Understanding the Concept of Elder Law
Elder law covers a wide variety of issues for senior Americans. While an elder law practice may devote much of its work to Medicaid issues (the program that pays for long-term care) or VA issues (for veterans seeking to qualify for benefits), elder law encompasses any legal issue that impacts a senior citizen. For example, an elder law attorney will frequently do estate planning for a senior citizen, such as drafting a Will, Trust, Power of Attorney, or health care proxy. A senior with diminished capacity may need to consider guardianship or conservatorship options . Planning for assets and income for potential nursing home costs are also within the purview of elder law. Elder abuse (physical, financial, and mental) can also be addressed through elder law. Elder law is a specialized practice area because it combines traditional areas of the law—wills, trusts, medical, real estate, etc.—with the unique circumstances that face those ages 60 and older. An elder law attorney knows how to navigate these complex issues to develop a plan that will work for you and your family.
Indications for Seeking an Elder Law Attorney
There are a number of signs that may indicate a need for enlisting the services of an elder law attorney as some of these issues cannot comfortably be dealt with without the help of a legal professional. If a senior citizen or elderly person is not able to handle or manage their financial affairs then an elder law attorney is necessary to set up a power of attorney carefully prepared in accordance with the law to give someone else the right to make financial decisions on behalf of the elderly person. An elder law attorney is necessary if the senior citizen or elderly person has assets that exceed $100,000. When assets exceed $100,000, then a Medicaid trust is an option to find out whether the senior citizen or elderly person qualifies for Medicaid assistance in the future for home care, assisted living, and nursing home care. In addition, an elder law attorney is necessary when the senior citizen has given or transferred away assets and gifts worth more than $14,000 per year to another person because the senior citizen will be penalized by Medicaid when applying for Medicaid assistance as described above. When the senior citizen or elderly person resides in a nursing home or will soon need to enter a nursing home and there is an urgent need for Medicaid coverage for the nursing home stay, an elder law attorney is needed because Medicaid planning will be required to protect the elder person’s assets and real estate and still qualify him or her for Medicaid assistance. An elder law attorney is also necessary when the senior citizen or elderly person has a spouse who is a ward of the state and the concern that a divorce may lead to the loss of substantial assets. An elder law attorney can be necessary for the senior citizen or elderly person when their estate requires administration by probate courts. In those cases, the estate containing the assets of the deceased, the assets are subject to divided equally among the heirs and beneficiaries named by the testator or the decedent.
Future Proofing: Legal Considerations for Aging
Life is unpredictable, but there are a few things we can count on as we age: our health will decline and our ability to care for ourselves will reduce. How do we protect our future autonomy and quality of life using legal tools when we can no longer handle our own affairs? Your legal plan must start with your own self-assessment. Think about how you want to receive care as you age. You may want to stay at home as long as possible, or you may be in a position where you need additional assistance at some point or even require skilled nursing care. You are the best expert on you; therefore, it is crucial to think through your options. Make a list of your assets and your caregiving resources. You need to do some soul searching. Who will care for you if you can no longer care for yourself? Will someone step up to be your personal representative and advocate when you can no longer make your own decisions? This is a personal and legal decision that only you can make. With your asset and caregiving lists in hand, you can start to think about who would be suited to be your agent or serve in a fiduciary role for you. As you work through the process of planning for your future, it is very important to have the proper legal documents in place, but not at the expense of "freezing" your assets in order to qualify for Medicaid. You must balance your legal needs with your financial situation. Elder law attorneys can help you do this. The first legal document you should have is a living will (also called an advance healthcare directive). It is your opportunity to decide in advance how you wish to receive care and to name the person who will make medical decisions on your behalf when you can no longer do so. Generally, you have sole control over your healthcare decisions for as long as you are capable of making those decisions. A power of attorney will allow you to appoint someone other than the courts to manage your financial affairs when you can no longer do so for yourself. Without a power of attorney, a court may have to name someone to handle your financial affairs when you become incapacitated. It can be a complicated and long process. If you own real estate and have minor children, it is also a good time to consider a trust. A trust will allow easy distribution of property to your children, provide a place for them to inherit property when they are of age, and help avoid probate. If you have a blended family, a trust can provide for a second spouse’s needs while ensuring your children from your first marriage receive their share of your estate at your death. An elder law attorney can assist you with thinking through your options and preparing your estate plan and advance healthcare documents. You then can have peace of mind knowing that your affairs are in order. By planning ahead, you will be able to enjoy your life to the fullest for as long as possible.
Preparing for Medicaid Qualification and Long-term Care
An elder law attorney is especially helpful in the early planning stages for Medicaid benefits seeking because of the complexity of the rules and their application. A good elder law attorney will perform an overall Financial Asset Assessment to determine if the senior is approaching the level of need or the threshold for benefits. With this information the client can make critical decisions regarding their future care needs, whether through an insurer, out-of-pocket savings, or through Medicaid. The Elder Law attorney will look at the need for a long-term care policy as a way to cover the cost of care. If Dementia or Alzheimers disease are known , then the policy may cover an extended period of time, but as a rule most policies cover only a couple of years. Once the senior reaches the threshold for long-term care, what is referred to as the "spend-down", assets may have to be spent down to support the long-term care. Many times, by "spending down" assets and paying 5 or more years of care can deplete a majority of one’s assets. In the long run, the sooner you contact an elder law attorney the more options that will remain open to you.
Recognizing and Coping with Elder Exploitation and Abuse
When it comes to elder law, a large proportion of the cases that come in will have a focus on elder abuse and exploitation. These cases run the field of possibilities, from neglect to financial abuse to self-neglect. There are many reasons why elder abuse should not be tolerated, and the legal system is one available means to put an end to the problem. It is first worth noting that elder abuse does not have to be intentional, per se, to be unlawful. There is no elder abuse statute that specifically focuses on the intentions of the abuser. It is enough for an elderly person to be harmed physically or financially. The harm can also come from somebody who knowingly allows another person under their care to be harmed, as well. Legal remedies are available to help protect your loved one from elder abuse. For example, a power of attorney in Tennessee can give another person the ability to make health care decisions if the elder individual is declared disabled. This can protect them from abuse or neglect, even from someone empowered by the elder. Where there is evidence of financial abuse, family members can petition for conservatorships, which empowers an individual, such as an elder law lawyer, to investigate, report and eliminate financial abuses and scams against an elder person. Beyond client-based protections, elder law attorneys also can advocate for improved legal protections at the state level. This can include support for the Tennessee Elder Justice and Financial Exploitation Protection Task Force, which reports directly to the governor.
Choosing the Best Elder Law Attorney
When the time comes to select an elder law attorney, it is important to consider a number of factors. First, you should ensure the attorney has hands-on experience practicing elder law in your state. Ask if the attorney is a member of the National Academy of Elder Law Attorneys or the Florida Bar Elder Law Section (if you live in Florida). You should also consider any other certifications the attorney may hold.
Next, check the attorney’s credentials. Many lawyers offer free consultations, and you can use this opportunity to ask questions about their education, background, and experience . Ask about the attorney’s areas of practice as well as their experience with Medicaid planning, long-term care planning, asset protection, and special needs planning.
You can also ask for client testimonials and recommendations that prove the attorney has solid communication and organizational skills. If possible, you should contact other clients of the attorney to find out their overall satisfaction with the attorney’s services.
Finally, during your initial consultation, you should try to analyze the attorney’s demeanor and communication style, and whether it is a good fit for you. You should feel comfortable bringing up uncomfortable topics, and confident that the attorney can handle them appropriately and professionally.