Molly Dear Abshire
What is Elder Law? By Molly Dear Abshire,CELA
The issues that arise in the practice of elder law affect virtually every family at some time
in their lives.
Elder law, as a practice area, has emerged over the past 20 years in response to the unique
needs of an aging population. Generally, it is an area of law that focuses on the legal
needs of the elderly and persons with special needs (regardless of age). Specifically,
elder law consists of a wide variety of legal areas that concern seniors and persons with
special needs, ranging from estate planning to guardianship, Medicare and Medicaid
advice to employment and retirement planning, veteran’s benefits to probate, as well as
many other important legal issues.
Although elder law covers many areas of law, preventive planning with a holistic
approach is a key element. Attorneys who practice in this field have knowledge of
the elderly population and are aware of the physical and mental difficulties that often
accompany the aging population. Because of this expertise, they are able to thoroughly
address the variety of legal issues facing their client. For example, a man approaching
retirement age who has a spouse who has been diagnosed with a debilitating illness
may contact his attorney to simply discuss the income tax ramifications of minimum
distributions from his individual retirement account; yet, he may have not been aware
of other important issues unique to his situation. An elder law attorney may introduce
topics such as coverage under Medicare benefits, financing long term care, preparing
well-coordinated estate planning and documents providing for substitute decision making
for both financial and health care issues, the client’s preference for housing options
and personal caretaking needs, the impact of having a part time job while taking Social
Security benefits, and the serious nature of end-of-life decision making. Any of these
issues could substantially affect the couple in later years.
One unique component of elder law is disability planning. This includes how to leave
money to a disabled loved one through the use of a special needs trust, establishing
guardianships and providing assistance with administering the guardianships. It may
also involve housing planning, which includes providing advice, and guidance through
a maze of housing options designed to meet the needs of residents. A variety of factors
come into play, including ability to pay and whether the stay is permanent or temporary.
Disability planning also addresses issues pertaining to certain disabilities of the person
requiring special accommodations. Clients may need advice about financing long term
care through private pay, long-term care insurance or Medicaid planning, which includes
helping individuals to attain nursing home Medicaid eligibility without losing their life
Resident’s rights advocacy is another distinct specialty of elder law in which the attorney
advocates for the needs of the individual that may be unmet by either the facility or
the caretaker company based on state or federal law. Many elder law attorneys engage
in administrative advocacy for Medicaid or Medicare, which deals with assistance in
appealing cases within a less formal structure than that of a formal courtroom proceeding.
A common aspect of elder law is fiduciary representation, which simply means advising
a personal representative of the estate of a decedent, an agent under a power of attorney
or a guardian or trustee, and helping the person to legally administer their duties as a
Law firms that devote their practice to elder law are few. When searching for an attorney
who practices elder law, seek one who has significant experience in the particular matter
in which you have an interest. Membership in the National Academy of Elder Law
Attorneys is an indication of the attorney’s dedication to improving the quality of legal
services provided to the elderly and people with special needs. Additionally, some elder
law attorneys are certified as specialists by the National Elder Law Foundation. Such
certified elder law attorneys must pass a comprehensive written exam and peer review
in order to be certified as specialists. Attorneys with this certification will have the
letters “CELA” after their names.
Nothing contained in this article should be considered the rendering of legal advice to
any person’s specific case, but should be considered general information.