Finding the right attorney becomes increasingly important as people age. Estate planning and long-term care needs are something many seniors start to think about, especially after they retire. By having an attorney who understands elder law and risks facing seniors, you can ensure your finances and estates are protected. Each elder law attorney has their own specialization, so seniors or those caring for them should conduct research to ensure the attorney can help with their unique situation before deciding to work with one. Asking the right questions can help you find an attorney who understands the specific issues you are facing and can adequately provide for your needs.
An experienced elder law attorney should be able to help with these common senior issues:
- Social Security and disability claims.
- Medicare and Medicaid claims.
- Tax and estate planning.
- Elder financial planning.
- Elder abuse and fraud claims.
- Creating living wills and trusts.
- Handling probate and estates.
- Age discrimination cases.
- Long-term care placement and issues.
This list is not exhaustive, and each attorney will have their areas of expertise. Knowing what areas of senior law an elder law attorney specializes in can help you decide if they are the right person for the job.
Unfortunately, there are some people out there who try to scam seniors out of their hard earned savings, even attorneys. Many seniors get taken advantage of because they are vulnerable to the tactics con artists use to manipulate them into providing money or information that can cause harm. By asking an attorney the right questions, seniors and caregivers can avoid hiring one who does not provide sufficient legal services or takes advantage of the elder community. Knowing what to ask means seniors can find an elder law attorney who puts their best interests first.
Importance of a trustworthy attorney
The most important thing when looking for an elder law attorney is finding someone trustworthy. An attorney will have access to all of a senior’s personal information, including financial and legal matters. They will most likely work with their attorney until their death, especially if they are choosing one later in life. The key to a happy and successful client-attorney relationship throughout the retirement journey is trust, as an attorney has access to their client’s most personal data.
As people age, they might lose some of their cognitive awareness or mental capacity, inhibiting their ability to make decisions. So it is vital that the client-attorney relationship be built on a foundation of trust. A trusted lawyer can offer their services and act as an advocate when important decisions are on the line as they often have access to a senior’s banking information, estate planning details, and will.
An elder law attorney’s expertise should help their aging clients understand how to handle any issues that come up and help them when needed. From Medicare payments to last will and testament documents, an elder law attorney has the knowledge and experience to help protect their clients.
Different legal areas an attorney should be experienced in
Elder law encompasses a range of areas, and not all attorneys will be well-versed in every one of them. Some of the legal areas an elder law attorney may have expertise in include:
Estate planning
A lot goes into estate planning, and it is a major area of importance for seniors and something of which an elder law attorney should have a good grasp. They can create legal documents that provide guidance for family members and caregivers, such as:
- Advance directives: An advance directive is a legal document that provides guidance on medical care issues that arise when a person is no longer able to communicate their wishes. An attorney can assist their client in creating clear advance directives to ensure their heirs comply with their instructions.
- Power of attorney: A power of attorney is a document appointing someone who can act on another’s behalf. This lets them make decisions for that person as specified in the power of attorney document.
- Health care power of attorney: With a health care power of attorney, seniors can appoint someone who can make medical decisions for them. This person will not have the ability to make financial decisions, and the attorney can set limitations on their power per the client’s requests.
- Wills: Creating a will is important for the elder community, and an elder law attorney can ensure this gets done accurately. This document will describe how a person’s assets and belongings can be divided among their heirs.
- Living wills: Living wills are documents that tell others how a person wants to be handled in the event of an emergency. This is mainly regarding emergency medical treatments and does not provide directions for personal assets or items.
Other aspects of estate planning that an elder law attorney can help with are estate tax and gifting. Understanding what their heirs will pay in taxes on their estate can allow seniors to plan for this in their will and other documents they create with their attorney. Some seniors may benefit from gifting some of their assets to their loved ones before they pass away, and an elder law attorney should provide capable guidance on this topic.
Probate
Probate is a legal process where an executor oversees the distribution of a person’s estate according to their will. If an individual has a clear will that devises their estate with no questions or problems, the probate process can go quickly and smoothly. Some assets can even avoid going through probate altogether. The probate process and rules vary by state, so having an elder law attorney who understands how probate works in your specific state can benefit you greatly.
Retirement
An elder law attorney will understand how retirement plans work as well as the benefits that go along with them. They should be familiar with 401(k)s and IRAs, including how and when to disburse funds from these accounts, and how to handle any discrepancies in the timing or amount of payouts.
Guardianship
In some cases, a senior may not have the ability to care for themselves. A Court might appoint a guardian — someone who is responsible for caring for the incapacitated individual. This person may have to ensure the senior gets their medications or help them with daily living tasks. In advance of such unfortunate circumstances, an elder law attorney can help a senior choose someone they trust to be their guardian if the need arises, or advocate to have a qualified guardian appointed once the senior can no longer handle daily tasks on their own.
Social Security
Government benefits such as Social Security and other disability insurance programs can be difficult to navigate. Having the right attorney can help a senior if they need to make claims against the federal government relating to issues with their Social Security or disability benefits. They can also appeal any decisions the Social Security Administration or Court makes, which is often necessary in cases that involve government agencies. An attorney can assist a senior in understanding when they can take Social Security and what their benefits will be.
Long-term care planning
Long-term care planning is another big issue for seniors. As people age, they begin to consider who will care for them when they are not able to do certain tasks on their own. An elder law attorney can help someone who is older make a plan for how they want to live later in life. They can help seniors decide whether they are capable of independent living or if they require assisted living or a nursing home.
Clients with long-term care insurance may need help receiving payouts, but those without it may need an elder law attorney assist in obtaining long-term care insurance. This coverage can help seniors nearing retirement help pay for costs associated with long-term care.
Unfortunately, some care facilities for seniors may discriminate because of a person’s age or economic status. Fighting housing discrimination for seniors is another area that most elder law attorneys should understand. They can help ensure their clients are treated fairly regardless of their age, medical condition, and financial status.
Financial planning
Once seniors retire, their financial planning often shifts from accumulating wealth to ensuring their expenses are covered until their death. They need to decide how their loved ones will pay for their living expenses, especially if they have to live in an assisted living community or a nursing home. Even older adults who are capable of living independently need to plan for paying people to come to their homes to assist them with daily tasks.
Part of a senior’s financial planning should include paying funeral expenses and determining how to distribute their assets after their death. Using an attorney’s services can alleviate some of the stress of dealing with these difficult issues as the contracts surrounding these items may be confusing. Attorneys can ensure their clients include these things in their financial planning strategy so that there are no questions about anything when they are gone.
Medicaid/Medicare
Many seniors rely on the help of Medicaid or Medicare to cover some of their medical expenses. With these programs come many laws regarding compliance, claims, and appeals. A senior who experiences issues with Medicare or Medicaid payments may need the help of an elder law attorney. These professionals can navigate the complexities of these programs to help seniors resolve issues they might encounter when relying on them for assistance.
Elder abuse
Unfortunately, there are some individuals who mistreat and abuse the elderly. This can happen in their own home or when they are in a nursing home or senior care facility. They also need protection from other mistreatments, such as fraud. Seniors are often the target of scams where someone is attempting to get their banking information or other personal data. The right attorney can help their client take steps to prevent such abuse or seek justice for wrongdoing if it happens.
Veterans benefits
Many seniors have served in a branch of the United States military, and as such, they are awarded veterans benefits. These benefits may include medical care and disability insurance, among others. Getting the benefits they deserve should not be challenging for those who have served, but the reality is that sometimes it can be complicated or take a long time for veterans to receive benefits. A senior who has a talented elder law attorney may have a better chance of having their veterans benefits issue resolved.
Age discrimination
A senior who is still working or wants to work may face discrimination due to their age. Employers want to hire those who can stay with their company for years to come, and a senior in retirement age may seem like a risk. Despite this, it is illegal to discriminate against someone based on their age. A person who faces legal issues because of age discrimination may seek an elder law attorney to help them prove discrimination and prevent it from happening to others in the future.
Special needs trusts
The right attorney will be familiar with creating special needs trusts. These trusts allow a person with mental or physical disabilities to receive pay without affecting their government assistance programs. A senior can set up a special needs trust to ensure their loved one with special needs will live comfortably. The trust can contain assets and needs a grantor to oversee the disbursements.
Asset protection
Seniors who have accumulated wealth may want an attorney who is familiar with asset protection planning. Including this in their financial planning strategy can protect seniors from losing their assets to creditors or disqualifying them from benefits programs. An asset protection plan could prevent creditors from taking certain assets in the event of a default on payment. This might be beneficial for seniors who forget to make payments due to cognitive loss or dementia.
12 questions to ask an attorney before hiring them for your elder law needs
Here are 12 questions and reasons to ask them before hiring an attorney to handle any elder law needs:
Are you certified in elder law by [state] bar association or a national bar association?
Asking this question can tell you if an attorney has the legal right to take law cases in your state. Because the law varies so much by state, it is important to ask a potential attorney if they are certified specifically in elder law by the state’s bar association. They may also be certified by a national bar association in addition to having their state certification.
How much experience do you have working in elder law?
The experience an elder law attorney has can determine their ability to help their clients. A more experienced professional will understand how to work with cases related specifically to issues common among seniors, such as receiving payments for retirement benefits or handling abuse situations. Knowing examples of the work performed bu an attorney who specializes in elder law can help you decide if they have the knowledge and experience to meet your needs.
Do you specialize in only one area of elder law or several?
Because there are so many areas of elder law, it is important to know if an attorney specializes in a certain aspect of the law involving seniors. This can determine whether the attorney has the right skills to work with you or your loved one. It might be beneficial to have an elder law attorney who has knowledge of multiple areas of elder law because they can help with a variety of needs, including the review financial plans, creation of legal documents, and estate planning. They can provide guidance for end-of-life planning and distributing assets as well, depending on their knowledge and experience.
In general, seniors need to get specific with an attorney about their needs. This is the best way to determine whether they have the skills and specialization to help them achieve their goals. Someone who has issues getting their veterans benefits should find an attorney who has experience working with the U.S. Department of Veterans Affairs. In comparison, a person who needs a will and power of attorney documents may not need an attorney with that area of specialization. The attorney’s areas of expertise need to match the needs of their clients.
In what area of elder law do you frequently work?
This question can help you learn what area of elder law the attorney has the most familiarity. An elder law attorney who primarily handles Medicare and Medicaid issues may not have the experience to take on an elder abuse case. Each attorney will have their specialties, and within those, they may specialize even further to mainly work on one type of case or with a single issue that seniors face, such as fraud claims. They may also be a great source of referrals to other attorneys that may be better suited for your specific needs.
How frequently do you handle cases like mine?
It is good to know how frequently an attorney has worked on cases similar to yours. An elder law attorney may still be a good candidate even if they do not work on similar cases frequently if they have a lot of experience and have worked on similar cases in the past. However, an attorney who has no experience with similar cases may not be the best fit.
Can you describe your familiarity with [state] and federal elder laws?
In asking this question, you can judge the experience level of the attorney and how well they know their profession. You should have some familiarity with your own case, so you may gain confidence in the attorney based on their answer. If an attorney cannot answer this question or if the answer does not match what you already know, it could be a red flag that the attorney is not familiar with relevant laws.
Are you up to date on the latest Medicaid and Medicare laws?
Millions of seniors rely on Medicaid or Medicare to supplement their medical costs, so a good elder law attorney needs to stay up to date on issues surrounding Medicaid and Medicare. These are both government programs, so they can be challenging to work with when seniors need help. Some seniors may be at risk of losing their benefits while others could be struggling to get coverage. Knowing the current laws and regulations can help an attorney navigate a case and find solutions.
Will you oversee my case or will it be delegated to another attorney or group of attorneys?
An attorney with a large practice may delegate some of their cases to another attorney or group of attorneys they work with. A senior needs to know who will oversee their case because they may not want to work with a large firm, preferring a more individualized approach. However, working with a larger attorney’s office provides the benefit of using the resources and talents of more people. These agencies can potentially match a case to an attorney who can work it successfully.
Have you ever had disciplinary action taken against you by your state bar association? If yes, when and for what?
You can ask your potential attorneys about disciplinary action against them to learn how they handle themselves and better understand their reputation. An attorney with several marks against them could have a bad reputation, meaning that they are not well-liked in the community. This could have a detrimental effect on a case. If an attorney had disciplinary action taken against them early in their career but has avoided this for many years, it may be nothing to worry about. More recent disciplinary action could be a bigger concern, and you should inquire about the reason for the infraction.
What are the training requirements for any paralegals who will participate in my case?
Many attorneys use paralegals to help them prepare for cases and keep materials organized for when they appear in Court. Asking about training requirements for paralegals gives you insight into how well your case might be handled. Paralegals should have certification and education directly related to senior issues. Attorneys should tell potential clients the specific number of training hours paralegals need to work a case.
What are your fees?
It is important to know exactly what an attorney charges for their services. A written fee agreement that details charges for specific services can provide clarity so there is no confusion when a bill is due. This agreement should also detail policies regarding emails, telephone conversations, after-hours communication, and in-person or online meetings, as these factors can cause confusion when it comes to how they are billed and the rate.
Some attorneys charge:
- Flat rates: A flat rate is an amount due to an attorney for their services regardless of the outcome of the case.
- Hourly rates: Some attorneys charge an hourly rate that is due for every hour they work on the case regardless of the outcome.
- Contingent rates: Contingent rates are those that only get paid if the attorney successfully wins or settles the case and are typically a percentage of the awarded amount.
- Mixed rates: An attorney may charge mixed rates, where some services are billed by the hour but they still take a percentage of the total award if the case is successful.
Do you have informational material you can offer related to my case?
An elder law attorney will have access to information about current elder laws that apply to cases their clients bring to them. Try to request as much information as you can get, as it can be difficult to remember everything discussed when speaking to an elder law attorney for the first time. Attorneys should happily provide you with the information they have that relates to your case or be willing to direct you to resources where you may obtain additional information. The more information an attorney offers, the better prepared they are to understand your needs.
Sources:
Advance Care Planning: Advance Directives for Health Care. Retrieved from
https://www.nia.nih.gov/health/advance-care-planning-advance-directives-health-care
American Bar Association. Power of Attorney. (2023). Retrieved from https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/power_of_attorney/
American Bar Association. Giving Someone a Power of Attorney for Your Healthcare (multi-state and form guide). (2023). Retrieved from https://www.americanbar.org/groups/law_aging/resources/health_care_decision_making/power_atty_guide_and_form_2011/
National Institute on Aging. Preparing a Living Will. (2023). Retrieved from https://www.nia.nih.gov/health/preparing-living-will
American Bar Association. The Probate Process. (2023). Retrieved from https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/the_probate_process/
Eghrari Wealth Training Law Firm. How Elder Law Attorneys Help You Save for Retirement. (2023). Retrieved from https://www.myestateplan.com/how-elder-law-attorneys-help-you-save-for-retirement/
Investopedia. Understanding a Special Needs Trust and Its Benefits. (2022). Retrieved from https://www.investopedia.com/terms/s/special-needs-trust.asp
American Bar Association. Asset Protection Planning. (2023). Retrieved from https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/asset_protection_planning/
Cornell Law School. attorneys fees (or attorneys’ fees). (2023). Retrieved from https://www.law.cornell.edu/wex/attorney%27s_fees_%28or_attorneys%27_fees%29
Cornell Law School. contingency fee. (2023). Retrieved from https://www.law.cornell.edu/wex/contingency_fee
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