The Practice of Elder Law in New Jersey

Our clients come, all 35 million of them, in varying shapes and sizes, colors, physical conditions, and frames of mind. They are interesting individuals with life experiences as varied as snowflakes in a blizzard. Mary Pipher, writing from her life experiences as a psychologist and human being, and from her experiences as a parent, wife and child, relates, “Many old people are living in a world designed for young people. They cannot drive, walk through shopping malls or airports, or deal with rushed doctors in managed care systems. Many cannot handle stairs, small-print books, or menus in darkened restaurants. They have access to expensive and sophisticated medical care that prolongs their lives, but many must sacrifice their savings to afford it. Some must choose between medications and food. Modern technological advances, such as dialysis and organ replacement surgeries, keep people alive but create chronic problems of their own. Some people live to be more than a hundred, but they often outlive their support systems, neighborhoods, and bank accounts.” Another Country, p. 5-6.

Our obligation as attorneys to help families

As elder lawyers, it is our obligation to help seniors and their families confront and, as best as possible, solve or minimize these problems.

For many, old age is just a state of mind or a date on the calendar. We occasionally see, however, young elders, people who are not chronologically old but who, due to illness or other superimposed problems, are mentally aged. Yet others, regardless of the number of years they have lived, are young at heart and mind. All of them are interesting and worth the time and effort necessary to get to know them and to help and protect them.

Their needs and concerns encompass many things: income, shelter, health care, incapacity, illness, estate planning. They are intimately involved with government programs such as Medicare, Social Security, Veterans Affairs, Medicaid, Pharmaceutical Assistance for the Aged and Disabled (PAAD), and SSI. They worry about their children, grandchildren, and great-grandchildren and frequently about their closest companions, their pets.

What distinguishes elder law from general practice?

The practice of elder law is not merely an extension of a general practice. It involves an entirely new way of thinking and a new way of approaching your client. It is a multigenerational practice in which the attorney interfaces with “the client” who is the elder, and usually with the elder’s adult children. On occasion, grandchildren are involved in the decision-making process.

Adult children can be in their 70s and grandchildren in their 30s and 40s. More often than not, the adult children are interacting with you and the elder is just listening to the conversation. Sometimes the elder is there physically but not mentally. Among the attorney’s many challenges is the need to recognize who, among the many individuals sitting across the table, is the client.

It may be necessary to ask all but the elder to leave the interview. It is your obligation to ascertain the elder’s wishes and you must be careful to sort out the desires of the children from those of the parent. Consider whether all the children are participating or if some are excluded. You need to ferret out the underlying factual situation in order to avoid, if possible, claims of undue influence in the future. Make certain to learn, therefore, through the one-on-one interview, the elder’s wishes and desires.

Be sure to take into consideration the fact that your client may have difficulty hearing and understanding you. He or she may be visually impaired or have difficulty expressing their desires to you. You have to exercise patience in the interview and you may need to rethink how to communicate.

Just as we knew that our children were not little adults no matter how precocious they may have been, so too, elders are different than the typical clients with whom you have worked. As people age, their ability to process information changes, usually because aging slows them down and often because they suffer from one form or another of dementia. Realizing and understanding this will help you become a better elder law attorney.

What it takes to be an effective elder law attorney

Avoid stereotyping your elderly clients. Avoid the myths and stories you have heard and approach each person fresh with no biases. Be alert to physical and psychological barriers. Remember that each person is a unique individual who you need to know in order to be of help.

Consider employing the following techniques during interviews: Eliminate background noise; speak slowly and enunciate clearly; use plain English and avoid legalese; use written information when possible; use large type for the visually impaired; have a straight edge and magnifying glass available; and most of all, be patient. Make sure that your office is handicapped accessible. Be sensitive to the fact that although one is aged does not mean he or she is incompetent. Do not speak down to or patronize your client. Always treat him or her with the utmost respect.

In cases where a client’s capacity to make adequately considered decisions is impaired, regardless of the reason, it is the attorney’s obligation, as far as reasonably possible, to maintain a normal attorney-client relationship with the elder. See Rule 1.14 of the Rules of Professional Conduct. In a case where an attorney has reason to believe that the elder is incompetent, the attorney may take protective action on behalf of the elder. See American Bar Association Formal Opinion 96-404, Client Under a Disability.

The legal problems presented by the elderly are wide reaching and include financial planning, healthcare and how to pay for it, nursing home admissions, planning for incapacity, guardianship, housing, and elder abuse.

Regarding the area of abuse, counsel should be alert to the scams practiced on this vulnerable group. Beware of “financial advisors” selling living trusts or inappropriate investment vehicles. Be on the watch for building contractors who want to sell repairs and remodeling. Watch out for children who seek to take advantage of their parents. Financial exploitation and consumer fraud of elders is an ever-present problem that requires vigilance of the elder law attorney.

Unique aspects of practicing elder law

The practice of elder law is interesting and challenging. It is a concentration that requires rethinking how to provide legal services to the millions of senior citizens that are the fastest growing segment of our population. They can be extremely vulnerable and, frequently, incapable of helping and protecting themselves. They are afraid that, after a lifetime of work, sacrifice, and saving, their funds will be exhausted for medical and custodial care in the final days of their lives. They desperately want to leave a financial legacy to their children and want to be remembered for the good they did while with us.

The practice of elder law is the effort to make these wishes come true – the effort to provide dignity and care to individuals looking for help and who sometimes are too weak, fragile and tired to help themselves. It is a wonderful practice that provides satisfaction for a job well done.