Meeting with an elder law attorney is a significant step. People should understand what the elder law planning process involves, and what your attorney will need from you to make the process the most effective it can be.
First, don’t have the mind-set that planning revolves around a particular legal document such as a will or a trust. Wills, trusts, powers of attorney, health care proxies, and other planning documents are merely a lawyer’s “tools of the trade” that achieve one or more specific planning goals. Instead, it is imperative that your attorney be able to learn as much about you, your family, the nature of your assets, and your objectives to recommend the appropriate legal documents designed to meet those objectives.
When scheduling your initial meeting, most elder law attorneys will ask you to complete an intake worksheet or questionnaire. The form may differ depending upon whether it’s a “crisis” case where a spouse or parent needs immediate long-term care, or if it’s a more traditional planning case where the client is looking to plan for future disability and for the disability of assets upon death. Regardless of the planning needs, these forms will typically ask for names, ages, and contact information for your children or other key family members. You will also be asked to provide a list of your assets, including how they are owned—individually, jointly, or payable at death via a beneficiary designation. The way assets are titled is critically important, as improper asset titling has derailed many estate plans.
Also, don’t be put-off if your elder law attorney charges a fee for the initial consultation. Elder law is a far different practice than say, personal injury or medical malpractice; in that practice, the attorney’s sole objective is to bring in cases where the fee is based entirely on the ultimate settlement or trial verdict. In personal injury or medical malpractice cases, the client never pays a fee out-of-pocket; instead, the attorney fee is a percentage of the settlement or verdict amount, typically one-third. So, not surprisingly, the public’s perspective about attorney fees is based largely on those television ads that always mention the “free consultation.” Elder law attorneys are paid directly by the client for the advice provided and work performed, and do not work on a contingent fee arrangements. I provide valuable advice at my initial consultations, and sometimes the advice provided at the initial meeting is all that the client needs to resolve the issue facing them. Charging for my time and advice is appropriate and necessary to run a successful elder law practice.
At the initial consultation you should have a written list of your pertinent questions. The attorney will be asking you many questions regarding your planning goals and needs, the make-up of your family, and will often ask you to discuss the strengths
and weaknesses of your children and other family members. You must be candid with the attorney. For example, if a child has mental illness, addiction issues, a bad marriage, or poor spending habits, that information is critical for your attorney to provide the best advice.
At the conclusion of the meeting your attorney will likely recommend a plan of action (if any), and will quote a fee for the projected work. Many if not most elder law attorneys charge flat fees for planning work rather than charging by the hour. This billing method provides the client with cost certainty and allows for open communication between the attorney and client; in my experience few things annoy clients more than getting a bill from an attorney for time spent on routine communications.
The key to a successful outcome is to embrace the process engaged-in by your attorney. Presumably you are hiring an attorney with the requisite experience, knowledge, and resources to complete the necessary planning for you. But he or she cannot do it alone, as client buy-in and cooperation is essential. A saying I learned years ago sums up my philosophy: your planning won’t work if your attorney cares about it more than you do!
Richard J. Shapiro is a partner with the Hudson Valley law firm of Blustein, Shapiro, Frank & Barone, LLP. He is the author of the 2017 book Secure Your Legacy: Estate Planning and Elder Law for Today’s American Family published by Archway Publishing. Mr. Shapiro, who is “AV” rated by Martindale-Hubbell and named a “Super Lawyer” in Estate Planning and Probate law, is a member of WealthCounsel, ElderCounsel, the National Academy of Elder Law Attorneys, the New York State Bar Association (Trusts and Estates and Elder Law Sections), and the Hudson Valley Estate Planning Council. You can reach him at (845) 291-0011 or at [email protected]. The information in this article is for general information only and is not, nor is it intended to be, legal advice.