What is Elder Law?
Under the broad umbrella of elder law are the areas of estate planning, long term care planning and guardianship.
Estate Planning is the process used to plan for the management and handling of assets during your lifetime, as well as a means for ensuring transfer of wealth at death. It includes planning for your incapacity, disability, retirement and tax issues. It is every bit as important to put an estate plan in place when you are in your 50’s and 60’s as it is when you are in your 70’s and beyond.
Long term care planning is the means used to ensure strategies which will make it possible for you to remain in your home if you need at-home care, as long as possible, and if not, to be placed in a facility of your choosing, whether it be nursing home or assisted living . Long term care planning encompasses both legal and financial aspects.
Guardianship is a legal remedy which is available through the court if an individual loses his ability to make decisions or manage his finances. Once a guardian is appointed by the court, he or she will be in charge of managing the finances, and medical decisions for that person.
There is an old saying that "it takes a village" to raise a child. Similarly, many elder law attorneys will tell you that "it takes a team" to care for an elderly person and plan for their needs.
Does My Situation Warrant Seeing an Elder Law Attorney?
- Do you have aging parents who live far away? In this day and age, people are scattered all over the country or world. And, as our parents get older, an adult child may worry about their well being. Having a good elder law attorney get involved may mean that your parents can live out their wishes to be in their home, and know what their options are for backup when they need it.
- Do you have aging parents that live close by, but are resistant to help? Again, an elder law attorney can provide that intervention. Many of us live nearby our parents and yet do not want to discuss their ability to care for themselves, much less in planning for that possibility if it should arise. It has been said that using a neutral third party in these circumstances is the best approach, as the elder law attorney provides the neutral party, and family business concerns are out of the picture.
- Do you know what Medicaid really is? Many people think that their family member has to be "penniless" and lose everything in his or her possession in order to qualify. That’s not true. There are strategic ways to plan for Medicaid that will allow the family to keep ownership of their property and use income and assets to pass on to the next generation. A good elder law attorney will know how to do that.
- Do you know what Medicare really does? There is a common misconception out there that refers to Medicare as "the" long-term care program. It is not. In fact, Medicare is not a long-term care program at all. It was never designed to be so. It is doesn’t pay for assisted living or in-home care. A good elder law attorney will know how Medicare works, and equally important, what it doesn’t.
- Do you get frustrated dealing with the Social Security Administration? To put it simply, the administration is like a maze. It is easy to get lost and confused. A professional can save you time and money, by making sure your case is set up properly and moves forward properly. A good elder law attorney will know that the types of benefits one is eligible for varies depending upon where the applicant lives.
Pros of Hiring an Elder Law Attorney
Elder law attorneys are specialized in the intricacies of elder law. This body of laws is complex and ever-changing; they also make up a small portion of the general practice of law. An elder law attorney will have a deep understanding of how the law is applied to elder issues such as Medicaid compliance, Medicaid trusts, nursing home malpractice, estate planning, elder abuse and neglect, age discrimination, and many more.
With regard specifically to Medicaid planning, and securing Medicaid benefits, elder law attorneys are able to use their experience to help clients jump through many of the hoops needed to secure government assistance should they find themselves in a nursing or assisted living facility.
They can also back-up your financial decisions with a complete estate plan. Elder law practitioners can provide assistance with drafting wills, trusts, power of attorney documents, and helping establish a living will. They can also help guide you through the probate process that comes about after a loved one’s death.
How to Choose Your Elder Law Attorney
When the time comes to choose an elder law attorney, ask for referrals from trusted advisors such as your accountant or social worker, or search the Internet for qualified elder law attorneys in your area. Ultimately you should interview a few different attorneys and make your choice based on who you feel most comfortable with, considering experience, area of specialization, location and price . An elder law attorney can provide a great benefit in planning your future. They can advise you on proper long term care and Medicaid planning. A good elder law attorney can help you reach your goals of long term care security and peace of mind.
What to Expect at Your Elder Law Consultation
What to Expect: An Initial Consultation with an Elder Law Attorney
Although every family is different, families generally should expect an initial consultation to include some discussion of the legal concerns (also known as the "legal issues") facing the family. The questions being asked relate to how the laws impact the family’s particular situation. (This does not always happen in a consultation with a general family law attorney where the consultation center around the specific personal concerns of the person seeking assistance.) In the consultation, an elder law attorney would ask about the type of planning work the client wants the attorney to do. For crisis work – when the spouse needs immediate assistance with long-term care planning – this may include determining whether or not to preserve the family home, how to find appropriate long-term care facilities and how to get qualified for government assistance. When the consultation is for information or future planning guidance, the attorney would discuss the general strategy and steps involved and the various documents that are often prepared. This might include wills, trusts, powers of attorney, and advance health directives. An elder law attorney would inform the family about what an attorney can do and cannot do. For instance, elder law attorneys cannot provide financial advice, advise on investments, or manage assets without a power of attorney or conservatorship. Elder law attorneys generally do not offer investment advice or plan under nondurable powers of attorney because of liability concerns. The elder law attorney should indicate to the client what they will be doing for the client. For example, if drafting a will, the attorney would explain the process and outcomes expected from the work. Most people who seek services hire an attorney and expect the attorney to understand the details of their situation, determine the legal issues involved, and then work on the plan or documents needed. This varies from a general family law attorney where the retainer is placed as a deposit, the attorney handles all of the details, and a final bill is provided when the work is complete.
Options Other than Hiring an Elder Law Attorney
If hiring an elder law attorney is not an option for you, there are a few other resources you can try out:
Pro bono legal services
While elder law attorneys often don’t do pro bono work, there are usually special programs set up through local bar associations to allow you to work with pro bono attorneys to try to find a solution, if you’re willing to work with a supervised law student.
Federal government legal services clinics
The National Consumer Law Center maintains a list of these clinics on their website. The issues covered by these clinics (including some elder issues) vary by year and by state, but in recent years some clinics have offered free or reduced-fee wills and advanced directive services.
State government legal services clinics
Some state governments and nonprofits offer free legal advice clinics for their elder citizens. Though services available vary from place to place , you might be able to find services to help you with estate planning or asset protection.
Online legal document services
If you’re comfortable working with an online form document, there are a number of websites that provide free or low-cost legal documents that the website helps you fill out, then sends you the final version. FreeWill.com, LegalZoom.com, and NOLO.com all have basic wills, advanced directives, and living will documents at various prices that allow you to create your own documents.
However you proceed, do so with the knowledge that if you do not plan for possible estate tax and Medicaid liabilities, your family may suffer financial hardship in the future. So take action now, before it’s too late.