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11 Ways an Elder Law Attorney Can Help You

Updated: May 5, 2023 | Reviewed by: Dr. Brindusa Vanta, MD

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If you provide care for an elderly loved one, such as your parents, spouse, other relative or friend, then you know how rewarding it can be. However, it can also be challenging and stressful to manage all the legal issues surrounding aging. Legal concerns can be highly complex, so it’s important that you bring in an expert to assist you. Elder care attorneys are well-versed in the unique requirements facing seniors and can help you manage your loved one’s legal needs as they age.

The Administration for Community Living, part of the U.S. Department of Health and Human Services, reports that 16% of the American population in 2019 was over the age of 65. This percentage is expected to continue to rise in the coming years as baby boomers reach senior status. By 2040, over 21% of the population will likely be over 65. Many of those seniors will require caregivers and elder care attorneys.

Planning for the future is essential to securing your loved one’s assets and preserving their legacy after they’re gone. Because no two situations are exactly alike, there’s no one-size-fits-all approach to legal concerns for seniors. That is why working with an elder law attorney is so important. They can customize their approach to meet your loved one’s specific needs.

This guide walks you through what elder care attorneys do and how they can help you and your loved one. Also, you’ll find an overview of how to find the best attorney to meet your loved one’s needs.

What Is an Elder Care Attorney?

Elder care attorneys specialize in handling legal issues relating to seniors and can prepare any documents needed for a variety of issues and answer any questions you may have. Their goal is to help you be the best possible caregiver for your loved one, including managing their legal needs. This can encompass a wide range of topics, such as:

  • Age discrimination in the workplace
  • Retirement and social security
  • Guardianships and conservatorships
  • Health care and long-term care planning
  • Medicare and Medicaid
  • Assisted living and nursing home care
  • Elder abuse in care settings
  • Estate and financial planning
  • Income, estate and gift tax planning
  • End-of-life planning
  • Probate proceedings

When it comes to issues relating to aging and death, many conversations can be highly emotional. Elder law attorneys are well aware of this and are trained to manage emotional situations with compassion and understanding. Discussing these issues can be stressful, but your attorney will work to ensure the process is as painless as possible. Throughout your dealings with an elder care attorney, you can typically expect confidentiality of your loved one’s personal information due to attorney-client privilege.

11 Ways an Elder Law Attorney Can Help You

Let’s take a closer look at some of the specific issues an elder care attorney can assist with as your loved one progresses through their golden years.

1. Addressing Age Discrimination in the Workplace 

If your loved one is on the younger end of the senior scale, they may still be working full-time or part-time. They may also be looking for a different job, which can expose them to possible age discrimination. Some companies would prefer to hire someone younger, even if the older applicant has all the necessary qualifications and experience for the role. If you suspect that your loved one may be facing age-related discrimination at work or in applying for jobs, an elder care attorney can help determine whether you have a case. They can also bring your case to court if needed for resolution.

2. Navigating Retirement and Social Security 

Even if your loved one is still working, they’ll eventually reach a point when they wish to retire from the workforce. Once retired, your loved one will generally need to collect Social Security payments and take distributions from their retirement accounts to maintain their income and support the lifestyle they desire. Depending on the type of account, these distributions also come with tax obligations, and it’s important to manage them carefully to maximize what your loved one can collect while minimizing their tax burden.

Your attorney can help ensure your loved one is saving enough for retirement in the final years of their career. They can also help you and your loved one prioritize funding sources to help make retirement savings last as long as possible. Finally, your lawyer can assist with adjusting the distributions in the future as your loved one’s care needs change. Ongoing medical or residential care can be expensive, so it’s important to ensure your loved one’s savings can accommodate those needs.

3. Choosing Medicare or Medicaid 

Health care can be incredibly costly, so your loved one will undoubtedly use Medicare or Medicaid to cover the costs. These programs operate somewhat like health insurance, but they’re not the same. Here’s what you need to know about what sets them apart from each other.

Medicare Medicaid
Eligible people Those over 65 or with certain disabilities Low-income individuals of any age
Costs Premiums, deductibles and coinsurance Minimal
Covered services Medically required care, equipment and prescriptions (depending on the specific part of Medicare) Basic health care and some prescriptions
Provided by Federal government Individual states that participate in the program
Enrollment period October 15 to December 7 each year or within 3 months of turning 65 Anytime eligibility requirements are met
Can apply to long-term care No Yes

Each program has benefits and drawbacks, and an elder care attorney can help you determine which makes the most sense for your loved one’s needs. They’ll also help you maximize the benefits your loved one receives so they can get the best care possible.

4. Planning for Long-Term Care 

If your loved one’s health care needs are beyond what you can provide, it may be time to consider assisted living, nursing home or other long-term care options. For those with dementia or complex  medical care needs, residential care is often a better option than staying with a loved one. This can be a tough decision to make, but it’s important to keep your loved one’s best interests at heart.

No matter which long-term care option you choose for your loved one, costs can be incredibly high. Your loved one’s retirement savings may quickly be depleted, reducing their estate. Medicaid can cover long-term care costs, assuming your loved one meets the eligibility criteria. An elder care attorney can verify your loved one’s Medicaid eligibility and help you apply for coverage. They’ll work to help you keep your loved one’s assets safe while still accessing the care your loved one needs.

5. Setting Up a Guardianship or Conservatorship 

If your loved one experiences mental or physical decline, they may no longer be able to care for themselves properly. To ensure they get the care they need, it might be a good idea to involve an attorney to help establish yourself as their legal guardian or the conservator of their estate. This gives you greater control over their affairs so you can advocate for them when they can no longer do it themselves. An elder care attorney can guide you through this process, explain your rights and responsibilities and ensure every complex and time-consuming process is done legally and properly.

6. Establishing Power of Attorney 

Power of attorney is similar to guardianship in that it gives you legal authority to make decisions on your loved one’s behalf. As their power of attorney, you may be able to manage your loved one’s finances, make medical care decisions or even manage all aspects of their life. You and your loved one can set the specific terms of the agreement when you work with your elder care attorney. The powers you’ll have will be expressly delineated in the power of attorney document, so it’s crucial to take the time to carefully work through all the details with your lawyer.

7. Creating Advance Directives 

An advance directive, sometimes called a medical directive, specifies your loved one’s wishes regarding medical care. The document will come into play if your loved one is incapacitated and cannot advocate for themselves in a medical setting. Advance directives can cover instructions for a variety of things, such as:

  • Terminal conditions
  • Permanent vegetative states
  • Life-sustaining treatments
  • Resuscitate or do-not-resuscitate orders
  • Surgical procedures
  • End-of-stage conditions
  • Dialysis
  • Blood transfusions
  • Organ and tissue donation

Your attorney can help your loved one clarify their wishes regarding various types of medical interventions so medical staff can comply with them if the need arises.

8. Addressing Elder Abuse 

Elderly folks can often find themselves subject to financial abuse and scams. These may be perpetuated by strangers or people known to the senior. If you fear your loved one may have fallen victim to a scam or fraud, an attorney can help get to the bottom of it. They can collaborate with local authorities and work to get your loved one restitution if possible.

Elder abuse can also include physical, mental or sexual abuse. This may happen at home or in long-term care settings. Situations like these can often go unnoticed or ignored for a long time, so it’s important to trust your gut if you have any suspicions. The sooner you act, the sooner your elder care attorney can help your loved one find more suitable long-term care and hold those responsible to account.

9. Preparing a Last Will and Testament 

Although it can be difficult to think about what will happen after your loved one dies, it’s incredibly important that you do so. Setting up a last will and testament ensures your loved one’s assets are divided as they see fit. Without a will in place, the court will have to step in to divide everything, and the court’s decisions may not be in accordance with your loved one’s wishes. Not only that, but court proceedings can be costly, which can eat into your loved one’s remaining assets considerably.

Working with an elder care attorney to prepare your loved one’s will can help ensure you don’t overlook any important components. If your loved one has a large estate, preparing the will can be highly complex, and your attorney can verify that all the important things have been included.

If your loved one’s estate is fairly simple, you may be able to prepare the will yourself. If you choose this method, it’s still a good idea to submit the document to a lawyer for review to ensure you’ve done everything correctly. This will minimize the risk of any challenges to the will, ensuring that everything goes as smoothly as possible.

10. Initiating End-of-Life Planning 

End-of-life planning includes several activities. We’ve already discussed advance directives, powers of attorney and wills in previous sections. In addition to these things, end-of-life planning ensures what will happen to your loved one’s body after death. This could be a traditional burial, green burial or cremation. If your loved one opts for cremation, they may have instructions for where they would like their ashes to be scattered. They may also wish to express their desires for how to conduct their funeral. They may want to prepare an obituary as well.

These conversations can be incredibly difficult and fraught with emotion, but you can trust your elder care attorney to handle the discussions with aplomb. They’ll do everything they can to make the process as smooth and easy as can be for this situation.

11. Facilitating Probate Proceedings 

Probate refers to the legal process that gives recognition to a will and appoints the representative that administers the estate of a deceased person, or the court process of distributing their assets if they don’t have a will. Your attorney can manage this process for you so you can focus on grieving the loss of your loved one. Elder law attorneys are experienced in these situations and can help the process go smoothly.

How to Choose an Elder Law Attorney: Step-by-Step Instructions

Selecting your elder care attorney is an incredibly important decision and one that requires care and attention to detail. Take the time to evaluate your options carefully to find the best fit for your loved one’s needs. Follow these steps to get it right.

  • Understand your loved one’s needs: All elder law attorneys specialize in working with seniors, though they may have different focus areas. For example, some elder lawyers primarily deal with wills, powers of attorney, advance directives and other documents. Others focus on Medicare, Medicaid and health care-related concerns. When you know exactly what your loved one needs from an attorney, it will be easier to narrow down your options.
  • Find attorneys in your location: The National Academy of Elder Law Attorneys and the National Elder Law Foundation offer search engines to help you locate elder law attorneys who serve your region. You can also find their contact details so you can get more information.
  • Continue your research: Take the time to look through each attorney’s website to get a better sense of what they offer and how they can help. It’s a good idea to read some of their online reviews to see what real people have to say about working with them. You can also ask your loved one’s friends about the attorneys they use. Referrals are great for finding a good fit.
  • Book a consultation appointment: Most attorneys will be more than happy to provide a free consultation so that you can get to know them better. Prepare a list of questions you have for the attorney before your appointment so you can verify that they’re a good fit. Be sure to take their style and personality into consideration as well, as your working relationship will be just as important as the services they provide.

The right elder law attorney for your loved one will depend on their unique situation and needs, so take your time in evaluating your options to ensure you find a good fit. Capabilities and credentials are important, but so is personality. Let your instincts be your guide and trust your gut if something doesn’t feel quite right. With a bit of time and effort, you will find an attorney who can successfully meet your loved one’s needs.