What is Elder Law?
Elderlaw is a practice area that is primarily focused on issues that affect our older population. It is not uncommon to wonder what elder law actually entails. Elder law covers a variety of matters that include estate planning, estate administration, Medicaid planning, long-term care planning, special needs planning, and guardianship matters. As a subset of multiple legal fields, it may make sense to collaborate with other legal professionals on matters related to federal benefit programs, real estate, and business law .
Helping those who champion the needs of older adults is the overarching theme of elder law. Attorneys practicing in this field are often referred to as elder law attorneys for their focus on seniors’ needs, long-term care planning, estate planning, and estate administration. A compassion for the unique needs of older adults is required for an elder law attorney.
The Elder Law Educational Track
Becoming an elder law attorney is a journey of education and professional growth. The initial step towards this rewarding career is obtaining a four-year or bachelor’s degree in any subject. Among the most common undergraduate courses are legal studies, political science, sociology, and other studies of social services. Some aspiring elder law attorneys also pursue graduate degrees such as social work or business administration, although these are not required.
The next step is law school. Applicants to law school must take the Law School Admission Test (LSAT) which evaluates reading comprehension and logical reasoning abilities. Many law school applicants have undergraduate majors in English, philosophy, or economics. The extensive reading and analytical writing tasks associated with these and other disciplines help develop the skills you will use as a law student and when you practice as an attorney.
The most common path to becoming an elder law attorney is to complete a Juris Doctor (JD) degree while attending law school. A Juris Doctor is the entry-level professional degree, which requires coursework and education in law. Graduating law school is not the last step on the educational pathway to becoming an elder law attorney. Graduates must pass a rigorous series of examinations and reviews known as the bar exam. Once you have been admitted to the state bar, you may begin working as an elder law attorney.
Eventually, elder law attorneys may consider obtaining a certificate as a certified elder law attorney. To become certified, attorneys must meet certain standards. These include practicing for a certain number of years, earning a higher degree in a related field, attending seminars, and serving on committees. Elder law attorneys who specialize in Medicaid planning may also consider credentialing with the National Academy of Elder Law Attorneys or the Academy of Special Needs Planners.
How to Obtain the Right Experience
The road to becoming an elder law attorney is paved with extensive and relevant experience. However, there’s no need to have gone through the elder law attorney rite of passage by age 25. There are many ways to gain the necessary knowledge.
Internships and clerkships. Whether as a law student or a recent graduate, consider seeking out internships or clerkships that focus on elder law issues. The best time to do this is during law school, but there are sometimes opportunities within aging services organizations for recent grads. It can be difficult to find firms that will take you on as an intern or clerk without prior work experience, but doing so early in your career is a great way to differentiate yourself from the pack.
Volunteering. Working as a volunteer for an organization that helps elderly members of society is another good, and often essential, way of gaining experience before trying to go into this highly competitive field. There are many volunteer opportunities that give aspiring elder law attorneys the chance to get real on-the-job experience in the field.
Elder law attorneys make a difference in the lives of the people they serve. If this is something you’re interested in, make sure to find the right experience to get started.
Licensing and Certification
To practice law in any state, you need to sit for and pass the bar exam. While mediating elder law is generally accepted practice outside of the courtroom, providing elder law counsel and representation at trial requires a license. Licensing standards vary from state to state. In some states, you can waive into the state without exam, while in others you only have a single chance to pass your bar exam. Once you obtain your license, you may stand out from the crowd by obtaining additional certification. The National Elder Law Foundation (NELF) offers certification as a Certified Elder Law Attorney (CELA). To become a CELA, you must pass a comprehensive exam, fulfill continuing legal education requirements, and have substantial involvement in elder law cases during the three years preceding the application. Be aware that the CELA is not a government certification but a private one, so it is wise to check with your state bar about any additional requirements that may apply. Some states simply take a very dim view of attorney designations like this as evidenced by the recent discussion in the California State Bar Journal.
Critical Skills to Develop
The field of elder law is constantly changing and evolving with new laws, new procedures, and new practices. As an attorney, you must be able to keep up with these changes.
Advocacy:
It is the responsibility of an elder law attorney to be an advocate for their clients. You want to be a strong advocate for those who may be unable to fight for themselves when it comes to legal matters. A good elder law attorney is always willing to stand up for their clients and address issues as they arise.
Empathy:
Many of your clients will have incredible stories that must be heard and those that you serve must feel that you care about them. You must be able to empathize with the plight of your clients, assisting them in navigating their challenges no matter how complex they may be.
Communication:
Both oral and written communication skills are essential for an elder law attorney . You must be able to clearly convey information to clients so that they understand what is required of them. You also must have the ability to clearly communicate with agencies at all levels.
Negotiation:
An elder law attorney should have strong negotiation skills. You may find yourself negotiating with various agencies during the course of your duties, whether with social security, social services, or corporations. In some cases, you may be called on to negotiate with family members for the sake of the elder, and you must be able to handle these situations with ease.
The work that an elder law attorney does every day can truly make a positive difference in the lives of these individuals. A strong desire to help will provide you with the motivation that you need to take the steps necessary to become successful at this career.
Networking in Elder Law
Establishing a network of professional relationships within the elder law community is invaluable for both personal and professional growth within this field. The deep knowledge and unique concerns inherent in elder law make it a practice area where colleagues can often be as helpful as they are competitive. The good, actionable advice of peers can save you days, or even months, of effort.
A good first step is to join relevant legal associations, such as the National Academy of Elder Law Attorneys (NAELA), to gain access to forums for communications and questions. These include mailing lists, message boards, listserves and discussion forums. You can also turn to local bar associations that may have dedicated lists devoted to elder law. Lawyers in these forums provide invaluable advice on how to handle a difficult client or unusual challenge.
Conferences and seminars can provide a great way to meet peers and experts in related fields, whether in person or online. ElderlawNet, for instance, has an online Winter Summit for elder law attorneys that includes contributions from a wide array of experts, with presentations available for download after the fact. In-person conferences can help you meet others who may offer guidance, referrals or even opportunities to buy or merge practices.
Many elder law professionals also join a large practice group or association that not only offers support and professional development materials, but connects them with a network of individuals with similar interests and specialties.
Opportunities and Challenges in Elder Law
Like any field of law, elder law comes with its own set of challenges. Of course, with challenges come opportunities. Often, when I am asked how I ended up working in Elder Law, I explain that it was a perfect mix of lifelong interests. I grew up in a multi-generational household, I was drawn to medicine, and my mother was a nurse in a long-term care facility. In short, I was raised around older adults who required help with health issues. Some of my earliest memories are of long-term care facilities and of older adults. The opportunity to help families navigate these difficult decisions every day is, for me, the perfect reward for the work.
The most common response I hear when I speak with people about elder law is that they think it must be "so difficult" to deal with the issues involving aging parents. It certainly can be. Older adulthood presents unique issues, and many people have never taken the time to educate themselves about them. Even for those who have had experiences with their family members, it is often not difficult to get over your head, and without the right support, things can get overwhelming really quickly.
One of the most difficult challenges to working in elder law is dealing with family conflict. It is, unfortunately, not uncommon for disputes to arise among family members over how to best approach care for their aging parents.
You may have two siblings who both have long work hours, and thus require assistance, but one sibling provides the bulk of care and responsibilities. This often leads to resentment, decision making, and other issues among family members.
Another conflict issue is the differing opinions when it comes to care level. Not all family members believe that a parent or family member requires a higher level of care, even when you think that they require more assistance. Disagreements about whether a parent can live in their own, without support, is very common.
For example, I have had cases where several children will participate in some legal process for their parents, such as establishing a guardianship, and one feels left out. When that happens, feelings get hurt and it creates a dynamic that sometimes leads to that child refusing to help out anymore.
Another challenge that arises in elder law is the ever-changing legal landscape. While elder law attorneys specialize in assisting individuals with health care issues, financial planning, estate planning, and long-term care needs, the laws governing these areas are not static. The laws may change rapidly when it comes to federal, state, and local laws. Even within an individual state, the laws can change annually (or even more often with changes to administrative and regulatory rules). This can sometimes make it difficult to address a problem, because you may have to know which set of laws applied at the time the issue arose.
For example, in the past 18 months, Pennsylvania has seen the passage of the PA Caregiver Support Act and the Older Adult Services Act. It has also seen a change in the rules applicable to the Medicaid Department’s evaluation of applications for elder adults who require assistance for medical needs.
Consider the ability of a resident to be eligible for Medicaid if they already gifted their house. Previously, in Pennsylvania, there was a "return to grantor clause," allowing for someone to apply for Medicaid, and have the gift "unwound" so that the asset came back into the estate for evaluation. However, this option is now gone, and those who have already "unwound" a gift could find that it is now irreversible.
Elder law includes estate planning. When working with your clients to include advanced directives and health care proxies, you are truly trying to make their wishes known. One way to do this is to ask them how they would like their children to communicate with one another if they can no longer communicate. Often, this includes how to communicate information regarding advance directives to one another, in case one of the children does not agree with the other’s instructions.
One of the most selfless of professions is that of an elder law attorney. It is a privilege to be part of the decision making process for a family. The trust and the relationship that you develop with your clients allows you to partner with them in thoughts and ideas about the way that their health care and financial needs will be addressed.
You partner with your clients in ways that they probably never considered before. For example, choosing a financial agent can be a difficult decision. When working with your client, you may learn things from him or her that you weren’t expecting, such as how frugally or otherwise she might spend the money, and therefore how the assets should be preserved. You might also have opportunities to question personal financial experiences. For example, I once had a situation in which a client wanted to put in her will that she could lend an asset to her kids and that the kids had to return that asset if it was requested. I had to explain to her that court systems often do not enforce these types of "loan" provisions in wills and trusts. Some of my clients did not want to let a sibling hold monetary gifts "in trust," since they were worried that the sibling may never return the gifts to the parent.
By working in elder law, you will have the ability to help your clients make those decisions. You will be able to assist them in developing and contemplating what they want to achieve, and what they think would happen if something goes wrong. You will also have the ability to get feedback on your advice, so that you will develop that ongoing relationship with your client.
Elder law is truly a rewarding field that grows with each new law, and continues to help families adapt to changing circumstances.
Choosing a Law Firm or Starting Your Own Practice
As you consider your career options within elder law, the choice of law firm matters. In fact, working at a law firm instead of starting your own practice can impact your career in profound ways, both positive and negative ways.
For example, if you join an established elder law firm, you can benefit from the firm’s existing client relationships. This is huge. Instead of starting from zero and having to find your own clients from the beginning, joining a firm gives you the chance to connect with clients who already need legal services. In some cases, a litigator may have more legal work than she could handle alone, in which case a younger lawyer would help the attorney with this work (and gain experience in the process) .
Overall, working for an established elder law firm can prove incredibly beneficial. On a related note, you also have to consider the financial aspects of elder law. The income you have to draw out of your own legal practice might not be enough to pay your bills, while working for a reputable, established elder law firm could give you a stable income for years to come.
Of course, working for a law firm isn’t always optimal. As an example, a work environment that prioritizes profits over practice can be toxic. Imagine working with clients who need your help but getting grief from your employer because you took more time helping them than making money. This happens more than you might think and is a definite reason to think long and hard before joining an elder law firm.
