What’s an elder law attorney?
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Elder law attorneys specialize in laws that pertain to issues affecting the elderly. Elder law encompasses many different fields of law and most elder law attorneys specialize in only a number of those areas; not all. So when an attorney says they practice elder law, ask which matters they handle in particular. Areas of elder law include:
- Preservation/transfer of assets seeking to avoid spousal impoverishment when a spouse enters a nursing home
- Medicaid and Medicare claims and appeals
- Disability planning, including use of durable powers of attorney, living trusts, and “living wills,” for financial management and health care decisions
- Estate planning, including planning for the management of one’s estate during life and its disposition on death through the use of trusts, wills, and other planning documents
- Administration and management of trusts and estates
- Social security and disability claims and appeals
- Supplemental and long term health insurance issues
- Conservatorships and guardianships
- Probate
- Elder abuse and fraud recovery cases
- Housing issues, including discrimination and home equity conversions
- Age discrimination in employment
- Retirement, including public and private retirement benefits, survivor benefits and pension benefits
- Health and mental health law
Some of the most common areas of elder law are discussed in more detail below:
Estate Planning
Estate planning is important because it gives you control. It allows you to make important decisions regarding how your estate will be handled and who rightfully receives your property when you die. It also helps you save on taxes, court costs, and attorneys’ fees. And it allows your loved ones to mourn your loss in comfort without the added worry and burden of sorting out your finances.
All estate plans should include the following:
- A durable power of attorney — to manage your property while you’re alive should you become incapacitated or too ill to do so yourself
- A Last Will and Testament document — to ensure the distribution of your property is carried out legally and according to your wishes after you die
- A living trust — to hold assets from young beneficiaries until you feel they’re mature enough to manage their own affairs
Medical Directives
The medical directive includes a variety of documents, depending on your state’s laws and your preferences. Forms may include a health care proxy, a durable power of attorney for health care, a living will, and medical instructions.
The health care proxy and a durable power of attorney for health care designate someone you choose to make health care decisions for you should you become unable to do so yourself. A living will instructs your health care provider to withdraw life support if you are terminally ill or in a vegetative state.
Wills & Trusts
The will is a legally-binding statement directing who will receive the deceased’s property at death. It also appoints a legal representative to carry out the person’s wishes. However, the will covers only probate property. Many types of property or forms of ownership pass outside of probate. Jointly-owned property, property in trust, life insurance proceeds, and property with a named beneficiary, such as IRAs or 401(k) plans, all pass outside of probate.
A trust is a legal arrangement in which one person (or an institution, such as a bank or law firm), called a trustee holds legal title to property for another person, called a beneficiary. The trust instrument states the rules or instructions under which the trustee operates. Trusts have one set of beneficiaries while those beneficiaries are alive and another set of beneficiaries (often the children of the first beneficiaries) who begin to benefit only after the first group has died.
The greatest reason to establish a trust is to avoid probate. If your trust terminates with your death, any property in the trust prior to your death passes immediately to your beneficiaries according to the terms of the trust without requiring probate. This hassle-reducing process can save your beneficiaries time and money and can result in tax advantages both for you and your beneficiaries. Unlike wills, trusts are private documents. Only those who have a direct interest in the trust need know of its assets and distribution.
Trusts fall into two general categories: testamentary and inter vivos. A testamentary trust is one created by your will, and it does not come into existence until you die. An inter vivos trust starts during your lifetime; you create it now and it exists during your life. There are two kinds of inter vivos trusts: revocable and irrevocable.
Revocable trusts are often called living trusts. With a revocable trust, you maintain complete control over the trust and may amend, revoke, or terminate the trust at any time. This means you can take back the funds you put into the trust or change the trust’s terms. In contrast, you cannot change or amend an irrevocable trust. Any property placed into the trust may only be distributed by the trustee as provided for in the trust document itself.
Guardianship and Conservatorship
By law, every adult is assumed capable of making their own decisions. Only a court of law can determine otherwise. If a court should determine an adult has become incapable of making responsible decisions (usually due to a mental disability), the court will appoint a guardian, (called a conservator in some states) to make decisions for the adult.
Guardianship is a legal relationship between a competent adult (the guardian) and a person who because of incapacity is no longer able to take care of their own affairs (the ward). The guardian is authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions. In many states, a person appointed only to handle finances is called a conservator.
Estate Administration
Probate is the process by which a deceased person’s property, known as their estate, is passed to his or her heirs as named in their will. The entire process, supervised by the probate court, usually takes about 12 months. However, the responsibility of handling probate ultimately falls on the executor or personal representative of the will.
What do I do once I’ve found an attorney?
During the initial consultation with an attorney, you’ll be asked to provide an overview of your need of assistance, so be sure to bring all the information pertinent too your situation. After you have explained your situation, ask:
- What will it take to resolve it?
- Are there any alternative courses of action?
- What are the advantages and disadvantages of each possibility?
- How many attorneys are in the office?
- Who will handle your case?
- Has that attorney handled matters of this kind in the past?
- If a trial may be involved, does he/she do trial work? If not, who does the trial work? If so, how many trials has he/she handled?
- Is that attorney a member of the local bar association, its health advocacy committee, or trust and estates committee?
- Is that attorney a member of the National Academy of Elder Law Attorneys?
- How are fees computed?
- What is his/her estimate of the cost to resolve your problem and how long will it take?
What are the fees?
Some attorneys charge by the hour with different hourly rates for work performed by attorneys, paralegals, and secretaries. Other attorneys charge a flat fee for all or part of the services. This is not unusual, for example, if you are having documents prepared. Your attorney might use a combination of these billing methods.
Most attorneys will charge you out-of-pocket expenses which typically include charges for copies, postage, messenger fees, court fees, disposition fees, long distance telephone calls and other such costs.
The attorney may ask for a retainer. This is money paid before the attorney starts working on your case. It is usually placed in a trust account and each time the attorney bills you, he/she pays himself or herself out of that account. Expenses may be paid directly from the trust account. The size of the retainer may range from a small percentage of the estimated cost to the full amount.