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June 1st Marks 30 Years of Elder Law and Special Needs Planning

By Harry S. Margolis

JAB-HSM-RJB (high res).jpgThirty-one years ago my law firm, Palmer & Dodge, sent me over to Greater Boston Elderly Legal Services for a four-month stint representing seniors being pushed out of their homes during one of the earliest phases of gentrification. This served several purposes. The firm was able to provide a pro bono service. GBELS benefited from an extra staff attorney — always inexperienced. And we, the young associates, could practice representing clients and appearing in court, without risking our inexperience on the firm’s paying clients.

Hanging a Shingle

While on loan to GBELS, I became aware of the brand new legal field of elder law which was pioneered by legal services attorneys who recognized that their expertise in the arcane rules of eligibility for Medicaid was relevant to middle-income seniors requiring nursing home care. Being entrepeneurial and more comfortable representing regular folks than the big law firm clients (also, perhaps, having trouble working for other people), I decided to venture into the field. I finagled an extension of my deployment to GBELS to seven months and the left the firm, hanging my shingle at 10 Winthrop Square in Boston on June 1, 1987, 30 years ago today.

I called my new practice ElderLaw Services (perhaps the first tradenamed law firm in Massachusetts) and rented a tiny office with a window on an alleyway in a suite of half a dozen other lawyers, including Ken Shulman, a pioneer in the field of special needs planning. I had knocked on the doors of all of the presenters at an annual Massachusetts Continuing Legal Education program on planning for seniors and people with disabilities, all of whom were extremely generous with their time and resources. I also rented an office in Cooolidge Corner in Brookline for meeting clients since I had researched the demographics of Greater Boston and learned that back then Brookline had the oldest population in the region.

Of course, I really didn’t know what I was doing. But I didn’t have any clients, so I couldn’t do much harm. Also, since it was a brand new field, other than the people teaching the MCLE program, not too many other people knew much either. To get clients, I tried just about everything, including speaking at senior centers, writing articles for Massachusetts Lawyers Weekly, putting ads in The TAB, and even sending out coupons in ValPaks. Gradually, clients came my way and I learned on the job. (As they say, that’s why it’s called “practicing” law.)

Fast forward three decades, the firm is now Margolis & Bloom, having transitioned through Margolis & Cohen and Margolis & Associates. After a few years, I realized that the problem with the trade name was that no one thought of us for anything but elder law matters. We would work with the children of a senior needing care, and then they would call us for a referral to another law firm to do their estate planning. Now in addition to elder law, we have thriving practice areas in estate planning, probate administration, special needs planning, guardianship and serving as trustees.

Today we have seven lawyers, 10 support staff members and offices in Boston, Dedham, Framingham and Woburn.Our main office now is in Boston’s Back Bay, where we’ve been for 17 years.

30 Years of Elder Law

The field of elder law and elder care in general have changed in many ways over the past three decades, including these:

  • Elder law is a well-known field of law with thousands of practitioners, though some call it “elder care” law.
  • With the advent of assisted living facilities and the proliferation of companies offering home care services, fewer seniors are going to nursing homes, and when they do they don’t stay as long because they’re likely to be older and sicker.
  • MassHealth has followed the trends in elder care to expand its coverage of assisted living and home care, but the benefits are less broad and the eligility rules more complicated than for nursing home coverage.
  • In part to the response of the needs of clients and the virtual repeal of the federal estate tax, more and more lawyers now practice elder law. This means more competition for lawyers and more availibility of expertise for clients, both of which are good developments — at least for clients. In response to the increased competition, we have to keep improving our level of service.
  • Accompanying the need to improve the service we provide clients, how we deliver services has changed. When I started practicing, I had an XT PC computer working on a DOS operating system and a printer that typed out the documents on perforated paper that I had to tear page by page. Now, you’re reading this on the Internet, our documents are created on a HotDocs based forms system, we communicate primarily by email, and in addition to in-person meetings, we video conference through Skype and GoToMeeting.
  • While the proliferation of elder law attorneys and types of elder care offer seniors and their families more options, they also make the process of choosing where to receive care — home, assisted living, nursing home — and who to rely on for assistance extremely complicated and bewildering. Often, the best gatekeepers for making these choices are geriatric care managers, another profession that has grown and grown up over the last 30 years to meet the need.
  • Most elder law attorneys also practice special needs planning which involves a similar mix of estate planning and expertise in the public benefits programs that are vital to the needs of individuals with special needs.
  • In terms of marketing, a lot has not changed — personal relationships, writing, speaking, doing well by our clients — but a lot has, largely due to the Internet. One of the biggest change for us has been exchanging a print newsletter for an eletter.
  • Something else that not changed is change itself. The field keeps developing. As recently as this past Tuesday, the Supreme Judicial Court issued a seminal MassHealth decision in the Daley and Nadeau cases.

What Does the Future Hold?

What changes will the next 30 years of elder law and estate planning bring? Here are a few thoughts:

  • With the oldest Baby Boomers now 71 years old and the youngest 53 — quite a range in itself — there’s going to be a much greater need for elder care in the coming decades, really accelerating in about a decade when the oldest of this cohort start entering their 80s.
  • These Baby Boomers will also accelerate the changes that have already begun in the field of elder care, avoiding moving to nursing homes, moving to lower-cost parts of the US or to other countries, especially Latin America, and pioneering new living arrangements, such as groups of friends living together and sharing costs of care as they arise.
  • Elder care professionals, including attorneys, accountants, financial planners and care managers, will join together to better coordinate their services. This may involve a single company offering one-stop shopping or several professionals or firms sharing space, whether in an office where seniors and family members can meet with several specialists during a single visit, or virtually where the various services are offered on a single website.
  • “Smart” systems will permit many legal and financial services to be offered on line without the involvement of professionals. But this won’t work for everyone. Many, if not most, clients will still seek the personal counseling that occurs when people sit down together with the time, expertise and experience necessary to explore available options and find the best individual approach.

Let’s get together again in 30 years and see how much of these predictions prove accurate.

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