Tuesday, October 22, 2013

Is Elder Law in the US Becoming Bifurcated Between Planning and Litigation Specialists?

This semester, I have had several practitioners as guest speakers in my Elder Law class at Penn State Law. (The students have been loving this -- real world advice!)  More than one speaker has mentioned that he or she does not handle litigated issues for clients.  One guest lawyer mentioned "no longer handling" contested guardianships. Along the same line, I recently ran into a former student who has an Elder Law practice and who told me that most of his work is handling contested matters, including litigation over what he described as financial abuse. 

That started me thinking. Is the specialized practice of Elder Law now branching into two subspecialties, litigation and planning? 

If so, there could be a variety of reasons for the split, including:

  • a growth in client base means the traditional Elder Law practitioner is too busy with "planning" clients, and can afford to turn away litigation;
  • challenges to state restrictions on Medicaid eligibility or other benefits can require litigation, including knowledge of class action suits;
  • there is more demand among individual clients for "litigated" outcomes, requiring courtroom skills (although I suspect that does not necessarily mean the disputes will result in actual trials, given the overall downward trend nationally in any civil case going to trial).

Of course, money is probably at the heart of the growth of both sides of the practice.  Some people use advance planning to address allocation of financial resources.  Other people may be taking "after the fact" routes to address lack of planning or, even, bad planning. 

Your thoughts?  Is there a growth in Elder Law practice -- is there a split between lawyers who do or don't handle litigation? 


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