As a certified elder law attorney, I have been asked this question many times over the 35+ -years that I have practiced elder law. To begin, I will first answer, as best I can, What is elder law? Perhaps the simplest “clinical” definition of elder law might be:
Attorneys specializing in elder law are experienced and trained in working with the legal problems of older Americans and individuals of all ages with disabilities and special needs and help such persons and their families with planning for incapacity and long-term care.[1]
Some of the legal topics under the elder law umbrella include:
- Long-Term Care Planning, ranging from in-home care to alternate care, such as nursing homes, and assisted living, and how to pay for it
- Probate of Estates/Wills
- Estate Planning – Wills, Trusts, Disability Planning
- Trusts
- Guardianship/Conservatorship
- Public Benefits – Medicaid, Medicare
- Nursing Home/Assisted Living
- Elder Abuse/Neglect – Rights
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But those few questions only touch the surface of the umbrella that covers the practice of elder law. Indeed, the practice of elder law is unique and more of a holistic area of law because the clients that we counsel and advise often have physical or mental health conditions that require special care, attention, and protection due to memory, mobility, or other disabling and chronic impairment, or other illness.[2]
What Does an Elder Law Attorney Do Exactly?
As to the second question, what do elder law attorneys do? I believe the best way to help a person understand what we as elder law attorneys do, what we deal with, and how we can help a client is to give some examples of questions that may be asked by a client who comes to us for advice and counsel in this area of law. The following are only a few questions that a client may ask:
When Should I Hire An Elder Law Attorney?
- I want to give my house to my daughter, so the nursing home won’t take it. Should I do that?
- My husband has Alzheimer’s and has become abusive and combative. I thought I could take care of him at home, but that is becoming dangerous for him and me. What should I do?
- I have an old Will and have written on it to make a few changes to it. Is that ok?
- I live alone and cannot walk so have been in a wheelchair for the last year and am going blind. I had an old power of attorney but need a new one so my daughter can help with paying my bills. Can you prepare the power of attorney for me?
- I was recently diagnosed with Parkinson’s disease. If I get really bad, I still want to stay home but don’t know how I can afford to pay for my care? What if I need a nursing home? How can I pay for that?
- My mother is becoming more and more confused and forgetful. How can my sister and I help her if she has dementia?
- My neighbor has a trust and says I should have one too. Should I? Why?
- My husband just died and didn’t have a Will. What do I have to do?
- My mother just died and had a Will. Is there anything I have to do?
- My son has a drug addiction. I love him and want to leave him something in my Will, but I’m afraid he’ll squander it. Is there a way I can protect the money I leave him, so he can benefit from it but not blow it?
Many, many more questions and issues arise when a client starts out with what seems like a simple question. When applying a more holistic approach to legal problems, we as elder law attorneys are taught and learn to consider the larger context, both other legal consequences as well as the extra-legal context in which the problems exist and must be solved.[3] For instance, let’s take question no. 4 above, i.e., the client in a wheelchair who is going blind and lives alone. That client asked the elder law attorney to prepare a power of attorney. In addition to preparing a durable power of attorney for the client, the elder law attorneys should also offer advice on the issues of how to arrange for home care services, assisted living or nursing homes and pay for such services and living arrangements, and what measures the client may wish to consider to prevent financial exploitation.
Also, the elder law attorney should have a careful and thoughtful discussion with that client about a “durable” power of attorney, what it is, what it does, some of the potential risks, and many benefits of the durable power of attorney. Contrary to most clients’ beliefs, durable power is not a “party favor” or “one-size-fits-all” legal document but is a document that should be carefully drafted, designed, and tailored for the client’s specific needs to help them achieve their personal goals.
For instance, in drafting the client’s durable power of attorney, the elder law attorney should discuss the foregoing issues and help the client decide whether critical and special powers should be included in the client’s durable power attorney to ensure that the client’s daughter as the agent will have the necessary legal authority to achieve the client’s goals for nursing home care, if necessary, and how to pay for such long-term services, including special powers drafted for “gifting,” if appropriate and desired by the client, for Medicaid eligibility so as to preserve the client’s assets to pay for extras or unique needs for the client.
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The elder law attorneys at Collins Elder Law Group are specially trained to offer advice and counsel to a client who asks the above questions and many more.
The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.
[1] https://www.naela.org/Web/About/ImportTemp/About_NAELA_New.aspx?hkey=feb0efd3-bd62-4508-9ca4-20de373d4784
[2] https://www.naela.org/Web/Members_Tab/Aspirational_Standards/Aspirational_Standards_Member_Page.aspx
[3] https://www.naela.org/Web/Members_Tab/Aspirational_Standards/Aspirational_Standards_Member_Page.aspx?6e1405d57fa4=2#6e1405d57fa4
