What Is Elder Law – and Who Needs an Elder Law Attorney

When I tell young people that my practice includes elder law, they invariably say “What is Elder Law?”   Among seniors, on the other hand, I find that they believe they need an elder law attorney for every legal problem. The confusion is understandable – after all, elder law was generally unknown as a practice area ten years ago.

The first thing you should know about Elder law is that it is an incredibly broad area of law.  It can include any legal issue facing older adults and their families. It includes things like estate planning, probate, guardianship, real estate, nursing home neglect and a dozen other areas of law. In fact, Elder law is such a broad topic that no one lawyer is likely to have expertise in all of the topics. The goal of most elder law attorneys is to know several topics very well and to work with other attorneys who know the others. Small firms often have several attorneys that each handle different categories.

In addition, it is important for elder law attorneys to have some knowledge of the so called “elder network.” For example, a good elder law attorney should be able to guide you to public and private agencies that may be able to assist a client.

In selecting an elder law attorney, it is important to discuss who will be working on your legal matter, and their qualifications in that area of law. It is also important to consider cost. Simply because you are elderly, does not mean that you need an elder law attorney to handle a simple real estate closing. If an Elder law attorney has the experience in real estate law and a competitive cost – that’s great.  If not, a real estate attorney may be a better choice. When it comes to things like Medicaid planning, Elder law attorneys may be a little more expensive, but their knowledge is likely to be worth the cost.

Here are some common things that elder law attorneys handle and a brief description of the area of law:

Estate Planning

This involves the preparation of documents necessary to pass your estate to your heirs.   Typically it involves the preparation of a will or trust agreement.   Common goals of an estate plan are to avoid estate tax and probate and to ensure that assets go to the right people.

Probate

Probate is the court system’s method for processing the estate of a person who has died.  Probate involves gathering all of the assets of the estate, paying all of the debts and distributing the balance to the heirs. It is a useful process, but it can be expensive and time consuming.  As a result, a common goal of estate planning is to avoid probate altogether, which can often be accomplished through a living trust.

Medicaid Planning

Nursing home care is expensive and it is not covered by Medicare. If you run out of money, it can sometimes be paid for by Medicaid. In order to qualify, however, you must be almost completely out of money and you cannot give away your money just to qualify.  The situation can be more complicated if one partner in a marriage is in good health and the other needs nursing home care. The medicaid rules for how much money you can protect and the circumstances under which you can do that, are complex. Elder law attorneys are often able to help families to plan how to get the best possible care for seniors.

Advance Directives

Advance directives are documents that state what you would like done if you become unable to make decisions during your lifetime. The most common advance directives are known as Durable Powers of Attorney and they allow an individual to name an agent who can make health or financial decisions for them if they became unable to do so.

Guardianship

When a person becomes unable to make decisions, the courts will look to their advance directives to see who should make decisions for them.  If the person has not prepared an advance directive, the court must appoint somebody to do it and they are called a guardian. The probate courts appoint guardians who monitor the care of disabled people. The best way to avoid guardianship is to prepare advance directives. Unfortunately, many people never get around to doing this, and guardianship becomes a necessity. Elder law attorneys can assist families and older adults who find themselves in this situation.

Nursing Home Neglect

Providing care for the elderly is a huge responsibility, and many nursing homes take it seriously.  However, when a nursing home does not properly care for a resident medical errors, bed sores, fractured bones, overwhelming infections and death can be the result. Nursing home neglect cases are handled by litigation attorneys, but they are different than routine personal injury cases. In order to effectively handle these cases, the lawyers need to be familiar with common illnesses and ailments of the elderly as well as the many regulations that apply to nursing homes.

Housing Transitions

There are a variety of living arrangements available for the elderly today. They include independent living, senior communities, assisted living, skilled care and a variety of other permutations. What they all have in common is that they involve a transition from a house or apartment. The transition involves many personal, medical, and financial intricacies. Under ideal circumstances, this transition may occur when everybody is healthy and sound. Often, though, the decisions happen in a rush and after dementia or other issues have crept into the picture. A good elder law attorney can successfully guide you through this delicate process.

The one essential skill that elder law attorneys must possess is an ability to listen to their clients. The issues that elder lawyers address are very personal and their ability to cater to the needs of older adults makes them a more suitable choice. Another type of lawyer may be able to solve these legal matters, but the process would be completely different. Elder lawyers not only know how to take care of the legal matters presented above, they know how to take care of older adults.

Thanks to Alixandra Burns for her help editing this article.

10 thoughts on “What Is Elder Law – and Who Needs an Elder Law Attorney”

  1. Eric’s overview of elder law was helpful but omitted one area of rapid growth: mediation. When disagreement arises as to asset distribution, care planning and living arrangements, will contests and a range of issues, a neutral is needed to help the parties reach a voluntary, non-coerced, out-of-court agreement. Mediation is the conflict-reducing tool that can help save time, money and often keep emotions from exploding and damaging family relationships.

    The elder lawyer may not be the most appropriate person to step in to try to calm the intra-family storm because she/he is already an advocate for one of the disputants- or the elder person at the heart of the problem,

    The mediator can bring a specially-trained skill set to elder care issues. Mediation is faster, less costly and most often helps the parties reach an agreement on their own, without a judge or jury making an unwanted, forced solution and with the added benefit of restoring peace if not harmony. The disputants are encouraged to bring their attorneys into the process. Everyone’s interests can and should be heard. Legal or estate planning and tax professionals may bring their perspectives to the mediation process. Mediation is entirely private and anything said or discussed or revealed in the mediation is, by law, confidential and cannot be used in court. The confidentiality factor is often-cited as a reason for apologies and then, agreements.

    Thanks for letting me comment. I welcome your feedback and further thoughts.

    Michael Froman
    michael@fastandfairmediation.com
    847 677 1555

    A trained elder mediator can help accomplish all these worthy and valuable objectives.

  2. Michael,

    Good point – I think mediation is a great tool and I encourage it often. I don’t necessarily agree that there is not a role for an advocate in the mediation process – I think it can be a big plus. But, yes – it can be a big help.

    Eric

  3. Eric,
    My comment stated that lawyers are encouraged to participate in the mediation process advocating and protecting as they should. I’m only saying that an advocate cannot be a mediator. A lawyer can encourage parties to reach agreement and settle disputes. A lawyer can be the mediator. Just not a lawyer for any disputant.

    I’d be pleased to mediate or assist in any manner.
    -Michael Froman

  4. Hi Eric,

    I always learn something new when I read one of your articles. There is no doubt that many elderly folks do need an advocate to look after their interests! This must be a very satisfying part of your practice in helping others. Keep up the great work!

  5. This was very informative, and something most people in my adult community need to know. Many are offten confused about it and don’t know how to seek the right person to talk with about their issues. This causes added stress.

    Thank you. I will pass it on.

  6. Thanks for the info, Eric. One cannot stress enough that LISTENING is key to any communication, especially when working with families or the elderly.

    You have to work with their agenda, not yours.

    Rich

  7. what happens when the elder person gets buyers remorse after 5 years? Yes that is what has happened to me. I wish i had never gotten involved with my parents. Now there is lawyers involved and im burning my money on legal fees. Any advise?

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