You may have seen the name of our firm, Indiana Estate & Elder Law, and thought to yourself, “What is elder law?” Well, maybe you have or maybe you haven’t, but if you know our firm at all, you know our firm’s name is Indiana Estate & Elder Law. Many times that I walk out of the conference room with clients, they’ll see our sign behind the front desk and jokingly ask, “So, is elder law just helping old folks like us?” To me, elder law is an art, practice, and field of law that gets thrown around often, but in my experience, many people really do not understand what an elder law attorney does. Furthermore, most do not understand the differences between an estate attorney and elder law attorney.
So, let’s talk about it – let’s dive into what “elder law” is and what an “elder law attorney” does.
Something I find interesting is that nearly all elder law attorneys also do estate planning, but not all estate planning attorneys do elder law. There are many attorneys that will happily assist clients with estate planning documents, and the counseling that goes with those documents, but a majority of the estate planning attorneys I know, do not help with elder law issues.
What is the difference between an estate attorney and elder law attorney?
Often, the way I somewhat succinctly describe the difference between an estate attorney and elder law attorney is that it primarily depends on the issue and/or the “problem” that we need to solve. For example, if I create a Power of Attorney document for someone that is ninety-three years old, to me, that is not elder law – that is simply estate planning, even though they are in their nineties. That means that elder law is not necessarily age-dependent; instead, it is more dependent on what we are doing for a client.
What are common issues that elder law attorneys help clients navigate?
Predominantly, elder law attorneys help in two areas – 1) affording long-term care by navigating benefits like Medicaid and/or Veteran’s benefits and 2) guardianship. Let’s hit them one-by-one:
Long-Term Care
If you have not heard, long-term care, including home health care, is incredibly expensive. This is to not shame long-term care facilities and/or home health care companies because after all, they provide a much-needed service and benefit to the elderly population. In fact, without them, many of us would involuntarily end up becoming caregivers. Nonetheless, long-term care is an expensive venture. There are really only four ways to pay for long-term: 1) private pay (meaning you pull out your checkbook and pay every month); 2) long-term care insurance (which many do not have); 3) family chipping in (not a fun option for the family!); and finally, Medicaid.
Because many do not love those options, a popular reason people visit an elder law attorney’s office is to gain a better understanding of affording long-term through benefits like Medicaid. To clarify, not Medicare. Medicare will not pay for long-term care; Medicaid will, so long as you follow their rules. In order to qualify for Medicaid, their rules are very specific in regards to someone’s income and assets – and that is why you see an elder law attorney. The rules are complicated and an elder law attorney’s responsibility is to help you understand those rules and how they apply to a client’s situation.
Medicaid has different rules that apply for single individuals compared to a married couple; they have rules on income; rules on assets; and beyond that, states have different rules, too. This is why there are many misconceptions about Medicaid. You may talk to your cousin in Texas about what she did for her parents, and you may be here in Indiana with just one surviving parent. They could have one small fact that is different, which could cause them to operate by one set of rules. So, while it seems like a good idea to ask family and friends for tips, an elder law attorney is the perfect resource to help you navigate through the rules and present realistic options that solve the issue at-hand.
As I mentioned earlier, many estate attorney do not practice in the elder law space. Why, you ask? Well, as you can see, there are a lot of rules to keep straight and many know better than to dabble in something that they have no business dabbling in. Not only is it a lot to keep straight, but like all other fields of law, the rules change often and working with an elder law attorney, they are keeping up-to-date with the rules – and changes to those rules. In fact, here in Indiana, we have an annual event for elder law attorneys that the primary purpose of the training is to provide an update on what is going on in the Medicaid space, what changes have occurred, etc. An estate attorney that does not do elder law is like not going to attend that type of training.
Guardianship
Next, an elder law attorney assists clients and families with obtaining guardianship over a loved one. Now, you may hear the word “guardianship” and think of minor children, but guardianship also happens for adults who are experiencing significant cognitive impairment. Most of the time with guardianships, we are seeking to obtain guardianship in two situations.
First, a guardianship may be necessary if the adult does not have any estate planning documents like a Power of Attorney for Financials/Legal and/or Health and perhaps they do not possess the mental capacity to execute estate planning documents any longer. It is important to note and remember that anyone who signs an estate planning document must be of “sound mind” (among other requirements). So, if someone has advanced dementia and no longer possesses the capacity to sign, a guardianship may be necessary to get someone in a position to make decisions for him/her.
Second, a guardianship may be necessary if the adult does have estate planning documents like a Power of Attorney for Financials/Legal and/or Health, but they are not “enough.” I think this is best explained by an example. Say, for example, a client had these basic estate planning documents done, but later in life, he developed an advanced form of dementia and started to do things that is putting himself at risk. I had a client put clothes in the microwave, turn it on, and let it go because he thought it was the washing machine. Now, he absolutely refused to leave his house and his daughter, the now-Guardian, had to intervene to remove him from his house to put him in a safer environment. It was not fun, but it sure was necessary to protect him. He was not doing things in his own best interest, so a guardianship was needed to help us … help him.
What about issues involving Medicare, Social Security, etc.?
Of course, the elderly population face many additional issues besides long-term care and cognitive impairment – think, Medicare and Social Security. It’s important to note that we, Indiana Estate & Elder Law, proactively creates and manages relationships with other professionals that complement our services. For example, Medicare is a very different program than Medicaid. In fact, their qualifications, rules, etc. are entirely different. They also help with very different things. The only thing similar is their names!
Medicare is often best-served by professionals in the Medicare space, who are rarely, if ever, elder law attorneys. Do we know enough about Medicare to understand how it impacts our clients navigating Medicaid? Yes. Though, do we actually help clients navigating selecting what types/parts of Medicare to get and not to get? No. That is usually when my office will refer to other professionals that we have met with, trust, etc. The same could be said for Social Security benefits. Do we know enough about Social Security to understand how it impacts our clients? Absolutely. Though, are we your resource on when to start collecting Social Security and when to hold off? No.
Medicare and Social Security relate to what we do, but is it what an elder law attorney does? The answer is usually “no.” Therefore, while many think that an elder law attorney helps clients navigate through all senior-related issues, that is simply not the case. Though, we thankfully equip ourselves with amazing resources and referrals to provide to clients when their issue falls outside an elder law attorney’s services.
Conclusion
As you age and start considering later-in-life estate planning, it could be advantageous to work with an estate planning attorney that also does elder law. For example, there are tools an elder law attorney has (through irrevocable asset protection trusts) that help clients proactively protect assets against long-term care. We welcome you to meet with our firm and team to discuss your options!
Written by Attorney Jenny Rozelle
