Elder law is the cluster of legal problems that arrive with age: planning an estate, paying for long-term care, protecting savings from the cost of that care, deciding who will act when a person can no longer act for themselves, and stepping in when an older person is being exploited. The right time to hire an elder law attorney is before any of those problems becomes urgent. Most of the tools we use, a durable power of attorney, a health care proxy, a Medicaid asset protection trust, work only if they are signed while the person still has capacity, and some of them, such as Medicaid planning, need years of lead time.
What an elder law attorney actually does
Four kinds of work make up most of an elder law practice, and they overlap: a single family meeting often touches all four.
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Health care and living arrangements
As a person moves from living independently to home care, assisted living or a nursing home, the questions are practical: what level of care is needed now, what will be needed later, and who pays. We look at the person’s current and likely future needs and at how Medicare, Medicaid and private insurance fit together, with the aim of getting the care paid for while preserving as much of the person’s savings as the rules allow. The same conversation usually covers end-of-life planning: a living will setting out treatment preferences and a health care proxy naming the person who will speak to doctors when the patient cannot.
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Deciding in advance who will decide
A durable power of attorney gives a chosen agent legal authority over the person’s finances; a health care proxy does the same for medical decisions; a living will records the person’s own wishes about life-sustaining treatment. Signed while the person is well, these documents let the family act without a court. Left unsigned, the alternative is a guardianship proceeding, which is public, slow and expensive, and which puts the choice of decision-maker in a judge’s hands rather than the person’s own.
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Getting the benefits the person is entitled to
Medicaid, Social Security and veterans’ benefits each have their own eligibility rules and application procedures, and the Medicaid rules in particular punish transfers made at the wrong time. We identify which programs apply, structure the person’s assets so that they qualify, and handle the applications.
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Financial and estate planning
This is the estate-planning side of the practice: wills, trusts, retirement strategy, asset protection, and, for owners of a family business, a succession plan that moves ownership and management to the next generation in an orderly way. The aim is a plan in which the benefit planning, the care planning and the estate documents all point the same direction.
When to call
These are the situations that most often bring a family to our office, and what we do in each.
| Situation | What we do |
|---|---|
| Approaching retirement | Put the health care, financial and estate documents in place before anything is urgent, and coordinate benefits and long-term care arrangements so that retirement starts on a settled footing. |
| Worries about health, family dynamics or money | Advise on incapacity planning, asset protection and the warning signs of exploitation. Acting early is what prevents a family disagreement from becoming a court proceeding. |
| Choosing long-term care | Compare the cost and the eligibility rules of home care, assisted living and nursing home care, and build a plan to finance and coordinate the care that is needed. |
| Medicare and Medicaid questions | Explain what each program covers, make sure the available benefits are used, and where appropriate carry out Medicaid planning that protects assets while qualifying the person for coverage. |
| Naming a decision-maker | Draft the power of attorney, health care proxy and living will before they are needed, so that the person’s wishes are on paper and the family does not end up in guardianship court. |
| Estate planning and asset protection | Prepare wills, trusts and related documents; plan for creditors, taxes and benefit eligibility; and arrange the transfer of wealth to the next generation. |
| Suspected elder abuse or exploitation | Recognize the signs of financial, physical or emotional abuse, pursue the legal remedies that protect the person and recover what was taken, and advocate for their safety. See our page on elder financial abuse. |
| A complicated financial or legal problem | Handle disability or Social Security claims, sort out debts and assets, and prevent liabilities from passing to heirs. |
Why earlier is better
Almost every elder law tool depends on timing. A power of attorney can only be signed by someone who still understands what they are signing. A transfer to a Medicaid asset protection trust protects nothing unless it is made well before the care is needed. A will written after a dementia diagnosis invites a contest. The family that comes in while the older person is still well has every option open; the family that comes in after a crisis is usually choosing between a guardianship proceeding and nothing.
If you or a parent are approaching any of the situations above, we can help. The Law Offices of Albert Goodwin has practised elder law and estate law in New York since 2008, from our office in Midtown Manhattan. Call us at 212-233-1233 or email [email protected] to arrange a consultation.
