Elderly Care Law: Let’s Break Down the Facts

Make the most out of your loved one’s elderly years and give them the care they need. Find out how you can help them cope with aging in this article.

As we grow older and enter retirement, we face many LIFE-CHANGING decisions.

We must consider long-term care, financial well-being, and, ultimately, our end-of-life planning.

These issues may seem intimidating, but fortunately, there are legislations in place to protect the rights and interests of older individuals.

In this article, find out how the elder law can help you navigate legal issues in your elder years.

What Is the Elder Law?

What Is the Elder Law

Elder law, or older adult law, is a legal specialty that covers issues concerning senior citizens, including their family members, friends, and caretakers.

The elderly face several issues that require legal assistance, such as:

  • Health care
  • Estate planning
  • End-of-life decisions
  • Elder abuse
  • Protection of assets
  • Guardianship
  • Obtaining government benefits

Today, elder law is a diverse area of practice that assists senior citizens in navigating the challenges of aging.

How Did It Become a Practice?

In 1965, Congress passed the Older Americans Act (OAA), which was signed into law by President Lyndon B. Johnson.

It is the first legislation to address the need for community social services for older adults on a federal level.

The American Bar Association credited the OAA as the foundation for the practice of elder law.

Through the OAA, senior citizens can enjoy the following benefits:

  • Access to health care services
  • Affordable housing
  • Income after retirement
  • Employment opportunities
  • Long-term care

In 1978, the American Bar Association created the Commission on Law and Aging to “strengthen and secure the legal autonomy, quality of life, and quality care of elders.”

What Does an Elder Care Lawyer Do?

What Does an Elder Care Lawyer Do

Elder law attorneys focus on problems that senior citizens and their family caregivers face. They are well-informed about the laws that protect the rights of older adults.

They provide legal help such as:

  • Power of attorney
  • Medicaid and Medicare planning
  • Veterans benefits
  • Social security benefits
  • Estate planning
  • Elder abuse

More specifically, elder law attorneys can help in TWO WAYS:

Planning for the Future

As we age, we have to think about legal considerations that will affect our families:

  • Incapacity and infirmities – such as long-term care, nursing home care, memory care
  • Needs for vulnerabilities – separation from family members, loss of network, special needs planning
  • Financial planning – costs for medical needs, death, and planning for the future financial well-being of loved ones
  • Choosing representatives – choosing a personal representative for wills, and trustees for a trust

An elder law attorney offers guidance and advice on legal matters that involve future needs.

They can explain the best course of action based on the client’s physical, mental, and financial situation.

If an older adult requires long-term care that relatives can’t provide, an elder attorney can assist them in finding a suitable nursing home.

They can also connect clients with relevant resources for end-of-life decisions, such as memorial plans and funeral insurance.

Completing Legal Documents

Elder law services can help acquire important legal documents such as living wills or advanced directives, wills, and power of attorney.

A power of attorney allows an older adult to choose an agent in the case of incapacity or absence.

The agent or lawyer can transact on behalf of the client, such as transferring real estate or paying bills. It is a useful tool in elder law and estate planning.

Laws vary from state to state, so you must prepare legal documents in compliance with local jurisdictions.

A reputable elder attorney ensures that the necessary documents are complete and accurate.

Why Should You Work With an Elder Care Attorney?

Caring for older adults can be challenging, but an elder law attorney who is sensitive and knowledgeable about your specific needs can help you get through difficult times.

They are experienced in finding resources for elders’ special needs:

1. Medicaid Benefits

Medicaid is a federal assistance program that provides medical care coverage for millions of senior citizens in the U.S.

It offers health care benefits for low-income persons of any age. Patients pay little to no medical expenses covered by Medicaid.

Eligibility for Medicaid largely depends on financial assets and the cost of specific medical treatments. Requirements can also vary depending on the state.

An elder law attorney can help in the process of qualifying and applying for benefits.

You can also look into Medicare health plans if you don’t qualify for Medicaid due to income.

2. Long-Term Benefits

Long-term care planning can be difficult but necessary if loved ones require certain needs.

Some seniors may have to move in with a loved one, an assisted living facility, or a nursing home to be given adequate support as they grow older.

However, long-term care can be quite EXPENSIVE.

Finding a law attorney experienced in Medicaid or Medicare planning can assist in finding the best financial arrangement for long-term care.

It’s important to choose an attorney you can TRUST and rely on because they will be helping you with personal matters for a significant period.

3. Protection of Assets From Financial Exploitation

It can be difficult for an older adult to identify elder financial abuse when it happens.

Financial exploitation is a form of elder abuse. It may come from close friends, neighbors, and even relatives.

Law attorneys can help seniors protect assets and resources against potential predators.They can also contact authorities or assist you in regaining lost finances in the event of theft.

How Can You Find an Elder Care Lawyer?

There are ways to get in touch with an attorney if you’re considering hiring one for yourself or an aging loved one:

Get a Referral

A relatively easy way to contact an elderly law attorney is through a referral.

Ask a family member or a friend if they know a reputable lawyer they trust.

It’s best to get a referral from someone with the same legal concerns. Even if it isn’t the case, the referred lawyer may direct you to a colleague who can better assist you.

Family law attorneys who practice elder law can also be a good fit.

Professionals like accountants and financial advisors work closely with elder law attorneys. You can also ask them for a referral.

Check Directories

The National Academy of Elder Law Attorneys (NAELA) is a professional association of law attorneys who are experienced and trained in dealing with cases involving aging individuals.

Their website includes resources to help you find a NAELA law attorney in your particular area.

You can also check the National Elder Law Foundation (NELF) ‘s attorney directory search on their website to help you get in touch with an attorney in your city.

Nonprofits like Legal Services Corporation (LSC) and online directories such as LawHelp.org offer free legal services and connect you with law attorneys who can take cases for free.

Choosing An Elder Law Attorney

Find an elder attorney specializing in your area of concern to ensure they can give you good legal advice and support.

If you’re looking for a qualified law attorney, check whether they have certifications from the NELF.

NELF is the only accredited organization that can certify that a practitioner is a qualified law attorney with knowledge and expertise in elder law.

During your first meeting with an elder law attorney, you can ask whether they are certified or what their experiences are in handling similar cases in the past.

Frequently Asked Questions (FAQs)

If you want more clarification regarding your situation, below are frequently asked questions that can help you.

What Is a Will?

A will is a legally prepared document stating how a person’s assets and wealth will be distributed after death.

Any person over 18 can create a last will and testament. Creating a will is RECOMMENDED if you have considerable money or resources.

An elder law attorney can advise you on how to protect assets and any surviving spouse and heirs after you pass.

What Is a Living Trust?

A living trust is a legal arrangement that allows a person to protect their assets and direct how they are distributed after death.

Unlike a will, a living trust takes effect immediately after signing it. It allows seniors to maintain control over their assets in some capacity.

It can also help provide direction if an older adult is still alive but unable to make decisions independently.

NOTE: Some families prefer a trust over a will to avoid a lengthy and costly probate process. 

Can I Make Medical Decisions for My Older Adult Parents?

If possible, it would be best to talk to your parents regarding their needs and wishes before making a critical decision.

There are many situations when you may need to make decisions for your elderly loved one, especially if they have a serious injury or stroke.

You will need certain documents to help your loved one make important medical decisions.

A durable power of attorney can grant a certain individual the capacity to make medical decisions on behalf of an older adult.

Discuss with your parents if they would want you to be their healthcare proxy on all or some medical decisions.

What Happens if My Older Adult Parent Doesn’t Have a Will?

If a person passes without a will, none of the potential heirs has the right to decide who gets the parent’s estate or assets.

When this happens, the estate goes into PROBATE, a complicated legal process where the court uses state laws to determine how the assets will be distributed.

Typically, the estate will be split between the surviving spouse and children. Unmarried partners don’t receive anything.

It can take months and even years for a probate process to be completed. Legal fees can often become expensive.

That’s why it is important to plan ahead and choose an elder law attorney with careful consideration.


Elder law seeks to provide seniors with legal guidance and advice as they face new and complicated issues.

If you or your loved one want to think ahead, getting an elder law attorney can be useful in overcoming the difficulties of aging.