Growing older comes with many questions that nobody really prepares you for. Who makes medical decisions for you when you can’t? What happens to your home if you end up needing a nursing home? How can you protect the assets that you’ve worked a lifetime to accumulate while ensuring that you are receiving the care that you need?
Elder law addresses these questions, as well as many other important ones that people are unsure about as they age. We tell people that it is not just about drawing up a will or a trust. Elder law encompasses everything from healthcare decisions to government assistance, from protecting vulnerable adults to disabilities that we hope we never encounter.
If you are caring for aging parents, are about to enter retirement yourself, or are trying to help a loved one navigate the confusing world of Medicare and Medicaid, it’s important that you are aware of the basics of elder law to prevent costly mistakes that can cause a great deal of stress.
At Suarez Lawyers, we work with families every day who wish that they knew about these options sooner, before a crisis forced them into a decision that they now know wasn’t their best choice.
What Elder Law Covers
What Elder Law CoversElder law is not one single practice; instead, it is a group of legal services that are specifically designed to help the elderly population. Elder law is a specialty that combines elements of estate planning, healthcare law, disability law, and government benefits.
The major areas that elder law deals with include:
1. Estate planning that takes into consideration the cost of long-term care
This involves the creation of wills, trusts, powers of attorney, and the designation of beneficiaries. Elder law estate planning is more complex because it must consider the costs associated with long-term care that can consume all the savings that one has worked hard to accumulate.
2. Medicaid planning that helps one qualify while still preserving their assets
Medicare is a healthcare plan that helps the elderly population pay some healthcare costs. However, it does not help pay for long-term care in a nursing home unless the income and asset limits are met. Elder law attorneys help families legally protect assets while still qualifying for Medicaid when long-term care becomes necessary.
3. Guardianship or conservatorship of incapacitated adults
This is where legal intervention is required because an individual is no longer in a state of sound mind due to dementia, a stroke, or other medical issues. Sometimes, family members need court authority to help manage finances or make medical decisions regarding a family member who did not plan ahead.
4. Special needs planning for disabled family members
This involves disabled individuals of any age but usually involves aging parents planning for disabled adult children. The focus is on ensuring that a disabled child will continue to receive proper care when parents pass away without disqualifying them from government benefits they depend on.
5. Elder abuse and exploitation protection.
This involves financial exploitation, neglect in nursing homes, or even family members taking advantage of a confused senior. Lawyers help stop abuse and recover stolen assets when possible.
6. Veterans benefits planning for former service members
This involves obtaining Aid and Attendance benefits or other government programs to help pay for elder care. The process is complicated, and a mistake in the application can cause a delay in benefits for months.
How Elder Law Attorneys Help You Plan for the Future
Everyone believes that they need a lawyer when something bad happens. In elder law, the idea is to get the help you need before the bad thing happens.
What elder law attorneys help with:
- Knowing the ins and outs of the Medicaid five-year rule and what works and what doesn’t when it comes to asset protection.
- Keeping up with the latest changes in the law, as Medicare, Medicaid, and tax laws are constantly changing.
- Creating estate planning documents that actually work.
A power of attorney created from a template may be rejected by the bank, and health care directives need to be written in a way that is valid in your state.
Long-Term Care Planning Guide
Long-term care planning might be the most significant aspect of elder law that families fail to take advantage of. Nursing home care can cost anywhere from $8,000 to $12,000 a month. Assisted living can range from $4,000 to $6,000 a month. Even in-home care can be expensive.
The Reality:
- Medicare does not cover long-term care. Medicare can cover short-term skilled care following a hospitalization, but it does not cover the long-term care that most people ultimately need.
- Long-term care insurance is not adequate. Many people lack the right insurance coverage, and others cannot afford the increasing premiums.
That leaves two major choices. Pay your own money until it is exhausted, or apply for Medicaid. Medicaid pays for long-term care, but you have to have limited assets, such as $2,000 if you are single.
Long-term care planning is the legal way to protect some assets while ensuring you qualify for Medicaid when you need it. This can involve the use of irrevocable trusts, the timing of asset transfers, and the conversion of countable assets to exempt assets.
If not done properly, you can end up with a denial of benefits, leaving you in a difficult position.
Estate Planning Documents Every Senior Needs
Basic estate planning tools form the foundation, but seniors need specific documents that younger people often skip.
Essential documents include:
- A durable power of attorney for finances lets someone handle finances if you can’t. Without one, the family may need a court-appointed conservator.
- Health care directives include a living will that outlines treatment wishes and a healthcare power of attorney that lets someone make medical decisions. Without these, the family may fight over what to do.
- A revocable living trust avoids the court process of probate, keeps things private, and lets someone handle finances if you become incapacitated. This is important if there is a threat of cognitive decline.
- HIPAA authorizations let someone access medical information. Without these, even the healthcare agent may not be able to get information from doctors.
- A will specifies who gets property, but it does not avoid the court process of probate or help if the person becomes incapacitated.
An estate planning attorney can help ensure that all the documents work together correctly and that the documents comply with the state’s requirements.
Why Legal Precedents Matter in Elder Law
Precedents (previous court rulings that help determine how the law is applied) play a huge role in elder law because so much of it deals with government programs that have complex rules.
How Precedents Affect Elder Law
1. Medicaid planning
This relies on court cases to determine what planning techniques work. Can you give your home to your kids and still qualify for Medicaid? Precedents tell you how to make it work.
2. Guardianship cases
These are determined by how guardianship cases turn out. What evidence is necessary to prove that someone is incapacitated? Precedents tell how to determine whether someone’s wishes should be followed.
3. Elder abuse cases
Precedents determine whether undue influence has occurred. Someone with dementia changes their estate plan to favor their new “friend.” Precedents tell us whether this was their choice or whether someone took advantage of them.
4. Special needs planning cases
Precedents determine whether someone qualifies for SSI or Medicaid. Precedents tell whether certain types of trusts work.
When You Need an Elder Law Attorney
Although not all elders need the assistance of an attorney, there are some situations that definitely do. Facing a nursing home stay that will quickly drain your savings. Planning for Medicaid must begin immediately with an attorney familiar with the rules in your state.
A family member is no longer able to make decisions and did not plan in advance. The rules and deadlines for guardianships and conservatorships must be strictly adhered to.
You suspect that a family member is being financially exploited or abused. A lawyer will investigate the matter, take legal action, and work with protective services to put a halt to the abuse.
Dealing with a multitude of government programs such as Medicare, Medicaid, VA benefits, and/or SSI. A seasoned elder law attorney will prevent costly mistakes in the application process.
You have special needs family members. Special needs trusts require the involvement of an attorney. The rules for these trusts are strict and unforgiving, and mistakes will disqualify a special needs individual from benefits that could be vital for their care.
Although things may be going well at the present time, getting basic documents in place will make things much easier in the future.
Moving Forward With Confidence
Moving Forward With ConfidenceAging comes with various legal challenges. The best way to avoid crises is to plan ahead. Elder law is heavily dependent on the application of various laws by the courts. Therefore, it is difficult to get the necessary information online.
When planning for yourself or your aging parents, it is important to consider the various legal challenges. Medicaid planning, healthcare planning, and estate planning are important when you are still able to make your own decisions. This may help you avoid guardianship.
At Suarez Lawyers, we are dedicated to protecting the rights, dignity, and property of seniors. Are you facing various challenges concerning your long-term care planning and estate planning?
Getting guidance from experienced attorneys may help you avoid various situations that may be difficult to fix when you are in crisis.