A New Breed of Attorney Untangles the Law for Seniors

Attorney Ed Long was giving his standard pop quiz to a rapt audience that was finding some of the questions easy. True or false: Most people never live in a nursing home. “True,” murmured his listeners, correctly.

But others were tricky. True or false: Everyone should have a living trust. Sounds like a good idea, but not always, explained Long. “What’s the reason to do a living trust?” he asked. “Avoid taxes!” The answer was a confident chorus.

It was a recent rainy, foggy morning, but the meeting room in the Rancho Palos Verdes Hesse Park clubhouse was filled for the monthly meeting of the Peninsula Seniors. They had come to hear guest speaker Long lay out some legal guidelines to help them take charge of their lives.

For the next 90 minutes he worked his way through powers of attorney, health care decisions, incapacity, conservatorships, avoiding probate, wills, trusts, estate taxes, Medicare, HMOs and Medi-Cal. Experts agree it’s a paperwork jungle.

“Social Security and Medicare and Medicaid surpass tax law in their depth and regulations--especially Medicaid,” said Charles Sabatino of the American Bar Assn.’s Commission on Legal Problems of the Elderly. “One judge described it as a ‘Serbonian Bog.’ I had to look that up--it’s a swampy bog entrapping travelers, and that’s what Medicaid will do if you aren’t ready to grapple with it. The only constant is that it keeps changing both at the state and federal levels.”

Planning for the future, especially for those who have rounded the bend of 50, is increasingly complex and Long represents a new breed of specialist--the elder-law attorney--who is prepared to help.

Emerging in a field traditionally dominated by estate planners whose basic service was writing wills, most elder-law attorneys are sensitive to a cluster of contemporary issues that confront individuals as they age. Not only must the attorneys know their way through a thicket of government programs, insurance regulations and tax codes, they tend to bring to their client relationships a sense of humanism and compassion not always associated with their profession.

In fact, their challenge is twofold: Before convincing seniors of the need to make plans, they often must overcome the fears seniors have. Most elder-law headlines in recent years have been inspired by unscrupulous attorneys and insurance representatives selling overpriced financial planning packages or worthless annuities.

“You can have a great impact on people--there is an intensity about people doing elder law,” said Michael Gilfix of Palo Alto, who seems to have coined the phrase “elder law” several years ago. “These are attorneys who abhor conflict and think many lawyers are too quick to be litigious.”

Gilfix was among a handful of attorneys who formed the National Academy of Elder Law Attorneys, headquartered in Tucson, Ariz., nine years ago and has seen it expand to its current 3,300. “It’s an exploding field,” he said.

There are now more than 33 million Americans 65 years or older, representing nearly 13% of the population and that figure will escalate as the baby boom slowly develops into an elder boom. Improvements in medical technology also mean that more people are living longer (by 2050 the percentage of people older than 85 is expected to increase from 1% of the population to 5%), often with chronic illnesses that may require expensive long-term care. The disabling illness that wipes out the family assets is everybody’s nightmare.

Most importantly, to elder-law attorneys beating the drums for planning, they are dealing with issues that, if handled correctly, can help one maintain independence. “We used to focus on after-death events,” Sabatino said. “But the changing demographics are that people live longer with increasing disability.”

The American Bar Assn. just introduced a rigorous certification program to focus on the new specialty. “It isn’t simple anymore--you can’t just have a will,” said Debbie Barnett, director of the National Elder Law Foundation, also in Tucson, which administers the certification program. She thinks the field will grow further as consumer education increases. And because many families are scattered across the country, there may not be a family caregiver at hand.

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“Predator-in-waiting” wrote Clifton Kruse, president of the Academy of Elder Law Attorneys, in a recent journal essay. He was describing unscrupulous caretakers who win the trust of a frail elderly person, first by running errands, then moving in and becoming invaluable. “Demands by the invader may follow,” wrote Kruse. “Terrified of being abandoned and forced into life in a dreaded nursing home . . . property is conveyed, joint accounts are opened, revocable trusts are created and funded.”

And even a supportive family often isn’t enough.

“It’s very scary,” said Steve Murphy of Long Beach, who consulted Gilfix when both his parents required nursing home care. “Most people just don’t know what is legally available from a long-term-care standpoint as far as protecting their assets.”

Gilfix, Murphy said, was able to help his parents remain financially independent to some degree. “He saved my folks quite a bit of money and allowed them to keep their dignity.” Murphy, an insurance agent, is now emphasizing long-term care insurance (which his parents did not have) to his own clients.

Sabatino sees elder law developing as largely a middle-class practice. “They are the most financially vulnerable to the costs of long-term care,” he said. “The poorest have public programs, and the richest can pay for it. It’s the middle who get squeezed out.”

And the feedback he gets from practitioners is that they like the challenge. That’s a common theme. “I always tell people I get hugs instead of handshakes and--sometimes, homemade cookies instead of money,” said Donna Bashaw of the Laguna Hills Elder Law Center.

There’s a touch of social worker in some of these lawyers. Stuart Zimring of North Hollywood, president of the Southern California Chapter of National Academy of Elder Law Attorneys, noted that, “A significant number have come from public interest law or as a second career from nursing or teaching. We are not drawn into it because of the big bucks. There can be a comfortable living made, but it is extremely time-intensive.”

Bashaw suggests that anyone seeking elder-law advice shop around, as hourly fees can vary widely. Like many in the field she likes to work with a fixed fee whenever possible.

Although elder-law attorneys like to think of themselves as practicing “preventive law,” too often they are not consulted until a crisis has occurred. Whatever the conditions, they’re aware that they are treading on fragile emotional territory. Talking about the end of life is never easy, even among family members, who often postpone discussing such issues as medical life support systems until it is too late.

“People don’t want to do wills or trusts because they don’t want to even think about dying,” Bashaw said. “Now we are saying that dying is not the worst thing that can happen.”

But with the inevitable dynamics of an aging population making headlines, the touchy subject of mortality is coming out of the closet.

“Ten years ago it was very hard to get people to discuss openly when they would want treatment terminated,” Gilfix said. “Now we have a Supreme Court case about assisted suicides. That whole field has opened things up tremendously.”

“It means a lot of hand-holding,” said Zimring, who backed into elder law as his clients increasingly sought help with Medicare, Social Security and retirement home issues.

In addition to expanding his estate-planning services, which he now describes as “life-planning,” and using outside sources for social work and geriatric care, he has made physical changes in his office. “Here I was having conversations with people about the most intimate details in their lives--about life and death.”

He got rid of his desk and now serves clients tea or coffee in a comfortable conference room with a view of an outdoor garden. “I have a ground-floor suite with wheelchair access,” he said. “I am not above making house calls.”

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Ed Long had been a longtime partner with an old-line Wall Street law firm, helping cities and utility companies negotiate big-ticket borrowing deals, first in Manhattan and then in Los Angeles, when he made a career change in 1993. It was triggered by a family problem. “My wife’s parents, who live in upstate New York, had some problems with selling their house after a co-owner died, and we couldn’t find anyone with the expertise they needed.”

And although Long, 50, didn’t know what label to use at the time, he could see a pressing need for lawyers to deal with problems that come up as people age.

After 23 years of focusing on a mostly municipal finance practice (“That had been very sophisticated, but the rewards were mostly monetary”), he was ready to do something more personal. After three months of getting up to speed, he launched his elder-law practice in a small office in Redondo Beach. He immediately began to see a real mix of needs.

“People are so confused,” he said. He described a “misinformation chain,” in which a piece of information gets slightly more distorted each time it is repeated. Such urban myths as “the state takes your house away to pay Medi-Cal nursing home bills” take on a life of their own.

“People who are Medi-Cal candidates for nursing home care make big mistakes with their houses,” he said. “They don’t know that a house is exempt for Medi-Cal eligibility purposes. They don’t know about geriatric care managers. People are confused about powers of attorney and about living trusts--not everybody needs one.”

He encountered repeated cases in which planning could have eased a crisis. “It’s an awkward subject to bring up,” said Robin Fernandez, senior administrative assistant for Acura Advertising in Torrance, who consulted Long when her father entered a nursing home and her mother had to sell their house. Because their planning hadn’t been updated, a power of attorney had expired, increasing the likelihood of having to go to court for a conservatorship. “You are just so overwhelmed,” she said.

She had never heard of elder law until her financial planner recommended Long. “What I loved about Ed was, he took notes while we were talking and handed me a prioritized list, and he hooked me up with this wonderful woman who helped me find a place for my dad.”

Long, who was seeing about 200 clients a year in his new practice, decided to enlarge his audience by taking his show on the road. Last fall he and his wife, Pat, who has a background in social work, set up HELP Corp. (Healthcare and Elder Law Programs Corp.), a nonprofit organization. That’s what brought him to Hesse Park in Palos Verdes recently with his pop quiz and slide show.

“I don’t do divorces and I don’t sue people,” he explained to the audience. “We can talk about wills, but we don’t write them. We’re an information provider for the South Bay area, not a law office.”

Although basic forms are available for some of the legal documents, Long doesn’t advise the do-it-yourself route. “People could do a durable power of attorney for health care, if they attended a hospital seminar, but I normally recommend that an attorney be involved,” he said. “It takes a lot more thought and study than just filling out a form.”

He thinks his operation is a first in the West. In addition to such free seminars, he offers private consulting with an individual or family for a $25 fee.

“The personal rewards are very substantial, the financial rewards are much less so,” said Long, who is now looking for grants and donations to sustain his corporation. He hopes his model will be widely imitated. “It is a very satisfying practice when you can find solutions that directly help people.”