Frequently Asked Questions (FAQs)
Here are answers to some of the most common questions people have about elder law.
What’s the difference between an elder law attorney and an estate planning attorney?
While there is significant overlap and many attorneys do both, there is a key difference in focus. Traditional estate planning is often centered on the distribution of assets after death. Elder law, on the other hand, takes a more holistic, life-centered approach. It encompasses estate planning but also focuses intensely on issues of aging, such as long-term care planning, Medicaid eligibility, disability planning, guardianship, and protecting seniors from exploitation. An elder law attorney is often focused on preserving your quality of life and autonomy as you age.
I’m only 55. Isn’t it too early to think about elder law?
Absolutely not. The best time to plan for the future is when you are healthy, active, and thinking clearly. A sudden accident or unexpected illness can happen at any age. Having documents like a durable power of attorney for finances and healthcare in place is critical for everyone over the age of 18. Furthermore, strategic planning for long-term care, especially when it involves the five-year Medicaid look-back period, must be done well in advance of needing care. Thinking about these issues in your 50s and 60s is proactive and wise.
My parents don’t have a lot of money. Do they still need an elder law attorney?
Yes, and in many ways, planning is even more critical for families with modest assets. For wealthy families, paying $10,000 a month for a nursing home may be possible. For a family with a home and a small nest egg, that cost can be financially devastating. An elder law attorney can help families with modest means protect their primary residence and whatever savings they have, while legally positioning them to qualify for public benefits like Medicaid to pay for long-term senior care. It’s about preserving what little they have for a surviving spouse or their heirs.
How much does an elder law attorney cost?
Costs can vary significantly based on your geographic location, the complexity of your situation, and the attorney’s experience. Some services, like drafting a set of estate planning documents, are often billed at a flat fee. More complex work, like a Medicaid application or crisis planning, is typically billed at an hourly rate. Always be upfront about costs during your initial consultation. Ask the attorney for a clear explanation of their fee structure and a written engagement letter that outlines the scope of work and the expected costs before you proceed.
Can’t I just add my child’s name to my bank account and the deed to my house?
This is a common “shortcut” that can lead to serious, unintended consequences. While it may seem like an easy way to allow a child to help with bills and inherit property, it’s fraught with risk.
- Creditor Risk: When you add your child’s name to your assets, those assets are now exposed to their financial problems. If your child gets divorced, is sued, or files for bankruptcy, your money and your home could be at risk.
- Loss of Control: For a joint bank account, that child has equal rights to the money and can withdraw it all without your permission. For a deed, you cannot sell or mortgage the property without their signature.
- Tax Consequences: Gifting a partial interest in your home can have negative capital gains tax implications for your child down the road.
- Medicaid Ineligibility: Adding a child’s name to an asset is considered a gift by Medicaid, which can trigger a penalty period and delay your eligibility for benefits.
A much safer and more effective way to achieve your goals is by using a Durable Power of Attorney for finances and a will or trust.
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