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Elder Law: An Overview

Published in the South Dakota Law Review, Volume 45, Issue 3

By Paul Premack, Attorney at Law

According to the National Academy of Elder Law Attorneys, Elder Law is a service-based practice. Rather than defining the practice by technical legal distinctions, Elder Law is defined by the client who is served. As an Elder Law attorney, you may handle a range of issues, but the clientele you serve will be senior citizens.

Your Elder Law practice should be holistic – looking at the broad needs of your client and finding solutions. Networking to other service providers is often necessary. You may handle general estate planning issues, may counsel your clients about planning for incapacity (both on financial and medical issues), and may discuss guardianship needs with family members.

You may assist the client in planning for possible long-term care needs, including nursing home care. Part of the job is to help locate appropriate care, coordinate private and public resources to finance the cost of care, and work to ensure the client's right to quality care.

Your Client

Likely Client Demographics

Of the approximately 746,000 people in South Dakota, nearly 106,000 (about 14.3 percent) are 65 or older. This senior group is growing somewhat slower than the general population. Between 1990 and 1998, the 65+ population in South Dakota increased by 3.3 percent while the overall population increased by 5.3%. Even so, South Dakota ranks in the top 12 states nationwide in percentage of citizens 65+.

About 89 percent of South Dakotans 65+ have no disabilities serious enough to impair their mobility or ability to care for themselves. However, of the eleven percent with serious disabilities, approximately 9,900 are mobility impaired, and an additional 6,550 are impaired in their ability to care for themselves.

South Dakotans are not shy about seeking federal assistance to pay for their disabilities. For example, in 1988, for every 1000 South Dakotans who were eligible for Medicaid, 215 were on the program. Contrast that to 4 participants out of 1000 eligible in New Hampshire.

Who is Your Client?

It is likely that you will get your first call from the son or daughter of the elderly person. They may be inquiring -- ostensibly on their parent's behalf -- about the type of assets that can be protected if parent winds up in a nursing home. They may be asking how to handle a parent who will not cooperate.

Your position must be made clear early on. Typically, in the first interview with the adult child, it will become clear that he/she is seeking information to report back to the parent. It is appropriate for you, at that time, to make it clear that there may be a conflict of interest between the child and parent.

The child, after all, may be seeking to unjustly enrich him/herself at the expense of the parent. If you are to represent the child, the parent must understand that you are not acting as the parent's counsel. If you are to represent the parent, the child must understand that you are not acting as the child's counsel. A written engagement agreement will clarify your client’s identity, and should be signed by the client. You may also consider a standard letter to the children informing them that you represent only the parent’s interests, and that you counsel will be in the best interests of your client.

Confidentiality

Can you counsel with the parent while the child sits in? Pragmatically, this is often necessary. The elderly parent may feel that his/her child should be present to hear the conversation and to act as the parent’s memory. You should disclose your duty to maintain the confidence of your client’s communications, to face "any peril" to preserve the secrets of your client.

Your client may be waiving the confidentiality of your relationship by allowing the child to sit in. The client deserves to choose whether to waive confidentiality, not to simply lose the right by default. Do not be bashful about asking the child to wait in your reception room while you meet privately with your senior client.

Who pays you?

The South Dakota Rules of Professional Conduct require you to be concerned about who pays your fees. The comments to Rule 1.7 state that a lawyer may be paid from a source other than the client, if the client is informed of that fact and consents, and if the arrangement does not compromise the lawyer's duty of loyalty to the client. Your loyalty to a client is impaired you have other interests that render you unable to consider, recommend, or carry out an appropriate course of action for the client.

Hence, if the child is paying your fees, the senior parent must know about it and consent. Further, your attitude should be that the senior parent's interests take priority, over those of the child and over your own. You are best advised to ask the parent to pay your fees. If the parent lacks capacity to pay your fees, you have further issues to consider.

Your Role as Elder Law Attorney

Temperament

Let’s admit it: working with the elderly is a hard job. There are distinctive joys to this practice – hearing stories about old times, repairing family rifts, enabling a client to fulfill a goal.

There are distinctive challenges as well. Even more than a traditional estate planning/probate practice, you will be working with incapacity and death. You will be working with people whose most loved family are suffering dementia, paralysis, loss of limb, Alzheimer’s.

As a practitioner, you need patience above all else. You must be willing to listen, sometimes for much longer than you want, to understand your client’s needs and desires. Patience is not only a practical mandate; the Rule of Professional Conduct seem to demand it. Rule 1.4(a) requires that "When a client's ability to make adequately considered decisions… is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client."

Training

Your legal background is most important to the services you will provide. If you have read this far, you are interested in the elderly and their needs. Here are two more suggestions:

  • Join the National Academy of Elder Law Attorneys. The Academy is based in Tucson. It has annual conferences, semi-annual meetings and is full of helpful attorneys. NAELA hosts a web-based discussion group in which you can field questions and keep up with law changes. Its website is at www.NAELA.org.
  • Get some medical training. I took a yearlong course offered at the Geriatric Education Center at UT Health Science Center in San Antonio. It met weekly, and exposed me to geriatric medicine. You may be able to attend a continuing legal education program that includes medical topics (which may be marketed to our personal injury colleagues), or do some reading on geriatric illness and disease. Visit the Alzheimer’s Association and ask for brochures on the disease – online, you can find them at www.alz.org. Attend some family support meetings; in general, get to know the problems your clients are facing.

Connections

The training suggestions above will start to medical and social workers. Elder law is a service-oriented practice, so be ready to offer yourself as a volunteer. Suggestions:

  • Ask the Bar Association if it is sponsoring a referral program for elderly clients. The South Dakota Bar Association website already contains consumer materials and pamphlets on Health Care Decisions and on The Law and the Elderly. Pro bono services are a very good foot in the door.
  • The South Dakota Department of Social Services has an Office of Adult Services and Aging. It is partially funded under the Older Americans Act, and has volunteer opportunities. It also maintains contracts with several legal service providers throughout the state.
  • Offer yourself as an ad litem in Guardianship matters. There may be a need for concerned attorneys who can represent a proposed Ward. Get on a list with the courts.

Facilities

Your office should be easily reached. Seniors just detest having to travel long distances, then pay for parking, ride an elevator and search for your office. Make it easy to find, and be sure to pay for their parking. If your office is not in a commercial area, you must still be sure it is well marked and can be found easily.

Your office must be handicap accessible. The hallway and doors must be wide enough to accommodate a wheelchair. You will see clients who use "walkers", and cannot navigate stairs. Moreover, the restroom must have rails to assist the user.

Your reception room should offer several solid, stiff backed chairs that do not "sink in" when occupied. Many elderly clients have trouble getting up from soft chairs. Your interview area should have solid chairs with armrests, and they should be on wheels to allow easy movement.

Keep the interview room quiet. Your clients may be hearing impaired, and background music, beeps, buzzes and whirls may interfere with communication.

The Law and Your Legal Experience

Family Conflicts

As an Elder Law practitioner, you may not do much divorce work. This group of clients has typically made their marriages last 40 years or more, and are not eager to change. But you will work with second families – where a spouse has died, and the survivor remarries. You must be aware of the statutory provisions on premarital agreements.

If you handle a divorce, it may be a last effort to qualify a client for Medicaid benefits. Be aware that issues of competence will arise, and that you should not represent both spouses.

Grandparent’s rights are also an issue for the more "family law" oriented Elder Law practice. The US Supreme Court has heard arguments in the matter of Troxel v. Granville, with grandparent visitation rights at issue. A decision is expected in the summer of 2000.

Wills and Trusts

Traditional estate planning is definitely part of your Elder Law practice. But you must go beyond the obvious. Sure, writing a Will may be the cookie-cutter answer when someone wants to make testamentary plans. But is it the most efficient method? Perhaps a client will be better served with a living trust. Perhaps you need to suggest right of survivorship arrangements and review their current bank account structure.

While most seniors will tell you that avoiding probate is high on their wish list, they often fail to understand the what’s and why’s of probate. You need to spend time educating your clients so that they can make informed choices.

Probate and Guardianship

You may spend much of your time as an Elder Law practitioner helping people avoid the worst of these two procedures. Probate, as we know, can be simplified tremendously just by having a properly drafted and executed Will. Can you go beyond this for your client?

Guardianship is a complex practice that requires every bit of an Elder Law practitioner’s skill. If you do not get a client early enough – if the client or family does not know how to avoid this complex process – then Guardianship may offer the only solution for many complex situations.

Avoiding Guardianship is an important aspect of planning for your still-competent elderly client. You must raise issues they will not want to hear: what happens to you if you have a stroke? Who will pay your bills? How will you get by? Whom do you trust? Often, drafting Powers of Attorney becomes a major focus. In addition to appointment of an agent, the durable power of attorney can include designation of a Guardian should the need later arise.

Agency Law

Become familiar with all the Powers of Attorney: financial and medical. Review the statute on Living Wills. You will be counseling both the elderly when they preplan their medical care, and counseling the family in time of crisis. You will find that the medial community is not well versed on your client’s right to refuse medical treatment, so you will need to be their shield – even when the decision, in keeping with the law, allows the client to die naturally. Be aware of specialized powers of attorney, like the Power of Attorney for Mental Health Treatment.

Long Term Care and Government Entitlements

This area changes regularly, and attendance at seminars to stay up-dated is important. This area calls for creativity, seeing beyond the solutions that the client sees for him/herself, and may draw on many of your legal skills. As with many public benefit programs, the regulations are voluminous and confusing. But they address an issue vital to your elderly client: how can I pay for a nursing home if I run out of money?

You may be called on to assist an elderly client with Landlord-Tenant issues, Personal Injury issues, Tax issues, Life Insurance and financial planning, and consumer fraud issues. You may begin to see the need to limit your practice to a few select areas, and to hone your skills and knowledge in those areas. Cooperation with other Elder Law practitioners is often vital – another attorney may be able to handle a suit against a nursing home, while you handle a Will or a Guardianship.

Elder Law is a rewarding practice that should be growing in importance as the population ages. As the adage goes, it gives you a chance "to do well while doing good."