Elder Law Fundamentals
Elder law is a broad and relatively young area of the legal profession that uniquely focuses on a combination of issues commonly affecting the elderly, their families, and caregivers. Its coverage includes estate planning; federal and state laws regarding long-term care and disability concerns; guardianship, conservatorship, and long-term care policies under Medicare; Medicaid, and long-term care insurance. It draws from various disciplines, including inheritance and tax, trusts, durable powers of attorney, and others. Most elder law attorneys are general practitioners who possess the knowledge to address the entire range of issues faced by seniors. While the role of an elder law attorney is to offer a wide variety of choices and solutions for seniors, many general practitioners do not have the requisite knowledge to fully cover this intuitive area of law, and instead refer clients elsewhere. An elder law attorney, therefore , should be viewed as a lawyer who possesses the ability to counsel clients in all areas of their lives and refer them to the appropriate specialists when necessary. Elder law and special needs law generally cover:
• Retirement planning
• Advance Care Planning
• Social Security
• Medicare
• Medicaid
• MediCal
• Supplemental Security Income (SSI)
• Guardianships/Conservatorships
• Powers of Attorney
• Living Wills/Advance Directives
• Asset Protection Planning
• Special Needs Trusts
• Asset Preservation Strategies
• Nursing Home Issues
• Asset Management
• Long Term Care Insurance
• Wills and Trusts
• Estate Settlement Issues
• Disability Planning
• Crisis Investing Issues
• Guardianships
• Conservatorships
• Probate
• Estate Taxation
• Military Personnel
• Spousal Impoverishment Protections (under Medicaid)
As the baby boomer generation continues to age in the United States, elder law will increasingly gain importance. The growing number of seniors and their families care more than ever how these issues affect their lives.
Determine What You Need Regarding Elder Law
The most common legal needs that an elder law attorney addresses are estate planning, elder abuse or related issues, and Medicaid planning. These are areas that often need to be considered so that proper planning can be undertaken for the future. Other areas of law that are often needed for a senior are guardianship, conservatorship, and trust administration.
Estate Planning is of course the drafting of Wills, Trusts, and Powers of Attorneys which allow you to dictate your wishes and intentions for how your property will be administered and who will do the administration after your death.
Elder Abuse is a very real issue and each situation is unique. Whenever an elder is being taken advantage of or abused physically, financially, emotionally or makes reports to that effect, it might be necessary to do an elder abuse analysis to determine how to best protect a vulnerable adult.
Medicaid Planning is also a broad spectrum of legal issues that require a great deal of knowledge of the law and expertise and should be undertaken with a knowledgeable elder law attorney.
Guardianships, Conservatorships, and Trust Administration are essentially the same area of need by the elder law client. These situations require the court’s involvement to either appoint a person to serve as guardian or to determine the validity of a prior created Trust. These areas of law are inapplicable when you have proper trust planning in place.
Gather All Appropriate Paperwork
Once you’ve made the important decision to consult with an Elder Law Attorney, it is best to be prepared with all of the necessary documents. Gathering a comprehensive collection of these documents can assist your attorney in providing you with the best advice for your particular needs. To determine which documents are relevant to your needs, you should answer some basic questions: If you are handling a matter involving a disabled adult, the first thing to do is to collect any estate documents to determine what authority you have regarding that person’s financial and/or health care decisions. If your loved one already has a will and power of attorney documents, bring copies of those documents with you to your meeting. It is also advisable to obtain copies of his or her medical records and a current prescription list. You will need to gather the necessary documents and information, including current bank statements for checking and savings accounts, current statements for brokerage accounts, retirement and/or IRA accounts, current house deed and mortgage information, and an up-to-date life, disability and/or long term care policy, if applicable. A current income tax return and a list of any other real property and vehicles should also be brought to your initial meeting. If your loved one has a business or holds stock in a business, you should also bring any business agreements and/or stock certificates. Once you have determined the general topic of your meeting with your attorney, you should collect any and all relevant documentation in advance and be prepared to discuss your options.
Prepare Questions to Ask an Attorney
When considering an elder law issue, and you want to meet with an attorney, you will be spending a lot of time preparing necessary documentation. However, you should also spend some time preparing questions for the attorney. Of course, your first few questions should focus on fees. If you are getting assistance on your estate planning, how much will they charge? How long will it take, and when do they want payment? Do they require you to prepay for their services? When they quote a fee for a simple will, that is usually for a plain vanilla version. There are many different versions: do you want a simple will, pour-over trust , revocable trust? Will you need the services of a financial advisor?
Your next questions should focus on the elder law attorney’s experience with elder law matters. Has the attorney handled issues similar to yours? What strategies do they typically use? Do they have a working relationship with other professionals such as an accountant, financial planner, Medicaid caseworker, or other attorneys? Does their research indicate that some of your goals can be achieved without the unique elder law planning you are seeking? Are there alternative strategies that may help achieve the same goal at a lesser expense or with less work involved? Do they foresee any special challenges for your particular situation?
Finally, you may want to ask what the attorney believes are the top 5 things an individual or family should do to prepare for a meeting with an elder law attorney.
Think About Your Long-Term Considerations
For those with a family, it is also important to understand how your long-term goals can impact other people. While you may not necessarily wish to share your goals with them, it can still be useful to have a conversation with them so that they can help you think through the issues and make sure you are not overlooking anything important. A good elder law attorney will also be able to guide you through how to deal with your long-term plans and make sure they do not contradict your own goals or the advice you will be given. If your long-term goal is to have the majority of your wealth passed on to your children, some of your other decisions could hinder that objective, even if that is not your intent.
Set the Agenda for Your Meeting
Be realistic about what you want to accomplish in the meeting. I tell people all the time that in one hour we cannot answer every question they have about two hundred million topics. The main reason is because the topics are highly interrelated. For example, if you need a power of attorney and have been told by your banker that a durable power of attorney will not work for you , then who needs the health care surrogate? You have to do some research into the banking issue before you can tackle the second issue.
Don’t over-schedule the meeting. We recommend that you try to keep your meeting to no more than an hour or so in order to allow us to give proper attention to your case or concern. It is best to schedule the longer meetings a week to ten days out as this allows us to pull together information and do some research to answer your questions.