Elder and Special Needs Law Attorneys, who work with Seniors and people with special needs, are specialized estate planning attorneys who can assist you with the complex legal, financial and social decisions that you and your family may face as your grow older or if you have a family member with special needs. Federal and state laws and regulations govern the benefits that are available for Seniors and individuals with special needs. These laws and regulations are complex and change on almost a yearly basis. Federal and State budget problems have led to cuts in funding for essential programs, and regulations have been enacted that make it more difficult to qualify for available benefits. Elder Law and Special Needs Attorneys stay informed of these changes, as well as new programs that are being instituted to help Seniors and specials needs individuals live in their homes with appropriate assistance and services. They also understand the physical and mental difficulties that often accompany the aging process and individuals with special needs, and can assist you and your family tie into a formal or informal system of social workers, geriatric care managers, psychologists, and other professionals, who can enable you and your family to live in the community with appropriate assistance and services. A good Elder and Special Needs Attorney has both the personal qualities to work with older and disabled clients and the expertise to deal with their needs and concerns.
Attorneys who work with Seniors and special needs clients must have a comprehensive knowledge of the various State and federal laws that affect their clients, and an understanding of how these laws interact with each other. Knowledge of estate planning, estate taxes, gift taxes, income taxes, capital gains taxes, and the various governmental programs, such a medicare, medicaid (MassHealth), veterans aid and attendance, SSI, food stamps and subsidized housing, are critical. An attorney who does not specialize in elder law or special needs law may take an action on your behalf that may have unintended legal consequences in the future.
Example: A general practitioner, with some knowledge of gift tax laws, may tell you that you can make a gift to a child who is having financial difficulties, or that you can transfer title to your family’s vacation home to your children, without having to pay gift taxes. This is true. But he or she probably won’t tell you that making these gifts will disqualify you from receiving medicaid (MassHealth) benefits to pay for your care for a five year period after the gift is made, because the attorney is not familiar with the MassHealth program. If you are 50 years old and have no major health issues, making these types of gifts will most likely not be a problem. If you are 80 years old and have serious health problems, making these gifts will interfere with your ability to qualify for various MassHealth programs that will provide services to care for you in your home or in a nursing home.
Example: If you have a disabled son and you consult a general practitioner to draft your Will, the attorney may draft a simple Will in which your estate is divided equally between your two children. The attorney may not know that when your disabled son receives his inheritance, he will lose his SSI and medicaid benefits, his food stamps, his social worker, and his subsidized apartment, until he spends his entire inheritance on his living expenses. Receiving his inheritance will throw his life into disarray. Instead of helping your son, the inheritance will do nothing but cause financial problems and emotional distress. If you had consulted a special needs attorney, you would have been advised to establish an irrevocable Supplemental Needs Trust for your son. After your death, your son’s share of your estate will be distributed to the Trust. As long as the Trust complies with federal guidelines, your son will retain all of his benefits, and the funds in the Trust will be used to pay for items and services that are not covered by his governmental benefits.
While knowledge of the relevant laws is important, an understanding of the social and emotional needs of their older clients and special needs clients is just as important. So is the ability to listen. Most older clients do not want to give up their independence, their privacy, and their homes. Although they know that they need help, they don’t want to impose on a child, they don’t want strangers in their house helping them, and they just don’t want to be told what to do. The ability to emphasize with older clients and to listen to their concerns is critical. A good elder law attorney can make the parent feel that he or she has an advocate, who is looking out for his or her best interests. Many Seniors feel that they are not being heard and that their feelings and concerns are being dismissed. An elder law attorney can’t magically make Mom or Dad agree to let a home health home aide come in or make them move to an assisted living facility. What the attorney can do is start the process, bringing other experienced professionals, such as a social worker from Elder Services or the family doctor, into the planning process. The elder law attorney frequently acts as a mediator to determine which goals are most important to the client, explain how goals conflict with each other, how the client’s plans impact their family, and then tries to come up with a plan that accomplishes many of the client’s short term and long term goals. The difficulty with elder law is that frequently there is no plan or solution that will make everyone happy. Compromises must be made. Following are two examples.
Example: Many older clients wish to protect their property from future nursing home costs, but they don’t want to give up control over their property or gift it outright to their children. One compromise is to deed title to a parent’s home to the children, with the parent reserving a life estate. The life estate ensures that the parent will always be able to live in the home. The parent will continue to be responsible for paying utilities, property taxes, homeowners insurance and routine maintenance and repairs. After a five year disqualification period, the home will be protected from nursing home costs. If the parent must be admitted to a nursing home, the home does not have to be sold in order for the parent to qualify for medicaid (MassHealth) benefits to pay for his or her care. MassHealth can place a lien against the parent’s life estate, but the lien will extinguish when the parent dies. Title to the real estate will pass to the children without the need to probate the parent’s Will, and the children will receive a “stepped up” cost basis in the real estate. This means that they will not have to pay capital gains taxes when they sell the real estate. All of this is accomplished with the preparation and recording of a deed. The parent is protected, the home is protected, probate is avoided, and capital gains taxes are eliminated.
Example: Another compromise is the income only irrevocable trust. A parent can transfer real estate and financial assets to this Trust. The parent may act as Trustee of the Trust, with one or more children serving as Co-Trustees with him or her. As Trustee, the parent can continue to manage the investments. The parent can either reserve a life estate in the deed that transfers title to his or her home to the Trust or the Trust can contain provisions that allow the parent to live in the home, paying the expenses of maintaining the real estate instead of paying rent. After a five year look-back period, the assets held in the Trust are protected from nursing home costs. They do not have to be spent down to pay for the parent’s care. When the parent’s other assets are spent down to $2,000, he or she will qualify for MassHealth benefits to pay for his or her care. The trust assets can be distributed to the parent’s children and other beneficiaries, without the need to probate the parent’s Will. This solution is more complicated than a deed with a life estate, but more of the parent’s assets are protected in case a nursing home admission is necessary.
Elder and Special Needs Law encompasses many different fields of law. They are listed below. Most attorneys do not specialize in every one of these areas. You should hire the attorney who regularly handles matters in the area of law of most concern to your particular case.
- Preservation/transfer of assets seeking to avoid spousal impoverishment when one spouse enters a nursing home
- Medicaid (MassHealth) programs
- Medicare claims and appeals
- Social Security and disability claims and appeals
- Supplemental and long-term health insurance issues
- Estate tax, gift tax, and capital gains tax planning
- Disability planning, including use of Durable Powers of Attorney, Revocable Living Trusts, Living Wills, and Health Care Proxies, that will give a family member or friend the legal authority to manage finances, tax and legal matters and make health care decisions, in case of incompetency or incapacity
- Access to health care in a managed care environment
- Conservatorships and guardianships
- Estate planning, including planning for the management of a client’s estate during his or her lifetime and its disposition on death through the use of Wills, Trusts, and other estate planning documents
- Probate and administration of estates
- Administration and management of Trusts
- Long-term care placements in nursing home and life-care communities
- Housing issues, including placement in subsidized and elder housing and home equity conversions (reverse mortgages)
- Retirement, including public and private retirement benefits, survivor benefits, and pension benefits
- Health law
- Mental health law
Ask Questions First
Ask lots of questions before selecting an Elder or Special Needs Law Attorney. You don’t want to waste time and money talking to an attorney who can’t help you. Start with the first telephone call. Usually, you will speak to a secretary, assistant, or office manager during your first call, before meeting with the attorney. Don’t be hesitant to ask these questions.
- How long has the attorney been in practice?
- Does he or she specialize in Elder Law or Special Needs Law?
- How long has he or she been practicing in this field?
- What percentage of his or her practice is devoted to Elder or Special Needs Law?
- Is there a fee for the first consultation? (many attorneys do not charge for an initial consultation)
- What information should you bring with you to the initial consultation?
The answers to your questions will help you determine if you should schedule a consultation. If you don’t like the answers to your questions or if they are not answered at all, call another attorney’s office. If you have a specific legal issue that requires immediate attention, be sure to inform the office of this during the initial telephone conversation.
After You Have Found an Elder or Special Needs Law Attorney
When you have found an appropriate attorney, make an appointment to see him or her. During the initial consultation, you will be asked to give the attorney an overview of the reason you are seeking assistance. Before the meeting, write a brief summary of your situation and a list of your questions, and bring all of the information and documents that you believe the attorney needs. After you have explained your situation, ask:
- Do you handle this type of matter?
- What will it take to resolve it?
- Are there any alternate courses of action?
- What are the advantages and disadvantages of each possibility?
- Has the attorney handled matters of this kind in the past?
- If a trial may be involved, does the attorney do trial work? If not, who does the trial work?
- Is that attorney a member of the local bar association and other organizations, such as the local and/or national branches of NAELA (National Academy of Elder Law Attorneys)
- How are legal fees determined?
- What is the estimate of the cost to resolve your problem and how long will it take?
There are many different ways of charging fees and attorneys charge in different ways. Never be embarrassed to ask questions about legal fees. You should ask if there is a flat fee for the services to be provided or will the attorney charge on an hourly basis. In addition to fees, most attorneys will charge you out-of-pocket expenses. Out-of-pocket expenses typically include charges for postage, court filing fees, recording fees, publication fees, and title abstractor fees. Find out what these costs will be. Most attorneys require a retainer of some of the legal fee before starting work on your case. Each time the attorney bills you, he or she is paid out of the retainer. Expenses may also be paid from the retainer. The size of the retainer is usually about one-half of the estimated legal fee. Find out how often or when you will be billed. Some attorneys bill weekly, some bill monthly, some bill upon completion of work. Ask about these matters at the initial conference, so there will be no surprises. If you don’t understand, ask again.
Get It In Writing
Once you decide to hire the attorney, ask that your arrangement be put in writing. The writing can be in the form of a fee agreement or an engagement letter. It should outline what services the attorney will perform for you and what the fee and expense arrangement will be. But sure to get your agreement in writing, so that there are no misunderstandings about what services will be provided and what they will cost. After you have signed the agreement or engagement letter, you have made a contract and are responsible for all charges for work done by the attorney.
Make It A Good Experience
An open relationship between an attorney and a client benefits everyone. Remember that there is an attorney-client privilege that prevents the attorney from disclosing any information unless you authorize it. This is your chance to tell someone the entire story, without worrying about anything being disclosed. If you need to vent about family members, talk about an embarrassing family situation, or just talk about your feelings and fears, this is the time to do so. The key to a good attorney-client relationship is communication. It starts with asking the kinds of questions suggested in this article. The attorney should not be offended by questions about his or her law practice. Use the answers to the questions as a guide not only to the attorney’s qualifications, but also as a way of determining whether you can comfortably work with this person. If your concerns are dismissed, if you don’t like the answers to the questions, if you don’t like the attorney’s reaction to being asked all those questions, or if you simply do not feel relaxed with this particular person, do not hire that person. You are not obligated to hire an attorney after the consultation. There are lots of qualified attorneys in Massachusetts. If you take the time to make sure that you are happy from the beginning, you can make this a productive experience for both you and the attorney.
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