Most families undoubtedly have a loved one who is aging that needs care and other extra attention. There are a variety of issues that arise as one ages that include financial, care and other estate-related decisions. These fall under the broad rubric of elder law. Stated broadly, elder law involves any legal issues that affect a senior. These issues can be those that directly impact the senior or their family. Below, we will explain some of the areas that are a part of this field and how you should select an attorney to help you.
As a senior ages, they may not be able to make their own decisions about a number of things. This includes both financial issues and matters about their own care. At the same time, families may be in conflict about these matters since they may either have their own interests or their own beliefs about what needs to be done. There are different solutions that can help in this area. In some cases, the court can appoint a full guardian for the incapacitated senior who will make all relevant decisions on their behalf. An elder law attorney can advise you on how best to handle the process of this appointment since it is a legal proceeding that involves the court. In addition, elder law would also involve working with the court to advocate for the terms of the guardianship based on the law of the state where the proceeding is being held. Note that the attorney’s skill here is necessary since the court may not accept the family’s desires or solutions.
As an alternative to guardianship, there could be a more limited delegation of authority to someone to act on behalf of the senior. For a power of attorney, the family would appoint someone to act in this capacity as opposed to a court, who appoints the guardian. The elder law attorney would work with you on devising the scope of the power of attorney. It could be very broad or limited to a certain specific area. When drafting a power of attorney, there is a lot of flexibility to use the instrument in many different ways. An elder law attorney will advise you how to decide the scope and nature of this arrangement since this is a way for the family to retain control of decisions as opposed to surrendering them to the court.
There is a need to protect the assets of the senior as they age for several reasons. The first, and most obvious one, is that seniors are vulnerable to financial abuse from either those who they trust or even random fraudsters. An elder law attorney would help institute safeguards to keep the senior from making ruinous financial decisions at the behest of others. The second reason is that seniors may face significant long-term care costs as they decline. Nursing home expenses have now reached six figures for many seniors, depending on the type of nursing home and the area in which it is located. Nursing homes will expect seniors to use their own assets to fund the costs of their care. However, this is dependent on the fact that seniors actually have assets. There is a way to shield a senior’s net worth from nursing homes and have Medicaid pay for the costs of their care. An elder law attorney can help a senior and their family establish a trust to hold the senior’s assets. This trust would have to be irrevocable, meaning it cannot be changed. Assuming that the elder law attorney creates the trust by a certain time, it will mean that Medicaid will not be able to locate the assets and will cover the costs of the senior’s care.
At the same time, there are also issues that arise about how to remain eligible for social security, Medicare and Medicaid while they have assets. There may be certain trusts or asset structures that are necessary to make sure that the senior can access certain government benefits while keeping their assets.
An unfortunate element of aging is that seniors are more vulnerable to abuse than the average person. This abuse can take on a variety of different forms, including physical, financial, emotional and sexual. When this is occurring, it is possible that legal action must be taken to protect the senior from the conduct. The elder law attorney can help you take action to put a stop to the abuse by either making sure that the proper authorities are contacted or taking action to move the senior to a safer location. If there has been financial fraud perpetrated on the senior, elder law may involve taking legal action to help recover the assets that were fraudulently taken.
Beyond establishing trusts to shield assets, an elder lawyer will also help the family with drafting a will. Families will need effective strategies to divide assets, taking advantage of the most favorable tax treatment. Families that do not engage in this process may find that their assets go through probate, taking time and costing money in taxes and fees. An elder lawyer will help you draft the right type of documents that reflects both your financial choices and your values. They can also help you make the proper choices in a way that can maintain family harmony and make the process of succession as orderly as possible.
When it comes to elder law, attorneys should be as well-versed in as many of these areas as possible in order to provide effective counsel and assistance to families. Since elder law is a broad-based field, an elder lawyer will be asked to do any one of a number of these tasks. It is important to understand exactly what an elder lawyer can help you with when you retain them. If an attorney cannot help you in any one of these areas, make sure that they have the ability to refer you to someone who can.
If you need help, please contact an Elder Law Attorney today.