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.
Importance of a trustworthy attorney
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.
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:
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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 Your Attorney
Scroll down below to see the 12 questions and reasons to ask them before hiring an attorney to handle any elder law needs!