Breaking Into Elder Law: Strategies For Success

Elder law is a legal specialty that focuses on issues affecting older adults. Attorneys in this field provide holistic legal advice to help older persons and disabled individuals protect their rights and values. Elder law covers a wide range of topics, including estate planning, long-term care options, financial management, and protection against elder abuse. With an aging population and increasingly complex medical and financial systems, the demand for elder law professionals is growing. These attorneys guide older adults and their families through important decisions and help them navigate the complexities of aging and long-term care.

Estate planning and administration

Estate planning involves preparing for what happens to a person's assets after they die. This process can be done at any age, but many people choose to make their estate plan as they get older. Estate planning can take many forms, the most common being a will. Trusts are also a common tool used by estate attorneys to avoid probate and enact their client's final wishes with fewer complications or delays.

Elder law attorneys can help older clients protect their assets and ensure their wishes are respected. They can also advise on tax questions and how to qualify for Medicaid, VA benefits, or other benefits without losing assets.

• Understand the family dynamics: Determine whether the client has children, and if so, whether they are married, and if it is a first or second marriage. Identify any potential conflicts or misunderstandings within the family.
• Review existing estate planning documents: Assess any prior estate planning documents, such as a will, trust, power of attorney, health care proxy, and living will, to determine their legal sufficiency and whether they reflect the client's current wishes.
• Review the client's assets: Obtain a complete list of the client's assets, including their value, type, and beneficiary designations. This information will help determine whether the estate will be subject to estate taxes and formulate a strategy to reduce or eliminate them.
• Develop the elder law estate plan: Decide, with input from the client, who should make medical decisions and handle legal and financial affairs in the event of the client's incapacity. Choose the type of trust or will to be used and appoint trustees or executors. Consider the feelings of the heirs to avoid hurt feelings or litigation after the client's death.
• Execute and maintain the plan: Review the documents with the client, providing explanations and answering questions. Advise the client on how to transfer titles of investments and bank accounts to the trust and change beneficiary designations. Finally, review the elder law estate plan regularly to account for changes in the client's life and updates to relevant laws.

Medicaid, disability and long-term care issues

Medicaid, disability, and long-term care issues are a major aspect of elder law. Elderly people and their families often worry about the future and how they will pay for long-term care. This is where elder law attorneys come in, helping their clients understand their options for financial planning and long-term care.

Medicaid is a crucial component of long-term care planning for the elderly, as it can provide coverage for nursing home care and other essential services. However, applying for Medicaid can be a complex and technical process, and it's important to understand the eligibility criteria, which vary by state. For example, to qualify for Medicaid long-term care, recipients typically must have limited incomes and no more than $2,000 in assets (in most states). Elder law attorneys can assist clients in navigating the Medicaid application process, protecting their assets, and ensuring they receive the benefits they need.

Additionally, elder law attorneys can help with disability planning and ensuring their clients' rights are protected. This includes assisting with Social Security disability benefit applications and appeals, as well as advocating for their clients' interests and ensuring they receive the medical care and support they need.

Long-term care planning is another key area where elder law attorneys provide valuable guidance. They can help clients explore their options, including nursing home care, in-home care, or community-based services. By working with an elder law attorney, individuals can make informed decisions about their future care arrangements and ensure their wishes are respected.

Furthermore, elder law attorneys can provide support with end-of-life planning, including advance directives, living wills, and powers of attorney. This ensures that their clients' medical and financial wishes are carried out, even if they become incapacitated. Overall, elder law attorneys play a crucial role in helping elderly individuals and their families navigate the complex legal and financial issues related to Medicaid, disability, and long-term care.

Guardianship, conservatorship and commitment matters

Guardianship, conservatorship, and commitment matters are an important part of elder law. This area of law deals with situations where older adults are no longer able to care for themselves or make important decisions. It involves the court appointing a guardian or conservator to take on certain duties and responsibilities for the older adult.

The process of appointing a guardian or conservator can be complex and lengthy, as it often involves the older adult losing some of their rights and independence. The court will only appoint a guardian as a last resort when no other alternatives are available. The appointed guardian will have a duty of care towards the older adult and must act in their best interests. Their responsibilities may include deciding on the older adult's living situation, addressing their personal needs, handling their finances, and making medical decisions on their behalf.

In some states, the terms "guardian" and "conservator" are used interchangeably, while in others, they have distinct roles. Generally, a guardian takes care of the older adult's personal affairs and day-to-day care, while a conservator manages their finances. However, it is important to review the specific definitions and duties of each role in your state.

To initiate the guardianship process, a petition must be submitted to the court by a spouse, domestic partner, relative, adult child, friend, or government agency. The petitioner must provide detailed information about the older adult, themselves, and the reasons for requesting guardianship. The court will then conduct an investigation to determine if guardianship is necessary. If approved, the judge will grant the petition, and the appointed guardian will be responsible for caring for the older adult and making decisions in their best interests.

It is important to note that guardianship petitions can be emotionally and financially draining, and there is a risk of the guardian failing to act in the best interests of the older adult. As such, it is recommended to consult with an elder law attorney to explore alternatives to guardianship, such as living trusts, living wills, power of attorney, and standby guardianship. These alternatives allow the older adult to assign their rights to another person willingly and should be considered before pursuing a guardianship arrangement.

Protection against elder abuse, neglect and fraud

Elder law is a legal practice area that provides holistic legal advice, allowing older persons and disabled individuals to preserve and protect their rights and values. Elder law includes protection against elder abuse, neglect, and fraud.

Protection against elder abuse, neglect, and fraud:

Elder abuse can take many forms, including physical, emotional, or financial abuse, neglect, abandonment, isolation, abduction, or other treatment resulting in physical or emotional injury, maltreatment, sexual conduct, or exploitation. Financial abuse is a common form of elder abuse and involves the misuse of an older person's money or property. It can include theft, misappropriation, concealment, misuse, or fraudulent deprivation of money or property.

There are laws at the federal, state, and local levels designed to protect older adults from elder abuse and guide the practice of adult protective services agencies, law enforcement agencies, and other organizations. These laws vary from state to state. For example, the federal Older Adult Justice Act protects older adults residing in long-term care facilities and requires employees to report abuse within a short timeframe. Additionally, some states have passed laws that make children legally responsible for the care of their elderly parents.

If you suspect elder abuse, neglect, or fraud, there are several steps you can take to protect your loved ones:

• Report it to Adult Protective Services (APS). APS are social services programs in each state that serve older adults and adults with disabilities who need help due to abuse, neglect, or exploitation.
• If there is an urgent risk of harm, call 911 or your local law enforcement agency.
• Contact the National Elder Fraud Hotline at 833-372-8311.
• Reach out to your local District Attorney's office and ask them to prosecute the perpetrator.
• Work with your loved one to contact their financial institutions, such as their bank or credit card company, to try to recover any lost money.
• File a grievance or complaint with the assisted living community or nursing home if the abuse involves a care team member.
• Contact the state licensing board for the perpetrator if they are a licensed professional.

It is important to include as much information as possible when reporting elder abuse, neglect, or fraud, including the time, date, location, names of those involved, a description of the suspected abuse, and any health conditions or disabilities of the victim.

End-of-life planning

Healthcare Decisions:

As people age, they may lose the capacity to make end-of-life medical decisions and communicate them to medical professionals and family members. It is essential to plan for these situations by deciding on life-sustaining treatments, life support, and other medical interventions.

Care Needs and Settings:

Older adults and their loved ones should discuss their preferences for care, including whether they want to age in place or eventually transition to a nursing home or assisted living facility. There is a range of care options available, offering varying levels of independence and support.

Palliative and Hospice Care:

Palliative care focuses on relieving symptoms and pain while also providing treatment for serious or life-threatening illnesses. Hospice care, on the other hand, aims to improve the quality of life and comfort for those with a short life expectancy, without attempting to cure the underlying illness.

Advance Care Planning Tools:

Living wills, healthcare power of attorney, financial power of attorney, and durable power of attorney are all legal tools that can help prepare for end-of-life healthcare issues. These documents outline an individual's wishes and grant decision-making authority to trusted individuals.

Advance Health Care Directives:

These documents specify an individual's healthcare wishes, such as the type of medical treatments they want to receive, their preferred care setting, and their preferences for life-sustaining treatments. While they are relatively easy to prepare, they may not always be legally binding if a doctor objects.

Living Wills:

Living wills are binding documents that provide instructions for an individual's care. They can be used to direct doctors to withhold treatment or to extend life using all possible means. Living wills are legally binding, meaning medical professionals are required to follow the stated wishes.

Power of Attorney for Healthcare:

Appointing someone to make care decisions through a power of attorney for healthcare allows a trusted individual to make decisions on your behalf. This can be especially useful for unmarried partners or friends who would otherwise not have the authority to make these choices.

Financial Planning:

Managing property and finances can become challenging towards the end of life, and it's important to plan for these issues as well. Giving someone durable financial power of attorney allows them to manage financial affairs, pay bills and taxes, manage investments, and handle other financial matters if an individual becomes incapacitated.

Trusts:

Creating a living trust involves appointing a trustee to manage and distribute assets. Trusts offer flexibility and can help ensure that an individual's wishes are respected, even if they are no longer capable of making those decisions themselves.

Funeral and Afterlife Wishes:

Discussing funeral arrangements, afterlife wishes, organ donation, and other end-of-life considerations can provide clarity and peace of mind for loved ones.

Frequently asked questions