Legal problems that affect the elderly are growing in number. Our laws and regulations are becoming more complex. Actions taken by older people with regard to a single matter may have unintended legal effects. It is important for attorneys dealing with the elderly to have a broad understanding of the laws that may have an impact on a given situation, to avoid future problems.
Unfortunately, this job is not made easy by the fact that Elder Law encompasses many different fields of law.
Some of these include:
- Preservation/transfer of assets seeking to avoid spousal impoverishment when a spouse enters a nursing home
- Medicaid
- Medicare claims and appeals
- Social security and disability claims and appeals
- Supplemental and long term health insurance issues.
- Disability planning, including use of durable powers of attorney, living trusts, “living wills,” for financial management and health care decisions, and other means of delegating management and decision-making to another in case of incompetency or incapacity.
- Conservatorships and guardianships
- Estate planning, including planning for the management of one’s estate during life and its disposition on death through the use of trusts, wills and other planning documents
- Probate
- Administration and management of trusts and estates
- Long-term care placements in nursing home and life care communities
- Nursing home issues including questions of patients’ rights and nursing home quality
- Elder abuse and fraud recovery cases
- Housing issues, including discrimination and home equity conversions
- Age discrimination in employment
- Retirement, including public and private retirement benefits, survivor benefits and pension benefits
- Health law
- Mental health law
Most Elder Law attorneys do not specialize in every one of these areas.
So when an attorney says he/she practices Elder Law, find out which of these matters he/she handles. You will want to hire the attorney who regularly handles matters in the area of concern in your particular case and who will know enough about the other fields to question whether the action being taken might be affected by laws in any of the other areas of law on the list.
For example, if you are going to rewrite your will and your spouse is ill, the estate planner needs to know enough about Medicaid to know whether it is an issue with regard to your spouse’s inheritance.
Attorneys who primarily work with the elderly bring more to their practice than an expertise in the appropriate area of law. They bring to their practice knowledge of the elderly that allows them and their staff to ignore the myths relating to aging and the competence of the elderly. At the same time, they will take into account and empathize with some of the true physical and mental difficulties that often accompany the aging process. Their understanding of the afflictions of the aged allows them to determine more easily the difference between the physical versus the mental disability of a client. They are more aware of real life problems, health and otherwise, that tend to crop up as persons age. They are tied into a formal or informal system of social workers, psychologists and other elder care professionals who may be of assistance to you. All of these things will hopefully make you more comfortable when dealing with them and ease your way as you try to resolve your legal problem.
Finding an Elder Law attorney
Your first question may be: How do I find an Elder Law attorney? Before making the effort, step back a moment and try to determine whether you actually have a legal problem in which an attorney needs to be involved. If you’re not sure, ask your clergy, your social worker, your financial advisor, or a trusted friend to help you decide whether this is a legal issue rather than a medical or a social services issue. Legal expertise is expensive and it serves you well to know that you actually need legal assistance before seeking an attorney.
There are many places to find an attorney in your city or state who specializes in problems of the elderly. This Web site, ElderCareMatters.com, includes a searchable directory of attorneys with expertise in a wide range of Elder Care Matters. In addition to finding Elder Law attorneys near you, this site provides you with substantive, up-to-date information to help you plan for and deal with your family’s elder care matters.
If you know any attorneys ask them for a referral to an elder law attorney. An attorney is in a good position to know who handles such issues and whether that person is a good attorney. Such persons are often the best and safest sources of referrals.
Ask Questions First
Ask lots of questions before selecting an Elder Law attorney. You don’t want to end up in the office of an attorney who can’t help you. Start with the initial phone call. It is not unusual to speak only to a secretary, receptionist or office manager during an initial call or before actually meeting with the attorney. If so, ask this person your questions.
- How long has the attorney been in practice?
- Does his/her practice emphasize a particular area of law?
- How long has he/she been in this field?
- What percentage of his/her practice is devoted to elder law?
- Does he/she have any advanced designations – CELA, Fellow or CAP
- Is there a fee for the first consultation and if so, how much is it?
- Given the nature of your problem, what information should you bring with you to the initial consultation?
The answers to your questions will assist you in determining whether that particular attorney has those qualifications important to you for a successful attorney/client relationship. If you have a specific legal issue that requires immediate attention, be sure to inform the office of this during the initial telephone conversation.
Once You Have Found an Attorney
When you have found an appropriate attorney, make an appointment to see him/her. During the initial consultation, you will be asked to give the attorney an overview of the reason you are seeking assistance, so be sure to organize and bring all the information pertinent to your situation. After you have explained your situation, ask:
- What will it take to resolve it?
- Are there any alternative courses of action?
- What are the advantages and disadvantages of each possibility?
- Who will handle your case?
- Has that attorney handled matters of this kind in the past?
- If a trial may be involved, does he/she do trial work? If not, who does the trial work? If so, how many trials has he/she handled?
- Is that attorney a member of the local bar association, its health advocacy committee, or trust and estates committee?
- Is that attorney a member of the National Academy of Elder Law Attorneys?
- How are fees computed?
- What is his/her estimate of the cost to resolve your problem and how long will it take?
Discussing Fees
There are many different ways of charging fees and each attorney will choose to work differently. Be aware of how your attorney charges. You will also want to know how often he/she bills. Some attorneys bill weekly, some bill monthly, some bill upon completion of work. Ask about these matters at the initial conference, so there will be no surprises! If you don’t understand, ask again. If you need clarification, say so. It is very important that you feel comfortable in this area.
Some attorneys charge by the hour with different hourly rates for work performed by attorneys, paralegals and secretaries. If this is the case, find out what the rates are. Other attorneys charge a flat fee for all or part of the services. This is not unusual, for example, if you are having documents prepared. Your attorney might use a combination of these billing methods.
In addition to fees, most attorneys will charge you out-of-pocket expenses. Out-of-pocket expenses typically include charges for copies, postage, messenger fees, court fees, disposition fees, long distance telephone calls and other such costs. Find out if there will be any other incidental costs.
The attorney may ask for a retainer. This is money paid before the attorney starts working on your case. It is usually placed in a trust account and each time the attorney bills you, he/she pays himself or herself out of that account. Expenses may be paid directly from the trust account. The size of the retainer may range from a small percentage of the estimated cost to the full amount.
Get It in Writing
Once you decide to hire the attorney, ask that your arrangement be put in writing. The writing can be a letter or a formal contract. It should spell out what services the attorney will perform for you and what the fee and expense arrangement will be. REMEMBER– even if your agreement remains oral and is not put into writing, you have made a contract and are responsible for all charges for work done by the attorney and his/her staff.
A positive and open relationship between attorney and client benefits everyone. The key to getting it is communication. The communication starts with asking the kinds of questions contained in this document. Use the answers to the questions as a guide not only to the attorney’s qualification, but also as a way of determining whether you can comfortably work with this person.
- If your concerns are given short shrift;
- if you don’t like the answers to these questions;
- if you don’t like the attorney’s reaction to being asked all those questions or if you simply do not feel relaxed with this particular person
DO NOT HIRE THAT PERSON. Only if you are satisfied with the attorney you have hired from the very start will you trust him or her to do the best job for you. Only if you have established a relationship of open communication will you be able to resolve any difficulties which may arise between the two of you. If you take the time to make sure that you are happy right at the beginning you can make this a productive experience for both you and the attorney.
You will thank yourself, and your attorney will thank you.
Today’s Answer was provided by Stephen J. Silverberg, Esq., of the Law Office of Stephen J. Silverberg in Roslyn Heights, New York.