Elder law. We’ve all heard the term, and many, if not most of us believe we know what it means. But, ask either a non-elder law practicing attorney, or a person from the general public and you will get a variety of answers.
According to the official National Elder Law Foundation (NELF) website (NELF.org), the definition is:
"Elder Law” is the legal practice of counseling and representing older persons and persons with special needs, and their representatives about the legal aspects of health and long-term care planning, public benefits, surrogate decision making, legal capacity, the conservation, disposition and administration of estates and the implementation of their decisions concerning such matters, giving due consideration to the applicable tax consequences of the action, or the need for more sophisticated tax expertise.”
For those unfamiliar with NELF, it is the American Bar Association-approved agency which certifies attorneys as a Certified Elder Law Attorney (CELA). (In a future column, we’ll discuss what a CELA is and how to become one.) More specifically, elder law, much like “family law,” is an umbrella term for attorneys who practice in a broad-based area of the law. According to NELF, in the case of elder law this consists of twelve different areas of practice as they relate to senior citizens and people with disabilities:
Just as with family law practitioners, it would be rare to see a single attorney who practices in all of these areas. In fact, many elder law attorneys concentrate their practices in specific areas such as estate planning, public benefits, disability and special needs planning, and protective proceedings (guardianships and conservatorships). While many attorneys practice estate planning and similar areas, elder law attorneys focus their practice on these legal specialities where they impact the elderly. (“Elderly” is a term subject to much debate. At one time it meant individuals over fifty-five years of age. One sees this in the membership criteria for the ABA Senior Lawyers Division, where membership is specifically for attorneys 62 and older. Attorneys practicing elder law may be of any age.) Today, the more common defining point is likely sixty-five years of age, as that is when federal Medicare benefits begin. As Marvin S.C. Dang, past-chair of the Senior Lawyers Division, has pointed out, “Some of the areas of practice that have traditionally been considered a part of elder law actually impact people regardless of age.” (ABA Journal, “As American’s population ages, demand for elder law attorneys grows,” Marc Davis) This is especially true in the areas of special needs planning, protective proceedings, and estate planning, where individuals of all ages may benefit from the counseling of elder law attorneys.
Within the ABA, elder law practitioners are found throughout a number of sections and other organization. The ABA Commission on Law and Aging is a long-standing Commission within the ABA which studies elder law issues and concentrates in policy areas as well as senior demographic issues. Perhaps the two largest organizations within the ABA with a significant number of elder law practitioners are the Real Property Trust and Estate Law Section and the Senior Lawyers Division, both of which have significant numbers of elder law practitioners and committees and other sub-sets specifically devoted to issues of elder law. However, other groups such as the Section of Family Law and the Solo, Small Firm and General Practice Division have some concentrations in elder law as well.
Historically, elder law as an area of practice developed out of a frustration among some lawyers who operated within in the area of Medicaid and other public benefits planning, that there was not a “place to call their own” in the more traditional Sections, Divisions, Standing Committees and other organizations within the ABA. The result of this was the creation of the National Academy of Elder Law Attorneys (NAELA) in 1987 to permit attorneys concentrating in these areas to communicate with and support the development of expertise among the members. By 1989, NAELA had more than 500 members, and it became obvious that isolated elder law practitioners around the country were interested in expanding their practice expertise in an elder law -focused organization.
As the demand for a central membership organization for elder law attorneys grew, the concept of specialization within areas of practice grew within the ABA as well. In 1993, NAELA leadership created the National Elder Law Foundation (NELF) and worked with the ABA to set standards and allow for attorneys practicing in elder law to become Certified Elder Law Attorneys. Today, there are approximately five hundred CELAs around the country. While NELF is a free-standing organization, it is the national certifying agency for CELAs.
As the demand for elder law attorneys grew, the definition of what an elder law attorney is expanded as well. In 2003, NAELA expanded its mission vision to include the provision of legal services for persons with special needs, regardless of age. Much like “family law,” elder law attorneys now tend to concentrate in just a few of the 12 areas which define elder law. This wide breadth of sub-specialties within elder law has caused some practitioners to tell non-elder law attorneys they are likely to become elder law attorneys (whether they realize it or not) simply due to aging Baby Boomers, and their impact on virtually every area of legal practice.
While Medicaid and other public benefits planning remained a major practice area within elder law, elder law expanded and attorneys began to branch out to a wide variety of areas. Increasingly common is the recognition that with the lengthening of the average American’s life span, dementia has become an issue in legal practice. To deal with this, protective planning became a significant sub-specialty within elder law. Protective planning itself is an umbrella term for court protections for individuals who have a significant diminishment in their mental capacity, or whose ability to manage their own assets has become difficult. While the precise legal terms vary from state to state, the two major areas under the protective proceedings umbrella are nationally known as “guardianship” for individuals with diminished mental or physical abilities, and “conservatorship” for individuals whose ability to manage their own assets has diminished.
With the 2008-2009 recession elder law attorneys saw a significant increase in financial abuse and exploitation of the elderly, and a corresponding increase in abuse and exploitation litigation. Today, for some elder law litigators, financial abuse and exploitation has become a major area of their practice. Due to the mobile nature of today’s society, and the dissipation of families to locations across the country, the issue of exploitation of the elderly has become a multi-state jurisdictional issue. This has led to the passage of the Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), a Uniform Law, modeled after the child custody jurisdiction act. This Act is now law in 46 states and permits a uniform way to determine the court of proper jurisdiction between the states for enforcement of guardianship and conservatorship proceedings.
Other elder law attorneys concentrate their practice in end of life issues. Whether this be counseling clients on end of life care and drafting living wills and medical powers of attorney, or dealing with assisted living, nursing homes, and hospice issues, elder law attorneys aid seniors, their adult children, and close relatives in wading through this financially and emotionally intense area of life.
Within the ABA Senior Lawyers Division, elder law has become a significant purpose in a wide variety of endeavors, from sponsoring House of Delegates initiatives to supporting changes in federal legislation on such issues as military survivor benefits for dependent children with disabilities to federal rule making on the subject of admissions to hospitals and post-hospital rehabilitation qualifying for Medicare reimbursement. The SLD has developed a major effort in the area of senior driving issues, and supported advances in living will legislation and so-called MOST legislation to express the medical care preferences of terminally-ill individuals at the end of their lives. This elder law column within the Voice of Experience is here to aid senior lawyer members in recognizing issues which impact our elderly clients and raise awareness of how growing older impacts our lives.
