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law Times • July 12, 2010 An online resource 1.800.263.3269 Focus On LEGAL SPECIALISTS & BOUTIQUES Elder law practitioners gearing up for boom From estate planning to retirement benefits, lawyers in demand for a variety of matters BY ROBERT TODD Law Times I f there's a single practice area poised for a boom in the decades ahead, it's elder law. With Statistics Canada esti- mating last year that Canadi- ans' median age could reach 44 during the 2030s — up from 33.5 years in 2009 — and 1.3 million people aged 80 and over as of July 1 last year, there's sure to be increasing demand for lawyers skilled at dealing with the issues aff ecting the elderly. Th ey'll be called on to help deal with everything from estate planning to retirement benefi ts along with elder abuse, both physical and fi nancial. Halifax elder law practitio- ner Jeanne Desveaux says she could already employ "a whole farm of lawyers" to deal with the number of fi les that come her way. While the opportunities in this practice area are great, the past chairwoman of the Cana- dian Bar Association's elder law section says there's a long list of special considerations lawyers like her make to best represent their clients. She has decided to keep her practice small and personal, for example, and is willing to meet clients in their own homes. Other lawyers have opted to set up shop in wheelchair-accessible build- ings, which may not be as easy to fi nd as people might think. "I broke my ankle this winter and I had a really hard time getting to my offi ce because of the parking in downtown Hal- ifax," says Desveaux. "Th ings we take for granted, we don't realize how limiting that is for someone else." Lawyers working with elder law clients should also turn their attention to factors such as appropriate offi ce light- ing and the use of large-font lettering in documentation. Th ey also need to be mindful of the extra time it may take to properly handle a client's fi le. While many older persons are very tech savvy, Desveaux says others require communication over the phone or by mail, for example. "All of us slow down with age, so we need to take more time with the clients, and that's something some people are reluctant to do," says Des- veaux. "It's very important that we speak very directly to our clients about what their needs are and how much time is going to have to be spent on their matter." Desveaux uses fl at-rate billing for most of the mat- ters she works on and doesn't "nickel and dime" her clients for an extra 15 minutes here and there. She says many elder law practitioners aren't on the clock and take as much time as their clients need. In her expe- rience, that generosity comes back when happy clients re- quire more legal advice in the future. For Toronto elder law practi- tioner Kimberly Whaley, man- aging client expectations can be a big challenge, especially when it comes to costs. Many clients express an inability to aff ord her retainer, which can present an awkward situation. "You're not going to do this work for free, right? You need to make sure you get paid," she says. "Often the expectations of the person who is coming to you is that, 'Oh the mom or dad or incapable person can pay for this.' But given our case law of late, that is the wrong ap- proach, and you have to make sure from the outset that your clients understand that." With laws affecting the elderly not updated to today's reality, litigating matters can be more expensive than necessary, says Kimberly Whaley. Elder law practitioners must also be ready for issues to arise for clients seemingly out of the blue. And when they happen, lawyers need to be willing to be consumed by the matter, says Whaley. "Th ere are ups and downs, I guess, volatility. But maybe [it's] much like other civil liti- gation practices, just in another context." A lot of the matters elder law practitioners currently deal with relate to guardianship, powers of attorney, and substi- tute decision confl icts. Unfor- tunately, Whaley says, current legislation — both the Sub- stitute Decisions Act and the Health Care Consent Act — wasn't created with an eye to the current types of matters af- fecting the elderly. Th at makes the issues more costly to liti- gate than they perhaps should be, according to Whaley. "Th e approach of the court, absent perfect legislation, is to say, 'Don't come before me if this is a fi ght that is amongst a set of siblings and it's not in the best interest of the older adult or the incapable person because if you think that mom or dad is going to pay for your little fi ght, you're wrong.' Th ere have been some very harsh con- sequences coming out of these decisions." Meanwhile, Desveaux advis- es lawyers thinking about shift- ing to this growing practice area — or adding it to their list of services — to get involved with their local CBA elder law section. She says 90 per cent of the work she receives comes from other lawyers and health- care agencies familiar with her from her time leading the CBA's elder law section. It's also wise to develop relationships within the health-care industry by volunteering for organizations that focus on helping seniors, such as the Parkinson Society Canada or the Alzheimer Soci- ety of Canada. "It's a growing area and it's a really fulfi lling area," she says. LT PAGE 9 Electronic Documents Records Management, e-Discovery and Trial Effectively navigate the legal challenges posed by electronic documents Electronic data is modifying how lawyers interact, changing how information is collected and used, and transforming the courtrooms. 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Electronic_LT_July12.indd 1 www.lawtimesnews.com 7/7/10 1:40:32 PM Editors: Bryan Finlay Q.C., Marie-Andrée Vermette and Michael Statham With contributions from: Caroline Abela, Steve Doak, Paul D. Guy, Nikiforos Iatrou, Stephanie L. Turnham, David Vitale and John Wilkinson