Why We Choose to Honor Elder Law Month 2023
Why devote a month to awareness of Elder Law? Because a lot of people don’t know what elder law is or how it’s practiced.
Let’s discuss the how first. The ABA Commission on Law and Aging published an article years ago that called out three characteristics of Elder Law that remain true today and set it apart from traditional law practices:
Elder law emphasizes issues arising from life over death,
It integrates legal planning and problem-solving for clients on a personal level,
It uses an interdisciplinary approach, utilizing the talents and skills of other professionals to serve clients effectively and compassionately.
At Elder Law of East Tennessee, we embrace the ABA’s perspective, particularly about the interdisciplinary approach. We call it “Elder Care Law” because care is at the center of our planning, and more specifically, what we do is called “Life Care Planning.” Our firm is part of a national network of attorneys: the Life Care Planning Law Firms Association. These Life Care Planning firms focus on a holistic, comprehensive approach to representing clients that involves other professionals, such as care coordinators and public benefits specialists.
So that’s the “how” in a nutshell, but what exactly are the subjects or problems that Elder Care lawyers tackle? The National Academy of Elder Law Attorneys (NAELA) offers an answer by identifying over a dozen areas of the law that fall under the umbrella of Elder Law. In broad terms, they are:
Estate planning and probate, Estate and Gift Tax Planning, Retirement Benefits, Age Discrimination, Elder abuse or neglect, Housing, Long Term Care Financing, Medical Decision Making, Disability Planning and Insurance.
But what do those terms mean? Let’s dig deeper.
To be recognized as an expert at a national level, an elder law attorney becomes a Certified Elder Law Attorney (CELA) by the National Elder Law Foundation (NELF). NELF requires extensive experience in elder law in the following 12 areas. Read more to learn about these areas and how we at Elder Law of East Tennessee address them for our clients:
Health and Personal Care Planning – this means giving advice and drafting documents that help people and families plan their medical decision-making, care preferences and lifestyle choices, and end-of-life decisions. In our Tennessee-based practice at Elder Law of East Tennessee, we incorporate an Advance Care Plan, Living Will, and Durable Healthcare Power of Attorney for clients. We also use a helpful booklet called Your Way by the H.E.L.P. non-profit. We advise and counsel people over 55, people of any age with disabilities or special needs, families, and healthcare agents about medical, care, and life-sustaining choices.
Pre-Mortem Legal Planning – these are fancy words for estate planning and planning for incapacity while you are alive for all your financial and legal decisions. In our office, we help clients develop a plan that fits their goals and needs, then we draft Wills, Trusts, Durable General Powers of Attorney covering legal and financial matters. We also provide counsel and advice about handling real estate, making or receiving gifts, and the implications or consequences of actions relating to income, capital gains, gift or estate taxes, review and assist in handling different income streams, and generally help with budgeting and finances.
Fiduciary Representation – What is a “fiduciary”? It’s a person who is in a position of trust with respect to another person's best interest and needs, often but not always regarding finances. A fiduciary may serve as an executor or Personal Representative of an estate administration, the Trustee of a trust, or a conservator or guardian that has been appointed by a court to manage matters for an adult who has a disability or in the case of guardianship in Tennessee, a minor (under 18). In our office, we represent fiduciaries, and we serve as fiduciaries in some instances.
Legal Capacity Counseling—This means advising people about the difference between disability, incapacity, and incompetency. A different level of mental capacity is required for legal actions, like making a Will, a contract, or a gift. Elder Care Law attorneys understand capacity and incapacity and help their clients understand these legal requirements, too. We also represent people who may lack capacity or help one family member obtain decision-making authority over someone who lacks capacity or has a disability through a court proceeding called a Conservatorship or Guardianship.
Public Benefits Advice – This is a significant and essential topic. The primary public benefits that confuse clients are Medicaid or TennCare, Medicare, Social Security benefits, like Supplemental Security Income (SSI), or Social Security Disability Income (SSDI), benefits through the Veterans Administration, including Compensation and Pension with Housebound or Aid and Attendance allowances, Section 8 housing, and SNAP or food stamp or vouchers. Each of these programs offers different benefits and has different eligibility requirements; obtaining one benefit might affect the availability of other benefits. It’s complex.
Special Needs Counseling – For people with disabilities or special needs, Elder Care Law attorneys assist in planning for public benefits or handling funds for beneficiaries who may lack capacity or might be particularly vulnerable to exploitation by using Supplemental or Special Needs Trusts (SNTs). We use different SNTs depending on the circumstances of the trust's creator, the type and source of assets used to fund it, and the beneficiary's circumstances. Often, SNT is created during life as a stand-alone trust, which has many advantages.
Advice on Insurance Matters – One way to mitigate risk is to use insurance to shift risk to a company. Still, insurance companies are known to be eager to accept premiums and reluctant to pay claims. Elder Care Law Attorneys advise clients about the types of insurance available and how to select coverage. Insurance discussions may involve coverage and selection of health, life, and long-term care insurance, whether to choose COBRA, privatized Medicare Part C or maintaining original Medicare while obtaining a supplement or Medigap policy, long-term disability, terminal illness or “dread disease” policies, prescription coverage, and insurance to cover burial, cremation and funeral costs.
Resident Rights Advocacy – Clients who reside in or receive care in a hospital, nursing home, assisted living, or other retirement community, and even those who receive care in their own homes, maintain certain rights that can be overlooked or disregarded. Elder Law attorneys are well-versed in federal and state laws that guarantee certain rights to privacy and autonomy, quality of life, proper care, communication, and related matters. In Tennessee, statutes enumerate the minimum rights afforded to residents of nursing homes, and rules govern rights for people in assisted care communities. Similar laws govern at the federal level.
Housing Counseling—Elder Law attorneys assist clients in choosing proper housing alternatives, reviewing costs, financing options, home equity loans, and reverse mortgages, and drafting life care contracts. We also recommend when and how to relocate to obtain proper care and assist with residence transitions prompted by health-related planning or acute needs. We use the elder care continuum as a planning tool to discuss the importance of careful housing selection.
Employment and Retirement Advice – When retirees or prospective retirees work with us, we discuss how and when to receive retirement benefits or pensions and evaluate their health plans and options. Social Security and retirement benefits planning are considered, and we also work with the client’s financial advisors to consider charitable giving and withdrawals from retirement accounts. Retirement benefits law is an ever-changing area, and in the last several years, Congress has passed two major legislative initiatives – SECURE and SECURE 2.0 -- to expand and clarify retirement accounts.
Age or Disability Discrimination –Elder Care Lawyers represent clients who may encounter discrimination in employment, housing, or other areas.
Litigation or Administrative Advocacy regarding the above-listed categories.
As outlined above, elder law attorneys provide many valuable services in support of their clients. At Elder Law of East Tennessee, we provide these services and more with the honesty, respect, and compassion you deserve.
It makes perfect sense that May is both Elder Law and Older American’s Month.”
