When I tell someone that I practice Elder Law, the most common response is something like, “Well, you know I already have a Will…” Estate planning is only one aspect. My reply is usually, “I am more concerned you are well-taken care of while you are still with us, than what happens to your belongings when you are no longer with us.” Unfortunately, the majority of people have no idea what Elder Law is, and how it can help those who take care of aging loved ones who are not able to take care of themselves. Elder Law attorneys focus on issues unique to seniors. Our practice area is defined more by the individuals we assist, than the specific areas of law in which we practice.
Diminished Capacity: One of the most common issues we address as Elder Law attorneys is the loss of mental capacity. Those who are losing mental capacity, due to memory loss, illness, or age, are vulnerable and need help with personal and financial decisions. For instance, we regularly meet with family members who are upset because the bank will not allow them access to their loved one’s accounts to pay their bills that are delinquent. “We have no intention of stealing his money—we just want to help him pay his bills or else his power will be shut off!” Or perhaps mom, who is dad’s sole caregiver, has called 9-1-1 four times that month each time dad falls because she cannot pick him up, yet she refuses to hire assistance or consider placing him in a care facility. Those are just two examples—I could describe a broad array of situations in which an aging person with diminished capacity could use someone with legal authority to provide the help or protection they need. There are estate planning tools may be effective to help you help them, such as Powers of Attorney for health care, mental health care, or finances. In some instances, even that is not enough or they are too far gone to sign any legal documents, in which case, a guardianship and/or conservatorship may be necessary to protect them and make sure their needs are met.
Benefits Planning: Another common question that arises when arranging care for those who cannot take care of themselves is the high cost of long term care. Many people are surprised to find out that Medicare will not pay for long term care. Most people cannot afford long term care for long periods of time. Few have long term care insurance adequate to cover their needs. For that reason, Elder Law attorneys routinely discuss public long term care benefits, such as Veterans’ Aid & Attendance pension and ALTCS (Medicaid long term care program in AZ). We can not only discuss what the eligibility criteria are, but also how families can best plan before the money runs out or even preserve it. The spouse or family members may also want to incorporate benefits planning for the aging loved one in their own estate planning.
Special Needs Planning: Many Elder Law attorneys also offer special needs planning, as there are some similarities between the issues facing the disabled population as those that face the aging population, including diminished capacity and benefits planning. We routinely prepare estate plans for parents with disabled minor or adult children and prepare Special Needs Trusts to enable disabled individuals to maintain eligibility for public benefits.
Estate Planning: Elder law attorneys prepare all the same estate planning documents that estate planning attorneys prepare, such as Wills, powers of attorneys, medical directives and Trusts. We also handle probate and post-death trust administration matters. The significant difference is that elder law attorneys work through the real-world issues in dealing with financial institutions, representing Agents, Trustees, Personal Representatives, and understand matters beyond tax and probate, such as private and public benefits programs and insurance, medical decision making, and care planning options. We routinely work with other professionals to ensure clients have the best quality of life possible; elder law attorneys are not simply concerned with post-death planning.
In short, Elder Law is intended to help those who cannot help themselves, emphasizing the elderly and the disabled. With the exploding rate at which that population is growing, the need for Elder Law attorneys is greater than ever before.