What Does an Elder Law Attorney Do?

When I first began to refer to my law practice as an elder law practice, and to myself as an elder law attorney, one of my golf pals asked how old an attorney has to be in order to practice elder law. I grabbed my sides and held on for dear life as the peals of laughter began to erupt from deep within. Funny? Not so much. It isn’t the attorney’s age but the client’s that dictates the need for elder law services, and it is becoming more and more important as our population ages.

The practice of law has evolved into the need to specialize. Gone are the days when the country lawyer did it all; today, the stakes are much higher. For example, the difference between a private pay contract with a nursing home and the same quality of care paid for by Medicaid is fast approaching $100,000 per year. It is well worth your family’s time and money to lay out the facts and to have a strategic plan for your long-term care created for you by an elder law attorney.

An elder law practice includes conventional estate planning, such as the preparation of wills, powers of attorney and living wills (health care directives). But it goes much further than that. As we age and as our support circles constrict, we stop asking questions and stop seeking help. It is a natural thing for us to think that we are still capable of doing the things that we did years ago; or we think that if we ask for assistance, we are going to be a burden on someone.

I had an 82-year-old woman in the office this spring who told me that it took her 11 days to shovel out her driveway last February. She seemed pretty proud of the fact that she had done it herself, and when I asked her if she had some family, friends or neighbors who could help out, she said, and I quote, “I didn’t want to bother anyone. They were all shoveling snow, too.”

The elder law attorney is trained to recognize the special range of client needs and professional skills that are required to service the client, and to recognize that other professionals may need to be involved in the planning process. Once a plan is created, several professionals from diverse fields may be included in the implementation of the client’s plan.

The elder law attorney may advise that the client purchase a long-term care insurance policy from a licensed agent. In addition, a particular case may call for the purchase of a Medicaid-compliant immediate annuity, which must be procured through a licensed insurance agent. If there is an Individual Retirement Account (IRA) in the client’s plan, an investment broker will be required. In a case involving potential income tax consequences, a Certified Public Accountant may be brought into the planning process. And, of course, in the case of the sale of property, a licensed real estate broker or agent must be engaged.

One of the most often-asked questions is: “Am I going to lose my house if I have to go to the nursing home?” The financing of long-term care, from adult day care through nursing home care, is considered and analyzed. Medicaid planning, including assisting the client in preparing the Medicaid application and helping the client understand the legal and bureaucratic maze of qualifying for medical assistance, is not for the faint of heart. Most attorneys will not go near this area of the law because it is ever-changing and complex.

The elder law attorney acts as the coordinator of this team and oversees the process. He or she also prepares all of the necessary documents, including the Durable General Power of Attorney, the Last Will and Testament, the Healthcare Directives and Power of Attorney (“Living Will”) and the trust documents called for in a particular case, including the revocable, irrevocable or special needs trust. The attorney can also take cases into the Orphans Court to establish a guardianship estate administration or to conduct litigation related to the probate of estates, and even to try to correct the misdeeds of persons acting under power of attorney.

Christopher M. Abernethy has been practicing law in Hampton Township since 1976. He focuses on elder law, which includes wills, trusts, powers of attorney, living wills and probate matters. He also is proficient in all aspects of real estate law and business law. He is a member of the National Association of Elder Law Attorneys and the AARP Legal Services Network. He can be reached at 412-486-6624 or by email at cabernethy@aaylaw.com.