Elder Law

 

Our Elder Law Clinic (ELC) advocates for older adults, people with disabilities, families with lifetime and estate planning needs to promote autonomy, empowerment, and dignity. This clinic will be offered during the Fall 2018 semester as a "hybrid" day and evening clinic or as an evening clinic only.

Guide To Becoming A Guardian Without A Lawyer <pdf>

Download our guide to becoming a guardian without a lawyer under Article 81 of the New York Mental Hygiene Law (note: please use as a general source of information, it is not updated regularly, and is not a substitute for legal advice from an attorney).

 

Elder Law Clinic Highlights

  • Litigation: Serve as Court Evaluator and represent parties in Adult Guardianship proceedings in Supreme Court under Article 81 of the Mental Hygiene Law. Serve as Guardian ad Litem in Adult Guardianship matters in Surrogate's Court under Article 17-A of the Surrogate's Court Procedure Act.
  • Transactional: Represent clients in lifetime and estate planning through drafting wills, trusts, powers of attorney, and advance planning documents.
  • Counseling: On issues related to our litigation and transaction practice, including government benefits such as Medicaid, Medicare, and Social Security.
  • Represent clients in Surrogate’s Court proceedings involving probate of wills and administration of estates.
  • Projects: Participate in projects that complement our individual casework, including know your rights workshops, legislative advocacy, and proposals for law reform. We work together in a supportive and challenging atmosphere, focus on creating a positive learning experience, and provide supervision to help each student intern develop the necessary legal skills and knowledge to enter practice.
 

The ELC has always included a range of legal issues related to "Disability, Aging, & Planning" within its scope. The practice of "Elder Law & Special Needs" encompasses legal issues and clients that include and go beyond disability and aging.

For Fall 2018, the ELC will have a similar scope, plus some changes that reflect an emerging dimension of the law due to the targeting of the immigrant population under the federal government's "interior enforcement" polices: the need to plan for minor children by parents and families that are vulnerable to removal due to immigration status. The clinic will incorporate the work of the "Planning with Parents" Project  that Prof. Joe Rosenberg, together with alumni and students, created at the beginning of 2017.

In the 2018 Fall Semester, the clinic plans to focus on the following areas:

  • Role of technology in law practice and in promoting access to justice.
  • Adult guardianships (under Article 81 of the N.Y. Mental Hygiene Law and Article 17-A of the Surrogate's Court Procedure Act) and alternatives to guardianship (including supported decision making based on Article 12 of the UN Convention on the Rights of People with Disabilities).
  • Lifetime and estate planning with a focus on multi-generational planning for parents and families vulnerable to deportation (including planning for the temporary care and guardianship of minor children); and
  • Related issues, including eligibility for government benefits.
  

Typical Student Practice

Adult Guardianship Practice

Our Adult Guardianship litigation 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 and that less restrictive alternatives are not available.

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 alleged to need a guardian, we conduct an investigation, and vigorously defend our client's position in the guardianship hearing, at which student interns make motions, engage in negotiations, and conduct direct and cross examinations.

The Court Evaluator serves as the "eyes and ears" of the court (similar in some ways to a Guardian ad Litem), and plays a pivotal role in the proceeding. Student 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.

Student interns who worked on recent guardianship cases accomplished the following:

  • Successfully appealed an Order appointing a Guardian for an elderly woman who had to be hospitalized after a fall in her NYCHA apartment and whose Guardian relinquished her apartment and placed her in a nursing home against her wishes. The Appellate Division, Second Department, reversed the Order appointing the Guardian and dismissed the Petition.
  • 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.

Lifetime and Estate Planning

Our work with clients on lifetime and estate planning exemplifies preventive law practice that involves interviewing, counseling, and drafting of documents designed to prevent litigation and future problems.

For example, 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 student 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 student 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 student intern that she had "saved their lives."

Project Work

Student interns also work on a variety of projects, often designed to intersect with their interests and have an impact on our clients or the law beyond what may be possible through representing an individual client.

The following are examples of 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. Student interns developed a "Guide to Becoming a Guardian Without a Lawyer" and a "beta" version of a guided interview software program that uses the answers to questions to complete forms necessary to file for an Article 81 guardianship.
  • Community education know your rights workshops on various issues, including adult guardianships, lifetime and estate planning with wills, trusts, powers of attorney, advance directives for the care of minor children, and health care directives.
  • External placement with the Guardianship Project at the Vera Institute of Justice working on Article 81 guardianship cases.
  • Exploring how ethnicity, race, and culture impacts attitudes about health care decisions, for example for Chinese elders in New York City.
  • Identifying areas for reform in adult guardianships under Article 81 of the Mental Hygiene Law and Article 17-A of the Surrogate's Court Procedure Act.
 

Emerging Areas of Practice

The rights and legal needs of people who are aging, have physical and cognitive challenges, or are vulnerable to deportation, are evolving areas of practice that reflect demographic trends and changing government policies.

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, mortality, and the "condition of deportability."

 

Classroom Component

We integrate theory, doctrine, and practice by studying the nature of aging and incapacity, adult guardianships, wills, trusts, advance directives, lifetime and 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 relevant legal and non-legal issues facing our clients and their families. Most of the skills and knowledge student interns develop in the clinic are transferable to other legal practice areas and contexts.

 

Clinic Graduates

Student 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 contemporary lawyering skills that encourage client autonomy, empowerment, and dignity. We connect our client work and projects to a wider network of professionals and organizations in order to make a broader contribution and be culturally competent practitioners.