Elder Law: Representing the Whole Person

Elder law is an area of legal practice that is quickly growing as the population ages. The idea behind elder law is unique because it deals holistically with the whole person, rather than handling just single legal issues.

While many of the concerns of elder law — such as estate planning, healthcare directives, age discrimination, disability and nursing home care — can apply to any age group, they are particularly important to the elderly. Elder law also deals with Medicare and Medicaid issues, including clearing up misconceptions about what Medicare and Medicaid will and will not pay for.

For many people, the primary concern of elder law is making arrangements for incapacitation when they can no longer manage their affairs.

Another focus is determining how a patient’s debts will be paid if he or she is no longer able to physically handle that task or requires high-cost nursing care. Often, attorneys are charged with creating power of attorney documents for the disabled elderly, which designate someone as a guardian to manage financial and medical affairs. Without a power of attorney, it’s up to the courts to designate a guardian.

Your attorney can review contracts for continuing care retirement communities, which can be very complex, and make certain you understand a contract and its ramifications. For example, once a couple lives in a retirement community, what happens if one spouse needs a higher level of service? Who makes the decision?

Not surprisingly, the cost of necessary care and how to finance it is especially important. While the purchase of long-term care insurance can help offset costs, such insurance is difficult to acquire when an insurance company realizes the elderly individual is likely to make a claim. Unfortunately, most people begin to think about long-term insurance when it’s too late. (As insurers sometimes point out, you can’t insure a building when it’s ablaze.)

To Protect Yourself:

• • • Have all legal paperwork — advance directives, guardianship and so forth — in place before an emergency occurs.
    • Begin planning while you are young. Don’t wait until retirement.
    • Work with an attorney who understands estates, trusts and protecting assets, while helping insure you will be able to afford the care you need.

For such a young area of law, there is a bright future: Elder law is a practice that is evolving and providing protection for older people as the population lives increasingly longer.

 Quality of Care

 One event that profoundly impacted elder law is the Nursing Home Reform Act of 1987. This legislation radically transformed how nursing homes cared for residents, and the quality of care came under scrutiny. 

For instance, restraints are intended to prevent residents from injury, and the Act prescribes when and how restraints can be used. Yet when residents and their families, as well as nursing home staff, eased off in the use of restraints, the result turned out to be fewer accidents and a general improvement in morale on the part of both residents and staff. Other regulations followed.

Elder lawyers also sometimes deal with situations involving grandchildren. For instance, they handle the legal ramifications of grandparents who are raising their grandchildren. And they fight for visitation rights for grandparents denied access to grandchildren because of a bitter divorce.