Nursing Home Planning FAQs

As the elderly population began to grow several decades ago, it started to become clear that the legal issues that impact them needed to be addressed. Consequently, the relatively new area of the law known as “elder law” began to evolve. An elder law lawyer, therefore, is a lawyer who has chosen to focus much, or all, of his/her practice on legal issues that impact the elderly and those who care for them. Unlike other areas of specialty, however, an elder law lawyer does not focus on learning everything there is to know about a single area of the law. Instead, an elder law lawyer is more concerned with how the elderly, and their caregivers, are impacted by various legal issues and problems.

The National Academy of Elder Law Attorneys, or NAELA, was formed in the late 1980s as a way to better serve this growing segment of the population. Five years after the creation of NAELA, the National Elder Law Foundation was formed. The purpose of the non-profit NELF was to help improve the professional skills of attorneys who choose to focus on elder law. Toward that end, NELF then developed a national certification program for attorneys known as the Certified Elder Law Attorney, or CELA, certification program.  Attorneys who wish to gain certification in the area of elder law may do so through a rigorous and selective certification program recognized by the American Bar Association and administered by NELF.

Because an elder law attorney focuses more on the client demographics than the area of the law, there are numerous different legal issues an elder law attorney might be able to help you with, such as:

• Denial of SSI, SSDI, or other benefits
• Guardianship – petitioning for, or objecting to
• Housing discrimination
• Long-term care planning
• Estate planning
• Elder abuse
• Health insurance issues
• Preparing advance directives
• Retirement planning
• Nursing home abuse
• Medicaid planning
• Veteran’s benefits

Watching a parent succumb to the natural aging process is not easy. Making the decision to seek guardianship (referred to as conservatorship in California) over a parent is ever more difficult; however, it may become necessary to prevent serious injury and/or victimization by those who prey on the elderly. An elder law attorney can help you pursue conservatorship to ensure that you have the legal authority required by law to properly care for an protect your parent.

Date from 2015 indicates that approximately 43.5 million caregivers provided unpaid care to an adult or child that year. Lost income and benefits over a caregiver’s lifetime  is estimated to be, on average, over $300,000. Caregivers face emotional stress, financial hardship, and often legal struggles as a result of the care they provide. Sometimes, help is available if you know where to look and how to qualify. An experienced elder law attorney may be able to help with things such as getting a loved one approved for Medi-Cal benefits, pursuing a claim of elder abuse against a paid caregiver or family member, or analyzing eligibility for additional state and federal benefit programs.

Neither Medicare nor most basic health insurance plans will cover the costs associated with long-term care. Unless you have the resources to cover the high cost of nursing home care out of pocket and indefinitely, you will likely find yourself turning to Medi-Cal (California’s Medicaid program) for help. To be eligible, however, you must contend with very low “countable resources” limits that can put your retirement nest egg at risk as well as a variety of other complex eligibility guidelines. An elder law attorney can help you incorporate Medi-Cal planning into your overall estate plan to make sure you are eligible for benefits if you need them while still protecting your retirement nest egg.

The sad reality is that there are predators who intentionally prey on society’s most vulnerable, including the elderly. Then there are those who commit opportunistic elder abuse. In fact, experts tell us that about 75 percent of the time it is a family who is the perpetrator of elder abuse, particularly when that abuse is financial abuse. Conservative estimates also indicate that more than 40 percent of nursing home residents have reported abuse, and more than 90 percent report that they or another resident of the facility have been neglected. Elder abuse is a crime; however, it can also form the basis of a civil lawsuit against the perpetrator and/or the facility that allowed the abuse to occur. If you suspect that an elderly loved one is the victim of abuse, an elder law attorney can discuss your legal options and help you remove your loved one from the abusive environment.