Adam Swidler, a product marketing manager at Google ( (GOOG)
) in Mountain View, Calif., had the all-important caregiving talk with his father two years ago. He figured the conversation had covered the bases, namely his dad's wishes in the event of a medical crisis. But when his 76-year-old, divorced father became incapacitated from a stroke in March, Swidler found out how wrong that assumption had been. While his father had crafted an advance medical directive, which specifies the course of action in health-care matters, Swidler didn't have the right documentation to take control of his dad's money.
A doctor referred Swidler to Doris Hawks, an elder-law attorney in Los Altos, Calif. During the course of a few months, Hawks has helped him find a nursing home and get access to his father's money. At $300 an hour, the total tab for her services could run as much as $8,000. Says 42-year-old Swidler, an only child: "She explains everything in plain English, and makes sure I understand what's going on."
With the number of Americans age 65 and older expected to reach 71.5 million in 2030, the field of elder law—which covers estate planning, health care, and housing issues—is growing rapidly. The National Academy of Elder Law Attorneys (NAELA), whose members provide legal services to seniors as well as people with special needs, had 549 professionals in 1990; now it has nearly 4,000.
That doesn't mean people are seeking legal advice when they should—that is, before a problem arises. Few want to confront the painful issue of how to care for an elderly, ailing parent. An estimated three-quarters of people who seek out an elder-law attorney are in crisis mode, when it is hardest to make good decisions. "Most of my clients wait until a parent is in the hospital and needs crisis intervention to get help," says Jack Halpern, a former nursing home professional who now runs MyElderAdvocate.com, a Web site for caregivers.
TOO MANY HATS
Elder-law attorneys wear multiple hats, working as financial advisers, confidantes, referees, real estate experts, and mediators. The field encompasses 13 major areas, including retirement benefits, age discrimination, guardianship, as well as planning for the disabled. But if a lawyer claims to handle all of that, be skeptical. "I don't know anyone who does everything that falls under the umbrella of elder law," says Craig Reaves, an elder-law attorney in Kansas City, Mo., and NAELA's president.
Because state and local laws vary, it's important to choose an attorney licensed in the state where your parent lives. Chances are your financial adviser, accountant, or real estate lawyer already has some elder-law attorneys in their contact list. You may also get referrals from senior citizen organizations such an Alzheimer's Assn. chapter. "The circle of people who practice elder law in any community is usually pretty small," says Terry Ann Donner, who is a registered nurse, a certified social worker, and an elder-law attorney in Willoughby, Ohio.
NAELA's Web site (naela.org) lets you search for an elder-law attorney by Zip Code as well as field of practice. Keep in mind that it isn't hard to be a member: Attorneys must be in good standing with their state bar association and pay $425 in annual dues.
A more meaningful credential is a certification to practice elder law. The National Elder Law Foundation, which is affiliated with NAELA, certifies attorneys who have focused on elder law for five years and have documentation of at least 60 related cases in the past three years. Those lawyers must pass a one-day exam that covers a wide range of topics, including gift taxes and pension benefits. The test has a pass rate of just 40%.
Nearly 400 lawyers have become certified elder-law attorneys since this test was introduced in 1994. To keep certification current, attorneys must document relevant casework and continuing education requirements every five years. Among the best practitioners: the 60 attorneys who belong to NAELA's Council of Advanced Practitioners. They have practiced elder law for at least 10 years and have high ratings from legal rating service Martindale-Hubbell.
Some experts recommend interviewing at least three lawyers before hiring one. Larry Lazzarini, a computer programmer at CVS Caremark ( (CVS)
) in suburban Chicago, went to the extreme, contacting seven elder-law attorneys before selecting one for his parents. Two tried to sell him long-term care insurance and annuities. "It made me wonder if they had good advice to offer or if they were trying to collect a big commission," says the 55-year-old. Lazzarini ended up going with the lowest-priced elder lawyer he could find. Most attorneys wanted $9,500 to fill out the complicated application for Medicaid, the government program that provides health benefits for the poor. But he found one who would do it for $6,000.
What should you ask a potential lawyer? Jane Ingalls, the 43-year old founder of Artemis Communications, a Denver marketing firm, asked prospects: "What type of client is your 'typical' client?" Her mother, who lives in Denver, has Alzheimer's and no insurance. "If a referred attorney tends to work with very high-net-worth clients—and your parent isn't—you're unlikely to receive the insight or service that you need," she says. It's also crucial to ask lawyers how they like to communicate—via e-mail, telephone, or in person—and how quickly they will respond to your requests.
Expertise matters most. It's a lesson Ronald Cleaves, 58, an insurance agent in Norwell, Mass., learned the hard way. His in-laws' first attorney set up an estate plan that guaranteed they could live out their years in the family home. But the plan didn't address their income or assets, which were too high to qualify for Medicaid. That became a problem when their health deteriorated, and they needed to pay for a nursing home.
To fix the situation, Cleaves hired Senior Resource Center, an elder-advisory firm in Quincy, Mass. The firm unwound the original estate plan, settled the related tax liabilities, and got them enrolled in Medicaid—an eight-month process. The Senior Resource Center also helped with the in-laws' transition to a nursing home. According to NAELA, at least 90 law firms nationwide offer such integrated practices, in which legal advice is combined with geriatric-care management.
While some lawyers give a free one-hour consult, hourly rates typically start at $300 nationally and can be more than $700 in New York City. Obtaining guardianship for a parent can cost as much as $30,000 because it often requires extensive time in court. Amid the economic downturn, some lawyers say they are willing to discuss discounts. It's also worthwhile to negotiate a flat fee for less complicated matters, such as drawing up a will.
The outlay upfront can save you money in the end. In 2004, Guy Cecala, CEO of Inside Mortgage Finance Publications in Bethesda, Md., and his three siblings moved their mom to a "glitzy" assisted-living facility in suburban Washington. It cost more than $100,000 a year but provided just mediocre service.
When Cecala hired a local elder attorney two years ago to help with his mom's estate and medical directive issues, the attorney told them he would have recommended a nonprofit facility that charged half as much. Says Cecala: "I know now that money spent on furniture and artwork isn't as important as [the staff] and the care they give."
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A Marietta (Ga.) attorney who specialized in elder law arranged community workshops for a bogus financial scheme, reports The American Lawyer. The five-year scam siphoned more than $40 million from at least 140 investors, most at or near retirement age, according to federal prosecutors. The lawyer pleaded guilty to wire fraud in April.
To read the full story, go to bx.businessweek.com/ponzi-scheme/