Retaining An Elder Abuse Attorney – Issues to Consider
The elder abuse lawyer’s primary goal for their client is to obtain the best and most complete financial recovery possible. This article focuses on explaining the role of the elder abuse lawyer, the challenges these kinds of cases present, and the factors you may wish to consider before selecting your elder abuse lawyer.
Elder Abuse lawyers represent older adults who have suffered physical, financial, and emotional injuries resulting from neglect or intentional acts or omissions from individuals, healthcare organizations, and adult assisted living facilities.
The legal designation of the parties and their legal representatives in an elder abuse case
Should an elder abuse matter proceed to litigation, the elderly victim is referred to as the plaintiff. The lawyer representing the victim is called the plaintiff’s counsel.
The parties allegedly responsible for the plaintiff’s injuries are the defendant(s).
The lawyers representing the defendant(s) are called defense counsel.
The Elder Abuse Client
Often, a family member or a close friend of the older adult initially contacts an attorney about their suspicions of elder abuse. The difficulty presented is that in many elder abuse cases, the victim usually suffers from some degree of dementia, cognitive dysfunction, or mental incapacity that limits their ability to reach out to a lawyer or protective services to report the abuse and request help.
Mental incapacity becomes especially problematic when elders cannot manage their financial affairs—making them easy targets of fraud and financial abuse.
Unfortunately, financial elder abuse usually happens before a court can appoint a conservator to protect the elder’s economic interests.
Most states have two types of conservatorships: The first type gives the Conservatorship power over the person, including the senior’s health, welfare, and safety.
The second type of Conservatorship power is over the elder’s financial estate, which includes the management of the person’s financial assets and property.
The initial elder abuse attorney consultation
The mental incapacity of the elder can become problematic for the elder abuse attorney.
Frequently the client in the initial elder abuse consultation will not be present.
Often, a representative of the client and family members will attend. Sometimes the family member or close friend will also be the legal agent of the elder authorized under a power of attorney to investigate the matter. Other times, it is a court-appointed conservator that will attend the consultation.
For most plaintiff lawyers, the first consultation with the potential client is critically important in deciding whether the lawyer accepts or rejects the case.
Yet, in elder abuse cases, where the elder cannot attend due to mental capacity, the attorney must rely on those interested persons in attendance to describe the circumstances surrounding the alleged abuse.
Under these circumstances, the attorney must rely on those attending the consultation. That would include their version of the events and provide the identities of witnesses the firm can contact and interview.
In either case, before the attorney can formally accept the case, the attorney will meet with the elder, form a preliminary impression of the client, and gather as many facts as possible.
Once the attorney has met with the client, the attorney will likely have enough preliminary information to set up a second consultation with the others and explain to those attending what the lawyer believes to be the relative strengths, weaknesses, and potential value of the case.
Attorney Fees – Contingency Fee Agreement
Almost all elder abuse cases are taken on a contingency fee basis. This means the legal fee is based on a percentage of the client’s total recovery, whether by settlement or award.
The custom and practice among elder abuse attorneys is usually 33% of the recovery before the trial or arbitration commences and 40% after that. Under the law, the parties can still freely negotiate the fee percentage based on the facts of the case.
All costs are advanced by the attorney
The lawyer will advance all out-of-pocket costs such as filing fees, investigator fees, depositions costs, necessary travel and lodging, copy services, expert witness fees, exhibit services, and more.
A litigated case can incur costs in the low range of $5,000 to the high of $100,000 or more – especially if the case results in a multi-week trial.
While the lawyer advances all litigation costs, contractually, the client must reimburse the lawyer for all advanced costs when the matter is resolved. Irrespective of whether the case was won, lost, or settled.
Selecting An Elder Abuse Lawyer
Selecting a plaintiff’s lawyer in an elder abuse case should be a serious and engaged process and should not be rushed into by the family. The decision to retain a lawyer is based on various factors.
Below are some suggested questions you should consider asking:
- How long have you been litigating elder abuse cases?
- Does your firm practice in other areas of law? If so, what are those practice areas?
- What percentage of your total number of cases is elder abuse matters?
- How many elder abuse cases have you tried to verdict in the past three years?
- How does your fee structure typically work?
- Will you be the attorney representing us, or will the case be assigned to another lawyer? If so, can we meet with this lawyer before we agree to sign the contingency agreement?
- Can you tell me something about your professional work history?
Pointers to consider:
- Refrain from retaining a firm that deals in a high volume of cases. It’s more important that the lawyer has significant trial experience.
- Some high-volume firms are so-called settlement mills. Think twice before retaining such a firm.
- How the lawyer presents themselves at the initial consultation is an essential factor. Trust your intuition.
- Does the lawyer appear kind and empathetic while possessing a sense of confidence and strength? If so, that can be a very positive sign.
- Remember that in elder abuse cases, the actual client is often a loved one, such as a mother or father. So their fate will rest in this lawyer’s hands.
- You must feel the lawyer has been truthful with you at the end of your consultation.
- Finally, do an exhaustive Google search on the lawyer and check with the state bar to ensure the lawyer is in good standing.
Contact an Elder Abuse Lawyer
Should you require further information or have additional questions about your specific case, consider consulting with an Elder Abuse Attorney now.
