What Elder Law Is and Why You Need It

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May is National Elder Law Month.  In our April 2014 newsletter, we provided an article entitled “Tips for Finding and Choosing an Elder Law Attorney.”  (Call us if you would like a copy.)  It gave helpful tips for evaluating and identifying elder law attorneys to help with estate planning, long-term care and Medicaid planning, and various other types of planning.  One indicator of proficiency is the Certified Elder Law Attorney (CELA) designation given by the National Elder Law Foundation (NELF).  The information below describes the areas in which attorneys are tested and reviewed to achieve such designation.  You may find that your personal planning needs are included in this list.

Section 2 of the NELF Rules and Regulations defines “elder law as follows:

2.1  “Elder Law” is the legal practice of counseling and representing older persons and persons with special needs, and their representatives about the legal aspects of health and long term care planning, public benefits, surrogate decision making, older persons’ legal capacity, the conservation, disposition and administration of older persons’ estates and the implementation of their decisions concerning such matters, giving due consideration to the applicable tax consequences of the action, or the need for more sophisticated tax expertise.

2.2  In addition, attorneys certified in elder law must be capable of recognizing issues of concern that arise during counseling and representation of older persons and persons with special needs, or their representatives, with respect to abuse neglect, or exploitation of the older person, insurance, housing, long term care, employment, and retirement. The certified elder law attorney must also be familiar with professional and non-legal resources and services publicly and privately available to meet the needs of the older persons, and be capable of recognizing the professional conduct and ethical issues that arise during representation.

During the three-years immediately prior to application and the rigorous written examination for CELA designation, the attorney is required to prove he or she has provided legal services in at least sixty (60) elder law matters in the following categories:

1.  Health and Personal Care Planning, including giving advice regarding, and preparing, advance medical directives (medical powers of attorney, living wills, and health care declarations) and counseling older persons, individuals with special needs, health care agents, and families about life care, medical and life-sustaining choices, and related personal life choices.

2.  Pre-Death Legal Planning, including giving advice and preparing documents regarding wills, trusts, durable general or financial powers of attorney, real estate transactions, gifting, and the financial and income, estate and gift tax implications of any of those proposed planning actions.

3.  Fiduciary Representation, including seeking the appointment of, giving advice to, representing, or serving as:  executor or personal representative of a will or estate; attorney-in-fact in a power of attorney; trustee of a trust; court-appointed guardian or conservator of an incapacitated person; representative payee for Social Security; or other formal or informal fiduciary.  A “fiduciary” is a person to whom property or power is entrusted for the benefit of another.

4.  Legal Capacity Counseling, including advising how capacity is determined and the level of capacity required for various legal activities, and representing those who are or may be the subject of guardianship/conservatorship proceedings or other protective arrangements.

5.  Public Benefits Advice, including planning for and assisting in obtaining Medicaid, Medicare, Social Security benefits, Supplemental Security Income (SSI), Veterans benefits and housing and food programs.

6.  Special Needs Counseling, including the planning, drafting and administration of special/supplemental needs trusts, housing, employment, education and related issues.

7.  Advice on Insurance Matters, including analyzing and explaining the types of insurance available, such as health, life, long term care, home care, COBRA, Medicare Supplement (Medigap), long term disability, prescription coverage, and burial/funeral policies.

8.  Resident Rights Advocacy, including advising patients and residents of hospitals, nursing facilities, continuing care retirement communities, assisted living facilities, adult care facilities, and those cared for in their homes of their rights and appropriate remedies in matters such as admission, transfer and discharge policies, quality of care, and related issues.

9.  Housing Counseling, including reviewing the alternatives available and their financing such as: renovation loan programs, life care contracts, home equity conversion, reverse and other mortgage options.

10.  Employment and Retirement Advice, including pensions, retirement accounts, retiree health benefits, unemployment benefits, and other benefits.

11.  Counseling with regard to age and/or disability discrimination in employment, housing and related areas.

12.  Litigation and Administrative Advocacy in connection with any of the above matters, including will contests, contested capacity issues, elder abuse (including financial or consumer fraud), fiduciary administration, public benefits, nursing home torts. As Mississippi’s first Certified Elder Law Attorney, Richard Courtney has years of experience in these areas and has helped thousands of people with legal solutions for lifetime health and wealth.  Call today to let us help you.