When Do We Need an Elder Law Attorney?
A recent Kiplinger’s article “When Elder Care Requires Legal Advice” explains that a lot of panicked calls are made to elder law attorneys when a person becomes disabled. These are attorneys who specialize in planning for the legal complications that can arise in old age. However, seldom do people think to consult one preemptively to avoid making that panicked phone call when incapacity strikes.
Many, but not all elder law attorneys are members of the National Academy of Elder Law Attorneys (NAELA).
Elder care attorneys work in the best interests of the older person, although how that is accomplished may differ. If the senior is competent and contacts the attorney, it can be fairly straightforward. However, if an adult family member or friend is an agent or has power of attorney for an elderly person—and asks for help, the attorney may represent the agent. In our office, we normally consider the disabled person the client, even if we are working through an agent or other client representative. In fact, for new estate planning clients, we get their permission in advance to advise the power of attorney agent or other personal representative in the event they become incapacitated in the future. In any event, a person who has power of attorney for another has a fiduciary responsibility to do what is best for the elderly person granting them that authority.
If a power of attorney isn’t in place and the elderly parent is incapable of giving it, the family is required to go to court to have someone appointed as a guardian, which can be a time-consuming option. If a parent is cognitively capable and doesn’t want help, there’s nothing an attorney can do about it.
Although state laws vary, elder law primarily concerns these topics:
- The client’s wishes and health
- Family dynamics; and
- The client’s financial assets and income.
An elder care attorney will also make sure that all important documents are in place and up-to-date, according to state laws. This includes a will, a trust, a power of attorney and an advance directive that includes a health care proxy.
Elder law attorneys also help moderate tough decisions, like when family members can’t agree about how a loved one wanted to be buried.
In addition, elder care lawyers understand the complex laws for Medicaid and Veterans benefits. An elder care lawyer can speak to many other issues, ranging from long-term care insurance to capital gains taxes.
A key when meeting with an elder law attorney is that you feel comfortable, that you’re not rushed and that your questions are answered.
Reference: Kiplinger (Sep. 15, 2020) “When Elder Care Requires Legal Advice”