Do You or a Family Member Need to Hire an Elder Law Attorney?

Avoid costly mistakes by hiring an elder law attorney

A senior couple at home using a computer.
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Elder law issues can be complex. One wrong word or move can mean the difference between a good result and disaster should you become incapacitated or if other unexpected issues should occur in your senior years. An elder law attorney can help you plan for what will happen if you should become mentally or physically incapable of taking care of yourself and your own personal business matters.

It's Not Just About Dying

Elder law isn't the same thing as estate law, although they cover some of the same issues. Elder law addresses your finances and property in such a way as to best provide for you and your family while you're still alive. Your estate, on the other hand, is what you leave to your loved ones when you die and how you leave it to minimize probate complications and potential estate tax liabilities.

Numerous options are available to adjust as economically and efficiently as possible to plan for all eventualities. For example, a revocable living trust can be set up for someone else to take over management of your assets if a time comes when you can no longer do so yourself.

An elder law attorney can explain these options to you so you can have a plan in place for such an eventuality.

Medicaid Issues

Medicaid imposes some strict guidelines for eligibility should you ever need long-term care. Benefits are income- and asset-based, but you can't just give away everything you own to qualify if you suspect you might need this type of care sometime in the imminent future.

"Spend down" rules and a five-year "look back" period pull assets or money back into your ownership for qualifying purposes if you attempt to transfer them to others. An elder law attorney will be familiar with these rules and can guide you in advance in the unfortunate event that you eventually need long-term care.

Sorting Out Complex Family and Financial Situations

Take a look at your life and your assets to see if you fit into one or more of these situations that can impact your finances:

  • You're in a second (or later) marriage
  • You own one or more businesses
  • You own real estate in more than one state
  • You have a disabled family member or you've become disabled
  • You have minor children
  • You have "problem" children
  • You don't have any children
  • You want to leave some or all of your estate to charity
  • You have substantial assets in 401(k)s and/or IRAs
  • You were recently divorced
  • You've recently lost a spouse or other family member
  • You have an incapacitated spouse in need of long-term care
  • You have a taxable estate for federal and/or state estate tax purposes

You'll need the counseling and advice of an experienced elder law attorney to assist with your future plans if one or more of these situations apply to you. Otherwise, your state, an ex-spouse, or the Internal Revenue Service might receive control of or the largest chunk of your assets.

State Laws Determine Elder Law Rules

State laws are very specific about what can and cannot be included in a will, trust, advance medical directive, or financial power of attorney. These laws control who can and cannot serve as a personal representative, trustee, health care surrogate, or attorney-in-fact under a power of attorney.

They dictate who can and cannot be a witness to your will, trust, or medical or financial power of attorney, and what formalities must be followed when you're signing a will, trust, or medical or financial power of attorney.

Even though Medicaid is a federally authorized program, states are tasked with administering Medicaid at their local levels. The laws and rules governing Medicaid can vary significantly from state to state.

Working with a qualified elder law attorney can avoid simple and yet very costly mistakes if you or your loved one aren't intimately familiar with the specific laws in your state. A simple assumption that doesn't turn out to be true can leave your plans in shambles.

How Much Will a Lawyer Cost?

That old Latin saying “caveat emptor” or “buyer beware” certainly applies to elder law matters if you're thinking of handling things yourself with a little store-bought assistance.

You might think that you'll save a few dollars by filling out that Medicaid application on your own or using forms found on the internet, but your family could be in for a rude awakening if they later learn that you won't qualify.

Part or all of your will, trust, or medical or financial power of attorney might not be legally valid or won't work as anticipated if you attempt to create them yourself or with the help of some generic, one-size-fits-all software. You and your family could end up spending thousands of dollars more to fix unnecessary mistakes than what a qualified elder law attorney would have cost you in the first place.

Many elder law attorneys charge by the hour so you'd only have to pay for their time to deal with the specific issues that are of concern to you. Others offer "package deals." They'll provide various services under the umbrella of one fee.

How to Find an Elder Law Attorney

The National Academy of Elder Law Attorneys is comprised of lawyers who specialize in this field. It's a non-profit organization that's been around to assist seniors since 1987. Members are located in the U.S., Canada, the United Kingdom, and Australia. You can search their website for assistance in finding someone in your area to work with you.

Wherever you find an attorney, be sure to check with your state's Bar Association to make sure they're still licensed to practice law there and haven't been the subject of any disciplinary actions.