What is Elder Law?

by Brian Andrew Tully  –  An old Pennsylvania Dutch proverb says, “We get too soon old and too late smart.” Unfortunately, this happens to a number of our Nation’s senior citizens when it comes to the concept of elder law. Quite frequently, an elder law attorney will be contacted by a child or spouse who is suddenly faced with the reality that their loved one requires some form of skilled nursing or long-term care. Usually, the flood of questions and “what if” scenarios from other family members and health care professionals can start to overwhelm even the strongest of spouses or the most reliable of children.

While much of the emotion and uncertainty in common situations like this cannot be preempted or resolved in advance, some of the most complicated matters, such as establishing who will make the health care decisions? what health insurance coverage exists? and what the best way is to protect the family home can be addressed by an experienced elder law attorney before you get “too soon old.” Failure to address these issues in advance of a health care crisis will certainly cost more money and cause more stress, and usually requires court intervention. You can plan ahead to avoid a crisis situation by being armed with accurate knowledge and having in place the necessary tools and mechanisms to help if such a situation arises.

The field of elder law, like estate planning, is not an isolated field of law confined to a single set of statutes and regulations, as you would typically find with other areas of the law. Rather, elder law is defined by the various needs of the client to be served. For example, elder law encompasses most issues a typical senior citizen will face dur­ing the second half of his or her life: legal; financial; tax; health insurance; asset protection; housing; and government benefits. Addressing these issues in advance will help you to avoid a crisis situation. While everyone should establish a proper estate plan when we begin our family and/or our careers, a good rule of thumb in establishing our “elder law plan” is to meet with an experienced elder law attorney when you receive your Medicare card at 65 years of age.

A typical elder law plan includes both advice and legal documentation. The advice revolves around achieving the following common goals: maintaining your current standard of living; ensuring all of your hard-earned assets go to your family how and when you choose; reducing or eliminating taxes and administration expenses; establishing who will handle your financial and health care decisions; and planning for and minimizing the expense of potential long-term health care needs.

The experienced elder law attorney can help you achieve these goals by advising you of the legal and financial strategies available and helping you evaluate the benefits and limitations of the Medicare and Medicaid programs, long-term care insurance and the concept of self-insuring.   Moreover, the elder law attorney can help you implement an elder law plan through documentation that balances these goals and issues. Your elder law plan must be completed before incapacity strikes, as you must have the ability to understand and express your decisions regarding the necessary legal documents such as a Durable Power of Attorney for Medical decisions (sometimes called a Health Care Proxy), Durable Power of Attorney for Finances, a Living Will, a Last Will and Testament and even a Trust.

The exorbitant costs of long-term health care are typically the motivator when it comes to addressing the various elder law concerns. Long-term health care, which is usually not paid for by Medicare, is typically required when someone suffers from a chronic or disabling condition that requires either skilled nursing care or custodial assistance with common activities of daily living such as bathing, walking, and toileting. The out-of-pocket costs for these services can range from $2,000 per month up to $20,000 per month depending on the level of care needed and the market rate for the services in your region.

There are only a few payment options when the need for this type of care exists. First, Medicare offers only a limited benefit for those services that are skilled or therapeutic in nature. When Medicare coverage ends, families that have not planned in advance are faced with the extreme costs of paying for the needed care themselves until eligibility for Medicaid is obtained. The eligibility process for this second option can cost upwards of 50% of a single person’s assets. If a person is married, eligibility can usually be obtained earlier but there is a very serious risk; the spouse who is not in need of the long-term care faces the potential of being sued for reimbursement by the local Medicaid agency.

The third, and most recommended option for elder law planning, is to consider long-term health care insurance. A properly placed long-term care insurance policy can help protect the lifestyle of your spouse and/or family from the high cost of long-term care and can help protect your assets for your heirs. Each state is encouraging its residents to consider purchasing this type of health insurance. The New York State Office of the Aging confirms this on their Web site with the following advice: “insurance is an important part of securing your financial goals. Long-term care insurance can help to safeguard your assets and protect your financial stability…[it] is an important tool to help you with the high cost of long-term care services.” There are several variables to consider when obtaining this type of health insurance. Your elder law attorney can help you sort through the various options.

While most agree that we do get “too soon old” it is very important to realize we do not also have to be “too late smart.” Be encouraged in that there are proactive steps you can take in advance of any long-term health care need that can help you maintain control and security even as you face new challenges.  Start the process by sitting down with an experienced elder law attorney and explore your options.

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Stanley H. Rosen
9 years ago

On Nov 6, 2012 our beautiful country died….Obama killed it and will continue to do so…and Bernanke is his acomplice..

Obama needs to be impeached and gotten out of office before he cando more damage to America….He is a muslim, an anti-semite and doesn’t give a damn about the middle class or any class as long as he gets what he wants from us….look what the idiot did in Egypt did…that is exactly what Obama wants…and hopefully he won’t get it.

10 years ago

You have a special gift for wrniitg. You can express your thoughts in unique, original content. This information is formatted in easy to read terminology that nearly any reader can understand. Thank you for sharing.

10 years ago

At 58, life sure isn’t what I had pictured in my youth. It would be great to live back in the ’50s again, sadly our nation has “progressed” to such a Liberal state that next year my retiree health coverage will be dropped and I will be forced to join the ranks of Obamacare. We all vent these problems, yet when someone stands up and demands action no one will support them. I think it’s time we all took a long, hard look into the mirror and decide if we’ll be sitting on the sidelines or doing something about the direction our country is headed. The Right is criticized as curtailing all the Liberties our Constitution has granted, yet the Left is granting far more than our forebears ever had in mind. Who will lead us out of this morass? We need a viable leader and I don’t see it in the likes of either Gingrich or Romney. Ron Paul isn’t my first choice, but my only choice at this point. If nothing else, he will certainly shake things up. [Not meant to be a political endorsement–just totally fed up with where our great nation stands at this point in time]

10 years ago

I have an elder care attorney who has advised me and my siblings on some issues. How do I find out, without getting several more opinions from other attorneys, whether his advice is for our good or his own?

Robert,USN, Ret
10 years ago

Thank you,, Joe Reisinger. Everyone should note those comments. “Elder law”specialist” is just the same as “Sanitation Specialist”. It is a deviation in the English language. An Attorney at Law, and a Janitor.
Much the same as the writer that uses the term Pennsylvania Dutch. Incorrect. Originally referred to the German immigrants that settled in that area. Pennsylwanisch Deutsch, as in Deutschland (for Germany). Thus, Germans of Pennsylvania. Maybe were some Dutch, but the two are separate identities. Pennsylvania Dutch joins the long list of other inappropriate terms that arose from incorrect pronunciation. Much the same as the word Negro. Black in several languages. Slurred into what became the hated “N” word, and further prostituted by the PC crowd that speaks of African-Americans. No such animal! Black Americans, White Americans, et al—best—just Americans. Native Americans? That is anyone born in this Republic. Amerinds, (American Indians) is better. Less derogatory. Another example of distorted and inappropriate “labeling”. As is “elder law specialist”.

B. Dalton
10 years ago

As far as most of us care you should BURN Ruth Bader G. At the stake!!!!!!!!!

10 years ago

Great reminder to take care of business sooner rather than later. Some people might be skeptical about this new concept of elderlaw but I definetaly trust them since they do specialize in their field just like a criminal lawyer specializes in their area .

Montana Bud
10 years ago

Very good article and responses. I to would like more info. on who to dontact for “elder law”n issues.

Joe Reisinger
10 years ago

In response to “Iuine” above, avoiding probate should not be particularly high on your lift of values for having good counsel.

In most, if no all, states, the cost of probate is regulated by the judicial and the costs are relatively minimum. By properly probating an estate, the beneficiaries are able to cut off an ongoing accumulation of debts which may or may not have been properly accounted for. Probates are generally straight forward, simple, and relatively inexpensive. Alternatively, in 40 years of law practice, with only a couple of exceptions, I have NEVER seen an inexpensive conservatorship. A conservatorship is traditionally what you get when the party becomes unable to care for themselves, but hasn’t yet died. Death is pretty simple, it is finite and cuts off the accrual of obligations. On the other hand, a conservatorship lasts as long as necessary until recovery or death comes about. If you do NOT have a trust that addresses these issues for you, then the court will appoint a conservator. All fees and expenses are to be paid out of your estate and the merely fact of the court having to account for the conservator’s expenses drives up the cost tremendously, While don’t what the statistics are now, in 1996 or so, the chances were 14 times greater that you would become disabled before becoming deceased. Yet, most “clients” came into my law office wanting a “will” with little or no regard for a conservancy of some time. The moral is clear. When dealing with any professional; do not have the arrogance to tell them what you need or want; rather, tell them what you want to achieve and let them use their expertise in telling you what you need.

10 years ago

My grandmother is 99 and I don’ t think she should have to pay taxes anymore. She usually pays 500.00. She is on a very limited income but lives in assisted living which takes all her monthly income and some savings. What would be the ramifications if nothing was done tax wise. I would almost love to see the IRS try to prosecute a 99 year old. I feel she has paid her fairness share.

10 years ago
Reply to  Karen

I totally agree that our parents/grandparents after a certain age, should never have to pay taxes again especially if these elderly have contributed their entire life into the system. I would like to see them force generational welfare users/abusers off the welfare rolls and put that money toward making the end of life for our elderly a celebration instead of keeping them in poverty. It is a no-brainer that these younger people should be put to work and support the elderly by paying taxes, paying into social security and medicare, but our government prefers to let them suck up all the resources the middle class pay into. It is shameful the way our elderly our treated and it scares me to think that someday we will all be in that position and this government is continuously taking away from them instead of celebrating them.

10 years ago
Reply to  Treasa

oops…that should have been “are treated” not “our treated”

10 years ago

I was able to secure Log-Term Health Care insurance for myself but not my wife due to the pre existing condition of MS.
Finding a good elder-law attorney was not difficult. I already had an attorney that I have used for years and he recommended one for me. It turned out well.

10 years ago

The only recourse left to senios, such as myself, is to vote Obama out of office. In addition to health care Harry Reid managed to put in an outrageous death tax! If you don’t vote you don’t have a voice so VOTE!!

10 years ago

A very poorly writen article ! No mention of the best option for a married couple, annuities!

My parents have a house worth about $500,000 and savings of $200,000 and are both in their 80’s I went to five so called elder law attorneys and not one of them gave me all the answers, one even refused to work with me after I refused to sign a cover page without seeing the complete document. I ended up getting the best advice from a general attorney. What I found out was that in order to qualify for medicaid assistance when one spouse goes into a long term care facility, whether assisted living or a nursing home they can not have over $2000 in assets, plus a home and a car. I protected their assets by selling the not allowed assets and quit claiming the remaining to the spouse not needing LTC and then putting all the cash into an annuity. This is not just any annuity. It is a very special annuity that most insurance agents don’t know how to write. You have to ask the agent if they write annuities that exempt them from consideration when filing a medicaid application. One of the attorneys I went to multiple times indicated that he would write the annuity when actually he was passing it on to an insurance agent and getting an additional commission.

Again, I cannot say how important it is to go to more than one attorney and it doesn’t have to be an elder law attorney. Elder law attorneys think they are smarter than anyone else and only tell you enough information so you keep coming back.

Joe Reisinger
10 years ago
Reply to  Terry

You make an excellent point about lawyers who call themselves “elder law” attorneys. As a general civil trial lawyer, I have just retired after 40 years of “lawyering” in the civil arena. Much of my practice was devoted to defending lawyers at the request and expense of their malpractice (errors & omissions) insurance companies. It was my observation that after years and years of practice, when the hair has turned grey and the middle has spread out, lawyers who for whatever reasons were unable to develop a following of loyal clientele, now tend to resort to calling them selves “elder lawyers” or lawyers specializing in “elder law”. It is important to remember that this is an “advertising label”. It does not designate any special expertise or specialty in any areas.

Before my mother’s death two years ago, I attended to all her legal needs along with those of many of her friends. What I encountered was that a fair number of attorneys said they specialized in “elder care” as they mainly wanted to have clients who were not the sharpest tool in the shed. That often gave them an opportunity to engage in business practices that were either not needed, or not for their client’s benefit. Pathetically, I had noticed this same tendency amount the attorneys I represented for the malpractice insurers.

Now that I’m squarely in that category of “Seniors Citizens”; and, I’ve not bothered to keep up with many of the new tax and probate rules, nor do I following the legislation addressing retirement homes and handicapped facilities, I too am in need of “elder lawyers” from time to time.

While I haven’t yet figured out how to get the best lawyers, what I’ve decided on is retaining those attorneys who I knew were exceptionally fine advocates in their prime, and trust that they have remained a cut above the average since getting old themselves. What that is not a perfect criteria, it does seem to be better than having nothing to go on or otherwise having to count or recommendations of bar associations who typically have the “lawyers interest” at heart when linking lawyers with clients.

10 years ago
Reply to  Terry

The rise of Long Term Care Partnership Programs has nearly eliminated the use of these “special” Annuities (those with that buy LTC (not the rider(s) types. We have them were I work but they are not allowed to be written just now cause of the new Partnership Laws. Annuities are the best way to go, however, the only way to truly protect the families assets from Estate Recovery are dollar for dollar LTC partnerships.

I work with Seniors and their families daily as an Insurance Producer for Bankers Life, they need to get their heads our of the sand, they need to realize that their families will only be able to provide informal LTC and when the need to formal LTC is needed they must use their assets unless they have transferred their risk with LTC insurance. I write a lot of LTC and (short) Term Convalescent Care!

Robert Pfeiffer
10 years ago

There could be more money available for Senior care in later life if our leaders would change the laws allowing Illegal’s to come here and have their “Anchor Babys”.& then get on the “system”. Our Seniors have worked their life & paid taxes & are certainly more entitled to state & federal entitlements then are the illegals that are invading us.

10 years ago

The anchor-baby provision was never intended for illegal aliens. It is being used improperly and should be removed from the books. The sooner it is repealed the better off this Country will be. We barely can get ourselves taken care of in an emergency-room without proper documentation and insurance. But the illegals will outnumber you in the waiting room while they get taken care of first, without insurance. I know several of these folks and I understand where they are coming from. They want to do the best they can for themselves and their families but they are doing it on the backs of every one of us who work every day and pay our taxes. A lot of the money they make goes back to their home country. Some of them have shown me pictures of the houses they are building back home. They are twice the size of mine. But, when what they are doing impacts this Country, in a negative way, then that’s the time something has to be done to correct the problem. When the illegals come here they are breaking our laws and as far as I’m concerned they have NO RIGHTS what-so-ever and when they are caught they should be shipped back home with their “anchor-babies” and not allowed to reenter thiscountry for at least ten years. I’m sure that whatever job they leave behind will be, happily, filled by an American citizen without a job or by one of our returning military personnel. Obama is bringing the troops home, but to what? No jobs, nothing for them to do but go on welfare and start living off the govt. teet. Socialism is great until you run out of other peoples money. Didn’t mean to rant but it shows how really angry I am over this administrations BS.

10 years ago

every senior need to know before they are put in a nursing home.

Dr. Michael Caudle
10 years ago

At age 65, and with a wife who will turn 65 next month, we are among the huge Boomer generation that is beginning to retire and face the final chapter of life’s realities. While we are both relatively healthy, we are seeing the signs of oncoming physical issues. It is unfortunate that most of us don’t think about this eventuality until we’re there. I guess it’s normal. But, the reality is, when you wait until this stage of life to consider Long Term Care insurance, it is so expensive. Just at the time when we’re thinking we’re about ready to step into the next phase of our lives, we are faced with the real possibility that we’ll have to shell out big premiums for care that we may never need. So, the conundrum is, do we pay now and see a big reduction in our discretionary income that will pretty much stabilize over the years and be subject to inflationary erosion, or do we take the risk of not taking the LTC option? I just don’t know. This was a good article to get me to thinking about it again. Best wishes to all of you who are reading this article and these posts. I just know that the Obama health care plan will likely take this nation down fiscally. May God’s wisdom prevail at this critical juncture in our nation’s history.

John Detwiler
10 years ago

I shudder to think what will happen to us senior citizens. When I hear that in 2014 our out of pocket expences for Medicare inder Obama care will be in excess of $200.00. I guess then we will have to live in a tent and feast on whatever handouts that we dan get in order to survive.

10 years ago

It would be great if AMAC had a list of attorneys who specialize in this – It took MONTHs to find such an attorney when we were dealing with my mother’s affairs.

10 years ago

In my opinion, the Constitution is as fresh today as the day it was written. It is full of life and energy and carries with it the hope of “Life, liberty and the pursuit of happiness” for all who embrace it. I think the only thing “rather old” is Justice Ginsburg!

10 years ago

This is a timely article, one which hopefully many will follow. I purchased long-term care insurance soon after my husband died in 1995 and am so grateful for the investment. One thing I failed to do was to include an inflation clause and when I inquired about it, the price was more than I thought I wanted to pay. I have a fairly decent monthly income and a bit of investments, and no mortgage so, am hoping should I ever need the care I can get it.
My mother was in a wonderful health care center here in Central Florida, and I’ve advised my sister that should I ever need the care, that is where I want to be. A year of observing the care she received was very impressive.
I also volunteer for our local Hospice care center so I also know how patients there are cared for,
One should also look around at the facilities available in their area prior to needing one.
Thanks for the article.
The most important thing we have to fear is what the Obama administration will do to our system of health care should he be re-elected and the Supreme vote in favor of ObamaCare. Heaven help us.

10 years ago

Thanks, we need to be reminded to take care of the later life issues, and ways to avoid probate,and court issues.

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