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The Role of an Elder Law Attorney

                        Ten years ago most people probably thought an elder law attorney was an attorney of advanced age.  Not today.  Over the past decade, elder law has emerged as an area of legal specialization that focuses on the person and the property of the older individual.                           In a typical day an elder law attorney may advise a client about estate planning in the morning, draft a Medicaid-protected trust in the early afternoon, and make a court appearance on behalf of a child seeking appointment as his parent's guardian in the late afternoon.  Elder law attorneys frequently wear the hats of an estate planner, tax adviser, accountant, patients' rights advocate, litigator, and social worker at the same time.                           Aging clients have special concerns that frequently demand the expertise of an elder law attorney.  While a trusts and estate attorney can advise a client about how to maximize estate tax savings, estate taxes are not a concern to a client who spends the bulk of her savings on health care costs incurred late in life.  An elder law attorney can balance the client's interest in minimizing her tax liability against her interest in protecting a lifetime of savings from depletion on medical expenses.                            Similarly, a real estate attorney can counsel a client about re-doing a deed to protect the client's interest in remaining in the house for life and leaving the house to her children at death; however, only an elder law attorney can explain to the client how the revised deed will affect the client's Medicaid eligibility, and how Medicaid may file a claim against the client's estate at death.                           Although the Medicaid program was originally created to provide medical assistance to the financially needy, the middle-class elderly population has become increasingly concerned about Medicaid eligibility as health care costs have skyrocketed out of control.  In fact, Medicaid has become the number one payor of long term care expenses in this country.  The rules governing the Medicaid program are extremely complicated and in a constant state of flux.  Elder law attorneys who are well-versed in Medicaid law, and keep abreast of the latest developments, use a number of strategies to shelter life savings from the exorbitant costs of long term care and protect the financial security of the spouse of a Medicaid recipient.  Medicaid considerations must be taken into account whenever a will, trust, or deed is prepared for an older individual.                           Elder law attorneys frequently work with financial planners and accountants to make sure retirement plans and investment strategies also take into account the deteriorating health of a client or the client's spouse.  The unfortunate result of separating financial planning and health care planning can be the unnecessary depletion of savings on health care expenses.  Also, a financial plan that fails to include provision for someone to manage the older client's funds in the event of incapacity can result in a costly and time-consuming guardianship proceeding.  In a guardianship proceeding, a judge appoints someone to make decisions on behalf of an incapacitated individual.                            Elder law attorneys devote much of their practice to planning for the incapacity of their clients.  While competent adults can decide for themselves how they will invest and spend their money, where they will live, and what medical care they will receive, incapacitated or incompetent adults may be unable to make and/or express these decisions for themselves.  In most cases the need for a guardianship can be avoided with proper planning.                              A power of attorney is the simplest and least expensive way for one individual (the "principal") to give another person (the "attorney-in-fact") authority to manage the principal's finances in the event of disability.  The attorney-in-fact is legally obligated to use the principal's property in the best interest of the principal.  Powers of attorney are only effective as to property management.  An attorney-in-fact does not have the power to make decisions about where the principal will live or what medical care the principal will receive.                           There are several different types of powers of attorney.  There are durable and non-durable powers of attorney.  Only powers of attorney that are durable remain in effect after the principal becomes incapacitated.  There are also springing and non-springing powers of attorney.  A non-springing power of attorney becomes effective when it is signed.  A springing power of attorney only springs into effect upon the occurrence of a specified event, often the principal's incapacity.  While springing powers of attorney offer the advantage of preserving the principal's exclusive control over his/her property while competent, they can be problematic where they fail to define a method for determining whether the principal is incapacitated for purposes of triggering the power.                           Pre-printed power of attorney forms are available at most legal stationery stores.  While these forms are sufficient to authorize attorneys-in-fact to perform such routine financial transactions as paying bills on the principal's behalf, they do not authorize attorneys-in-fact to perform other transactions that are central to disability and estate planning.  A pre-printed power of attorney does not, for example, authorize an attorney-in-fact to make gifts of the principal's property.  An elder law attorney can draft a special power of attorney that is designed to meet the needs of the older principal.                           Trusts, like powers of attorney, can be used to provide for alternative property management in the event of incapacity.  A trust is a contract between an individual (the "grantor") and the person(s) named by the grantor to manage the grantor's property (the "trustee(s)."                            As a general matter, a trust is preferable to a power of attorney for asset management of a larger and/or more complex estate.  Trusts offer some other advantages as well.  First, assets that are put into a trust pass to the grantor's heirs at death free of probate.  By avoiding probate the grantor's heirs receive their inheritance more quickly, and do not have to pay attorneys' fees or court costs.  By avoiding probate the inheritance is also less likely to be the subject of a Medicaid claim for recoupment of benefits paid to the grantor or the grantor's spouse.  Other advantages of a trust include additional flexibility, management continuity upon incapacity, and the preservation of the grantor's exclusive control over his or her property for as long as possible.                           While an older individual can use a power of attorney and/or trust to make sure someone else will step in to manage the principal's property in the event of incapacity, neither of these documents is useful when it comes to medical decision-making.  No one has any authority to make health care decisions on behalf of another person in the absence of a health care proxy.  In a health care proxy a competent adult (the "principal") gives another individual (the "proxy") authority to make or communicate health care decisions on the principal's behalf.                            A living will is another document that a competent adult can use to express his/her medical treatment preferences.  Elder law attorneys take special care in drafting health care proxies and living wills to avoid any conflict that could result in litigation.                           Consumers must exercise great care when selecting an elder law attorney.  The safest way to proceed is by using an attorney who comes with a personal recommendation.  The local bar association and the National Academy of Elder Law Attorneys are additional sources of referrals.