As the chair of the Elder Law Practice Group, I see a lot of issues that the firm’s clients encounter in their personal lives. As we begin the new year, I thought it appropriate to write about the areas of our practice that we are most frequently called upon to resolve. Most people are already familiar with estate planning attorneys and the work they perform. One can go to an estate planning attorney to create an estate plan, will or trust, or to update an existing plan. So what makes an elder law attorney different? Elder law attorneys assist clients in planning for a variety of issues that a general estate planning attorney typically does not. This includes long term care planning, government benefits planning, asset protection in the face of anticipated long term care costs, disability planning, special needs planning, guardianship (contested and uncontested), and many other issues that only arise at the point of the need to address such matters (elder law attorneys are quite used to working in “crisis” mode). Stated simply, an elder law attorney assists clients in navigating issues associated with persons as they age or who are disabled. Many people do not realize there is “someone who does that” until they have a need. Here are some reasons why you, your clients or someone you know might need an elder law attorney:

Protection of the Homestead/Primary Residence

People’s homes are often one of their most highly valued assets. In many jurisdictions, although the homestead/primary residence is exempt for Medicaid eligibility, a) there is an equity cap on the value of the homestead that will be considered noncountable for Medicaid purposes (anywhere from $730,000 - $1,097,000, depending on the jurisdiction), thus disqualifying from Medicaid a person whose home exceeds the home equity cap, and b) if the home is ever sold, this converts the otherwise exempt asset into a fully countable asset for Medicaid’s restrictive asset limit purposes. An elder law attorney can assist clients in planning to protect the home to solve both of these problems.

Protection Against the Invasive Companion

As people age, they become more vulnerable and often find it more difficult to have companionship. Unfortunately, the relationship that develops between an elderly adult and another individual may not always be healthy or in the best interest of the elderly adult. These relationships develop nevertheless because in the mind of the older adult, it is better than being alone. Examples abound of people who have malintent and who are looking to scam an older adult through malfeasance. The classic scenario is that of a girlfriend or boyfriend, in some cases much younger than the elderly adult, but not always. It can also be a family member, family friend, or even the person's caregiver/aide. The Elder Law Practice Group is often approached by family members who are concerned about protecting the elder person in advance of anticipated malfeasance. If identified in time, serious negative consequences can be avoided through proper planning. Or, if the intrusion has already occurred, there are remedies that will eliminate the wrongdoer from the day-to-day life of a loved one and prevent future losses. Our fiduciary litigation team is well versed in handling these types of matters.

Long-Term Care Planning

Planning for long-term care requires a determination of the level of care an individual requires. This generally includes choosing a nursing home or other type of facility you or a loved one may need, such as assisted living and/or memory care, or receiving home and community based care. Determining which level of care is appropriate requires a coordination of effort between an elder law attorney and care managers/elder care coordinators. This coordination of effort assures that the proper placement is achieved taking into account the individual’s functional capacities and functional limitations. It also addresses financial/legal planning designed to achieve the least possible intrusion on one’s assets. An elder law attorney also can assist you or a loved one in evaluating coverage under a long term care insurance policy, as well as claims that need to be filed to trigger coverage under existing policies.

Medicaid

An elder law attorney is well versed in Medicaid rules and regulations, and can devise a plan that maximizes the benefits the program will cover. The elder law attorney can assist clients in determining how to qualify for Medicaid coverage of skilled nursing facilities, assisted living facilities, and home care services. The Medicaid eligibility and scope of coverage rules vary from state to state. Therefore, it is important to work with an elder law attorney that practices in the jurisdiction in which Medicaid is being applied for.

Veteran's Benefits

Many people are not aware that in addition to Medicaid coverage of long term custodial care, a veteran may qualify for additional caregiving from the Veterans Administration. Known as the Aid & Attendance program, a veteran with no dependent spouse or child can qualify for up to $2,358 per month (in 2025) of benefits that can be used to cover the cost of an aide. This can go a long way toward allowing the veteran (or his/her surviving spouse) remain in his/her home. Elder law attorneys are well versed in the VA Aid & Attendance eligibility rules, and can assist clients in planning for same.

Abuse, Neglect, and Exploitation

Abuse of the elderly comes in many forms, and can include physical abuse, sexual abuse, neglect (which includes ignoring physical, emotional, and social needs or withholding food, medications, or access to health care), abandonment, psychological or emotional abuse, and, in many cases, financial abuse. All 50 states have some form of elder abuse prevention laws and, while these statutes vary, some common elements include criminalization, reporting requirements, definition of the protected class of individuals (such as “vulnerable adult”), penalties for violations, and civil remedies. There are also statutes that allow for injunctive relief when financial abuse is suspected. Abuse can occur in all settings, including one’s home, other community settings, assisted living facilities, and nursing homes. All 50 states have Adult Protective Services agencies designed to investigate claims of elder abuse. An elder law attorney can assist persons and family members of loved ones who may be the victim of some form of abuse.

Incapacity Planning

Incapacity planning allows you to provide detailed instructions that can be implemented should you no longer be in a position to make your own decisions. An incapacitating event can occur at any age, although it is more commonly associated with the disability and elderly populations. By planning for your own incapacity, you can make your wishes known regarding financial planning and health care preferences. This is accomplished by creating a financial power of attorney, health care power of attorney or similar type of health care advance directive, and a living will to cover end of life treatment decisions. Without these documents in place before you become incapacitated, your family may have no choice but to pursue the more public, time-consuming, and costly guardianship alternative, which will require court intervention and allow strangers into the decision making process.

Complex Family Dynamics

You or a loved one might have a complex family situation that makes it difficult to engage in estate planning or long term care planning. An elder law attorney can assist a family encountering difficult family dynamics by facilitating open communication, discussing legal options and solutions, mediating conflicted family members to arrive at a common solution that is mutually agreed upon, and by addressing different family members’ needs and expectations. Ultimately, the person who is engaging in the planning and who owns the assets will be the final decision maker; however, by educating and informing the entire family of the options available, the elder law attorney can assure that family members will be heard throughout the process in pursuit of achieving consensus where none existed before.

Medical Malpractice and Special Needs Planning

You or a loved one might have experienced an injury resulting in a medical malpractice claim that produces a settlement award or judgment, thus creating wealth that requires further planning. In particular, these circumstances are most often dealt with using structured settlements and special needs trusts to protect the funds received and anticipated future funds from being counted as assets for purposes of government benefits eligibility. Elder law attorneys with special needs planning experience can facilitate the receipt of funds from medical malpractice claims and protect them for use by a now disabled individual. Special Needs Trusts and special needs planning also may be utilized when a person who is disabled has funds of her own that she wishes to protect, or when a family member wishes to leave assets to the disabled beneficiary without jeopardizing the ongoing receipt of government benefits, such as Supplemental Security Income and/or Medicaid. 

Social Security Retirement and/or Disability Benefits

You or a loved one might need assistance applying for and receiving social security and/or disability benefits. An elder law attorney can assist in advising how to maximize social security benefits, determine the most advantageous time to access such benefits, facilitating discussions and communications with the Social Security Administration, and filing essential forms and documents.

In closing, an elder law attorney can help you, your family, and your clients make decisions about their later years, and can do so in a manner that helps everyone feel comfortable addressing highly sensitive and complex planning issues.