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What an elder law attorney does — and why you might need one

There are now more than 40 million Americans over the age of 65, and that number is steadily increasing. In lockstep with greater longevity, the availability — and complexity — of federal programs created to assist the aging population is also growing. That’s where an elder law attorney can help.

An elder law attorney, sometimes referred to as an elder care attorney, can help older adults and their families navigate the complicated financial and legal decisions they face. It’s a growing specialization, with nearly 500 certified elder law attorneys across all 50 states. These attorneys are trained to take into account any physical and mental limitations aging clients may be experiencing, and to tap into a specialized network of psychologists, social workers, long-term care planners, and other professionals to assist with any changes in the client’s circumstances.

How an elder law attorney can assist you

Elder law attorneys often work in conjunction with other professionals in various fields to coordinate care, legal protections, and financing. The issues they may tackle include:

  • Care coordination. This can be as simple as establishing a health care power of attorney or as complicated as locating the right long-term facility and coordinating financial resources to finance the cost of care.
  • Government benefits. Some seniors want legal guidance protecting their assets while maintaining eligibility for Medicaid and certain Social Security and Medicare benefits.
  • Guardianship. When a person is unable to make decisions for him or herself, whether it be paying utility bills or choosing a doctor, someone needs to assume responsibility for that individual’s affairs. If no one has the legal authority to act, the court will appoint a legal guardian.
  • Financial representation. From planning for the future, like making sure an estate plan is in place and establishing a durable power of attorney, to dealing with money matters in the here and now, such as tax guidance and coordinating with financial planners, an elder law attorney is typically well-versed in looking at clients’ larger financial picture.

It’s important to note that elder law attorneys do not necessarily specialize in every area of law affecting seniors. If you’re especially concerned with a matter of guardianship, for instance, or need guidance on government benefits, take care to find an attorney with experience in that area.

When to consult an elder care lawyer

According to Harry Margolis, the founder of Boston-based law firm Margolis & Bloom and founding president of ElderLawAnswers, families should consider seeking an elder care attorney when you begin to anticipate a need for long-term care of a loved one, or if you are wondering how to qualify for government benefits. If you’re worried about a time when you can’t take care of your finances or other affairs on your own, a consultation with an elder care attorney is advised.

Jody Gastfriend, vice president of senior care at Care.com, talks about finding an elder care attorney in her book My Parent’s Keeper.

"An elder law attorney specializes in the complex legal and financial issues impacting seniors. Most can handle a wide range of issues such as Medicaid eligibility (which can vary by state), estate planning, and the delegation of healthcare decision making in the event of incompetency.”

Questions to ask an elder care lawyer

Finding the right elder care lawyer is important, not only for future planning, but for your pocketbook. Margolis recommends asking the following questions before seeking representation:

  1. How long have you practiced elder law? What is your specialty? Remember some elder care attorneys are versed in Medicaid, while others are experienced in wills, trusts or probate issues. Finding the lawyer that fits your needs is key.
  2. What segment of your practice is dedicated to elder care law? While attorneys typically practice in several different areas of law, you want a representative that is well versed in current developments.
  3. How much will it cost to retain you? Ask about fees at the initial consultation. Although some attorneys may not be able to provide a comprehensive quote without studying your particular issue, they should offer a range of fees for services. Comparison shop between different firms until you find the right fit. Also, ask if you will be charged for phone calls and emails. Some attorneys charge by the hour, while others have a flat fee for representation.
  4. Will you be part of the entire process, including drafting the legal documents and defending them (if necessary) in court? Some attorneys will not litigate in court if a potential issue arises. Discuss whether additional fees are required for appearing in court.
  5. What if I need assistance at home? Do you make house calls? How much does it cost?

How to choose an elder law attorney

Here's how you can narrow the pool of available legal professionals to find the best fit.

  • Ask for referrals from friends and family who have hired legal counsel to handle similar issues and in similar circumstances. You don’t need to delve into the nitty-gritty details of your friend’s legal affairs, but you will want to ask what matters the attorney helped with and how satisfied your friend was with the level of service.
  • Search web databases of non-profit groups and professional organizations, such as the National Academy of Elder Law Attorneys or the National Elder Law Foundation. The latter offers certification to elder law attorneys who have at least five years of experience in practice, have completed a comprehensive examination, and demonstrate a minimum number of individual cases across elder law categories.
  • Don’t stop at the first name. Choosing an elder law attorney is a big decision, and many experts recommend meeting with at least two attorneys. You’ll want to consider comfort level (Would you feel at ease sharing confidential information with this person? Did he or she seem interested and attentive to your questions?), cost (How does the attorney bill? Are they able to give you an estimate?), and location (convenience counts, particularly if you anticipate an eventual uptick in concerns).

By Kate Rockwood and Rudri Patel

Read next: 4 legal documents every adult needs

Comments
Geof in New York, NY
Oct. 3, 2018

All of these pointers on working with an elder attorney are great -- but what about just regular estate trust or probate attorneys? The problems older and aging heirs have when they are saddled with an estate lawyer that is non responsive to even the executor, plus an executor that is not only completely inexperienced (which is 99% of the time) but is also totally on his own steam, rarely offering updates to older heirs or their executor. When an estate has this unfortunate scenario in play, some senior heirs, in order to be able to afford to hire their own personal estate lawyer -- will take advantage of an excellent benefit, that many trusts do not provide... and that is the ability for heirs to get an advance on inheritance.... to borrow money against inheritance, to get a loan on inheritance. Many heirs will get an inheritance loan, or probate advance, or inheritance advance… if they can borrow against inheritance, they can get an advance on inheritance with a little research online and a few phone calls. It is quite interesting to watch heirs researching large inheritance loans or small probate loans, modest loans on inheritance, or a 72 hour inheritance cash advance, or even 48 hour probate advance loans, or an inheritance advance or probate loan, or estate loan assignment. They don’t even need good credit to get approved by one of the more established online inheritance loan or niche probate advance companies like www.heiradvance.com or www.inheritancenow.com or probate loan or inheritance loans or inheritance advance companies like www.inheritanceadvance.com. That type of advance inheritance money makes so many heirs happier and more confident... it's well worth the effort for senior heirs that are in dire need of fast inheritance money, to hire their own attorney. They figure, if they don't have confidence in the attorney of record -- it's better to have their own attorney to watch their back.... better to be safe than sorry, especially when they have found a better way to pay for it -- basically borrowing from their own future revenue, or wealth.

This is a great overview of important points to consider, and tips for approaching the touchy topic. Learn from and lead by example though - All of us with parents that we are considering these items, we should be planning ahead for ourselves. AS @ www.alerstallings.com

Geof in New York, NY
Oct. 24, 2017

When a wealthy person dies it often pays for them to hire expensive legal professionals, such as the type of elder law attorney mentioned by elder law expert, Harry Margolis, it's worth millions to wealthy heirs…. Thousands or tens of thousands to middle class heirs – and more importantly, fair estate planning for heirs… and assuring good care giving for a decedent before he or she passes away… critical healthcare issues, long term care; power of attorney; best choice for executor or even a geriatric care manager, etc. etc. Good estate planning, possibly with an elder attorney, covers all these matters and more. And going further, even middle class heirs will go all out to escape paying taxes, or deferring them… Wealthy heirs or beneficiaries go all out to save ten cents in taxes through estate planning. From the other side of the coin, often as a reaction often to poor estate planning; after a loved one has died, during probate… I’m amazed that some heirs find the money to hire their own personal estate attorney or tax lawyer, or Accountant even. They frequently don't have the ability to hire those folks, so they frequently get inheritance money in advance during probate, from an inheritance loan or probate loan… an inheritance cash advance from one of the better known inheritance loan or inheritance advance companies. We’re talking about middle class regular people who want to get good legal counsel, even though they aren’t rich… so they look into extremely fast turnaround inheritance loans, probate loans, loans on inheritance, and inheritance loan advances or probate cash advances funds on a trust, or whatever large inheritance advance or small advance inheritance or probate loan, estate loan or inheritance advance assignment they can get approved for – as a once in a life little windfall…The inheritance advance, probate advance or inheritance loans companies they research are usually well known niche boutique probate advance companies such as www.heiradvance.com, or www.inheritanceadvance.com, or maybe www.inheritancenow.com, or other similar probate loan companies with similar inheritance cash advance services, for estate loans, estate advances, probate loans, inheritance loans, or inheritance advance assignments. So at least some of the have-nots, middle class working stiffs can get the same type of first class legal estate tax counsel that millionaires and billionaires get all the time. And end up paying a whole lot less to the govt.

Geof in New York, NY
Oct. 24, 2017

I have to say -- that even though CJ is right... CJ needs to recognize that not everyone can afford a Daily Money Manager. Especially middle class families struggling month to month to survive.

User
June 11, 2016

Thanks you for sharing article. And he his very difficult situation,from Daily Management money. as well us other daily money matters,Some may also distance for family members. And he his very big difficult situation for any parents and all people.

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