Elder Law FAQs

Although the elderly have always faced unique legal needs and issues, when the population of older Americans began to swell several decades ago the need for attorneys who focus on those needs and issues grew as well. As a response to that need, a new area of the law known as “elder law” began to evolve. Unlike other areas of specialty, however, elder law does not involve an in depth knowledge of one specific area of the law, such as criminal law. Instead, elder law involves understanding the legal needs of the elderly as well as how various areas of the law impact the elderly and those who care for them.

An elder law attorney might handle a wide variety of different legal matters; however, some of the more common legal issues that impact the elder include:

• Petitioning for, or objecting to, guardianship
• Appealing a denial of disability
• Housing discrimination
• Creating or updating an estate plan
• Retirement and financial planning
• Medicaid planning
• Nursing home abuse
• Applying for, or appealing a denial of, veterans benefits
• Funeral and burial planning
• Preparing advance directives

Every year, millions of family members and other loved ones provide billions of hours of unpaid care for the elderly. Those caregivers face a myriad of emotional, financial, and legal problems as a result of their selfless giving. Caregivers frequently need assistance from an elder law attorney for things such as securing government benefits, petitioning for guardianship, or knowing what to do after an Alzheimer’s diagnosis.

One of the most important components of an estate planning for anyone near, or at, retirement age is long-term care (LTC) planning. The odds of needing LTC are high, and the cost of that care prohibitive for the average person. Moreover, neither the average health insurance plan nor Medicare will pay for LTC expenses. Unless you can afford to pay out of pocket you will likely find yourself turning to Medicaid for help. To be eligible, however, you must contend with very low “countable resources” limits that can put your retirement nest egg at risk if you failed to plan ahead. An elder law attorney can help you incorporate LTC planning into your estate plan by including Medicaid planning tools and strategies in your comprehensive plan.

One of the most difficult decisions you will ever have to make as an adult child is the decision to petition for guardianship over a parent. It may feel as though you are taking away a parent’s independence and freedom. Failing to act, however, could put your parent at risk for serious injury or for becoming the victim of elder financial exploitation. Becoming your parent’s guardian may be the best way you can protect him/her. An elder law attorney can help you decide if guardianship is necessary and, if so, can help you through the process.

Sadly, elder abuse and neglect is a very real problem in the U.S. Although accurate figures are difficult to come by, conservative estimates tell us that one in ten seniors will be the victim of elder abuse. Worse still, a family member is the perpetrator about 70 percent of the time. Nursing home abuse and neglect, however, also occur far too often. Elder abuse of any kind is a crime; however, it can also form the basis of a civil lawsuit. If you suspect that a loved one is the victim of elder abuse, it is imperative that you act on your suspicions immediately. An elder law attorney can help you to report your suspicions and discuss the legal options you have.

Discussing end of life issues is not something most people want to do; however, from a legal standpoint it is something that should be done well ahead of time. If you have strong beliefs about end of life medical care, the disposition of your body after death, and/or the type of service held in remembrance of your life, you should consult with an elder law attorney to ensure that those wishes and beliefs are honored. If you fail to plan ahead, your loved ones could end up in a protracted court battle over the right to make healthcare decisions for you. Conflict may also erupt after you are gone if loved ones cannot agree on the details of your funeral and burial. Executing an advance directive and including a funeral planning component in your estate plan can prevent the possibility of conflict and litigation as well an ensure that your final wishes are honored.