Hiring An Elder Law Attorney
Can I do it myself?
- Can a person do his other own legal work? The logical answer is, like anything else. Yes……. However, More importantly, assess what is required to obtain the intended results, whether the issue is a simple straightforward application for benefits where no planning is necessary? Is this an issue one can dedicate the time necessary to accomplish the goals.
- With some legal issues “self-help” is appropriate for simpler legal tasks that do not contain complex clauses, dealing with a State or Federal agency for Medicaid and Veterans benefits where eligibility issues are complex and may violate application rules and requirements, or a legal issue requiring a detailed presentation of application data facts and a lot of paperwork and forms. At that point it may make sense to consider hiring an attorney to save one a lot of time and aggravation.
- The next step is to ask yourself “Is the cost of an attorney worth the investment to pay him orher in relation to the cost to undo or fix a legal problem that may result in the future if I do not do it right?”
You get what you pay for? Quality or no-frills
- In today’s technology age, it is so easy to obtain a basic “form” and information.
- There is a lot of misinformation on the web and people engaging in what the Florida Bar and Supreme Court consider bordering on the Unlicensed Practice of Law”. Social workers and financial planners seem to be most often mentioned associated with the unlicensed practice of law akin relationship to Medicaid Planning and Veterans Benefits consulting.
- The question is not “Can I get information?,” More importantly, the right question is “Am I getting “Good” accurate information from an attorney who really knows and is dedicated to the area of law I need help with or in?
How about using the Office Supply Store Forms
- In most cases dealing with Durable Powers of Attorney, Trusts and Wills, using a form for legal documents is not a good idea.
- WHY? In most cases the form will not address specific aspects you are looking to have covered or you may not understand the exact legal significance of a term used in a form you buy or “borrow”
- The best way to use such office supply forms in the context of Durable Powers of Attorney, Trust and Wills is to utilize them as an outline to obtain information from.
- In some cases it is okay to use legal forms for simple mundane legal issues (i.e., Automobile Bill of Sale). However, there are many legal issues where it makes sense to hire and attorney.
WHY NOT USE A FORM?
- In most cases language in the office supply store form is either not detailed enough or did not cover a specific set of circumstances.
- In those cases where a bank or real estate transaction or Medicaid office believes the office supply form did not cover their entity an expensive guardianship may be required or an application for Medicaid benefits is denied because the form used contained outdated clauses, or did not include enough information required to gain eligibility. This often happens in the context of Medicaid applications dealing with Qualified Income Trust “forms” or “Personal Service Contracts” a non-lawyer has given to a client.
- The analysis of whether to use an off-the shelf or internet based form is alikened to insurance on a house…….Some are comfortable with no insurance and are willing to take the risk. Most people want protection of some sort for peace of mind. Others want to be protected and covered in total. That is when going to an elder law attorney will assist in drafting the document with the right language. Even more importantly, the attorney should stand behind the documents validity and assist the client in getting the entity to accept its terms.
- It is not recommended to use forms or non-lawyers in elder law situations (i.e. drafting Powers of Attorney, Medicaid nursing home planning requiring shifting of assets or creation and funding of a Medicaid Qualified income trust). There are too many costly mistakes that are being made by people non-lawyers and paralegal services using legal forms in the context of the above.
So what are my concerns if I decide to use a paralegal or internet legal form?
- Non-lawyer Medicaid Planners and Veterans Benefits Consultants not regulated by Medicaid or VA.
- In most instances, legal business forms fall far short of addressing the desires and needs of the person using the “form”. Each State has its own laws related to language that must be included and how documents should be signed.
- Another concern is how the documents were signed (When, Who was present, how did notary coordinate and orchestrate the signing and witnessing of signatures).
So when does it make sense to retain an attorney?
- When using legal documents such as a personal service contract or any type of trust, legal advice is critical to ensure the document is properly drafted and
- Clear preparation and a vision of what one wants accomplished should be outlined before sitting down with an attorney.
- The business legal forms found on websites and computer software programs are a good source for you to outline the issue you need covered when you go to your own attorney.
- Take the form to your lawyer with your own notes and the form.
Do I need a Specialist in the legal area I am seeking advice in? In today’s technology and information age, it is impossible to be generalist in any area of law anymore. The laws are too complex and changing too rapidly for a general practitioner to keep up with all the changes in all areas of the law. One should seek out an attorney who specializes in the legal issues they are faced with. Even in Elder Law there are sub-specialties. There are Elder Law attorneys who specialize in public benefits such as doing Medicaid applications, dealing with public benefits. Ask they attorney what he/she focusing on in their practice how much of that kind of work he/she has done. If that attorney does not focus and dedicate the practice to doing the specific type of work you need done, you should consider seeking one that does. What Services Does an Elder Law Attorney provide? The practice of Elder Law saw its beginning in 1988 as the population of over the age of 65 began to increase. Legal issues facing older Americans began requiring application of laws related to aging. The practice of Elder Law requires the attorney to have a good solid foundation of Medicaid law, Social Security law, Veterans Pension benefits law, probate law, real estate transaction law, probate and guardianship law, and tax law. What to look for in an Elder Law Attorney (ask questions about the lawyers experience and background) A practice truly dedicated to serving the over 65. In the past three (3) years with the change in tax laws increasing the federal tax exemption and the reduction of personal injury awards, there appears to be a lot of traditional tax and estate planning attorneys as well as personal injury attorneys changing practice areas to incorporate “some level” of “Elder Law”. It should be understood by the consumer that for $25.00 a year a member of the Florida bar can join the Elder Law Section and legally hold themselves out as an “Elder Law Attorney”. It is important to ask the attorney you are considering how long he/she has practiced elder law, what elder law organizations he is a member of, and if he/she focuses his/her practice on the issue you need help with and how much of that work has he/she done in the past. This becomes important when dealing with Medicaid planning, nursing home asset protection planning, Social Security questions, Supplemental Security Income issues, and Veterans Benefits. In summary know the attorneys background and experience is in dealing with the issues you need help in before retaining him/her. Also make sure you feel that you can talk to your attorney and he/she is approachable and you feel comfortable that you can get along with him/her. What’s the big deal about a Board Certified lawyer? Certification in Elder Law is relatively new and very few Elder Law Attorneys have this certification. There is a certification in Elder Law offered by the Florida Bar for its members. There is a national certification offered by the National Elder Law Foundation (NELF) called a CELA (Certified Elder Law Attorney) which has a Board Certification approved by the American Bar Association. The Florida Bar allows its members to join the Elder Law Section and designate themselves an “Elder Law Attorney” for a $25 annual fee added on as an additional section membership on the Florida Bar’s annual membership renewal form. Know who you are dealing with. Costs/Investment Analysis – To hire an attorney or not to hire an attorney. That is the question
- Retaining an attorney should be looked at as an investment.
- What are the benefits to be gained? (Savings in nursing home costs, saving in time, Stress, knowledge)
- What are the drawbacks to not retaining an attorney?
- When considering retaining an attorney, outline the questions you want to ask the lawyer. Determine how the lawyer is going to 1) help save you money, stress, time, or enhance your quality of life, and 2) what return on investment do you stand to gain in comparison to the costs for the lawyers services.
An Elder Law the attorney is part of your team of advisors. Many issues develop over a long period of time and require on-going communication and working together to achieve your goals. You should feel comfortable talking with the attorney and vice versa.
Gregory G. Glenn, Esq. is a Certified Elder Law Attorney by the National Elder Law Foundation. He has practiced elder law since 1995. Prior to law school Mr. Glenn worked as a management consultant at the Big Eight accounting firm of Coopers & Lybrand, CPA’s and also at Dunn & Roth, CPA’s as a staff accountant. He has his law degree from MSU and completed his legal studies at the University of Miami School of law. His focus in elder law is on estate planning for the over 65, disability planning, probate, and Medicaid eligibility planning. His office is in Boynton Beach, Florida.