Hiring an attorney is a difficult decision, but elder law in particular is a complicated field. Beyond simple estate planning, a good elder law attorney will advise clients on a range of long term care planning issues, taking into consideration emotional and other non-legal issues. Estate planning – taking care of what happens to your assets after death – is just one facet. The other is taking care of your assets, needs and physical care before that event, and elder law attorneys help you plan for illness, disability, or incapacity. As people live longer lives, their extended care will become more and more of the planning focus.
Just as you would seek out a certain type of physician for open heart surgery, you should seek out an attorney who has focused his or her career in the limited practice area of elder law for long-term physical care and financial planning needs. A good elder law attorney offers far more than an attorney who does not focus on this particular area of law, and you should expect far more from him or her.
An experienced, well-qualified elder law attorney has the background to recognize problems that you are not aware of, such as the consequences of powers of attorney and potential conflicts between different family members. The purpose of careful planning is to ensure your desires are carried out even when you can’t speak for yourself, and you want to be certain that your attorney can evaluate all the consequences of your written word, especially consequences you do not anticipate.
For example, many people feel very strongly about not “ending up in a nursing home,” and their first inclination is to prohibit a nursing home stay. A blanket prohibition, however, eliminates the ability of caregivers to get permission from a judge to do so. An experienced elder law attorney will help his or her client avoid such pitfalls. For example, an out-and-out prohibition or nursing home stay – dreaded by many – may prevent the one who holds a medical power of attorney from authorizing a short term, rehabilitative stay. Getting the necessary authorization would mean additional legal fees and time, all avoidable by using an experienced elder law attorney who can spot trouble before it starts.
How to select an elder law attorney.
Experience – More than just legal.
Once you decide to select an elder law attorney, you should be certain to find one with a depth of experience to recognize the myriad of legal and personal issues that can arise during the representation. Often, grown children will seek out counsel on behalf of their parents, and it is important to select an attorney who understands the complications that can occur.
According to the National Academy of Elder Law Attorneys (NAELA), established in 1988, you should find out how long an attorney has been in practice, and what percentage of the practice is devoted to elder law. As the establishment date of NAELA indicates, the concept of planning for long term care, rather than simply the disposition of assets after death, is relatively new. Many estate planning attorneys have simply added “elder law” to their business cards. Beyond wills and trusts, you should know that the elder law attorney you select has a wide range of planning experience.
Crisis “Planning”
Unfortunately, as you read this, you might be dealing with a crisis situation, rather than carefully planning for the future.
A lack of planning frequently results in a conservatorship proceeding, and it is particularly important to select an attorney who has navigated the rules of conservatorship previously and who knows how to take the fear and confusion out of the process.
Whether you are a concerned family member seeking a conservator, or an elder person who does not feel ready for a conservatorship, a good elder law attorney can guide you through the system.
