What is elder law and how does it apply to families?

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By Josephine L. Veglia

The National Elder Law Foundation defines elder law as “the legal practice of counseling and representing older persons or their representatives.” On its face the definition appears to be both simple and clear. It goes on, however to define more than a dozen areas in which advice is generally sought. These include:

•Preservation and transfer of assets when an individual enters a nursing home;

Medicaid eligibility and appeals;

•Supplemental and long term care health insurance issues;

•Tax planning;

•Disability planning including the uses of trusts, and durable powers of attorney;

Conservatorships and guardianships;

Estate planning;

•Probate and administration of estates and trusts; and

Nursing home issues.

Rather than simply take this laundry list approach and list the various areas of law that attorneys and their clients often discuss, it is probably better to define elder law as a “perspective” that includes both legal and non-legal considerations.

When one first thinks of elder law we think of traditional “estate planning” in which attorneys and their clients discuss and prepare documents such as wills and trusts in order to provide for the management and disposition of assets in the event of the client’s death.

Elder law, however, is much more than traditional estate planning. It focuses on the client’s life instead of death. The emphasis is on the client’s ability to maintain control and independence, or to delegate control in the event of subsequent incapacity. Elder law attorneys often assist clients with health care proxies to ensure that medical treatment and non-treatment choices are carried out. Durable powers of attorney are often used to ensure that family members, such as spouses, siblings or children will be able to man¬age finances and continue to pay bills in the event of subsequent disability.

The goal of an elder law attorney is to create for the client the necessary documents so that the client’s individual wishes can be carried out without the cost, time and publicity of guardianship proceedings in the probate courts. The goal is to allow families to pay more attention to the personal, emotional and human element of aging without being overwhelmed by legal issues.

Elder law attorneys often have to discuss with their clients the more important lifetime needs of an individual, which very often cross over into issues that are traditionally non-legal in nature. Elder law clients often have housing questions or long term care needs. Elder law attorneys often provide their clients with assistance related to admission to assisted living facilities, continuing care retirement communities, rest homes or nursing homes. Management of the client’s finance, the preservation and effective use of assets and determining eligibility for Medicaid are often the focus of these discussions.

Elder law attorneys are able to advise clients as to whether even last minute Medicaid planning can preserve assets for the spouse or other family members.

Elder law attorneys work toward an interdisciplinary approach and can often refer clients to geriatric case managers, social workers, accountants, financial planners, home care and other service providers who can work together to find resolutions to the practical problems as well as the legal issues.

The key is to find an elder law attorney who is knowledgeable and with whom you feel comfortable in order to develop a plan to protect both you and your family.

Josephine L. Veglia Durbin & Veglia, 275 R Main Street, Oxford, Mass., 01540; call 508-987-3981. This article is provided as a public service by Attorney Josephine L. Veglia, who is a member of the National Academy of Elder Law Attorneys. It is not intended to provide legal advice. For information as to how the law may apply to your specific situation, consult and elder law attorney directly on your own behalf.