As the number of Americans aged 65 and older continues to grow, it becomes increasingly important to address the unique circumstances and challenges seniors face. In 2009, 39.6 million people were aged 65 and older. In 2019, 54.1 million. Projections show 80.8 million by 2040 and 94.7 million by 2060. “Older Americans are one of the fastest-growing demographics in the country.” (1)
This growing population underscores the urgent need for older Americans to secure rights in an increasingly complex legal landscape. Seniors need necessary support and protection as they navigate the various challenges associated with aging.
In this context, an attorney specializing in elder law becomes crucial in assisting seniors with their legal needs, ensuring their well-being, and safeguarding their rights.
What Does an Elder Law Attorney Do?
As individuals advance in age, they encounter a variety of circumstances that are distinct to seniors. It is natural to contemplate who will assume legal responsibility for their care and financial affairs in the event of incapacitation.
With careful planning and the guidance of an experienced elder law attorney, seniors can gain greater control over what transpires if and when they can no longer manage everything independently.
Elder law, an area of legal practice dedicated to addressing the specific legal issues affecting seniors, offers invaluable assistance in navigating the complexities of aging.
What Types of Issues Do Elder Law Attorneys Address?
Elder law attorneys comprehensively understand the legal challenges and concerns that specifically impact the aging population.
With their specialized knowledge and expertise, elder law attorneys adeptly navigate the intricacies of elder law to address a wide range of issues faced by seniors, including the following:
- Estate planning, such as a durable power of attorney, healthcare power of attorney, or durable general power of attorney
- Long-term care
- Healthcare decision-making and advance directives
- Medicaid Planning
- Elder abuse and exploitation
- Legal help, in general
Elder law attorneys are invaluable advocates who protect older individuals’ rights, interests, and well-being.
Next, let’s delve into the various issues that elder law attorneys expertly handle, shedding light on their crucial role in addressing the legal complexities associated with aging.
Estate Planning for Seniors
Making plans for your future care, protecting your assets, and creating fewer worries for your family’s future are all part of estate planning for seniors.
Estate Plans include legal documents to plan for the following:
- The disposition of assets at your passing with fewer tax liabilities
- Future potential incapacitation or diminished capacity: Who will manage your assets and make crucial decisions if you cannot make decisions on your own. (The alternative is a court-appointed guardian.)
- Preventing the loss of assets to the explosive costs of potential skilled nursing care
- Your family going through unnecessary, expensive, and potentially lengthy probate court procedures
Legal Documents to Prepare for the Future
The legal documents that help you plan for your future, and that of your family and loved ones include:
- Last Will & Testament: Wills lay out who will inherit your assets
- Trusts: Trusts can help you obtain coverage for nursing care without using up your life’s savings. Often planning with a “Medicaid” Trust at least 5 years before needing care, you can qualify for Medicaid funds without a “spend down” to qualify for benefits. Instead, your loved ones, including your spouse, may still benefit and later inherit your nest egg without it all going to your care needs.
- Durable Powers of Attorney: This legal framework names someone who will be in charge of your financial assets and investments while you’re living in case you lose competency. This person needs to be someone you trust implicitly.
- Health Care Powers of Attorney: Naming someone your Health Care Power of Attorney lets them make decisions outside your advance directives. That way, if you become incapacitated or declared incompetent, someone you trust can make decisions about your health care.
- Advance Directives: Advance directives help you plan what will happen if critical decisions must be made and you can’t make them. For example, if you don’t want healthcare professionals to use a respirator to prolong your life, you can state this and have some control over what doctors may do to keep you alive. You don’t want to leave the decisions up to family members who may feel confused and worried they will make the wrong decision for you. In addition, with advance directives, your family can avoid strife and disagreement.
Long-Term Care Planning
If you are afraid of losing your home due to the cost of nursing home care, you are in good company. A life’s savings can be quickly lost when a person needs a level of care that requires movement to a skilled nursing care facility. Health insurance plans ONLY cover a minimal stay in particular circumstances.
Many individuals worry about needing to sell their home or cash in retirement savings to pay for nursing home care. If you need a high level of care and have to move to a skilled nursing facility, your life savings can disappear in a heartbeat. Regular health insurance plans and Medicare cover only short stays in specific situations.
Here’s How It Works
Elder Law Attorneys help you prepare for potential future nursing care needs with proactive planning. This involves using trusts to divert assets and prevent Medicaid from counting them against your eligibility.
In order to qualify for Medicaid coverage for long-term care, you must have nearly no assets and little income. OR you must have made a plan with your attorney 5 years in advance! This is where drawing up a trust with your elder care attorney can make all the difference.
Nursing homes can be costly, with monthly expenses reaching as high as $8,000. Without proper planning, you will “spend down” your assets to qualify for Medicaid coverage.
However, you can avoid spending down your assets by planning at least 5 years before a need for care. With a plan, you can keep every bit of your hard-earned money!
Crisis Planning for Long-Term Care
Elder Law Attorneys also help families with crisis planning. This is when nursing home care is imminent or has already started, and the family needs help saving as much of the person’s wealth as possible, even though it is too late to plan proactively.
While less ideal than planning in advance, saving a substantial part of the assets from being depleted by nursing home costs is often possible. Helping seniors preserve assets from the threat of depletion by nursing home care is one of the things elder lawyers do.
There are many other issues that Seniors struggle with that Elder Law Attorneys focus on. One of these issues is guardianship. If you are fighting to keep control over your own life and someone else is trying to have you declared incompetent, this would be an area that an Elder Law Attorney would focus on.
Conversely, if you are a family member trying to protect an older adult with diminished capacity by having the court declare a guardian, this would also be an Elder Law issue.
Elder Law Attorneys also handle cases where Seniors are mistreated by exploitation. As terrible as it is, some people will take advantage of vulnerable seniors. They may steal or coerce seniors out of money or assets. Sometimes the person guilty is the very person who is supposed to be helping: a guardian, nursing aide, service tech, or family member. Other times it’s an online or phone scam or a new “friend.”
If you suspect an older individual might have a person taking advantage of their situation, contact an elder law attorney and find out how to find protection for them legally. While social services and law enforcement are often helpful in exploitation cases, an attorney can provide advice and protect the best interests of those involved at a level beyond government employees.
Elder lawyers represent seniors, older adults, and their families in exploitation cases. The role of an attorney specializing in elder law is instrumental in providing crucial assistance and guidance to seniors as they face the distinct legal issues that arise with age.
Why Work With an Elder Law Attorney?
Experienced elder law attorneys empower seniors to exercise greater control over their future, protect their interests, and ensure their wishes are respected.
As the number of individuals aged 65 and above continues to rise, seeking the support of an elder law attorney becomes increasingly vital in safeguarding the rights and well-being of our aging population.
They also play a crucial role in helping those who help older adults. We’ll look at that next.
Help Fulfilling Duties as a Guardian
Elder law attorneys practice in guardianship courts and often assist family members in becoming responsible guardians. Guardians often handle the financial and health care needs of loved ones who can no longer make those decisions themselves. Find the legal advice you need, whether you need help with:
- Administrative duties for the court
- Decisions about financial
- Caregiving issues
- Other struggles related to guardianship
Help Fulfilling Duties as a Power of Attorney Agent
Elder law attorneys support Power of Attorney agents responsible for making important decisions on behalf of a senior. With their understanding of legal frameworks and requirements, they provide invaluable guidance in fulfilling responsibilities. They also ensure the senior’s best interests.
Elder law attorneys ensure legal compliance with complex documents. These include healthcare directives and powers of attorney. They also advise on making sound decisions within the scope of the agent’s authority. They help agents manage financial matters and coordinate care arrangements.
By working closely with the agent, an elder law attorney helps to alleviate the burden and uncertainty of fulfilling this vital role.
Choosing the Best Elder Care Lawyer for Your Needs
First, ensure your attorney is a member of the local bar association and has experience handling the unique legal matters of older adults and their families. Look for someone involved in continuing education or local groups focused on caring for their local community of elders.
A reputable elder law attorney will also have good reviews from clients about how they helped with an elder care legal matter. Other professionals in the area will also recognize them as a good elder law attorney who is trustworthy.
To find an elder law attorney who truly cares about local laws and protecting seniors, look for someone who volunteers. An attorney who volunteers free legal services as a guardian ad litem ensures seniors have an advocate in an incompetency hearing.
Seniors in incompetency hearings are often pressured to prove their competency in making their own decisions. They are also in danger of receiving a guardian to make all their choices for them. Helping older adults in this way shows their care and concern for those who need immediate assistance.
Find a caring, competent, and experienced attorney with good reviews and a stable reputation for your best outcome.
Initial Consultation: Knowledgeable, Experienced, and Caring
At first meeting, an elder care lawyer should answer complicated questions or assure you they will find answers. Professionals in elder law should offer advice that makes sense, even at an initial consultation. They should have knowledge and solutions to your concerns about the following:
- Adult children, aging parents, a spouse, sibling, other family members, or a neighbor
- Debilitating illness, special needs, or diminishing capacity
- Planning for protection of assets or worries about your financial situation
- Worries or concerns about family caregivers
- Worries about a parent’s financial decisions
- Other struggles unique to seniors
- Financial exploitation of a loved one
- Other legal matters affecting seniors
If you feel unsure about the lawyer you meet with, let them know why you worry they can’t help you. They may be able to address your concerns.
We Can Help With Elder Law Legal Assistance
At Hopler, Wilms, and Hanna, we care about elder law and guardianship issues that affect our community. We show our concern through the elder care networks we are a part of and our volunteer work to help those in need.
Chris Wilms, a founding attorney at Hopler, Wilms, and Hanna, is an active member of The North Carolina Adult Protection Network. He is part of the organization’s Durham County adult protection multidisciplinary team. This team works together to help and support adults who may need protection from abuse, neglect, and elder exploitation in North Carolina.
Chris also practices as a volunteer guardian ad litem in the judicial system, giving seniors an advocate when they need one the most. A guardian ad litem is an advocate who helps a judge make the best decision for an older adult’s future.
If you have a senior adult legal issue or a family member needing help, contact one of our experienced elder law attorneys. All aspects of senior care, including planning for asset protection, healthcare issues, Medicaid planning, senior exploitation, and guardianship cases, are part of Elder Law. A knowledgeable and experienced attorney specializing in Elder Law can help you find answers and make solid plans for the Seniors in your life.
Contact us at Hopler, Wilms, and Hanna and find out how we can help you or the seniors you love.