As published in the Houston Chronicle, 50 Plus Section, November 2001

Elder Law Notes
By Wesley E. Wright and Molly Dear Abshire
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The issues that arise in the practice of elder law affect virtually every family at some time in their lives, yet few understand what it involves.

Elder law is an area of law that has emerged over the past fifteen years in response to the needs of an aging population. There is no single body of law one can look to by that name. Rather, elder law consists of a wide variety of laws from many legal areas that concern seniors, ranging from estate planning to nursing home litigation, Medicare and Medicaid advice to health and personal care planning, and age discrimination to probate.

Although elder law covers many areas of law, preventive planning is a key element. For example, a man approaching retirement may contact his attorney simply to discuss the income tax ramifications of minimum distributions from his individual retirement account. Yet he may have never considered other important retirement issues unique to the elderly. An elder law attorney may introduce topics such as coverage under Medicare benefits, qualifying for Medicaid, preparing well-coordinated estate planning and substitute decision making for both financial and health care issues, the client’s preference for senior housing and personal care needs, and the impact of having a part time job while being on Social Security. Any of these issues could substantially affect him in later years.

One unique component of elder law is disability planning. This includes how to leave money to a disabled loved one through a special needs trust, setting up guardianships and providing assistance with administering them. It may also involve housing planning, which includes providing advice and guidance through a maze of housing options designed to meet the needs of residents. A variety of factors come into play, including ability to pay and whether the stay is permanent or temporary. Disability planning also addresses issues pertaining to certain disabilities of the person requiring special accommodations. Clients may need advice about financing long term care through private pay, long term care insurance or Medicaid planning, which includes helping individuals to attain nursing home Medicaid eligibility without losing their life savings.

A common aspect of elder law is fiduciary representation, which simply means advising a personal representative of the estate of a decedent, an agent under a power of attorney or a guardian or trustee, and helping the person to legally administer their duties as a representative. Residents rights advocacy is another distinctive specialty of elder law in which the attorney advocates for the needs of the individual that may be unmet by the caretaker company based on state or federal law. Many elder law attorneys also engage in administrative advocacy for Medicaid and Medicare, which deals with assistance appealing cases within a less formal structure than that of a formal courtroom proceeding.

Law firms that devote their practice to elder law are few. When searching for an attorney who practices elder law, seek one who has significant experience in the particular matter in which you have an interest. You may want to ask about how many years he or she has spent as an attorney, how long he or she has practiced in the particular area that you have a need, how many cases the attorney has handled that are of a similar type to your case, the time the attorney has available to handle your problem, and the size of the attorney’s staff to attend to your needs.

Many of the legal areas we will present in this monthly column are intertwined, and the topics will be discussed in a series format. We hope to explain elder law concepts in such a way that readers will understand more about elder law topics that relate to them personally.
Wesley E. Wright and Molly Dear Abshire are attorneys with the firm of Wright & Associates in Houston. Wright is board certified by the Texas Board of Legal Specialization in Estate Planning and Probate Law. Abshire is an attorney with the firm.

Nothing contained in this publication should be considered as the rendering of legal advice to any person’s specific case, but should be considered general information.

Wesley E. Wright and Molly Dear Abshire are attorneys with the firm of Wright Abshire in Bellaire. Wright is board certified by the Texas Board of Legal Specialization in Estate Planning and Probate Law and is certified as an Elder Law Attorney by the National Elder Law Foundation. Abshire is certified as an Elder Law Attorney by the National Elder Law Foundation. Nothing contained in this publication should be considered as the rendering of legal advice to any person’s specific case, but should be considered general information.