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What is Elder Law?

Posted by Thomas Asbury | May 02, 2023 | 0 Comments

Elder law attorneys are sometimes stereotyped as working just in Medicaid and other crisis planning capacities when in fact their areas of expertise are far broader. It is challenging to come up with a precise definition of elder law, but most legal professionals concur that the elderly and the disabled—the populations an elder law practitioner serves—are the best place to start. Elder law covers every problem that either of these two groups may possibly encounter.

Elder law can be described in terms of its demographics as well as the typical practice areas it includes. One instance of an elder law practice area that relies on litigation is elder abuse. Another prominent practice area in elder law is nursing home malpractice, but it may be a double-edged sword because nursing homes won't recommend clients to an attorney who has a reputation for suing them. Other professional areas that fall under the elder law umbrella include Medicaid lawsuits, Medicare appeals, and social security disability. Elder law is a very versatile profession since an elder law attorney can choose whether or not they want to include each of these aspects in their own practice.

Elder law, in the words of Howard Krooks, J.D., Partner, Elder Law Associates and ElderCounsel Principal, “is a conundrum. And you need to determine how each of these components will go together as well as the ones you prefer and want to manage.

Common Practice Areas

Elder law encompasses a variety of common practice areas, including but not restricted to:

  • Medicaid planning
  • Veterans pension planning
  • Special needs planning (or is it?)
  • Guardianship and Conservatorship
  • Estate planning (basic)
  • Elder Abuse
  • Nursing Home Negligence
  • Social Security Disability
  • Medicare Appeals
  • Medicaid Litigation

Many elder law attorneys might not be as varied as they could be because they are unaware that several practice areas come under the general heading of elder law. Therefore, whether you are new to elder law or have been practicing for a while, it is crucial for any elder law attorney to consider whether it would be advantageous to diversify their areas of practice. Because your business will fail if you become so specialized that all of your eggs are in one basket and that field ever dries up, diversification is crucial. By diversifying, you can avoid having your practice severely impacted by shifting elder law environments. One more advantage of diversification is highlighted by Krooks, who says that many lawyers “may feel that, by learning some of these other practice areas, it makes them better at everything because they have a broader scope and a broader view, and that they are able to help service their clients' needs.”

Because they don't want to have their fees reduced by a judge, many lawyers avoid the practice area of guardianship, which is related to elder law. However, by only taking on clients who can afford to pay the fees up front and who are aware that their fees might be reduced by the court, it is entirely possible to establish a guardianship practice without having fees that are subject to court approval. A strong initial screening procedure must be in place for guardianship cases in order to identify disputed guardianship issues as soon as possible. This allows the lawyer the option, if wanted, to refer those disputed subjects elsewhere. According to Krooks, a lot of lawyers don't even think about adding guardianship to their areas of expertise, which means they can be “walking away from cash.”

It's crucial to have knowledge in as many elder law practice areas as you can as an elder law practitioner. You may learn about many elder legal practice topics rapidly by attending committee meetings, events, and conference calls hosted by groups like the National Academy of Elder Law Attorneys (“NAELA”). Making friends with another local attorney who practices law will also be beneficial because you can pick their brains for advice and information. To decide whether or not to integrate these particular topics in your practice, knowledge is essential. “Get the lay of the land and then figure out what you think could work for you,” suggests Krooks. However, it would be challenging to be an expert in every area because the broad field of elder law contains so many different practice areas. This implies that it might be crucial to direct consumers to specialists who may be able to provide them with greater assistance. Another choice to consider is co-counseling, which may be used by lawyers who are new to elder law or when a client has a problem that is outside the scope of their particular area of competence.

About the Author

Thomas Asbury

Mr. Asbury is a graduate of the Wharton School of Business at the University of Pennsylvania. Before attending law school, Tom worked in the Internet sector as the Webmaster for the NFL’s Jacksonville Jaguars. While in law school, he published a law review article entitled Alternative Sentencing Theory, 3 Fla. Coastal L. J. 41 (2001), which identifies a constitutional framework within which defendants charged with alcohol and drug-related crimes can be remanded to faith-based programs rather than prison for non-violent offences. The logic is quite simple—as sobriety becomes the norm and addictions subside, so too do the often-accompanying crimes. His professional experience includes estate planning, corporate law, compliance law, guardianships, trademarks, probate, trust and probate litigation, including trust and will contests, administrative law, and consulting for business entities. Mr. Asbury has also lectured for NBI Seminars in the areas of Probate, Wills, Trusts, and Estates. Tom has also served on the Penn Admissions Committee for years as an alumni interviewer and is an international lecturer on the focus and philosophy of Ivy League admissions.


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