Date: March 4, 20221Attorney: Donald A. Dennison

When I was admitted to the New Jersey State Bar four (4) years ago, I dove into the practice of elder law headfirst and I don’t regret it. Since that time, I have encountered a re-occurring question from both practitioners and non-practitioners alike: “what is elder law?” It is a fair question, and in the spirit of full transparency, the name is somewhat of a misnomer.

When referring to the general practice area we call “elder law” the term “elder” encompasses both the traditional definition of an elderly person, as well as those who are disabled of any age. This expanded definition of “elder” sometimes creates confusion and leads both lawyers and non-lawyers alike to ask what exactly it is we do.

Instead of providing you, the reader, a list of topics elder law attorneys typically handle, I think it would be more beneficial to provide you with real life illustrations of the issues elder law attorneys encounter on a daily basis. I will start with some of the more obvious topics and work my way towards some of the less obvious and more nuanced subject areas.

First, an elder law attorney needs to be well-versed in government benefits and entitlements for the elderly, disabled, and those who fall within special classes of individuals (such as veterans) who require some combination of financial, medical and legal assistance. To that end, an elder law attorney typically has good working relationships with other professionals such as geriatric care managers, doctors specializing in geriatric medicine, financial planners, complex estate planners and the like. I often refer to government benefits/entitlements as “mazes”, as the application processes are often times full of dead-ends and obscure legal pitfalls that require the assistance of knowledgeable counsel.

Second, an elder law attorney will undoubtedly need to be well-versed in various forms of asset preservation planning. Although not financial planners, elder law attorneys typically specialize in counseling clients on how to allocate funds to put their clients in a better position when applying for different government benefits. To that end, elder law attorneys have various tools at their disposal to qualify individuals for forms of means-tested benefits (such as Medicaid) while preserving as much of the elder’s assets for future generations, if desired.

Third, many elder law attorneys will be well-versed in basic estate planning such as counseling clients in effective strategies to dispose of assets upon their death through a Last Will and Testament (and other means) as well as guiding clients in the drafting and implementation of documents such as Living Wills, Powers of Attorney and the like.

As a result of the elder law practitioner’s ability to guide clients through the subjects above, a well-rounded elder law attorney must also be knowledgeable, and most importantly prepared, to represent clients in court. Whether it is a complex probate litigation (such as a Will contest) or a Medicaid Fair Hearing (falling under Administrative Law), a well-rounded elder law attorney must be prepared to handle the litigation herself.

As to the other topics that fall under the umbrella of elder law that may not be as obvious are: advocating for increased personal care hours or skilled nursing hours for disabled individuals in a home-based setting; assisting agents (fiduciaries) named in estate planning documents renounce or resign from their positions for various reasons; advocating for nursing home and assisted living residents and potentially initiating suit against said facilities under certain circumstances; and assisting those named as Executors or Administrators of estates in the estate administration process.

As you can see, elder law encompasses a vast number of topics and subtopics that are often times confusing and full of potential pitfalls. Although one or more of these topic areas are encountered by every person nearly every day, there is still much confusion around what it is we do. I hope you, the reader, find these examples useful. Coming full circle, my love for the subject of elder law is a result of the vast number of practice areas, specialties and nuances captured by the umbrella “elder law” that leave even the most seasoned practitioners learning something new every day.

If you or a family member are encountering issues related to any of the topics or subtopics covered in this Article, I invite you to reach out to the Elder Law team at Mandelbaum Barrett to set up a consultation with a knowledgeable elder law practitioner. 

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