MINIMUM STANDARDS

(a) Minimum Period of Practice. The applicant must 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 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 with 5 years of law practice, of which at least 40 percent has been spent in active participation in elder law and at least 3 years of this practice immediately preceding application. Active participation in elder law is handling 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. The applicant must furnish information concerning the frequency of the applicant’s work and the nature of the issues involved. Time devoted to lecturing or authoring books or articles on elder law substitutes for the practice of law if the applicant was engaged in the practice of law during that time 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. The applicant must have provided legal services in at least 60 matters as prescribed below during the 3 years immediately preceding the application.

(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) The applicant will be considered to have provided legal services in this subdivision if the applicant provided written or oral advice 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, if 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 or 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 about age or disability discrimination in employment and housing; and

(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 must submit the names and addresses of 5 other lawyers who are familiar with the applicant’s practice, not including lawyers who currently practice in the applicant’s law firm, to complete peer review forms. The board of legal specialization and education and elder law certification committee may authorize references from nonlawyers.

(e) Education. The applicant must complete at least 60 hours of continuing legal education requirements in elder law during the 3-year period immediately preceding the application date as established by the board of legal specialization and education.

(f) Examination. 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.