Elder Law

About Elder Law

Elder Law is the part of legal practice that specializes in issues that affect an aging population.

The purpose of elder law planning is to prepare the elderly individual or partnerships for financial freedom and autonomy through proper financial planning and long-term care options.

The Older Americans Act (OAA), originally signed into law by President Lyndon B Johnson in 1965 (the same year Medicare was created), claims credit for creating the Administration on Aging (AOA), a division within the Department of Health and Human Services.

The OAA also authorized grants to States for community planning and services programs, funding for research, and demonstration and training projects in the field of aging.

In 1972 Amendments to the OAA added the national nutrition program for the elderly. The OAA of 2000 was amended in November 2000, to include the National Family Caregiver Support Program, which was intended to help hundreds of thousands of family members who are struggling to care for their older loved ones who are ill or who have disabilities.

The three major categories that comprise elder law are:
  1. Estate Planning & Administration including tax issues.
  2. Medicaid, Disability & other long-term care issues.
  3. Guardianship conservatorship and commitment matters, including fiduciary (finances) administration

Elder law covers the myriad of issues that affect people as they get older especially so when others are given control of their affairs in later life. The following topics can also be deemed to fall under the umbrella of  Elder Law.

  • Protection against elder abuse, neglect & fraud.
  • End-of-life planning.
  • All aspects of disability and medical care.
  • Retirement Planning.
  • Social Security Benefits.
  • Consumer Protection.
  • Nursing Homes & At Home Care.
  • Powers of Attorney.
  • Physicians & Medical Care Directives.
  • Landlord-Tenant.
  • Real Estate & Mortgage Assistance.
  • Counseling and Advocacy of  rights.
  • Tax.
What Does An Elder Law Attorney Do?

Elder Law has become a growing specialty arm of the legal profession because the average life span and the number of senior citizens in the USA continues to increase.

In 2015, the U.S. Census recorded nearly 48 million people over the age of 65 in the United States. It estimates that number will grow to roughly 98 million by 2060.

With ageing comes a host of  legal and administrative issues, and while your family and close friends will do their best to help, an attorney who specializes in the challenges faced by senior citizens can be invaluable in negotiating the maze of rules, regulations & issues.  Elder law attorneys are also experts in all areas of government assistance available to seniors.

Estate Planning, Wills, Medicare, Social Security & Long Term Care are all part and parcel of an Elder Lawyer’s skill set but also remember that elderly citizens may also have to face issues such as.

Employment Discrimination

The Age Discrimination Act makes it illegal for an employer to discriminate against you because of your age. The Act is specific to anyone over the age of 40. If you have a job or are seeking employment and believe you are being discriminated against because of your age, an elder law attorney can help assess your claim and take the proper measures to remedy that situation.

Elder Abuse Or Fraud

Unfortunately it does happen, over half a million cases of elder abuse are reported each year in the United States.  Elder abuse can encompass mistreatment physically, emotionally, sexually or financially and can also happen if you become neglected or abandoned.  Elder law attorneys can help contact the proper authorities, try and recoup some of the lost finances or help get you or your loved one into a safe environment.

Grandparents Visitation Rights

Sometimes family members don’t always get along and the relationship between grandparent and grandchild pays the price. Either from bitter disagreements or divorce, or even the death of a child’s parent, grandparents can often lose their right to see and be part of their grandchildren’s lives. Every US  state has its own set of statutes with regard to grandparent’s visitation and rights. Elder law attorneys help determine your rights and the best course of action to seek visitation if you find yourself in this type of situation. 

How Do Elder Law Attorneys Bill for Their Services?

Elder law attorneys generally charge by the hour based on the type of work. In some cases attorneys will charge a predetermined flat rate charge based on the type of work, such as review and signing of documents, filing of tax returns, and will preparation.

Most elder law attorneys do not specialize in every area of law affecting seniors so do remember that  it is important to hire an attorney who has specific experience in your particular area of concern.

Also, before selecting an elder law attorney, you should feel comfortable that he or she will represent you or your loved one in a sensitive and understanding manner.

Here are questions you should always ask before hiring an Elder Law Attorney
  • How long have you been practicing law?
  • What percentage of your time is devoted to elder law?
  • Do you have a particular emphasis on a certain area within elder law?
  • What information should I prepare for our first meeting?
  • How are your fees computed?
Resource: The National Academy Of Elder Law Attorneys

Elder Law Cases

Delaney v. Baker

This case is concerned with the relationship between two parts of the Elder Abuse and Dependent Adults Civil Protection Act, Welfare and Institutions Code 1 section 15600 et seq. (hereinafter the Elder Abuse Act). Section 15657 provides in part that “Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse… Click to see more

Schiavo v. Schiavo

Our previous decision in this case affirmed the district court’s March 22, 2005 denial of the plaintiffs’ motion for a temporary restraining order as to the claims raised in the five counts of the initial complaint filed in this case… Click to see more

Olmstead v. L. C.

This case concerns the proper construction of the anti-discrimination provision contained in the public services portion (Title II) of the Americans with Disabilities Act of 1990, 104 Stat. 337, 42 U. S. C. §12132. Specifically, we confront the question whether the proscription of discrimination may require placement of persons with mental disabilities in community settings rather than in institutions. The answer, we hold, is a qualified yes… Click to see more

Mistrick v. Division of Medical Assistance and Health Services

The critical issue presented by this appeal is whether an individual retirement account (IRA) in the name of a husband must be included as a resource for purposes of determining his wife’s Medicaid eligibility when the wife enters a nursing home but the husband remains in the community. With greater life expectancy significantly increasing the percentage of our population that eventually may require institutional care… Click to see more

Tunstall v. Wells

In this case, we hold that a testamentary trust’s no contest clause providing that one beneficiary’s contest voids other non-contesting beneficiaries’ bequests along with the contestant’s does not, in itself, violate public policy… Click to see more

In re Conservatorship of the Person and Estate of Hume

We publish this case to make explicit what is otherwise implicit in the statute dealing with objections to inventories and appraisals in conservatorship proceedings (Prob. Code, § 26141 ) — namely that the burden of proof is on the objector to the inventory and appraisal, not on the conservator… Click to see more

Elder Law Case Summaries

Elder Law Stories

Civil Rights of the Elderly

August 24, 2022

The elderly, or senior citizens, are vulnerable to civil rights abuses due to a propensity for sickness, disability, and poverty. LEARNING OBJECTIVE Discuss the civil

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