Most areas of the law focus on a specific discipline, and elder law attorneys focus on a specific type of person. The main purpose of an elder law attorney is to help aging Americans to legally navigate through the issues of life that arise simply because of age. They can offer legal guidance and counseling on preparing for long-term care, choosing retirement plans, planning and settling your estate and a host of other issues that older Americans may face. As we enter retirement age, there are government benefits that may be available to us, but determining if you qualify for the federal programs can be difficult to do alone. Elder law attorneys are knowledgeable in all areas of government assistance available to seniors.
How Elder Law Became a Practice
Congress determined the Older American Act was needed to ensure that critical services be available to older Americans to keep them healthy and independent for as long as possible.
The Older Americans Act (OAA) was signed into law by President Lyndon B. Johnson and is credited by the American Bar Association with being the foundation for the practice of elder law. The OAA was the first initiative on a federal level to address and provide a wide range of services for senior citizens.
Congress determined the OAA was needed to ensure that critical services be available to older Americans to keep them healthy and independent for as long as possible. The Act established the Administration on Aging to carry out its provisions. The Act allows the federal government to distribute money to states to be used for supportive services for anyone over the age of 60. In establishing the OAA, Congress determined that for an American to maintain the dignity they deserve, they should have access to an adequate income after retirement, access to physical and mental health care services, affordable housing, employment opportunities, institutional and long-term care for those who need it and services to help seniors stay independent as long as possible.
The OAA also lead to the creation of legal services on the state and local level to help senior citizens, and, ultimately created the practice of elder law. After recognizing the growing need for legal aid and research for senior citizens, the American Bar Association formed the Commission on Law and Aging in 1978. The Commission has 15 members with a mission to “strengthen and secure the legal autonomy, quality of life, and quality care of elders.”
As the years have passed and the older population has increased, non-profit organizations and state legal associations have formed with the sole purpose of focusing on the needs of older Americans. Law schools took notice as well, and in 1985, the Association of American Law Schools formed the section on aging and the law. Now, law schools across the country offer elder law courses as part of the curriculum.
What Areas of Life Can an Elder Law Attorney Be Helpful?
At some point in our life, chances are good we will need the help of an attorney. As we age and begin planning for our retirement future, and ultimately, our death, seeking counsel from an elder law attorney can be beneficial. Attorneys who practice elder law are knowledgeable in several areas that directly affect senior citizens.
It doesn’t matter if you have a small house and a modest bank account or a lucrative business and a long list of assets, estate planning can be difficult and overwhelming. But it’s important to put your affairs in order, especially as you age. It’s sobering to think about, but we will all die, and estate planning can help us be in control of what happens to our assets when that time comes.
An estate plan is more than creating a will. A will is just the first step in executing your estate plan. It can entail creating trusts for your life insurance policies (maybe link to the life insurance policy guide article?) or other assets, filling out and executing Advance Directives (Maybe link to Advance Directives article?), guardianship decisions if you become incapacitated, financial management of 401ks and IRAs, and overall management of your personal business during your life, as well as settling your estate upon the time of your death. Many elder law attorneys specialize in estate planning and can help you navigate through the decisions and the tax implications of managing and settling your estate.
An elder law attorney can help ensure that you get the proper amount of benefits based on your condition.
You can qualify and apply for Social Security benefits when you are 61 and nine months old. Currently, the full retirement age for Social Security is 67. If you receive disability benefits before that age or become disabled once you reach full retirement age, an elder law attorney can help ensure that you get the proper amount of benefits based on your condition.
Medicare is the federal health insurance program for Americans 65 and older. It’s a great benefit the government provides, but it is complicated and confusing, especially when you are enrolling for the first time. Medicare Part A covers any stay you may have in a hospital, skilled nursing facility or hospice care. It also covers some home health care. Medicare Part B is your medical insurance and it covers certain services by doctors, outpatient care, medical supplies and preventative services. Medicare Part C is known as the Medicare Advantage Plans and is the insurance plan you purchase from a private company that contracts with Medicare. It covers all your Part A and Part B benefits. Medicare Part D is your prescription drug coverage plan.
Like any health insurance company or plan, you can, from time to time, have issues with what Medicare pays for and what it doesn’t. You may have to file a claim and appeal a coverage or payment decision made by Medicare. There are five levels to the Medicare appeals process. Depending on the complexity of your claim, an elder law attorney may be helpful.
A successful Medicaid plan will allow you to receive the benefits of the program, while being able to retain enough of your income.
Medicaid is a federal program that provides healthcare benefits to low-income adults, children, pregnant women, elderly adults and those with disabilities. Medicaid currently provides coverage for more than four million senior citizens in the United States. You can receive Medicare and Medicaid benefits. Medicaid is awarded based on your income and resources. In addition to paying for healthcare premiums and out-of-pocket medical expenses, Medicaid also covers custodial care. It can take care of the long-term expense if you begin living in a nursing home.
In order to be able to use Medicaid for nursing home expenses, your application must be successfully submitted to the state where you will be living. It may require extensive Medicaid planning – which is legally positioning your income and assets, so you can qualify for Medicaid. A successful Medicaid plan will allow you to receive the benefits of the program, while being able to retain enough of your income or assets to provide and support your surviving spouse or family members. An elder law attorney can help you apply for Medicaid benefits and plan effectively.
There’s no way around it, long-term care is expensive. And for many Americans, it’s necessary. We all want to stay independent and in our homes as long as possible, but at some point, many of us will need to move in with a loved one, live in an assisted living facility or reside in a nursing home. Planning for that now can make the transition easier later.
To cover the cost, you may want to consider long-term care insurance. The amount of your policy premiums can go up based on your age, health or any preexisting conditions. So, the earlier you get the policy the better. An elder law attorney well versed in proper Medicaid planning or estate planning can also help you make the best financial arrangements for your long-term care.
The Age Discrimination Act makes it illegal for an employer to discriminate against you because of your age. The Act is specific to anyone over the age of 40. If you have a job or are seeking employment and believe you are being discriminated against because of your age, an elder law attorney can help assess your claim and take the proper measures to remedy the situation.
Elder Abuse Or Fraud
It’s hard to fathom why anyone would want to take advantage of or hurt a loved one or someone they are responsible for caring for. But unfortunately it does happen. More than half a million cases of elder abuse are reported each year in the United States. There are many more that aren’t reported. Elder abuse can encompass mistreatment physically, emotionally, sexually or financially. It can also happen if you become neglected or abandoned. You deserve to be safe and well cared for but getting out of those situations isn’t easy and it can often take another loved one taking notice and taking over to end the abuse. Elder law attorneys can help contact the proper authorities, try and recoup some of the lost finances or help get you or your loved one into a safe environment.
Grandparents Visitation Rights
Unfortunately, family members don’t always get along and sometimes the relationship between grandparent and grandchild pays the price. Either from bitter disagreements or divorce, or even the death of a child’s parent, grandparents can often lose their right to see and be part of their grandchildren’s lives. Every state has its own set of statues with regard to grandparent’s visitation and rights. An elder law attorney can help determine your rights and the best course of action to seek visitation if you find yourself in this type of situation.
This is not in any way an exhaustive list of the capabilities of an attorney who practices elder law. But it should give you a road map of sorts on the type of legal matters an elder law attorney can handle and help you decide if working with one is right for you.
What Questions Should I Ask When Choosing An Elder Law Attorney?
If you decide that speaking with an elder law attorney is right for you, there are some questions you will want to consider asking before entering into an agreement. The National Academy of Elder Law Attorneys (NAELA) says in your initial phone call to an attorney’s office, you may end up speaking with the attorney’s secretary or office manager. NAELA recommends asking that person these questions:
How long has the attorney been in practice?
Everyone needs to gain experience, but based on your need, you may not want to be the person they gain that experience with. It’s important to know how long an attorney has practiced law in general.
Does his or her practice emaphasize a particular area of law?
If you contact an attorney who practices elder law, but most of their practice is made up of environmental litigation, you may want to reconsider your choice. All attorneys are trained to have a basic working knowledge of the legal system and the ability to gain information on any aspect of the law. But if someone’s practice mainly focuses on an area far removed from your needs, you might want to look for someone else. A good fit to consider might be an estate planning attorney or a family law attorney who also practices elder law.
What percentage of his or her practice is devoted to elder law or special needs planning?
To be certified as an elder law attorney, he or she must spend 16 hours or more each week in the practice of elder law. 16 is a good number to gauge against when determining whether an attorney is a good fit for you.
Is there a fee for the first consultation, and if so how much is it?
Finding out an attorney’s fee structure on the front end will help you find one that fits your budget. Whether an attorney offers a free initial consultation depends on the attorney. Some will and use it as their pro-bono or reduced fee work. Most state bars encourage members to perform free or reduced fee work.
You may also want to inquire if the attorney will be charging you an hourly rate or a flat fee. Depending on your need, it could be either. For example, if you just need an attorney to draft a will for you, they might charge you a flat fee. If he or she is involved in ongoing representation for a Medicare or Medicaid claim for you, they may bill you for each hour spent on your case.
Given the nature of your problem, what information should you bring with you to the initial, face to face consultation?
It’s always good to be prepared. You don’t want to show up at your first face-to-face meeting with an attorney and not have everything you need to get the advice you are seeking. And you certainly don’t want to be charged again for another consultation because you didn’t bring all the much needed and important documents the first time.
Getting answers to these questions is important, and if you aren’t satisfied with what you are being told, keep looking.
What Questions Should I Ask At My First Meeting With An Elder Law Attorney?
NAELA also has a recommended list of questions to ask when you choose an elder law attorney you want to work with. Once you’ve explained your particular situation and the reason for your meeting, you’ll want to find out the answer to the following issues:
- You should ask how long it will take to resolve your case and what, if any, alternative courses of action there are.
- You should ask the attorney to explain the advantages and disadvantages of each possibility or outcome for your case.
- Find out how many attorneys are in the office and if another one of them will be assigned to your case.
- Ask whoever is handling your case if they’ve dealt with or handled a matter like it in the past. Depending on the complexity of your case, you will want to make sure the attorney representing you has proper experience. You wouldn’t want someone to operate on your heart who usually only performs knee replacements. The attorney may practice elder law, but they may not have handled a specific case like yours. So, it’s important to find that out in advance.
- There are times the only resolution for an issue is to take it to trial and you will need to find out if your elder law attorney does trial work.
- It’s hard for an attorney to know what your final bill will be, but you can at least ask for an estimated cost, payment schedules and an estimate of how long it will take to resolve. It’s important to make sure the attorney you’ve chosen fits within your budget. Knowing up front will help prevent conflict and confusion later.
- Find out if the attorney is certified and what bars and other organizations he or she may be members of.
How Do I Find An Elder Law Attorney?
If you would like to find an elder law attorney to speak with or work with, asking your friends and family who they recommend is always a good place to start. The National Elder Law Foundation (NELF) is the only national organization that certifies elder and special needs law attorneys. To be certified, attorneys must, among other criteria, pass an exam, practice elder law at least 16 hours a week and participate in ongoing, continuing education courses. You can search for a NELF-certified attorney on the organization’s website.
It’s important that you find an attorney that’s right for you. This person will be helping you with some personal and private matters over the course of time and you want to make sure you feel comfortable with them. It’s important that you have a sense of trust with them and they explain legal requirements and ramifications in ways that you understand. It’s your time, money and life, so don’t rush into a decision or relationship or feel pressure to work with someone you don’t have complete faith in.