Elder Law Comes of Age

by Helen Cohn Needham, CELA

For some time now some attorneys have called themselves elder law attorneys; however, there has thus far been no way for the consumer to really know what subjects a particular elder law attorney knew. The term meant different things to different attorneys. In addition, there was no way to know whether a person calling himself an elder law attorney actually had the knowledge and experience claimed.

To remedy that situation, help is on its way! Elder law attorneys may now be certified in this field by the Board of Certification of the National Elder Law Foundation (NELF), a non-profit organization founded in 1993, and dedicated to the development and improvement of the professional competence of lawyers in the area of elder law. The purpose of the certification program is to identify those lawyers who have the enhanced knowledge, skills, experience and proficiency to be properly identified to the public as certified elder law attorneys.

What Must A Certified Elder Law Attorney Know?

The Board's expectations of an elder law attorney's knowledge are expansive. The attorney must know about the following subjects:

• health and long-term care planning;
• public benefits (includes Medicaid, Medicare, Social Security);
• surrogate decision-making (includes powers of attorney and guardianship);
• older persons' legal capacity; and
• the conservation, disposition and administration of the older person's estate (includes wills, trust and probate of an estate).

In advising about these matters the elder law attorney must pay attention to the applicable tax consequences of the action, or the need for more sophisticated tax expertise. In addition, the Board expects attorneys certified in elder law to be capable of recognizing issues of concern that arise during counseling and representation with respect to:

• abuse, neglect, or exploitation of the older person
• insurance
• housing
• long-term care
• employment
• retirement

Finally, the attorney must be familiar with professional and non-legal resources and services publicly and privately available to meet the needs of the older person, and must be capable of recognizing the professional conduct and ethical issues that arise during representation.

As one can see, the Board of Certification seeks to identify attorneys who will be able to determine all the client's needs and either take care of them, or refer the client to someone who can.

Who Can Be Certified?

Certification is open to licensed attorneys who have been in practice five years or more. During the three years prior to application they must have spent at least 16 hour per week practicing elder law, must have handled at least 60 elder law matters in specified elder law subject, and must have had at least 45 hours of continuing legal education in elder law. A certified attorney must be re-certified every five years, and has to meet similar requirements.

Must An Attorney Be Certified To be Considered Competent?

If an attorney is not certified does that mean that the attorney is not competent to handle your elder law problem? Not necessarily. First, certification is a voluntary program. One need not be certified to practice elder law. Thus, while certification will give you information about an attorney who is so certified, it says nothing about the attorney who chose not to go through the certification process. Second, the program is relatively new, but growing steadily. There are currently 380 Certified Elder Law Attorneys in forty-one states and the District of Columbia. Third, while the attorney may be very good, he or she may not have been in practice for five years, or have handled the requisite number of elder law matters and is thus not yet eligible to begin the certification process.

So what good is certification to the public if the attorney available to them is not certified? In such instances certification can still help you when assessing the qualifications of the attorney you are thinking about retaining. It at least identifies for you the subject you would want your attorney to know. It gives you some idea of how much training you would want them to have received. It provides you with some guidelines as to what attorneys themselves believe to be satisfactory qualifications.

Whether an attorney is certified or not, you should still be asking the same questions you have in the past in an effort to determine if this attorney is appropriate for you. Such questions include:

• How long has the attorney been practicing?
• What percentage of the attorney's practice is devoted to elder law?
• Does his or her practice emphasize a particular area of elder law?
• What is the attorney's experience regarding the specific matter with which you are concerned?
• How much elder law training has the attorney had, and from what organizations?
• Is the attorney a member of the National Academy of Elder Law Attorneys?

However, now you should add to your list two more questions:

• Are you certified as an elder law attorney by the National Elder Law Foundation?
• If not, why not?

Helen Cohn Needhamis a Certified Elder Law Attorney in Arlington, Virginia. She is a past member of the Board of Directors of the National Academy of Elder Law Attorneys and was the first Chair of the Board of Certification of the National Elder Law Foundation. She was instrumental in developing the certification program.