August 11, 2010
What is an Elder Law Attorney?
Elder law attorneys focus on the special legal needs of older persons and persons with disability to protect their autonomy, quality of life and financial security as they age.
Most elder law attorneys do not handle all legal issues affecting the elderly. It is important that you find out whether the attorney regularly handles matters in the area in which you need assistance.
What role does an elder law attorney play?
An elder law attorney must be knowledgeable about both identifying and addressing the problems facing the elderly or disabled client, and how those problems can be handled within the state laws. Issues that may be addressed include: (1) qualification for Medicare and Medicaid benefits or other public benefits; (2) effective estate planning, using durable powers of attorney, trusts, wills and other legal/financial tools; (3) substitute decision making in the event of incapacity; and (4) planning for the possible need for long-term care for the disabled client. For example, a client who has a disabled spouse may wish to focus on issues that may arise in the event of the client’s death.
An elder law attorney may also draft durable powers of attorney and health care proxy forms, as well as handle guardianship matters. The elder law attorney’s job does not necessarily end with the preparation of required documentation. There may be a need to review your situation periodically to ensure that past solutions are suitable for today and in the future. Therefore, an ongoing relationship with an attorney may be appropriate.
When should an elder law attorney be contacted?
In the case of an elderly person whose health is declining or who has been diagnosed with a debilitating disorder, an elder law attorney should be contacted. If an elder law attorney is contacted at an early stage, there may be more options available.
Following is a list of questions compiled by the New York City Department for the Aging that can assist you in preparing for a visit with an attorney. The goal of the questions is to establish the needs of the family as well as the person who has Alzheimer’s, the emotional environment of the family and the availability of the family and others to assist in the future care of the person with Alzheimer’s disease.
Most of the questions can be answered without the advice of an attorney. Do as many as you can and bring the results with you to your first attorney visit.
- Describe the current stage of the illness.
- What needs are being met?
- How well is the person with Alzheimer’s able to care for him/herself?
- To what extent can he/she handle financial affairs?
- Can he/she live at home at present and how soon will assistance in daily living activities be needed?
- Does he/she have any disabilities?
- Do insurance or entitlements cover the disabilities?
- What are the overall financial needs of this family member?
- Will he/she qualify for any federal or state benefits? Which ones?
- What needs do you (as the well spouse/child/friend) have as a caregiver? Are you likely to become disabled?
- Who will look after the person with Alzheimer’s in the event of your disability or death?
- Are there other family members who must or should be provided for, such as a child with a disability? What are their needs?
- How will others feel if the needs of the person with Alzheimer’s deplete the available resources? How will they react toward him/her?
- Are there other family members or friends who are willing to help? On what basis? Do they have the time and necessary expertise? Can they be trained to handle the problems?
- When naming someone to hold power of attorney or healthcare proxy, can you trust the person to carry out wishes and/or act in the best interests of the person with Alzheimer’s?
- If no family member or friend can or will help, you may need outside help. Who can help you? What will you have to pay for such help?
- What are your long-term goals for yourself and for the person with Alzheimer’s?
- What are the person’s assets and liabilities? Carefully inventory all assets, all sources of income and all liabilities.
How do I find an elder law attorney?
An elder law attorney can be contacted either by referral from a trusted advisor or by a close review of the attorney’s credentials. You should consider the attorney’s activity in professional and community organizations as well as other credentials. Visit Naela.org to find an attorney near you.
How do I choose an elder law attorney?
Ask lots of questions before selecting and elder law attorney. You don’t want to end up in the office of an attorney who can’t help you. Start with the initial phone call. It is not unusual to speak only to a secretary, receptionist or office manager during an initial call or before actually meeting with the attorney. If so, ask this person your questions.
- How long has the attorney been in practice?
- Does his/her practice emphasize a particular area of law?
- How long has he/she been in this field?
- What percentage of his/her practice is devoted to elder law?
- Is there a fee for the first consultation and if so, how much is it?
- Given the nature of your problem, what information should you bring with you to the initial consultation?
The answers to your questions will assist you in determining whether that particular attorney has those qualifications important to you for a successful attorney/client relationship. If you have a specific legal issue that requires immediate attention, be sure to inform the office of this during the initial telephone conversation.
How much does an elder law attorney cost?
There are many different ways of charging fees and each attorney will choose to work differently. Be aware of how your attorney charges. You will also want to know how often he/she bills. Some attorneys bill weekly, some bill monthly, some bill upon completion of work. Ask about these matters at the initial conference, so there will be no surprises! If you don’t understand, ask again. If you need clarification, say so. It is very important that you feel comfortable in this area.
Some attorneys charge by the hour with different hourly rates for work performed by attorneys, paralegals and secretaries. If this is the case, find out what the rates are. Other attorneys charge a flat fee for all or part of the services. This is not unusual, for example, if you are having documents prepared. Your attorney might use a combination of these billing methods.
In addition to fees, most attorneys will charge you out-of-pocket expenses. Out-of-pocket expenses typically include charges for copies, postage, messenger fees, court fees, disposition fees, long distance telephone calls and other such costs. Find out if there will be any other incidental costs.
The attorney may ask for a retainer. This is money paid before the attorney starts working on your case. It is usually placed in a trust account and each time the attorney bills you, he/she pays himself or herself out of that account. Expenses may be paid directly from the trust account. The size of the retainer may range from a small percentage of the estimated cost to the full amount.
Sources: National Academy of Elder Law Attorneys, Inc., Questions and Answers When Looking for an Elder Law Attorney
“Caring: A Guide to Caring for Persons with Alzheimer’s Disease,” New York City Department for the Aging, Alzheimer’s and Long-Term-Care Unit.