Board Certified in Elder Law
Attorneys can become board certified as a specialist in elder law if they comply with the general requirements of Rule 6-20.1. Under that rule, a lawyer who is a member in good standing of The Florida Bar and meets the standards prescribed below may apply to The Florida Bar board of legal specialization and education for a certificate identifying the lawyer as "Board Certified in Elder Law."
The purpose of the standards is to identify those lawyers who practice in the area of elder law and who have the experience, knowledge, skills, and judgment to be properly identified to the public as board certified in elder law.
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Definitions for Elder Law Specialization in Florida
Under Rule 6-20.2, the following definitions apply to specialty certification in elder law:
(a) Elder Law.
"Elder law" means legal issues involving health and personal care planning, including: advance directives; lifetime planning; family issues; fiduciary representation; capacity; guardianship; power of attorney; financial planning; public benefits and insurance; resident rights in long-term care facilities; housing opportunities and financing; employment and retirement matters; income, estate, and gift tax matters; estate planning; probate; nursing home claims; age or disability discrimination and grandparents' rights.
The specialization encompasses all aspects of planning for aging, illness, and incapacity. Elder law clients are predominantly seniors, and the specialization requires a practitioner to be particularly sensitive to the legal issues impacting these clients.
Minimum Standards for Elder Law Certification in Florida
Rule 6-20.3 provides the minimum standards in elder law in Florida:
(a) Minimum Period of Practice.
The applicant shall have been engaged in the practice of law in the United States, or engaged in the practice of United States law while in a foreign country, and shall have been a member in good standing of the bar of any state of the United States or the District of Columbia for a period of 5 years as of the date of filing an application. The years of law practice need not be consecutive.
(b) Substantial Involvement.
The applicant must demonstrate substantial involvement in elder law as defined by the following:
(1) At least 5 years of law practice, of which at least 40 percent has been spent in active participation in elder law. At least 3 years of this practice shall be immediately preceding application.
(2) Substantial involvement means the applicant has devoted 40 percent or more of the applicant's practice to matters in which issues of elder law are significant factors and in which the applicant had substantial and direct participation in those elder law issues in each of the 3 years preceding the application.
An applicant must furnish information concerning the frequency of the applicant's work and the nature of the issues involved. For the purposes of this subdivision the "practice of law" shall be defined in rule 6-3.5(c)(1), except that it shall also include time devoted to lecturing and/or authoring books or articles on elder law if the applicant was engaged in the practice of law during such period.
Demonstration of compliance with this requirement shall be made initially through a form of questionnaire approved by the elder law certification committee but written or oral supplementation may be required.
(c) Practical Experience.
During the 3 years immediately preceding the application, the applicant shall have provided legal services in at least 60 matters as follows:
(1) Forty must be in categories listed in (A) through (E) below, with at least 5 matters in each category.
(2) Ten of the matters must be in categories listed in (F) through (M) below. No more than 5 in any 1 category may be credited toward the total requirement of 60 matters.
(3) The remaining 10 matters may be in any category listed in (A) through (M) below, and are not subject to the limitation contained in parts (1) or (2) of this subdivision.
(4) As used in this subdivision, an applicant will be considered to have "provided legal services" if the applicant: provided advice (written or oral, but if oral, supported by substantial documentation in the client's file) tailored to and based on facts and circumstances specific to a particular client; drafted legal documents such as, but not limited to, wills, trusts, or health care directives, provided that those legal documents were tailored to and based on facts and circumstances specific to the particular client; prepared legal documents and took other steps necessary for the administration of a previously prepared legal directive such as, but not limited to, a will or trust; or provided representation to a party in contested litigation or administrative matters concerning an elder law issue.
(5) The categories are:
(A) Health and personal care planning, including giving advice regarding and preparing, advance medical directives (medical powers of attorney, living wills, and health care declarations) and counseling older persons, attorneys-in-fact, and families about medical and life-sustaining choices, and related personal life choices.
(B) Pre-mortem legal planning, including giving advice and preparing documents regarding wills, trusts, durable general or financial powers of attorney, real estate, gifting, and the financial and tax implications of any proposed action.
(C) Fiduciary representation, including seeking the appointment of, giving advice to, representing, or serving as executor, personal representative, attorney-in-fact, trustee, guardian, conservator, representative payee, or other formal or informal fiduciary.
(D) Legal capacity counseling, including advising how capacity is determined and the level of capacity required for various legal activities, and representing those who are or may be the subject of guardianship/conservatorship proceedings or other protective arrangements.
(E) Public benefits advice, including planning for and assisting in obtaining Medicare, Medicaid, Social Security, Supplemental Income, Veterans' benefits, and food stamps.
(F) Advice on insurance matters, including analyzing and explaining the types of insurance available, such as health, life, long-term care, home care, COBRA, medigap, long-term disability, dread disease, and burial/funeral policies.
(G) Resident rights advocacy, including advising patients and residents of hospitals, nursing facilities, continuing care facilities, and those cared for in their homes of their rights and appropriate remedies in matters such as admission, transfer and discharge policies, quality of care, and related issues.
(H) Housing counseling, including reviewing the options available and the financing of those options such as mortgage alternatives, renovation loan programs, life care contracts, and home equity conversion.
(I) Employment and retirement advice, including pensions, retiree health benefits, unemployment benefits, and other benefits.
(J) Income, estate, and gift tax advice, including consequences of plans made and advice offered.
(K) Counseling about tort claims against nursing homes.
(L) Counseling with regard to age and/or disability discrimination in employment and housing.
(M) Litigation and administrative advocacy in connection with any of the above matters, including will contests, contested capacity issues, elder abuse (including financial or consumer fraud), fiduciary administration, public benefits, nursing home torts, and discrimination.
(d) Peer Review.
The applicant shall submit the names and addresses of 5 other attorneys who are familiar with the applicant's practice, not including attorneys who currently practice in the applicant's law firm, who can attest to the applicant's special competence and substantial involvement in the field of elder law. The board of legal specialization and education and elder law certification committee may authorize references from persons other than attorneys and may also make such additional inquiries as they deem appropriate to complete peer review, as provided elsewhere in these rules.
The applicant must demonstrate that during the 3-year period immediately preceding the date of application, the applicant has met the continuing legal education requirements in elder law as follows. The required number of hours shall be established by the board of legal specialization and education and shall in no event be less than 60 hours. Credit for attendance at continuing legal education seminars shall be given only for programs that are directly related to elder law. The education requirement may be satisfied by 1 or more of the following:
(1) attendance at continuing legal education seminars meeting the requirements set forth above;
(2) lecturing at, and/or serving on the steering committee of, such continuing legal education seminars;
(3) authoring articles or books published in professional periodicals or other professional publications;
(4) teaching courses in elder law at an approved law school or other graduate level program presented by a recognized professional education association;
(5) completing such home study programs as may be approved by the board of legal specialization and education or the elder law certification committee, subject to the limitation that no more than 50 percent of the required number of hours of education may be satisfied through home study programs; or
(6) such other methods as may be approved by the board of legal specialization and education and the elder law certification committee.
The elder law certification committee shall establish policies applicable to this subdivision, including, but not limited to, the method of establishment of the number of hours allocable to any of the preceding requirements. Such policies shall provide that hours shall be allocable to each separate but substantially different lecture, article, or other activity described in subdivisions (2), (3), and (4) above.
The applicant must pass an examination designed to demonstrate sufficient knowledge, proficiency, and experience in elder law to justify the representation of special competence to the legal profession and the public.
Any applicant who as of the effective date of these standards is: currently certified by the National Elder Law Foundation and meets all other requirements set forth under subdivisions (a) through (e), shall be exempt from the examination. This exemption shall only be applicable with respect to any applicant meeting the aforesaid requirements and whose application is submitted within 2 years from the effective date of these standards.
Recertification in Elder Law in Florida
Rule 6-20.4 provides the requirements for recertification in Elder Law in the State of Florida. To be eligible for recertification, an applicant must meet the following requirements:
(a) Substantial Involvement.
Applicants must demonstrate a satisfactory showing, as determined by the board of legal specialization and education and the elder law certification committee, of continuous and substantial involvement in the field of elder law throughout the period since the last date of certification. The demonstration of substantial involvement shall be made in accordance with the standards set forth in rule 6-20.3(b) and (c).
(b) Continuing Legal Education.
Applicants must demonstrate the completion of at least 125 hours of continuing legal education since the filing of the last application for certification (or recertification). The continuing legal education must logically be expected to enhance the proficiency of attorneys who are board certified elder law attorneys.
If the applicant has not attained 125 hours of continuing legal education, but has attained more than 75 hours during such period, successful passage of the written examination given by the board of legal specialization and education to new applicants shall satisfy the continuing legal education requirements.
(c) Peer Review.
Peer review shall be conducted in accordance with the standards set forth in rule 6-20.3(d).