Elder Law is more than estate planning; photo by Sorasit Srikham-On

Understanding Elder Law: Why You May Need an Attorney

ByJodi Ireland

If you’ve already taken the time to draft a will, draft a trust, or organize your final wishes, congrats; you’ve taken a major step in securing your future. Most people assume that’s the end of the legal planning process, but that assumption overlooks a critical truth. The most significant legal and financial challenges don’t always occur after you pass; they often arise as you age.

Welcome to the domain of the elder law attorney, a specialist whose scope of practice extends beyond the standard estate planning documents most people have in mind. As Ben Michael, attorney at Michael & Associates, said, while an estate planning attorney’s job primarily focuses on wills, trusts, and asset transfer, elder law attorneys “advocate for seniors, help with long-term planning and programs like Medicaid, and generally support seniors while they’re still alive.”

It’s a misconception that elder law applies only to the very old or very wealthy. Actually, as Christopher Migliaccio, attorney and founder at Warren & Migliaccio, L.L.P., said, “It’s about ensuring that everyday families can grow older with dignity while maintaining their financial estate and autonomy. Meeting with an elder law attorney before issues occur offers peace of mind that no financial product can provide for families.”

Elder law vs. estate planning: Understanding the differences

The biggest misconception people have about elder law is that you only need an elder law attorney if you’re moving to a long-term care facility or if you’re very old and very wealthy, said Migliaccio.

“That’s not true,” said Marlee Stever, senior counsel at Tully Rinckey PLLC. “Elder law attorneys can help plan for care at home, protect assets, and prepare for disability.”

Estate planning focuses on what happens after someone dies, ensuring the orderly distribution of assets according to the deceased’s wishes. Elder law focuses on incapacity and long-term care financing. It covers Medicaid eligibility, guardianship issues, and protecting assets from the costs of care, allowing an older person to maintain their financial security and autonomy.

Elder law attorneys draft wills, trusts, financial and healthcare powers of attorney, and advance directives. “These documents clarify a person’s wishes for themselves and loved ones in case they become unable to make or communicate their decisions,” said Joshua Mangoubi, CFA and founder & chief investment officer at Considerate Capital Wealth Management.

The most common issues that require an elder law attorney

The best time to meet with an elder law attorney is in your late 50s or early 60s, before a crisis arises. “The earlier you engage in estate and long-term care planning, the more options you’re likely to have,” said Mangoubi. Proactive planning also enables individuals to maintain control over their decisions, rather than having a court make those decisions on their behalf.

  1. Financing long-term care without losing everything. Given the astronomical cost of nursing home and even in-home care, how do you pay for it without rapidly depleting your savings? Most people don’t realize that Medicare doesn’t cover continuous long-term care.

    An elder law attorney’s expertise here is invaluable. They’re masters of Medicaid eligibility and asset protection strategies. These attorneys can help you structure your finances in advance to ensure you qualify for assistance when needed. Different trust types can cover these expenses and preserve assets for a living spouse or loved ones.

  2. Preparing for incapacity. While a will dictates what happens after death, living documents ensure your wishes are followed and your affairs are managed if you become unable to speak for yourself. A power of attorney (POA) allows a trusted agent to handle your financial and legal affairs. A health care proxy/advance directive appoints a health care agent and clarifies your wishes regarding medical treatment, said Mangoubi.

  3. Protecting against vulnerability. Elder law attorneys play a crucial role in situations involving guardianship issues and protecting clients from elder abuse or exploitation. Their focus is holistic, encompassing financial planning,personal safety, and quality of life.

Finding the best elder law attorney for you

Not everyone may necessarily need an elder law attorney, said Mangoubi. “An elder law attorney is most helpful when someone is planning for long-term care or incapacity.” However, said Stever, it never hurts to schedule an initial consultation to see if you would benefit from hiring one. If you’re in your late 50s or early 60s, now’s the perfect time for that consultation.

“Elder law is a complex and varied field,” said Mangoubi, “so you should look for specific credentials, such as the Certified Elder Law Attorney (CELA) designation. Membership in the National Academy of Elder Law Attorneys (NAELA) or a state bar is also an indicator that someone specializes in elder law.”

Additional questions you can ask include:

  • What percentage of your practice is elder law-related?
  • How many cases similar to mine have you handled?
  • What’s your approach to long-term care planning and Medicaid eligibility?
  • How do you bill your clients?
  • Will I work directly with you, or will I primarily work with your paralegals or staff?

How each elder law attorney answers these questions will offer insight into their experience and knowledge base, as well as indicate how they’ll approach and treat you as a client.

Don’t let the biggest misconception — that you only need an elder law attorney if you’re about to move into a facility — hold you back. Elder law is designed to protect your assets, autonomy, and family members from financial and emotional turmoil long before the end of life is in sight.

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Jodi Ireland launched her freelance writing career over 25 years ago, and her hodgepodge knowledge of technology, small businesses, real estate, health and wellness, sports, and a zillion other topics makes her not just a content powerhouse but a solid trivia team member. In addition to working part-time as TeenLife's fractional content director/managing editor, she also writes for Yahoo Local and CREA United (and pinch hits press releases for the American Association for Thoracic Surgery). Her content has appeared in U.S. News & World Report, The New York Times, and TechCrunch+, and she's also partnered with Citation Labs, &Marketing, 9Sail, EPAM, and Hero Digital.

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