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What is Elder Law?

Posted by Steve Worrall | Sep 22, 2021 | 0 Comments


There are many areas of law an attorney can focus on — litigation, bankruptcy law, criminal law, real estate law, environmental law, health care law — the list seems endless.

Some areas of law are probably familiar to you, such as family law. You know that if you need a divorce or have a child custody issue, you should contact a family law attorney. But there are some areas that remain a mystery, for both the layperson and attorneys alike.

Elder law is one such area. It is lesser known; you might not have heard of an elder law attorney until you need one.

What exactly does an elder law attorney do? A common comparison in the legal world is this: An estate planning attorney plans for what happens when you die, while an elder law attorney plans for what happens while you are alive.

Let's take a deeper look at what, exactly, an elder law attorney may be able to help you with.

Long-term care planning

The Administration for Community Living states that someone over the age of 65 has an almost 70% chance of needing long-term care at some point. You might need care because of a decline in physical or cognitive abilities. Who will provide that care? What does this care look like? Would you prefer to stay in your home, or move into an assisted living facility? If a nursing home is absolutely necessary, do you have a preference for a particular one? Planning for what type of care you would prefer is the beginning step.

The next step is to plan for who will pay for the care. You can undertake planning so that you can qualify for Medicaid to pay for long-term care. This way, you can best preserve your assets for your loved ones or for things that Medicaid doesn't pay for. Medicaid has a 5-year look-back period for certain long-term care benefits. This means that if you want to protect all of your assets, you must plan at least 5 years before Medicaid benefits are needed. If you wait and don't plan until you need care, usually only part of your assets can be preserved.

The final step would be to actually submit the Medicaid application when care is needed. It can be a tedious process but an elder law attorney can walk you through the process and file any appeals, if needed. Once you are approved for Medicaid benefits, you can begin receiving the care you need.

Estate planning

Since you will be using an elder law attorney to plan for your assets during your lifetime, it would be expected that the same attorney would also then help plan for what happens to your assets after you die. An elder law attorney can help guide you through wealth preservation issues, taxation issues, family discord issues, and more. For example, if you are concerned about protecting your assets from your child's creditors or a divorce, you can give them their share in trust.

Another part of planning for your death is what happens to your remains. Do you wish to be buried or cremated? Do you have a plot or funeral home picked out? Do you want to have a celebration of life ceremony? This information will be documented in your will, or possibly in a separate Disposition of Remains document.

Avoidance of guardianship or conservatorship

A guardianship and conservatorship involve a court process whereas a judge will appoint someone to care for you. In a guardianship case, the court is appointing a guardian over your person. This means that the guardian will be in charge of making your doctor's appointments, administering your medication to you, deciding where you live, etc. A conservatorship is where the judge appoints someone to be in charge of your finances.

Both court proceedings can be expensive, time-consuming, and stressful for families. In the end, the court may appoint someone to care for you that you didn't want. If you want to avoid a court process altogether and ensure the people you want to care for you are the ones that do, then you need certain documentation in place.

An elder law attorney can put these documents in place. A Health Care Power of Attorney will be drafted so that you can name someone to take care of your health care matters in the event you are unable to do so yourself. A Financial Power of Attorney will be put in place where you name someone to be in charge of your finances if you can't handle them yourself.

Help with elder abuse

The National Council on Aging estimates that one in 10 Americans over age 60 have experienced elder abuse. This abuse can come in the form of physical abuse, emotional or psychological abuse, financial abuse, or sexual abuse. Unfortunately, it is oftentimes a family member or caregiver who is the abuser.

Seniors are considered a vulnerable population because they are more prone to isolation and mental impairment. If you or someone you love is the victim of elder law abuse, an elder law attorney can help navigate the situation. The attorney will know who to contact to get the abuser prosecuted and out of the senior's life. The elder law attorney will also know what steps to take after that – what does future care look like, does the senior need to be moved, and how to protect the senior best.

Elder law attorneys focus on issues that affect the senior population. This can be a wide range of things, including those discussed above. Many people aren't aware of the need to plan for these things until it is too late. If you already need care or are incapacitated and unable to make legal decisions, your options will be limited. Indeed, it is best to put a plan in place long before you need it. This way, you have the most options available to you and you can rest easy knowing that if a situation arises, you already have a plan in place to address it.

Source: Jill Roamer at ElderCounsel Blog

About the Author

Steve Worrall

As a sandwich generation kid himself (caring for both children and aging parents), Marietta Georgia Estate Planning Elder Law & Probate Attorney Steve (Stephen M.) Worrall KNOWS the struggles you are facing as you raise children, balance the demands of your job, and take care of your aging parent...

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