The elder and special needs law attorney:
The elder law and special needs law attorney must be educated in the practice of elder and special needs law by attending professional education seminars, studying written materials or associating with an attorney who has established his or her competence in the field, and the attorney must continually ensure that he or she has the legal knowledge, skill, thoroughness and preparation necessary to practice in this area of law and to hold himself or herself out as an elder law and special needs planning attorney.
Elder law and special needs law issues are often complex and may involve multiple areas of the law. The elder law and special needs law attorney must recognize and understand these various legal issues that often impact the representation. For example, if a client wishes to transfer his house to his children, the attorney should recognize that this transaction may require the application of several areas of the law, including real property, tax, Medicaid and estate planning.
The attorney should be candid with the client regarding the attorney's level of competence and any need for additional research and preparation in order to ensure that the attorney can accomplish the agreed-upon representation. If there is an area of law in which the attorney lacks the requisite knowledge and skill, the attorney should associate with, co-counsel or refer the client to a competent attorney in that area.
The elder law and special needs law attorney recognizes that there is no “one size fits all” approach to this area of practice and, as a result, when using forms, customizes them as needed to meet each client’s individual circumstances. Improper use of standard forms may result in violations of state professional responsibility rules and may harm the client’s legal and financial interests. The elder law and special needs law attorney identifies the unique needs of each client and prepares documents and plans tailored to those specific needs. Many elder law and special needs law issues require expertise in technical and complex areas of law, such as special needs trusts, public benefits, and taxation.
Example: Attorney has practiced law for 8 years and elder law for the past 2 years, during which he prepared special needs trusts for four different clients. He left three other special needs trusts unfinished for more than 8 months although his flat fees were paid in advance.
While attorney kept up with continuing legal education courses, none of them were on special needs trusts. He learned about special needs trusts by searching the Internet and found a special needs trust form in a trust book in the local court law library and therefore saw no need to call one of the well-known special needs trust experts in his area. The form that attorney used to write special needs trusts was titled “The John Doe Irrevocable Special Needs Trust with d4A language, including mandatory payback”.
Attorney used the form in two special needs trusts that were included in wills as testamentary trusts, in one special needs trust that was a third-party intervivos trust and in one special needs trust that had a beneficiary over the age of sixty-five. In each case, attorney required that another attorney in the firm be named trustee, contending that no family members or individuals were qualified to be trustee and that banking and financial trustees would be too
After the documents were signed, neither attorney nor the attorney acting as trustee provided the clients with further instructions or informed the state Medicaid office or the Social Security Administration when necessary.
Elder law and special needs law attorneys often move beyond basic services and documents that serve their clients. An example is the beneficial and sometimes integral use of the special needs trust for many of those clients. Before any lawyer attempts to draft a complex special needs trust, he or she must possess the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. While standards of practice setting a threshold of competence for those holding themselves out as special needs trust practitioners have yet to be developed, lawyers should measure their ability to be special needs trust practitioners against such basic criteria (see NAELA Journal, Volume 1 No. 1, at 65-66 Revised ABA Model Rules of Professional Conduct Applied in Elder Law: The Basics Framed in Core Values Get Complicated Fast – MRPC 1.0–1.6 by A. Frank Johns, CELA ).
The elder law and special needs law attorney manages his or her caseload to ensure that all clients are assisted in a timely manner. This includes promptly addressing the issues of each case as well as only undertaking new cases the attorney knows he or she has the time to handle.
The issues inherent in many elder law and special needs law cases make reasonable diligence an especially important consideration for the elder law and special needs law attorney. For example, if the attorney is approached by a potential client who wishes to immediately change his or her estate plan because death is imminent, the attorney should take the case only if the attorney knows he or she can expediently assist the client without affecting the attorney’s other cases. The elder law and special needs law attorney should be mindful that the client’s interests often can be adversely affected by the passage of time or a change of conditions. Similarly, the elder law and special needs law attorney must be ready to respond quickly when requested to assist with the drafting of a first-party trust to receive a settlement from another action when the money is already in the interest on lawyer trust account (IOLTA).
The elder law and special needs law attorney should maintain competence by keeping up to date with changes in the laws and practices that affect the attorney’s clients and should regularly seek opportunities for continuing education. The attorney should aspire not only to grow in knowledge of the law but also to improve and enhance his or her understanding of the client’s unique needs and the skills needed to meet them.
For example, the elder law and special needs law attorney should consider attending continuing education seminars, studying online, and reading written materials on subjects affecting elderly individuals and individuals with special needs such as health, social science, gerontology, public policy, and disability advocacy. Networking with colleagues also offers informal but essential continuing education.
Attending seminars conducted by a variety of professionals who assist elderly individuals and individuals with special needs enhance the holistic approach to the practice of elder law and special needs law. (See Standard A. Holistic Approach). Programs given by legal and non-legal organizations help the elder law and special needs law attorney better understand the issues faced by elderly clients and clients with special needs and attain the skills needed to serve those clients.
To stay current, the attorney should incorporate relevant technology into his or her practice. Appropriate safeguards should be instituted to protect against disclosure of confidential information.
The elder law and special needs law attorney must train and supervise all staff members to ensure that the client receives competent and diligent representation at all times. The staff members should be educated and appropriately trained to assist clients facing the challenges and needs unique to elderly individuals and individuals with special needs. The attorney should provide staff members with appropriate instruction and supervision concerning ethical aspects of their work and the application of these Standards. Such training can be done by in-house staff or through invited speakers or professional education seminars. In all instances, the attorney should supervise and retain responsibility for the work of his or her staff. The procedures to supervise non-lawyers should take into account the fact that they do not have legal training and are not subject to professional discipline.
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