As the economy is starting to bounce back, the foreclosure and short sale market is drying up. The law of “supply and demand” is causing many attorneys who practice in those areas of law to decide to practice “elder law.” This concerns me greatly as the laws and regulations affecting seniors are very complex (and seem to be more confusing every day).
The actions an attorney recommends regarding estate planning can have unintended legal effects on senior citizens. For example, if you have an ill spouse, and you rewrite your will to disinherit your spouse, the attorney needs to know about Medicaid and whether there are any legal issues that would affect your spouse’s inheritance rights.
An attorney who handles several different areas of law (i.e., we do everything – family law, criminal law, personal injury, real estate) may not be the wisest person to advise you on the distinct nature of elder law issues. It is important that the person you choose to advise you on elder law and estate planning issues has a broad understanding of the laws that can affect your situation.
[pullquote_right]Plainly put, you wouldn’t visit your family doctor (general practitioner) to help cure your cancer — you would visit an oncologist (specialist). The same idea applies here. [/pullquote_right]
What are the different areas of law that an elder law attorney should have (more than a basic) understanding of?
- Estate planning and probate avoidance techniques
- Disability planning (to include the use of durable powers of attorney, living trusts, living wills and health care surrogate designations) and how these documents need to be drafted to plan for incapacity issues and the possible need for Medicaid in the future
- The Medicaid laws and how they affect a community spouse or disabled child
- Medicare claims and appeals
- Long term health insurance issues
- Social security and disability claims and appeals
- Tax planning
- Accessing health care in a managed care environment
- Nursing home issues, including resident’s rights
- Probate and trust administration
- Filing Medicaid applications and the planning that goes along with it
- VA benefits, and being accredited with the VA
These are just some of the issues with which an elder law attorney should be familiar. So, next time you are looking for an elder law attorney – you might want to ask them a few questions before you decide to hire them.
- How long has the person been practicing? How long have they been in this field of law?
- What areas of law do you specialize in? And by the way, if an attorney tells you they specialize in a particular area of law, you might want to look at the Florida Bar website and make sure that they are actually “board certified” in that area – otherwise, they are being dishonest with you and they cannot say they specialize or are an “expert” that area of law.
- Are they a member of any specific elder law groups, such as the Elder law section of the Florida Bar, the Academy of Florida Elder Law Attorneys, or the National Academy of Elder Law Attorneys?
- What percentage of his or her practice is devoted to Elder or Special Needs Law?
- Is there a fee for the first consultation, and if so how much is it?
- Given the nature of the problem, what information should you bring with you to the initial consultation?
Attorneys who primarily work with seniors and people with special needs have a better understanding of the complex financial and social decisions their clients face. They can empathize and work with their clients through some of the physical and mental difficulties that may accompany the aging process. They will work with social workers, geriatric care managers, and other professionals who may be of assistance to you or your loved one.
Just because an attorney did a will and durable power of attorney for his or her elderly uncle, does not make him or her an elder law attorney. Elder Law may be the new Black for attorneys – just be sure your attorney is well-versed in what it means to practice Elder Law.