Foundations of Elder Law
Elder law is a specialty area of the law that focuses specifically on issues that affect seniors. While an elder law attorney may be able to assist with a range of estate planning matters, these professionals tend to be particularly knowledgeable about Medicaid, guardianship and long-term care planning.
Confusingly, elder law has relatively little to do with elder abuse or neglect, which is often what people think of when they hear the term. However, elder abuse can be a concern for those who need the type of legal assistance provided by an elder law attorney.
Currently, there are more than 50 million Americans aged 65 and older, according to the U.S. Census Bureau, meaning this sector of society represents a significant portion of the country’s population . Not surprisingly, these individuals have unique legal needs, such as:
Medicaid Planning Most people would rather avoid going into a nursing home. Unfortunately, Medicare does not pay for stays in skilled nursing facilities, so if a loved one spends enough time there to "deplete" their assets, the whole financial burden falls on their family. This can be avoided with long-term care planning through an elder law attorney.
Guardianship Eldercare can also include establishing guardianship for someone who is no longer able to manage their health care or financial responsibilities, including the creation of a power of attorney to act on their behalf if necessary.
These three elements — Medicaid, guardianship and long-term care planning — are what distinguish elder law attorneys from more general estate planning professionals.
Measuring Legal Experience
Not all lawyers are created equal. You can have an attorney who has been practicing for twenty years but who only dabbles in estate planning or elder law – and then you can have an elder law attorney who has had little formal training, but who has specialized their entire practice in this area. To get a real sense of the age or experience of the attorney, ask them: These questions should give you a pretty solid idea about whether or not that attorney has their focus on elder law, or is more a general practitioner who dabbles. If the attorney has a significant number of years of experience and practice in elder law, then you may want to consider asking your next set of questions, which begin to delve deeper into their specific qualifications and their specialty.
Talking Cost and Profit
There are other considerations that are equally important to ask about and evaluate when meeting with or considering an elder law attorney. Is the initial consultation free? Will they send someone to your house if you are unable to visit their office for your consultation? How will the attorney bill for services provided?
Elder law attorneys generally charge either an hourly rate or a flat fee for their services. Elder law attorneys may or may not require an upfront retainer, especially if the fees are based on an hourly rate. However, many attorneys require advanced fees for probate work, collections, or litigation. Be sure to ask how an attorney bills for costs related to long-term planning and whether any costs will be incurred due to a decision to hire the attorney’s services.
Estate Planning Fundamentals
While many think of estate planning as something that focuses on tax mitigation for those with high value assets, it is important for all people to maintain basic estate planning documents. For elder law attorneys the essential estate planning documents we utilize in our practice include Wills, Revocable Living Trusts, Advanced Medical Directives and Durable Powers of Attorney.
Wills dictate how a person wants their property to be disposed of upon their death. Wills are commonly used when children are not yet adults. Anyone with any minor children should have a Will. There are choices and spending considerations involved with completing a Will. A beneficiary designation means that instead of distributing your property through a Will you can pay out the death benefits or property directly after your death.
A Revocable Living Trust allows property to pass to your beneficiaries without going thru the Probate process. A Trust needs a successor Trustee who would then distribute the estate after your death. A Power of Attorney (POA) grants your Authorized Agent to pay your bills and conduct other financial transactions for you. There are different types of POA. A Durable Power of Attorney remains valid even if you are incapacitated. A Springing Durable Power of Attorney "springs" into action on or after a particular event, such as a doctor declaring that you are incapacitated.
There are many different documents that go into estate planning, and those documents change in importance as we age. Meeting with your elder law attorney to discuss estate planning essentials is the best way to consider estate planning for you and your family.
Nursing Care and Medicaid Questions
The topic of Medicaid and long-term care planning is the most important part of elder law practice and should receive the most attention in your first meeting with a lawyer. To begin the discussion you might consider the following questions:
- What assets are considered while determining eligibility for Medicaid benefits?
- Are there strategies to protect my assets if I need to go into a nursing home?
- If I apply for Medicaid services at home , what will be considered available income?
- Will I still retain my income and assets while receiving in-home and nursing home care?
- Are there limits on investment in the Stock Market or investment real estate?
- How long can I keep my car before it is counted as an asset?
- If I need to go into a nursing home tomorrow can I keep all my assets and still apply for Medicaid benefits?
- If I transfer my house to my children, can I still live there?
- What is the difference between a POA designation to one of my relatives versus a Medicaid-designated POA or trustee?
- Will my spouse have to move from home if I need nursing home level of care?
Guardianship and Conservatorship
If you do not have legal documents in place that determine who can make legal and financial decisions for you when you can no longer manage your own affairs, then your family members may need to petition the court to have you "guarded" and/or "conservator." Most of the time, the person who is appointed will be a family member, but not always. This is a public process and the courts get involved. So you can imagine the legal fees involved and the possible stress it puts on the family.
Questions:
Does your office handle guardianships and conservatorships?
What is your experience with this type of work?
How do you approach this type of work?
Abuse and Protection of the Elderly
One of the typical signs of elder abuse is the reluctance of the victim to report it, usually for personal or emotional reasons. This is especially true in the case of financial exploitation, where a trusting relationship may be exploited by a family member or caregiver to pry money from an older person. Sadly, these crimes against our most vulnerable members of society happen more often than most people realize. In fact, a 2011 report from the National Center on Elder Abuse (NCEA) revealed that in the previous year, only about one in 23 cases of elder abuse or neglect came to the attention of authorities, meaning that hundreds of thousands of older Americans suffer in silence.
In the event of a report of elder abuse, a lawyer experienced in elder law will be able to help victims understand their legal protections and pursue justice. Some questions you can ask an elder law attorney about their strategies for preventing and responding to elder abuse include: The theme of elder abuse defense is working hard to prevent abuse and neglect of older adults before it happens. Elder abuse crime takes many forms including financial, physical, legal and sexual abuse, neglect, and abandonment.
The NCEA has a wealth of information on elder abuse crime (http://www.ncea.aoa.gov/) including state-specific resources for reporting elder abuse as well as for victim support.
Preparing for Future Legal Matters
As sections 6 and 7 of this article address, the client may face issues in the future related to medical or financial issues or have possible incapacity. For this reason, clients ask attorneys to help them plan for things that could happen in the future that might require the attorney’s assistance.
Living Wills
One such area involves providing direction for health care decision-making. Oftentimes clients ask that their attorneys assist them in preparing documents that direct family members and others how to handle the client’s health care decisions when the client can no longer make those for themselves. There are a multitude of ways to accomplish this-anywhere from simple papers that provide instructions about what to do when the client is near death to complex statutory documents like Proxy Directives and Durable Powers of Attorney. Whatever method they choose , most clients want their attorneys to explain to them (and their families) what types of things will be done and what types of things will not be done in keeping with their wishes.
Long-Term Care Planning
Another way to plan for the future involves long-term care issues. It has become common for clients to ask their attorneys about the consequences of needing long-term care (such as nursing home care) and whether there are any planning opportunities to lessen the cost of such care. For many clients, waiting until a crisis arises to investigate long-term care options is too late. Assisting clients with these questions is a very comprehensive part of elder law practice.