The older demographic (65 and older) in the United States has experienced a population explosion in recent years. Seniors are living longer, and there are more of them as a result of the Baby Boomer generation reaching retirement age. While seniors, and their caregivers, face many of the same legal issues as their younger counterparts, they also have unique legal problems and concerns that are best served by an attorney who focuses on elder law. With that in mind, the estate planning attorneys at the Mendel Law Firm, L.P. have put together some frequently asked questions and answers about elder law to help you recognize when you might benefit from the assistance of an elder law attorney. If you have specific questions about an elder law matter, please feel free to contact our office to schedule a consultation.
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As the elderly population began to grow several decades ago, it started to become clear that the legal issues that impact them needed to be addressed. Consequently, the relatively new area of the law known as “elder law” began to evolve. An elder law lawyer, therefore, is a lawyer who has chosen to focus much, or all, of his/her practice on legal issues that impact the elderly and those who care for them. Unlike other areas of specialty, however, an elder law lawyer does not focus on learning everything there is to know about a single area of the law. Instead, an elder law lawyer is more concerned with how the elderly, and their caregivers, are impacted by various legal issues and problems.
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The National Academy of Elder Law Attorneys, or NAELA, was formed in the late 1980s as a way to better serve this growing segment of the population. Five years after the creation of NAELA, the National Elder Law Foundation was formed. The purpose of the non-profit NELF was to help improve the professional skills of attorneys who choose to focus on elder law. Toward that end, NELF then developed a national certification program for attorneys known as the Certified Elder Law Attorney, or CELA, certification program. Attorneys who wish to gain certification in the area of elder law may do so through a rigorous and selective certification program recognized by the American Bar Association and administered by NELF.
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Unlike attorneys who focus on other specialized areas of the law, an elder law attorney does not strive to become an expert in one narrow area of the law. Instead, and elder law attorney focuses on how various areas of the law impact the elderly and those who care for them. Some common legal issues an elder law attorney might handle include:
- Denial of disability
- Guardianship
- Housing discrimination
- Estate planning
- Health insurance issues
- Preparing advance directives
- Retirement planning
- Nursing home abuse
- Medicaid planning
- Veteran’s benefits
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Absolutely! Every year, millions of family members and other loved ones provide billions of hours of unpaid care for the elderly. Those caregivers face a myriad of emotional, financial, and legal problems as a result of their selfless giving. Caregivers frequently need assistance from an elder law attorney for things such as securing government benefits, petitioning for guardianship, or knowing what to do after an Alzheimer’s diagnosis.
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One of the most difficult decisions you will ever have to make as an adult child is the decision to petition for guardianship over a parent. It may feel as though you are taking away a parent’s independence and freedom. Failing to act, however, could put your parent at risk for serious injury or for becoming the victim of elder financial exploitation. Becoming your parent’s guardian may be the best way you can protect him/her. An elder law attorney can help you decide if guardianship is necessary and, if so, can help you through the process.
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One of the most important components of an estate planning for anyone near, or at, retirement age is long-term care (LTC) planning. The odds of needing LTC are high, and the cost of that care prohibitive for the average person. Moreover, neither the average health insurance plan nor Medicare will pay for LTC expenses. Unless you can afford to pay out of pocket you will likely find yourself turning to Medicaid for help. To be eligible, however, you must contend with very low “countable resources” limits that can put your retirement nest egg at risk if you failed to plan ahead. An elder law attorney can help you incorporate LTC planning into your estate plan by including Medicaid planning tools and strategies in your comprehensive plan.
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Most people who care for the elderly do so with kindness and patience; however, there are those who prey on society’s most vulnerable, including those in nursing home care. Conservative estimates indicate that more than 40 percent of nursing home residents have reported abuse, and more than 90 percent report that they or another resident of the facility have been neglected. Elder abuse is a crime; however, it can also form the basis of a civil lawsuit against the facility. If you suspect that a loved one is the victim of nursing home abuse, an elder law attorney can discuss your legal options with you.
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You may not look forward to discussing end of life healthcare issues; however, from a legal standpoint it is something that should be done well ahead of time. If you have strong beliefs about end of life medical care, the disposition of your body after death, and/or the type of service held in remembrance of your life, you should consult with an elder law attorney to ensure that those wishes and beliefs are honored. If you fail to plan ahead, your loved ones could end up in a protracted court battle over the right to make healthcare decisions for you. Conflict may also erupt after you are gone if loved ones cannot agree on the details of your funeral and burial. By preparing an advance directive and incorporating a funeral planning component into your estate plan you can ensure that your wishes will be honored and prevent additional pain and heartache for your loved ones.
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