Wednesday, September 24, 2008

What the Heck is Elder Law Anyway?

Before I started practicing elder law, my conception of the field was a foggy notion of elder abuse cases, and maybe something to do with helping Seniors take care of their special needs. Those special needs? Hmmm...not really sure. Well, there are so many facets to elder law that not even an elder law attorney is necessarily well-versed in all of them! But, lest anyone else walk around out there with the same foggy idea of elder law that I had, I thought I'd post a thumbnail sketch of some of the more widely-practiced facets of elder law.

As usually comes to mind first, elder law does encompass the area of elder abuse. This includes not just situations of neglect in the medical sense by nursing homes or in-home caregivers, but also financial abuse by those who convince Seniors to invest in various inappropriate financial instruments, or maybe even a family member with financial powers of attorney. There was a recent article on an Elder Law website about a case where the surreptitious taping of a husband in the wife's nursing home room violated the husband's Fourth Amendment rights. There was a complaint of sexually inappropriate contact by the husband, and nursing home officials reported it to authorities. They obtained a search warrant to install a hidden video camera in the room and the husband was subsequently arrested and charged with second-degree sexual assault for having intercourse with his wife while she was unconscious. The circuit court suppressed the videotape evidence, ruling that the husband had a reasonbale expectation of privacy in his wife's nursing home room. That article was WAY more interesting than the ones on tax that are also on the website! :^)

Encroaching upon the elder abuse arena is the area of Elder Rights. Some of the elements of Elder Rights include nursing home transfer or discharge rules, contract rights when one is dealing with Assisted Living or any Continuing Care-type community, issues related to receipt or purchase of long-term care insurance, housing issues such as discrimination or reverse mortgages, pension and retirement issues, or age discrimination in employment. Just by this short list describing two areas of elder law, you can see that this is a vastly varied field that encompasses all manner of different areas of law, as well as various arenas where one would practice. An elder law attorney could find themselves not just at the courthouse, but before an Administrative Law Judge, working with various public Commissions such as the Equal Rights Commission or the Department of Human Services, and even working in a mediating fashion with private entities such as long-term care facilities and banks!

Another area of elder law, where most of the action takes place in probate court, is guardianship. Many times a family member -- usually a child -- consults an elder law attorney when their parent can no longer handle their affairs and more than just a power of attorney is needed. A growing area within this particular segment is in voluntary guardianship. As Seniors live longer with specific long-lasting diagnoses (such as Alzheimer's), some of them are seeking the services of an elder law attorney to do a voluntary guardianship. These voluntary guardianships are usually done on a springing basis, so that as the Senior progresses in their journey of decline they have their affairs in order -- not just for a distribution to heirs at death -- but for their long-term care needs. Which brings me to another area of elder law -- assisting clients with long-term care planning. This area encompasses all manner of services one can provide to a Senior looking at possible long-term care in the future. This ranges from helping the Senior with long-term care placement at a facility or with in-home care, voluntary guardianship or other planning tools for someone to manage the Senior's affairs after they are no longer able, doing estate planning to help the Senior pay for their long-term care costs, advising about or planning for any future public benefits, such as Medicaid or Veterans Benefits, that the Senior may be or become eligible for, to providing referrals or information for caregiver stress or other sources of support for the family.

As you can see, the elder law attorney needs to be well-versed in a vast array of legal areas. In addition to the above, the elder law attorney may also do normal estate planning, estate administration, trust administration, financial planning, tax, or even family law. (Believe it or not divorce is a Medicaid-planning strategy, although not a common one). Although it doesn't seem likely, elder law could even encompass criminal law should one of your elderly clients run afoul of the law! So, in a nutshell, just what the heck is elder law? Anything and everything!

2 comments:

Ryan M. Holmes said...

Mike:

Great post. One minor correction...if an adult has a power of attorney for property with no limitations, there would not necessarily be a guardianship, absent an allegation of fraud, undue influence, lack of capacity, lack of care, etc. There are actually several types of guardianships, which you could write an entire treatise on.

However, generally speaking, a POA for property will avoid a guardianship. The husband/wife/child would use the POA's (property and healthcare) to pay the bills, set up therapy, etc., in the event of a disability. A common example would be a stroke.

As another matter, avoid guardianship at all costs. It is expensive, time consuming, and burdensome.

Michael W. Huseman said...

Ryan:

One minor correction. I didn't write that post.

That being said, I would like to introduce the latest contributor to the Northern Law Blog, Dawn Weekly.