By: Attorney Gina C. Ziegelbauer
As the population ages and life expectancy increases, there has become a need for attorneys who focus on the issues facing seniors. This is partly due to the increase in individuals diagnosed with dementia and other chronic diseases and therefore, an increase in individuals requiring long-term or nursing home care. Over the last thirty to forty years, elder law has developed into a focus area that addresses the variety of issues seniors face within several different fields of law.
Elder law attorneys have additional training, education, and knowledge on the issues older individuals may face. This can include helping individuals and their families with planning for incapacity and long-term care, including Medicaid coverage of nursing home or home care, estate planning, and other issues. Elder law attorneys often have training in the specific issues individuals with dementia or other chronic diseases may face and use that knowledge and understanding to help clients in a number of ways:
Advance Planning for Life: A major part of any planning should be appointing your decision makers in the event you become unable to make or communicate decisions. This is done by executing a durable financial power of attorney for your financial matters, and a healthcare power of attorney for healthcare decisions. You may also decide to execute a living will or advance directive which sets forth your wishes with regard to life-sustaining procedures if you are in a vegetative state or have a terminal condition.
Planning for Death: Many attorneys who focus on elder law also do estate planning, and in fact, many elder law attorneys have estate planning as their primary area of practice. Estate planning might sound fancy but it’s really just deciding who will get your assets when you’re gone. There are different ways of getting your assets to the people you want, including beneficiary designations, through a trust administration, or a Will and probate proceeding. It’s important to think through the more concrete considerations like your financial situation, tax consequences, and ease of administration. But it is equally important to think through family dynamics and have other (sometimes not-so-comfortable) conversations to make sure your planning goals are met after you are gone. An attorney will advise the best way to have your assets get to the people you want, taking into consideration your decisions and goals.
Long-term care/nursing home planning: Elder law and estate planning attorneys can help with long-term care or nursing home planning in a variety of ways. This can include the preservation or transfer of assets during your life, applying for and qualifying for Medicaid , and nursing home patient rights or quality issues. This may involve planning for the future what-if’s, or may come about when you, your spouse, or your parent is facing an immediate need for nursing home or other care. The type of planning or action that can be taken will be different depending on what situation you’re facing, but generally, the earlier you talk to an attorney about long-term care planning the more options you may have.
Guardianships and conservatorships: A guardianship of the estate or person may be needed if a person becomes unable to effectively make or communicate decisions to such a degree that they are at risk and did not have powers of attorney in place prior. A guardianship is a court proceeding that removes the right to make certain decisions and appoints a decision-maker for that individual. A conservatorship is a similar proceeding but is initiated by an individual with capacity him or herself, whereas a guardianship may be petitioned for by a family member, the county, or another interested person.
Probate and post-death administration: Elder law attorneys may also be able to help you navigate a post-death administration. This may or not involve a probate proceeding, real estate transfers, or trust administration and distribution.
Most importantly, elder law attorneys regularly work with clients’ financial advisors and professionals, nursing home professionals, social workers, local Aging and Disability Resource Centers, and other elder care professionals to take a holistic approach to providing advice. This approach allows you to plan for incapacity or disability during your life and also reach your goals for your family or beneficiaries after your death.