Elder Law

Almost all lawyers are involved in Elder Law either directly or indirectly but only a fraction of a fraction of attorneys focus their practice on Elder Law. The National Elder Law Foundation (NAELA) defines elder law as:

Elder Law is the legal practice of counseling and representing older persons and persons with special needs, their representatives, and families about hte legal aspects of health and long-term care planning, public benefits, surrogate decision-making, legal capacity, the conservation, disposition and administration of estates and the implementation of their decisions concerning such matters, giving due consideration to the applicable tax consequences of the action, or the need for more sophisticated tax expertise.

The most simple way to understand Elder Law is to recognize that anyone over the age of 65 should be considered an "elder law client" simply by virtue of being eligible or in some cases having been forced into retirement, medicare, social security, and being invited into several groups and other aging-related societies. A common background in experiences among those who are 65 or older emerges with each 'decade group' of elder law including having not only been alive for several advances in technology, medicine, finance and law but often having been an integral part and participant in those changes.

Elder law is the nexus of any and all age-related concerns, with special significance towards healthcare and end-0f-life decisions, power of attorneys, after death planning, capacity-related issues, life and other insurance planning, retirement planning and specifically planning for the actual use of accumulated retirement, downsizing, snowbirding, replacement of all manner of joints and cartilage... the list goes on but themes emerge linking together even the most disparate of people into the common area of law we call Elder Law.

Additionally, having practiced in Elder Law for a number of years, it is now apparent that both the number of people turning 65 is growing at an accelerated rate thanks to the baby boomer and subsequent generational booms, but also the lawyers serving in Elder Law are equally aging. A common complaint among clients is that the lawyer they used for years "up and died on them" so they are seeking out a lawyer less likely to do so or at least likely to outlive them. The 'boom' is expected to last until 2029 and over the next decade around 10,000 people per day will turn 65 in the USA. At the end of 2030, about 20 percent of the USA will be over 65 years old and will be firmly in the Elder Law needs category.

The effect of such a rapid explosion of aging on a post-industrialized country has never been tested before. Medicare and Medicaid are currently in no state to deal with the influx and are constantly under threat of funding issues and costs for care only accelerate as the type of care and sophistication of care available have no end. Dementia and Alzheimer diagnoses continue to rise disproportionately and with a healthy body and an unhealthy mind, the length of stay and expense for such care is growing astronomically.

The solution among many countries has been to either ignore the problem by 'kicking the can' to the next legislature, attempt to curtail any strategies which would prevent an individual from using government benefits without first impoverishing themselves, or to encourage those living in less favorable states to 'move somewhere warm' where they might find a better long term care solution.

Rather than rely on the government, Elder Law attorneys have long sought to preserve wealth for their clients by using advanced planning techniques such as irrevocable trusts, insurance benefits, appropriate gifting strategies, Medicaid qualified annuities, excluded resource purchases and many other new and clever ways to legally avoid a family losing all their assets to the nursing home upon the diagnosis of a long term care related illness such as dementia or Alzheimers.

As a result, Elder Law attorneys save millions of dollars of middle-class assets every year, while ensuring that the rights and dignity of their clients are preserved, recognized and enforced whether they ever need long term care or not. A great Elder Law attorney uses software specifically tailored to Elder Law and Estates and updates that software with his or her own knowledge and experience. They do not present documents from forms they cobbled together from other practices and they do not rely on the same static document for every client.

An Elder Law attorney should be constantly reading, writing and updating his practice in the healthcare, financial, community living and government benefits areas of the law. The Elder Law attorney should be meeting regularly with financial advisors, planners, insurance brokers and other stakeholders in their client's lives to ensure that the plan they set up is still working as intended. They should be having consultations with geriatric doctors, surgeons and hospital wards and visiting their clients to ensure they are being taken care of. The holistic approach to Elder Law is the only viable approach.

In short, there is no part-time Elder Law attorney. Your attorney may be a solo or part of a mega-firm but the focus of their practice should be on Elder Law and its various facets. Elder Law is too expansive for a wandering eye and too critical to let the client down by failing to stay up to date. I appreciate your consideration of my practice in Elder Law and look forward to finding a solution for you and your family.

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