Elder Law is a rapidly growing area in the practice of law. As America ages, and the "baby boomers" begin to retire within the next few years, there will be an even greater demand for attorneys who understand the law and regulations, both federal and state, that affect elderly persons.
Elder Law encompasses many different fields of law. The National Academy of Elder Law Attorneys lists some of these:
- Preservation/transfer of assets seeking to avoid spousal impoverishment when a spouse enters a nursing home
- 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
- 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 or she practices Elder Law, find out which of these matters he or 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.
Unfortunately, there are some attorneys who hold themselves out as "elder law attorneys" but who have little or no experience in this area of practice. They recognize that the aging of America represents a business opportunity for them and they hope to "cash in." (This is not limited to lawyers, by the way. Financial planners, insurance agents, accountants, and bankers, to name just a few other occupations, have been known to do the same thing.) For that reason, you will want to be particularly careful in narrowing down your selection of an elder law attorney.
If you don't already have a list of prospective lawyers, a great place to start your search is right here at lawyers.com. You can do a free search to come up with a list of lawyers by using the Find A Lawyer search box that can be accessed from anywhere on lawyers.com. (You should see a search box on the right side of your computer screen.)
Once you have a list of lawyers, use the following guidelines to do some initial screening and narrow your list down to three or four prospective candidates:
- Look at biographical information, including whatever you can find on Web sites for the lawyers and their law firms. Do they appear to have expertise in the area of elder law that you need? Do they have any information on their Web sites that is helpful to you?
- Use search engines to surf the Web. Do searches under the name of the lawyer and his or her law firm. Can you find any articles, FAQ's or other informational pieces that the lawyer has done that that give you a level of comfort?
- Ask other people if they have heard of the attorneys and what they think about them.
- Contact your state bar association or visit the bar association's Web site to find out if the lawyer is in good standing.
- Is the lawyer certified as a specialist in your state? Bear in mind, however, that not every state certifies specialists in elder law.
- Check the membership directory of the National Academy of Elder Law Attorneys on the Web. Is the lawyer listed? If so, does he or she have the designation "Certified Elder Law Attorney" (abbreviated as "CELA")?
- Check out the yellow pages of your telephone directory. Does the lawyer advertise? If so, do you find it compelling? Helpful? Tasteful?
- Consider any special needs you have. For example, could you benefit from an attorney who speaks a language other than English?
You shouldn't necessarily cross a lawyer off your list just because he or she didn't have the time to meet with you on short notice. Nor should you expect to be able to discuss your matter on the telephone with the lawyer. Good lawyers are busy so they may not be able to spend as much time as they would like with prospective clients. You should also anticipate that whomever you hire may have to delegate a lot of responsibility to his or her staff. In turn, an important consideration should be to assess the way the lawyer's staff treats you since they are a reflection of how the lawyer practices. At a minimum, you should expect to be treated courteously and professionally both by the staff and by the lawyer.
You should be prepared to pay a fee to meet the lawyer. Elder law attorneys seldom take cases on contingency fee or do not charge for the first meeting. When you make the appointment, you should ask what the fee for the first meeting will be.
You will probably want to hire a lawyer with at least a few years of experience. However, experience does not a good lawyer make. Every practicing attorney knows other lawyers that he or she would not hire.
Unless there are special circumstances, you will want to hire a lawyer with a local office.
Before you hire a lawyer, ask for references. You want to talk to people who could comment on the lawyer's skills and trustworthiness. Ask if it is okay to talk to some of the lawyer's representative clients.
Ask for a copy of a firm brochure and promotional materials. Crosscheck these materials against other sources and references.
Ask to be provided with a copy of the lawyer's retainer agreement and have it explained to you before decide on retaining the lawyer or the lawyer's law firm. You may end up paying a lot of money to the lawyer who you retain so make sure you understand what you are signing up for.
Use your common sense and gut instincts to evaluate the remaining lawyers on your list. You'll want to be comfortable with the lawyer you hire. You want to choose the best lawyer who you think will do the best job for you. Start making some telephone calls.