Elder Law Legal Information

OVERVIEW

Elder lawyers help older people and their loved ones handle the legal aspects of aging. Elder law is not just one area of the law; it combines parts of many legal disciplines that apply to older people. The goal of an elder lawyer is to help older people make financially advantageous decisions, get the benefits they are entitled to, and avoid rights violations, exploitation and neglect.

Elder lawyers must know about the important aspects of estate and trust planning, tax, civil rights, government benefits, family, health care and even criminal law. For that reason, not all elder lawyers have exactly the same skills and practices. When you are looking for an elder lawyer, you should look for one who specializes in the issues that are most important to you.


“WHAT ARE SOME LAWS PROTECTING THE RIGHTS OF OLDER PEOPLE?”

The federal government and the states recognized the need to protect older people’s civil and human rights as early as the Great Depression. Since then, several important laws have been enacted to protect older people. They include:

  • The Age Discrimination in Employment Act of 1967, a federal law prohibiting discrimination against workers over the age of 40 in any employment matter -- hiring, working conditions, compensation, firing, promotions, duties and retaliation.
  • The Older Americans Act of 1965, which created the federal Administration on Aging and authorized federal grants to the states for social services related to aging.
  • Federal benefits programs, including Supplemental Security Income (SSI), Social Security and Medicare. Social Security and SSI protect people who are too old or unwell to work from poverty, while Medicare provides health care to seniors.
  • State laws on elder abuse and neglect. All states have some sort of law that prohibits the physical, emotional or sexual abuse of older people, as well as neglect and financial exploitation. These laws can carry criminal penalties or open abusers to civil liability.

Disabled seniors may also be protected by the Americans with Disabilities Act and similar state laws. These laws require reasonable accommodations for disabled people in public and in the workplace, and prohibit discrimination based on disability.


“HOW CAN AN ELDER LAWYER PROTECT MY FAMILY’S INHERITANCE?”

Estate planning, wills and trusts are a large part of an elder lawyer’s job. An elder lawyer can help by:

  • Drafting a will and naming an executor.
  • Setting up a living trust, a financial structure in which an older person holds all of his or her own assets in trust for those who will eventually inherit them. This allows the family or inheritors to avoid probate court later.
  • Making your health care preferences known with a living will and a durable power of attorney.
  • Avoiding the estate tax, if necessary, by making tax-free gifts.
  • Advising clients on the tax consequences of these actions.

A short-form will or living will can be very simple, and some people may be able to draw them up without an elder lawyer. But estate planning can be very complicated when you start considering financial actions and their consequences for your taxes and the taxes of your loved ones. For that reason, experts advise seniors to consult a lawyer before making any major or irreversible financial commitments.



“WHAT CAN I DO IF I HAVE A PROBLEM WITH GOVERNMENT BENEFITS?”

Unfortunately, “entitlement” programs don’t always live up to their name. Despite their eligibility, some disabled or older adults and their relatives encounter trouble when trying to collect the government benefits they’re owed. In fact, statistics show that the majority of Social Security disability claims are denied.

If your claim for Social Security, SSI or Medicare is initially denied, each law outlines a lengthy appeals process you must follow, with several different levels of appeal. You must exhaust these appeals before you may file a federal lawsuit asking for benefits. However, an elder lawyer knowledgeable in the Social Security, SSI or Medicare process can step in long before you can file suit. With a good elder lawyer by your side, you have a much better chance of winning during the administrative appeals process.

 

“WHAT ARE MY LEGAL REMEDIES FOR PROBLEMS WITH HEALTH CARE?”

If a health insurance company is the source of the problem, you should talk to an elder lawyer about pursuing a health insurance lawsuit. Many older Americans have found that health insurance companies won’t cover doctor visits, devices, medications or other medically necessary treatments. You can also complain to your state’s Department of Insurance about the insurer’s actions, but this takes much longer than a lawsuit, and doesn’t always result in treatment for you. Many people choose to file a complaint while pursuing legal action.

If you believe a doctor made a serious mistake, you should consider a medical malpractice lawsuit. Medical malpractice is the legal term for a mistake by a health care professional so severe that it doesn’t meet the profession’s standards of care. A lawsuit allows you to recover the extra costs caused by the bad care and compensates you for any death, permanent disability or scarring that results. An elder lawyer may be able to handle this type of suit, or he or she may refer you to a medical malpractice lawyer.

If you believe there’s a serious problem at a nursing home or other institution where a loved one lives, you should report your suspicions as soon as possible. All states provide some way to report abuse at senior facilities, often with a dedicated agency. An elder lawyer can help you find this agency and advocate for you through the complaint process. If you think the problem affects your loved one’s health or quality of life, you should try to pull him or her out immediately. In addition to any criminal penalties the home’s personnel may face, you can also bring a civil lawsuit against the home and caregivers. An elder lawyer may be able to help or to refer you to another appropriate lawyer.


“WHAT CAN I DO IF I BELIEVE MY LOVED ONE HAS BEEN FINANCIALLY DEFRAUDED?”

Financial fraud against older people can be divided into two categories:

  1. Fraud by strangers, often companies or individuals promising a prize, financial service, insurance, health care, charity, or even a marriage that never materializes. When these services or goods are delivered, they do not live up to the promises.
  2. Financial exploitation by caregivers and family members. Caregivers may take advantage of elders’ mental problems to simply take money, property and valuables, or they may withhold care until the elder signs these things away.

Unfortunately, these crimes frequently go unreported. Some elders are physically or mentally unable to ask for help; some are too afraid of their caregivers; and some are too afraid of being institutionalized to step forward. That’s one reason why it’s important to keep a close eye on loved ones who you know or suspect need daily care.

Depending on where you live, there may be civil remedies, criminal charges or both available to punish those who exploit the elderly. An elder lawyer can help you figure out which are available and appropriate in your situation. If the exploiter is a caregiver, you may first have to take steps to revoke his or her durable power of attorney, transfer property back to the elder, or erase other complicated legal protections.


“HOW CAN I HELP OLDER RELATIVES WHO ARE NO LONGER ABLE TO CARE FOR THEMSELVES?”

If you’re sure an older loved one is not self-sufficient anymore, there are a few legal steps you can take. Depending on the elder’s health, legal preparedness and financial situation, you may want to ask an elder lawyer to help you:

  • Draw up a will and living will.
  • Set up a living trust or other trusts.
  • Transfer durable power of attorney to someone who is trustworthy.
  • Set up a conservatorship or guardianship ad litem. These are legal structures in which a trustworthy adult is legally responsible for the elder, similar to a child’s legal guardian.
  • Undo any transfers of power or assets the elder made to someone who can’t be trusted.
  • Set up the most beneficial tax situation possible for the elder and his or her heirs.


PAYMENT

Elder lawyers most often charge an hourly rate. That rate will depend on where you live and what services you need. You can expect the rate to be higher if you need to go to court, and rates are usually higher in a larger city or metropolitan area. Some elder lawyers charge a retainer fee as well. Many will charge a flat fee rather than an hourly for simple services, like preparing a will. All elder lawyers should be able to tell you about their fees ahead of time. Many offer free initial consultations to potential clients