Telling people I practiced elder law often results in a dull stare and the question, “What is elder law?” or “Isn’t that really estate planning?” In a nutshell, “elder law” is counseling clients on the issues that happen between becoming an adult and death. Estate planning covers what happens after death, elder law covers what happens before you die.
Some estate planning attorneys also practice elder law. Most elder law attorneys practice estate planning, at least at a basic level. Increasingly, elder law attorneys practice disabilities law or “special needs law.” Special needs law deals with access to programs and benefits for adults with disabilities and protecting the autonomy of adults with disabilities.
Elder law attorneys can often help clients understand and navigate retirement income. This includes Social Security, defined benefit pensions, defined contribution plans, and in collaboration with qualified advisors, investments to provide income in later life. While the financial advisor offers advice on what to invest in, an elder law attorney provides advice on how best to title the accounts and potential tax issues. At age 65, Medicare kicks in and health care coverage changes for many, even for some who continue to work. Medicare supplemental insurance, Medicare Advantage plans, and Medicare Part D prescription drug coverage can be intimidating to navigate, and many seek advice from elder law attorneys.
As we age, the likelihood of an illness or injury resulting in a need for help or support with health care choices, making personal decisions, and managing assets increases. As an elder law attorney, I always thought of this as helping my clients plan for incapacity. Elder law attorneys have expertise in navigating the often complex issues of who will best provide support and assistance with decision making if it is ever needed, and who will be least likely to abuse this trusted position. For an elder law attorney assisting a client with creating a Power of Attorney or Advance Health Care Directive is much more than filling in the blanks on a form, it is understanding the client's wishes and fears, helping the client understand the documents, and customizing those documents to the specific needs of the client.
The devastating cost of inpatient long-term care moves middle-class families to financially needy families (as defined by law) in less than two years on average. Medicaid becomes the payor of last resort for long-term health care. Medicaid is a means-tested program, with limits on income and assets to qualify. Just as tax laws provide options to minimize taxes, laws provide options to protect some assets (especially for a spouse) and qualify for Medicaid. When I first started practicing elder law the Medicaid rules were fairly simple, and with a little advice, many families could do it themselves. Over the years, the law and regulations became more and more complex leading to a point where anyone who had more than a house of modest value, a car, and more than $30,000 in savings would benefit from professional advice from an elder law attorney. The regulations became so specific that it was easy to make a simple mistake in timing that could result in spending thousands of dollars that could have been protected to provide financial security for a spouse or dependent family member. Beyond the very poor, Medicaid is not a do it yourself project, or the client will spend themselves into being very poor. Elder law attorneys have expertise in this area of practice, often in more than one state, because the rules vary drastically from one state to the next. The Veterans Administration also provides health care assistance for many, and the rules there are different and just as complex to navigate, and many elder law attorneys practice VA benefits law.
Elder law attorneys also assist clients who have experienced abuse, neglect, or financial exploitation with efforts to recover and restore dignity and autonomy. Most elder law attorneys represent clients in guardianship or conservatorship actions. Increasingly elder law attorneys counsel clients on supported decision making to avoid guardianship or conservatorship.
Some states recognize elder law as a specialty. The National Elder Law Foundation (NELF) is accredited by the ABA to provide certification in elder law, known as a Certified Elder Law Attorney or CELA. NELF has an online directory. Not all elder law attorneys are CELAs, especially in states that do not recognize specialized practice areas.
Many state and local bar associations have member directories, and many of those allow you to search by area of practice. Also, many state and local bar associations have elder law sections or divisions. These are good places to get to know attorneys who practice elder law.
The National Academy of Elder Law Attorneys (NAELA) is a private membership organization of attorneys who practice elder and special needs law. NAELA has about 4,000 members who care enough about elder law to be a member of a specialty organization. NAELA offers many specialized training programs. NAELA has a searchable membership directory. I was a member of NAELA for many years and served on their board for several years.
If you don’t practice elder law, get to know someone who does. Sooner or later, many of the issues within their expertise will touch most of our lives. Get to know someone before you need them. My standing advice on finding an attorney is to talk to several attorneys and pay for a consultation if asked. Each attorney will have a style, a philosophy, and a way of practicing. Select the one that you are most comfortable with.
Elder law that has been recognized as a practice area for about 40 years, and continues to evolve. The issues are related to the changes in life that are most common with age, and to laws and programs that impact older adults. If we live long enough, most of us will benefit from this area of expertise.
