The single most important question is whether the attorney actually practices elder law as a focused discipline, not estate planning with an occasional Medicaid case on the side. The right questions fall into four buckets: the attorney’s experience and credentials, how fees work, how they handle long-term care and Medicaid planning, and how they communicate with families. Asking these questions is normal, expected, and never rude. A good attorney will welcome them.
Table of Contents
- What does an elder law attorney actually do?
- How much experience should an elder law attorney have?
- What credentials and memberships should I look for?
- How does an elder law attorney charge for their work?
- What should I ask about Medicaid and long-term care planning?
- What should I ask about powers of attorney, wills, and trusts?
- What should I ask about incapacity and signing legal documents?
- What else should I know before I hire someone?
- Key Takeaways
- References
What does an elder law attorney actually do?
Elder law is a subspecialty of estate planning, not a synonym for it. An elder law attorney helps individuals and their families plan for retiree benefits, healthcare and long-term care, Medicaid and Medicare coverage, and home care and nursing home care, according to Right at Home.
Elder law attorneys also prepare advance directives and medical powers of attorney. The field is distinct because it centers on government benefits and long-term care costs, which general estate planners may handle only occasionally. The catastrophic cost of long-term care is described as the greatest threat to the finances of people over the age of 50, according to Solkoff Legal.
The circle of attorneys who practice special needs and elder law in any community is usually pretty small due to the complexity and commitment of resources required to monitor complex government programs, according to Northwoods Law Group. That focused commitment is exactly what separates a dedicated elder law practice from a general estate planning office.
How much experience should an elder law attorney have?
Look for 10 or more years of experience in elder law and special needs planning. Less experience is acceptable if the attorney is supported within the firm by more experienced practitioners, according to Northwoods Law Group.
Specific experience in elder law and estate planning is the key factor when choosing an attorney, according to Ziegler Estate Law. You want someone who has handled many cases like yours, not someone learning the rules on your file.
The local circle of elder law and special needs attorneys is usually small because of the field’s complexity. Tracking Medicaid rules, long-term care regulations, and special needs trust requirements takes ongoing resources. An attorney who has stayed in this field for a decade has demonstrated both competence and commitment.
What credentials and memberships should I look for?
Some state bars certify attorneys as specialists in areas such as Wills, Trusts and Estates or Elder Law. Certification requires a written examination, peer review of the attorney’s practice, and an audit of the types and number of cases the attorney has handled, according to Solkoff Legal.
Relevant organizations for elder law attorneys include the National Academy of Elder Law Attorneys, the Elder Law Section of the State Bar, Elderlaw Answers, the Special Needs Alliance, and local and national disability organizations, according to Northwoods Law Group.
Membership alone is not proof of quality, but it shows engagement with the field. An attorney who joins these groups is paying attention to changes in the law and connecting with peers who handle similar cases.
How does an elder law attorney charge for their work?
Some lawyers charge hourly, others charge a flat fee, and some charge consultation fees while others charge none, according to Solkoff Legal. Ask upfront what the consultation costs and whether that amount is credited toward the engagement if you hire the attorney.
Ask what a typical planning package includes and whether document updates cost extra. Some firms bundle a will, power of attorney, and advance directive into one flat fee. Others bill separately for each document and charge hourly for changes later.
The research available for this article does not provide average fee figures, so compare quotes locally rather than relying on national averages. Pecori & Pecori Attorneys at Law serves Pittsburgh and Western Pennsylvania families and can explain how its fee structure works for elder law and estate planning matters.
What should I ask about Medicaid and long-term care planning?
Ask whether the attorney walks clients through long-term care planning possibilities, including Medicaid strategies. A knowledgeable elder law attorney should cover these options directly, according to Ziegler Estate Law.
Ask about waiting periods that must be met in order to protect assets. Ask which asset protection options the attorney typically discusses: giving assets away, putting them in an irrevocable trust, buying long-term care insurance, or doing nothing, according to Right at Home.
Ask whether the attorney handles a steady volume of Medicaid applications and has a dedicated paralegal or social worker on staff. Firms that process 5 to 7 applications or more per month are more likely to understand the Medical Assistance system, according to Northwoods Law Group.
What should I ask about powers of attorney, wills, and trusts?
Ask whether the durable power of attorney will be client-specific and include a provision authorizing children to sign nursing home admission agreements on a parent’s behalf. That provision lets children sign in a representative capacity so they are not individually liable, according to Solkoff Legal.
Ask how the attorney builds a laddered succession of decision-makers. A laddered approach ensures flexibility if the first designated agent is unavailable, according to Ziegler Estate Law.
Ask whether a revocable living trust is right for your situation. A revocable living trust can offer flexibility and protection, but it is not always the best plan, according to Ziegler Estate Law.
Ask about a separate memorandum in addition to the will for sentimental property. A separate memorandum can designate more personal items without requiring a formal will change, according to Right at Home.
What should I ask about incapacity and signing legal documents?
Courts have found that even people in the most advanced stages of dementia can be competent to sign important legal documents, according to Solkoff Legal. The medical definition of incapacity is different from the legal definition of incapacity.
The capacity requirements for each legal document can be different. A person might have capacity to sign a simple will but not a complex trust, or capacity to name a healthcare agent but not to manage a financial power of attorney.
Ask the attorney how they assess capacity and what happens if a client cannot sign. A thoughtful attorney will explain the standard for each document and describe the backup options if capacity is in question.
What else should I know before I hire someone?
Ask how the attorney handles special needs planning. If a child is receiving government benefits, a special needs trust may be set up so the child does not lose benefits while the money remains available for them, according to Right at Home.
Ask whether probate rules in your state change the plan. Probate laws differ in each state and jurisdiction, according to Right at Home. An attorney who knows local probate practice can tell you which assets will pass through court and which will not.
Ask how the attorney prefers to communicate and who in the office answers questions between appointments. You want to know whether you will hear from the attorney directly or from a paralegal, and how quickly the office responds.
By age 60 a person should start the elder law planning process, according to Right at Home. Starting early gives you more options and less pressure.
Key Takeaways
- Elder law is a subspecialty of estate planning focused on retiree benefits, healthcare and long-term care, Medicaid and Medicare, and home and nursing home care.
- Ten years or more of elder law and special needs experience is preferred, though less experience is acceptable when the attorney is backed by more experienced practitioners.
- State bar certification as a specialist requires a written exam, peer review, and an audit of the cases the attorney has handled.
- Attorneys charge in different ways, including hourly, flat fee, or with or without a consultation fee, so ask about fees before the first meeting.
- A durable power of attorney should specifically authorize children to sign nursing home admission agreements in a representative capacity so they are not personally liable.
- A Lady Bird deed can pass real estate to heirs without probate while preserving homestead tax exemption, homestead creditor protection, and where applicable Medicaid eligibility.
- The medical definition of incapacity is not the same as the legal definition, and capacity requirements can vary from one legal document to another.
References
- Ask Your Elder Law Lawyer These 10 Questions — Solkoff Legal, date unknown
- 10 Frequently Asked Questions for Elder Law Attorneys — Right at Home, date unknown
- 11 Questions to Ask an Elder Law Attorney — Ziegler Estate Law, date unknown
- Questions to Ask When Choosing an Attorney — Northwoods Law Group, date unknown
