The Need Factor
Elder law attorney Franchelle C. Millender on getting benefits to people who have fallen out of the social safety net
Published in 2014 South Carolina Super Lawyers magazine
on April 23, 2014
Updated on April 24, 2014
Q: Your name, Franchelle, is very unusual. Where did it come from?
A: If my parents were going to have a boy, they were going to name him Frank. So I think it’s from my mother’s imagination.
Q: How did you decide to focus on elder law?
A: I got into it originally [in] about 1991. I was doing real estate and some probate and estate planning and looking for a little more. I read something about the National Academy of Elder Law Attorneys, which at that point was about three years old. … They were getting together in Orlando. I went to that conference and realized, “This is what I want to be doing.”
I love working with the World War II generation and have always enjoyed them as my clients even as a real estate and estate planning attorney. They seek advice when they need it, they listen to you and they don’t second guess you and argue with you about what they read on the Internet. Elder law lends itself more to a small firm. It’s not typically a high-dollar practice. But it’s a very satisfying practice.
Q: It would seem like the kind of practice where clients would feel more comfortable with a small firm.
A: Many of my clients like a more personal approach—somebody who is going to have the time to listen to them. And while we have a nice office, we don’t have an extraordinarily fancy office. Part of that is because it is less comfortable for the demographic that we serve. We’re not representing millionaires.
Q: Talk about the evolution of your practice.
A: Elder law started off serving the needs of the elder population. Part of that is access to government benefits, so you’ve got Medicare and Medicaid and Social Security and SSI. And because we had to develop a proficiency in those areas, what happened along the way is special needs trust and working with people with disabilities became part of the practice, because that work required kind of the same skill set—[knowledge about] Medicaid benefits, particularly.
In ‘93 there was federal legislation that dealt with Medicaid and authorized these special needs trusts for people who had disabilities and who need access to government benefits, but maybe received an inheritance or a personal injury settlement, something along those lines. They were then able to place that money in trust to be used for their benefit during their lifetime, but still qualify for needs-based benefits. So that practice area became part of my law practice. And for as long as I’ve been doing this, as long as special needs have been part of it, there’s been a debate whether elder law should be renamed.
Q: What do you think?
A: Well, it’s taken 25 years to get people aware that there’s such a thing as elder law, so it’s hard to think about changing the name at this point. But it is a little misleading in that it does encompass the special needs community as well as the elder community. It’s about how to get through life as well as death; [about] the planning that is necessary to help someone deal with the issues of aging or disability and get the services they need and make sure that they’re the person who is making their own decisions, when they are able to make the decisions; and that they have the documents in place [designating] a surrogate decision-maker if they’re unable to make those decisions at some point.
It’s an ongoing debate, like I say. … It is certainly broader than working with just seniors. And “elder” is one of the less irritating terms. I mean my mother didn’t want to be called elder or senior or old or anything else. I think what happens is that none of us is old until there is some illness, and then all of a sudden we’re old. And then we don’t mind being elder.
Q: Tell me about a couple of cases that stand out for you.
A: I had a woman whose husband was in a nursing home with severe late-stage Alzheimer’s. We’d done the long-term care planning; we had him on Medicaid. We had everything in place there. And six months or so later, she called me to tell me he was in the hospital and not doing well: that he had pneumonia and they were getting ready to put him on antibiotics. I said to her, ”His health care power says he doesn’t want extraordinary measures. You don’t have to put him on antibiotics if you don’t think that is the appropriate thing.”
No one had ever said that to her. Nobody in the medical community had said, ”This is a choice.” They were just going to put him on antibiotics and be done with it, and make him better so he could go back to the nursing home and be miserable. I didn’t know what she was going to do. She called me back a couple of weeks later and told me he had died. She thanked me profusely for mentioning that to her.
In another case I had one client who came to me for estate planning. He had a daughter who was severely disabled whom he was caring for. And he was absolutely driven to make sure that he had everything in place to take care of her after his death when he was no longer able to provide care. He spent 10 years going back and forth, making plans, fine-tuning plans, bringing in people to be involved in his daughter’s life, so if something was to happen to him, everything would be as good as it could possibly be.
Yet as it turned out, she died before he did, so none of that ever came to play. He was able to care for her until she was gone. Then I think he figured his job was done, and it was probably a little less than a year later that he died. He absolutely wore himself out.
Q: Is there a practice area that specifically serves disabled people?
A: There is not one that is specifically identified right now. But I think there is an evolving special needs practice. … It’s an uncomfortable break right now because some people are doing special education, some are doing special needs, and they don’t necessarily know what the other people are doing and there’s not a whole lot of overlap. So that’s an evolutionary process I think.
Most of the younger clients that I deal with are on some sort of benefits—typically Medicaid, maybe SSI depending on whether they’re adults or not—and they have severe disabilities. They need to be on Medicaid primarily to get the care that they need. And they maybe have received a small inheritance from an uncle or an aunt or a parent who died … and didn’t provide some sort of protected trust for them.
They come into money, and it might be money that’s going to completely throw them off from their benefits, which they rely on for, say, adult day care, or for a workshop program. Or maybe they live in a group home. It totally upsets the apple cart if they lose their benefits, so we’re working with them or with their guardian if they’re not competent … to put those funds under protected trust.
A “special needs trust” is something Congress authorized in ‘93 as a way of preserving benefits when this kind of situation happens. The law has the special needs trust created by [a] parent, grandparent, legal guardian or court. That omitted the competent adult disabled beneficiary, so they could not set their own trust up. So we frequently went with an adult who’s disabled who needs a trust, [and] they may not have a living grandparent or a parent. Usually the reason we’re doing the trust is because a parent died and they’ve inherited some money. And then we have to go through a fairly convoluted court process to get the trust created because the trust doesn’t allow an individual to create the trust himself or herself. There’s a bill pending now to make it possible for a disabled adult who is competent to create their own special needs trust. … Maybe they’re quadriplegic, but they’re still competent.
Q: So with special needs clients you are working with people who might not have a support system or might not know where to find a safety net?
A: Many people who are in this situation, where they’re not able to work and they’re sick, they are so overwhelmed by the process. Maybe you get them to apply, and then if they get a negative response they just say, “Oh well” and they let it drop—where they really need to be pursuing that to the next level in order to get the benefits.
Q: Where do you find rewards in your day-to-day work?
A: Probably the most common statement I get when people walk out the door is: “I feel so much better.” Maybe not because I’ve solved their problems, but because they understand a little bit more about how everything works.
This is one of those areas where people share a lot of information. They get information from the people they go to church with, or they get it from their neighbors, and they get information from the lady who was visiting her husband in the next bed of a nursing home. Some of that information is good information; some of that information is completely wrong. And they get so worried. And frequently people will come in for a consultation and we’ll be able to say, “You’re OK, everything’s all right, you don’t need to do a thing,” and then they feel so relieved. Other times you say, “You just need to make these little changes, and then everything will be OK.” Then sometimes you have to say, “You’ve got a real mess and we need to start working on it.”
This interview has been condensed.