What is Elder Law?
Elder law is a relatively new specialization in the field of legal services. Elder law is a subcategory of estate planning that focuses on issues facing older adults. Elder law deals with things like retirement, financial planning, long-term care planning and Social Security.
Previous generations often had an easier time addressing the concerns of the elderly because family members often took them in during periods of illness or disability. With families no longer as close-knit and mobile as they once were, this is not always a viable option.
The demographics suggest a growing need for elder law lawyers in the next decade. The U.S. Census Bureau reports about 40 million people age 65 or older in 2010. This number is expected to grow to 72 million by 2030. In 2030, 1 in 5 Americans will be of retirement age.
One of the most important roles of an elder law firm is to explain the differences between government and private support systems. There are five basic types of support for retirees and disabled individuals: pension plans, Social Security, Veterans Administration benefits, Medicare and Medicaid. But Social Security and Medicare benefits are not enough to live on, even at the poverty level . Retirees typically get some amount of money from pension plans, perhaps $400 a month. Pension plans, Social Security and Veterans benefits can be supplemented with retirement savings plans, such as 401(k) plans or annuities. But many seniors do not have these plans and still need help.
Medicare is a safety net for those in crisis, but not a long-term support system. Medicaid coverage is limited to low-income individuals who meet certain other criteria. All seniors with limited assets are eligible to apply for Supplemental Security Income or SSI, to help with food, shelter, clothing, heat, water and non-medical remedial care.
The five types of retirement systems are interconnected, so one can affect others. For example, some assistance programs or benefits have income limits, which means eligibility is determined in part by income from other programs.
Each type of assistance program has its own application process. People who are denied assistance in one program can appeal the decision or seek to qualify for another benefit.
A licensed elder law attorney can help you to plan for the options that best serve you and your family.
Why Do You Need Elder Law Services in Your Area?
You have to look near and far for the services you need, but for Elder Law, they should be right next door.
While it is true that there are a myriad of elder law services that can be done remotely, the best way to utilize the services of an elder law firm is to have those services rendered in person. There is a level of comfort that comes with meeting your attorney in person, meeting the staff, touring the office buildings, and meeting the attorneys one-on-one, that only in-person visits can provide. Having a local elder law firm allows you to enjoy the convenience and comfort of having your attorney literally "in your backyard." You already have enough things to worry about; making a trip several hours away for legal services shouldn’t be one of them. Having a local elder law firm also offers you the benefit of supporting your local community. While a large national chain might not miss the money spent when you pay for legal services, your local firm will benefit from the money you paid to receive those services.
The Different Types of Elder Law Services
When considering elder law services, it is important to look at the range of legal issues that elder law attorneys are prepared to address. These areas more commonly include estate planning, long-term care planning, guardianship, Medicaid planning, and probate services.
Estate Planning
Estate planning generally describes the process of anticipating your personal and estate needs as you age. It can mean financial planning, property distribution, tax strategies or retirement planning, and can also include long-term care needs. Estate planning for elder law services often includes addressing the potential for incapacity and the need for care when the decision-making process becomes difficult or when you can no longer care for yourself or your real property.
Long-Term Care Planning
If you or someone you know is at the age where there is a concern about access to long-term care services either in the home or in a facility, then long-term care planning is an important elder law service to look into. This can include disability planning to ensure that one maintains the ability to remain in the home, or planning for the possibility of assisted living or nursing home care. Having these decisions made in advance avoids having them decided by a third party, and allows you to have input and control over your situation and affairs.
Guardianship
The need for guardianship of elderly parents or spouses is an elder law issue with which many people eventually become involved. Guardianship is the legal procedure whereby a person or persons are appointed to manage the affairs of a person who has become disabled or has lost capacity. Guardianship clients are often over age 65 and have a specific health-related need. Individuals needing guardianship are often afflicted by Alzheimer’s, dementia, stroke, traumatic injury, or other incapacity-related conditions. These individuals require the legal assistance of guardian attorneys to make their payments and appointments, and to take care of their property as well as business and personal relationships. Guardianship attorneys will first evaluate the situation, then recommend appropriate steps toward guardianship.
Medicare and Medicaid Planning
Elder law services often include Medicare and Medicaid planning, which is used primarily to help people prepare for and qualify for these programs’ financial assistance. The Medicaid program provides for long-term care and health care services, and is administered separately in each state. Long-term care is a growing problem for disabled individuals as well as the older demographic, and planning for Medicaid may involve protecting assets from depletion resulting from payment for long-term care, along with ensuring that the Medicaid application process is handled properly.
Probate Services
Elder law services also come into play in situations where an estate is being administered either during or after a person’s life. These are known as probate proceedings. Elder law probate attorneys assist clients in meeting all legal requirements in the probate process, if that process is necessary. This includes gathering information necessary to file the required pleadings, and the filing of all documents with the appropriate court.
Choosing Your Elder Law Attorney
When it comes to selecting an elder law attorney, there are several factors to consider:
Experience – You will want to choose an attorney who is not only experienced but also knowledgeable on the ever-changing laws that govern elder care. An attorney who has been in practice for an extended time and has substantial experience in elder law will often be the right choice. You should ensure that your elder law attorney not only specializes in Elder Law, but has extensive experience practicing with Elder.
Client Reviews – You should read any online reviews and ratings available for each elder law attorney you are considering. Client reviews are often a good indicator of how successful and professional an elder law attorney may be.
Comfortability – After you have met in person with each elder law attorney you are considering hiring, you should address how comfortable you feel around solicitors. It is important to choose an attorney that you feel comfortable with. This is a very personal decision that can affect your entire family.
What Questions You Should Ask at the Initial Consultation
Your first meeting should provide the opportunity to assess the attorney’s competence and character. This is your chance to determine if you feel comfortable working with the attorney and to test your impression of him or her. Consider bringing along a list of questions that you would like to ask the attorney, such as:
Are you a member of the National Academy of Elder Law Attorneys?
How long have you been handling cases like mine?
How many cases like mine have you handled?
Are you familiar with the programs available to pay for my care?
Are you member of the bar of any court where a guardianship proceeding may be brought?
Will I have a written fee agreement that will show the amount of your fee, how it will be charged, and other costs I can expect?
Do you regularly conduct client interviews, and will I regularly receive written progress reports regarding my case?
How often and how do you communicate with your clients?
Will I be able to contact you by telephone or email when I need to?
Do you have a formal complaints procedure?
How much will this matter cost?
Will anyone else be working on my case?
Does your office have a team approach to handling a case? Does anyone in your office specialize in this type of case?
What is your hourly rate and that of anyone else who will work on my case?
What retainer , if any, do you require before you start work on my case?
What is your policy on accepting and returning client files?
How much time do you think will be necessary to handle my case? Are there any likely problems that will extend the time needed?
During your visit, you should have the opportunity to gauge your initial impression of the attorney. Your comfort level and trust in the individual is essential. If you do not feel comfortable with the attorney and are unable to trust him or her with your affairs, it might be time to search elsewhere.
Licensure is important, and all elder law attorneys will be licensed to practice law in one or more states. However, being a member of the National Academy of Elder Law Attorneys (NAELA) offers an assurance of a certain amount of experience and education, and offers something additional to search for in your selection process. One word of caution: An elder law attorney may specialize in only a few aspects of elder law, such as Medicaid planning or special needs trust drafting. This doesn’t mean that he or she is anything other than a capable, knowledgeable attorney. It simply means that the particular aspect of elder law you need assistance with may be out of his or her area of expertise. In such a case, you should ask the lawyer to recommend an experienced colleague.
Cost of Elder Law Services
The cost of hiring an elder law attorney can also vary based on the types of services you need. In most cases, elder attorneys bill by the hour for their services. But certain types of services may be offered at a flat rate, such as drafting a will or getting power of attorney set up. Some attorneys may even offer case evaluations for free. One possible way to save on elder law services is to hire an attorney who offers a payment plan. This means that instead of paying the full amount up front, the cost of representation is split into manageable monthly payments. Additionally, some attorneys may offer some services at discounted rates for those who are disabled or are willing to negotiate. It’s important to know what will affect an attorney’s rate and whether your case will require you to spend more than the average person would on their legal services. For example, if you need to go to trial in order to settle probate issues, it may be necessary for you to work with a more experienced attorney than you would have otherwise needed. These more experienced attorneys oftentimes charge higher fees, but they may also be better at handling complex cases.
Finding Elder Law Services in Your Area
There are a variety of resources and strategies you can use to find elder law services in your area. Local bar associations often provide referrals to elder law practitioners, so that is a good place to start. The ElderLawAnswers website maintains a state-by-state list of resources. Another popular resource for finding elder law attorney’s is services like ElderLaw Answers, Nolo’s Lawyer Directory and Lawyer Legion .
If you are looking for a way to determine which attorneys in your area specialize in elder law, you can also search by your zip code on the National Academy of Elder Law Attorneys page. NAELA has an excellent free guide for choosing an elder law attorney if you would like to know more about the process.
The National Elder Law Foundation provides a comprehensive list of certified elder law attorneys in the country, but since certification is optional and not all elder law attorneys choose to be certified, chances are you will not find all of your options on this website.