Articles
What is Elder Law?
By Steven C. Perlis
It has been said that a lawyer who concentrates his or her practice in dealing with the problems of the disabled and the elderly can be recognized as much for style as for specialized knowledge. In fact it has been said, at the website for the National Academy of Elder Law Attorneys that:
“Rather than being defined by technical legal distinctions, elder law is defined by the client to be served. In other words, the lawyer who practices elder law may handle a range of issues but has a specific type of clients--seniors.
Elder law attorneys focus on the legal needs of the elderly, and work with a variety of legal tools and techniques to meet the goals and objectives of the older client. Under this holistic approach, the elder law practitioner handles general estate planning issues and counsels clients about planning for incapacity with alternative decision making documents. The attorney would also assist the client in planning for possible long-term care needs, including nursing home care. Locating the appropriate type of care, coordinating private and public resources to finance the cost of care, and working to ensure the client's right to quality care are all part of the elder law practice”.
There are many areas in which elder law attorneys practice, and the complexity of many of these areas is so great that often very few attorneys in a metropolitan or rural area will feel comfortable taking on these problems. Again turning to the NAELA website (www.naela.com):
“Legal problems that affect the elderly are growing in number. Our laws and regulations are becoming more complex. Actions taken by older people with regard to a single matter may have unintended legal effects. It is important for attorneys dealing with the elderly to have a broad understanding of the laws that may have an impact on a given situation, to avoid future problems. Unfortunately, this job is not made easy by the fact that Elder Law encompasses many different fields of law. Some of these include:
- Preservation/transfer of assets seeking to avoid spousal impoverishment when a spouse enters a nursing home;
- Medicaid; the use of a disability trust, both those using the disabled person’s assets and those created by third parties such as parents and friends or other family members
- Medicare claims and appeals;
- Social Security and disability claims and appeals;
- Supplemental and long term health insurance issues;
- Disability planning, including use of durable powers of attorney, living trusts, "living wills," for financial management and health care decisions, and other means of delegating management and decision-making to another in case of incompetency or incapacity;
- Conservatorships and guardianships;
- Estate planning, including planning for the management of one's estate during life and its disposition on death through the use of trusts, wills and other planning documents;
- Probate; both uncontested and contested
- Administration and management of trusts and estates, as well as various contested matters relating to their administration
- Long-term care placements in nursing home and life care communities;
- Nursing home issues including questions of patients' rights and nursing home quality, and transfer and discharge issues
- Elder abuse and fraud recovery cases, both inside and outside the context of an adult guardianship case
- Housing issues, including discrimination, home equity conversions, and reverse mortgages
- Age discrimination in employment;
- Retirement, including public and private retirement benefits, survivor benefits and pension benefits;
- Health law;
- Mental health law.
Most elder law attorneys do not concentrate in every one of these areas. So when an attorney says he/she practices Elder Law, find out which of these matters he/she handles. You will want to hire the attorney who regularly handles matters in the area of concern in your particular case and who will know enough about the other fields to question whether the action being taken might be affected by laws in any of the other areas of law on the list. For example, if you are going to rewrite your will and your spouse is ill, the estate planner needs to know enough about Medicaid to know whether it is an issue with regard to your spouse's inheritance.
Attorneys who primarily work with the elderly or younger disabled persons bring more to their practice than an expertise in the appropriate area of law. They bring a knowledge of the elderly and younger disabled persons that allows them and their staff to ignore the myths about disabilities and the aging process. At the same time, they will take into account and empathize with some of the true physical and mental difficulties that often accompany the various conditions. Their understanding of these disabilities allows them to determine more easily the difference between the physical versus the mental disability of a client. They are more aware of real life problems, health and otherwise, that tend to crop up as a person ages or suffers from a disability. They are tied into a system of social workers, psychologists and other elder care professionals who may be of assistance to the client or the client’s family.
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