FAQs — Elder Law

What is Elder Law?

Elder lawyers help clients address the special, unique legal needs and quality of life issues that older or special needs clients face. Elder lawyers focus on issues including: Medicaid and asset protection planning, Medicare, health insurance benefits, Social Security and retirement income planning, Veterans' benefits, disability planning, long-term care and nursing home care, estate and gift planning, special needs trusts, probate and estates, revocable living trusts and wills, and hospital discharge planning.

Elder law practitioners can also assist in guardianship and conservator proceedings for clients who are incapacitated or disabled, whether young or old.

What is an Elder Lawyer?

Elder Law attorneys must be familiar with multiple areas of the law - contract law, estate planning, trusts and estate administration, Medicare, Medicaid, health care insurance regulations, Public Health Law, Mental Hygiene Law, the Internal Revenue Code & State and local tax issues. In most instances, the issues that we deal with are fact sensitive and the clients must be coaxed to give us the information that we need to formulate the elder law plan. Sometimes a client will call the office and be shocked to learn that we don't give legal advice over the phone. In fact, some callers are surprised to learn that secretaries and paralegals can't answer their legal questions.

The various disciplines that make up the elder law practice are in a constant state of flux. As a result, it requires the elder law attorney to spend a great deal of time reading current journals and cases and taking continuing legal education courses. In addition, many elder law attorneys meet in informal study groups to read, understand and strategize.

As the facts change, there will likely be different solutions for each client. "One size fits all" is not the rule, and what works for one client may be totally inappropriate for another. Take the example of two separate clients, both of whom are 86 years old, own their own homes, and need long-term care. Client A has a daughter, age 55 and Client B has a niece age 55. Client A, on the eve of going into a nursing facility, is advised to transfer her home to her caretaker daughter, who lives with her and has lived with her for more than 2 years. The transfer to a caregiver child does not make Client A ineligible for Medicaid. Client B, on the other hand, lives with her niece, and while there is an exception for transfers to a caregiver child, there is no such exemption for transfers to caregiver nieces. However, further discussions with Client B reveal that the niece no longer works but collects social security disability. Because of this fact, Client B could transfer the house to a supplemental needs trust for her disabled niece. Although the result for each client is the same -- the house is protected and both clients are eligible immediately for Medicaid to pay for their long term care – the solution is very different. Your personal plan is fact sensitive and requires a careful review of the facts and circumstances.

Since the recent change in the law, the Deficit Reduction Act of 2005, many clients tell us that other attorneys have advised them that you can no longer transfer assets and the look-back period is now 5 years, not 3. Unfortunately, that advice was not entirely accurate. There are still planning strategies that can be implemented. The change in law requires you to consult with an experienced elder law attorney, sooner rather than later to best develop a plan to help address your family's needs. Although you may incur a consultation fee, it will be money well spent as Since the recent change in the law, the Deficit Reduction Act of 2005, many clients tell us that other attorneys have advised them that you can no longer transfer assets and the look-back period is now 5 years, not 3. Unfortunately, that advice was not entirely accurate. There are still planning strategies that can be implemented. The change in law requires you to consult with an experienced elder law attorney, sooner rather than later to best develop a plan to help address your family's needs. Although you may incur a consultation fee, it will be money well spent as the knowledge and expertise that an experienced elder law attorney brings to the consultation is invaluable.