According to a 2016 report published by the U.S. Department of Health and Human Services’ Administration on Aging, nearly 15 percent of the population is comprised of Americans ages 65 and over. The number of older Americans drastically increased in just ten years, rising 30 percent from 36.6 million in 2005, to 47.8 million in 2015.
Today, approximately one in seven people is an elder. As the baby boomer generation continues to gray, this growing trend is expected to continue with a drastic increase in the coming years. Some figures project this population to reach approximately 98 million by 2060.
Aging brings on a new set of legal and quasi-legal concerns that are specific to older Americans. Because it concerns a diverse group of people — from a 65-year-old long distance runner to a 92-year-old patient in a nursing home — elder law practice covers an equally broad number of topics including:
- Medicare or Medicaid Claims and Appeals
- Social Security or Disability Claims and Appeals
- Long-Term Health Insurance Issues
- Disability Planning (to establish a plan in the event of incompetency or incapacity)
- Conservatorships and Guardianships
- Retirement Planning
- Placement of Clients in Nursing Homes or Assisted Living Communities
- Elder Abuse
- Age Discrimination by Employers
- Health or Mental Health Concerns
Because elder law is truly a multifaceted practice area, education on a variety of topics is absolutely essential. Thankfully, there are numerous practice tools available for those deciding to become an elder law attorney, and to keep elder law practitioners up to speed. The American Bar Association’s Commission on Law and Aging has a good selection of publications addressing the legal issues that face the elderly.
Twice a year, the University of Illinois College of Law publishes The Elder Law Journal, the nation’s only scholarly journal dedicated to elder law topics. The journal touches on a wide range of developing topics in the practice area, such as the increased occurrence of financial exploitation against elders in the digital age.
Many legal publishers also produce materials specific to the practice of elder law. Most state bar associations have sections for elder law and provide continuing legal education opportunities to tackle emerging concerns in the field.
A number of other valuable elder law resources can be found online. ElderCounsel members have access to dynamic document software, educational webinars and free continuing legal education courses, an active online community with a discussion group and listserv, and a variety of useful marketing tools. Other educational opportunities are provided by the National Academy of Elder Law Attorneys (NAELA), which is actively involved in analysis of federal regulations and legislative changes that may be of concern to older Americans, as well as Krause Financial Services.
NAELA’s affiliate, the National Elder Law Foundation (NELF), is the only nationwide organization approved by the American Bar Association to certify practitioners of elder and special needs law. Elder care attorneys must meet rigorous practice standards and pass a written exam to receive certification. Presently, there are nearly 500 NELF certified elder law attorneys. All of ElderCounsel’s partners are NAELA members and have served on its board at one time or another.
There are countless non-legal resources that could prove useful to both lawyers and the general public. The Alzheimer’s Association’s Caregiver Center, for example, is filled with information that can help attorneys understand the special needs of Alzheimer’s patients and their families. Because the disease is progressive, a basic knowledge of the characteristics of each stage could be useful in determining a client’s competency.
The National Center for Elder Abuse “provides the latest information regarding research, training, best practices, news, and resources on elder abuse, neglect, and exploitation to professionals and the public.” Likewise, the Center for Medicare Advocacy is a nonprofit, nonpartisan organization that provides education, advocacy, and legal assistance for elderly and disabled persons with the goal of obtaining fair access to Medicare and quality healthcare services.
More generally, The American Association of Retired Persons (AARP), the foremost representative of older Americans, provides clear, thoughtful insight into the ever-evolving needs of the elder community. This is by no means an exhaustive list of the non-legal resources available to practitioners; rather, these organizations are just a small sampling of the resources freely available online.
Because elder law is still a developing practice area, it is not uncommon for people, attorneys included, to have a few misconceptions about its function and utility. With the wealth of resources readily available to today’s elder law community, elder law matters need not feel intimidating or overly vague.
Rewards of Practicing Elder Law
Like the older American population, the field of elder law is growing swiftly. For the firm already engaged in estate planning and asset protection, elder law planning is a natural addition that works toward the goal of providing a comprehensive, proactive plan for a client’s future. Other firms may take a more niched approach, selecting only one or two areas of elder law planning in which to specialize.
For example, an attorney interested in drafting revocable, irrevocable, or charitable trusts for elderly clients could partner that with trust administration and the litigation of trust matters. Another attorney might be more interested in the care of older Americans, focusing instead on guardianship and conservation, the protection of dependent adults, and litigation against facilities where the elderly have been injured or abused. A third might be interested in the way that Social Security benefits and Medicaid planning strategies affect a client’s medical planning.
Whatever the case, attorneys working with older Americans should expect to have a lengthy relationship with their clients. Thanks to medical advancements and ever-increasing life expectancies, the average person is expected to live another 20 years after reaching the age of 65. The dynamic nature of the issues surrounding elder law, particularly legislative changes to government programs, increases the need of a longstanding attorney-client relationship. As the law changes, so must the client’s plan.
Ultimately, elder law aspires to address the needs of an elderly client in a way that safeguards the client’s autonomy, safety, and well-being, regardless of the attorney’s specific focus. Elder law issues encompass a vast range of emotional, practical, and legal considerations, arguably more than any other practice area. For attorneys who relish their role as counselors, this creates an opportunity to show compassion for the needs of clients and their families. More often than not, these interactions result in the development of strong interpersonal relationships with clients, their families, and, in some cases, care providers. This also applies to those attorneys who are deciding to become a special needs attorney.
David Harowitz is an estate planning attorney in Tempe, Arizona, who has been practicing for 35 years. He says getting into elder law has been extremely rewarding because it allows him to better serve his existing client base, without having to refer them out to another practice.
“What I learned is that very few attorneys really knew what they were doing in elder law. I started looking for a way to be able to take care of my clients as they needed to be taken care of.
“I found that the needs for the elder law areas for clients are great and that it’s just a natural part of estate planning. This is just another area where we protect people’s estates and take care of them in their later years.”
Developing an Attorney-Client Relationship
The most successful elder care attorneys are mindful that older Americans, or clients with special needs, may have very different needs than younger clients. Accessibility is at the heart of an elder law practice. Attorneys in elder law and those deciding to become a special needs attorney, must be prepared to meet clients where they are. Many attorneys visit clients at home, in hospitals or nursing homes, or in assisted living facilities. Even if a client is able to meet at an attorney’s office, the client may need special accommodations such as wheelchair accessibility and handicapped parking.
During elder law attorney training, an elder care attorney will learn that a little extra consideration goes a long way toward fostering a positive relationship with their clients. When meeting with elder clients, slow down and allow the client plenty of time to express his or her thoughts. Even the sharpest client may become confused and a little frustrated when new information is presented too quickly, especially if it is particularly nuanced.
Whenever possible, allow clients time to review questions in writing well in advance of a scheduled meeting. This allows clients plenty of time to consider their answers and find any relevant documentation. Most clients, particularly those with failing eyesight, will benefit if these questions and legal documents are made available in large type. Attorneys should speak clearly and enunciate their words, but should not raise their voices unless asked. To avoid frustration for the client who is hard of hearing, background noise should be kept to a minimum or, if possible, eliminated entirely. Even furniture selection could play a role in a client’s comfort. A sturdy chair with armrests, for example, can help an elder client rise to her feet more easily.
If an elderly client has no prior experience working with an attorney, she may be unsure about the way things work. The initial consultation — which can be with either the attorney, a paralegal, or another trusted staff member — provides an excellent opportunity to explain to the client how their relationship will unfold and set expectations going forward. Important details include an estimate of time the average meeting will take, what will happen next, and how frequently meetings will occur. An explanation of the confidential nature of the attorney-client relationship can be particularly useful in encouraging clients to be entirely forthcoming about potentially sensitive topics.
Elder law clients may also benefit from assurance that the attorney will not divulge any information without the client’s consent, especially if family members are pressuring the client to take a particular course of action and the client fears the loss of her independence. Ensuring that the client is well informed inspires confidence in the attorney and fosters a better understanding of the process.
No matter how slowly the conversation progresses, she will appreciate her attorney’s undivided attention. Listen carefully, maintain eye contact, and paraphrase your client’s information to confirm that you have a clear understanding of what she is trying to communicate. In addition to being mannerly, an attentive attorney is poised to address confusion in an elder client. Sometimes, the confusion is merely temporary and can be remedied with clarification. Other times, it may indicate a need for a referral to a professional in a complementary field — a mental health professional, for example — for further advice.
Remember, the initial consultation could mark the beginning of a lengthy professional relationship. A client who feels respected and valued by her attorney could generate repeat business and provide word-of-mouth referrals for a firm for years to come.
Because older Americans comprise such a diverse group and many potential clients may have limited income, quoting fees during an initial consultation may present something of an internal struggle. Some attorneys compare their fees with the hourly rates of similar firms in the geographic area and charge accordingly. As legal document preparers, other firms offer flat fees for straightforward, commonly used documents — basic living trusts for couples with pour-over wills, healthcare directives, powers of attorney, and documents securing the transfer of real property, just to name a few — while other, more specialized documents may be billed on an hourly basis.
Because elder clients may have lots of general questions or just need to talk, some firms employ legal assistants or interns who can facilitate client communications and determine whether a discussion with an attorney would be necessary. These conversations with support staff, if billed, are usually given a reduced rate.
No matter how a firm structures its fees, attorneys must be mindful of their clients’ needs and personal situation. While elder law attorneys should not expect to make Wall Street salaries, do not be discouraged. The specialty is still quite lucrative, in no small part because of the number of potential clients. Remember, only a few people know someone with a multimillion dollar estate, but everyone knows someone who is advancing in age.
Services Your Firm May Offer
Because elder law spans such a varied group of interests, a practitioner should have considerable knowledge in those areas with which older Americans are primarily concerned. These include, but are not limited to, estate planning, powers of attorney, guardianship/conservatorship and administration, assisted living community contracts and disputes, nursing home care, pension entitlements, reverse mortgages, elder abuse, age discrimination, medicaid planning strategies and government benefits and services.
According to a 2014 Bankrate survey, 33 percent of people ages 30 to 49 have not begun to save for retirement. Perhaps more alarmingly, that figure still hovers around 24 percent for people ages 50 to 64. Of those who have started to set aside retirement funds, many still have not accumulated very much. Many of those people believe that they will continue working their entire lives and, therefore, have no reason to set aside funds they could be using now. This lack of foresight could spell trouble in the unfortunate event of job loss or serious injury.
A proactive plan can prepare potential clients for the future, ensuring they have enough to cover periods of joblessness or the cost of long term care after retirement.
As they age, Americans are increasingly aware of their own mortality. Many older Americans begin to worry about providing for their spouses and other family members after they pass on. They may also require information or assistance with proactive planning. In these respects, the elder law attorney very closely resembles an estate planning attorney; sometimes, they are one and the same. After the initial interview, an attorney can assess the client’s objectives in terms of estate distribution and employ various techniques to ensure that the client’s estate is handled smoothly after death.
Currently, government entitlement programs finance a significant portion of healthcare expenditures made by older Americans. These resources are limited and the drastic increase in the older American population in coming years will undoubtedly place more strain on an already burdened system. As such, obtaining the requisite approvals to qualify for government programs can be quite difficult and many clients will benefit from an attorney who is willing to walk them through the process.
Integrating Elder Law into Your Practice
Adding elder law to an existing practice doesn’t have to be difficult. ElderCounsel provides a number of elder law resources that can help you get started. These resources go far beyond attorney software and basic elder law information. ElderCounsel include a step-by-step guide, complete with a sample script, that helps attorneys speak with new or existing clients about the advantages of planning well in advance of a medical crisis, and numerous free webinars on topics of interest. Other members-only features include a self-guided program designed to get your elder law practice off the ground successfully, practice management assistance, dynamic document generation software, and guides to tricky subjects such as Medicaid and veterans pension planning.
Personal Goals Contribute to Professional Success
ElderCounsel offers its members a unique support system designed to make a new elder law practice successful and profitable as quickly as possible. Members also have access to coaching by Certified Atticus Practice Advisor, Steve Riley, whose aim is to help attorneys in firms of all sizes better serve their clients so they can increase their profitability, while also decreasing stress and improving the overall quality of their lives. Whether deciding to become an elder law attorney, deciding to become a special needs planning attorney — or both — there are an abundance of resources and support available to you.
Effective Marketing Strategies
In today’s competitive landscape, marketing for attorneys can be a challenge. To that end, they need a solid marketing plan to draw the interest of prospective clients. This is especially true when a practice expands its reach to a new demographic. For elder law attorneys, much of that plan will consist of community-level outreach at senior living facilities and with elder-focused service providers. Whatever you do, remember that successful advertising campaigns are repetitive, sustained, and consistent over time.
Though a significant number of older Americans have a limited to nonexistent online presence, at least some of their younger family members are likely to be internet savvy. Today, many potential clients make their way to an attorney by way of a quick Google search. A firm without a professional-looking, well maintained website is missing out on an easy opportunity to reach a child or grandchild who might be concerned for the wellbeing of an older relative.
If there is already a website in place, updating the list of practice areas and providing some informational blog posts on elder law topics are good ways to alert current and potential clients to the firm’s new service offerings. A presence on social media platforms such as Facebook, Pinterest or Twitter could also be beneficial in that they give attorneys the opportunity to generate more traffic to their websites by sharing those blog posts with the general public.
Even in the midst of an increasingly digital age, print media has its advantages. Statistics show that approximately 67 percent of Americans still read daily newspapers, whether in print or online. People aged 50 and over comprise approximately 60 percent of printed newspaper readership; of those readers, 80 percent are ages 65 or older. Attorneys can put this dedicated readership to good use by running a print advertisement campaign in local newspapers and periodicals, or by publishing special-interest articles on elder law topics. In some areas, church bulletins may also present an effective advertising opportunity.
Many towns across the U.S. have at least one social organization that caters to people of retirement age. Get in touch with group organizers in your area to find out whether they might be interested in hosting a community seminar, or a series of seminars.
These presentations provide an opportunity to educate potential clients about the importance of things like planning for medical emergencies, starting a retirement fund, or establishing medical directives. Provide informational handouts, complete with your firm’s contact information, noting key points from your presentation. These and other informational handouts can be disseminated in places older Americans regularly frequent — hospitals, senior care facilities, community centers — and posted in PDF format on the firm’s website.
Attorneys can maintain contact with seminar attendees, website visitors, and existing clients through use of a periodic newsletter. Many firms employ digital software to create a professional-looking email publication, and elder law practitioners can take that one step further by offering a printed version for their elder clients.
The best newsletters are written in the attorney’s voice and tailored to state-specific concerns. Some firms may also organize newsletters by topic, particularly when multiple areas of practice are conducted under the same roof. These newsletters also make great additions to your website archives.
Over time, an attorney may establish sufficient community contacts with other elder care providers — accountants, geriatric care providers, social workers, insurance agents, and medical professionals — and receive referrals as a result of that professional relationship. To encourage future recommendations, every referral should be acknowledged. Most of the time, a phone call or thank-you note is sufficient, but more tangible rewards such as gift baskets or certificates are generally well received.
ElderCounsel’s LAB Services can help you implement these and other marketing strategies to build your elder law practice into a profitable venture.
Take the First Step
With numerous resources at your fingertips, finding success in elder law may not be as difficult as you think. Make a plan and break each goal into smaller, more manageable parts. What can you accomplish today? This week? This month? Before long, all of these small steps come together to have a big impact. Now is the time to take the first step. Let ElderCounsel’s Elder Law CLE opportunities like Elder Law Immersion Camps and Membership Program help you make it with confidence.