According to a recent blog post by Matsen, Miller, Cossa & Gray law firm explains the distinction best:
“The job of a conventional estate planning attorney concerns What Happens When I Die? Estate planning is creating a plan for issues surrounding death and incapacitation, avoiding taxes, planning around probate, and transferring assets to one’s heirs.
On the other hand, an elder law attorney focuses on What Happens as I Grow Old and Infirm? Elder law is creating a plan for aging in place and planning for how to pay for it.”
Although estate planning and probate are often the proverbial bread and butter of an elder law attorney’s work, the scope of their expertise extends into the long-term care planning realm and beyond. Age discrimination, durable powers of attorney, living trusts, Medicaid, Medicare, guardianship, conservatorship, long-term care insurance, joint tenancy, accessing public and private retirement/pension benefits, planning for health care decision-making, and elder abuse, neglect and exploitation are among the complex, specialized topics that elder law attorneys (ELAs) are prepared to navigate. Be advised: not all ELAs specialize in every one of these issues, per the National Academy of Elder Law Attorneys (NAELA). Elder law professionals also work on health care reform issues and advocate for vitally needed improvements to nursing homes.
Some ELAs are certified (CELA) by the National Elder Law Foundation (NELF). To qualify, they must have participated in at least 45 hours of continuing legal education over a 3-year-period, they are peer-reviewed by five competent references, they must pass a full-day certification exam, and they must be licensed to practice in at least one state (or the District of Columbia). CELAs must also be members in good standing of the bars in places in which they are licensed, and they must spend at least 16 hours a week practicing elder law.
A NAELA editorial outlines six reasons to consider hiring an ELA. Besides focusing on seniors’ unique legal needs and creating a plan for aging well in the setting of your choice, an ELA has a deep knowledge of, and empathy regarding, the special challenges that aging may bring – for example, difficulty with decision-making on account of a dementia diagnosis.
Another benefit of working with a seasoned ELA is the ability to access the attorney’s network and connections, which often pushes past the walls of the law practice and into the community (i.e. social workers, psychologists, and other elder care professionals). These connections are a vital component of successful aging at home or in senior living.
An elder law attorney’s reputation in the communities they’ve served is a good indicator of the value their services could afford your specific case, particularly as many of the aforementioned areas of expertise for ELAs are state-specific. Partnering with an ELA in the state in which your parent or older relative resides also gives you the geographic advantage that your family’s attorney could not provide.
Cases of elder abuse, fraud and exploitation are continually on the rise, and sadly those numbers are likely to expand, rather than regress, as the population ages. While you can be as vigilant about your finances and guard your personal information as much as possible, you or a family member are still at risk and cannot know if or when such an incident might occur. Not employing a home health worker to care for a relative or transitioning a parent to assisted living does not mean your family is sheltered from these risks either; there are countless stories of people in the early stages of dementia (who may not yet have a diagnosis) who have become victims of fraud or exploitation because balancing a checkbook or making financial decisions is often the first ability to go – or at least to suffer impairment. Statistics also suggest that most cases of elder abuse — financial, physical, sexual or mental – occur at the hands of family members and close, trusted friends. Should such an unfortunate scenario play out in your family, reaching out to an elder law attorney would be a wise move.
The NAELA website (NAELA.org) is a rich resource for all things related to elder law. You can search for an elder law attorney, learn about government, state and community resources available to you and your family, find tips for interviewing and choosing an ELA, and more. You can also search for elder law attorneys specific to your or a loved one’s home state at ElderLawAnswers.com. In addition the site features a legal “checkup” tool, offers several free, downloadable elder law guides on topics like Nursing Homes: Placement & Resident Rights, the basics of estate planning, and the probate process, and a Medicaid calculator. Of note: Forbes, The Wall Street Journal, and CBS Market Watch have endorsed the site.
Your estate planning may be sound, but if an older relative’s is questionably so, consider seeking the legal expertise of an elder law attorney. By doing so, you ensure that their unique needs are appropriately met, and in turn, you are building a relationship for the future should your own long-term care planning needs change.
Be sure your current — and future — financial house is in order before any legal issues arise. Contact an HJ Sims Income Advisor today to safeguard your investments for generations to come.