From Of Counsel, vol 42; issue 4. © CCH Incorporated. All Rights Reserved.
A Confluence of Factors Keep Elder Law Attorneys Hopping
While the legal profession has experienced a demand boost in many areas of the law, perhaps none has grown as consistently and substantially as elder law. Of course, much of this uptick can be traced to sheer demographics.
That is, the graying of the Baby Boomers contributes the most to this growth, and many of those from the Woodstock generation seek out different living arrangements.
“Clients, as they age, are downsizing and transitioning more frequently into senior communities to age in place or they need to explore assisted living options,” says Kimberlie Fiero, a partner at New Jersey-based Timothy Rice Estate and Elder Law Firm, which also serves clients in eastern Pennsylvania. “This creates a need for detailed estate and elder law plans.”
Like many attorneys, elder law attorneys and trusts and estates practitioners expected a dropoff iin demand three years ago when COVID took hold, a slowdown during the lockdown, if you will. But that wasn’t the case at all. “The pandemic caused clients to focus on getting their affairs in order, think about mortality, and revisit their current estate plans,” says Laura Jeltema, a T&E partner at Michigan-based Warner Norcross + Judd. “From the beginning of the pandemic until today, we’ve been very busy, working with both new and existing clients in reviewing their plans.”
Dana Walsh, senior counsel at Sivak Falcon Rappaport & Berkman in Rockville Centre, NY, concurs that since March 2020 many people who had been putting off such planning stopped procrastinating, which was one of the reasons her practice has kept active over the last three years. “The pandemic definitely brought the thought of ‘finally getting around to their estate planning’ to the forefront of their minds for a lot of people,” she
That seems to be the norm for many such attorneys. When asked what’s driving his and his team’s practice, Timothy Takacs of Takacs McGinnis Elder Care Law, just outside of Nashville, agrees this component of elder law practice is trending. He says he and his colleagues are very active in providing services to clients, especially in estate planning “with a focus on probate avoidance and asset protection.”
Area of Constant Changes
Another factor fueling the growth is the ever-changing regulatory framework, requiring elder law attorneys to closely monitor what lawmakers in their states and in Washington are doing.
This and other dynamics make the elder law arena very fluid and keep attorneys on their toes as they’re constantly learning new lessons and adapting to changes to stay current, according to Walsh.
“The laws change … [so] we are all constantly pivoting to help our clients avoid potential pitfalls,” she says, “and take advantage of opportunities to better their positions and their future options while they can.
It requires so much ongoing professional development to make sure you’re on top of your game, and able to meet your clients’ needs.”
Other developments also add challenges to elder lawyers’ workloads. The rise of the nontraditional family increases the complexity of their counseling; more of the nation’s elderly are subject to financial abuse; and there’s been a hike in litigation in this area.
“Our practice is experiencing an increase in all areas of elder law,” says Jennifer Cona, founder and managing partner of Cona Elder Law in Melville, NY. “We are fortunate to provide the full spectrum of elder law and estate planning services and [particularly] have seen an uptick in asset protection planning, estate administration, and litigation.”
When disputes do arise, elder law cases involve many issues and can drag on for quite some time. “When [elder care] facilities prove to be bad-faith actors and we must defend our clients, litigation can be lengthy,” Fiero says.
The “Aunt Sally Crisis”
At Chattanooga-based Chambliss Law, Dana Perry has more than 30 years’ experience helping individuals and families secure their futures and protect their assets, among other elder law-related services. She says one of the approaches she takes is to convince people to prepare for changes before the arrival of their Golden Years and avoid “crisis planning,” which often falls on older Americans’ children when their parents weren’t pro-active.
Consider this scenario that Perry presents. A beloved nephew visits his aunt, who lives alone, as she recovers in the hospital from a stroke or hip fracture or other serious condition. It’s often left to him to scramble through this crisis and so he contacts Perry. “The call comes in,” she says, “and he tells me, ‘I need to help Aunt Sally, and I don’t know about her assets, don’t know if she has insurance. She’s going to be discharged from the hospital and I don’t have any place to put her.’”
Perry talks about this kind of situation to prospective clients. “The way I describe it when I try to get people in their 60s and early 70s to do comprehensive planning is how tough it is when you’re in that Aunt Sally crisis planning mode,” she says. “A lot of time they go to the house find whatever documents they can find, put them in a box, and bring the box over to my office, where we’ll spend hours going over everything and trying to figure out what in the heck is going on. Are we going to need to go to court because there aren’t any legal documents about who’s supposed to make decisions?”
Sometimes this and other such crises prompt elder law attorneys to go the extra mile. All too often, older people have little to no family to help them with many aspects of living, including overseeing the care they receive. “To protect my clients,” Fiero says, “I have [sometimes] assumed guardianship status and, in some cases, serve as power-of attorney and primary contact for their medical care. It’s a joy and privilege, and why I have focused in this hands-on area of the law.”
Guardianship presents many issues, often rising to a level of calamity, frequently requiring attorneys to deal with contentious situations. “When a guardianship case comes up, it’s usually already an emergency, and a family is in crisis,” Walsh says. “You sometimes have to drop everything else you had on your plate to jump all the way into that matter or it can go fully off the rails. These cases are always so emotionally fraught for the clients because the parties often both believe they are doing the right
thing for mom or dad.”
An Array of Roles
It seems these lawyers take on many roles outside the legal dimensions of their job. “It sometimes feels like an elder law attorney has to be an attorney, a social worker, a therapist, a mediator, an accountant, a teacher, and a health care professional all at once,” Walsh says. “It can be a lot of pressure, but most of that pressure is self-imposed, because when you pursue a career in elder law, it’s often because you really want to help people. And, you know that the work you do will impact the day-to-day lives of your clients in such a significant way.”
While all good lawyers need to ask the right questions of their clients and then listen closely to their answers, Jeltema says that attorneys serving older clients need to be especially excellent listeners and be more than willing to learn about their lives. “It’s a very personal practice,” she says. “You’re often acting as a family counselor and sometimes mediating delicate even heated emotional conversations [among family members].”
Additionally this “personal practice” might mean meeting clients where they live, literally, because of older clients’ communication preferences or mobility issues. “Sometimes they prefer in-person meetings,” Jeltema adds. “Some clients have mobility difficulties, and many documents in this area of law need to be signed in person with witnesses. So sometimes we go to their homes.”
Another role these attorneys perform appears to be that of a “fixer.” “Elder Law is constantly changing and our attorneys practice only in this field, day in and day out, and are on top of all the legislative changes; we don’t dabble,” Cona says. “Too often, we are asked to fix a problem started by another attorney unfamiliar with or inexperienced in this area of the law.”
—Steven T. Taylor