A lot has changed over the last two decades, and I’m not just talking about our sagging body parts. The newsletter started out being published by Little, Brown & Company, whose offices were just down the street from where I now practice law in Boston. They sold their legal and medical publishing division to Aspen Law & Business, which itself was soon swallowed up by the large Dutch publisher, Wolters Kluwer, though we’re still part of their Aspen Publishers division.
Twenty years ago, few lawyers and fewer consumers had ever heard of “elder law.” Now we practice an accepted specialty with many state bar associations having elder law sections. The National Academy of Elder Law Attorneys (NAELA) has grown from some 32 members at its inception to approximately 4,500 members today. It held its 20th anniversary conference in Maui this past May.
As a mature specialty area, many more consumers are seeking elder law counsel. That is good for them and good for those practicing in the field. On the other hand, there are now a lot of us practicing in the field (not all of whom are members of NAELA), meaning there’s much more competition for elder law business.
Also, partly in response to our representation of clients and partly due to the increasing cost of providing long-term care to more and more seniors, Congress and the states have continually tightened the rules of eligibility for Medicaid, still the primary source of payment for long-term care – that has not changed over 20 years. This has made it more difficult for us to represent our clients. The most recent rules change, the Deficit Reduction Act of 2005, has resulted in more differences among the states in how they interpret and apply the Medicaid rules. This has created more uncertainty and anxiety for our clients.
So, what do the next 20 years have in store for us and our clients?
First, elder law is not going away. The legal needs of our clients will continue, and as the Baby Boomers age, the number of potential clients will double.
Second, the practice will be less and less focused on planning for nursing home care and more on planning for care in other settings, such as the home, assisted living, and congregate care communities. Many states have recognized that nursing homes are not the ideal places to care for most seniors and have begun to offer assistance for other types of care. But the services are often disjointed and difficult to navigate, requiring the kind of expert guidance elder law attorneys can provide.
Third, the practice will become less focused on planning for Medicaid as the eligibility rules become more stringent and more Baby Boomers purchase long-term care insurance to pay for future care.
Fourth, the practice will become more integrated with traditional estate planning as Baby Boomers reach the age where they do estate planning which includes a look forward to planning for their later years. Baby Boomers are even less likely than their parents and grandparents to accept the traditional nursing home with its institutionalized setting and care and its shared rooms. Likewise, many Baby Boomers who hope to stay forever young may shy away from the term “elder” law, and be more comfortable with estate planning which happens to include long-term care planning.
Fifth, the original founders of elder law 20 years ago, will begin retiring. These pioneers, many of whom came from a legal services background, have been and will be replaced by younger practitioners who view this specialty like any other. They will be able to benefit from the experience of their predecessors and the methods they developed by trial and error to do a better and better job of representing their clients.
Sixth, the practice of law itself will change in some ways we can foresee and in some ways we cannot. Computers and document assembly systems will enable practitioners to be increasingly efficient in the delivery of services to clients, allowing them to spend more time interacting with clients and providing the value-added counseling that helps each client find the unique path to her goals. That’s the good side of advances in computer technology. On the other side, there’s the risk that what we provide will be seen more and more as a commodity as computer-generated forms and solutions are provided over the Internet directly to the ultimate consumer. The challenge will be to provide the kind of hands-on, experienced-based counsel that cannot be distilled into a computer system and to make sure that consumers understand the value of that counsel.
Seventh, whatever the future holds, the original founders of elder law were flexible and creative, able to meld the public benefits representation they provided legal services clients with traditional estate planning. Future elder law attorneys will have to be equally flexible and creative to respond to future needs of clients, the demands of the marketplace, the challenges of limited government funding, and the changes brought by the Internet.