What is Elder Law

"Elder Law" is the legal practice of counseling and representing older persons and their representatives about the legal aspects of health and long term care planning, public benefits, surrogate decision-making, older persons' legal capacity, the conservation, disposition and administration of older persons' estates and the implementation of their decisions concerning such matters, giving due consideration to the applicable tax consequences of the action, or the need for more sophisticated tax expertise.

The National Elder Law Foundation defines Elder Law in more detail, saying it encompasses each of the following areas:

• Health and Personal Care Planning, including giving advice regarding, and preparing, advance medical directives (medical powers of attorney, living wills, and health care declarations) and counseling older persons, attorneys-in-fact, and families about medical and life-sustaining choices, and related personal life choices.
• Pre-Mortem Legal Planning, including giving advice and preparing documents regarding wills, trusts, durable general or financial powers of attorney, real estate, gifting, and the financial and tax implications of any proposed action.
• Fiduciary Representation, including seeking the appointment of, giving advice to, representing, or serving as executor, personal representative, attorney-in-fact, trustee, guardian, conservator, representative payee, or other formal or informal fiduciary.
• Legal Capacity Counseling, including advising how capacity is determined and the level of capacity required for various legal activities, and representing those who are or may be the subject of guardianship/conservatorship proceedings or other protective arrangements.
• Public Benefits Advice, including planning for and assisting in obtaining Medicare, Medicaid, Social Security, Supplemental Security Income, Veterans benefits, and food stamps.
• Advice on Insurance Matters, including analyzing and explaining the types of insurance available, such as health, life, long term care, home care, COBRA, medigap, long term disability, dread disease, and burial/funeral policies.
• Resident Rights Advocacy, including advising patients and residents of hospitals, nursing facilities, continuing care retirement communities, assisted living facilities, adult care facilities, and those cared for in their homes of their rights and appropriate remedies in matters such as admission, transfer and discharge policies, quality of care, and related issues.
• Housing Counseling, including reviewing the options available and the financing of those options such as: mortgage alternatives, renovation loan programs, life care contracts, and home equity conversion.
• Employment and Retirement Advice, including pensions, retiree health benefits, unemployment benefits, and other benefits.
• Income, Estate, and Gift Tax Advice, including consequences of plans made and advice offered.
• Counseling about tort claims against nursing homes.
• Counseling with regard to age and/or disability discrimination in employment and housing.
• Litigation and Administrative Advocacy in connection with any of the above matters, including will contests, contested capacity issues, elder abuse (including financial or consumer fraud), fiduciary administration, public benefits, nursing home torts, and discrimination.

What Makes Elder Law Special or Unique?
Elder Law is the only area of law defined by the clients we serve rather than the areas of law in which we practice. We like to deal "holistically" with our clients in talking about long-term planning for health care and financial viability, family dynamics, end-of-life decisions, personal values and personal preferences.

What is a Certified Elder Law Attorney and what makes him or her different?
In addition to knowing about Elder Law generally, a Certified Elder Law Attorney (CELA) must be capable of recognizing issues of concern that arise during counseling and representation of older persons, or their representatives, with respect to abuse, neglect, or exploitation of the older person, insurance, housing, long term care, employment, and retirement. The certified elder law attorney must also be familiar with professional and non-legal resources and services publically and privately available to meet the needs of the older persons, and be capable of recognizing the professional conduct and ethical issues that arise during representation. CELAs meet experience and educational requirements established by the National Elder Law Foundation and must pass a full day exam prior to receiving certification.

Why Is Elder Law Important Now?
Elder Law is one of the fastest growing areas of law. With 80 million baby boomers moving into their "golden years," and one person attaining age 50 every seven seconds, there is a great demand for information. In addition, many of the entitlements, such as Medicaid, Medicare, Social Security, and "health care reform," are being driven at the federal level. It takes an attorney committed to practice primarily in this area of law to stay on top of the most current changes in legislation.

What is the National Academy of Elder Law Attorneys?
The practice of Elder Law came into its own in 1988 when a group of attorneys formed the National Academy of Elder Law Attorneys, a professional association concerned with improving the availability and delivery of legal services to older persons. There are now more than 4500 NAELA members in the United States.