What is Elder Law?
There are many areas of law an attorney can focus on — litigation, bankruptcy law, criminal law, real estate law, environmental law, health care law — the list seems endless. Some areas of law are probably familiar, such as family law, but some areas remain a mystery for both the layperson and attorneys alike.
Elder law is one such area. It is lesser known; you might never hear of an elder law attorney until you need one yourself. It is difficult to formulate a concrete definition of elder law, but many attorneys agree that elder law can best be defined by the demographics an elder law attorney serves — the elderly and the disabled. Any and every issue that these two demographics could conceivably face falls under the umbrella of elder law.
What exactly does an Elder Law Attorney do?
Some common practice areas under the umbrella of “elder law” include:
Veterans Pension planning
Special needs planning
Guardianship and Conservatorship
Nursing home negligence
How Can an Elder Law Attorney Help You?
Long-term care planning
The Administration for Community Living states that someone over the age of 65 has an almost 70% chance of needing long-term care at some point. For example, someone might need care because of a decline in physical or cognitive abilities. Who will provide that care? What does this care look like?
Would they prefer to stay in their home or move into an assisted living facility? If a nursing home is absolutely necessary, do they have a preference for a particular one? Planning for what type of care an individual would prefer is the beginning step.
The next step is to plan for who will pay for the care. You can undertake planning so that your client can qualify for Medicaid to pay for long-term care. This way, you can best preserve a client's assets for their loved ones or for things Medicaid doesn't pay for. Medicaid has a 5-year look-back period for certain long-term care benefits. This means that if a client wants to protect all of their assets, they must plan at least five years before Medicaid benefits are needed. If they wait and don't plan until they need care, only part of their assets can usually be preserved.
The final step would be to actually submit the Medicaid application when care is needed. It can be a tedious process, but an elder law attorney can walk their client through the process and file any appeals, if needed. After they are approved for Medicaid benefits, they can begin receiving the care they need.
Since a client will be using an elder law attorney to plan for their assets during their lifetime, it would be expected that the same attorney would also then help plan for what happens to their assets after they die. An elder law attorney can help guide you through wealth preservation issues, taxation issues, family discord issues, and more. For example, if you are concerned about protecting your child's inheritance from a creditor or a divorce, you can leave their share to them in trust.
Another part of planning for death is what happens to your remains. Does the client wish to be buried or cremated? Do they have a plot or funeral home picked out? Do they want to have a celebration of life ceremony? This information will be documented in their will or possibly in a separate Disposition of Remains document.
Avoidance of guardianship or conservatorship
A guardianship and conservatorship involve a court process whereas a judge will appoint someone to care for another individual. In a guardianship case, the court is appointing a guardian over another person. This means that the guardian will be in charge of making their doctor's appointments, administering their medication to them, deciding where they live, etc. A conservatorship is where the judge appoints someone to be in charge of their finances.
Both court proceedings can be expensive, time-consuming, and stressful for families. In the end, the court may appoint someone to care for an individual that they didn't want caring for them. Therefore, certain documentation must be in place to avoid a court process altogether and to ensure that the person caring for them is who they wanted.
An elder law attorney can put these documents in place. A Health Care Power of Attorney will be drafted so that your client can name someone to take care of their health care matters in the event they are unable to do so themselves. A Financial Power of Attorney will be put in place where the client will name someone to be in charge of their finances if they can't handle them themselves.