Elder law attorneys focus on estate planning, incapacity planning, and end-of-life care for seniors. They also help older adults plan for the high cost of long-term care with Medicaid planning for nursing home care or community services.
These legal practitioners are essential because they work to protect a vulnerable population. To plan for their future and their care, seniors and their families should consider consulting with an elder law attorney.
How Can an Elder Law Attorney Help My Aging Loved One?
Having a plan for your aging loved one's care can relieve anxiety for you and the senior. Elder law attorneys can help their clients by providing some of the following services:
Long-Term Care Planning
The number of Americans living past age 65 has exponentially increased over the past few decades and will continue to grow over the next few years. According to the Center for Disease Control and Prevention (CDC), there will be more than 80 million seniors in the U.S. by 2040. This increase requires more people to pay close attention to the need for long-term care planning.
An elder law attorney can help seniors create a plan to pay for their care needs for the rest of their lives. Many seniors may worry about a lack of financial resources to pay for food, rent, medical care, and transportation in the years to come. Others hope to stay in their homes as they age but are not sure what the options may be for in-home care if it becomes necessary.
An elder law attorney can help you create a customized plan for your needs and assist you in allocating money to pay for the essentials as you age. In addition, with expertise specific to elder law at the federal level and in your state, they can aid you in determining what public benefits you could qualify for, such as Medicaid and Medicare, and help you successfully apply for them. This is important because nursing homes in Troy, Michigan and the rest of Oakland County can cost $12,000.00 per more or month.
Estate Planning Document Preparation
Most people contact an elder law attorney whose expertise includes estate planning when they need end-of-life documents drafted. Yet it is smart to start estate planning when you are still healthy.
Elder law attorneys may draft for their clients such documents as a Last Will and Testament, Living Trust, Designation of Patient Advocate, and Durable Power of Attorney. This is important because each state has their own property, incapacity, and estate planning laws, so estate planning is very state specific. By carefully crafting these legal instruments, an attorney can help protect a senior's legal rights when it comes to their retirement benefits, estate administration, and medical decision-making authority.
At the same time, having a comprehensive estate plan in place may not only ease the stress your family members encounter upon your passing, but also help them avoid any potential disputes regarding their inheritance.
For example, if one adult child is financially supporting their elderly parent with the expectation they will be paid back from the proceeds received from the sale of the home after the elder dies, a promissory note should be drafted in order to document this obligation, a legal document should be recorded with the register of deeds to secure the adult child's interest, and instructions should be provided to help the adult child lender and parent borrow document the amounts advanced. That way, other siblings who are not financially helping their parent will not be able to prevent the adult child who did help from being reimbursed from the parent's estate after their death.
Create a Plan for Incapacity
A related piece of the puzzle is incapacity planning. This could mean having an elder law attorney advise you on documenting your wishes for care at the end of your life, in the wake of a disability, or after a diagnosis of dementia.
For instance, according to the Alzheimer's Association, 6.7 million Americans aged 65 and older suffer with Alzheimer's disease. As the senior population increases across the United States, the number of seniors with memory care needs will likewise increase.
People with memory issues may reach a stage when they can no longer care for themselves. It is essential to have a plan in place for when a senior is incapacitated.
An elder law attorney can assist seniors and their families as they try and protect the senior's financial and physical well-being as their condition progresses.
Elder law attorneys help family members and older adults with guardianship.
This may include a situation in which an older adult has dementia or another condition affecting decision-making. In such a case, an elder law attorney can help a concerned family member obtain guardianship. This includes securing a physician's report, petitioning the court, and conducting the probate court guardianship hearing.
An older adult might sometimes dispute guardianship, asserting continued decision-making capacity and wishing to maintain autonomy. Elder law attorneys representing older adults can present evidence to the court regarding their clients' capacity to handle their own affairs.
The attorney may also help support an older adult's autonomy by recommending less restrictive alternatives to guardianship. These alternative options include limited guardianship and supported decision-making. Supported decision-making provides aid while preserving individuals' rights.
Planning to Avoid Elder Abuse and Exploitation
The National Council on Aging reports that elder financial abuse results in $2.6 billion to $36.5 billion in costs to older adults annually.
Once a senior citizen loses money to a scam, it is very difficult to get the money back for a number of reasons. One, the scammers have often spent the money and have no other assets to garnish even if the elder pursues a lawsuit and obtains a judgment. The reason for this is the scammers often have drug, alcohol, or gambling habits, so the scammer's life is otherwise in disarray, so they have limited income and no assets to garnish. Many scammers have also already squandered the elder's stolen money, so there is nothing else to recover. Further, it is difficult to get the authorities to investigate and prosecute these cases due to the volume of them along with all the other crimes the police must investigate. Some state prosecutors will not pursue a case unless at least $100,000.00 was stolen.
In light of these challenges, elder law attorneys can help their clients safeguard themselves against abuse so that there is a reduced risk of losing money to exploiters and scammers.
For instance, an attorney might recommend using a transfer-on-death deed to pass down a home rather than making a family member a joint tenant. Using this instrument allows a person to maintain full ownership of their home, protecting themselves from financial abuse.
An attorney can also help a client prepare advanced directives and appoint a trusted loved one as a health care representative. Creating advance directives reduces the risk that a court will appoint a guardian over the individual if they get sick, which would restrict the individual's rights.
Trusts can be drafted so that the elder designates a trusted individual as a “silent partner trustee.” A silent partner trustee will have access to information about the senior's estate in order to monitor financial accounts for suspicious activity. This can head off fraud before it occurs or at least respond to it earlier, such as if alerts are set up with the financial institution for transactions over a certain dollar amount. There can be a gray area between when a senior is incapacitated as opposed to not just as sharp or energetic as they used to be. The silent partner trustee can assist the senior with oversight and action in these situations, but the senior remains fully in control unless definitely incapacitated.
How to Find an Elder Law Attorney in Michigan
Any attorney can refer to themselves as an elder law attorney, even if they actually do not have any or much experience in these areas. A way to check if the attorney is actually an elder law attorney is if they belong to the National Academy of Elder Law Attorneys and the elder law section of the State Bar of Michigan. There is a cost to being a member of both of these organizations, so membership indicates a commitment to elder law.
You should also check if the attorney is keeping up to date in the consistent changes in the Medicaid planning, senior estate planning, and probate laws by if they attend legal continuing education. The attorney should be able to provide you with a list of education programs they attend or display the list on their website.
Keeping your elderly loved ones safe is essential to supporting their care and protecting their legacy. Working with an elder law attorney can help you accomplish this and keep your parents, grandparents, or other aging relatives protected.
If you would like to consult with elder law Andrew Byers, you are welcome to call the office or use the contact form on this website.