Nurturing Elder Law Practices in 2022
As evinced in the other elder law articles recently featured on the Lawyer Monthly site, elder law is a flourishing sector of law in the US and internationally.
Rising demand must be met by capable elder law practitioners – which is where Valerie Peterson and ElderCounsel come in. In this exclusive interview, Valerie explores how her organisation helps to empower new and growing firms to add elder law to their practice, and the personal conviction that led her to specialise in this crucial sector.
Please tell us a little about the current elder law environment. How has it developed in the US since you joined the field?
Elder law has definitely become a more recognised area of law since I started practicing in this area in 2004. Over time I have seen more law schools offering elder law classes, with some offering advanced degrees in elder law. More national organisations are also offering elder law education, and within ElderCounsel we have seen much more interest in adding it as a practice area than in 2008 when we first started as a membership organisation.
In what ways does establishing an elder law practice differ from other kinds of law firms?
It depends on the type of practice you had before adding elder law. If you are an estate planning attorney, then adding elder law is a logical next step. Establishing your elder law practice as an estate planning attorney can be done faster, as you have an existing client base that already needs your services, or they may have friends or loved ones who need elder law services. Having an existing practice and adding elder law can certainly help shorten the time needed to get established, because you have existing referral sources and existing clients to talk to immediately about needing elder law services.
For others who are starting a new elder law practice without a related practice already established, the differences lie in identifying who to reach out to as potential referral sources, getting clear on your marketing message and who you are trying to reach, and really understanding what type of elder law services you want to provide, which will drive the decisions you make about referral sources and marketing.
To illustrate, elder law encompasses a broad area of practice areas. You could offer Medicaid planning, special needs planning and estate planning as the main areas in your elder law practice. Each of those three areas are very broad and if you are not clear about the services you will provide and the people you will provide them to, it can be difficult to get a clear marketing message out to the public and to potential referral sources. The benefit that attorneys who are starting a new elder law practice have is the ability to focus solely on learning what they need to know about how to help clients, and they do not have the distraction of an established practice diverting their attention.
Elder law has definitely become a more recognised area of law since I started practicing in this area in 2004.
How does ElderCounsel aid these new practices in getting off the ground?
ElderCounsel provides intensive training (immersion camps) in three areas: Elder Law, Special Needs Planning and Veterans’ Benefits. Our most comprehensive program is our Elder Law Immersion and Practice Building Camp. It is a year-long program that starts with a three-day live training. We cover the law, planning strategies and case studies, and we spend almost a full day providing guidance on how attorneys can start marketing their services and handle initial consultations. For the next year, attendees have the opportunity to ask questions of the instructors and other attendees once a month, and they have recorded webinars with new content every month. With each immersion camp we follow a similar pattern: we teach the rules and strategies, then have attendees apply the rules and strategies before they leave.
While we provide some marketing materials and education as part of ElderCounsel membership, we also have a separate division called Law as a Business (LAB) Services. LAB Services is a back-office marketing agency for attorneys. We provide customised content for attorneys that we can distribute for them. We can create ad campaigns, websites and eBooks; we handle SEO services and can help attorneys prepare and market an event. We created LAB Services to help attorneys increase their brand awareness, better market their services, and generate more revenue. When adding a new practice area or starting a totally new practice, attorneys are often so focused on learning the law that they do not make time to market effectively. That is the void LAB Services can fill.
What kinds of technology are most essential for modern elder law attorneys?
Modern elder law attorneys should be utilising technology to help them stay current with the law, draft comprehensive documents for their clients quickly, keep their client and non-client contact information current and safe online, and help them with workflows so that nothing falls through the cracks when they are doing the legal work for a client. A document assembly system helps attorneys with staying on top of law changes and helps attorneys draft complex documents quickly. The cornerstone of ElderCounsel membership is our document assembly system, ElderDocx®. By keeping up with law changes in all states and providing an efficient way to draft complex documents, attorneys can spend more time getting new business, or have more personal time to themselves.
It is also critical for attorneys to have some type of law practice management system that will help them keep all of their contacts organised, will help them set up reminders for tasks and send automatic emails when needed, and will help attorneys with billing, accounting, document storage, and more. Your law practice management system, in the cloud or on premises, should help you run your practice more efficiently and grow with your firm.
t is also critical for attorneys to have some type of law practice management system that will help them keep all of their contacts organised.
It is also important for elder law attorneys to embrace video conferencing with clients, to allow clients and prospects to schedule their own appointments online, and to make sure their websites are full of helpful, relevant content and are easy to navigate.
How has the COVID-19 pandemic impacted the way elder law is practiced?
Elder law attorneys are far more willing to use video conferencing or phone calls to meet with clients than they ever were before COVID-19. The belief that every client or potential client has to sit in an attorney’s office has lessened. This has been very impactful for elder law attorneys, as it can be difficult for older clients or clients with significant disabilities to travel to see an attorney. Even during the worst of COVID-19, attorneys were finding creative ways to get documents signed in a safe manner.
Another way COVID-19 has impacted the way elder law is practiced involves where attorneys and their staff are physically located. Like many businesses, law firms realised that they can offer flexibility and allow staff to work from home either on a part-time or full-time basis. There is no longer an expectation that every attorney and staff member has to be in a brick-and-mortar building to provide excellent service to clients. It has also opened the door to a greater talent pool who may not have been able to drive into an office or may not have lived near the law firm, but can work from home and even from another state.
While it may be obvious from my answers above, COVID-19 forced attorneys to embrace new technology, especially cloud solutions, to run their businesses. Their business will no longer be negatively impacted if the attorney, staff, or clients cannot come into a physical office.
ElderCounsel has been run as a virtual company since its beginning in 2008. Our employees have always worked from home, so we were in a unique position to help attorneys make the switch to running their practice virtually in 2020 when COVID-19 forced many of us to stay at home.
Can you tell us how you have observed attorneys in this sector responding to the new challenges?
We saw a few attorneys who accelerated their retirement, but most adapted well to the challenges that the pandemic brought our way. Many elder law firms were able to expand their businesses as a result of changes they made to cope with COVID-19.
Many of our member attorneys have reported having their most profitable years of business in the last couple of years. When I ask them why they think that happened, they have told me that the pandemic forced families to think about their estate plans and also how they want to receive their end-of-life care. Elder law attorneys work with families to map out these concerns and plan appropriately when things are calm before a crisis is at hand.
Many of our member attorneys have reported having their most profitable years of business in the last couple of years.
What have been the most significant recent changes in the elder law landscape, whether in legislation or practice trends?
The Setting Every Community Up for Retirement Enhancement (SECURE) Act, which became law on 1 January 2020, changed how retirement benefits are paid out and when. The age for mandatory distributions from an IRA was raised to 72. Individuals with earned income can now contribute to an IRA at any age, as opposed to having contributions barred at age 70½. One of the biggest changes was the 10-year distribution rule that requires most non-spousal beneficiaries of retirement plans to distribute the inherited account within 10 years of the account owner’s passing. However, there are exceptions for a disabled individual or a chronically ill individual (among other exceptions), which prompted ElderCounsel to create a new trust, called the SECURE Special Needs Trust, that allows a disabled or chronically ill individual to stretch out those payments rather than be limited to a 10-year payout.
In the past year, we have seen some states loosen the financial criteria for qualifying for Medicaid. For example, in July, California will allow an individual with $130,000 to qualify for Medi-Cal benefits, when that limit was previously $2,000. There is a plan to phase out the asset limit altogether in that state. Other states have focused on providing more home and community-based services to allow individuals to access Medicaid benefits in a setting other than a nursing home.
Are there any particular trends that elder law practitioners should watch out for in the years to come? Any newer challenges that you expect to emerge?
The COVID-19 pandemic shone a light on long-term care and where it is received. Nursing home facilities were highlighted in the media and some had large numbers of casualties. There has been a lot of talk in Washington D.C. about expanding Medicaid’s budget to include more money for home and community-based programs (HCBS). This expansion would allow money to be available for care that a person could receive in their homes. Right now, these programs vary widely state to state and are generally underfunded with long wait times for approvals. The challenge for the elder law community is to stay on top of this issue and make sure the qualification rules make sense. Overall, I believe this is a positive trend for families to get their loved ones the help they need without having to move into a nursing home, but getting the legislation passed will require lobbying and volunteer time by elder law attorneys across the country.
Another trend in long-term care is the expansion of creative ways to pay for it through private insurance policies. Traditional “use it or lose it” long term care insurance policies are being expanded upon by hybrid life insurance policies that can also have a long-term care rider. Again, this is a positive trend that elder law attorneys will need to monitor and understand the options clients have that they didn’t have in the past. Working closely with a variety of professionals that serve our growing senior population will be key in the future as these issues receive more media attention.
The COVID-19 pandemic shone a light on long-term care and where it is received.
If you had to give one piece of advice to a law student or recent grad who is interested in specialising in elder law, what would it be?
Immerse yourself in learning this area. Don’t just dabble in it, really embrace it. You will make a huge positive impact in the lives of your clients.
About Valerie Peterson
Please tell us a little about your journey into law.
From a young age I wanted to be a lawyer. We had a family friend when I was really young who was a lawyer and I always saw him helping people. I saw it first hand as a 19-year-old when he helped us after my dad died and we had overwhelming hospital bills. But for his guidance, we could have lost our home and much more. That experience only reinforced my decision to become a lawyer. Plus, I loved school, I loved to learn something and then talk about it (and often argue about it), and I saw law school as a way to continue doing what I loved, with the end result being enabled to help people.
What led you to specialise in elder law specifically?
Growing up, I had two great aunts from my dad’s side who were always very involved in my life. Neither of them had children of their own, and they treated my sisters and me like their own. After my dad died, they became even more involved – they would attend my college basketball games, check on my mom constantly, and they helped pay for law school.
My great aunts lived together for many years. In my third year of law school, one of them died. After she passed away, we realised that my other aunt’s memory was failing quite rapidly. I graduated from law school and took a job in the same town where my aunt lived so I could help care for her, as my mom was about five hours away. Together mom and I did the best we could, but eventually we needed to move my great aunt into a nursing home as she was no longer safe at home due to advancing dementia of the Alzheimer’s type. That was where the real challenges began, which would later lead me to elder law.
I made a lot of poor decisions about my aunt’s care based on ignorance. I was a litigator at the time, and I had never heard of elder law. I certainly did not realise the rights my aunt had as a patient in a nursing home, so when they called to tell me they were discharging her because she had become combative, I did not fight it, even though it felt wrong. They gave me 48 hours to “come and get her,” but unfortunately there were no other nursing homes with space in my city. Instead I had to get her admitted to a hospital for evaluation while I scrambled to find her a new facility. The only one I could find was an hour away. With a dementia patient, a change of facility can be very detrimental, and it was to my aunt – she did not speak much after that first move and hardly recognised me from that point on.
I ended up moving her one more time to a facility 30 minutes away before she died three years later. After the first move she hardly spoke to me again. I probably caused her more suffering than was needed because I did not understand how to fight for her rights as a dementia patient in a nursing home.
Once she passed away and my mom and I had the chance to catch our breath and reflect on all that had happened, I realised that this is an area where families really need specialised help. I started doing some research and learned that “elder law” actually was a recognised practice area. There were no elder law attorneys in my city, so I started doing more research, then decided to open my own elder law firm.
Can you share anything about your plans for ElderCounsel in 2022 and beyond?
We are starting to offer in-person education again at our dedicated conference centre space in Denver, CO. We will be offering our traditional immersion programs and some new ones aimed at marketing and practice building.
We will also continue investing in products and services that help our members be the best at what they do. We feel it is our responsibility to continue educating attorneys and the public about what elder law is and encourage as many as we can to embrace this area of law. There are so many families who need this type of specialised help and right now there are not nearly enough attorneys qualified to provide it.
Valerie L Peterson, Chief Executive
Tel: +1 888-789-9908 x581 | +1 541-588-6262
I am Valerie Peterson, CEO of ElderCounsel. ElderCounsel is a membership organisation that supports elder law attorneys across the United States. Members of ElderCounsel receive a comprehensive document drafting system, education and marketing as well as practice building support. We cover elder law, estate planning, Medicaid planning, special needs planning and veterans’ pension planning in our documents and education.