Experienced elder lawyer Chip Nation outlines the current landscape of elder law in this feature, sharing advice gained from his own active practice.
To begin with, what is defined as ‘elder law’ and what areas does it cover?
Elder law can be defined as broadly or narrowly as one would like. In the broadest sense, elder law is any area of the law that pertains to the older population and their families and to people with disabilities, regardless of age. This may include anything from personal injury cases specific to the elderly, such as falls and other injuries in assisted living settings and nursing homes, all the way to basic estate planning, which includes drafting wills, trusts, powers of attorneys, living wills, and so forth. Many elder law practitioners narrow the definition – and their practice – to simply helping people who are interested in protecting assets in case they need long-term care in the future, or to helping those in crisis situations who need immediate care and need to qualify for Medicaid as soon as possible, while trying to preserve as many assets as they can.
The National Academy of Elder Law Attorneys defined elder law well when it set forth that elder law is defined by the clients that the lawyer is serving. I am paraphrasing their definition, but that puts it succinctly. The needs of our older or disabled clients basically make the elder law practitioner a broad-based general practitioner, unless one defines and narrows one’s intake to certain types of cases.
For lawyers looking to practice elder law, what should they be most mindful of when setting out?
Lawyers considering elder law or just getting into elder law should be mindful that if you do narrow your practice to help clients protect their assets, plan for the potential of long-term care or help in crisis Medicaid planning situations, there are a lot of good resources available that you should utilize to help you learn the practice area. For instance, joining the National Academy of Elder Law Attorneys is a good way to network, learn from the educational opportunities offered, and meet others in your jurisdiction who may also be elder law practitioners and who may be able to mentor you.
If you do not find a mentor, it is a good idea to at least have an experienced practitioner that you can either co-counsel with on your first couple of cases or at least be able to call and ask for specific guidance. One thing I learned quickly after transitioning from litigation is that people in this field are often very willing to help if you just ask. I also learned that I was much more comfortable when I asked for assistance or had an opportunity to bounce ideas off someone.
The needs of our older or disabled clients basically make the elder law practitioner a broad-based general practitioner, unless one defines and narrows one’s intake to certain types of cases.
Also, companies like ElderCounsel offer hands-on workshops, continuing legal education programs and drafting software. ElderCounsel is not the only option available, but companies like them can take you from day one of declaring your intention to practice elder law all the way through being an experienced elder law attorney churning out trusts and other documents that provide the foundation of many elder law practices. Again, if you do not have experience in this area of law, it is well worth the time and expense to learn what you are doing as you get started.
What ethical considerations need to be taken into account while working in elder law?
Ethical considerations are of utmost importance in elder law. The main reason for this is – unlike in most other areas of law – the most basic question of “Who is my client?” is not always easy to ascertain in an elder law matter.
Often when an older person is involved, that person’s child or spouse or other family member will be the one contacting you. Of course, the situation and type of matter they present are important, but if you decide the matter is worth your time, you always need to meet alone with the elderly person who is the subject of the issue if at all possible. This must be done to determine if they are competent and aware of what is happening and are able to make their own decisions. There are guides available from the American Bar Association and from the American College of Trusts and Estates Counsel to guide attorneys in determining how to assess the competency of a potential client and how to handle all the ethical situations involved with such representation. In addition, of course, you must always consult the Professional Rules of Conduct in your particular jurisdiction.
In elder law, once you have determined the capacity limitations of your client and gauged the interests of other family members, you must remain vigilant to make sure no coercion or undue influence or even abuse is befalling your client. As the attorney, you may find yourself in situations where you are truly the only person looking out for the wellbeing and welfare of your client. Therefore, you need to get to know your client well enough to pick up on any hints or signs that something is amiss. Then you are ethically bound to act if you do believe someone is taking advantage of your client. There is a lot of responsibility involved in representing the elderly.
Are there any parting pieces of advice that you would give to less experienced lawyers looking to incorporate elder law in their practice?
There are a lot of potential moving parts to representing the elderly, and it can be very challenging. However, it is a very rewarding practice area when you can make someone’s life markedly better. Also, if you are looking for a practice area that is growing and will continue to grow for the foreseeable future, elder law is the perfect area. Anecdotally, I can attest that once people discover that you handle estate planning or elder law matters, they will come up to you at church, at kids’ ball games, or at the store and tell you either they or someone they know needs to talk to you about a matter. It really is uncanny.
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In the broader picture, as the US population continues to grow older, there will be a greater need for elder law attorneys. As of 2020, almost six million people over the age of 65 were estimated to suffer from Alzheimer’s disease in the United States. Estimates are that this number will rise exponentially between now and 2050. The same trends are seen worldwide as it is estimated that 50 million people suffer from dementia, with it becoming more commonplace every year.
When other areas of law are subjected to outside factors, such as technology, that potentially threaten the future need for lawyers in those areas, elder law will continue to see a burgeoning need for lawyers due to a burgeoning elderly population. However, elder law also needs new attorneys with new and fresh ideas.
As elder law practitioners, we too face legislative and regulatory changes and even what many deem as setbacks from time to time. As laws dealing with retirement accounts seemingly change every other year and the federal estate tax exemption is due to change soon, it is an interesting time to be an elder law attorney. It should be noted that you do not have to have a tax background to succeed; you can simply be upfront about that and have a referral or two handy if the situation arises. No matter the specialty you land on within elder law, now is the time to learn what you are doing, seek counsel from veteran attorneys, and begin a practice that will care for our parents’ and grandparents’ generations. Today’s new elder law lawyer will be tomorrow’s seasoned expert who will pay dividends for the community.
Chip Nation, Founder
The Law Office of HH Chip Nation, LLC
2918 7th Street, Tuscaloosa, AL 35401, USA
Tel: +1 205-614-8936
Chip Nation earned an undergraduate degree in Business Administration from the University of Alabama in 1999 and his JD from Cumberland School of Law at Samford University in 2003. He has practiced law exclusively in Alabama since passing the bar exam in 2003 and was a litigator for the first 14 years of his legal career. Chip has been recognised multiple times in the National Trial Lawyers Top 100 and is now poised to enter his twentieth year of practicing law.
The Law Office of HH Chip Nation was founded in 2018. While Chip’s experience in litigation lends itself for the firm to handle the occasional personal injury or small business matter, the firm’s focus is on helping its clients to plan for their future and protect their assets no matter what the future may hold.
