What is "Elder Law"?

     Who hasn’t been to a specialist for a medical problem? We have all been to ear, nose and throat docs, orthopedic docs, dermatologists, cardiologists and a host of other specialists.

     People go to specialists for a reason- Specialists limit their knowledge to one or only a few areas, thereby giving their client or patient a higher level of care than might be possible from a generalist.

     As in medicine, the law has specialties as well. While attorneys cannot generally claim they are “specialists” in many areas of practice, they can say that they limit their practice to one or a few chosen areas of the law. In this manner these attorneys are able to deliver a high level of legal expertise without having to “do some research and get back to you” as is the case with some general practitioners.

     One area of the law that has been gaining in popularity is Elder Law. With so many Americans living into their 80s and 90s, the need for attorneys knowledgeable in elder law has grown rapidly. If you ask the average senior to define elder law though, you will no doubt get a puzzled look. It is possible you might get a similar answer when asking the average attorney the same question.

What exactly is “elder law”?

     Most areas of the law are defined by the type of work being done. For example, divorce law, criminal defense, bankruptcy, Social Security disability, real estate, immigration, personal injury- all practice areas and all defined by the type of work.

     Elder law by contrast is not defined by the type of work being done but by the client who is being served. A senior might have legal needs in various areas of the law, including wills and trusts, probate, guardianship, Medicaid, Veteran’s benefits and taxation. Rather than having to visit a handful of different lawyers, the senior can deal with all of these issues with one attorney, the elder law attorney.

     Think about the average 75 year-old couple. They have led charmed lives in a way. They have lived in the same home for 50 years, so they haven’t met a real estate lawyer. They have never filed for bankruptcy, so they have never met a bankruptcy lawyer. They have never been divorced, never gotten a DUI, never sued anyone or been sued, and like most people, they have put off preparing their wills. They have missed every chance of meeting a lawyer, and now that one of both of them are having health problems, they do not know who to call for help. They might not even know there is such an area of practice called elder law. Indeed, this is the weakness in this area of practice- so few seniors even know this area of practice exists to serve them and their families.  Add to this lack of information the sense among some seniors that they are too proud to accept assistance from others and you can see where this will lead.

What types of legal work falls under the umbrella of elder law?

     The most common need we see has to do with nursing home issues. Trying to understand the various options with regard to long-term care can be an overwhelming task. Private pay or Medicaid? Long-term care insurance? What about Veteran’s benefits? Does Medicare cover anything? Will I qualify for Medicaid? What is the difference between Medicare and Medicaid? Will I lose the house or family farm if I accept Medicaid? As a Vet or the spouse of a Vet, are there benefits available to us? How do we go about getting them?

     Advising the family on home-health care agencies, durable medical agencies, long-term care insurance and annuities, and the various independent living, assisted living and nursing home options is a major part of what we do.

     We also assist clients with issues involving dementia and lack of capacity. Who will step in to make decisions for you when you lose your capacity? Will the same person make financial and non-financial decisions for you or do you want to separate the duties?

     Helping individuals of all ages with disabilities also falls within the realm of elder law. Special Needs Trusts are specials techniques that allow a disabled individual to continue receiving government benefits like SSI and Medicaid, even if he or she receives an inheritance or a windfall of some sort.

     Wills and estate plans are not unique to elder law, but the elder law attorney will know how to incorporate specific provisions in your estate plan that will allow you and your loved ones the most flexibility in helping you if you have a medical crisis and also administering your estate after your death.

     And finally, Probate is another area. Helping families navigate the system that takes a person’s will and officially distributes those assets to heirs and beneficiaries is known as probate. Minimizing costs and avoiding family fights are a major part of this work.

     So there you have it. Elder law is caring for the senior and his/her family. It is NOT drafting a document or filing a paper or writing a letter to someone. These things may occur but they are incidental to the real work, which is providing our senior citizens with some semblance of respect in their golden years.