NAELA Trends Committee Report Challenges and Opportunities for Elder Law and Special Needs Planning

April 25, 2016

Introduction

The NAELA Trends Committee is responsible for monitoring and reporting on changing and emerging issues or trends that could impact the fields of Elder Law and Special Needs Planning. The Committee is appointed by the NAELA President, with input from the Committee and members who wish to volunteer. The Committee is a mixture of NAELA members across the experience spectrum from new or transitioning attorneys to past NAELA Presidents. The goal of the Committee is to prepare issue papers and submit them to the NAELA Board and other NAELA Committees for review with the hope that the issue papers might be published by NAELA, or used as the basis for NAELA programing.

Starting in 2014, the Trends Committee explored changes to the practice of law. Over several calls Committee members had wide-ranging discussions about changes to law practice in general and the changes to Elder Law and Special Needs Planning in particular. This article provides an overview of those discussions. Trends Committee members hope it encourages broader reflection, discussion, and action among NAELA members. The article is divided into three sections, each of which addresses a distinct area of concern.

The first section, Macro Trends, addresses some of the forces that we believe are most shaping law practice in general and Elder Law in particular, and highlights some of the non-lawyer competitors in the market for legal services.

Next, Why Dedicated Elder Law Attorneys Will Always Be In Demand, responds to many of the trends described in the first section, and highlights what we believe are some of the core attributes of dedicated Elder Law and Special Needs Planning attorneys. We believe that cultivating these attributes will ensure that Elder Law has a strong future even in an increasingly competitive market for legal services.

And finally, the last section, Continued Dangers and Missed Opportunities, highlights many of the ways in which Elder Law and Special Needs Planning attorneys often fail to reach our full potential to serve the public, serve clients, and grow lasting and successful practices, along with a few suggestions on ways to proactively grow a practice.

1. Macro Trends
Integration of legal and non-legal services
We practice in a world where there is not only growing global competition to offer services to United States consumers, but also a growing integration of legal and non-legal services under the same roof. In the United Kingdom and Canada, for example, law firms are allowed to have non-lawyer owners. Consequently, non-attorneys are sometimes able to perform work (such as administering an estate) traditionally done by an attorney. Here in the United States, non-lawyer title companies do the majority of real estate closings in some states. Washington State has a new program for “limited legal technicians” who are allowed to advise clients, and prepare and file court documents on a limited range of family law issues.

The job market for attorneys
The United States has more law schools than ever before (many of them private “for profit” institutions) producing more graduates competing for fewer available attorney jobs than in past decades. In a June 2013 video from the National Association for Law Placement, Association Director James Leipold and Bloomberg Law reporter Lee Pachia describe a marketplace in which recession has led many law firms to employ more technology and fewer attorneys to help manage costs, resulting in a job market in which there are both fewer attorney jobs available and in which firms are more hesitant to hire inexperienced graduates for those attorney jobs.

Growing aging population
The United States has a rapidly growing aging population, with more than 10,000 residents turning age 65 each day. Demographers often refer to this as a “silver tsunami” in which Baby Boomers who are aging into retirement begin to comprise a larger percentage of the United States population as a whole.4

Non-lawyer competition
There is growing competition to attorneys from non-lawyer services and outsourced services. While some members wondered about the development of a “law while you shop” model (Powers of Attorney from WalMart, anyone?), nearly all of us are familiar with the document preparation services offered by LegalZoom, RocketLawyer, and similar online or for-purchase products. (More on these later).

Other professionals as competition
There is a greater awareness of Elder Law as a practice area for both new law school graduates and for many currently practicing attorneys who are transitioning to Elder Law as a focus of their practice. Further, many of us have seen a growing number of financial advisors and other professionals who provide (or attempt to provide) services traditionally offered by Elder Law attorneys.

2. Elder Law and Special Needs Planning Attorneys Will Always Be In Demand
In the face of all of these trends, dedicated Elder Law and Special Needs Planning attorneys have several attributes that mean our services will always be in demand. Because each of these attributes is inter-related, we have opted to list them in a way that implies a hierarchy of attributes.

Our Expertise

As long as there are complex systems to navigate for obtaining public benefits, for locating service providers for the needs of aging clients, and to plan for an uncertain future, there will be a need for dedicated Elder Law and Special Needs Planning attorneys. Take the case of a relatively typical client for an Elder Law attorney: an 82-year-old widow who has some basic estate planning in place, but whose care needs can no longer be met at home. Who is going to speak with her (and her family, if appropriate) about the options for meeting her needs, and her options for paying to meet those needs? Who is going to update her estate and incapacity planning documents in ways that are mindful of her overall needs, family dynamics, and the intricacies of larger systems? Here, we posit that the very complexity of issues faced by many of our clients, and the need for legal expertise (and sometimes representation) to meet their needs means that dedicated elder law attorneys are an essential part of the communities we serve.

Our Network
The connections we make locally among other attorneys, advisors, and service providers enable us to ensure that when the clients and families we serve have unmet needs — whether it be for a trustworthy and senior-friendly CPA or financial advisor, a reputable home health care company, or an accessibility consultant to conduct a home visit and make recommendations for the most cost-effective modifications to make a home more usable for a disabled adult or child (or for anyone wanting to age in place) — we can offer sound recommendations. Likewise, when the needs of a client or their family stretch across state boundaries — as is often the case when a parent or loved one moves across state lines to be closer to an adult child or other family member, if there is ancillary probate required for property in another state, or if a local family simply seeks a recommendation for a good Elder Law attorney in another stat– the dedicated Elder Law attorney can tap into a national network of peers who can meet these needs, and can make recommendations based upon reputation, experience, or both — not merely upon whose name comes up first in an online search.

Our Humanity
Nearly all of us have reviewed estate and incapacity planning documents created by LegalZoom, Rocket Lawyer, and the like. In some cases, the documents are good. In other cases, we are reviewing these documents because we are being asked to clean up messes that were created precisely because there was no human (or at least no Elder Law specialist) involved in the planning process. Here, we must be mindful that our clients are not paying us for documents. Rather, they are hiring us for the services we provide. The services of a dedicated Elder Law and Special Needs Planning attorney often mean that we build strong relationships with our clients and their families over time, such that we become a trusted advisor for many generations of the same family, and that we are recommended to many of their friends as being an invaluable resource — and a good person — in what is often an overwhelming process.

3. Continued Dangers and Missed Opportunities
Ambiguous or Ineffective Branding

For most of the public, “Elder Law” implies that we only serve older clients, which is a great branding disservice for many Elder Law attorneys. Here, many Trends Committee members observed that while our practices often primarily served older clients who were aging into long-term care, most of us also spent a substantial amount of time doing estate planning (often for younger clients), and many of us also had an active Special Needs Planning practice serving both children and adults with special needs who were on or seeking eligibility for means-tested benefits like SSI or Medicaid. For any Elder Law and Special Needs Planning attorney, branding and marketing a practice in ways that continually clarify and exemplify our work is an imperative that, if ignored, will prevent us from reaching the full potential of our practice.

Ineffective or Non-Existent Marketing
Most of us agreed that we had all struggled with marketing our practice at some point. Many of us agreed that the best ways to foster awareness of our expertise and practice areas was to present frequently, both to community partners who might be referral sources (such as social workers at hospitals and care facilities), but also to the public as a whole.

Trying to Compete With Non-Humans and Non-Attorneys
While some readers may laugh at our use of the phrase “non-human,” we use it deliberately to point out that we cannot — and frankly should not — try to compete with the LegalZooms and RocketMatters of the legal marketplace. These entities may be in the business of producing legal documents that skilled Elder Law and Special Needs Planning attorneys also produce, but they are not our competition. Sadly, such businesses are less a source of competition for us, and more a source of business for us as we must sometimes work to clean up the messes that are created when individuals or families do not engage a skilled attorney to explore options and pursue appropriate planning.

Using a Twentieth-Century Practice Model in a Twenty-First Century World
Many readers of this article likely have practices in which they are tethered to a single brick-and-mortar office, in which clients and families must always come to them, and in which a single land line (or series of land lines) means that there is a constant back-and-forth between the home office and the attorney or staff who are often away. With no judgment of such practices, we simply offer the following observation: Imagine how much more flexible, happy, and productive you, your staff, and your clients could be if you adopted a more flexible model in which you visited clients who had limited mobility, had a VOIP phone system that diminished the burden on your staff to answer phones and transfer calls, and had the ability to edit and store documents on the cloud using your Internet connection from wherever you were working.

Adopting the practices and technologies that enable these transformations does take time and money, but we posit that you will see a rapid return on your investment and in your productivity. Of course, maintaining proper boundaries and balance in such a technology-rich system will demand a degree of discipline that not all of us have previously had to exercise.

Not Adopting A Flat-Fee Billing Model

Not all work can be done on a flat-fee basis, but much of it (for some of us, the vast majority of it) can be done on a flat-fee basis. Many of us dislike tracking our time as much as our clients hate reading through a bill of how our time was spent. To put ourselves in the shoes of our clients and their families: How many of them take the time to balance their checkbooks each month? Read through their phone or utility bills? Whatever your answer, the number of people who enjoy doing these things is quite low, especially in a world in which more service providers are wising up to the fact that busy consumers dislike uncertainty and complexity in billing when they can instead choose a flat-fee billing arrangement.

Not Building Lasting Relationships With Your Clients and Your Community

The moment we start putting profit before people is the moment that our client service suffers, and our reputation among our peers and in our communities begins to suffer. Ironically, it is sometimes the practitioner who promises the longest tenure of service (and demands the greatest fee up front) who is most likely to disappoint clients whose needs change over time. Rather than offer a single prescription to this ill, we should simply, as Elder Law and Special Needs Planning attorneys, be mindful of the promises we make versus the service we are actually able to deliver, and never let the former outstrip the latter. Further, we offer the following ideas for ways to engage clients over the long-term: The “celebration model” is one in which an Elder Law practice sets aside time each year or season to thank community partners and clients, often over a meal. The “Planniversary Model” is one in which planning clients are sent regular reminders (perhaps every three years) to check in with their Elder Law and Special Needs Planning attorney about any changes needed to their planning. Last but not least, a subscription model, such as a renewable annual “Client Care” Plan, while it may seem anathema to many practitioners, can be an effective way to build long-term relationships with clients whose needs are ever-evolving.

Not Doing Pro Bono
Law firms are businesses, but law itself is not just a business. It is a profession, and a very powerful one at that. The expertise and connections we develop enable us to address a tremendous number of difficult issues faced by the overwhelming majority of our population. Today, there are so many ways for Elder Law and Special Needs Planning attorneys to offer good pro bono service that there is no excuse not to do so. Educational presentations to the public are not just good marketing; they also provide invaluable information to a broad audience. Estate and incapacity planning for clients who cannot afford our services remains one of the most high-impact and enjoyable ways to provide pro bono service, provided that we manage our time, resources, and client expectations about how much we can do.

Collectively, we hope that Elder Law and Special Needs Planning attorneys find much food for thought in this article. We encourage your reflection, discussion, and action.

Closing Comments
Societal and market forces are changing the practice of law. New and innovative practice models are replacing long-held traditions. To be successful lawyers need to adapt to the changing landscape. It is more important than ever that we demonstrate the value of our services to our clients. As a specialty Elder Law and Special Needs Planning attorneys need to differentiate ourselves from other lawyers, non-lawyers, and non-human competition.

In the coming year, one of the topics the Trends Committee is looking at is social media marketing, and an article on passive and active social media marketing will be available to NAELA members. Not having a social media presence is akin to having an unlisted office phone number in today’s market place. Also, we are closely following developments in Medicaid and Veterans Benefits. The Department of Veterans Affairs is expected to release new rules on assets this year; bills are working in Congress to change annuity rules for Medicaid – with talk of other even more extensive changes in asset rules in the future. The Committee is exploring issues with the unauthorized practice of law (unregulated benefits planning) by non-lawyers and non-humans. We are looking at how our advance care planning work can empower the Supported Decision Making model for the best outcomes for our clients. In all we are looking at changes in the law, changes in practice, and changes in the marketplace. If you are interested in joining the Committee or would like to develop programing on any of these issues, please feel free to contact me, David Godfrey, Trends Committee Chair.

NAELA Trends Committee Members
2014-2015

William J. Brisk, CELA, Chair
Paul Black, Esq.
Michael Gilfix, CELA
David Godfrey, Esq.
Sharon Kovacs Gruer, CELA, CAP
Craig Reaves, CELA, CAP
Charlie Robinson, Esq.
Tamara Trujillo, Esq.

2015-2016
David Godfrey, Esq., Chair
Paul Black, Esq.
A. Frank Johns, CELA, CAP
Michael Gilfix, CELA
Howard S. Krooks, CELA, CAP
William Lucius, Esq.
Charlie Robinson, Esq.
Samantha Shepherd, CELA
Tamara Trujillo, Esq.

Citations
1  For an excellent overview of the Legal Services Act of 2007, the law which opened the door for non-attorney ownership of law firms and multidisciplinary practice in the UK and Wales, see: https://www.law.georgetown.edu/academics/centers-institutes/legal-profession/documents/upload/Future-Law-Firm-Symposium-LegalServicesActSummary.doc

For the full text of the Legal Services Act 2007, see http://www.legislation.gov.uk/ukpga/2007/29/notes/contents For an exploration of how the LSA might impact US firms, see E. Leigh Dance, The U.K. Legal Services Act: What Impacts Loom for Global Law Firm Competition? http://www.americanbar.org/publications/law_practice_home/law_practice_archive/lpm_magazine_articles_v34_is5_pg35.html

2  http://www.wsba.org/licensing-and-lawyer-conduct/limited-licenses/legal-technicians

3  https://www.youtube.com/watch?v=EKSeOXC9hxg

4 https://www.census.gov/prod/2010pubs/p25-1138.pdf