In May of 2020, a 20-year-old man was caught on video brutally beating a 75-year-old man at the Westwood Rehabilitation Nursing Center in Detroit, Michigan. The suspect,...
What is Elder Law?
Elder law focuses on the needs of older adults from a variety of angles. This specialty emerged because legal requirements in the later part of life and after death are numerous and complex. This blog explains some of the major areas covered in elder law.
Wills and Other Estate Planning Tools
Most people know what a will is but other estate planning tools are less well-understood. An estate is made up of all the things someone owns. An estate plan maps out what happens to all those assets after death. This can be a complicated process that involves such things as tax implications and the interests of survivors.
An estate plan helps minimize the involvement of the legal process known as probate. Probate is a legal process intended to ensure an estate's assets go to the right people and all obligations like debts and taxes are satisfied. Eldercare attorneys are experts at setting up arrangements like living trusts that can potentially bypass probate and its attendant costs altogether.
Durable Power of Attorney
There may come a time when an older adult ("principal") cannot manage their own affairs. Whether temporarily or permanently, another person ("agent") must be authorized to act on their behalf. Power of attorney (POA) gives the agent this authorization. Elder law attorneys can set up POAs of various types, as noted in a recent Cantissimo Senior Living blog post. One of the most popular POA arrangements is a durable power of attorney, which remains in effect even if the principal is incapacitated.
Sometimes arrangements like the durable power of attorney are not enough to ensure an incapacitated person's care. A guardianship requires court involvement to appoint a guardian for the incapacitated person (the ward). The court tries to determine if the person is truly incapacitated and, if so, how much assistance is needed. If the court agrees that the person is incapacitated, the judge needs to determine if the guardian can handle the job. Because this is an expensive and complicated process, guardianship should only be used as a last resort.
Advance Healthcare Directive
Another essential document is the advance healthcare directive. Sometimes called a living will, it contains an individual's preferences for handling their medical care. An elder law attorney is not needed to create this document, but using a legal professional can ensure all possible options are considered.
Click here to learn more about advanced directives!
Long-Term Care Planning
Elder law attorneys can help with long-term care planning in several ways. First, they have experience with the various types of situations seniors could potentially face in the future and what options are available in each case. For example, if dementia runs in a person's family, an elder law attorney can outline how to handle the situation should it arise in the future.
Second, elder law attorneys are knowledgeable about senior living alternatives and how to pay for them. Armed with insight into a person's financial resources, an attorney can help craft a plan for affordable senior living.
Medicare and Medicaid
Navigating the ins and outs of Medicare and Medicaid is often a specialty for elder law attorneys.
Medicare can be confusing. If a beneficiary makes a mistake and is denied Medicare coverage, there is a right to appeal. An elder law attorney may be able to help with such appeals to increase the probability of success.
Medicaid comes into play when a person in long-term care runs out of money. Qualifying for Medicaid can be problematic. However, an elder law attorney can help plan for this event to smooth the transition to Medicaid payment. For veterans, VA benefits can also factor into paying for long-term care expenses.
Protecting Lifetime Savings
Elder law attorneys can assist in strategies to protect wealth accumulated after years of saving. A financial planner can handle simple moves like "rebalancing" funds to optimize risk and return. However, a legal professional is needed to draft arrangements like living and other types of trusts to protect lifetime savings. The elder law attorney should have an intimate knowledge of the tax implications for all these arrangements.
Once an older adult resides in a senior living setting, legal issues could occur. Residents have certain rights, whether in a skilled nursing facility, assisted living, or memory care. An elder law attorney can explain those rights and help file claims if necessary. Another area of increasing importance is home healthcare, in which seniors receive services at home. Providers of such service may or may not be certified by Medicare or Medicaid. An elder law professional may be able to provide advice on choosing among home care alternatives.
Abuse, Neglect, and Exploitation
The National Center on Elder Abuse (NCEA) calls out several types of elder abuse:
- Physical Abuse
- Emotional Abuse
- Sexual Abuse
- Exploitation (misuse, concealment, fraud, or stealing of assets)
Elder law professionals can help identify cases of elder abuse and bring these to the attention of the authorities like law enforcement, a social worker, Adult Protective Services, or health care professional. They can also help bring civil action to stop cases of abuse.
Click here to learn more about elder abuse, plus how to identify and prevent it!
Choosing an Elder Law Attorney
Elder law attorneys can be found easily with a web search.
Questions to ask these legal professionals are:
- How long have you practiced law?
- What percentage of your practice focuses on elder law?
- What areas in elder law can you handle?
- Are you a Certified Elder Law Attorney (CELA)?
- Do you have a particular emphasis on a certain area within elder law?
- What information should I prepare for our first meeting?
- What are your fees?
An elder law attorney also needs to deal with both the elder and the elder's family. This makes for some complicated situations, but an experienced elder law attorney will handle these effectively.