Elder Law Explained

Elder Law Explained

Overview

Elder law is not a well known practice area in most circles. The point of these posts will be to explain what elder law is and why it is important for aging people to know what their options and needs are when it comes to elder law representation. So let's get started.

Elder law is a niche law practice focused on catering to the specific needs of the elderly. The most common needs that arise are Medicaid planning, general estate planning, family law issues, guardianship, and elder abuse and neglect. Each area has special nuances when it comes to meeting the needs of elderly clients. I'll briefly address each area below. Some will get a more detailed treatment in later writings.

Medicaid Planning

Medicaid planning is probably the most well known aspect of elder law practice. Medicaid planning essentially entails managing your assets so that you are able to apply for Medicaid coverage in the even that you have to go into a long–term care facility (which Medicare does not cover). Medicaid, being a program meant for the poor, has very strict financial means testing that you have to meet in order to receive benefits. If you have assets, you may have to spend down those assets before Medicaid will cover time in a nursing home. Most people don't want to spend the money they worked hard to gain throughout their lives paying for their time in a nursing home, so planning ahead is incredibly beneficial. There is one major caveat though—certain types of transactions done within five years of the Medicaid application can trigger a massive penalty. If you intend to do Medicaid planning, do not try to do it without an elder law attorney to help you. It can get very messy, very fast.

General Estate Planning

Estate planning can be a wonderful tool to keep the people you love from having to deal with mountains of irritation in probate. I've wrote a few posts on estate planning, which I will link below. Usually, estate planning involves using a combination of your will, deeds, and trusts designed to limit the need for a full probate.

Family Law Issues

Elderly people get married and divorced just like everyone else. In some cases, the need for a prenuptial agreement or solid property settlement is much more dire as government benefits can be an issue. Elderly family law is similar to traditional family law in a lot of ways, but extra care needs to be paid to Medicaid eligibility, social security issues, employee benefits (and the need for QDROs), and future estate planning for blended families.

Guardianship

Guardianship is not a fun topic but it is important within the sphere of elder law. Sometimes our elderly loved ones simply become unable to take care of themselves. Sometimes it's a physical disease that limits their abilities, other times it's simple a byproduct of aging. In any case, there are times when a guardianship becomes the only viable way to take care of a loved one. Guardianship is a big topic, but the basics are that you can be a guardian of a person's property (meaning you control their finances) or you can be the guardian of the person (meaning you make important decisions on their behalf). Both are significant undertakings and should not be taken lightly.

Elder Abuse and Neglect

This is where things get contentious. The elderly are often likely to fall victim to both physical and financial abuse from family members, guardians, friends, or neighbors. Occasionally a nursing home will be neglectful and small health issues will spiral into much bigger problems. These cases can turn into protracted litigation and are best handled by litigators well versed in elder law issues.

Conclusion

So there you have it. An explanation of what "elder law" is and what an attorney focusing on elder law does for his clients. Of course, this is just a broad overview. I will try to dive deeper into the individual topics in later writings.