The Role of Elder Law Attorneys

By Lawrence A. Frolik

Many clients have heard of “Elder Law,” but not many are aware what it is or how an elder law attorney can help them. The short answer is that elder law attorneys help their clients with later life legal problems. Just as older clients have unique financial issues, so do older individuals have age-related legal problems.

Elder law is growing.  Over 12,000 Baby Boomers turn age 65 every day. By 2030, 20 percent of Americans will be age 65 or older. And folks are living longer past age 65. Today the average woman at age 65 can expect to live another 20 years; the average man, 16 years.

The growing number of elderly takes place against a backdrop of less family support. The elderly have fewer children and are less likely to live with them. For many, divorce lessened the children’s sense of commitment.

As family support has ebbed, public assistance programs have stepped in. Some like Social Security provide benefits that don’t require an attorney’s assistance. But other benefits, such as Medicaid, which pays for long-term care in a nursing home, are complicated. Often the assistance of an attorney is needed for the individual to obtain or maximize benefits.

The increasing ownership of wealth by the elderly has led to concern about asset preservation during life and wealth transfer at death while maintaining an adequate life-style during the long, last years of life. Elder law attorneys and financial advisors both have a role to play in addressing these concerns.

With more individuals living past age 80, there are increasing numbers of elderly suffering from with dementia. Elder law attorneys can help individuals create a plan in the event that they should become demented. Older individuals need to plan for who will make the decisions for them in the event that they lose mental capacity. In particular, elder law attorneys help individuals plan for asset management by the use of revocable trusts and powers of attorney.

Elder law attorneys take a holistic approach to clients. They focus on the client’s quality of life with the goal of preserving their client’s autonomy and creating a life that embodies the client’s wishes and values. One of the most critical issues is helping a client plan for who will make health care decisions for them if they lose the mental capacity to do so. The creation of a living will is a start. But every older person should name a substitute health care decision maker and instruct that person as to what kind of medical treatment they want as they approach the end of their life.

Unfortunately not all elderly will have made appropriate plans. For them and their families, the assistance of an elder law attorney is invaluable.

If the individual suffers from a loss of mental capacity, usually due to Alzheimer’s or other forms of dementia, the elder law attorney can assist with petitioning a court to appoint a guardian to supervise the person and their property. The attorney can advise who should be appointed guardian and later assist the guardian to carry out the duties of a guardian in a way that best promotes the interests of the incapacitated person.

Elder law attorneys also provide advice on how to obtain quality long-term care for an older person. To assist in that endeavor, many elder law firms employ nurses or geriatric social workers to help families to find appropriate care and to monitor the needs and the quality of care of an older person who needs daily care because of their mental or physical condition.

Assisting clients to pay for long-term care is a significant part of the practice of many elder law attorneys. They are knowledgeable about when long-term care insurance is desirable and how to use trusts to protect assets Most importantly, an elder law attorney can help a client become eligible for Medicaid to pay for long-term care while preserving as many assets and income for the spouse and other family members.

Elder law attorneys also engage in estate planning. As the federal estate tax impacts fewer clients, estate planning has become more focused on the distribution of the estate, that is, whether the beneficiaries are capable of handling a bequest. Moreover, as individuals live longer, many have children who are relatively old. For example, an 85-year-old may have children older than age 60. Even the grandchildren might be at least age 35. Leaving a bequest to a mature adult raises questions. The attorney who is assisting the 85-year-old write a “final” will must advise the client to consider carefully the needs and capabilities of the beneficiaries. In many cases, the client will conclude that some of the beneficiaries should not receive a bequest outright but only in a trust arrangement. For example, a 55-year-old child who has just come out of bankruptcy may be best served by being the income beneficiary of a lifetime trust.

Some beneficiaries have special needs, perhaps because of a developmental disability.

Because elder law attorneys are knowledgeable about governmental benefit programs, such as Medicaid and Supplemental Security Income (SSI), they can apply that knowledge to assist an older client or a family to plan for the needs of someone with special needs. For example, a grandmother may want to help a young grandchild who has very limited intellectual ability. An elder law attorney should know how best to leave a legacy to the grandchild that will have improve the grandchild’s quality of life and also preserve the grandchild’s right to government benefits. Similarly, many parents of children with special needs turn to elder law attorneys to help plan a stable financial future for their child.

Many elder law attorneys work with personal injury lawyers. Many injured plaintiffs receive large settlements that they are unable to manage because the injury diminished their mental capacity. Examples include injuries at birth, accidents to a minor, or brain trauma suffered by an adult. In such cases, the settlement or judgment is paid to a special needs trust that is designed to improve the quality of life of the injured party while preserving critically needed governmental benefits, particularly Medicaid. Elder law attorneys are frequently asked to draft these special needs trusts and to advise and monitor the trustees.

Today, elder law attorneys are an essential part of the team of advisors that includes financial advisors, accountants and those knowledgeable about available insurance products. Working together, these professionals can help their clients achieve the highest quality of life.

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