Elder Law Clinic (ELC) interns represent clients who are grappling with a variety of legal issues and problems related to aging and incapacity. We work primarily in the areas of adult guardianships, estate and incapacity planning, and government benefits. Interns examine the theory, doctrine and practice of elder law, and develop the skills necessary to provide high quality representation focused on understanding and responding to the client’s goals and wishes. Legal interns appear in court on adult guardianship and estate administration cases, develop expertise in planning and drafting, and work on advocacy and community education projects related to law, aging, and decision making capacity issues.
Outside Bronx Supreme Court: (l-r) Prof. Joe Rosenberg, Prof. Degna Levister, with students Marita Robinson and Monette Evans, Class of 2012.
Highlights of Student-Attorney Experiences in the Elder Law Clinic
- Serve as Court Evaluator and represent parties in Adult Guardianship proceedings in Supreme Court under Article 81 of the Mental Hygiene Law.
- Represent clients by drafting wills, trusts, and advance directives.
- Counsel clients about government benefits, including Medicaid, Medicare and Social Security.
- Represent clients in Surrogate’s Court proceedings involving probate of wills and administration of estates.
- Participate in projects that complement our individual casework.
We work together in a supportive and challenging atmosphere, focus on creating a positive learning experience, and provide supervision to help each student develop the necessary legal skills and knowledge to enter practice.
Typical Student Practice
Our Adult Guardianship cases often begin with a telephone call or fax from the chambers of the appointing judge. These cases typically involve a person who is indigent and alleged to be incapacitated, so that the petitioner believes it is necessary to appoint a guardian. The Court appoints the clinic as attorney for the person alleged to need a guardian, or as Court Evaluator. If we are representing the person, we conduct an investigation, and vigorously defend our client's position in the guardianship hearing, at which students make motions, engage in negotiations, and conduct direct and cross examinations.
The Court Evaluator serves as the "eyes and ears" of the court, and plays a pivotal role in the proceeding. Interns conduct a thorough investigation, interview interested parties, communicate with the judge and attorneys for the parties, analyze legal and non-legal issues, write a report with recommendations, and testify at the hearing.
Interns who worked on recent guardianship cases accomplished the following:
- Recommended that an elderly woman, who had to be evacuated from a nursing home during Hurricane Sandy, return home to her apartment with home care.
- Persuaded the Court that a young man with a developmental disability does not need a permanent guardian and that only a special guardian was needed to transfer a modest personal injury settlement into a supplemental needs trust that would protect the young man's eligibility for government benefits.
- Discovered that an elderly woman had been neglected by her closest relative, prevented him from being appointed her guardian, and facilitated her discharge back to her home community.
- Demonstrated that a middle aged person with a history of psychological challenges did not need a guardian, which caused the Adult Protective Services agency to withdraw the petition.
- Reconstructed the identity and history of an elderly man who had checked into a hospital with no memory, thus enabling the court to create a guardianship and plan of care responsive to his unique needs.
Our work with clients on estate planning is an example of preventive law practice that involves interviewing, counseling and drafting of documents designed to prevent litigation and future problems. An elderly couple called our office to say they wanted to provide for an adult child who was receiving government disability benefits. The couple's circumstances made their case extremely complex, including issues such as major health problems, potential need for long term care, ownership of a small cooperative apartment, and their child's special needs. The legal intern had numerous counseling sessions with the clients on the complex maze of laws governing estate planning, Medicaid eligibility and estate recovery, and supplemental needs trusts. Together, the intern and clients created an estate plan with wills, advance directives, supplemental needs trusts, and arrangements for future contingencies, which was so responsive to their needs that they told the intern that she had "saved their lives."
Interns also work on a variety of projects designed to have an impact on the problems of our clients beyond what may be possible through representing an individual client. The following are examples of current and past projects:
- Article 81 Guardianship Pro Se project, in which we assist people who need to be appointed guardian for a family or friend complete and file the pleadings in Supreme Court.
- Community education "know your rights" presentations on various issues, including adult guardianships, Medicare, Medicaid, estate planning, and health care directives.
- Working on cases with the Guardianship Project at the Vera Institute of Justice.
- Examining how ethnicity, race, and culture impacts attitudes about health care decisions.
- Identifying areas for reform in adult guardianships under Article 81 of the Mental Hygiene Law.
Emerging Areas of Practice
Elder Law is a rapidly evolving area of practice. Although many of our clients are older adults, our case and project work is based on legal issues, rather than the chronological age of our clients. As a result, we do not limit representation to people over a certain age, but represent individuals and their families with legal issues related to aging, incapacity and mortality.
We integrate theory, doctrine, and practice by studying the nature of aging and incapacity, adult guardianships, wills, trusts, advance directives, estate planning, government benefits, and the interplay among these different areas. We discuss and practice a broad range of skills necessary to develop lawyering expertise. We examine the role of lawyers and the legal system in responding to legal issues facing older adults, people with decision making incapacity, and their families. Although interns learn lawyering skills and substantive law in the elder law practice context, most of the skills and knowledge they gain are transferable to other legal practice contexts.
Interns from the Elder Law Clinic are prepared for civil practice, and often apply their clinic experience in elder law, family law, and general community-based practices. Our graduates work in government and non-governmental organizations (doing both civil and criminal work), solo practice, small firm practice and legal services.
Social Justice Mission
Our clinic graduates lawyers with professional values and skills that encourage client autonomy, empowerment and dignity. We connect our case work and projects to a wider network of professionals and organizations in order to make a broader contribution and be culturally competent practitioners.