An elder law litigator’s perspective

Issue March 2011 By Timothy D. Sullivan

We like to say "if someone takes the old lady's money, we take it back." But, in reality, fiduciary litigation in the elder law arena is a grab bag of legal and equitable remedies to the problems surrounding the finances of elders.

In many cases, the remedies can, and should, be pursued in more than one forum at the same time.


The first step in any litigation is to determine who you represent. In most areas of law, the identification of the client is easy. It is the person who came through your door with a problem.

Where elders are involved, the case is often much more difficult. Often, the first approach to a lawyer is by someone purportedly acting on behalf of the elder. (In these cases, the elder's physical or mental health is often compromised.)

"Purportedly" is a term of prejudice. Whenever a lawyer is approached by someone seeking to "help" or act for an elder, the lawyer should initially approach the problem by inserting the adverb 'purportedly' before the verb "help."

Ultimately, you will be working either for or against the rights and/or desires of the elder. If the person who came through your door with a problem is a creditor, client identification is easy. You will seek to collect the debt owed to your client.

If the person who came through your door is a "friend" or family member of the prospective client, the questions multiply.

First, regardless of the representations of the friend or family member, you must determine what interests you will be representing. It is not "the family money." The money belongs to the elder. While it is often possible to view the interests of the elder and a very long-term spouse as closely linked, it is not possible to view the interests of the elder and another family member or members as a unit. It is the elder's money!

Helping someone, even a family member, to take the elder's money is aiding and abetting in a crime!

At this point, some elder law attorneys will be scoffing. However, it is very important to distinguish between 'helping preserve the family money' and helping an elder achieve her goals.

Very often, an elder would prefer to leave a legacy to her children even if it means depriving the elder of financial control or adequate health care. This may be true even if achieving the legacy means depriving the elder of control or even healthcare. Helping an elder, or her chosen representative, to achieve her goals is the noble work of an elder law attorney. However, helping someone take the property of an elder is criminal elder abuse.

The line between criminal and noble efforts is only perceived by the lawyer who takes the time to learn and understand the personal objectives of the elder without regard to the personal objectives of the person who walked in the door.

Client's problems/objectives

When dealing with clients of modest to moderate means, very often significant objectives include the preservation of assets and the protection of family members.

Like estate planning, elder law involves helping clients navigate the complex set of laws and regulations which control the way which our government takes money from its citizens and dispenses it back to them.

There is an important emotional difference in perspective. In the instance of estate planning, the planner seeks to reduce the amount of money which he is required to pay to the government. In the case of Medicaid planning, the planner seeks to maximize the benefits which the government dispenses while minimizing the amount he must pay. This difference in perspective raises public policy questions which sometimes result in radical rhetoric and even knee-jerk solutions from elected individuals.

One such overreaction was the Balanced Budget Act of 1997. Popularly known as the "Granny Goes to Jail Law," Congress for a very short time made it illegal to do Medicaid planning. Upon realizing a) what it had done and b) the immediate and overwhelming ire of society, Congress jumped back from attacking "Granny."

The result was an amendment to the Balanced Budget Act of 1997 aimed not at 'Granny' but at those nasty lawyers. The "Granny's Lawyer Goes to Jail Law" provided for criminal penalties, including a year in jail and a $10,000 fine for Medicaid planning. (The solution to this second attempt was an injunction in the Federal Court, District of New York and a statement from U.S. Attorney General Janet Reno admitting that the law was unconstitutional and assuring the public that it would not be enforced.)

The complexities [of the law] … should never be allowed to blind us to the essential proposition that a man or a woman should normally have the absolute right to do anything that he or she wants to do with his or her assets, a right which includes the right to give those assets away to someone else for any reason or for no reason. … We would only amplify this by saying that no agency of the government has any right to complain about the fact that middle class people confronted with desperate circumstances choose voluntarily to inflict poverty upon themselves when it is the government itself which has established the rule that poverty is a prerequisite to the receipt of government assistance in the defraying of the costs of ruinously expensive, but absolutely essential, medical treatment1

Your client comes before the government both as a supplicant, begging the government to pay for those necessities which she cannot afford, and as a citizen, demanding her rights under the Constitution, the social contract which forms our government.

As an elder law attorney, your role is to support your client and help her achieve the benefits which she has earned and/or qualified for as a citizen.

Much of elder law involves planning for and qualifying for Medicaid. This means understanding the complexities of the law and effectively planning to achieve the client's objectives. In its planning phase, this role is essentially the same as the role assumed by an estate planning attorney.

However, the elder law attorney faces many additional hurdles. First, an elder law attorney must be able to negotiate the MassHealth application process. This process involves the assembly and presentation of increasingly more extensive and complex data, which often has to be assembled from little more than random scraps and piles from the detritus of the home of a mind which has lost its focus.

This data is then applied to the complex set of regulations that is Medicaid law. The elder law attorney negotiates this legal administrative maze of qualifying with skill and compassion. (In contrast, the charlatan either pretends to help by filling in the blanks on an application without knowledge or concern, or defrauds society by distorting the facts.)

Our society profits from the noble efforts of qualified advocates. We suffer when the overreaching claims of charlatans are assumed as factual and become the basis for destroying the safety nets we have laid for the members of our long-suffering working class.

1Matter of [Kashmira] Shah, 257 A.D.2d 275, 282-283 (1999).