11 Ways an Elder Care Attorney Can Help Family Caregivers of Seniors With Dementia
Reviewed by: Dr. Brindusa Vanta, MD
Acting as a caregiver for an elderly loved one, such as your parents or other relatives, can be a rewarding experience. However, there are also a lot of legal considerations you'll need to take into account as your loved one ages. Because laws affecting seniors can be complex, it can be helpful to work with a qualified elder care attorney who is an expert in navigating that legal landscape.
According to the Administration for Community Living, 16% of the U.S. population was over the age of 65 in 2019. As baby boomers reach their golden years, that section of the population is expected to increase to over 21% by the year 2040, and elder care attorneys will be even more in-demand.
To protect your elderly loved one's assets and assure their legacy, it's important to plan for the future. Each person's situation is unique, which can make the process incredibly complex. This is where an elder care attorney can help. Elder law is a specialized field that encompasses a wide range of legal concerns that are specific to the senior population.
In this guide, you'll learn about what elder care attorneys do and the ways they can help you and your loved one successfully manage legal needs that often arise with age. The guide concludes with an overview of what to look for in an attorney and how to select the right professional for you or your loved one's needs.
What Is an Elder Care Attorney?
Elder care attorneys handle legal concerns that are specific to those who are elderly or disabled. They can assist with the preparation and execution of issue-related documents and provide answers to any questions you have about those documents to help you provide care for your loved one as successfully as possible. This includes a variety of issues, including:
- Retirement and Social Security benefits
- Estate and financial planning
- Income, estate and gift tax planning
- Health care and long-term care planning
- Medicare and Medicaid eligibility and planning
- Guardianships and conservatorships
- Assisted living and nursing home care
- Elder abuse and age discrimination
- End-of-life planning
- Probate proceedings
Many of these issues can be highly sensitive and fraught with emotion. Elder care attorneys recognize this fact and tend to be compassionate and understanding. They can help you navigate difficult discussions with minimal stress on you and your loved one. As with any type of attorney, your personal information is protected under attorney-client confidentiality.
11 Ways an Elder Law Attorney Can Help You
Now, let's go into more detail about the specific ways an elder law attorney can assist you and your loved one.
1. Preparing a Will
Planning for what will happen to your loved one's financial assets, real property and other belongings after they pass is an important task. If your loved one dies without a last will and testament in place, the distribution of their assets may not be carried out according to their wishes. Instead, the courts in your state will handle the distribution, and this can add time, expense and stress to the process.
An elder law attorney can help you identify the key things that need to be included in the will to prevent any confusion during probate, which is the process of dividing up the assets. For substantial estates, this process can be highly complex, and your attorney can ensure nothing gets overlooked.
If your loved one doesn't have a large or complicated estate, it's possible to prepare the will on your own. However, it's still smart to have a lawyer review the document to verify that it has been completed correctly. This helps prevent anyone from challenging the will during probate, so the process happens without a hitch.
2. Maximizing Retirement and Social Security
Seniors may eventually reach the point when they are no longer able or no longer wish to work. If your loved one is retired or will be soon, you'll have to determine an appropriate plan for collecting their accumulated Social Security benefits as well as taking required minimum distributions from other retirement accounts. For those with substantial savings, this can quickly become complicated, especially when you factor in the tax implications for each of the various funding sources.
An attorney with expertise in this area can help you maximize income from Social Security and retirement savings while also minimizing tax burdens. As your loved one's situation evolves going forward, your attorney can also help you adjust distributions to handle additional medical expenses, long-term care costs, charitable giving and other financial needs. If your loved one has not yet fully retired, an elder care attorney can help ensure they are making sufficient contributions to retirement accounts to set them up for a stable future.
3. Experiencing Age Discrimination in the Workplace
For seniors who have not yet left the workforce, age discrimination in employment can be a major concern. Some companies may be reluctant to hire those who are nearing retirement age, even if they have the qualifications and experience required for a particular position. If you're concerned that your loved one may be experiencing age-related discrimination at work or while looking for a job, an elder law attorney can help determine whether you have a solid case, and take it to court or mediation, if necessary.
4. Navigating Medicare or Medicaid
To help with the costs of health care, your loved one may need to apply for either Medicare or Medicaid. While both function similarly to traditional health insurance, there are some distinctions between the two.
| Medicare | Medicaid | |
|---|---|---|
| Who is eligible? | Anyone over 65 or with certain disabilities | Low-income individuals |
| Are there associated costs? | Premiums, deductibles and coinsurance | No |
| What is covered? | Medically necessary services, equipment and prescriptions | Basic health care and prescriptions |
| Who provides it? | Federal government | Individual states |
| When is the enrollment period? | Annually from October 15 to December 7 or within 3 months of turning 65 | Anytime after meeting eligibility requirements |
| Does it cover long-term care? | No | Yes |
An elder law attorney can help you determine which program makes the most sense for your loved one's needs. They can also help ensure your loved one can take full advantage of the associated benefits and coverage options.
5. Establishing Guardianships or Conservatorships
At some point, your loved one may no longer be able to adequately care for themselves due to physical or mental limitations. An elder care attorney can be a valuable resource to establish an official guardianship or conservatorship for managing their health care and estate. This will give you more control over your loved one's care when they are unable to advocate on their own.
Even if your loved one is not fully dependent on you and only requires minor assistance, an attorney can provide legal advice and guidance for creating a care contract that protects you and your loved one. While not legally required, this document can delineate what you intend to do as a caregiver to prevent being taken advantage of. It can also help reduce tensions between yourself and your loved one should any disagreements arise in the future.
6. Setting Up Medical Directives
An advance medical directive is a document that your loved one can set up to state how they wish to be treated in the event they become unable to advocate for themselves. This document can address a variety of factors, including:
- Life-sustaining treatments
- Resuscitate or do not resuscitate (DNR) orders
- Surgical interventions
- Permanent vegetative states
- Terminal conditions
- End-stage conditions
- Blood transfusions
- Dialysis
- Organ and tissue donations
Your loved one may have strong feelings regarding any of the above medical interventions, and they may wish to delineate these in advance of potentially requiring them. An attorney can help you set up the appropriate documentation to alert medical personnel to your loved one's wishes should the need arise.
7. Assigning Power of Attorney
As their caregiver, your loved one will likely wish to give you their power of attorney. This means you will be able to make important decisions on their behalf if they are unable to do so themselves. Power of attorney can be as broad or limited as your loved one would like, so it's important to work with a qualified attorney to iron out the details.
For example, your loved one may wish for you to take control of their finances but prefer to use an advanced medical directive for health-related decisions. In other situations, they may wish for you to make all necessary decisions for them. Your attorney can help you work out the details so you're clear about what you are and are not able to do.
8. Planning for Long-Term Care
Eventually, you may reach a point when you are no longer able to provide the care your loved one needs. This could occur if your loved one suffers from dementia or requires significant medical assistance on a regular basis. It could also be that your own personal situation changes, such as if you have to move for a new job or add a child to your family. No matter the reason, it's important to have a plan in place if your loved one needs to move into an assisted living facility or a nursing home or transition to another long-term care arrangement.
Long-term care of any type can be incredibly expensive, and the ongoing costs could put a strain on your loved one's estate and your own finances. If a senior meets the eligibility requirements, Medicaid can cover the costs of long-term care. Working with an elder law attorney in this situation is critical. Your lawyer can assist you and your loved one in verifying eligibility and applying for coverage. They'll also do whatever is possible to shield your loved one's assets against being used to cover the costs of long-term medical and residential care.
9. Handling Elder Abuse
As unfortunate as it is, seniors are often the targets of financial scams from criminals and, sometimes, even from their own children and grandchildren. If you suspect your loved one may be the victim of elder abuse, contact an elder law attorney right away. A lawyer with experience in this area can help you verify any fraud and work with local authorities to resolve issues on your loved one's behalf.
Elder abuse can also encompass physical, psychological and sexual abuse in care settings. Although most senior care facilities have the best interests of their residents at heart, there are still those that either don't notice or turn a blind eye to abuse occurring within their communities. An elder law attorney can help fight for your loved one's safety to end the abuse or get them transferred to a safer facility, if needed.
10. Planning End-of-Life Preparations
End-of-life planning encompasses several tasks, some of which were discussed in previous sections. These include:
- Preparing a medical directive
- Assigning power of attorney
- Creating a last will and testament
End-of-life planning also includes delineating your loved one's wishes, if any, for their funeral and what they wish to happen to their body after their death, such as burial, green burial or cremation, including where they wish their ashes to be scattered. Finally, this planning can also include the preparation of an obituary.
Of course, no one really wants to discuss the topic of death, and an elder law attorney will be well aware of this. They'll work with you and your loved one to make the end-of-life planning process as simple and painless as possible given the circumstances.
11. Managing Probate Proceedings
Probate is the process of executing your loved one's will after their death, including distributing their assets. Of course, this assumes your loved one had a last will and testament in place, as discussed above. Without a will, the court system in your state will step in to divide up your loved one's assets among their descendants. Court fees can reduce the value of the estate if this is the case, so it can be helpful to have a will to prevent any complications.
Your elder law attorney can oversee the probate process and ensure your loved one's will is executed according to their wishes. An attorney experienced in this area can help things go as smoothly as possible so you and your loved one's other family and friends can focus on grieving the loss, not on legal issues.
Steps To Choose an Elder Law Attorney
Choosing an elder law attorney is a personal decision, so it's important to take your time making the selection. Follow these steps to ensure you find the right fit.
- Figure Out What You Need: While all elder care attorneys specialize in working with seniors, they don't all focus on the same areas. For example, one might primarily handle wills, medical directives and other documents, while another might specialize in handling issues involving Medicare and Medicaid. Take the time to work out your loved one's primary needs, so you can focus your search on the attorneys who provide those specific services.
- Search for Attorneys in Your Area: The National Academy of Elder Law Attorneys and the National Elder Law Foundation both provide robust search capabilities to help you find qualified lawyers serving your location.
- Do Some Deeper Research: Once you have found a few attorneys in your area, you can begin to dig a little deeper. Take the time to browse the attorneys' websites and read online reviews to get a better sense of what it's like to work with them. Don't be shy about asking friends and family for referrals, as well.
- Schedule a Consultation: Most attorneys provide an initial consultation free of charge. This preliminary meeting will give you a feel for the lawyer's style and personality so you can verify that they are a good fit.
At the end of the day, only you can determine which elder law attorney is best for your needs. While some of this decision will come down to the lawyer's capabilities and credentials, some of it also involves personality. Trust your instincts, and don't be shy about asking plenty of questions until you're sure you've found the best representative for your situation.
