Attorney
| P a g e189 Finding an Elder Law Attorney
Can any lawyer serve as an Elder Law Attorney?
Elder law attorneys require knowledge of a wide variety of legal disciplines and services such as: Advance Directives, Medicaid, Medicare & Social Security law, trust & estate planning, tax planning, housing options, mental health law, and discrimination & disability law. Some states require that elder law attorneys acquire a certification as an expert in the field, but New York does not. Even without a state certification, Elder law attorneys must appreciate the inter-relationships between the various fields of law, as decisions made today may seriously impact future planning.
Aside from legal expertise, elder law attorneys must also be knowledgeable about other issues affecting older clients. The attorney must be sensitive to changes in their client’s cognitive or physical health, and be able to differentiate between a client’s physical or mental limitations and a lack of legal capacity. Additionally, an elder law attorney must be comfortable working with other elder-care
practitioners, such as psychologists, social workers, or other service providers, should formal or informal consultation become necessary during the course of the legal representation. Lastly, the attorney must recognize complex family dynamics, while remaining focused on the client’s wishes and needs.
Before making a decision about an elder law attorney, be sure to ask whether the attorney is experienced with your area of concern, and in what other areas of elder law he or she regularly practices. For example, you want to be comfortable that the attorney you hire to do your estate planning understands the
implications for you and your spouse with regard to tax planning, Medicaid, or long-term care needs.
How do I find an Elder Law Attorney?
If you are comfortable using a computer, there are many search engines available to help you locate an attorney in your area. LexisNexis provides a list of attorneys searchable by zip code. The website is located at www.Lawyers.com.
| P a g e190 Additionally, the National Academy of Elder Law Attorneys hosts a searchable database of all of their member attorneys at www.naela.org.
The New York State Bar Association has a lawyer referral service available at its website:
http://www.nysba.org/content/NavigationMenu/PublicResources/NeedaLawyer/
Hire_An_Attorney.htm
Other sources for finding an attorney are local agencies in your area that cater to the aging population. The National Academy of Elder Law Attorneys suggests the following examples:
Alzheimer's Association
American Association of Retired Persons
Social Security Office
State or Local Bar Association
Support Groups for specific diseases
Hospital or Nursing Home Social Service Department
Check your local yellow pages under Associations for the contact information.
Scan through the attorney ads in your yellow pages as well. Do any of the ads strike you as interesting or sincere? If you have any special needs, do the ads address your needs? Finally, do not discount personal referrals. Although only you will know if the attorney recommended is right for you, a referral from another attorney, a family member or friend, or even a respected acquaintance can help you compile a working list of prospects.
How do I know if a prospective lawyer is qualified or has had any disciplinary action against him or her in the past?
The Center for Professional Responsibility sponsored by the American Bar Association has agencies in each state, which oversee lawyer conduct and practice. You can contact your state agency to see if a prospective attorney is
| P a g e191 licensed, or if the attorney has any past disciplinary issues. You can also contact the agency if you wish to file a complaint against your attorney.
To locate the agency in your area, contact:
The American Bar Association Chicago Headquarters
321 North Clark Street, 15th Floor Chicago, IL 60654
312-988-5000 or 800-285-2221 or online at www.americanbar.org
Is the first consultation free? How do I know if the fee is appropriate?
Unlike other areas of law, most Elder Law attorneys do not take clients on a contingency basis, nor do they provide a free consultation. Before you meet a prospective attorney, make sure you understand the fee arrangement for the first meeting. Once you have met with the attorney, make sure that any subsequent fees and services are clearly explained in writing.
Fees vary based on a variety of factors, including the attorney’s experience in a given area, and the complexity of your situation. Additional costs may include fees for research, preparation of correspondence and court documents and court appearances. In addition to these costs, you will be responsible for the expenses associated with photocopying/faxing, mailing, long-distance calls, and travel.
Although it is difficult to assess an average fee, ask the attorney for a listing of what services are provided as standard practice and what other costs may or may not be included.
Many Elder Law attorneys will bill by the hour or request a retainer. Some will charge flat fees for standard documents or procedures, and charge hourly or request a retainer for other services. While fees vary, your attorney should be able to provide you with a rough estimate of your total cost for specific services;
however, complications may require additional time and added expense. Let your attorney know if you want an estimate of how much a specific task will cost
before he or she engages in the activity.
| P a g e192 A retainer is like an escrow account. By providing an initial lump sum, or retainer, to the attorney, you are guaranteeing that the attorney will be available to work on your case. Usually the attorney’s services will be charged against the retainer, while any additional or unexpected costs would be billed separately. Lawyers who work on retainer may charge higher fees because they are contracting to be
available to you, which may interfere with their ability to accept new clients. Be wary of flat fees for advertised services such as “simple wills” or “quick
settlements.” Many times, what may start out simple can quickly turn complex, based on your individual circumstances, and the added services will be charged outside the flat-fee rate.
Whichever method your attorney uses to collect his or her fees, make sure that the agreement is in writing and clearly indicates what is and what is not included.
Be aware that generally you are responsible for any oral agreements that incur the services of the attorney, whether or not you signed an agreement.
Consequently, it is always best to have a document that you can read through to avoid any confusion. If there is something you do not understand, ask for
clarification! Also, do not be afraid to ask if there are ways to reduce the costs.
Your attorney is providing a service and it is best for both of you to know that the requirements and expectations are understood.
What should I do before meeting with the attorney?
It is a good idea to organize your information in advance of your meeting with your attorney. This will make it easier and less costly for the attorney to advise you. Make copies of all of your important documents, such as your birth
certificate, tax return, prior wills, Medicare or Medicaid applications, social security benefit information, trust documentation, or similar documents, and keep them in an easily accessible folder. Bring this folder with you when you meet with the attorney.
| P a g e193 In some cases, the attorney may send you a questionnaire to be completed
before you come to the first meeting. By filling in the questionnaire as completely as possible, you will not only help organize your records, but you will reduce the amount of time and the associated expense required for the attorney to gather your information.
Also before the meeting, compile a list of questions that you would like your attorney to answer. Remember that this is your time and in most cases, you are paying for the service. Be aware that the attorney may not give you an answer immediately, but may take down your information with a promise to get back to you.
The law is complicated and your circumstances may warrant a different answer than what you have read or what you may have heard from a friend. Requesting time to get back to you usually indicates that the attorney cares to take the time to ensure that his or her response is thorough accurate and considers the
complexities of the law.
What is the most important thing to consider about a prospective attorney?
Aside from the basic qualifications, the most important considerations for a successful attorney-client relationship are trust and communication. You must feel comfortable that the attorney is going to work with your best interests in mind. Concurrently, you must be honest with your attorney about your
expectations and your concerns. If the attorney you are considering is not open to your questions, or makes you feel uncomfortable or intimidated, keep looking!
A good elder-law attorney understands that the process and issues can be overwhelming and that he or she must be sensitive to your needs.
After you have evaluated the attorney’s credentials, ask yourself the following questions:
Do you feel that you could work closely with this person?
Do you trust the lawyer’s ability to work on your particular issues?
Did the attorney answer your questions in a way that seemed clear and
| P a g e194 understandable?
Did the attorney provide you with a clear understanding of what you should expect from a follow up meeting and what information you need to
provide?
Did the attorney provide you with a written agreement that clearly defines what is covered in the basic fee and what is considered extra?
If you are not comfortable with your answers to the above questions, than the attorney may not be right for you. Your comfort level with your attorney, and with the office staff and assistants is critical to the success of your relationship.
Where Can I Get Additional Information About Hiring An Attorney or What to Expect?
The National Association of Elder Law Attorneys provides a free brochure,
“Questions and Answers, When looking For An Elder Law Attorney,” which includes information on hiring an attorney, how to prepare for your initial meeting and what you should expect during the meeting. For a copy of the brochure, send a stamped self-addressed business sized envelope to:
National Association of Elder Law Attorneys 1577 Spring Hill Road, Suite 220
Vienna, VA 22182
You can also locate a copy of the brochure and other important information about elder law at the Association website: http://www.naela.org.