Elder law.

Several years ago, I attended a Florida Bar leadership conference in Tallahassee with representatives from other sections of the Bar. Although a colleague and I introduced ourselves as representatives of the Elder Law Section when the meeting began, it was some hours later when one of the other members finally turned to us and said, "So, what is elder law?" If our fellow practitioners were clueless about our role in the legal profession, we could not expect a higher level of awareness from the general public, who traditionally rely on the assertion in a phone book or newspaper advertisement that an attorney has expertise as an elder law attorney.

Elder law was in utero when I entered law school in 1989. Traditional estate planners were having to field more frequent questions about clients whose capacity appeared to be compromised, who were increasingly vulnerable to exploitation, who were facing years of long term care placement and were terrified about the costs associated with that care, and whose loved ones were being kept alive through the use of sophisticated medical treatments with little attention paid to the individual's wishes about end of life care. The desire to provide answers and legal protection for these clients provided the impetus for a new field of legal specialization. Now, demographics and technology spur the growth of the practice, especially in Florida.

The baby boom generation will begin turning 65 in 2011Y The 2000 census was 281 million (2). By 2030, there will be almost 70 million Americans aged 65 and older, and more than 10 million Americans who are older than 80. Since 1900, the percentage of Americans over age 65 has more than tripled (almost 13 percent in 1996); that figure will be closer to 20 percent in 2030. (3) Although figures vary, the percentage of Americans over the age of 65 who will need nursing home services at some time approaches 40 percent. The cost of living, health care, and long term care have become major factors in U.S. economic projections, and in policy discussions regarding the quality of life which faces aging America.

And so the framework for elder law took shape. Attorneys from all over the nation began talking to one another about issues that affected people after retirement, not after death. People were no longer dying within five years of retirement; instead, many people faced retirements that last two or more decades. In addition to the personal and financial challenges this created, if these individuals were also faced with chronic, long-term illness themselves or with a spouse, child or parent, significant crises arose. The National Academy of Elder Law Attorneys was formed in 1988 and held its first national meeting with fewer than 100 attendees. In 2002, there were 4,200 NAELA members. (4) The annual spring symposium and fall institute registrations routinely number between 400 and 600 attendees. In addition, there are state chapters in 15 states, and many other state bar associations have or are starting elder law sections. (5) Because board certification is not available in all states, it is offered nationally through the National Elder Law Foundation in association with NAELA. There are presently 255 NELF certified elder law attorneys from 30 states.

Elder law practice encompasses:

* Incapacity planning, including durable powers of attorney, advance health care directives, pre-need guardianships and trusts.

* Public benefits planning, including Medicaid eligibility and financial planning for long term care services.

* Planning for individuals and families of persons with disabilities through special needs trusts and other planning options.

* Guardianships for incapacitated older adults and the disabled adult population where needed.

* End of life decisionmaking.

* Abuse, neglect, and exploitation of vulnerable adults.

* Nursing home residents' rights issues and policy reform

* Traditional estate planning and probate.

Demographics show that these legal issues and others will continue to affect growing numbers. The incidence of compromising chronic illnesses such as dementia, Parkinson's disease, strokes, and long-term mental illness, which require legal protections and the expertise of elder law practitioners, increase each year. Financing long term care is a major issue in the health care debate. Medicaid is both insufficient in funding and unjust in concept as the primary payor source for chronically ill individuals. The elderly are preyed upon by some unscrupulous or ill-informed insurance professionals hawking products that pay high commissions but do little to assist in long-term care planning. Exploitation by "loving" caregivers remains a serious problem for elders who live far from children and other family members, or who have no family.

A cultural phenomenon that has substantially affected elder law practice is the prevalence of second, third, and more marriages. Multiple marriages often mean sets of children on each side who challenge a step-parent on both the right of legal decisionmaking and the use of "their inheritances" to pay for care for either their ill parent or the step-parent. Poor estate planning can result in a "race to the finish line," where the children of the surviving spouse end up with the whole pot of funds. Many contested guardianships, involving complex financial and personal issues, arise due to conflicts among family members, even in first marriages.

Elder law attorneys understand and embrace the fact that the practice requires a combination of unique counseling skills sometimes approaching what other practitioners consider "social work law." Alternative problem-solving skills which attempt to predict and avoid contentious and expensive legal battles constantly are being examined.

It has become common place for some attorneys to advertise themselves as elder law practitioners, even though they have little experience in guardianship, public benefits, abuse, and exploitation, or other areas which define such a practice. Because most attorneys don't know what an elder law practice really is, some of this "demographically appropriate" advertising may occur initially in a benign fashion because holding oneself out as an "elder law" attorney in a state with our demographics naturally seems like good rainmaking. However, because the issues that face clients and families who need long-term care assistance and incapacity planning requires special knowledge and skill, and because poor advice can have devastating, irreversible consequences, board certification has become an important method of identifying practitioners who have sufficient knowledge to advise clients and their families in the required, holistic manner.

Elder law certification tests the applicants on advance directives and end-of-life decisionmaking, incapacity planning, public benefits (including Medicaid and Medicare), retirement planning, long-term care insurance, elder law litigation, nursing home and assisted living facility residents' rights, housing options for the aging, tax consequences of elder law planning, probate and guardianship. Clients and referral sources can have confidence that an attorney who is board certified in elder law will have been exposed to each of these areas of law and are versed in the issues to provide competent representation. Although there are certainly highly competent attorneys who do not seek board certification in their area of representation, most serious elder law practitioners consider board certification to ensure that vulnerable, aging clients can more easily identify a well qualified attorney.

(1) U.S. Bureau of Census.

(2) Id.

(3) AARP Profile of Older Americans 1997, www.aarp.org.

(4) NAELA Fact Sheet, www.naela.org.

(5) Id.

Mary Alice Jackson was certified in elder law in the first class in 1998.

Christopher A. Likens was certified in 2000 and serves on the Elder Law Certification Committee.