An Interview with Daniel R. York, Elder Law Attorney

By Russell W. Hall, CFP®, CPWA®

As financial advisors, we have to be familiar with estate planning for our clients including a good understanding of wills, trusts, powers of attorney, and other documents.  However, we don’t practice law ourselves and instead refer out to local attorneys that we know well and who we trust to do great work. 

One of those attorneys is Daniel (Dan) York, who practices in the Fullerton area.  During a recent presentation, Dan mentioned his concentration on elder law and how it differs from general estate planning.  We thought that was an intriguing and perhaps often misunderstood topic, so we asked Dan to discuss it further in the following interview.  Dan’s responses have been edited for brevity and clarity in this article, and we plan to post a longer video of the interview soon.

 

Russell Hall: Dan, what is your educational background?  What drew you to practice law in the first place, and particularly estate planning?

Dan York: I have a history degree from the University of California at Berkeley, and a law degree from Western State University here in Fullerton.  I have also taken many continuing education classes over the almost 36 years that I’ve been practicing.

I didn’t arrive at estate planning or elder law right away.  I came to it because I was a speech communication major – actually a double major with art – and I found out very quickly that I wasn’t going to be able to make a real living in art, so I had to figure out how I was going to use speech.

The matter of getting into elder law and estate planning is a longer journey.  I first started out with 17 years of practice doing mostly litigation - contested cases in the courts.  It’s a form of civilized combat…but it is combat.  After doing that for a number of years, I was looking for something different.  What I found is that there are a lot of people out there who needed guidance because they were retired and they were going through a lot of changes in their lives.  There is a lot of complexity to planning for care and integrating government programs as well as dealing with personal assets.  I found in elder law a very supportive, professional community that was less about combat and more about cooperation. 

You’ve talked about how elder law attorneys differ from other types of lawyers, but couldn’t any lawyer do estate planning? 

Attorneys that are licensed in our state jurisdiction can draft wills and trusts.  But if you don’t have the base of experience or have not devoted time to special issues, there is risk that you might miss something.  Estate planning can be very specialized as to age groups and particular needs.  If the attorney is not well-informed in those needs, he can miss important issues. Eventually those estate plan documents will “mature” and the written instructions will be tested during illness or after death. This is when we see many issues that weren’t taken into account.

Elder law requires focus on the needs of older adults. It is difficult to do that in a general practice where the attorney’s attention is spread among other practice types.  Elder law developed because the world of government benefits got complicated and our life span increased.  We found that because people were living longer, they needed care for a longer period of time, and their medical conditions tended to be quite costly.  So, the short answer to your question is that coordinating all of these elements can be quite complicated, and if you don’t have a working understanding of the various government benefit programs and the local laws that apply, you can get in over your head.  That’s why most elder law attorneys don’t diversify too much outside of those areas. 

And elder law itself has developed niches.  I would say that if an attorney believes that they can dabble in elder law, they’ll quickly find out that’s hard to do.

Can you go further into elder law versus estate planning?  For a lot of people, they converge the two in their mind.

Elder law is an expansion of traditional trust and estates practice.  Estate planning can be something as simple as a two-page will. 

However, if you’re dealing with an individual that has a diagnosis of neuro-degenerative disease (dementia), then you have to know how to determine whether that person still has the ability to understand and communicate about personal choices in the area of estate planning.  The question of simply preparing a will becomes more complicated. 

The other thing to understand is that generic estate planning tends to focus on end of life and what becomes of the things you own.  There is often focus on lifetime documents like a power of attorney. But elder law attorneys realize there are a lot of sub-issues, particularly regarding capacity.

Not all elder law attorneys spend their time doing estate planning; some spend their time on contested litigation.  They may actually sue people that have committed elder financial abuse or emotional abuse or physical abuse or neglect.  So elder law has some fuzzy edges where it can blend into the area of litigation and even into other areas (quite complicated tax planning, for example).  It just happens that my area of practice tends to focus in those areas regarding aging, medical care, caregiving, and financial management.

Is there an organization or group that certifies elder law attorneys?  Is more education or background needed?

The history of elder law associations and attorney organizations is interesting.  In California, there is a certification for elder law, but that certification is not one that most elder law attorneys pursue.  The education you acquire through practice and various memberships actually contributes to that base of knowledge that makes you good at what you do.  So most practicing elder law attorneys do not pursue the certification.  I don’t want to express a preference for one approach or the other. Some elder law attorneys have it, but most do not.

Elder law as a practice area developed around an organization called the National Academy of Elder Law Attorneys, and NAELA has a fine website at www.naela.org that can explain areas of practice. NAELA is a nationwide organization that was founded in 1987, because attorneys were running into these issues of aging, disability, caregiving and government programs. These attorneys wanted to share information and collect ideas. NAELA provided that community of knowledge. NAELA also provides a directory of attorneys to the public at no charge. NAELA also tracks and influences legislation that will benefit seniors.

Why would someone seek out an elder law attorney specifically, versus an estate planning attorney?

You should consider an elder law attorney if you are concerned about the costs of care as you age, the effect of Alzheimer’s or some other progressive disease, the appointment of someone to oversee your finances or personal care, government programs to help you pay for your care and any other issues related to disability or aging.

For example, some estate plans do not include provisions allowing for Medi-Cal eligibility planning.  Sometimes a spouse loses capacity to sign documents to alter the estate plan to make needed adjustments. That is when we may need to go to court for an order.  Anytime I talk about going to court to get permission to do something, you should translate that into dollars, delay, and frustration – lots of frustration.  What we’re trying to do is keep our clients out of court, generally speaking.  There are some times you can’t avoid that, but in general good planning is that which attempts to keep control in the hands of the individual and the persons they chose, to control costs, and to keep it private and hopefully reflect the wishes of that person.

I’m going to get on a little bit of a soapbox here - for folks that may be procrastinators. It is  important that you get your planning done while you are still able to make informed consent decisions and understand what you are deciding and signing.  It is not good enough to simply put a pen in someone’s hand and tell them to sign something.  Ethical attorneys will not allow that; they have to be satisfied that this person knows what they are signing.  When you see a practitioner early, it means that the person with the diagnosis can participate, they can be satisfied that the choices they’re making are their choices, and it makes for a more satisfying experience.  It also puts the family at ease knowing that their loved one made these decisions.  One of the most anguished statements I hear from families is “I don’t know what mom or dad really wanted”.  That can lead to disagreements and confusion.  

 

We often tell clients to expect that if they’re going to a new attorney to update their documents, the new attorney might prefer to just completely rewrite everything (and it might be cheaper to do so).  Have you found that to be the case?

I’ll try to give you a practical perspective on that.  When someone asks for an amendment or a large change to their estate planning papers, as a matter of practice the first thing I do is to ask to review the existing documents.  The best analogy is going to a doctor that you’ve never seen before.  He or she will take your history, run some blood tests probably, and try to determine your physical status. 

We’re doing a similar kind of thing.  I will want to read those documents because it may be that I can amend documents without having to do a restatement of the trust.  I don’t automatically insist on a restatement; but having said that, I will point out to the client that there are certain areas that may be deficient. By that I mean the old plan documents may not accomplish what the client currently wants. And the law may have changed since their documents were written. So based on the client’s current wishes and current laws, we might recommend improving the language or refining it.  It’s kind of like the decision of whether you replace the tire, or you put fifty patches on the tire.  I will point out to the client when I will not be able to “patch the tire.” Sometimes it will cost far more to “patch” than simply write an entirely new document. 

The other thing on a practical level is that when you put too many amendments on a document, it becomes incredibly hard to read and understand because you’re flipping back and forth between pages of the original document and the amendment pages.  Remember that the person in the future reading this document – your trustee or executor – will be a layman trying to figure out what all these patches mean.

Anything else you would like people to know about elder law?

DY: When I see families finish this process, you can visibly see them breathe a sigh of relief knowing that their wishes are reflected in their documents and that a lot of different outcomes have been anticipated. A sign of good planning is not assuming just one possible outcome but planning for many possibilities. For that reason, estate planning is a gift to your family.  They can be confident that things are ready.

But don’t assume that you can get to that point without spending time.  Too often I have people call me assuming they can come into the office in one visit, sign a couple of documents, and be done in a week’s time.  Very often they’ve thought about the obvious issues, but what they may not have taken into account are other items.  For example, if they have an executor/ trustee, what happens if that person dies, becomes incapacitated, or declines the job or for some other reason is not able to do it?  What if one of their beneficiaries passes away – what becomes of that share?  There are many other things to consider.

One way to think of this is that the client has lived this entire life, done a lot, saved and provided for their family, and is now thinking about what to do with what remains and how to make it last for their own care.  What we’re trying to do is summarize their vision for the future so that their wishes are honored when they can no longer personally do that job.  That involves a lot of careful thought. Those decisions shouldn’t be made in the space of a few days.  I would urge people not to think they can do that on their sickbed  That’s not a good time to be doing detailed planning.

Thank you for your time, Dan.

If you have any questions, please feel free to schedule a phone call or meeting with one of our advisors.