A grown daughter moved home to her family’s northern Wisconsin farmstead to care for her widowed mother as the elderly woman slipped into dementia. After a few more years at home, the mother eventually required professional care in a nursing home.
But then the state filed a lien against the family farm to reclaim the expenses that Medicaid paid for the mother’s long-term care. Her caretaking daughter was about to become homeless.
“Now if Mom had had a good, durable financial power of attorney with a gifting clause, we never would’ve been in court,” said Paul Sturgul ’73, a certified elder law attorney. “The power of attorney agent could have simply signed and deeded the home over to the adult caretaker child. But that wasn’t the case.”
Sturgul argued for the judge to grant permission to allow the mother’s guardian to transfer the farm to the daughter. When the judge agreed, many in the courtroom wiped away happy tears.
“That was one of the most gratifying experiences in my entire career,” said Sturgul, who is now involved in an advocacy project to repeal Medicaid estate liens under federal law.
It’s stories like these that keep Sturgul and other elder law attorneys so committed to this growing field.
“Elder law is a relatively new field of American law,” Sturgul said. “It’s a combination of something old — traditional trusts and estate law, wills, powers of attorney, guardianships, probate avoidance, estate planning and administration — and something new — planning for incapacity and long-term care.”
A High-Demand Niche
Sturgul started as a general practitioner in Hurley, Wisconsin, before realizing his aging community represented an opportunity.
“All of those elderly people in my hometown were a veritable treasure trove of unmet legal needs, and I realized I had the wonderful opportunity and responsibility to be of service to them,” he said.
Sturgul went on to serve three terms as president of the National Elder Law Foundation, and is a sought-after speaker on elder law. He has also served as chairman of the Elder Law Sections of both the Wisconsin and Michigan state bars, among others.
Jon Fischer ’13 of McCarty Law in Appleton, Wisconsin, also didn’t set out to focus on elder law. But after helping another elder law attorney at his firm, he discovered he loved the work.
“I am not a confrontational person, so I really enjoy working with our elder law clients because it’s not a win for someone and a loss for somebody else,” Fischer said. “Everybody is happy when we’re done. We always say that as elder law attorneys, we’re the only ones who get hugs from our clients.”
As more people live longer, the need for elder law attorneys continues to grow. Approximately 70% of Americans who live beyond age 65 will need some form of long-term care at some point in their lives, Sturgul noted.
“Most Americans have pretty much figured out how to plan for death,” he said. “What they haven’t figured out is how to deal with incapacity. The problem is not so much dying as not dying — it’s having a stroke, dementia, Parkinson’s or Lou Gehrig’s disease, and ending up in a nursing home.”
Ideally, elder law practice should be proactive. But all too often, elder law attorneys are called in when a family is facing a crisis.
“But it’s never too late to hire an elder law attorney to help you,” Fischer said. “There’s always something that an elder law attorney can do to protect some assets.”
Of course, injury and disease can strike at any age. Elder law attorneys often help establish trusts for individuals who are born with disabilities, too.
Advocating for Seniors
Elder law attorneys often lobby for legislation that can affect their clients’ lives as well, from changing how healthcare power of attorney works to protecting seniors from financial crimes.
“Elder law is not just sitting behind a desk,” Fischer said. “It’s getting out there in the community and trying to help people.”
It also means deciphering complex Medicaid rules and emerging nuances in the field.
One of the more pressing developments in elder law is the proliferation of “private pay” requirements. Many assisted living facilities have begun requiring a minimum period of private pay even if patients are eligible for Medicaid. And that doesn’t mean that seniors are allowed to stay after they go on Medicaid — Fischer recently helped one family whose loved one was evicted from an assisted living facility after completing their private pay period. After getting a temporary injunction, Fischer was part of a group that reached a settlement with the facility and their insurance company to allow the resident to stay.
“Elder law is not just sitting behind a desk. It’s getting out there in the community and trying to help people.” – Jon Fischer ’13
Fischer and Sturgul encourage other University of Wisconsin Law School alumni to consider specializing in elder law.
“Elder law is a growing field that is going to be in high demand through anybody’s career span,” Fischer said. “And it is an opportunity for people to have a law practice that is helping people every single day and that builds meaningful, lasting relationships with clients. I can’t imagine doing anything else.”
By Nicole Sweeney Etter