Giving vintage advice

We are living longer but what legal expertise is available when we reach our dotage? Grania Langdon-Down says more solicitors are needed to underpin a busy yet rewarding area of work

For the first time there are now more people aged older than 60 than those younger than 16, while the number aged 85 and older has increased from 200,000 to 1.1 million in just 50 years, according to the latest census figures.

In the US, 'elder law' is considered very much a practice area, but how well does the legal profession serve older people in the UK?

It is certainly an issue at the forefront of employment lawyers' minds after a recent ruling in Rutherford and Bentley v Town Circle Ltd (trading as Harvest) in liquidation that the 65-year upper age limit for bringing employment claims indirectly discriminated against men, as more men work beyond that age than women (see [2002] Gazette, 3 October, 4).

And one of the more obvious sources of work - wills and probate - is under close scrutiny with the government's current consultation In the Public Interest seeking views on whether to open the market in this area (see [2002] Gazette, 17 October, 3).

It has suggested activating the dormant authorised probate practitioner scheme from the Courts and Legal Services Act 1990, which would allow non-lawyers to handle this work, and banks, building societies and others to offer it as a service.

In its draft response to the consultation, the Law Society has preached caution over opening up probate work, saying that the need for professional advice in will-making 'cannot be overstated'.

It says there should be a review of the impact on the general availability of legal services to the public of opening up probate before any action is taken.

Liz Holdsworth, a partner at Shrewsbury firm Wace Morgan and a member of Solicitors for the Elderly (SFE), is in no doubt that legal services for older clients should be a practice area in the same way that family and child practices have developed.

She says: 'There is a huge need out there and a dearth of good solicitors to meet it.

We are very slow as a profession to realise this and it is really sad because people are not always getting the right advice.

'Looking at it commercially, specialising in this field brings in lots of clients - you don't need to advertise.

If you are known to be good, you get droves of people coming to you.

I am swamped with work and desperately want someone to come and help me.'

But she says that when the firm advertised for a lawyer to specialise in dealing with older clients, on issues such as nursing care, mental capacity, as well as probate, wills and trusts, 'all we were sent by the recruitment agency were a couple of CVs with no relevant experience'.

Some practitioners argue that providing legal services to the elderly cuts across so many boundaries, it requires a generalist, jack-of-all-trades lawyer rather than a specialist.

Ms Holdsworth disagrees: 'If an older client comes to me with a litigation or employment problem, I will send them to the relevant person within the firm.

But a lot of the issues I deal with come up day in, day out.'

For example, she says, a lady recently contacted her in distress because her husband was showing signs of early Alzheimer's.

'So an enduring power of attorney needs to be registered, there are questions about funding nursing care, about her will if she dies first - a whole raft of interrelated issues.

'One major problem at the moment is the huge backlog of thousands of unanswered letters at the Public Guardianship Office (PGO), so applications to the Court of Protection on behalf of someone who has lost his or her mental capacity can take months.

The staff are doing their best but there is gross underfunding - it is a national scandal.' Ms Holdsworth is not alone among solicitors in bemoaning the current situation at the PGO.

Earlier this year, Lord Chancellor's Department minister Rosie Winterton told Parliament that relocation of the PGO and Court of Protection have been a contributing factor to delays, which the PGO was working hard to address.

A new filing system had also taken time to bed down; a pilot of an electronic file scanning system using bar codes has started, which she said should help matters, ahead of development of a new electronic case management system.

However, Ms Holdsworth adds, these issues emphasise the enormous amount that is specific to people who are older and vulnerable and the need to raise expertise among solicitors.

Anne Edis, founder member and chairwoman of SFE, agrees: 'This is a very complex area of law.

I have worked in both public and private sectors, and practitioners have to be aware not just of the law but of policy - the sheer volume of material is unbelievable.

Solicitors also have to deal with clients with substantial assets, who have valuable properties, lump sums from pension funds, and children who want their inheritance now.

'What I am hearing in my work as a trainer is a growing awareness of the inadequacy of knowledge of many practitioners - we are back in the bad old days of dabblers in wills and unless you get it right you can be in a very difficult position professionally.'

She says the American National Academy of Elder Law Attorneys inspired the establishment of SFE, which was set up four years ago.

It now has 450 members and 13 regional groups.

Practitioners can only join SFE if they have spent much of their time working for elderly clients and meet its criteria for membership.

It costs 50 to join for the first year, followed by an annual subscription of 85.

Caroline Bielanska, a freelance consultant and lecturer, is joint chairwoman-elect of SFE with Julia Abrey, a partner at City firm Withers.

Ms Bielanska says: 'Our numbers are growing and include solicitors from big City and provincial firms as well as small practices.

But, if you think how many private client practitioners there are who must be doing some aspect of Court of Protection, enduring powers of attorney and related work, we have only touched the tip of the iceberg of potential members.'

The SFE offers the chance to network with other practitioners and provides some training, which counts towards continuing professional development.

Ms Bielanska adds: 'People have to make a commitment if they are going to keep up to date.

The Lord Chancellor, for instance, is proposing that the Court of Protection will not just have jurisdiction over finances but also over medical and welfare issues, which will expand the role of the solicitor.'

She says that the SFE is trying to make practitioners aware that this is a growing area that is not going to disappear, and one which solicitors can make pay.

'It is sad but probate work is being eroded - the perception is "why pay good money to a solicitor when I can do it myself?".

If the Lord Chancellor's proposals to open the market up further to authorised probate practitioners, banks, buildings societies and supermarkets go ahead, it will be further eroded.

But if you can provide good pre-death services, the planning and creation of trusts, passing on of assets, Court of Protection work, then you will invariably get the probate afterwards.'

Sole practitioner Jennifer Margrave is 'absolutely convinced' there is a need for more solicitors specialising in legal services for the elderly.

She was a salaried partner before she decided to set up on her own.

'I had done probate, trusts and wills and so inevitably dealt with older people and found I liked working with them.

I started from home in 1995 and in 1998 moved into an office near Guildford, Surrey, and now have six people, including a full-time trainee, working for me.

Setting up from scratch meant I could choose an office on a bus route, with parking right outside and a slope for wheelchairs.

'If you think about the demographics, people are living longer, healthier lives and it is probably not until the last five to eight years that they need some sort of help.'

Carolyn Kirby, the Law Society's President and chairwoman of the Society's mental health, disabled and older people committee, agrees.

She says the Society wants to encourage solicitors to specialise in services for the elderly.

'Working for older people often requires a solicitor to have a particular set of skills and training as they may often be dealing with sensitive issues, such as assessing someone's capacity to make a will,' she says.

Among older clients, one of the next growth areas will be in employment and discrimination once the government finally decides on how to introduce the anti-age discrimination legislation required by the European Commission.

Michael Burd, joint head of employment at London-based Lewis Silkin, says the law at the moment is confusing, with the government currently appealing against the recent employment tribunal decision.

'There is nothing to build a specialism around at the moment,' he says.

'However, that is not in any way to belittle the difficulties involved, because age discrimination can actually be more problematical than race or sex discrimination.'

Many of those specialising in older client law feel too little is being done to encourage trainees to consider it as a career.

However, Professor Nigel Savage, head of the College of Law, is not convinced it is yet a specialist area in its own right.

'Legal services for the elderly is still a relatively niche area.

It is probably true to say that private client work generally has become marginalised in the training and education of young solicitors because of the demands of the big City firms, many of which have got rid of their private client departments - something they may come to regret in a recession.

'We still have a private client elective on the legal practice course which is popular, but I don't see the need for one on the elderly,' adds Mr Savage.

That may be the case, but when the current wave of students qualifies, and then reaches partnership, the age demographic will have continued, and there will be many more potential clients looking for solicitors who focus on their particular needs.

LINKS: www.SolicitorsfortheElderly.com; www.AgePositive.gov.uk

Grania Langdon-Down is a freelance journalist