An Older Person's Guide to Finding Legal Help Legal Counsel for the Elderly, Inc Do I Need a Lawyer?. . . . . . . . . . . . . . . . . . . .1 What Is "Elderlaw"?. . . . . . . . . . . . . . . . . . . .3 Do I Need an Elderlaw Specialist?. .. . . . . . . . . . . .4 How Do I Find a Lawyer?. . . . .. . . . . . . . . . . . . .6 Is Free or Reduced-Cost Legal Help Available?. . . . . . .7 What Questions Should I Ask before I Meet with a Lawyer? 11 Why Should I Interview a Lawyer? . .. . . . . . . . . . . 11 What Should I Look for during the Interview? . .. . . . . 12 What Factors Should I Consider in Choosing an Attorney?.. 14 What Types of Fee Arrangements Are Most Common?. .. . . . 15 Are There Ways to Reduce My Attorney Fees? . . . . . . . 17 What Should My Involvement Be after I Hire a Lawyer? . . 20 Resources . . . . . . . . . . . . . . . . . . .. . . . . 25 Appendices (1) Legal Help (Table) . . . . . . . . . . 27 (2) Statewide Legal Hotlines . . . . . . . 29 (3) Glossary . . . . . . . . . . . . . . . 31 INTRODUCTION The task of finding the right legal help can be a daunting one. Surveys confirm that people use a variety of approaches to resolving legal problems. Some choose to take no action (some noting that the cost of taking action is greater then the benefits of taking the action). Others seek assistance from government agencies (such as consumer protection bureaus or the ombudsman program), attorneys or other professionals. Still others decide to represent themselves. The choice is up to you and will vary based on your personal situation, resources and the type of problem at hand. A recent survey conducted by Temple University for the American Bar Association noted, in part, that among moderate-income households just over half (56%) of those who who identified themselves as having a legal need sought help from an attorney or some type of hearing body. Forty-four percent chose other approaches. This guide is designed to offer tips on the broad range of choices--from representing yourself to locating free or low-cost legal representation to finding an attorney specializing in "elderlaw." The guide offers practical information on the public and private resources available to you as well as tips on reducing the costs of obtaining legal help. No matter which option you choose, the premise upon which the following dozen questions are based is that you are the decisionmaker and that the more information you have about the law and your case, the better prepared you will be to conduct or oversee the legal work needed. Choosing the appropriate legal help or attorney for you is a highly individualized matter. No single set of criteria will work for everyone. We hope that the questions and tips that follow will provide a useful general framework for your search. Ayn H. Crawley LCE Elderlaw Support Projects This manual was developed and published by Legal Counsel for the Elderly, Inc. (LCE), which is sponsored by the American Association of Retired Persons (AARP). The opinions expressed herein are those of the author, and should not be construed as representing the policy or position of LCE or AARP. No official endorsement of these materials should be inferred. ISBN 0-933945-124 First Printing November 1994 Printed in the United States of America Editor: Cissie Coy Research: J. Peter Nawyn Cover Design: Donna Barker Word Processing: Keila A. Taylor FINDING LEGAL HELP Finding good legal advice and making sound decisions now, can help prevent difficult and costly problems in the future. As is true when purchasing any product or service, it is important to be a smart consumer. The following 12 questions may help you to be a smart legal consumer. 1. Do I need a lawyer? Lawyers can assist you in resolving disputes or asserting your rights; however, there may be many ways in which you can resolve a matter without the specialized assistance of a lawyer. A number of legal problems may be solved without having to hire a lawyer. In deciding whether to hire a lawyer, you should consider the following: Is the matter a complex legal issue or one that is likely to go to court? Is a form or self-help book available that you can use instead of hiring a lawyer? Is a large amount of money, property, or time involved? Are there any nonlawyer legal resources available to assist you? On one hand, for example, the preparation of a trust or a guardianship proceeding is generally complicated and requires the assistance of a lawyer. On the other hand, many sources (including AARP/LCE) can provide you with a living will form appropriate for your state as well as information on how to complete the form. Your local bank can assist you in setting up a joint bank account, while your local long- term care ombudsman can help you in resolving a complaint with a nursing home. You can locate your ombudsman through your local office on aging. Many legal problems can be resolved through letter writing or a negotiation session. Alternatives to hiring a lawyer include direct negotiation on your own behalf, mediation, arbitration, using the assistance of a government agency (such as consumer protection), and small claims court. In addition, legal self-help manuals and seminars may give you the tools to handle some or all of the dispute on your own. You may also want to consider hiring an attorney to review papers or provide advice rather than seeking full representation. Negotiating on your own behalf can be the solution to many minor disputes. There are many books on the general topic of negotiation. Before negotiating a problem, you can explore the potential legal issues by calling a legal hotline or consulting other sources of information. Practical Tips on Negotiating on Your Own Behalf Keep an open mind and listen carefully to the other side. Stay calm. Write up a list of what you want and a separate list of what you would be willing to settle for. Consider your other options as you review the list. Try to talk to the other side. If you reach an agreement, put it in writing. Write a letter if a discussion does not solve the matter. Describe the facts and the settlement (action or payment) you feel is reasonable. Include a date by which you seek a response. A reasonable letter may encourage the other side. Remember that the letter may be used as evidence if the case goes to court. Dispute resolution centers have been established in almost all states. The American Bar Association's Section on Dispute Resolution estimates that there are currently more than 450 community dispute resolution centers and more than 1,200 court- related dispute resolution programs throughout the country. While the centers vary, most specialize in helping to resolve problems in the areas of consumer complaints, landlord/tenant disputes, and disagreements between neighbors or family members. The names, services, and fees (if any) of the centers vary from place to place, but they generally use two different processes to resolve problems: mediation and arbitration. Mediation involves a neutral person who assists the two sides to discuss their differences and possibly reach an agreement. In an arbitration, the neutral third party conducts a more formal process and makes a decision (usually written) after listening to both sides. When both parties are agreeable, using a dispute resolution center (sometimes called a community justice center) or a private mediation center can be a low-cost alternative to bringing a suit in court or hiring an attorney to represent you in a negotiation. In some areas, the court itself may refer certain types of cases to a mediation program. Small claims court may be appropriate if you have a monetary claim for damages within the limits set by your state (usually $1,000 to $5,000). These courts are more informal and involve less paperwork than regular courts. The filing costs are usually low and the system is often faster than the other courts. If you file in small claims court, you should be prepared to act as your own legal advocate, gather the needed evidence, research the law, and present your story in court. Should You Choose Small Claims Court? Check the many "how-to" books in the library for general information. Check with the clerk in the small claims court, local consumer agency, or legal aid office for more information in your area. Are you willing to collect information and do research on your own? Is there a time limit on when you must file suit? Ask the small claims court clerk or look it up in your local law library. You must file your case before this time limit (usually within a year). Are you able to prove that the person against whom you are making the claim owes you money? You must be able to prove legal liability and that you have suffered a financial loss as the result of someone else's action. 2. What is "elderlaw"? The term "elderlaw" is a relatively new one. Over the past decade, the legal profession has begun to recognize a cluster of specialized legal areas as being particularly important to older persons. Elderlaw encompasses traditional areas of legal practice such as estate planning and probate, as well as public benefits such as Medicare and Social Security, and issues such as planning for long-term care placement and health-care decisionmaking. Some attorneys have begun to identify themselves as elderlaw specialists. Most of these attorneys do not specialize in all of the areas covered by the broad term elderlaw (described below) and therefore you should ask which areas a particular attorney handles. Many of the attorneys who specialize in the elderlaw area are also familiar with the networks of other professionals (such as ombudsmen, social workers, geriatric care managers, or other elder care professionals) who can provide related services to older persons. They may also be trained in the mental and physical effects of the normal aging process. The broad range of legal areas covered by "elderlaw" includes: Estate planning including the management of an estate during the person's lifetime and planning how the estate will be divided upon the person's death through wills, trusts, asset transfers, tax planning, and other methods. Long-term care planning including nursing home issues such as quality of care, admissions contracts, prevention of spousal impoverishment, and resident's rights. It also includes life care or retirement community issues such as evaluating the proposed plan/contract. Retirement issues including Social Security (retirement and disability and survivors' benefits) and other public pensions (veterans, civil service) and benefits as well as private pension benefits. Health care issues including Medicare, Medicaid, Medigap insurance, and long-term care insurance. Housing issues including home equity conversion and age discrimination. Planning for possible incapacity through choosing in advance how health care and financial decisions will be made if you are unable to do so (methods include durable powers of attorney, health-care powers of attorney, living wills, and other means of delegating the decisionmaking). The attorney may also be able to advise on conservatorship and guardianship proceedings in the event that the elder has not planned for incapacity. Age discrimination issues including bringing cases under the Age Discrimination in Employment Act. 3. Do I need an elderlaw specialist? Not surprisingly, the answer is that it depends on your situation. If you already have a good working relationship with an attorney, discuss your particular legal needs with that attorney. Ask about your lawyer's experience in the issues typical of elderlaw. If the attorney is experienced in the areas of most concern to you, it is unlikely you will wish to go elsewhere. If the attorney is unfamiliar with elderlaw issues, ask the attorney for a referral. In the medical profession, graduates of medical school all go on to specialized training and can (clearly) hold themselves out as specialists in a particular field of medicine; however, in the legal profession, the issue of specialization is not as clear-cut. Nevertheless, the American Bar Association has recently authorized the National Academy of Elder Law Attorneys Foundation to conduct special examinations leading to a specialization in elderlaw. The specialty certification process is very new for the legal profession so not many lawyers have been certified. Many attorneys who identify themselves as elderlaw specialists join groups such as the National Academy of Elder Law Attorneys and seek specialized training in the legal areas mentioned earlier. Another reason you may want to seek out an elderlaw specialist is because finding the best solution for you in a given situation is likely to involve a variety of other professionals such as physicians, home care agency workers, geriatric care managers, bank officers, and long-term care ombudsmen. An attorney familiar with this network can be very helpful. If needed, the attorney can act as a legal representative (fiduciary) if a client becomes incapacitated. Elderlaw specialists may work closely with financial planners, social workers, or geriatric care managers. This can be an advantage for many clients as a number of elderlaw issues involve both legal and nonlegal solutions. Today most lawyers limit their practices to a few areas such as domestic relations, criminal law, personal injury, estate planning and probate, real estate, or tax issues. Even attorneys who list themselves as elderlaw specialists are unlikely to be expert in all the areas detailed under the elderlaw heading in the second question. It is always necessary to look for someone with the appropriate technical expertise and experience regardless of how the lawyer identifies himself or herself. Finally, within the larger legal community there are relatively few attorneys who specialize in elderlaw. Choose the best legal expert for your needs, whether or not the attorney identifies herself or himself as an elderlaw specialist. Legal expertise is expensive and it is worth taking time to decide what role you want your lawyer to play and what skills you believe an attorney should have to fulfill that role. 4. How do I find a lawyer? Once you have decided you need a lawyer, it is a good idea to shop around. The first step is to compile a list of names. The recommendation of someone whose judgment you trust is an excellent place to start your search. You may want to begin by asking relatives, friends, clergy, social workers, or your doctor for recommendations. Often those persons can refer you to someone who has provided similar legal services for them. Remember that you need to know more about the lawyer than simply that the person is a good attorney. Ask the persons making the recommendation for specific information about the type of legal help the lawyer provided them and how their case was handled. The following resources may assist you in your search for an attorney: Bar Association Referral Lists Many state and local bar associations maintain lawyer referral lists organized by specialty. You can consult the lawyer referral service for the name of an attorney who specializes in the type of case you have. Keep in mind that the referral is not a recommendation nor does it guarantee a level of experience. Bar associations may charge participating lawyers and law firms a fee to be included on the referral list. Also, many bar associations have committees that conduct training or public service work for the benefit of older people. An attorney serving on one of these committees could have the expertise you are looking for. Check the white or yellow pages (under "Lawyers") of the telephone book for the number of the state or local bar association. Other Sources The National Academy of Elder Law Attorneys (NAELA) is a nonprofit professional association of attorneys specializing in legal issues affecting older persons. NAELA is not a legal referral service; however, it does sell a registry listing over 350 member attorneys nationwide ($25 including shipping and handling). National Academy of Elder Law Attorneys 1604 N. Country Club Road Tucson, Arizona 85716 (602) 881-4005 There are also a number of lawyer directories. Two of the larger directories are likely to be available at your local library. The Martindale-Hubbell Law Directory lists 600,000 American and Canadian lawyers alphabetically by state and by categories. Each entry has a biography, which includes information on each lawyer's education, specialty, law firm, and the date of admittance to the bar. It also includes a "rating" based on information supplied by fellow lawyers. It does not include a rating by clients or judges. The Who's Who in American Law directory lists about 24,000 lawyers and includes biographical notes. This directory is somewhat difficult to use as the lawyers are listed alphabetically rather than by state or specific area of expertise. Many communities also have other lawyer referral services to assist people in finding a lawyer. Often the services are for specific groups such as persons with disabilities, older persons, or victims of domestic violence. Groups that may be good sources for a local referral include the Alzheimer's Association and other support groups for specific diseases, Children of Aging Parents, the Older Women's League, the state civil liberties union local social services agency, or the local agency on aging. Other referral services may be run by groups of attorneys specializing in a certain area. Some services may screen the lawyers who wish to have referrals in a particular area. If you use a referral service, ask how attorneys are chosen to be listed with that particular service. Many services make referrals to all lawyers who are members (regardless of type and level of experience) of a particular organization. Lawyers are permitted to advertise within specific guidelines. You will be able to gather some useful information from the publicity, however, like advertisements in general, you should always be careful about what you read or hear. Many advertisements for attorneys specializing in certain areas of the law (such as personal injury or medical malpractice in which there may be substantial fees) offer free consultations. Other advertisements may list a set fee for a particular type of case. It is always a good idea to investigate further and to comparison shop. Many attorneys who do not advertise may also provide free consultations or offer set fees for a certain legal problem. Also, keep in mind your case may not be a "simple" one and set fees are usually for routine, uncomplicated cases. In addition, the court and your banker may be good referral sources. Finally, the telephone book often lists lawyers according to their specialties. 5. Is free or reduced-cost legal help available? There are a number of options for finding affordable legal help. Federally funded legal services programs exist in every state and there are pro bono or reduced-fee attorney panels and legal hotlines in a number of states. Free Legal Help for Older People The Older Americans Act (OAA) requires your state office on aging to fund a local Area Agency on Aging (AAA) program that provides free legal help on noncriminal matters to people age 60 and over. Each of the over 644 local AAAs sets aside funds to provide free legal assistance for those older persons who are in the greatest social and economic need. In many states, the AAAs contract with the Legal Services Corporation (LSC) funded programs described below. They may also set up their own programs or contract with private attorneys to provide legal services to older persons. OAA legal services advocates provide representation in court or at administrative hearings, community education, and self-help publications. The OAA programs offer other types of assistance and services as well. For example, an advocate may assist an older person with a food stamp appeal and arrange for transportation to a nutrition site. The OAA legal services programs do a great deal of outreach to the community. Some attorneys spend as much as half of their time speaking at senior centers or visiting people in their own homes. There are no income guidelines that clients must meet in order to qualify for services. However, the legal services provider and the Area Agency on Aging may set priorities about the preferred type of representation, such as obtaining government benefits, and may not be able to provide help in cases the agency considers to be a lower priority. Cost: No cost to eligible clients. Eligibility & Access to Service: OAA legal services providers handle civil (not criminal) matters for persons age 60 or older regardless of income. Local offices set priorities for the types of cases they will handle. Not all cases can be handled. Locating Local Agencies: Agencies providing free legal help to older persons can be identified by calling your local Area Agency on Aging listed in the government section of the telephone directory. A national directory of OAA legal services providers (entitled Law & Aging Resource Guide) lists a state-by-state breakdown of the addresses and phone numbers of each office and is available from the American Bar Association Commission on Legal Problems of the Elderly, 1800 M Street, NW, Suite 200, Washington, DC 20036, (202) 331-2297. Single state profiles are free. A complete copy of all state profiles is $20. Legal Aid Offices (free help to low-income people of all ages) There is also a nationwide network of legal aid offices (or legal services) that receive federal funds to provide free legal help to low-income people of all ages. The Legal Services Corporation (LSC) is a quasi-governmental entity that receives an annual appropriation from the U.S. Congress and funds 324 legal aid programs throughout the country. LSC legal aid programs are designed to provide free legal services to persons with low incomes, including many older persons. The legal help provided by LSC-funded programs is substantially the same as that provided by the OAA-funded programs and, in many cases, is provided by the same office. Staff advocates provide representation in court or at administrative hearings, community education, legal clinics, and self-help publications, as well as helping client groups in the community such as tenants groups. Many offices also conduct outreach programs to assist persons in nursing homes, mental hospitals, or others who cannot easily reach the legal aid office. The legal services offices have staff who specialize in issues related to older people, such as Medicare, Medicaid, Social Security, and other public benefits. There are income and asset guidelines that you must meet to be eligible for LSC-funded programs. The office can readily explain these eligibility requirements to you. As mentioned above, some of these offices also receive special Older Americans Act funding, and can provide help to people 60 years of age and over, regardless of income or assets. Cost: No cost to eligible clients. Eligibility & Access to Service: Legal aid offices handle civil (not criminal) cases for persons with income below 125% of the federal poverty guidelines ($12,300 for a couple in 1994). Local offices set priorities and not all cases can be handled. In some cases (such as abuse), the income guidelines may be waived. Locating Local Agencies: You will find these agencies in your telephone book under "legal aid" or "legal services" offices or by calling your local bar association. Before making an appointment, call to make sure that the services are free. Be aware that some private attorneys have opened clinics that use the same type of name but don't provide free services. Also, the National Legal Aid and Defender Association publishes an annually updated national directory that lists the addresses and phone numbers of all LSC-funded legal services offices, by state and county. The guide can be obtained by writing to: NLADA Directory, 1625 K Street, NW, Suite 800, Washington, DC 20006, (202) 452-0620. The cost is $30. Pro Bono or Reduced-Fee Attorney Panels Most legal aid offices and some bar associations have started special pro bono panels (pro bono refers to free legal help that private attorneys provide as a public service). In addition, some private attorneys are willing to reduce their fees if a client's income is low. The panels discussed in this section are the listings of the private attorneys willing to offer some free or reduced-fee legal services. The panels do not employ the attorneys but simply work to connect the attorneys willing to offer services with the clients who need them. Cost: Reduced-fee panels provide legal help at a cost less than the fee that the private attorney "usually" charges for a case of the same type. The exact fee varies based on locale and the individual attorney's fee schedule. Attorneys who agree to handle a case pro bono will not charge for their services although there may be court costs and other costs associated with the case. Eligibility & Access to Service: Many local bar associations have lists of attorneys who volunteer for either reduced-fee panels or for pro bono cases. Some have special panels for elderlaw cases. In many instances, the local legal services programs (LSC and OAA) are part of this network. The legal services programs identify cases of persons who exceed financial guidelines or whose cases they are otherwise unable to handle. The cases are then referred to pro bono or reduced-fee panels. Since the OAA and LSC legal services programs often must first screen the cases for the pro bono or reduced- fee attorney panels, contact with the legal aid agency is often a good way to identify a program in your area. Locating Local Sources: Local legal aid offices and bar associations are usually listed in the yellow (under "Lawyers") or white pages of the telephone book. Legal Hotlines Some areas offer special legal hotlines for call-in advice. Often this telephone advice service is sponsored by bar associations and has limited hours or covers limited geographical areas. Sometimes the hotline may be offered for a limited time such as on Law Day, May 1. The federal government's Administration on Aging (AoA) sponsors statewide legal hotlines that provide legal advice to all persons age 60 or older, regardless of income or the nature of their problem. The hotlines are staffed by attorneys who give advice, send pamphlets, or make referrals to special panels of attorneys or to legal services programs. Cost: Most (including the AoA-funded hotlines) do not charge for the advice given. Cases which require additional work are referred to private attorneys or legal services programs (individual hotline policies will vary). Eligibility & Access to Service: Open to all persons age 60 or older. The services exist only in limited areas of the country. See Appendix 2 for a listing of the statewide legal hotlines as of the date this guide was published. Plans are underway to expand to other states. Locating Local Agencies: See the listing in Appendix 2 or call your local bar association or Area Agency on Aging. 6. What questions should I ask before I meet with a lawyer? One way to start the process of hiring a lawyer is to call several lawyers to whom you have been referred or about whom you have heard. There are some preliminary questions that you can ask the lawyer or a staff person before committing yourself to a consultation. The answers will help you choose the two or three lawyers you wish to interview. Since this is only a preliminary telephone conversation, ask questions that can be answered briefly, such as those listed below: Will the lawyer provide a free consultation for the initial interview on this matter? How long has the lawyer been in practice? What percentage of the lawyer's cases are similar to your type of legal problems? (A lawyer with experience in handling cases like yours should be more efficient and knowledgeable, and that may save you money.) Can the lawyer provide you with any references, such as trust officers in banks, other attorneys, or clients? Does the attorney represent any special-interest groups, such as nursing homes or senior citizen groups? What type of fee arrangement does the lawyer require? Are the fees negotiable? What type of information should you bring with you to the initial consultation? 7. Why should I interview a lawyer? Whether you are seeking a lawyer for a one-time case or to assist you with a variety of matters over a period of years, you will be sharing details of your life and relying upon this person's expertise and advice. Since this person will be acting on your behalf, it is critical that you feel comfortable with your attorney and have confidence that he or she will hear your concerns in an atmosphere of mutual resect. A personal interview is the best way to make this judgment. Plan to follow up your exploratory phone calls by scheduling interviews with at least two of the attorneys. Don't feel embarrassed about selecting only the best candidates or cancelling appointments with some of the attorneys after you co