Elder Law

You have probably heard the term Elder Law bantered about, especially now since the baby-boomers are turning sixty-five. You have most likely have seen it on billboards or the TV or in the yellow pages. But what is it and how does it affect you?

Elder law is actually quite expansive. It is less of an area of law, than it is a type of client. Many attorneys, including myself, consider elder law to be the legal matters affecting seniors. It can range from estate planning to elder care to governmental benefits. We as attorneys who do this type of work for seniors need to have a working knowledge of six areas of the law: estate planning, elder law, probate, real estate, taxation and business.

Of course elder law includes estate planning. You may think of estate planning as only death planning. However, estate planning also includes lifetime planning in the event of your mental incapacity.

In addition to estate planning, elder law also includes elder care, which is basically attending to you when you no longer can care for yourself, all by yourself. The focus is on your living arrangements and the supports you need to live safely and comfortably. This also includes caring for the caregiver. If you are caring for a spouse, you want to make sure that you have adequate help in order to prevent caregiver burnout.

If you require 24/7 custodial care, then a nursing home may be the most economical for you and your loved ones. And if you have the appropriate gifting instructions in your financial power of attorney, you can protect some or all of your assets for your loved ones, instead spending them all on nursing home care. In that instance, you would then be able to apply for Medicaid to pay for your nursing home care.

As part of our elder law practice, we design, draft and implement asset protection plans to ensure that family assets are not exhausted for nursing home care. We prepare the Medicaid application and assist the family in following the application through the approval process.

Medicaid is just one of a number of governmental benefits that effect you as a senior or for which you may be eligible. Elder law includes counselling about and assistance with these and other governmental benefits, such as veterans’ benefits.

Veterans or their surviving spouses and dependents may be eligible for other veterans’ benefits, such as Pension or Death Pension also known as “Aid and Attendance,” Disability Compensation, Dependents Indemnity Compensation, VA healthcare, VA burial benefits and state veterans’ benefits.

If you are over 65, you are usually eligible for Medicare to help pay for your medical expense needs. Medicare counselling includes advice regarding hospital admission versus observation and qualifying for up to 100 days of Medicare paid rehabilitative care. It also includes discussions regarding continuing that rehabilitative care to prevent health deterioration standard, as opposed to the improper and erroneous plateau standard.

Elder law also encompasses general counselling about retirement and financial matters. If you have 40 qualified earnings quarters, you are usually eligible for Social Security. You have many Social Security benefit options, especially if you are married. This general counselling about retirement and financial matters includes the tax effects of IRAs and other retirement plan distributions.

We counsel our clients to be watchful of elder abuse and financial exploitation. Remember that as you age and your physiological systems slow down, the effects are not only to your physical systems, but also to your mental systems. This makes sense. Your brain is part of your body. Why wouldn’t it be affected by aging just like your heart or your bones? Be on the lookout for the scammers out there trying to take advantage of you and your reduced financial acumen. Be especially watchful for the “financial advisers” selling high commission financial products.

There are many misconceptions about elder law issues. You will have undoubtedly received information from family, friends or others. Such information is usually well intentioned, but most of the time only partly true. Elder law issues and laws such as Medicaid eligibility can be complex and confusing. We do not recommend that you try to plan for Medicaid by yourself. One mistake may cost you thousands of dollars and may result in months of Medicaid ineligibility. It is important to get good legal counsel from a knowledgeable legal specialist.