by Benjamin Scott Wright
May 1, 2020
Republished with permission from the May 2020 issue of Wisconsin Lawyer, the official publication of the State Bar of Wisconsin.
By 2040, the total population age 65 and older will grow 72 percent. This is part of a national trend. Elder law is in demand. “There’s plenty of clients,” says Amy Greske, an associate at O’Neill Elder Law in Hudson. That demand will only grow as baby boomers retire.
The elder law attorneys interviewed here laud the practice area. They say it is intellectually challenging, collegial, profitable, and rewarding. But it isn’t always clear what “elder law” is or how to break into it.
What is Elder Law?
Elder law is a niche practice area focused on older clients and individuals with disabilities.
It tends to grow out of an estate planning practice. “I started out just doing estate planning,” says Chantelle Ringe, a partner at Hill Glowacki LLP in Madison. When long-term care issues kept arising for her clients, Ringe felt she should learn how to help.
Similarly, Jennifer Imediegwu, now an associate at Moertl, Wilkins & Campbell S.C. in Milwaukee, found she enjoyed the estate planning and guardianship work at the general practice firm in North Carolina that she joined a year after law school. The firm was in a smaller region with no elder law attorneys, and issues frequently came up that required referrals to firms in the big city farther away. Learning elder law turned out to be a great business opportunity and a good career move.
Most elder law attorneys interviewed spend about half their time on traditional estate planning (keeping elder law and special needs issues in mind) and about half on Medicaid planning and guardianship. Practices vary widely, though, and often include special needs planning, estate administration, Medicare, Social Security, veterans’ benefits, and more.
Special needs planning is a closely related practice area with overlapping issues related to disability matters, such as guardianship, drafting powers of attorney, supported decision-making, and eligibility for public benefits. “Elder law attorneys are well positioned to develop a special needs niche,” says Victoria Davis Dávila, a partner at Davis & Pledl S.C. in Milwaukee who practices disability law. “Having some personal experience or connection with special needs issues helps,” says Michael Fioretti, an associate at Johnson Teigen LLC in Fitchburg whose clients include elderly people and people with disabilities.
Elder abuse and neglect matters tend to be distinct from other types of elder law. “A lot of people seem to think elder law is just elder abuse or personal injury,” says Fioretti. Kate Schilling, Legal Services Manager at the Greater Wisconsin Agency on Aging Resources (GWAAR), agrees: “It’s not personal injury for nursing home residents.” Rather, as Fioretti explains, “elder law is planning to have people cared for.”
Because most elder law attorneys spend a large part of their time on estate planning and Medicaid, the practice area is largely transactional. Still, “it’s actually not uncommon to be in court,” says Ringe—for guardianship, to petition a court for permission to preserve assets under a power of attorney or guardianship, or for estate administration.
Jessica Trudell, counsel to the Wisconsin Board on Aging and Long-Term Care, learned a lot by taking public defender and county appointments during her several years of solo practice. “Those skills are transferable,” she says. “The same skills you are applying in your current practice will apply in elder law.”
Elder law is almost always practiced in small firms. The attorneys interviewed for this article all practice in firms or offices of two to seven lawyers. They cite collaboration with other elder law attorneys in their firms—and in the statewide elder law community—as an important and enjoyable part of their practices.
Daily life as an elder law attorney typically involves client meetings, research, and drafting. An elder law practice is “a really nice blend of client meetings, preparation for those meetings (which often involves research), and drafting trusts, powers of attorney, and court pleadings,” says Ringe.
Meetings are the foremost activity, often involving family and taking up to two hours to discuss planning options and complicated administrative procedures with clients. Greske, for example, has two or three client meetings each day in two-hour blocks. “Take the time,” she says. “Even if clients think they don’t need two hours, being patient helps you understand them. Sometimes it takes two hours for a client to really talk.”
Fioretti agrees that it may take time for the real issues to come out. “Clients need to feel comfortable talking to you about big financial and personal issues,” he says.
Meetings often include an older person’s spouse or adult children, who may be serving in fiduciary capacities. “The most important thing is to identify your client from the get-go and remember who that is,” says Ringe. Capacity and undue influence are common issues. “Assessing capacity is a big job of an elder law attorney,” says Ringe, and “also assessing voluntariness.” But “just because a client has incapacity or dementia doesn’t mean they have incapacity for everything,” notes Trudell.
Besides meetings and document drafting, these elder law attorneys spend time preparing Medicaid applications; staying in touch with long-term care facilities, local Aging and Disability Resource Centers, social workers, guardians, and guardians ad litem; tracking legislation; researching changes in regulations and statutes; making phone calls; and speaking publicly. Many rely on paralegals for routine drafting but take the reins themselves for Medicaid applications and more complicated elder law issues.
Although most elder law attorneys are in private practice, some work for nonprofit or governmental entities. Trudell, for example, provides legal answers and support for the Long-Term Care Ombudsman Program, Voluntary Ombudsman Program, and Medigap Helpline of the Board on Aging and Long-Term Care. Before that, she was the managing attorney for GWAAR’s Guardianship Support Center.
Schilling, legal services manager at GWAAR, enjoys the fact that she doesn’t have to do any billing. “I can take cases private attorneys can’t because of funding,” she says. Many Medicare and Social Security cases are of that type. “Every day is a new issue, a new challenge.”
Wherever elder law attorneys practice, the issues they help with are complicated and challenging. “There are a lot of gray areas,” says Trudell. When it comes to the law, interpretations and applications can vary widely across the state. This can frustrate clients and their families. The lawyers interviewed for this article universally cite keeping up with constant changes in the law as a significant challenge. Even though elder law attorneys take the time to understand these nuances, they must often work with courts, financial institutions, long-term care facilities, and other entities that do not.
According to Gina Ziegelbauer, an associate at Steimle Birschbach LLC in Manitowoc and Sheboygan, another challenge is communicating the law to clients and other people in a clear and understandable way.
It can also be difficult to navigate ethical issues when dealing with families and clients with diminished capacity. “We deal with ethics issues a lot,” says Fioretti.
While the challenges are significant, the rewards of elder law practice far outweigh them. Ziegelbauer enjoys helping people who are facing a scary situation and feeling overwhelmed and guiding them through the process step by step. Greske also likes helping clients through an intimidating process.
Imediegwu finds it rewarding to “help family members navigate such a complex system and get a win-win for everyone,” taking frustration and stress off the family in the process. Elder law attorneys solve a pressing need for their clients and see an immediate effect. “I think elder law clients are so much more appreciative of what you do for them,” says Greske. “Nine times out of ten, at the end of the day it feels good.”
The Need for Elder Law Attorneys
The demand for elder law will only grow as demographics shift and the population ages. “Look at the statistics,” says Trudell. A Wisconsin Department of Health Services (DHS) report1 projects that the number of Wisconsinites with dementia will double by 2040. The total population age 65 and older will grow 72 percent. This is part of a national trend. “By 2060, nearly one in four Americans will be 65 years and older,” notes a report by the U.S. Census Bureau.2 “The number of 85-plus will triple.”
Ringe notes that, in general, there is a large demand for knowledgeable elder law attorneys. Moreover, more than one lawyer noted that many current elder law attorneys soon will be planning to retire. “We have a lot of elder law attorneys looking to retire in the next two to five years,” says Schilling.
Greske summarizes the situation: “There will be more clients needing our help, and it will only get harder for them to get it. Our system is not ready for all of them.”
The need is especially pronounced in northern and rural parts of the state. “In Wisconsin, the population is rapidly aging in rural areas, and [this] is most pronounced in the northern half of the state,” notes the DHS report. By 2040, 18 counties in Wisconsin—most of them northern—are projected to have populations at least one-third age 65 or older. “We have a huge shortage of lawyers in the northern part of the state,” says Schilling. Ringe noted a similar dearth in rural areas; her firm in Madison often gets clients from counties other than Dane County.
Because of the complexity and constant changes, however, practicing elder law part time is not recommended. “What we need,” says Ziegelbauer, “is more people who aren’t dabbling in it, but are really focused on it. If you’re going to go for it, then really go for it.” Schilling echoes the sentiment: “There are a lot of people who do estate planning but not Medicaid planning, which can cause issues. This isn’t an area you can dabble in.”
Not Everyone Is Suited to Practice Elder Law
Given the demand for elder law attorneys and that commitment to the field is necessary, what sort of person is suited to this practice area?
Lawyers consistently listed empathy, compassion, patience, being a good listener, and being a good communicator as necessary traits. “You have to like working with people,” says Schilling. A good elder law attorney has a passion for helping others and has a person-centered approach, adds Trudell. “A lot of what we do is teaching—teaching the rules and planning options, which are often complex,” says Ringe.
Ziegelbauer says that being good with people and a good communicator is part of the job: “It’s a lot of information to people. Take it slow. Read body language. Change the way you explain things if it isn’t working. And always be available for follow-up questions, even five years down the road.”
Ringe emphasized attention to detail as a helpful trait, especially when it comes to drafting documents. “Not everyone seems to have a strong attention to detail or desire to be a strong drafting attorney,” she says.
In general, elder law is an intellectually challenging practice that is ever changing. “You have to like puzzles,” says Schilling. “You have to be able to say, ‘I don’t know, I’ll research it and get back to you.’” A good elder law attorney is someone who does not mind a lot of change, has a hunger for solving problems, and is curious and keeps learning.
Integrity and a strong sense of professional ethics also are needed to practice elder law. Many lawyers said that the ability to take a stand is important. “You need the fortitude to deal with clients and families on ethical issues,” says Fioretti. Asking a close and trusted family member to step out during a meeting, so as to speak to the client privately, is one example.
How to Get Started in Elder Law
Most of the elder law attorneys interviewed for this article came to elder law through an interest in estate planning, and as Schilling notes, “Where there’s estate planning there’s usually a need for elder law.” Some lawyers spent years in criminal litigation before deciding they needed a change. For those who took public defender and county appointments, guardianship was often another point of entry into elder law.
Nearly every lawyer started by joining a firm with an established elder law practice. The interviewees universally acknowledge the importance of learning from someone with experience. Ringe, for instance, says that joining a firm that has done elder law for decades was one of two things that formed her career.
“When I first started practicing elder law,” she says, “it was a very steep learning curve. I became a student of the law for one to two years, delving into treatises and researching hearing decisions.” Lawyers who don’t have colleagues within their own firm to learn from should “be willing to co-counsel with more experienced attorneys.”
The other thing that formed Ringe’s career was becoming involved in the National Academy of Elder Law Attorneys (NAELA) and its Wisconsin chapter (WINAELA). “It’s not easy to practice elder law on an island,” says Ringe. Fortunately, the elder law community is active and collegial. “Join NAELA, attend conferences, and be active on the listserv,” says Ringe. Fioretti, who graduated from the U.W. Law School in 2019, attended the WINAELA workshop (held annually in January) and its elder law basics program. He found it very helpful. Greske also singled out this program as a great way to get started.
Many lawyers also recommend joining the State Bar of Wisconsin’s Elder Law and Special Needs Section and finding a mentor. “Join the Elder Law Section and read the elist,” says Schilling; “get a mentor, and don’t be afraid to reach out to more experienced elder law attorneys.” Others suggest going to State Bar continuing legal education programs in person and to network. “Find someone experienced to watch,” says Greske. That’s exactly what Fioretti has done: “I’ve learned by listening and observing more experienced attorneys in the firm.”
Fioretti has also, like Ringe, delved into his firm’s library. Many lawyers recommend the State Bar of Wisconsin PINNACLE® publication Advising Older Clients and Their Families and materials from past State Bar CLE programs. Ziegelbauer recommends getting the Ultimate Pass and taking advantage of on-demand CLE. For Medicaid, every elder law attorney must become familiar with the Medicaid Eligibility Handbook, the DHS’s policy manual for Medicaid applications, which is published online3 and available for free. And of course, as Trudell notes, “read the statutes!”
According to Ringe and Ziegelbauer, elder law clients come almost exclusively from two sources: referrals and public speaking. Ringe and Ziegelbauer credit referrals from past clients as a major source of work. Referrals also come from estate planning attorneys who don’t handle Medicaid issues, other attorneys who don’t want to dabble in elder law, the local Aging and Disability Resource Center, WisPACT (a private nonprofit organization that administers pooled and community special needs trusts for people with disabilities), financial advisors, and social workers. Public speaking may include educational seminars, attending and speaking at senior expos and conferences, and community education classes. “People get to see we’re not terrifying,” says Greske. “You have to build trust.”
Because trust is needed, most elder law attorneys do little advertising. They might sponsor community events. Ziegelbauer says she gets “a surprising number of clients from the phone book.” And since past clients are a major referral source, established firms make efforts to stay in contact. “My firm does a quarterly mailing to clients,” says Imediegwu. “It’s a great way to stay engaged and inform them of any changes in the law.”
When it comes to serving clients, “take every client opportunity seriously,” says Imediegwu. These clients tend to be very receptive to good service. “Don’t look past the older client in the room,” says Trudell. “Include and involve them. Make their wants the center.”
Elder law services are in demand now and destined to be even more so in the coming decades. As a collegial, rewarding, and profitable practice area, it should attract many lawyers in the next few years.
Yet many current lawyers have noted an apparent lack of interest in elder law among newer attorneys. “Elder law does not attract many law students, and it’s a shame,” says Schilling. Neither the U.W. Law School nor Marquette Law School currently offers an elder law course. Schilling thinks the “elder law” label might be misunderstood. Ageism is also a problem.
It is a misconception to think that newer attorneys will have a hard time practicing elder law. The elder law attorneys interviewed for this article—who all graduated from law school in the last 14 years—rarely found an age difference with a client to be a problem. “I think baby boomers are just looking for attorneys with good people skills who will work hard for them,” says Schilling. Fioretti has discovered that having children helps him find common ground with clients. “You can have a family, go to law school, and start your career, and it’s beneficial,” he says.
Attorneys of all stripes should consider elder law, says Greske: “I believe that every attorney should consider adding elder law to their practice. Not only is there an existing shortage of elder law attorneys in Wisconsin, the client base is only going to grow during the next decade.”
“Its many facets can appeal to every attorney, regardless of specialty,” she continues. “An elder law practice can include elements of family law, litigation, administrative law, estate planning, criminal law, mediation, and more. No matter what area of law you currently practice, whether its personal injury or plaintiff litigation, there is a component of elder law that could fit your skillset.”
Setting aside the financial advantages to practicing elder law, Greske thinks personal and professional satisfaction on their own should attract lawyers. “Elder law clients look to their attorney for guidance through periods of their lives that they never contemplated experiencing, and many have no idea where to start. As an elder law attorney, you have the ability to guide clients and their families through what can be a challenging time.”
As for Ringe, the only thing she would have done differently getting started in elder law? “Get into it sooner.”