Happy senior couple talking with elder law attorney while analyzing documents on a meeting in the office.

Why and How to Choose an Elder Law Attorney

Bethesda Health | April 28, 2021

If you are a senior adult or a family member of a senior, choosing an elder law attorney to represent you can potentially be one of the best decisions you can make.

According to elder law attorney Paul Gantner, a partner with the firm Amen, Gantner & Capriano, it’s not a question of being able to afford such an attorney. “In the vast majority of cases, you will be saving money by doing so,” Paul says. The key, he says, is not waiting until you no longer have the finances to retain the services of these experienced professionals.

Why Hire an Elder Law Attorney?

The scope and complexity of issues faced by seniors and family members, especially when it comes to planning for the future, can be daunting and confusing. An elder law attorney can relieve family stress in the decision making process and provide a sense of relief that the senior’s affairs are in order.  Here are some of areas elder law attorneys focus on:

Estate planning. This includes drawing up power of attorney documents to enable an appointed person to make financial decisions should the senior become incapacitated. Establishing trusts, managing estates and writing wills also falls under this category.

The focus is on making the probate process reflective of the senior’s wishes, primarily by having wills that make the senior’s intent clear or, many times, avoiding probate altogether.

While there are many attorneys who offer estate planning services, elder law attorneys specialize in providing a more comprehensive scope of services beginning long before a person passes away.

Guardianship and conservatorships. This can be a complex process to appoint someone to care for an elderly person who is unable to care for himself or herself. Hiring an elder law attorney ensures the process is handled properly.

Tax planning and long-term care needs. “Elder law involves tax planning that makes the most of a person’s financial assets,” Paul says. “While everyone should have a basic estate plan, most do not require advanced estate tax planning. What the majority of seniors need is help in dealing with long-term care needs. Elder law is for everyone who gets older and/or has special needs—physical or cognitive challenges.”

Elder law attorneys advise clients based on the level of care needed, relying on care managers and physicians to help determine what those needs are. From there, the elder law attorney will determine the costs associated with the required care and the resources available to pay for it.

Benefits. Elder law attorneys are versed in benefit programs that include Medicare, Medicaid, and Veterans benefits, as well Social Security, disability claims, and long-term insurance issues. Paul advises that if the senior is a Veteran, the elder law attorney retained should be certified by the Veterans Administration. “This is a separate certification needed to handle Veterans benefits,” he says. “And it’s a financial resource many are not aware of and could miss out on.

“Coordinating these benefits is a huge task for someone who may be moving from the home they’ve lived in for years, and who may have physical and cognitive issues,” Paul says. The complexity and decision making can also be an issue for family members who need expert guidance for the best path forward for the senior. Making the wrong decisions may require a family to provide from its own financial resources when it otherwise wouldn’t be necessary to do so. “These issues are not something a person can just step into without some background, knowledge, and support, not to mention the time saved by being able to delegate this work,” Paul says. “Family and loved ones are already busy with everything going on in their own lives.”

The impact it can make. Paul tells the story of elderly man living in his home while his wife was in a senior living community. The man’s son struggled to convince his father to see Paul. His father said he couldn’t afford an attorney. Paul told the son the consultation was free and if he couldn’t save the father any money he would tell him so. The father reluctantly came in, and in the course of the conversation, Paul learned he was a Veteran.  In accessing his Veterans benefits — ones the elderly man wasn’t aware of — the father received thousands of dollars to help defray his wife’s expenses and care for himself. Beyond that, his wife qualified for Medicaid benefits, receiving the same care, at the same facility, in the same bed. “If he had done nothing, it would have cost him over $300,000 more,” Paul says.

“Our focus is on saving the family home or someone’s last $100,000 or $10,000. The biggest mistake people make is to do nothing because they feel they can’t afford our services, and then they run out of money,” Paul says. “A reputable elder law attorney will tell you, upfront at no charge, whether or not they can help, and suggest other options if they cannot.”

How to Choose an Elder Law Attorney

When considering retaining an elder law attorney, Paul suggests checking out their website. “See if it is obvious they have extensive experience in elder law,” he says. Paul also suggests asking family, friends, or trusted professionals for a referral.

With many firms, especially with a referral, the initial consultation is free, but ask in advance. While there, inquire about the scope of the elder law practice. How long have they been practicing in this area of law? What percentage of the practice deals with elder law? Paul also advises that you should only work with an attorney you are comfortable with. “In elder law, the attorney should have some emotional intelligence; some empathy for what the senior and his or her family are going through,” he says.

“Some attorneys are very good, technically, but they don’t understand the intimidation factor of sitting with an attorney to plan the rest of a person’s life. An attorney should not start the conversation with ‘We’ll get you on Medicaid,’ without really listening. In some situations, it’s better to pursue private pay than use Medicaid right away or, say, taking a look at the senior’s long-term care policy. You need an attorney who will listen to you first.”

Ask friends and family members who have had experience in employing an elder law attorney. And while it is not necessary to be an elder law attorney, there is a CELA certification that requires practicing elder law for a certain number of years and hours each week, and participating in continuing education. Paul suggests searching the National Academy of Elder Law Attorneys (NAELA) site to find an attorney, including those with a CELA certification.

NAELA is comprised of attorneys who focus their practice on elder law and also on continuing education. The website has a database of attorneys organized geographically. You might then check the internet for reviews on reputable sites like the BBB and AVVO.

Some elder law attorneys bill their clients based on the hours spent on their affairs. Others, based on the dialogue between the attorney and the clients, bill at a flat rate for the service upfront. According to Paul, seniors and their families need to understand that billing on flat fee is not like buying an item in a store. “Every case will be different; unique in the scope of services, benefits, and costs associated with accessing them,” he says. That is why the attorney should discuss the options and resources that can be provided to the client before talking about costs.

“What you need is an elder law attorney firm that offers the full breadth of services for a clear, up-front fee agreement,” Paul says.

“We give our clients a clear idea of their options,” he says. “This is what will happen if you do nothing, and this is what will happen if we implement this plan, and this is how much it will cost.”

There are many resources available to seniors to ensure they are taken care of in any way. For more information about these resources, visit our blog.

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