Do I Need an Elder Law Attorney?
You wouldn’t hire an accountant to fix your car, or a mechanic to prepare your tax returns. By the same token, a general practice attorney isn’t the best choice for legal matters involving the seniors in your life. The better choice is an elder law attorney, who specializes in legal issues that arise for seniors and their families.
What is elder law?
Elder law is more than a single legal discipline — it’s a category encompassing many fields of law that impact seniors, ranging from Social Security and Medicaid benefits to financial planning. Specific issues that fall under the umbrella of elder law include long-term care, government and retirement benefits, guardianship, estate planning, probate, health law, elder abuse, fraud recovery, and age discrimination.
Seniors today face complex issues that require specialized legal and financial representation. For example:
- Long-term care costs are on the rise. Genworth estimates the monthly cost of a private room in a nursing home will rise from $8,517 in 2019 to $11,446 in 2029.
- Seniors are increasingly targeted for financial exploitation, neglect, and other forms of abuse. The National Council on Aging estimates that one in 10 Americans over the age of 60 has experienced some form of elder abuse.
- MacroTrends reports that U.S. life expectancy in 2010 was 78.49. In 2020, it’s 78.93. As life expectancy lengthens, seniors experience increased worry that they’ll run out of money before they die.
- Age discrimination will impact many seniors who have to keep working longer because they can’t afford to retire. A 2018 AARP report finds that two of three workers aged 45 and older have experienced age discrimination on the job.
And, alongside these issues, our senior population is growing in size. A 2015 U.S. Census Bureau report shows that the over-65 population in the U.S. increased by 15% between 2000 and 2010. Census Bureau projections show an expected 38% increase by 2020 and another 30% increase by 2030.
The need for the specialized field of elder law has grown from these trends.
What is an elder law attorney?
An elder law attorney is an advocate for seniors and an elder law specialist. You might hire an elder law attorney to represent you as a senior, or to help you work through legal issues regarding your elderly loved ones. The most effective elderly law attorneys are skilled at dealing with complex and inter-related issues. A chronically ill senior’s estate plan, for example, has implications for Medicaid eligibility. The right attorney would understand those implications and recommend strategies to serve both needs simultaneously.
Here are eight types of issues that fall into the elder law attorney’s wheelhouse.
Elder law attorneys are also called elder care attorneys or elder care lawyers. The word “care” comes into play because elder law specialists often deal with financial issues relating to long-term, nursing home care. If your loved one needs long-term care, an elder law attorney can:
- Explain how insurance payers determine whether someone needs long-term care
- Discuss your options for long-term care, such as nursing homes, assisted-living facilities, adult care homes, and in-home care, and assist with placements
- Recommend and plan financial strategies to cover long-term care costs, such as a Medicaid spend-down
- Oversee Medicaid filing and planning
- Assist with nursing home payment
- Address nursing home quality issues
Government and retirement benefits
Medicaid is an area of focus for elder law attorneys, but they can also help seniors protect and maximize their Social Security and Medicare benefits. Social Security benefits are impacted by the senior’s claiming age, disability status, and working status. A senior who files for Social Security and then goes back to work, for example, may inadvertently lose benefits based on the income earned from that new job. An elder care attorney can counsel you on the best Social Security strategy given the circumstances.
That attorney can also assist with resolving Medicare issues, such as payment decisions.
Guardianship and conservatorship
Guardianship and conservatorship come up when an elderly loved loses the ability to care for himself or herself. Your loved one may have trouble paying bills on time or may need to be relocated for safety reasons. You can’t take control of the finances or force the individual to move without legal authority.
To get that legal authority, you have to petition the courts for guardianship or conservatorship. These are complex legal proceedings that require expert representation. The court must agree that giving you the authority to make decisions on that person’s behalf is the best option for that individual’s care — and that’s not a decision courts take lightly.
An elder care attorney will assess the strength of your case and, if you decide to proceed, represent you in court.
Estate planning is a broad topic in itself, encompassing various strategies to protect wealth before and after death. Elder care attorneys are usually adept at estate planning with an eye on achieving or preserving Medicaid eligibility. But they can also help with more traditional estate planning actions, like setting up wills and trusts, managing trusts, and implementing strategies to minimize estate taxes.
Probate is the legal process for settling someone’s estate. It involves validating the will, inventorying and appraising assets, and paying creditors. The executor of the estate usually manages probate, but an experienced attorney can help streamline this notoriously complex and time-consuming process.
Elder law attorneys can help with Medicare and Medicaid claims and issues related to senior patient rights. They’re also commonly called upon to execute medical powers of attorney.
Laws pertaining to healthcare powers of attorney are different from state to state. For example, California and New York require witnesses to validate the documentation if the senior is in a nursing home. An elder law attorney will know these requirements and ensure that the medical power of attorney is enforceable.
Elder abuse and fraud recovery
Elder abuse can be financial, physical, psychological, or sexual. Strangers can victimize seniors through telemarketing scams, mail fraud, phishing scams, lottery scams, and Social Security scams. These programs are often designed to target seniors specifically.
Family members, unfortunately, can also be the bad guys. They can abandon or neglect their senior loved ones. They can also abuse trust to get access to a senior’s finances. ABC News in Harrisburg, Pennsylvania recently reported an elder abuse case involving a 79-year-old woman. After she granted a power of attorney to a family member, that family member spent $170,000 of her money — leaving her without enough cash to pay for her own healthcare.
If you suspect a loved one is being abused in any way, an elder care attorney can help you identify the most effective legal strategy to end the abuse and recover any funds lost.
Despite legislation in place to protect seniors, age discrimination continues on in the workplace. In 2016, the Equal Employment Opportunity Commission fielded more than 20,000 age discrimination complaints involving seniors getting overlooked for new opportunities or being forced out of their existing roles.
These claims can be difficult to prove, however. An experienced elder law attorney can evaluate your claim, share a professional opinion on your options, and represent you should you decide to move forward.
How to find an elder law attorney
Before you begin searching for an elder law attorney, make a list of your most pressing concerns. Since elder law is such a broad topic, most attorneys will not have experience in the full range of issues. You can narrow your search faster if you first define the experience you need and the specific issues you’re facing. Doing so will also lead to more productive initial conversations with prospective attorneys.
To begin your search for a competent elder law attorney, first ask family and friends for recommendations. Then, search the National Academy of Elder Law Attorneys (NAELA) website and the National Elder Law Foundation (NELF) website.
NAELA was established in 1987 and provides ongoing educational opportunities for elder law attorneys and bar associations. Member lawyers are located in the U.S., Canada, Australia, and the U.K. NELF, a different professional organization, manages a certification for elder care attorneys called Certified Elder Law Attorney (CELA). CELAs are required to have at least three years’ experience specializing in elder law. They must also pass a rigorous exam and undergo a peer review. There are roughly 500 CELAs in the U.S., and they are considered the upper tier of elder law attorneys.
Make a short list of your options and then interview several candidates. Your best legal advocate will have the experience you need, but will also be calming, reassuring, and a good communicator.
When you need an elder law attorney
You would retain an elder law attorney when you need to protect the health and wellbeing of your elderly loved ones. That could involve planning financial strategies to pay for long-term care, fraud recovery if you suspect your loved one has been the victim of financial abuse, or a guardianship case if your loved one is no longer able to make rational decisions.
You might also engage an elder law attorney directly to recommend and implement your own estate-planning strategies. These can range from setting up a will to protecting your assets when your spouse applies for Medicaid.
If you have concerns about a senior loved one, or need legal representation for yourself as a senior, an elder law attorney can provide highly specialized advice and expertise — which is critical to a successful outcome. Let your accountant do the tax returns and your mechanic fix the car. But call on an elder law attorney for help with legal issues related to the seniors in your life.