Meeting with an elder law attorney is a significant step, and can be fraught with uncertainty. People often come to see me in times of crisis when a parent or other loved one is in declining physical and mental health and needs help caring for their daily lifestyle needs. Before that circumstance arises, 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.

Successful elder law planning does not revolve 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 strategies and documents designed to meet those objectives.

When scheduling your initial meeting, elder law attorneys typically will ask you to complete an intake questionnaire. The form may differ depending upon whether it’s a “crisis” case where a spouse or parent needsimmediate long-term care, or if it’s a more traditional planning case where the client is looking to plan for a future incapacity and for distributing 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 manner in which assets are titled is critically important, as improper asset titling has derailed many estate plans.

Also, don’t be surprised–or offended–if the 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 those practices, the attorney’s sole objective is to bring in cases where the fee is based entirely on the ultimate settlement or trial verdict, and the client never pays a fee out-of-pocket; instead, the attorney’s fee is a percentage of the settlement or verdict amount, often one-third. Given that the majority of attorney advertising is for personal injury law, it isn’t surprising that the public’s perspective about attorney fees is based largely on television ads that 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. We 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 viable elder law practice.

At the initial consultation you should have a written list of your pertinent questions and concerns. The attorney will be asking many questions regarding the facts of your personal situation, whether it’s a crisis case or a more traditional estate planning matter. In a Medicaid crisis planning case, the attorney will need to know the health issues involved for both the client and, if married, their spouse. The attorney will also review the income and asset information that you (hopefully) have included on the questionnaire, including any gifts to children or other third parties made within the preceding five years. All such information is critical for determining Medicaid eligibility.

In a “proactive” estate planning matter, the attorney will discuss your planning goals and needs, the make-up of your family, and will often ask you to review 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 attorney’s planning process. 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!