Elder Law Board Certification by the North Carolina State Bar

Under the North Carolina board certification program, the term "elder law" is defined as the practice of law involving counseling and representation of older persons and their representatives relative to the following legal issues:

• "health and long term care planning;
• public benefits;
• surrogate decision-making;
• legal capacity;
• the conservation, disposition, and administration of the estates of older persons; and
• the implementation of decisions of older persons and their representatives relative to the foregoing with due consideration to the applicable tax consequences of an action, or the need for more sophisticated tax expertise."

Attorneys who focus on this specialty area of the law should recognize issues that arise during counseling and representation of older persons, or their representatives, with respect to abuse, neglect, or exploitation of the older person, insurance, housing, long term care, employment, and retirement.

The rules in North Carolina also recognize that an attorney focused on elder law should also be familiar with "professional and non-legal resources and services publicly and privately available to meet the needs of the older persons, and be capable of recognizing the professional conduct and ethical issues that arise during representation."

An attorney that applies for certification as a specialist in Elder Law in North Carolina must meet certain minimum standards. The attorney must show substantial involvement in the field of elder law through a showing of certain time spent providing substantive legal work in the specialty area.

A portion of the substantial involvement requirement can be met through a practice equivalent such as service as a law professor concentrating in the teaching of elder law.

Additionally, substantial involvement requires a showing of experience through the attorney's participation in a certain number and types of tasks such as:

• providing 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;
• drafting 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;
• preparing 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
• providing representation to a party in contested litigation or administrative matters concerning an elder law issue.

The board certification program in North Carolina for Elder Law requires a showing that the attorney complied certain matters within different categories including:

• 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.

• 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.

• 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.

• 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.

• public Benefits Advice including planning for and assisting in obtaining Medicaid, supplemental security income, and veterans benefits.

• Special Needs Counseling, including the planning, drafting, and administration of special/supplemental needs trusts, housing, employment, education, and related issues.

• 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.

• resident Rights Advocacy including advising patients and residents of hospitals, nursing facilities, continuing care retirement communities, assisted living facilities, adult 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.

• 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.

• employment and Retirement Advice including pensions, retiree health benefits, unemployment benefits, and other benefits.

• counseling with regard to age and/or disability discrimination in employment and housing.

• 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.

In addition to a showing of substantial involvement, the attorney must complete certain continuing legal education (CLE) credits in elder law topics and related subjects including:

• estate planning and administration;
• trust law;
• health and long-term care planning;
• public benefits;
• veterans' benefits;
• surrogate decision-making;
• older persons' legal capacity;
• social security disability;
• Medicaid/Medicare claims;
• special needs planning;
• estate taxation; or
• estate administration.

A North Carolina attorney who applies for specialty board certification in elder law must also submit to peer review by different attorneys and judges who are familiar with the attorney's practice. The attorney must also pass a written examination testing the attorney's knowledgeable in elder law.

The specialty certification period is five years. During those five years, the attorney must submit to continued certification within certain time limits.

Although no written examination is required for continued certification, the attorney must submit to peer review, complete certain CLE credits and show continued substantial involvement of elder law.