Elder Law & Special Needs Section Blog | State Bar of Wisconsin

Who Can File and Maintain a Divorce When a Client is Incapacitated?

Margaret W. Hickey — 2026-03-10 00:00:00

While a client who has capacity can clearly file a divorce action, what happens when the client has capacity issues?

This is becoming more common as we see older adults divorcing, especially those in second marriages whose adult children do not get along. A case can be dismissed where the person filing does not have capacity to see.^[1] “It is an accepted principle of law that an action cannot be maintained by one who has no capacity to sue.”^[2]

The difficulty in a divorce is that the person filing the action must state under oath that the marriage is irretrievably broken.^[3] If the principal lacks capacity, then who may make that statement on their behalf?

Normally, an agent under a power of attorney can bring a lawsuit on the principal’s behalf. However, there are some powers that are so personal that they cannot be delegated – for example, the right to vote, the right to marry, and the right to divorce.^[4]

Heine v. Witt

There is very little case law on this issue, but in Heine v. Witt case, the wife was the petitioner in a divorce action.^[5]

Margaret W. Hickey, U.W. 1986, is an attorney with Becker, Hickey & Poster, S.C. in Milwaukee, where she practices family and elder law.

After the divorce, the guardian of the estate for Ms. Witt, a mentally incompetent person, moved to vacate the divorce judgment. The argument made was that the defendant husband knew that his wife was not competent when the divorce was granted and permitted the divorce to go forward.^[6] The court held that Ms. Witt was not sane at the time of the divorce and that her husband and his attorney colluded to commit a fraud on the court because he knew that when the divorce was entered.^[7]

Bringing the Action

If the agent under a power of attorney cannot file, then perhaps a guardian will need to be appointed. A court in guardianship can delegate the power to file a divorce.^[8] If the person lacks capacity to sue, the agent under the power of attorney cannot allege that the marriage is irretrievably broken. And if there is no guardian, then the action cannot proceed because there is no one with authority to bring it.

In some cases, the responding party will be able to bring the action and will want the divorce, but if the responding party does not want the divorce, then the incapacitated individual cannot bring the divorce action. Remember that the mere filing of a divorce or legal separation causes the financial power of attorney to be terminated under Wis. Stat. section 244.10(2)(c). It is an inherent conflict of interest for a spouse to be an agent for the other spouse in a divorce action.

As a Respondent

What if the person who lacks capacity is responding to the divorce?

That poses a different situation, because the person filing can allege that the marriage is irretrievably broken. The other party is simply responding to the action, and if there is an agent under a valid power of attorney, they will often have the capacity to respond to litigation. If the Power of Attorney is broad enough then the agent can negotiate for the incapacitated person to reach a settlement. Of course, they cannot testify for the person except to reply to questions about the final agreement and court approval of the same.

Conclusion

When considering whether a person or their agent can file a divorce action, or defend against such an action, the attorney must consider what powers can be delegated in a power of attorney and what powers are too personal to delegate.

This article was originally published on the State Bar of Wisconsin’s Elder Law and Special Needs Blog. Visit the State Bar sections or the Elder Law and Special Needs Section webpages to learn more about the benefits of section membership.

Endnotes

[1] Wis. Stat. § 802.06(2)(a). ↩

[2] Joint School District No. 1 of Wisconsin Rapids v. City of Wisconsin Rapids Education Association, 70 Wis. 2d 292, 302, 234 N.W.2d 289 (1975)(citing to 59 Am.Jur.2d, Parties, p. 386, sec. 31). ↩

[3] Wis. Stat. § 767.217(2)(c). ↩

[4] See, e.g., 18 Wis. Prac. Elder Law §3.5 (2024 ed.) and Workbook for Estate Planners, at §11.36 (agent cannot make a will, vote, take marriage vows, perform personal service contracts or take oaths, citing In re Guardianship and Protective Placement of Murial K, 2002 WI 27, ¶ 27 n.6, 251 Wis. 2d 10, 640 N.W.2d 773 citing Wis. Op. Att’y Gen. 156, 157 (1988). ↩

[5] Heine v. Witt, 251 Wis. 157, 28 N.W.2d 248 (1947). ↩

[6] Id. at 159. ↩

[7] Id. at 166-67, 168. ↩

[8] See Wis. Stat. § 54.20(3). ↩

Saying No to New Clients: How Elder Law Attorneys Manage Their Workloads

Benjamin S. Wright — 2025-11-21 00:00:00

This year has been a busy one for me, and I’m not alone. Every elder law and special needs attorney I know is busy. The demand for our services is always increasing, the supply of our time ever scarce. Admittedly, being too busy is a good problem to have – but a problem nonetheless.

A Packed Agenda is a Wellness Problem

When your calendar looks like the master caution panel on Apollo 13, it’s stressful. It takes time away from family, community, and personal interests. It also makes it seemingly impossible to complete the many projects that would benefit our section or the public, such as writing articles for our section’s Elder Law and Special Needs Journal of Wisconsin or this blog, or putting together training and resources to help more attorneys take up this practice area.

In my case, it has forced me to take a break from a project that is important, meaningful, and rewarding to me: publishing Medicaid fair hearing decisions.

I’ve always had busy seasons. But this year has been unrelenting. So, I decided to ask other elder law and special needs attorneys on the section’s elist what they do to manage their workloads. How do they say no to potential clients? How do they maintain some semblance of balance? I hoped to find new ideas and seasoned advice.

What Most Elder Law Attorneys Do

What I found, however, was nothing new or unexpected: most elder law attorneys’ workloads are limited only by the number of appointment slots on their calendars. They have a certain number of appointments on certain days of the week. Some appointment slots may be set aside for current clients or urgent matters. Many lawyers reserve Monday or Friday for non-client work or close early on Fridays. But apart from those restrictions (to which exceptions are often made), the only limit is how many months a new client is willing to wait for a consultation.

Benjamin S. Wright, U.W. 2014, practices elder law as a sole practitioner in New Richmond and publishes fair hearing decisions for Wisconsin elder law attorneys.

More than one lawyer, for example, told me they fill up months in advance with four meetings a day (sometimes five), three or four days a week. As long as the new client is willing to wait, on the calendar they go. Many also strictly limit court appointments or contested matters. “I still feel like I am drinking through a firehose, though,” wrote Elizabeth Ruthmansdorfer.

I expected this book-it-out approach to be the predominant method of managing workload, but I must admit I was hoping to find more variation. If your only limit is time, your time will always be taken to the limit.

I, for one, am neither able nor willing to have four or, egad, five meetings a day. I expect that makes me an odd duck among elder law attorneys. But what I want is a calendar with white space; an agenda with plenty of breathing room. Although that means the number of my clients will be limited, I know I’ll have the flexibility to meet their needs as well as my own.

Four Alternatives

The way I see it, there are four alternatives to the book-it-out approach to managing your workload:

You can hire staff and grow your firm until you can reasonably take on all the clients who want to hire you.
You can narrow your practice even further into some sub-niche of elder law.
You can raise your fees.
You can say no to clients who want to hire you.

To avoid digressing, suffice it to say that options 1-3 have their limits. Most attorneys, myself included, will do some hiring, some niching (most commonly declining contested matters and court appointments, as mentioned), and some fee-raising. But hiring is difficult, costly, and takes a lot of time before it pays off – time you already don’t have. Niching too far will leave your clients out in the cold, unless you have partners to cover the gaps. (For a while I attempted to do only crisis Medicaid planning, but those cases were too commonly entwined with estate planning and guardianship issues to maintain that boundary.)

Raising fees is OK to a point, but many of our clients are hesitant to sign up for another large bill, even if it’s justified and needed. I do not want my fees to be a barrier to someone who needs my help – more than they must be, anyway.

How to Say No

That leaves us, eventually, with saying no. And saying no is a tricky thing. I have learned, for example, that saying no must come at the point of first contact. Once the client has invested their time and probably their money in a consultation with you, it’s hard to tell them: You need my help but I will not give it to you. Good luck. It’s hard to say you can help them but they’ll have to wait three months, while money is being lost or rights violated all that time. It’s hard to refer them to another lawyer who is probably too busy also.

That’s why the no must come up front, at the point of first contact: the phone call, the email, or the website. The message is simply: My caseload is full. I am not taking new clients at this time. You can refer to other attorneys in your area or a resource like the National Academy of Elder Law Attorneys website, where clients can search for nearby elder law attorneys. You can keep a waitlist for non-urgent matters.

What I do is put that message at the top of my website and in my voicemail greeting. My assistant kindly refers callers to other firms in my area or to naela.org. Because I use Calendly to allow potential clients to schedule an initial 15-minute phone call from my website, I can also block off my availability so no new calls can be scheduled until I’m ready to take new clients.

When to Say No

The tricky part, and the one I’ve had the most trouble with, is deciding when to stop taking new clients.

It’s a moving target. If you stop taking new work too soon, revenue will suffer. If you wait too long, you’ll be overloaded for months before you start to see an effect. To get the timing right, you can take three approaches:

Keep track of the revenue you expect from your current cases and stop once you have enough for the next two or three months.
Have a work-in-progress limit – don’t take a new case until you’ve closed the file on an old one.
Take regular, planned sabbaticals.

I have taken the first approach for the past couple of years, though I am clearly still fine-tuning it. I think keeping track of anticipated revenue is probably essential to having the confidence to turn down new business. It is made much easier in my case by charging flat fees for nearly all the work I do. But the fact is that you can never anticipate the timing of work perfectly, or even with all that much accuracy. The case you expected to take a lot of work this month gets delayed, or the client you thought wouldn’t hire you does, or you get a referral or an interesting case you just can’t turn down.

As for the second approach, I have never figured out how to make it work for me. I’ve thought plenty about limiting myself to X number of Medicaid cases and Y number of estate planning matters, but inevitably there will be imbalanced months or delays where my cases are waiting on something or someone else. Also, this metric is not directly related to revenue – one estate planning case may bring in twice as much revenue or involve twice as much work as another.

So, more recently, I have been exploring the third approach of taking planned sabbaticals. This has the benefit of working more naturally – a period of intense work followed by a season of rest. It has a definite timing you can plan around.

Elizabeth Hoffman Stevens, for example, takes a sabbatical every summer to spend more time with her children:

“For about half the summer,” she wrote, “I schedule meetings with and do work for established clients but put off new clients. The rest of the summer I don’t take any meetings. I answer emails and return phone calls, but that generally means that I tell clients I can meet with them in the fall.”

I am taking the same approach this holiday season, specifically to catch up on publishing those fair hearing decisions and work on other professional projects.

My Current Approach

That’s about where I’m at now. I do not want to hire additional staff, raise my fees, or narrow my practice even further, so I have to know when to start sending new potential clients elsewhere. I do that first of all by tracking my anticipated revenue for the next few months, ensuring I have enough work to meet my needs; and second of all by taking planned sabbaticals, one for this holiday season and probably another next summer.

After talking to other elder law attorneys, this is the best approach I’ve found for me. Do you have a different system – perhaps a better one? Tell us about it in the comments section below.

Contested Guardianships, Advocacy, and a Podcast: A Lawyer's Unexpected Retirement Journey

Paul A. Sturgul — 2025-08-27 00:00:00

I retired from the full-time practice of law on July 1, 2019. I first wrote about what I have been doing since then in the December 2020 Elder Law and Special Needs Section Blog.

It is sometimes hard for me to believe that five years have passed since then. Here is a summary of some of my activities during this time.

I mentioned in my earlier article that I was still seeing a few clients, even though I had “officially” retired. I am still seeing clients, many of whom are longtime friends and neighbors. Some of them, including childhood friends, have delayed getting their estate planning done until now.

I see many of these clients out of a sense of professional obligation. There is a huge, growing dearth of lawyers in rural America.

Paul Sturgul, U.W. 1973, is of counsel with Sturgul & Long, S.C., in Hurley, and though retired since 2019, continues to practice elder law in Wisconsin and Michigan.

(This desert isn’t limited to attorneys. Rural America no longer attracts physicians, dentists, teachers, accountants, and other professionals.)

I regard my work as service more than anything. I want to meet the legal needs of my friends and neighbors.

I have recently been called upon to help individuals in contested guardianships. During my years focusing on elder law, I rarely went to court. My personality was unsuited to adversarial law. I did not feel that I was cut out for the tumult of the courtroom. I was fortunate that the kind of elder law that I practiced – crisis planning Medicaid, trusts and estates, including guardianship avoidance planning, involved very few court appearances. Before focusing on elder law, I had a general practice of law, including serving three terms as my county’s (then) part-time district attorney. I learned from that experience to avoid going to court.

Little did I realize that I would find myself doing litigation in retirement!

Guardianships Gone Awry

Initially, all this came about by being asked to represent a longtime client who was placed under a temporary guardianship, despite having planned to avoid court involvement in his affairs. This experience opened my eyes to the ease with which courts impose guardianships, without sufficient legal basis. In this, and two other cases I have been involved in, the individual did not need a guardian.

In the first case, the individual, aged 92, was confused because of bad doctoring. Like many elderly – and not so elderly – Americans, my client was hearing impaired. He was taking seven medications, including a statin. His examining physician, a psychiatrist, appointed for the permanent guardianship hearing, informed the court and me that “no one over the age of 90 should be prescribed a statin.” I succeeded in getting the guardianship proceedings dismissed, but only after the client had spent eight days in a hospital, on an emergency detention and temporary guardianship, and over two weeks in a nursing home 161 miles from his home!

In the second case, which is still pending, a great nephew of a childless 94-year-old widower, also hearing impaired, is under a guardianship and protective placement which prohibits him from having any contact with his fiancé of nine years. His guardian, a great nephew, has alleged that the girlfriend is a “gold digger” and is only “after his money.” I have met with the ward on four occasions. Each meeting lasted over an hour. I took with me, for guidance, the ABA and American Psychological Association handbook, Assessment of Older Adults with Diminished Capacity. I recommend that all elder law attorneys use this reference in their practice. I also contacted the nursing home ombudsperson, who also met with the ward. Both the ombudsperson and I have concluded that he does not need a guardian.

The third case, from neighboring Gogebic County, Michigan, involves children “concerned” that their widowed father might dissipate his estate on a girlfriend. They are also fighting among themselves as to who should be their father’s fiduciaries. Two of his eight children obtained an emergency guardianship in Kentucky, where he was staying with them, to prevent him from returning to his home in Michigan. The individual was “allowed” to travel to his home over the Fourth of July, but his children lured him back to Kentucky under false pretenses. He awaits a hearing on a permanent guardianship there.

These cases illustrate how guardianships, which should be courts of last resort, have become the new divorce courts. Children and other would-be-heirs resort to guardianship as a way to decapitate the autonomy of the elder, often because they disagree with his or her life choices. Sadly, courts are often insensitive to the deprivation of rights which guardianships entail.

Once an individual has been placed under a guardianship, they become a “legal ghost.”

Journalist Rachel Aviv writes extensively about this development in her article, “How the Elderly Lose Their Rights,” in the October 2017 issue of The New Yorker.

Retired elder law attorney Paul Hurley continues his public advocacy.

Advocacy

In other endeavors in retirement, I continue my public advocacy for the elderly and their families.

I am a regular guest on WNMU PBS Marquette, Michigan. I have been the host of an all-elder-law “Ask the Lawyers” call-in program there since 2008, and I am a frequent guest on the station’s public affairs program. I discuss Medicare, Medicaid, health care reform, and other topics of concern to the elderly.

I attend town hall meetings throughout Northern Wisconsin, at which I advocate for the expansion of Medicaid in Wisconsin under the Affordable Care Act.

This past July, I completed 10 years on the board of directors of Wisconsin Public Radio.

I am also on the board of The Friends of the Plumer Mine Head Frame, a group dedicated to restoring the last remaining mine head frame in Wisconsin.

On Aug. 20, 2025, I spoke at the dedication of a monument at the Iron County Historical Museum. This event honored Hurley native, fellow attorney, and Hollywood spy master Leon Lewis (1888-1954), who co-founded the Anti-Defamation League.

Stay Tuned!

My biggest project is creating a podcast on elder law. I am a huge fan of podcasts, and I want to have one on elder law. There is an enormous demand for the kind of information that we elder law attorneys can provide to public. This need will only grow as the population ages. My podcast, “Staying Alive,” is an extension of the concept of service. I am collaborating with the local community college to produce it.

In all of this activity, I realize the importance of balance.

I enjoy bicycling, walking, my garden, classical music, podcasts, touring the Lake Superior Region, and visiting my all-time favorite city, London.

I am very grateful for the success I have had in my life. I remember the words my wise father wrote to me on the occasion of my high school valedictory:

Life itself is synonymous with success. As long as we have the will to struggle towards new goals, we are alive. This feature of life will eventually become the most important part of our struggle. Once we lose the will to seek more success, Nature takes over and we cease even to exist.
Only by keeping this standard in mind and only by finding that the result is commensurate with our capabilities, will we be able to truly say to ourselves that we are enjoying a measure of success.

Why Estate Plans Fail – and How Attorneys Can Prevent It

Jeffery J. Drach — 2025-08-11 00:00:00

It is the initial consultation: A daughter and a son come in. Dad passed away nine years ago, and their mom just recently passed.

They brought in the binder with the estate planning documents. There was a will for mom and dad. (Dad’s original will had not been filed at the courthouse). The revocable trust was 20 years old. They brought in the deed for the house, showing that mom and dad owned the real estate as joint tenants.

They also brought in what financial statements they could find. None of the current financial assets had been owned by the mom or dad when the trust was drafted. None of the assets were titled in the trust.

Jeffery J. Drach, U.W. 1975, is the sole practitioner at Drach Elder Law Center, LLC, in Wausau. For the past 50 years, his practice has focused on estate planning and asset preservation, trust administration, probate, and Medicaid planning.

And, as you might’ve suspected by now, there were no beneficiary designations, except for one small individual retirement account which named the oldest son as the beneficiary.

This is a familiar story in our firm. But this is not the way things should be.

Why Your Client’s Estate Plans May Fail

In our firm, we explain that if we are going to do the estate planning work for the client, then, after the estate planning documents are signed (for which there is a separate fee agreement), we will transition into the “Implementation and Funding Phase” (for which there is also a separate hourly fee agreement).

I explain to our clients that we can devise the quintessential estate plan, and we can draft state-of-the-art estate planning documents. However, unless the asset transfers and beneficiary designations are properly attended to, the plan will not work.

We Guide Our Client Through Implementation

I know from experience that giving the clients instructions and a set of forms to fill out to give to their financial institutions and financial advisor does not work. The clients don’t understand the forms, they get busy with other aspects of their lives, the bank or financial advisor fills out the form incorrectly, etc. After the client has passed away, it is too late.

Therefore, we use what we call our Asset Spreadsheet (saved on WisBar.org).

After the estate planning documents are signed, witnessed and notarized, we then meet with our clients to start the Implementation and Funding process, a process which starts with retitling real estate, if necessary, and then obtaining copies of financial statements which show us what type of asset it is (cash and cash equivalent, retirement asset, nonqualified asset, annuity, life insurance, etc.), what the value of the asset is, how the asset is owned (husband, wife, joint, marital property), and what the beneficiary designation, states, if anything.

At that first implementation and funding meeting, we review each asset and determine whether ownership change or retitling is appropriate. We also evaluate each asset that contains a beneficiary designation to determine any necessary changes.

Responsibilities for implementing any necessary changes are assigned and a return appointment is scheduled in order to set a deadline for obtaining appropriate forms, getting the forms filled out and signed, submitting the forms to the bank or financial institution, and receiving written confirmation from the bank or financial institution that the desired change has been accomplished.

We Are Relentless … and Picky

Often it takes more than one follow-up meeting to get confirmation from all of the financial institutions. Recently, it took many months and four sets of forms before a large national financial institution got the beneficiary changes correct on a $1.7 million IRA.

We are picky and relentless, because if the plan fails, it will come back on us, not on the bank, not on the financial advisor, not on the CPA – it will come back on the attorney.

Clients appreciate our thoroughness, and they come back to ask us about the titling of other assets, if they are making changes.

Saving Private Ryan's Nest Egg: The Veteran Improved Pension Program

Peter B. Harbach — 2025-05-09 00:00:00

There’s potential money out there for wartime veterans and the surviving spouses of wartime veterans through the Veterans Affairs Improved Pension.

I want to encourage attorneys who practice in elder law to consider becoming accredited with the Department of Veterans Affairs, because there are about 330,000 veterans and only 44 accredited attorneys in our state.

Program Basics

Although not strictly necessary, qualification for this program generally arises when a qualified applicant is facing unreimbursed medical expenses – most commonly, long-term care costs.

Peter Harbach, Marquette 2008, is a partner with Hooper Law Office in Appleton, where he focuses on elder law.

The majority of applications for Improved Pension require the following:

a 90-day deployment for other than training purposes with at least one day landing in a wartime period (qualification is two years for post-Vietnam wartime service);
applicant either residing in a skilled nursing facility or providing an accompanying medical affidavit substantiating the care needs;
Income for VA Purposes (IVAP) that is less than the Maximum Annual Pension Rate (MAPR) amount they could receive (calculated as gross household income minus unreimbursed medical expenses that exceed 5% of the MAPR); and
“covered assets” that don’t exceed $159,240 in 2025 (adjusted annually for inflation). Some notable exclusions from the definition of covered assets include vehicles for family transportation purposes, a home on no more than 2 acres, and reasonable personal effects. There’s also a three-year “look-back” on transferring assets.

There are three levels of pension qualification:

Base;
Base + Homebound
Base + Aid & Attendance

In general, these qualification levels are determined by the health of the veteran, if alive, or the health of the spouse if the veteran is deceased. None of the payments are taxable income and the Homebound or Aid & Attendance additions are not countable income for Medicaid.

If a veteran qualifies, they may receive up to $28,300 annually ($33,548 if they’re married) and a surviving spouse may receive up to $18,187 annually. This can put a substantial dent in long-term care costs, and, unlike Medicaid, there is no estate recovery program.

Common Uses for the VA Pension

Any time you have a client in a long-term care facility that doesn’t accept Medicaid, use of the VA will stretch out your clients’ funds. Depending on the cost of care, this may or may not be adequate to solve their financial problems indefinitely, but it will help.
Paying for at-home care. Waiver programs are often unable to adequately assist in paying for at-home care, but pension payments can help clients afford significantly more care.

For example, a single veteran with $2,000/month in income may need 20 hours per week of care. At $35/hour for a caregiver they can afford about 14 hours a week (assuming they don’t eat food, pay utilities, etc.). If the veteran receives Base + Aid & Attendance, the income becomes about $4,350/month, allowing them to easily afford 20 hours a week and reserves over $1,500/month of income to pay for necessities.
Paying family for at-home care. Many of our clients require help provided by loved ones. Caregiver agreements are crucial if money is going to change hands because of Medicaid rules. Sometimes there is no payment being made because either the child feels guilty charging their parent for the services, or the parent may simply be unable to afford to pay anything.

A caregiver agreement can qualify payments to a child as an unreimbursed medical expense if the applicant is rated Homebound or Aid & Attendance, and the supplemental income allows the child to be compensated for providing crucial services, potentially reducing their own economic strain.
Bridging the gap between the 3- and 5-year look-back periods. Sometimes clients give away money. Most commonly, in my experience, because they think the gift tax exclusion is somehow a “safe haven” for Medicaid divestment rules. Sometimes the client’s best option is to wait out the remainder of the Medicaid “look-back” period, and the VA can be used to reduce their cost of care shortfall between years 3 and 5.
When the client has modest assets (we’ll call that under $160k) or the home is the only asset. They qualify, get the VA money rolling in while you consider the Medicaid plan. It will supercharge their savings.
When the income gap between income and cost of care is not great. Not everyone is paying $12,000/month for care. If a person has $100,000 in total assets with an income of $3,000 and a cost of care of $6,000 from a community-based residential facility (CBRF), their savings will last about 33 months. With the VA pension paying about $2,350/month of that care cost, their savings would last almost 13 years (considerably longer if the savings are invested because the shortfall is reduced to $7,800/year).
Preplanning for long-term care. If a client is interested in planning for long-term care in advance of need, they don’t know if or when they will need care, which means you don’t know their assets, income, or care level. It's hard to decide which assistance program will be best for them in the future, right? You don’t need to choose now – you merely need to walk the line between both programs so the prospective Medicaid planning you might recommend doesn’t ruin VA eligibility.

Notable Differences from Medicaid Planning

The VA will count the entire property value of a life estate toward an applicant’s net worth (I’d argue that life estates are, and always were, a terrible idea anyway);
any trust from which payment can be made to the applicant (including a pooled special needs trust) will count toward their net worth;
any trust established and controlled by the applicant, regardless of the identity of the beneficiary, will be included in their net worth (read: grantor applicant should not be trustee, don’t use grantor trust powers in trusts holding disqualifying assets);
the maximum penalty period for the VA is 5 years;
purchase of a single premium immediate annuity (SPIA) will either be a divestment or countable asset depending on the terms;
no estate recovery;
IRAs are countable regardless of which spouse is the titled owner;
the benefit is a monthly cash payment to the applicant’s bank account – no facility or provider participation is required; and
you need to be accredited by the Department of Veterans Affairs to provide advice on this program.

When to Consider the Improved Pension Program

I’ve provided VA planning for 15 years, and the vast majority of my cases have been clients seeking counsel because they are concerned about “nursing home costs.” Very few of them have come to me aware of this program or because I’m accredited.

Ask all of your long-term care clients whether either spouse served in the military. It’s an easy question to put on your intake form. Then, any time you have a veteran or spouse with whom you’re considering Medicaid planning, you need to weigh whether the VA pension is an appropriate addition or even substitution for Medicaid.

For a number of your clients, Medicaid isn’t necessarily “best,” it’s what you may know best. There’s a common saying that “if the only tool you have is a hammer, everything looks like a nail.” For the sake of your clients, add another tool to your toolbox.

Helping the Underdog: Avery Mayne and her Elder Law Practice

Benjamin S. Wright — 2025-01-09 00:00:00

You might say Avery Mayne’s first elder law client was her law review, the Marquette Elder’s Advisor. As editor-in-chief her 3L year, she found herself fighting for its existence. “It was probably my first experience doing some real advocacy,” she told me.

Mayne has built on that experience to continue advocating for those whose welfare is threatened.

I’m interviewing elder law attorneys around the state to find out why and how they started practicing elder law, what their practices are like, and what they achieve for their clients. My first interview was with Blaine Patino. Like Blaine, Avery Mayne is outgoing (“I tend to be on the louder side,” as she put it) and loves spending every day helping the underdog.

Benjamin S. Wright, U.W. 2014, practices elder law as a sole practitioner in New Richmond and publishes fair hearing decisions for Wisconsin elder law attorneys.

Marquette Law School and the Marquette Elder’s Advisor

Mayne graduated from Marquette Law School in 2015. Being from Chicago, she liked Milwaukee and could see herself living there. It helped that the law school was beautiful, too.

Growing up, Mayne had always thought of being a lawyer. Her mother’s best friend was a lawyer. She knew she wanted to be in a helping career – “on the ground, helping individuals” as she puts it. She made the final decision to take the LSAT her junior year in college while studying abroad in Leon, France, inspired by an INTERPOL leader she admired.

Mayne enjoyed law school, though she wasn’t always interested in the required courses (she mentioned Constitutional Law and Civil Procedure, specifically). After toughing it out her 1L year, her second and third years were much better. She got to pick the courses that interested her. And in particular, she became editor, then editor-in-chief, of the social welfare law journal.

Named the Marquette Elder’s Advisor when Mayne joined, the journal was started by Allison Barnes, a longtime elder and disability professor at Marquette. It is now the Marquette Benefits and Social Welfare Law Review, with the broad subject of public interest law. It features articles about government, lobbying, employment law, health care law, HIPAA, and, of course, public benefits.

Mayne started as a regular staff editor during her 2L year and was then voted editor-in-chief for her 3L year. Two weeks before classes began, however, she learned that a new professor-advisor was going to push the law review in a very different direction. This threatened the existence of the journal – the professor had a poor relationship with the law school government, which was looking to shut down a journal and close a gap in the budget.

Mayne fought for the journal’s existence. She and the other editors had to distance themselves from the new professor-advisor and advocate for themselves. The issue was put to a vote before all the tenured professors. Her first experience with advocacy, “it was very dramatic to be trying to keep a journal alive,” says Mayne.

The journal garnered a lot of support from women professors; it tended to attract women students, according to Mayne. Seeing the professors argue over the journal was fascinating. Ultimately, Mayne and the other editors’ advocacy succeeded. The journal survived, widened its focus somewhat, and became what it is now.

After Law School

After graduating, Mayne immediately began practicing elder law at a boutique estate planning firm. She had been fortunate to make a connection during her first year of law school at networking events put on by the Association for Women Lawyers, and the timing worked out.

Mayne began clerking at the firm in the middle of her 3L year, and continued part time while studying for the Illinois bar exam during the summer. She has since maintained her Illinois admission since, and has had a number of cases involving guardianship transfers. Upon admission, she began practicing full time.

Her case load was at first equal parts family law, estate planning, and elder law. After three years, she shifted to practicing nearly all elder and special needs law. She hadn’t enjoyed traditional family law – the clients and issues didn’t resonate. And the firm had plenty of other attorneys doing full-time estate planning but not elder law, producing plenty of referrals for Mayne’s elder and special needs law focus.

“I don’t need the estate planning piece to keep myself busy,” says Mayne. “There are a lot of great estate planners who only want to do estate planning.” It would be a lot, she adds, to try to keep on top of all the elder law changes and estate planning changes.

Mayne’s Current Practice

Now at von Briesen & Roper, Mayne does no traditional estate planning – she does not draft typical wills or revocable trusts or administer estates. Instead, about half her practice is what she calls “litigation-lite” – guardianship, protective placement, and some elder abuse litigation. The other half is Medicaid and special needs planning.

Mayne is thankful for the referrals from attorneys who focus on estate planning only, and thinks it’s OK for them to focus on just that. The lawyers she works with know when to bring her in for elder law issues. They also know the value of adding provisions that allow Medicaid and special needs planning to powers of attorney, which Mayne appreciates. There is a limit to what a non-elder law attorney should attempt, though: “I think when estate planners start to add irrevocable trusts for [Medicaid-specific] asset protection, that’s when we start to see issues.”

A Typical Day

Mayne’s typical day sees her in the office 9-to-5-ish. Many days, she has a board or committee meeting before or after those hours. While in the office, the phone seems to be constantly ringing with clients who are getting notices and have questions or who have lots of family dynamics going on.

Mayne can usually limit client meetings to one or two each day. She keeps Fridays free of client meetings entirely. Between all the phone calls and meetings, she tries to get her “actual” work done. A lot of that ends up getting done after business hours or on weekends, though – especially document drafting.

Mayne’s clients are all dealing with some sort of family issue. Sometimes she helps a son or daughter acting under a power of attorney or a community spouse of someone who needs long-term care. A decent amount of the time, she works directly with the person who receives benefits. For example, she saw many people with disabilities – mentally competent – who realized they needed a lawyer as the pandemic public health emergency ended.

Personality

As for Mayne’s personality, she’s fairly outgoing. “I tend to be on the louder side,” she says. “We have to use our voices to deal with agencies who are not kind to our clients and are not easy to work with.” For example, Mayne can’t even recall the last time she called Milwaukee Enrollment Services and actually talked to a human being. She is also in court fairly often. So having a loud voice, being outgoing and vocal – it helps.

She also empathizes with clients, and sees the humor even in serious situations – essential qualities for any elder law attorney. “You have to be an empathetic person to work in this area,” she says. “You have to appreciate how overwhelmed or confused the client is and try to diffuse those feelings.”

Mayne clearly enjoys practicing elder law. She never really considered other practice areas or doubted that this is the right one for her. She noted that she feels strongly and personally about the issues her clients face.

Advice

To practice elder law, Mayne says you need to be organized. “I get the sense that all of us have a high volume of cases we’re working on,” she says. So you have to be organized, especially so you can be responsive to your clients.

If you are in a firm and have staff, you also have to be good at delegating and training. For the first five years of her practice, Mayne worked without a true paralegal. Then she had a “rockstar” paralegal for about three years who eventually moved on, and then she trained up a new one. Still, delegating is always a challenge, she admits: “I like things done the way I like them done.” But she tries to give anything that is not time-sensitive to an associate or paralegal first, to get them as much experience as possible. She recommends equipping them with examples and resources.

Mayne recommends elder law to anyone looking for an area of practice with a good balance between advocacy and transactional work, good work-life balance, and great clients. “This is the area of law to be in,” she says. “You can get all that and be happy with your career. It’s super rewarding to help the underdog – that’s really what we’re doing every day.”

It also helps that the elder law bar is friendly. “Not every bar has such a collegial community, where people are not competitive,” says Mayne. “It makes it really easy to come into this area.”

Shakespeare's Classic Line about Lawyers, the Gatekeepers to Democracy

Bruce A. Tammi — 2024-07-02 00:00:00

My mother gave me a plate for mounting on my office wall quoting the line from William Shakespeare’s Henry VI, Part 2. It has been on all my law office walls and now is in my office at home after I recently closed my law office.

The story began for me in the summer of 1976. I had just graduated from Marquette University Law School, after which I backpacked through Europe with a law school classmate for six weeks. And then I visited a girlfriend in Venezuela, whose father worked in the U.S. Embassy in Caracas, for a couple of weeks.

After returning from Venezuela, I put on a tie and sport coat, and started my career in law, working in my father’s law office. My mother gave me a plate for mounting on my office wall quoting the line from William Shakespeare’s Henry VI, Part 2, “The first thing we do, let’s kill all the lawyers.”

Although I was not the ideal child, I don’t think my mother ever wished me such a fate. My mother was an English teacher and theater advocate, and most likely understood the context of Shakespeare’s line. It’s not that lawyers should be killed as bad people, but to emphasize lawyers’ importance in government and the rule of law. Authoritarian rulers first take out people of importance and standing in the way of their rule.

The plate from my mother has been on all my law office walls and now is in my office at home after I recently closed my law office and stopped practicing law for a living. I always liked the plate because of its satirical humor, but over time have appreciated it more as a statement of how important lawyers are in maintaining our democracy and the rule of law.

As gatekeepers of that third branch of U.S. government – the judicial system – lawyers and the courts are still attacked and vilified by wrongdoers, especially those with power.

Over the years, I have witnessed the importance of lawyers in shaping laws that equally protect and benefit the people of this country, this state, and sometimes even in another country.

I have had the privilege of being a member and chair of the Elder Law and Special Needs (ELSN) Section board and its legislative committee, and have witnessed the impact we lawyers can have in preventing legislation harmful to people, and by enacting legislation beneficial to the people of this state.

We attempt to work with the legislative and executive branches to create laws benefiting the people, and fight back against proposed legislation that does not fairly treat people or their legal rights. We also work with administrative branches of government to assure a fair application of the law to all people.

Early in my career I presented a resolution of the Milwaukee Bar Association to the annual meeting of the American Bar Association calling for the end to apartheid in South Africa. The resolution was adopted, and ultimately, apartheid was ended.

As lawyers we have power to right wrongs, promote democracy, and assist with the fair application of laws for all people.

As a lawyer, I encourage your participation personally and through the ELSN section’s legislative efforts to ensure a continued U.S. democracy and a rule of law for all its people. Contact ELSN liaison Kara Olson at the State Bar of Wisconsin if you are interested in serving on the ELSN section’s legislative committee.

Getting back to Henry VI, Dick the Butcher utters the line during a rebellion led by Jack Cade. Cade, a pretender to the throne, hopes to destabilize the existing social order, and the line serves as a tongue-in-cheek recognition that lawyers, by upholding the law and administering justice, are impediments to anarchy. In the context of the play, the line highlights the subversive nature of Cade’s rebellion and the chaos that ensues when legal structures are undermined.

And oh, my mother gave the same plate to my father for hanging in his office.

Good job mom!

The Good, Bad, & Ugly of Wisconsin's New Remote Notarization and Witnessing Law

Heather B. Poster — 2024-06-14 00:00:00

Wisconsinites and their attorneys now have a new legal process for remote notarization and witnessing of estate planning documents. The new law, 2023 Wisconsin Act 130, took effect March 23, 2024.

While the new law provides greater flexibility for estate planning clients and their attorneys in the post-pandemic world, it causes additional dilemmas for attorneys, particularly those who represent the elderly and individuals with disabilities.

Attorneys should be cautious to incorporate remote notarization and witnessing of estate planning documents into their practices. They must ascertain in each situation whether the client’s circumstances and abilities are a good fit for remote notarization and witnessing.

Relevant Statutes

The Act:

amends Wis. Stat. section 153.30(8)(2)d;
repeals and recreates Wis. Stat. section 244.05; and
creates Wis. Stat. sections 140.147, 154.03(1)(e), 154.03(3), 154.30(8m), 155.10(3), and 853.03(2)(c).

An Overview of the Law

2023 Wisconsin Act 130 allows an individual (defined under the Act as a remotely located individual) to execute estate planning documents remotely via the use of two-way, real-time audiovideo communication if the individual, witnesses, and notaries public are all present in Wisconsin at the time of signing and appear remotely under the supervision of an attorney licensed in the State of Wisconsin.

The supervising attorney must be able to confirm all the following:

The remotely located individual is physically located in Wisconsin during two-way, audiovisual communication.
The witnesses and notaries public are physically located in Wisconsin during the two-way, audiovisual communication.
The identities of the remotely located individuals, the witnesses, and the notary public. If the lawyer does not have personal knowledge of the parties to the communication, they must verify their identities by means otherwise provided by law (such as the presentation of a valid Wisconsin driver’s license or identification).
The names of other persons physically present in the same location as the remotely located individual at the time of the remote signing and/or notarization. The Act mandates that the supervising attorney request the remotely located individual to perform a sweep of the room and location of the remote signing whenever possible, so the supervising attorney can confirm the presence of other persons.
The remotely located individual displays the estate planning documents to be signed, including the total number of pages of the documents and the page number on which the remotely located individual’s signature will be affixed. Remotely located individuals must also declare that they are aged 18 or older, that the document to be signed is the remotely located individual’s estate planning document, and that they are signing the document voluntarily.
The remotely located individual, or another individual age 18 or older at the direction of the remotely located individual, signs the estate planning document in a matter visible to the witnesses and/or notary public.
The audiovisual communication allows the remotely located individual to meaningfully participate in the signing; specifically, it provides communication to see, hear, and engage in an interactive way with others in real time by electronic means. The supervising attorney can make exceptions to this requirement for those individuals with sensory impairments who can participate with the use of other adaptive devices or learned skills that are an appropriate substitute audio or visual communication.
The remotely located individual executes the estate planning documents pursuant to the Act.
The witnesses and notary public sign and notarize the estate planning documents as provided under the Act; and within a reasonable time (undefined) after the signing and performance of the notarial act, the documents are personally delivered or transmitted by mail to the supervising attorney.
The supervising attorney completes and attaches to the estate planning document a sworn statement of compliance as provided by the Act, according to the specifications of the Act.

The law also provides that a witness for a declaration to health care professionals must be 18 years of age or older. Previously, Wis. Stat. section 154.02(1) did not exclude minors as witnesses.

What Qualifies as an Estate-planning Document?

The new Act defines estate-planning documents to mean:

a Will or Codicil;
a Declaration of Trust or other document creating a Trust;
an Amendment to a Declaration of Trust or another document creating a Trust;
a Certification of Trust;
a Power of Attorney for Finances and Property;
a Power of Attorney for Health Care;
a Marital Property Agreement or an Amendment to a Marital Property Agreement;
an Instrument evidencing a nonprobate transfer;
a Declaration to Health Care Professionals;
an Authorization for Final Disposition;
a HIPAA release;
an Instrument of Disclaimer; and
an Instrument exercising a Power of Appointment.

The Good: Comfort, Potential Cost Savings, and Efficiency

The new law promotes timely execution of estate planning documents at the venue of a client’s choosing. Clients, especially those who live in rural areas, will save time and money by being able to execute their documents in their home or at a nearby location.

Heather Poster, Marquette 2002, is an attorney and shareholder with Becker, Hickey & Poster, S.C., in Milwaukee, where she practices exclusively in elder and special needs law.

Clients with limited mobility or other health issues could also benefit. Most elderly clients with cognitive impairments comprehend best when in their home environments. Meetings at or close to the client’s home make it easier for the client to stay on track with their meals, medication, sleep, and therapy schedules.

Those with compromised immune systems are not risking illness by multiple contacts in office centers.

Finally, remote signings are ideal for clients with agoraphobia and sensory processing disorders who desire control of their environments and limited stimulation.

There are potential benefits for law firms too. Remote signings will maximize efficiency for lawyers and staff with less travel resulting in more time to devote to other client cases.

The Bad: Technology and Accommodation Struggles, Helpers with Conflicts of Interest, and Difficulty Controlling the Client’s Environment

The use of remote notarization and witnessing has disadvantages, too. Clients who struggle with technology or who do not have easy access to reliable internet will not be good candidates for remote signings. If the client’s proposed remote signing situation sounds too good to be true, it is prudent for the lawyer or the lawyer’s staff to ask questions of the client beforehand and consider a trial run.

And what about accommodation for sensory impairments? How can lawyers be sure that the client is meaningfully participating? At a minimum, the supervising attorneys should inquire about sensory impairments before the remote signing and notarization meeting and discuss accommodations with the client.

Recently, I had a client with hearing loss request a meeting via Zoom. The client stated that she was comfortable with using Zoom captioning features. However, when our meeting time came, the captioning was too slow for us to have an engaging and informative conversation.

Also, we all can attest to online disruptions, such as long pauses, freezing of the screen, and dropped communications, causing endless hassles, and rescheduling of meetings. So much for efficiency and ease, right?

While some clients can rely on technology aid from family members, friends, or caregivers, those “helpers” may have significant conflicts of interests. During in person meetings, the supervising attorney can remove those persons once the meeting begins.

Because the lawyer is less able to control the client’s physical environment in the remote location, it will be exceedingly difficult to determine who is in the room and whether the client is signing the prepared estate planning documents. An initial sweep of the room by the client’s computer or tablet may not effectively detect the presence of others in the room. Continual interruptions may happen, particularly if the person with a personal conflict or stake is relied upon to help with the client with access and accommodation. Cameras also do not easily show whether clients may be reading from their own notes or from a script prepared by a family member who is taking advantage of the client.

Attorneys should be leery of clients who wish to sign their estate planning documents in congregate living situations due to privacy issues. Facility staff should not be relied upon to assist clients with remote audiovisual communication.

The Ugly: Difficulty in Assessing Client Capacity and Possible Undue Influence, Forgery, and Premature Death

The role of witnesses to the signing of estate planning documents, particularly Last Wills and Testaments and Codicils, inevitability includes an assessment of the client’s capacity to sign the documents in question and that they are signing free of undue influence.

Will remote signings diminish the witnesses’ ability to fully observe the clients, their responses, mannerisms, and appearance?

If witnesses are called to testify in a probate contest, how can they determine with certainty whether a third party was not present during a remote signing meeting? A witness’s line of sight is only limited to what they can see from the camera – this means that it is quite possible that a third party could still exert influence over a client.

The limitations of camera views will also increase the likelihood of fraud and forgery. I have always struggled to read documents presented by clients and other attorneys on camera via Zoom. In a recent “test” meeting with my 19-year-old son, I could not easily identify the pile of documents in front of him. I also was not able to confirm that the document he was signing was the document he was supposed to sign.

Finally, what happens if the client dies after signing the estate planning documents, but before the supervising attorney, witnesses, and notary sign and complete the other requirements of the Act? Will this new law create more legal challenges?

Conclusion: Not Appropriate for All

Remote signing and notarization, while helpful in some situations, will not be appropriate for all clients.

The lawyers must weigh the pros and cons in each situation, considering the client’s capacity, accessibility to reliable communication devices and internet, needed sensory impairment accommodations, and the risk of influence from others with known and unknown conflicts of interests.

‘A Little Rebellious:’ Blaine Patino and his Elder Law Practice

Benjamin S. Wright — 2024-04-18 00:00:00

This article is the first in a new series: I'm interviewing elder law attorneys around the state to find out why and how they started practicing elder law, what their practices are like, and what they achieve for their clients.

My first interview is with Blaine Patino of Canellos & Patino in Wauwatosa. Blaine was recently a presenter at the Winter Workshop put on by the Wisconsin chapter of the National Academy of Elder Law Attorneys (NAELA).

I could tell he had something of an unusual style.

“I’m a little rebellious – I’m a punk who grew up,” Blaine told me. “I think elder law attorneys tend to be introverted and quiet. That’s not me.”

A Single Question – and a Changed Life

Blaine didn't start out aiming to do elder law. He did largely landlord/tenant work when he started practicing as a solo in 2014. His transition to elder law over the years has had a lot to do with serendipity and tough decisions.

There were omens, early in life, that Blaine would be a lawyer. A fortune cookie told him, “You are destined to be an attorney” (he always suspected his mother planted it). An amateur fortuneteller at a grocery store spontaneously foretold the same fate.

But Blaine didn’t decide to become a lawyer until a single question changed his path during his undergrad years. He attended UW-Whitewater, at first in the pre-accounting program. Then a "cute" classmate asked if he would take a class called “Law and Society” with her, and he fell in love – with Alexis de Tocqueville. After that, he switched to pre-law. He interned at the district attorney’s office. He got into a fight with his landlord, ended up in a lawsuit, and won. That’s what sparked his interest in landlord/tenant law.

Blaine attended the University of Wisconsin Law School in Madison. He applied on the deadline and got waitlisted, but a little persistence in talking to the admissions director got him in. “Honestly, I hated law school,” Blaine admits. But he got through it, taking a lot of Gretchen Viney courses especially.

Benjamin S. Wright, U.W. 2014, practices elder law as a sole practitioner in New Richmond and publishes fair hearing decisions for Wisconsin elder law attorneys.

The Early Years

Blaine graduated in 2014 into a tough job market. He got hired at a personal injury firm, but it went terribly. There was little work for him to do and little training. After three months, he was fired.

That same day, his mother convinced him to open his own firm. She immediately found him an office. The office was in the same building as Angela Canellos.

Because of his classes with Prof. Gretchen Viney, Blaine was certified for GAL appointments, and started taking those right away. He has always loved this work, although he can’t do it as much as he used to now.

He also became known for representing tenants. At the same time, he began to get some overflow elder law work from Angela, known for always having too much work. She didn’t exactly train him, but she was a resource and made other resources available to him as Blaine began to figure things out.

Over the years, Blaine has done more and more elder law and less in other practice areas, though not for lack of opportunity. At one point he had a clear path to do more consumer protection work at the federal level.

He had to decide which path to commit to. He chose elder law.

“Elder law is so much less stressful than litigation, especially when you have a young family,” Blaine told me. He still uses his litigation experience for contested guardianship and GAL cases. He also finds his landlord/tenant experience useful when reviewing facility contracts and discharges.

Partners and Practice

Currently, Blaine’s practice is a mix of estate planning (including 5-year planning for Medicaid), special needs planning, and guardianships. He takes about one GAL appointment a month. He and Angela are partners now, with support staff (Blaine noted how elder law became more enjoyable when he started handing off the drudge work). They do little marketing, due largely to Angela’s reputation.

Blaine’s day is usually a mix of meetings, phone calls, emails, and case work. He often has two rounds of returning phone calls and emails: first thing in the morning and last thing in the afternoon. Between those he often has two meetings. Of course, he finds time to work on planning and strategy when he can and delegates what he can to an assistant. He manages to keep a fairly strict 9-5 schedule.

The Essential Skill and the Caveat

Blaine enjoys his practice and its challenges. What he loves most is talking to people and hearing their stories. For him, having good interviewing skills has been essential. He also loves finding creative solutions to complex problems.

The biggest challenge, on the other hand, has been learning and knowing all the rules. A lot of it, he says, is just knowing where to look and taking the time to go and look. “You can’t know the law here like you can in other fields,” he told me, especially since it often changes. Though the minutiae of Medicaid and SSI can be complicated, messy, and frustrating at times, he enjoys solving the puzzle. “I don’t shy away from overly complex cases where there’s no obvious answer.”

For new or transitioning attorneys interested in elder law, Blaine admits it’s a hard field to break into. It’s highly technical. But if you can find yourself a mentor – which Blaine highly recommends – it will help immensely.

He also recommends joining the State Bar of Wisconsin Elder Law Section and the Wisconsin Chapter of NAELA, both congenial and helpful groups of dedicated elder law attorneys.

Need a mentor – or want to be one? Check out the State Bar’sReady. Set. Practice. lawyer-to-lawyer mentorship program. Have an elder law question for a colleague? Check out the Lawyer-to-Lawyer Directory on WisBar.org.

March Madness: How Basketball Can Help You Be a Better Attorney

Meghan McAllister Teigen — 2024-03-20 00:00:00

The immeasurable benefits of a healthy work-life balance are well known. Engaging with outside organizations, taking time for personal interests and hobbies, spending time with family and friends, exercising, gardening, caring for pets, traveling – all of these are ways in which we can help our bodies, minds, and souls stay fresh for our law practices and our clients. Additionally, we can learn a lot from our out-of-office activities that help us as attorneys.

In my working life, I am an elder law and special needs planning attorney. I love this field of law. I help families create estate plans that incorporate the long-term needs of an individual receiving public benefits, I work with individuals who receive benefits to assist them with maintaining eligibility, and I help establish surrogate decision-making arrangements for people in different phases of life. Every new client I work with presents a unique challenge, and I appreciate that I can help my clients achieve a positive outcome to whatever concerns brought them to my office.

In my personal life, I’m a basketball mom. To say my family is a little basketball-obsessed would be an understatement. My husband and I both played most of our lives, and many of our first “dates” while students in law school were at the gym shooting around.

Today we consider ourselves lucky to have two daughters who either have a practice or a game just about every day of the week. When I’m at home there is constant dribbling in my kitchen, and pickup games in our driveway whenever it isn’t iced over. If we aren’t either watching or coaching our girls, we are cheering on our favorite high school teams, the Badger men’s and women’s teams, the Bucks, and the New York Liberty, our favorite WNBA team.

Even if basketball is not a daily activity for you, I’m hoping you can take some time away from your busy legal career to appreciate the greatest time of year – March Madness. And while watching, consider the many lessons you can learn from basketball that are clearly transferred to the practice of elder and special needs law.

For example, here are my top four lessons I’ve learned from basketball that has helped me in my law career:

Practice is Critical to Success

No one can show up to a basketball game and expect to be successful without putting in hours of practice and preparation. Teams practice together to establish their offense and defense, and if an individual player wants to have success, they should be working on their own skills as often as they can. Kobe Bryant said it best: “Hard work outweighs talent – every time.”

Meghan M. Teigen, DePaul 2007, is a partner with Johnson Teigen, LLC, in Fitchburg, where she focuses on elder and special needs law and estate planning.

The same is true for attorneys. We of course have our professional obligations to attend continuing education seminars to maintain our licenses, but we really should view continuing education as critical to providing the best service to our clients regardless of our licensure requirements.

Working under the guidance of an experienced attorney, staying current on changes to the law, and learning about best practices from colleagues is so valuable. You cannot show up on Day One out of law school and expect to know how to provide comprehensive advice to your clients, let alone draft a special needs trust. It takes years of learning and practice.

We are fortunate in Wisconsin to have an active Elder Law and Special Needs Section of the State Bar that helps make staying up to speed simple through engagement with colleagues on our elist, attending outstanding continuing education seminars led by subject matter experts, and by challenging ourselves to study and give back by writing and volunteering our time through writing and presenting.

I encourage you to “get to practice” – sign up for upcoming CLE seminars from State Bar of Wisconsin PINNACLE®, including an Introduction to Elder Law, the Wispact Update, and the Legal Issues of the Aging (coming in fall 2024), just to name a few.

When Feeling Trapped, Don’t Forget the Power of the Pivot

Last year I coached my younger daughter’s fourth/fifth grade basketball team. It was a fantastic group of girls, most of whom just picked up a basketball for the first time. While learning to dribble and dribble under pressure, they often would panic and pick up the ball. That’s when the basketball move of a “pivot” becomes so important, allowing them enough body movement to, hopefully, pass the ball to their teammate. We worked on this move a lot in practice.

Life, like basketball, often requires a pivot. Sometimes a client’s seemingly “normal” life takes a major turn, requiring changes to their long-term plans. Perhaps one spouse recently received a diagnosis of Alzheimer’s disease. Now instead of meeting with you to go over their “basic” estate plan, they need to start thinking about the reality of long-term care and how that will affect their retirement savings and estate plan. That’s when an elder law attorney can provide great help, pivoting away from a “traditional” estate plan to a plan that contemplates more complex scenarios, including one spouse requiring care during both of their lives, developing a plan if the healthier spouse dies first, and ensuring advanced planning documents are in place for both spouses.

Helping clients understand they have options to pivot their plan to meet their new reality provides them with great peace of mind.

Remain Calm Under Pressure

Full-court pressure can rattle even the strongest ball-handler. With the ball in their hands, the player dribbling is fighting against the opposing team, against the constraints of the court, and against the clock. Panicking under that pressure often results in getting trapped and turning the ball over. It is critical in basketball not to panic.

Similarly, in elder and special needs law it is important to remain calm under pressure. Often our clients come to us in crisis mode. They may be up against strict time deadlines to establish or retain eligibility for their critical benefits for themselves or a loved one. Though our clients may be panicking, their attorney needs to calmly assess the big picture and map out a plan. By being prepared and knowing the rules of the complex benefit programs, as well as useful and relevant planning strategies, attorneys can help their clients understand their options and help facilitate their plan quickly.

Finally: If You Can Shoot, You Can Shoot

One of our favorite WNBA players is Sabrina Ionescu. I took my girls to a New York Liberty game last summer to see her and the Liberty play in person, and it was an amazing experience. Sabrina has always been a star in the women’s game, but recently broke out with more mainstream fame when she dominated the WNBA three-point shooting contest last summer, scoring 37 points – more than any man or woman in any three-point contest in the NBA or WNBA.

This feat prompted a friendly competition at the recent NBA All-Star game, pitting Sabrina against the NBA’s best shooter, Stephen Curry. The two went head-to-head, with Stephen coming out on top 29-26.

After the competition Sabrina had this to say about going up against the best men’s shooter around:

I think a night like tonight shows a lot of young girls and young boys that if you can shoot, you can shoot. It doesn’t matter if you’re a girl or boy, it just matters the heart you have and wanting to be the best that you can be.

This lesson translates to our professional lives as well. You may not have gone to the highest ranked law school or graduated top of your class. You may not be at a big law firm with unlimited support and resources, and you may not practice in a big city. These facts do not mean that you can’t become an excellent elder law and special needs planning attorney, and with that also become an important part of your community and our legal community as a whole.

The State Bar Elder Law and Special Needs Section benefits greatly from the individual efforts of attorneys working at legal services agencies, nonprofits, small firms, and solo practitioners, many of whom practice in more remote areas of the state. The demand is great across the state and a lot of our membership is aging closer to retirement each year. Our field needs more attorneys, so if you aren’t already a member, I hope you consider adding elder law and special needs planning to your practice. Take a shot, you won’t regret it!

So, this March when you fill out your brackets and cheer on your favorite teams remember you aren’t just watching basketball, you’re making yourself a better lawyer.