What Is Elder and Special Needs Law?
Legal issues that affect older adults and people with disabilities are growing in number. Our laws and regulations are becoming more complex, and each state has different laws. Actions taken with regard to a single matter may have unintended legal effects.
It is important for attorneys working with older adults, people with disabilities, and their loved ones to have a broad understanding of the laws that may have an impact on a given situation to avoid future problems. Elder and special needs law encompasses many different fields of law. Some of these include:
- Preservation/transfer of assets seeking to avoid spousal impoverishment when one spouse enters a nursing home
- Medicare claims and appeals
- Social Security and disability claims and appeals
- Supplemental and long-term health insurance issues
- Tax planning
- 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
- Access to health care in a managed care environment
- 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
- Probate and administration of estates
- Administration and management of trusts
- 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 attorneys do not specialize in every one of these areas; therefore, when an attorney says they practice elder or special needs law, find out which of these areas the attorney handles. You will want to hire an attorney who regularly handles areas of law related to your particular case, while knowing enough about the other areas of law to question whether actions being taken may be affected by them. For example, if you are going to rewrite your will and your spouse is ill, the attorney needs to know enough about Medicaid to know whether there are legal issues regarding your spouse’s inheritance.
Attorneys who primarily work with older adults and people with disabilities understand the complex financial and social decisions their clients face. Elder and special needs law attorneys bring knowledge and experience to their practice that allow them to ignore the myths relating to aging, disability, and competence. At the same time, they will take into account and empathize with some of the true physical and mental difficulties that often accompany aging and disability. They are tied into a formal or informal system of social workers, geriatric care managers, psychologists, and other professionals who may be of assistance to you or your loved one.
Finding an Elder or Special Needs Law Attorney
Your first question may be: How do I find an elder or special needs law attorney? Before making the effort, step back a moment and try to determine whether you actually have a legal problem in which an attorney needs to be involved. If you’re not sure, ask your clergy, your financial advisor, a social worker, or a trusted friend to help you decide whether this is a legal issue rather than a medical or a social services issue. Legal expertise is expensive, and it serves you well to know that you actually need legal assistance before seeking an attorney.
There are many places to find an attorney in your city or state who specializes in working with the problems facing people as they age and people with disabilities. Check with local agencies to obtain good quality local referrals. Some of the groups you may want to contact include:
- AARP
- Adult Children of Aging Parents
- Alzheimer’s Association
- Your area agency (or council) on aging
- Hospital or nursing home social services
- National Academy of Elder Law Attorneys
- National Consumer Voice for Quality Long-Term Care
- Social Security Administration
- State or local bar association
- Support groups for specific diseases
If you know any attorneys, ask them for a referral to an elder or special needs law attorney. An attorney is in a good position to know who handles such issues and whether that person is a good attorney. This often is the best and safest source of referrals.
Take the time to interview prospective attorneys. Not every attorney is right for each client. The attorney/client relationship must be built on mutual trust and understanding. Ask questions about fees and services.
Ask Questions First
Ask lots of questions before selecting an elder or special needs law attorney. You don’t want to end up in the office of an attorney who can’t help you. Start with the initial phone call. It is not unusual to speak only to a secretary, receptionist, or office manager during an initial call or before actually meeting with the attorney. If so, ask this person your questions.
- How long has the attorney been in practice?
- Does their practice emphasize a particular area of law?
- How long have they been in this field?
- What percentage of the practice is devoted to elder or special needs law?
- Is there a fee for the first consultation, and if so, how much is it?
- Given the nature of your issue, what information should you bring with you to the initial consultation?
The answers to your questions will assist you in determining whether that particular attorney has the qualifications that are important to you for a successful attorney/client relationship. If you have a specific legal issue that requires immediate attention, be sure to inform the office of this during the initial telephone conversation.
Once You Have Found an Elder or Special Needs Law Attorney
When you have found an appropriate attorney, make an appointment to see them. During the initial consultation, you will be asked to give the attorney an overview of the reason you are seeking assistance, so be sure to organize and bring all the information pertinent to your situation. After you have explained your situation, ask:
- What will it take to resolve it?
- Are there any alternate courses of action?
- What are the advantages and disadvantages of each possibility?
- How many attorneys are in the office?
- Who will handle your case?
- Has that attorney handled matters of this kind in the past?
- If a trial may be involved, does the attorney do trial work? If not, who does the trial work? If so, how many trials have they handled?
- Is that attorney a member of the local bar association, a health advocacy committee, or trust and estates committee?
- How are fees computed?
- What is the estimate of the cost to resolve your problem and how long will it take?
Discussing Fees
There are many different ways of charging fees, and each attorney will choose to work differently. Be aware of how your attorney charges. You also will want to know how often you will be billed. Some attorneys bill weekly, some bill monthly, and some bill upon completion of work. Ask about this at the initial conference, so there will be no surprises. If you don’t understand, ask again. If you need clarification, say so. It is very important that you feel comfortable in this area.
Some attorneys charge by the hour with different hourly rates for work performed by attorneys, paralegals, and secretaries. If this is the case, find out what the rates are. Other attorneys charge a flat fee for all or part of the services. This is not unusual, for example, if you are having documents prepared. Your attorney might use a combination of these billing methods.
In addition to fees, most attorneys will charge you out-of-pocket expenses. Out-of-pocket expenses typically include charges for copies, postage, messenger fees, court fees, deposition fees, long-distance telephone calls, and other such costs. Find out if there will be any other incidental costs.
The attorney may ask for a retainer. This is money paid before the attorney starts working on your case. It is usually placed in a trust account; each time the attorney bills you, they are paid out of that account. Expenses may be paid directly from the trust account. The size of the retainer may range from a small percentage of the estimated cost to the full amount. In many cases, the total fee will be higher than the retainer.
Get It in Writing
Once you decide to hire the attorney, ask that your arrangement be put in writing. This can be a letter or a formal contract. It should spell out what services the attorney will perform for you and what the fee and expense arrangement will be. Remember: Even if your agreement remains oral and is not put in writing, you have made a contract and are responsible for all charges for work done by the attorney and their staff.
Make It a Good Experience
A positive and open relationship between an attorney and a client benefits everyone. The key is communication. The communication starts with asking the kinds of questions suggested in this article. Use the answers to the questions as a guide not only to the attorney’s qualifications, but also as a way of determining whether you can comfortably work with this person. If your concerns are given short shrift, if you don’t like the answers to the questions, if you don’t like the attorney’s reaction to being asked all those questions, or if you simply do not feel relaxed with this particular person, do not hire them.
Only if you are satisfied with the attorney you have hired from the beginning will you trust them to do the best job for you. Only if you have established a relationship of open communication will you be able to resolve any difficulties that may arise between the two of you. If you take the time to make sure you are happy right at the beginning, you can make this a productive experience for both you and the attorney. You will thank yourself, and your attorney will thank you.
About the National Academy of Elder Law Attorneys
The National Academy of Elder Law Attorneys (NAELA) is the only national association of attorneys that conditions membership on a commitment to Aspirational Standards for the Practice of Elder and Special Needs Law. Understanding that older adults and people with disabilities need holistic, person-centered legal services, NAELA’s 4,000+ members represent the diversity of practice. With a network including lawyers, judges, legal professors, law students, and others, we work to advance the dignity and independence of older adults, people with disabilities, and their families.
This informational article is provided as a public service and is not intended as legal advice. Such advice should be obtained from a qualified elder or special needs law attorney.
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