause memory loss, paralysis, blindness, and symptoms of dementia. As we grow older, it takes less alcohol to drastically impair function.

There are the problems inherent in the onset of senility and Alzheimer's disease, which may be very subtle and gradual, and are both painful and distressing to the victim and to the victim's family, friends and neighbors over time.

From the buildings and grounds perspective, condominium communities are faced with the challenge of making the community amenities accessible to those with wheelchairs, walkers, canes, and who are physically challenged by age or infirmity.

And finally, from the community association perspective, there are the challenges of dealing with residents who are unable to be fully independent or who are disturbing the community through anti-social or disruptive behavior.

Traditional Approaches and Solutions
In a traditional community association setting, a retirement community is seen as a positive and enjoyable place to live, which include support systems for some degree of assisted living. For those who are mobile, social events and educational programs, exercise classes, crafts, and travel opportunities are offered and organized within the association structure, through committees and clubs, and through outside sources. On-going research continues to show the benefits of exercise and proper nutrition for older persons. This would include balance training, aerobics and strength training, and these programs are beginning to be offered in senior centers, and on the premises in condominium community associations. Through active lifestyles, the quality of aging is vastly improved.

Community volunteers can staff programs and create specific procedures for dealing with sudden emergencies; new deterioration in a resident's abilities; or the aftermath of catastrophic illness. Having such procedures in place before they are actually needed enables the condominium association to respond quickly and efficiently with action appropriate to the emergency. In any particular case, the procedure could be as simple as providing information on medication to a paramedic. The board can appoint a committee to administer the procedures; to make a daily call to the family; to coordinate rides to doctors, shops, recreational activities; to check on home-bound residents; to offer "babysitting" services as relief to spouses of incapacitated residents so they can shop or do errands or just have some personal time. Monitoring a potentially difficult situation can prevent it from escalating into a real emergency, and can actually save a life. At the least, it will add to the quality of life of both the resident and the person providing the service, who has the opportunity to make a difference in someone's life.

Community facility modifications can be easily made in an ordinary residential environment to accommodate needs of older persons, including placement of decals on windows to identify units with infirm owners; application of no-slip surfaces to sidewalks and catwalks; installation of improved lighting; and installation of ramps and handrails.

But, education of both the boards of directors and community residents is critical, because, without a community-wide understanding of the possibilities, none of this will succeed. Too often, people see such assistance as a sign that the community is "turning into a nursing home," and resist provision of even minimal assistance.

Even in the face of recently published data, there are still very few laws which directly address the issues of aging, at the federal, state or local levels in this country. At the federal level, the Federal Fair Housing Amendments Act of 1988 (Title VIII of the Civil Rights Act of 1968 as amended at 42 U.S.C. 3601-3619) added handicap as a protected class and prohibited discrimination against persons who were or became handicapped, either mentally or physically. The Act requires the community association to allow reasonable modifications to common areas and common elements, at the expense of the handicapped individual, to allow access to and enjoyment of the amenities. There are some programs at the State level which will, upon determination of need, allow the State to arrange for a legal guardian to be appointed through the court system. However, there is still a tendency to leave the issues to the domain of the extended family and/or the community association.

In Florida, we have the Florida Mental Health Act, Chapter 394 (Section 394.453, et seq. of the Florida Statutes Annotated), which is also known as the "Baker Act." This law allows the State to intervene when a person becomes a hazard to himself or others, which is defined as including deteriorated personal hygiene; inappropriate or inadequate clothing when in public; abusive, obscene or inappropriate verbal interaction and response to ordinary conversation; physical attacks on other residents; and so on. The Act allows the State to involuntarily commit such a person for 72 hours of psychological evaluation and observation. However, the Act further requires that some person swear out a statement concerning the action or behavior which is a danger, and sign that statement, before the State will take action. There are laws like this in other jurisdictions around the Country, and use of this remedy may be necessary in the most extreme cases when there is no family to contact or if the family withdraws its support and assistance. (c.f., Chapters 571, 573 through 576 and 578, Texas Health & Safety Code (1997); Title 30, NJ Statutes Annotated (1997); Part I, Title XVII, Chapter 123, Mass.Ann.Laws (1997); the Lanterman-Petris-Short Act, Cal.Welf. & Inst.Code, Section 5350 (1997))

There are some risks inherent in making use of these types of law. There is the chance that the person, once released from involuntary custody, or his/her family, will bring a lawsuit for false imprisonment, and so on. On the other hand, is the board likely to get sued if the association does not intervene? And would the officers and directors of the condominium association be covered by the standard directors and officer' liability policy?

An alternative to involuntary examination and treatment under the Baker Act in Florida is set forth in Florida Statutes, Chapter 744. This Section provides for a court hearing to adjudicate an individual incompetent and appoint a guardian. Again, in order to begin the process, a parent, spouse, adult child, sibling or next of kin, or any three citizens must file a petition to the court. The individual in question is then examined by two physicians and a lay person, who report their findings to the judge. If this process is pursued, the community association can end up in much better shape, as it will now have a guardian to deal with for financial matters, and anti-social or unacceptable behavior of the occupant of the unit. This approach is being used successfully in Massachusetts and in New Jersey, among other states, for circumstances in which family cannot be located, to deal with problems of aging residents who live alone in the condominium units. There is still some potential for liability if the petition is filed by someone other than a family member.

New Issues and Challenges for the 21^st Century
These statutory approaches have had mixed results in the past, and in the future, we can expect the challenges and problems to escalate and multiply. The governing documents of most condominium communities can be amended to provide some remedies. In the condominium setting in Florida, the statutes and many governing documents of the communities guarantee an irrevocable right of access to a unit to protect other units, and to repair or maintain the common elements. Under that approach, for example, boards of directors can gain access to units from which noxious odors are emanating, and make arrangements for cleanup and pest control. (In at least one case, the odor was caused by the deteriorating body of the occupant, who had died several days earlier, alone, untended and unnoticed.)

The other remedy which might be offered through the condominium documents is the right to obtain injunctive relief or a court order to force an owner to comply with the requirements of the documents. However, in the case of a resident using obscene, lewd and vulgar language, and not fully in control of her faculties, I leave it to you to imagine how successful a court order would be in preventing her from continuing this behavior.

There are some non-traditional approaches to the problems of aging in place, which are available both within the condominium communities and from greater community sources, currently being tried. There are federal, state and local services, such as Meals On Wheels, home nursing, support groups for spouses of Alzheimer's disease patients, traveling blood pressure testing, eye tests, hearing tests, and so on. There are services which will pick up seniors and drive them to shopping, beauty parlor, doctor's appointments, and the like. There is an increasing development of doctors and clinics specializing in the medical problems of the older citizen, including alcohol abuse and drug abuse treatment centers aimed exclusively at senior citizens. And, in the best of all possible worlds, there are caring family members who will respond when a parent or other relative is in need of assistance.

The courts in Florida and around the country are increasingly holding the community associations responsible for being their unit owners' keepers by delivering judgments against associations for failure to protect residents regarding crimes against persons and property, even when there has been no previous record of crimes in the community. (c.f. Admiral's Port Condominium Association, Inc. v. Feldman, 426 So.2d 1054 (Fla. Dist. Ct. App. 1983); Czerwinski v. Sunrise Point Condominium, 540 So.2d 199 (Fla. Dist. Ct. App. 1989); Harper v. Tuscany Place Condominium Association, Inc., 544 So.2d 347 (Fla. Dist. Ct. App. 1989); Harrison v. Housing Resources Management, Inc., 688 So.2d 64 (Fla. Dist. Ct. App. 1991)) In light of this trend toward accountability, and the possibility of its extension and expansion into the realm of aging issues and problems, it is clearly time for us all to get creative on the subject of aging in place.

Are volunteer boards of directors up to the challenge, and should we even consider requiring the association to be actively involved in this process? Until fairly recently, from an historical perspective, people knew and cared about their neighbors. When there was a death in the family, or illness, or celebration, the neighborhood brought food, consolation and congratulations. In the '90's, we have experienced a pulling away from each other and a fear of "strangers," possibly because of economic demands which keep us busy or the increase in personal crime and violence, which reinforce the separation philosophy.

As a growing number of seniors are now choosing to remain in their homes and grow old, in familiar surroundings with family and friends near by, following their retirement from the business world, NORC's are developing in areas which have not traditionally had to deal with the needs and problems of a senior population. Fortunately, at this point all fifty states, and the District of Columbia, have some type of Division of Aging and a Long Term Care (LTC) Ombudsman created to coordinate the flow of information and the resolution of problems as they arise. Of course, the scope of assistance and communication may vary widely from state to state.

A recent survey published in the Miami Herald (September 16, 1995) showed that unmarried couples over the age of 45 are the fastest growing type of household in Florida, and across the nation. Singles are moving in together for mutual emotional support, health care and social company, as well as to pool finances for a better quality of life. Many people who reach retirement age today did not or were not able to financially plan for retirement, because of inadequate income, catastrophic illness or death of a spouse, lack of professional assistance and advice, and so on, or have outlived their savings. This will undoubtedly have an impact on owners' ability to pay assessments to the community association.

With the failure of seniors to plan financially for their independence has come the rise of the Sandwich Generation. These are the individuals in their 40's and 50's who are still caring for their own children, and are now in the position of having to care for their aging or infirm parent or parents, who now reside with them. Then there are the old caring for the older. People are living quite a bit longer now. In one case, the mother, who is 103 years old, has moved in with her 66 year old daughter and daughter's husband. Instead of focusing on her own time, money management and health issues, the daughter is now sharing her resources with her mother. According to an article published on September 18, 1995 in the Miami Herald, 75% of these caregivers are women, daughters reunited with their mothers after years of independence, sometimes repaying childhood kindnesses, sometimes replaying childhood battles. And the strains and struggles, both emotional and physical, are immensely stressful to those who are entering their own retirement years.

Approaches And Solutions for a New Century
What can be done? At the statutory level, now that we have agencies at the federal and state levels, there will be a need to fully educate and train personnel not only in the problems of aging, but in possible solutions. Counseling is necessary for both senior citizens and their families, in order that planning can be done well in advance to accommodate the decline inherent in the aging process, as well as planning for financial security and health care needs. I don't believe that the statutory approach is otherwise useful, as for every procedure which is adopted to allow involuntary assistance, there is the concomitant risk of losing civil rights and abuse by persons looking to take advantage of the situation.

At the level of development of appropriate housing facilities, the trend toward multi-tiered communities seems promising. These communities provide for fully-independent living, and then for gradually-increasing degrees of assistance to full nursing home facilities, all within the same project. Of course, we still have the problem of healthy and vital individuals who do not want to be reminded of incipient decrepitude, and who do not like having the hospital facility located prominently in the community. Still, the multi-tiered community does provide a measure of peace of mind, since an occupant knows he or she will be cared for as time passes and capacity diminishes.

Municipalities will need to review services and make changes to accommodate individuals who are now staying in their pre-retirement homes. This will need to be done not only at the governmental level, but also at the level of service and goods providers who will have to meet the new market needs of in-home services and delivery.

Can the community association fill the needs of aging in place? Are volunteer boards of directors up to the challenge, and should we even consider requiring the association to be active in this process? At this point, what was once a trend is now the reality and since it is now a matter of playing catch-up, we, as community association industry professionals, no longer have the option of remaining uninvolved.

Governing documents can be changed to require that every unit owner maintain up-to-date records with the association concerning next of kin, emergency telephone contact, medical conditions, medication, and doctors who are treating them. It is the obligation of the association to keep those records up-to-date and periodically remind the owners and occupants to provide new information. While this is a bookkeeping imposition, ultimately, it can save the association a great deal of time and energy, and possibly save the life of a resident, if those records are available in an emergency. Record-keeping requirements and procedures can be adopted by directors as part of the association rules and regulations. Association documents can be amended as necessary to grant emergency access to the dwelling units. Also, association governing documents may have to be amended to re-evaluate and revise occupancy restrictions to take the new family configurations into consideration. "Single family" may need to be redefined to include parents and children of owners as authorized occupants, to accommodate living arrangements which become necessary because of financial need or health problems. Also, provision may need to be made for health caregivers who are not members of the immediate family, but who need to be in residence with an owner.

Many approaches involve physical modifications to the property. In-house communications can be wired to provide a panic button in the units, which would alert a central location that there is a problem. This can be extended to an on-site nursing station or a signal light at the front of the building in a multi-building community for easy reference for emergency vehicles. Ramps can be constructed for wheelchair and other handicap access.

Modifications to physical plant and expansion of services provided by the association can be extremely costly and may be limited by documentary provisions. However, there are alternatives to the documentary amendment and assessment process. One community with which I work created a special taxing district to purchase its 99-year recreational lease and provide financial support for services to the residents. This district was governed by specific Florida Statutes, and effectively made the community into a quasi-city, allowing the board to levy a "tax" (equivalent to the assessment powers) against each dwelling unit, and giving the tax a priority collection claim in the event the owner did not pay, in effect giving the association the same clout as a city has to collect the money to fund its services and facilities. Short term loans are another option. This type of financing includes a pledge of the association's receivables as collateral.

Another area needing a creative approach is the seating of viable board members. Some years ago, an elderly gentleman in the company of four ladies, also of advanced age, visited me in my office. He was the last living male in his condominium and he was very concerned about what would happen to the widows in his building when he was gone. The ladies were of the generation of good wives who did not know how to write a check, let alone run the association. For this community, I recommended professional management services. And perhaps, paid professional board members are also in our futures.

In response to market need, an industry of adult day care centers is emerging. These centers provide supervised activities, assistance, lunches, and sometimes transportation. Many such centers are connected with social services.

There remain some serious questions of ability and liability concerning the role and scope of involvement of the community association, along the lines outlined in this text. If a board member fears that his neighbor's children will bring legal action against him if he tries to get professional mental or physical health help for his neighbor, he will certainly think twice about getting involved. There is also the concern that a well-meaning, but untrained, volunteer could make matters worse. Still, through education of volunteers, creation of comprehensive policies and procedures, and a sincere effort to find out what services are available in the general community, an informed association can achieve a comfortable level of assistance, without incurring or assuming legal liability and without becoming an "old age home."

In addition, all of us involved in the community association industry should be working with State and Federal legislators, local businesses and health care providers to make the issues involving aging in place and the development of NORCs, as well as the needs of an aging population, known so that creative solutions and services can ready when they are needed.

Options and Opportunities
For reference, here is a summary of some possible approaches for community associations with sizeable aging populations and for those with mixed age populations:

LEGAL ISSUES:

1. The scope of the board's rule-making authority and ability to regulate residents' activities, both in the dwelling and on the common property should be thoroughly reviewed, and possibly amended to give the board sufficient authority to act on behalf of the association and the community for issues related to aging in place, and to spend money if required for services or physical plant modifications to reasonably accommodate an aging population or to pursue enforcement.  

2. Governing documents should be reviewed, and if necessary amended, to provide the board with the authority to provide certain types of services, such as hiring a professional social services person as an employee of the association, or exchanging parking spaces to accommodate physical incapacity.

3. Governing documents should be reviewed, and amended if necessary, to provide the association and management with a right of entry for repair and maintenance, including pest control and clean-up within a dwelling unit; as well as the right of the community association to assess for the expenses of such maintenance and repair, and to place a lien against the dwelling unit to collect.

4. Consider amendments to the governing documents and the promulgation of rules and regulations, regarding issues of day to day living, which might include modifications to the definition of single-family occupancy or density restrictions, to allow for live-in caregivers; and to ensure recovery of attorneys' fees by the association if legal action is necessary to deal with a resident. Ultimately, the association should be prepared to consult with its attorney, to avoid negative legal ramifications of action taken to handle aging populations within the community association context.

5. Contact your local and state legislators and support and promote legislation that creates immunity for volunteers who take action in an attempt to provide assistance and support to a resident who is in trouble and has no family or other support network; and relief from and limits on liability for those volunteers.

6. When a resident does not have assistance from a family member or other designated person, consider use of guardianship and civil action remedies, including involuntary commitment to a mental health facility, particularly for those who are a danger to themselves or others. In cases involving abusive or dangerous use of the dwelling unit by a resident, it may be necessary to seek injunctive relief for abatement of a nuisance, such as when a resident is harassing other residents, or engaging in anti-social or destructive behavior.

7. Attorneys may need to counsel their association clients when the communities are made up of a mixed age population, regarding the special tensions which can arise between the needs and interests of young families with children and retired individuals. For example, if the association provides facilities for children, then these facilities must be fully and regularly maintained, repaired and replaced as necessary, on a schedule which is an integral part of the overall maintenance plan for the rest of the community and facilities, and which is part of the annual association budget. Likewise, any rules and regulations governing use of the facilities and the dwellings must be reasonable, and uniformly applied to all residents, regardless of their age, in order to be enforceable. This would include regulations regarding playing of music and electronic equipment; noise; use of recreational amenities, such as the swimming pool area, pool and ping pong tables, and so on. The areas of rules and regulations and attention to the board members' fiduciary responsibilities on behalf of the whole community are of particular concern in a mixed age community because of possible claims of discrimination based upon familial status, under the Federal Fair Housing Amendments Act of 1988 and the Housing for Older Persons Act of 1995.

MANAGEMENT ISSUES:

1. Become familiar with the local social service agencies, and other support services which are available for the residents, and publish such information to the community. Look at the feasibility of providing rides for residents who otherwise cannot take advantage of these services.

2. If the governing documents permit the hiring and paying of professional social services personnel within the community, look at that option if there is a large enough population which will benefit.

3. Boards and professional managers should work on the creation and publication of an emergency response plan. The board should look at creating procedures for handling future situations. This could include adopting a rule providing all complaints regarding any resident allegedly creating a nuisance, problem or a danger must be in writing, and delivered to the board of directors or to the manager; creating a form of letter to be sent by the board to the owner of the unit, as well as to a parent, guardian or agent of the owner, if appropriate and if known. A plan should also provide for calling for police or fire intervention when appropriate.

4. The more information the community has ready for immediate reference, the more effectively the board and management can respond to situations as they occur. Keep detailed records, including whether there is a caregiver in residence in the unit; name, address, telephone number of next of kin or emergency phone number; name and telephone number of general medical practitioner for resident; listing of medical conditions and medication; and notation of whether the person uses a hearing aid, cane or wheelchair, and whether he/she wears glasses.

These are very difficult issues, and they are without a doubt the primary challenges of the 21st century for the community association industry.

FURTHER REFERENCE RESOURCES

American Health Care Association. 1201 L St. NW, Washington, DC 20005, (800) 555-9414.

This organization of long-term care providers offers information on choosing a nursing or long-term care facility, and paying for nursing care.

American Association of Retired Persons (AARP). 601 E Street N.W., Washington, DC 20049 (202) 434-2277.

This nonprofit organization works to meet the needs of older people throughout the nation. They offer a wide range of publications and services for people over fifty-five.

Elder Care Locator. (800) 677-1116.

This national toll-free number is designed to help identify community resources for seniors anywhere in the United States. The name, address, and zip code of the person needing assistance allows the Elder Care Locator to identify the nearest information and assistance sources in that person's community. Call between 9:00 A.M. and 8:00 P.M. Eastern Time.

Gray Panthers. 2025 Pennsylvania Avenue, N.W., Suite 821, Washington, DC 20006. (202) 466-3132.

This coalition of intergenerational activists works to promote the concerns of older people, often organizing around issues that cross age groups.

National Aging Information Center. 330 Independence Avenue S.W., Room 4656, Washington DC 20201. (202) 619-7501.

This Center is operated by the U.S. Administration on Aging and publishes many free publications aimed at problems of elders.

National Council of the Aging. (NCOA). 600 Maryland Avenue S.W. West Wing 100, Washington, DC 20004. (202) 479-1200.

A private, nonprofit group serving as a central resource for information, technical assistance, training, planning, and consultation in gerontology.

Older Women's League (OWL). 730 11th Street, N.W., Suite 300, Washington, DC 20001. (202) 783-6686.

OWL's national membership is committed to helping meet the special needs of middle-aged older women, especially in areas such as Social Security, pension rights, health insurance, and caregiver support services.

BOOKS

Aging Parent Handbook by Virginia Schomp (Harper Paperback)

Caring for Your Aging Parents: A Planning and Action Guide by Donna Cohen of the university of South Florida and Carl Eisdorfer (Putnam)

How to Care for Aging Parents: A Complete Guide by Virginia Morris (Workman)