As the senior population continues to grow, more and more people are in desperate need of estate planning in the defined area of elder law. Although elder law has been a recognized area of law since the 1980’s, it was largely unknown a decade ago. Even at the present time, most have no idea what the area of elder law consists of. When people hear that an attorney’s practice concentrates on senior law, they quickly question the term.

First and foremost, the practice of elder law is an especially expansive area of law.  It often involves any legal issues that older adults and their loved ones may be confronted with. An attorney specializing in this area of law has often specialized in some of following key areas: probate, estate administration, estate planning, guardianships, elder abuse, Medicaid planning, special needs planning, and several of other areas. The truth of the matter is that elder law is such a broad focus of law that no one attorney can be expected to have knowledge and experience in all associated topics. The ambition of most elder law lawyers is to be well versed in a few sub-areas and to collaborate with other lawyers who specialize in other categories. Medium sized firms and large law firms regularly have a handful of lawyers for each category.

Although not always, an elder law attorney specializing in estate planning involving Medicaid and special needs should often be able to advise a client with respect to public and private agencies. It is also important to keep in mind that just because you are a senior does not necessarily mean that any legal issues you may encounter requires the assistance of an elder law attorney. For a simple real estate closing, a general practitioner or a real estate lawyer should suffice. But, if you need to protect your estate for Medicaid or Special Needs purposes, although an elder law lawyer in New York may be more expensive, their expertise in this niche is well worth the price.

Outlined below are some of the areas that elder law lawyers practice and a short description of the topic:

Probate Proceedings

When someone dies with a will, that document needs to be processed through the Surrogate’s Court system to ascertain its validity. Without the court’s acceptance of the will into probate, the instrument is considered invalid and the assets of the deceased will be distributed based on state law. The Last Will and Testament of the decedent should be filed in the Surrogate’s Court located in the county in which the person lived, or had real property.  For example, if the person lived in Brooklyn, the will should be filed in Kings County and the probate process initiated in that court.  During the probate proceeding, unhappy family members who have been left out of the decedent’s estate may challenge the will.  While the process is typically useful, it can easily get pricey with lengthy delays. With that in mind, a common objective of estate planning is to prevent probate in its entirety.

Estate Planning

Estate planning is a very special area of law that includes the careful formulation of documents necessary to protect your assets and pass them to your intended beneficiaries. Basic planning often involves a will, power of attorney, and a health care proxy. In terms of more complex preparation, estate lawyers utilize revocable and irrevocable trusts. Some of the ends of forming trusts are to qualify for government programs, protect assets from creditors, preserve assets from lawsuits, avoid estate tax, avoid probate, and prevent disgruntled heirs from contesting your will.

Medicaid Planning

What most people do not realize is that nursing home care is not covered by Medicare. A stay in a nursing home facility can easily cost from $60,000 to $125,000 annually. Who does pay for nursing home care? Medicaid is who. Most importantly, it should be noted that Medicaid is a method of last resort. What that basically means is that if you have assets, you will be expected to deplete those funds before Medicaid will step in. To illustrate a point, lets say you have $100,000 in your bank account.  If things take a turn for the worst and you end up being admitted into a nursing facility, that money in your account will be exhausted within a year time period.  Only when you have no assets left, can you apply for Medicaid to cover the cost. Medicaid eligibility rules are so complex that even estate lawyers have trouble comprehending certain provisions at times.

A great elder law attorney is able to assist seniors and their families in protecting assets while qualifying for government benefits when the inevitable comes knocking on your door.

Guardianship

Whenever a person can no longer make decisions and their personal well being is at risk, a court will appoint a guardian to watch over the property and safety of that individual.  The guardian may decide that assisted living is the proper route, and may transfer the assets of the incapacitated person so bills can be paid on a monthly basis. As previously mentioned, assisted living can be very expensive if coverage is not provided by Medicaid and Medicare insurance plans. The best way to protect assets is to engage in estate planning ahead of time.  It is frequently the case that people undoubtedly understand the importance of estate planning documents but they never get around to it.  Therefore, making the appointment of a guardian is a necessary procedure.

Advance Directives

Advance directives typically take the form of a Power of Attorney, Living Wills, and Health Care Proxy.  The described documents are only valid during the life of the person. They are under no circumstances equivalent to a will or a trust. If you are named as an agent in someone’s power of attorney, it does not make you a beneficiary under their estate.  These documents are designed to convey directions and powers to your trusted friends and family during your life in case you are unable to make decisions.  One of the most common advance directive instruments is a Durable Power of Attorney.

Nursing Home Abuse & Neglect

It may be the case that a staff member in a nursing home fails to take proper care of the resident resulting in bed sores, fractures, infections and sometimes death. Litigation lawyers, not necessarily personal injury attorneys, typically handle such cases. In order to successfully handle these matters, the law firm must be familiar with the afflictions and infirmities of the senior population as well as the countless regulations that pertain to nursing homes.