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What is Elder Law and How Can an Elder Law Attorney Help Me?

Find an elder law attorney today

With an increasingly aging population, and financial and medical systems that seem to get more confusing every year, it can be difficult to make sense of getting older. Luckily, there’s a growing field to address this concern: elder law. While not a specific branch of law in itself, elder law contains a loose affiliation of experts across multiple fields of law dedicated to understanding the issues facing seniors and helping them navigate the complicated systems surrounding aging.

In this article, we’re going to discuss some of the touchstones of what elder law entails, including some of the financial components of the field, as well as some of the healthcare concerns addressed by elder law professionals. Finally, we’ll take a look at how to choose the right elder law practitioner for your needs.

How Elder Law Helps Navigate Home Health Care

It really can’t be understated how significant home health care is and will continue to be. With an estimated 10,000 Americans turning 65 every day, the demand in healthcare-related jobs is set to increase by 18 percent through 2026. The demand for home healthcare workers, however, is set to outpace that growth at 41 percent in an attempt to keep up with the number of older adults wishing to stay in their homes as they age.

Any person of any working age can tell you, figuring out the American healthcare labyrinth is frustrating at best. As we age, the options available are even more complicated. While some older adults—especially those in better physical and mental health—can rely on family members or other caregivers to provide periodic check-ins and help with the day-to-day, those with more pressing medical concerns may require near-constant attention.

Many older adults pay for in-home care out of pocket, which can be pricey, though it is the least complicated way to get care because it doesn’t rely on any bureaucratic programs that require enrollments or navigating confusing online portals. Consulting with a financial planner well-versed in elder law, especially early on, can save a lot of headaches down the road.

For example, older adults can buy long-term care insurance, which can cover care later in life, though it can also be expensive, clocking in at nearly $4,000 per year. Additionally, life insurance policies can be amended with a rider to help finance long-term, in-home care, and beginning to pay monthly for those plans early on (even before retirement) can help ameliorate some of the pressure of paying for care later in life.

Of course, there are government programs that can help older adults receive home care, notably Medicare, Medicaid, PACE, and healthcare options available through the Department of Veterans Affairs (for service members), as well as supplemental healthcare plans. Figuring out which of these programs work best with your circumstances and understanding which benefits you could be entitled to are all motivations to consult with an elder law professional, especially one with a focus on medical care. These programs are complicated, and enlisting the help of someone who knows the ins and outs can be a huge help in getting the care you’re entitled to.

Elder Law and Estate Planning

For those of us with the benefit of having savings and assets through old age, what happens to it when we pass can be a source of stress. One of the key components of elder law is financial and estate planning, which can help give peace of mind in knowing that both you and your loved ones will be taken care of.

The differentiation point between an elder law approach to estate planning and the traditional will or trust process is that elder law professionals take a more holistic approach to the process. A good estate attorney may do all they can to shield inheritance from taxes to leave your loved ones with as many assets as possible, but they may fail to consider your particular needs in aging.

With an elder law professional, not only will they look at the unique circumstances with regards to assets and inheritance in drawing up a will or creating trusts, but they can help navigate what your particular needs may be with regards to long-term care or medical costs down the road. Generally speaking, experts in elder law are well versed in all aspects of the concerns of aging, and will empathetically address your concerns to help create a plan for while you’re still here, as well as what happens to your assets when you’re not.

Elder law professionals will also help determine the best course of action with respect to guardianship and powers of attorney, which can be additional sticking points in the aging process.

Elder Law and Guardianship, Conservatorship, and Financial Administration

One of the understated aspects of elder law is understanding the complexities of family dynamics. When enlisting the help of an elder law professional, one of their key objectives will be fully getting to know the ins and outs of your family. Some of the common questions and concerns will be if you have children, where they live, what their relationship to one another is, what their professions are, if they have spouses, if you are married, or if you have previous marriages. Some of these questions can be tough or seem invasive, but they’re all a means of determining who is working in your best interest and who you trust to be there for you down the road.

Finding the answers to these questions is a way that elder law professionals help determine guardianship and conservatorship. If you are unable to make medical decisions for yourself, then someone close to you—ideally one of your children or a close family member—can be appointed as a guardian who can make medical decisions on your behalf. The process of becoming a guardian can be complicated and have various outcomes. For example, if an older adult can be trusted to make some decisions for themselves but not all, limited guardianship can be granted. Oftentimes these arrangements require the consultation of medical professionals supplied to the court. If a loved one is given full guardianship, they become the guardian of their ward and hold many of the same responsibilities to their ward that a parent would to a young child.

Additionally, as we’ve all seen, older adults can be taken advantage of financially, and it’s always a devastating experience. Conservatorship is much like guardianship, but applies more strictly to financial matters. If an older adult becomes mentally or physically incapacitated and can no longer handle their finances, a conservatorship can be granted in a similar way to guardianship and allow a trusted loved one to control bank accounts and other income streams for their ward to ensure that bills are paid and they’re well cared for.

The process of achieving guardianship or conservatorship can be complicated to navigate, and elder law professionals can provide the expertise needed to identify who would be best to take on these responsibilities in the best interest of an older adult.

Important Note:: Each state has different definitions of guardian and conservator, and different courts can assign different levels of authority to each of those designations. Consulting with an elder law expert can help you navigate the specifics of your state.

What is Power of Attorney?

Power of attorney is an important tool in any elder law expert’s kit, and it provides many of the same protections as guardianship or conservatorship but doesn’t require the same sacrifice of autonomy as the latter two designations. A power of attorney allows a family member or loved one the ability to perform financial or medical transactions on behalf of an older adult if they’re incapacitated, but i5 doesn’t require the older adult to entirely turn over their decision making completely.

There are also different designations of power of attorney. A durable power of attorney is what many think of when the term gets thrown around, meaning it allows for an “attorney-in-fact,” or an “agent,” to act on behalf of you, the “principal” in all legal and financial affairs. A non-durable or limited power of attorney can limit those powers to a specific document or act—like signing checks, for example—and doesn’t extend to full authority in legal matters.

There can also be a “springing” power of attorney, meaning the rights of a durable power of attorney don’t lock into effect until certain requirements are met, like a specific medical diagnosis, for example. Experts in elder law can help both principals and agents determine which type of power of attorney makes the most sense for your circumstances.

Pro Tip: Because power of attorney is less authority than guardianship or conservatorship, there can be some legal dispute over actions taken by an agent. Power of attorney abuse is also an issue as it could mean coercion where an older adult is made to give power of attorney against their will.

Elder Law and the Probate Process

When a person passes, even if all the I’s are dotted and T’s are crossed on wills, there are still more legal affairs that need to be tended to; this is the probate process.

Since banks aren’t legal experts when it comes to estate planning, they don’t just turn over access to the bank account of the deceased even if a loved one or family member has been named in a will as a fiduciary and presents a death certificate. The probate court begins with the inheritor filing a petition, then moves on to weathering any challenges to the estate from other potential inheritors, and ends with the final distribution of assets as dictated by the will of the deceased.

Probate courts can be expensive and messy processes, and early planning with an experienced elder law professional can not only soften the blow to make the process go as easily as possible before an older adult passes, but it also can help see an entire family through the courts to guarantee that the deceased party’s wishes are fulfilled.

Fun Fact:: In Maryland and Pennsylvania probate courts are known as “orphan’s courts”.

Finding the Right Elder Law Professional

One important thing to remember when seeking the counsel of an elder law attorney is that it’s never too early. Getting your ducks in a row even before retirement can save years of headache down the road. Finding an elder law professional can be tough because the position relies on trust; as a result, it’s best to start with people you already trust.

Reaching out to current financial planners, friends that may have enlisted the services of an elder law attorney, medical professionals, or members of social clubs you belong to can be a big help here. Word of mouth of a good reputation can be enough for you to place your trust in an elder law attorney. Failing word of mouth, another resource can be the National Academy of Elder Law Attorneys, which can help you find an elder law expert.

Frequently Asked Questions

  • Should I hire an elder law attorney?

    Elder law attorneys are a great resource when it comes to multiple aspects of navigating old age, from medical concerns to financial planning. Everyone’s personal circumstances will differ, but if you think you may need an elder law attorney, it may be best to schedule a consultation with one to see if they’re able to address your needs and concerns. Having a trusted relative or caregiver with you is also recommended.

  • What is the difference between estate planning and elder law?

    Elder law incorporates elements of financial and estate planning, but also serves as a much broader jurisdiction covering medical concerns and other issues facing older adults. Estate planning deals primarily with financial planning and distributing assets when an older adult passes.

  • How much does an elder attorney cost?

    Elder law professionals can cover a wide swath of price points, so it’s difficult to put a definitive price tag on services. Expect to pay in the $500 range for an initial, in-person consultation, however.

  • Are elder care attorneys worth it?

    Of course, it all depends on what services you require. But, if an elder law professional can help ensure affordable medical care and avoid costly taxation in estate planning, it’s possible that their services could pay for themselves over time.

  • What does elder law include?

    Elder law is a relatively wide category, but essentially boils down to the concerns faced by older adults; this includes everything from long-term care planning, to navigating Medicare, to estate and financial planning later in life.

16 Comments

  1. Since my husband died recently, I want to have our attorney prepare a new trust (if necessary) and will. However, she wants to know what my retirement income is, my assets, stocks, annuities, etc. amount to. Why does she need this information?
  2. Thanks for sharing this blog with us. This is more helpful for find the best elder law attorney lawyer.
  3. We moved into a situation in which in return for not paying rent we are responsible for companionship/caregiving of an 87 year old mentally declining woman. I am on the clock 24/7 and though I am now told I can have Saturdays off, the family will be there 3-4 hours, when they drive away that leaves me again expected to take over on my so called day off. What is a reasonable amount of time off to be expected in this situation ?
  4. I’ve been taking care of my mother for the last 10 yrs and I am her POA and she lives with me I take care of all her needs medication, bathing, cooking etc. However she has had hip surgery 2 yrs ago which now unfortunately has led to a ongoing infection in her leg from an procedure performed. My question is her pension she receives her concern is building hospital bills not covered by her insurance and social worker says she doesn’t qualify for Medicaid because her SS and pension takes her out of the bracket. Wondering if she needs a will made in order to give me access to using her pension funds to cover some expenses? And wants to leave me me as her beneficiary of her pensions because she refuses to go to a nursing home. Any answers would be appreciated. Thank you in advance.
  5. Elderly parents in assisted living for 5 yrs now out of money and applying for medicaid. Problem is house sold in as condition as very little home improvement down since ownership of 1952. Sold less than so called fair market price. What options do I have
  6. My parents are both living in their condo and have home health aid 24/7. However, the state will only pay for 12 hours during the day. The remaining 12 hour shift, at night, is being charged to my parents Visa cards. The available credit will soon run out on the cards and there are no funds to pay for this service.. My father is 96 and in a wheel chair due to end stages of congestive heart failure. He cannot do ANYTHING on his own. He cannot, bath, eat, get dressed ,go to the bathroom or shower. He is down to 118 pounds.My mother is 89 and has Vascular Dimentia. She is down to 89 pounds.She, obviously, cannot oversee Dad’s care taking. We have been told by the Southwestern CT Agency on Aging rep, that the state will not pay for more coverage. This is unbelievable. What would have to be the circumstances in order for the state to pick up the tab???
  7. I have for the pass 5 months, have care for my sister affairs, no applying for guardianship hoping she would get better she have a stroke broke her hip now a relative has come into her life I have paid and I have receipts for everything I’ve done out of her social security I’ll paying her bills the nursing home and so forth Denise has changed her social security to come to her instead of to the bank I’ve been unable to pay the nursing home for the past 2 months she is not the guardian I have applied for guardianship which I go to court on the 19th of July what can I do to make make her refund the money back that the nursing home can be paid and my sister don’t lose her Medicaid
  8. Hi, I’m just wondering if there’s something I can do about my situación, I’m under under doctors care since I had my organ transplant, we had to sell our home to pay for expenses to get my organ out of state, my daughter and her husband were nice enough to let us live with her since my husband had to retired to be my caregiver! I just can’t recouperate and having lots issues with my health, long story shorten… my daughter thinks because she helps me she can abuse me by calling me horrible names so over a week ago we got into because I told her she needed to respect me, we argue and she kicked me out of her home and I don’t have a place to live and don’t have enough money to rent a place, I’m on anti rejection meds among others and it’s very hard for me to survive like this! Is there something I can do legally? I love my daughter and don’t want to hurt her but she’s hurting me by throwing me on the street and living in different hotels here and there. I don’t know what else to do! Thanks in advance.
  9. I need advice on what can be done or who i contact when an elderly person is being used and gets married to a young woman whos using him for entrance into the United States.
  10. I AM A VICTUM OF NJ MEDICAID. I HAVE BEEN DROPPED AND SCHEDULED FOR A HEARING MAY 6. TOO COMPLICATED FOR ME TO UNDERSTAND AND NEED LEGAL GUIDANCE. BURLINGTON COUNTY NJ
  11. Thanks for the tip to see how long an attorney has been practicing when it comes to Elder Law. My parents are looking to hire a lawyer. I will help them find an attorney that has plenty of experience.
  12. It’s interesting that these days elders have their own laws that can protect their rights together with the elders as you mentioned. That is something that would be beneficial to learn more of as it would help me make sure that my father will be protected by the law. I’ll probably get an elder law attorney for my dad to discuss the topic more. Thanks!
  13. My grandmother’s health has been declining recently. She wants to make sure she has all of her legal planning done before she passes away. I didn’t realize elder care lawyers specialize in dealing with complex legal issues that arise with the passing of an estate. I’ll be sure to let my grandma know about this information.

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