Engagement Letters for Elder Law Attorneys

Very often an individual will be represented by two attorneys in the elder law field. For example, an elder law attorney might not have the vision and expertise to handle a real estate transaction or might be of the opinion that to represent two individuals would be a conflict. For example, an attorney representing a potential transferee of real estate (i.e. a child who provided care to allow a parent to remain home rather than go into a nursing home - see Post 6), might be of the opinion that to represent the applicant and the transferee would be a conflict.

It would be wise for the two attorneys to have separate engagement letters as the representation of the individuals is separate. However, if one of the attorneys is of counsel to the lead attorney, a separate engagement letter is not necessary. However, it is my opinion, that it would still be prudent for an individual who is "of counsel" to have a separate engagement letter.

As Carol Johnston, Esq. of the Advisory Committee on Professional Ethics and I pointed out in my webinar entitled "Ethical Dilemmas for Elder Law Practitioners", the question often is not whether there is a conflict, but whether the conflict should be waived. Therefore, elder law counsel who feels there is a conflict, should have a separate engagement letter from the other attorney.

Generally, since the state often violates federal pre-emption (which I will be discussing in my next webinar entitled "Constitutional Aspects of Elder Law and Guardianship", dated December 15, 2011,) counsel should point out in correspondence to a nursing home applicant areas of uncertainty. For example, in order to execute a proper caretaker agreement, the payments to a child must be "reasonable". The state refuses to define reasonable and will not give an a priori decision. Therefore, counsel should indicate in his or her correspondence to the client, this vague language and that you have advised the client that there is no guarantee that the payment to the child would be deemed unreasonable, and the excess of the amount of the payment over the amount deemed "reasonable" by the state would be deemed a transfer.

For example, I personally feel that the word "reasonable" violates the due process clause as it does not provide adequate notice as to the amount of payment that can be made by a parent to the child.

In my upcoming webinar, I point out many of the ambiguities in the state's statue due to violation of federal pre-emption. Whether your ambiguities should be in an engagement letter or a separate letter, is at the discretion of counsel. The main areas of violation of federal pre-emption are "disinheritance of the community spouse" and "spousal refusal".

The state has retracted "reverse half-a-loaf planning." Although I have pointed out in Post 113 that such planning should work, it is highly advisable not to undertake such a plan in light of the state's decision in Medicaid Communications 10-02 and 10-03. Therefore, I would point out in an engagement letter or subsequent letter, the fact that such planning should work but is not acceptable by the state.

I am particularly concerned about the violation of federal pre-emption in the state's denying reverse half-a-loaf planning. Firstly, the real reasons are set forth in Post 113. Moreover, the ruling which denied reverse half-a-loaf planning (Medicaid Communication 10-02), was dated May 26, 2010. Notwithstanding, the state has denied such planning even before that date. It is my opinion that such position not only violates federal pre-emption, but constitutes an ex post facto law, since the state is applying such ruling prior to the date of the Medicaid Communication.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© November 2011, Post 170