Page Reviewed / Updated – May 3rd, 2023
Page Reviewed by Dr. Brindusa Vanta, MD
Image 1

As they get older, seniors face essential decisions regarding long-term care, retiree benefits and health care. These complex matters are much different from the concerns they faced when they were younger. An experienced elder law attorney assists with these age-specific topics and can offer peace of mind for caregivers taking care of aging parents or adults.

This guide covers what an elder law attorney is and ways they help caregivers and seniors, and it provides advice on how to locate elder care attorneys in your area.

What Is an Elder Care Attorney?

An elder care attorney specializes in a broad range of issues affecting the senior population. They handle estate planning issues, including wills, trusts, powers of attorney and advance directives. They also assist with issues like care coordination, government benefits, preservation of assets and elder abuse. These professionals can help seniors with everything from property disputes to end-of-life planning.

The earlier seniors and their caregivers seek help from an elder care attorney, the better. Planning your affairs in advance can save you and your loved one a headache further down the road.

10 Ways an Elder Law Attorney Can Help Caregivers

Image 2

Working with an elder care attorney can ensure the future needs of your loved ones are met. Here are the top ten ways they assist caregivers.

1. Assisting with Medicaid and Other Financial Assistance

As you get older, you’ll likely require some type of long-term care, whether it’s receiving home care while aging in place, moving into an assisted living community or opting for a nursing home. Regardless of your choice, long-term care is expensive, and most seniors require some help.

Public assistance programs, like Medicaid, require you to meet specific asset and income limits for eligibility. An elder law attorney can help you verify and protect those assets while ensuring you qualify for financial benefits. Before applying, an attorney can help you determine if Medicaid is an appropriate choice, and if it’s not, they can advise on the best type of long-term care assistance.

2. Setting Up an Estate Plan

An estate plan details what happens to all your assets and belongings when you pass. Even if you feel like you don’t own much, you still need to provide instructions on how you want your estate to be divided, or your assets may not end up where you want. Without a will, all of your assets, after paying debts, will go to your living relatives. The first in line are your spouse and children, and your assets will go to the state if you don’t have family. For this type of planning, you’ll want to make sure your elder law attorney has experience in estate planning to ensure there are no gaps or oversights.

Some of the things your elder law attorney will help you define on your estate plan include:

  • Instructions for your financial affairs if you can no longer make decisions for yourself
  • Details on the transfer of your retirement accounts and other accounts
  • Naming guardians for children or those with special needs under your care
  • Providing for loved ones
  • How assets, including property, will be split
  • Setting up trusts 
  • Developing a long-term health care plan
  • Establishing a living will

3. Fighting Against Elder Abuse and Fraud

According to the United States Department of Justice, at least 1 in 10 seniors aged 65 and older experiences elder abuse in any given year. This includes identity fraud, neglect, exploitation and physical abuse. If you’ve experienced any form of abuse, an elder care attorney can assist you in notifying the proper authorities, help you determine whether you have a case and assist you in recouping your financial losses. During the abuse investigation, your attorney can help you locate alternative housing to ensure your safety.

As a caregiver, you can receive help in identifying abuse of the senior you’re caring for and what qualifies as abuse, including noticing unusual bruising, sudden weight loss, sudden changes in wills and changes in mood or attitude.

4. Protecting Your Assets From Financial Exploitation

Along with assistance related to physical and mental abuse, an elder law attorney can help protect seniors from financial exploitation. They educate seniors on identifying risk situations, help report criminal activity to the authorities, and assist in recovering damages.

Every year, approximately 3.5 million seniors in the US are victims of some type of financial exploitation. While adult children are most often the ones who exploit their aging parents, exploitation can also happen in care homes and by home caregivers. Other types of exploitation include:

  • Phone robocall scams
  • Online theft
  • Consumer-related scams
  • Fake email campaigns
  • Sweepstake lottery scams
  • Imposter government scams

5. Providing Financial Representation

Not only can your attorney assist with financial scams, but an elder law attorney can also offer education and assistance in dealing with other matters, including tax guidance, the sale of a home or property and help with stocks, bonds and retirement accounts.

When you fill out income tax returns, your attorney can help you interpret the existing laws, determine the correct filing status and arrange your finances to optimize your tax situation.

6. Setting Up a Power of Attorney

As we get older, managing money and individual affairs can become harder. Individuals who take on the role of caregiver are often relied on to make these decisions. This is where a power of attorney is useful. A power of attorney is a legally binding document that allows you as a caregiver to make medical, financial or property decisions on behalf of the senior.

Your attorney may set up a medical power of attorney or a general power of attorney. Under a medical power of attorney, a caregiver may only make medically necessary decisions, while a general power of attorney allows you to make decisions on all aspects of care. A senior business owner may also designate a durable power of attorney, naming someone as authority over financial, business and real estate matters.

7. Establishing a Guardianship or Conservatorship

A guardianship or conservatorship is slightly different from a power of attorney. While a power of attorney grants someone power to act on your behalf if you become incapacitated, a guardianship lets them make decisions if you’re struggling with a mental health issue. Typically, guardianships can be placed over estates, individuals or both. Court approval is always required. 

This is where an elder care attorney can be particularly helpful. They can guide you and your family through the legal requirements and court processes involved in guardianship and conservatorship proceedings. They can also assist with preparing and filing court documents. 

A guardianship can last until an individual has the ability to care for themselves again or until they pass. However, if the senior regains the ability to care for themselves and makes decisions on their own, an attorney can file the necessary paperwork and represent them in court to have the guardianship revoked. The guardian may also request to have the control terminated if it’s no longer needed.

8. Helping with Grandparents’ Visitation Rights

Families don’t always agree, and sometimes a death in the family, divorce or financial disagreement can result in estranged relationships with grandchildren. The laws regarding grandparents’ visitation rights vary depending on the state you live in, and an attorney can help you determine if you have a case and establish what, if any, rights you have to your grandchildren.

An attorney can also mediate arguments with adult children and help you establish visitation rights. Sometimes, this can be done without a court order when an attorney is used. Healthy grandparents may also petition for custody of their grandchildren if the parents are unfit or if remaining in the parents’ care would be detrimental to the physical and emotional needs of the children.

9. Applying for Veterans’ Benefits

Not all veterans have benefits approved, especially when applying for disability claims. In fact, approximately 70% of all seniors who apply for disability for the first time without assistance are denied. Most people who apply fail to provide adequate evidence, including medical proof, to substantiate a claim. Senior law attorneys can help veterans determine if they have a claim and what needs to be done to challenge a decision. Elder law attorneys with experience in disability benefits know what documentation is required and how to word a claim to increase the chances of approval.

10. Composing Personal Care Agreements

personal care agreement is a binding contract between your loved one and a caregiver and shouldn’t be taken lightly. This contract provides a legal framework of how care should be provided and how compensation will be provided as the individual ages and their needs progress. An elder law attorney ensures there are no gaps in the wording and can eliminate any future misunderstandings about the quality of care. Personal care agreements usually contain the following:

  • The starting date of care
  • The number of hours care should be provided each week
  • The amount of compensation a caregiver receives and how often
  • Where the care will be provided
  • A detailed list of all services the caregiver will provide
  • Signatures of all parties involved

How to Choose The Right Elder Law Attorney For You

Image 3

Not all elder law attorneys specialize in all areas of the law regarding elder issues, so it’s essential to do your homework and find one who can help you with your concerns. With so many qualified professionals, choosing the best fit can be a tough choice.

Ask friends and family for referrals, and start with those who’ve hired similar legal counsel. Find out what areas of the law the attorney handled for them and if they were satisfied with the services. You can also ask your current financial planner or doctor if they have any recommendations.

Additionally, check the National Academy of Elder Law Attorneys. The NAELA is a nonprofit organization that holds elder law attorneys to high standards of professional conduct. The NAELA website has a “Find a Lawyer” option that allows you to search by name, location and area of practice.

You can also check with the Certified Elder Law Attorney directory search online, which is provided by the National Elder Law Foundation. To become certified, the attorney must have at least 5 years of practice experience with at least 16 hours of practice in the specialty per week. 

Once you’ve narrowed your selection to a few attorneys, check their websites for reviews. You’ll get a good idea of how they’ve handled cases from other seniors.

Knowing when to seek an elder law attorney is imperative to prevent legal problems. The sooner you have a plan in place, the sooner you and your loved one can enjoy clarity and peace of mind over family wealth and medical issues.