The number of older Americans has increased dramatically over the last several decades and is expected to continue to increase for the foreseeable future. Along with the increase in the senior population in the U.S. has come an increased focus on legal issues that impact the senior population. In fact, a new area of the law, referred to as “elder law,” developed to better serve the older population. Elder law covers a broad spectrum of legal matters that can arise during the later stages of life, including things such as health care, financial planning, long-term care, elder abuse, and estate planning. An attorney at Thompson Law discusses elder law and helps you to recognize when you need the assistance of an elder law attorney.
What Is Elder Law?
All students receive the same legal foundation during law school, only choosing what type of law they wish to practice after they graduate and pass the requisite licensing exam. Some attorneys choose to focus on elder law, a relatively new area of the law. While seniors have always had legal issues for which they needed legal representation, it was only in the 1980s that the legal community started to acknowledge that seniors had unique legal issues and concerns. It was then that the concept of “elder law” grew out of the need to serve the rapidly increasing elder population in the United States. The National Academy of Elder Law Attorneys, or NAELA, formed in the late 1980s, followed several years later by the establishment of the National Elder Law Foundation.
Unlike most areas of the law that focus on specific legal issues, elder law does not revolve around issues, instead focusing on how a specific segment of the population (older individuals and their caregivers) are impacted by a wide variety of legal issues. A criminal defense attorney, for example, represents people accused of committing crimes. An elder law attorney, on the other hand, might represent a senior accused of committing a crime while also representing that individual in an age discrimination lawsuit. That same attorney might represent an adult child who is petitioning for guardianship over a parent who is suffering from Alzheimer’s disease.
When Might I Need an Elder Law Attorney?
Because elder law is a relatively new and somewhat unique area of the law, people often fail to realize when they could benefit from the assistance of an elder law attorney. Although there are an infinite number of situations in which you might need the help of an elder law attorney, some common scenarios include:
- Incapacity Planning: One of the critical roles an elder law attorney can play is helping you prepare for the possibility of future incapacity which typically involves creating legal documents within your comprehensive estate plan that allow others to make decisions for you if you become mentally or physically unable to do so. For example, a Power of Attorney for financial matters allows someone you trust to manage your finances while a Healthcare Power of Attorney gives someone authority to make medical decisions on your behalf.
- Medicaid and Long-Term Care Planning: Long-term care can be financially devastating, exceeding $100,000, on average, per year in both North Dakota and Minnesota for 2023. Medicaid can help cover these costs, but qualifying for Medicaid can be complicated because they consider both your income and the value of your assets. An elder law attorney can help you incorporate a Medicaid planning component into your estate plan to ensure that your assets are protected, and you qualify if you need help from Medicaid in the future.
- Estate Planning: While many people associate estate planning with Wills and trusts, an elder law attorney goes beyond these basic tools to address the specific concerns of older adults. For example, an elder law attorney can help you create an advance directive, known as a Living Will, which outlines your wishes regarding end-of-life medical treatment in case you are unable to make or communicate decisions in the future.
- Guardianship and Conservatorship: If an elderly loved one becomes mentally and/or physically incapacitated, it may be necessary to establish guardianship or conservatorship over the individual so that you can protect them and their assets. The process of appointing a guardian or conservator can be complex and typically requires you to appear at a hearing and convince the judge that a guardian/conservator is necessary. An elder law attorney can help adult children, relatives, or caregivers to navigate this legal process.
- Elder Abuse and Exploitation: Sadly, elder abuse is a growing concern in the United States with millions of older adults falling victim to physical, emotional, or financial abuse each year. Sadly, elder abuse can occur anywhere, including in the victim’s home when a family member is the perpetrator. If you are concerned that an elderly loved one is the victim of elder abuse, an elder law attorney can take legal action to protect a them from further abuse or exploitation. For example, an elder law attorney may help you petition for guardianship so you can remove them from the abusive situation. In addition, while elder abuse is a crime, it can also serve as the basis for a civil lawsuit against the perpetrator(s).
- Social Security and Retirement Benefits: If you are near retirement age, an elder law attorney can assist with issues related to Social Security and retirement benefits to ensure that you understand the benefits you are entitled to and how to maximize them. This may involve addressing issues related to Social Security Disability Insurance (SSDI), Supplemental Security Income (SSI), retirement pension plans, IRAs, and 401(k)s. An elder law attorney can also represent you if a dispute arises regarding your benefits.
- Veterans’ Benefits: If you or your spouse served in the military, you may be entitled to certain veterans’ benefits, including health care, pension benefits, and Veterans Aid & Attendance (VA&A) benefits. Many seniors are unaware of the full range of benefits available to them through the Department of Veterans Affairs (VA) and the application process can be confusing, making the assistance of an elder law attorney even more important.
Do You Need an Elder Law Attorney?
Please join us for an upcoming FREE seminar or webinar. If you or a loved one has a legal issue that might fall within the purview of elder law, contact a North Dakota and Minnesota elder law attorney at Thompson Law by calling 605-362-9100 to schedule an appointment.
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