With an aging population and financial and medical systems that seem to get more confusing each year, it can be difficult to make sense of getting older. Luckily, there’s a growing field to address this concern: elder law. Attorneys, along with other experts in medical, financial, and caregiving services, can assist you with navigating the complicated systems surrounding aging and long-term care.
Below, we’ll discuss what elder law entails, including some of the field’s financial components, as well as some health-care concerns addressed by elder law professionals. We’ll also take a look at how to choose the right elder law practitioner for your needs.
Elder Law and Caregiving
Planning should account for your current and potential care needs and how to pay for them. Your resources, family structure, and preferred care setting are important aspects to discuss during the planning process.
Some older adults can rely on family members or other caregivers to perform small assistance tasks, but people without family or with more severe medical concerns may need to relocate to community-based long-term care facilities.
Pro Tip: Apart from legal concerns, there’s a lot that goes into caregiving. Check out our caregiving guide to learn more.
Long-Term Care Options
A few popular options are remaining in your home or relocating to an adult foster home or assisted-living facility. Another option, in-home caregiving, is where a caregiver goes to your home to assist with the activities of daily living, including bathing, hygiene, dressing, mobility, transfers, and cognition. Caregivers can include family members, independently hired home-care workers, and in-home care agencies.
Long-term care facilities also provide care and assistance with the activities of daily living, but the staff is present during the night to respond to issues more quickly. To receive care in a nursing facility, you typically would have a medical need such as wound care or intravenous injections.
Memory care facilities, or residential-care facilities, are for people with cognitive deficits. They have locked units to prevent elopement, activities appropriate for memory decline, and more supervision than other community-based care settings. The interior layout of the locations is also designed to accommodate residents’ needs.
Did You Know: COVID-19 has affected all of us, particularly those living in long-term care facilities. To learn more about how the pandemic has affected care facilities, read my article on COVID-19 and nursing homes.
Paying for Long-Term Care
Elder law attorneys will consider how you can meet the rising costs of caregiving. Consulting with a financial planner who is versed in elder law can also help you plan ahead to pay for the cost of care. How early you start planning may impact your options and how your future needs may be funded. Some options are long-term care insurance policies, retirement plans, properties, incomes, expenses, natural supports, and Medicaid.
Paying privately for in-home care or long-term care facilities can be expensive, but it’s the least complicated method because it does not rely on bureaucratic programs that require confusing application systems.
Long-term care and life insurance policies may be available, but they become less viable options as you age. Long-term care insurance that can cover care expenses later may have premiums of thousands of dollars per year, and it needs to be purchased when you’re healthy. Certain life insurance policies may be amended to help finance in-home care, adult foster homes, assisted living, and nursing facilities. Beginning those plans early — even before retirement — may minimize the pressure of paying for care.
Medicaid and the Department of Veterans Affairs have programs for qualifying individuals that can help pay for long-term care. An elder law attorney can help determine whether you are eligible for either program, discuss strategies for spending, advise whether it is in your best interest to apply, and help with the application process.
Medicaid may be able to serve as a partial funding mechanism even if you have significant resources available. A couple’s resources are assessed together to determine how much a spouse can keep. Some of your income could also be diverted to your spouse to help pay for living expenses, which will reduce how much you pay for monthly care supplemented by Medicaid.
When you or your spouse pass away, the government will have a claim on your estate and may collect some or all of what it paid for care. There are many aspects to this process — called “estate recovery” — and it will be more easily addressed with proper financial planning. An elder law attorney is a great resource for connecting you with other agencies that can help with long-term care and aging.
Elder Law and Guardianship, Conservatorship, and Financial Administration
One understated aspect of elder law is navigating the complexities of family dynamics. Elder law attorneys are empathetic to family complications and the unique nature of each client’s situation. If you cannot make medical or financial decisions for yourself, then someone close to you can be appointed to make decisions on your behalf.
Some common aspects to consider in choosing representatives are where they live, their relationship to one another, their professions, and how busy they are. Sometimes these conversations seem invasive, but they are vital to determine who is acting in your best interest, who will be supportive in the future, and who you can trust to assist in executing your affairs.
Power of Attorney
A power of attorney (POA) allows you to nominate another person, called an agent, to make financial or medical decisions on your behalf. In some states, these are separated into a financial POA and a medical POA. You remain in control of who acts on your behalf and what actions your agents can take for you. The POA should be durable so it remains in effect if you become incapacitated.
The POA can be effective as soon as you sign it or be a “springing” POA in which the rights of a durable POA do not lock into effect until certain requirements are met, such as specific medical diagnoses.
Because a power of attorney provides less authority than guardianship or conservatorship, there can be some legal dispute over actions taken by an agent. POA abuse is also an issue since it could involve coercion, in which an older adult is made to give POA against his or her will.
If you become incapacitated and you do not have a POA, a conservatorship for financial and guardianship for medical (in some states referred to as “conservatorship over the person”) may be required. These require a court proceeding to appoint a person over you. An elder law attorney helps determine whether guardianship or conservatorship are appropriate. Navigating the process of obtaining guardianship or conservatorship can be complicated, and elder law professionals will provide the expertise needed to identify the best person to assume these responsibilities.
Each state has different definitions of guardian and conservator, and courts can assign different levels of authority to each designation. Consulting an expert can help apply the specifics of your particular state.
Elder Law and Estate Planning
A key component of elder law is financial and estate planning. An attorney specializing in elder law will consider matters such as planning for long-term care, protecting an aging client, and a client’s possible future mental or physical ailments. A traditional estate-planning attorney will help plan for beneficiaries, but it’s also important to consider the needs of the client in the event of physical disability or a reduction in cognitive ability.
Elder law professionals evaluate your circumstances to assist them in constructing wills and trusts and planning for long-term care needs and medical costs. They also assist in determining the best course of action to help you appoint an agent through a power of attorney or, if no power of attorney is in place, work with the court to appoint a guardian or conservator.
How to Find the Right Elder Law Attorney
It’s never too early to seek the counsel of an elder law attorney. Planning your affairs — even before retirement — can save years of headaches. Finding a professional you trust can be tough. Contacting current financial planners, attorneys, medical professionals, friends who have enlisted such services, or members of your social clubs may be beneficial. You can also search online at the National Association of Elder Law Attorneys.
Elder law attorneys are great resources to address multiple aspects of old age, including medical questions and financial concerns. Everyone’s circumstances differ, but if you think you may need an attorney it is best to consult with one to address your situation. Having a trusted relative or caregiver accompany you is recommended.
Elder law incorporates elements of financial and estate planning, but it also considers a broader perspective such as medical concerns and other issues facing older adults. Estate planning deals primarily with financial planning for persons of any age and protecting assets when an individual passes away. Estate planners can also assist during probate.
It depends on what services you require. If a professional can help ensure affordable medical care and avoid costly taxation in estate planning, then it’s possible their services could pay for themselves over time.
It is a broad category that includes long-term care planning, navigating Medicare and Medicaid, estate and financial planning, guardianship, conservatorship, and probate.
Meredith Williamson, J.D.
Meredith Williamson is the managing attorney of NW Estate Law, LLC, a law firm in Portland Oregon. She focuses on estate planning, probate, trust administration, and elder law including guardianship, conservatorship, Medicaid, and long-term care planning. Prior to this, she co-owned and managed a company dedicated to helping seniors and their families find resources. She combined her knowledge of senior services with her law degree and started her own law firm.