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While every American is equal in the eyes of the law, the rights of older adults often fall under the radar. The truth is that seniors are some of the most vulnerable members of our society, and they can fall victim to a range of scams, abuse and misconduct. Seniors may also lack the ability to speak out and be heard, and the combination of these factors can lead to tragic outcomes. With a law firm that specializes in elder care law at your side, you can provide seniors with the advocacy they need to ensure their rights are protected.
According to the WHO, one in six people over the age of 60 experienced some form of abuse from 2021 to 2022. Two-thirds of staff members at nursing homes and long-term-care facilities admitted they committed abuse during that same period. Unfortunately, these issues are only getting worse with time, and elder abuse skyrocketed during the COVID-19 pandemic.
Finding a lawyer isn’t always easy, especially if you have little or no experience with legal services. Fortunately, connecting with qualified, experienced elder law attorneys in your area is easy with our ResourceHub, where you can find a range of referrals to choose from and narrow down your choices. From there, you can book your consultations and find an elder care lawyer to bring protection and peace of mind to your senior and your family.
Elder care law: protecting your senior’s rights
What is elder care law?
Elder law encompasses all areas of legal representation and advocacy that involve the elderly population. These areas include:
- Estate planning
- Medicaid planning
- Elder abuse
- End-of-life planning
- Retirement planning
- Long-term-care planning
- Social Security benefits
- Consumer protection
- Nursing homes
- Landlord/tenant disputes
- Powers of attorney
- Medical care option directives
- Tax issues
Elder care law specifically deals with legal issues related to elder care, such as your senior’s well-being in nursing homes and long-term-care facilities. These are areas where neglect, abuse and misconduct are quite common. Elder care lawyers typically are part of or a partner in a law firm.
Why would my senior need an elder care lawyer?
It’s often difficult to determine whether your senior needs legal representation. This is because seniors often find it difficult to speak out, and they may be totally unaware of the hazardous situations they’ve become embroiled in.
For example, a senior being scammed doesn’t necessarily know they’re being scammed. A senior may not be aware of their rights at a nursing home, and they may accept ill treatment without putting up much of a fuss. In addition, seniors may be intimidated by their abusers into staying silent.
For these reasons, it might be a good idea to get in touch with an elder care attorney as soon as you suspect abuse is occurring. While the signs of elder abuse are not always obvious, you may not need to do much detective work to uncover its existence. Your senior may be open to telling you about anything that doesn’t seem right, so asking them about their experiences is always a smart first move.
Your senior might also need help if they’re filing a claim with Social Security, Medicare or Medicaid. In addition, your senior may want to establish a durable power of attorney, or your family might need help establishing a conservatorship. Law firms specializing in estate planning can set up legal documentation to manage the distribution of assets, such as a living will or living trust. Finally, lawyers can help with probate if your family is trying to handle your senior’s estate after their death. There are many reasons to work with an elder care lawyer, and each family’s situation is different. This is why it’s usually a good idea to book a consultation, as this gives your lawyer the opportunity to assess your unique circumstances and needs.
What are some signs I should seek out an elder care lawyer?
Abuse is a serious and prevalent issue at nursing homes and long-term-care facilities. There are many types of abuse, including:
- Physical abuse
- Psychological abuse
- Sexual abuse
- Financial abuse
Signs of physical abuse
- Unexplained bruises
- Head injuries
- Pressure marks
Signs of psychological abuse
- Hesitation when speaking
- Feelings of shame or guilt
Signs of financial abuse
- There are unexplained financial transactions.
- Large sums of money are missing.
- Your senior has been locked out of their own online bank account.
- Your senior has been making questionable donations or gifts to charities.
- Cash constantly goes missing from your senior’s living area.
- Credit cards and bank cards often go missing.
- Your senior expresses confusion about documents they’ve been asked to sign.
Signs of sexual abuse
- The appearance of unexplained STDs
- Medical problems in the genital area
- Any evidence of inappropriate behavior between caregivers and seniors
Signs of neglect
- Bedsores (also known as pressure ulcers)
- Decrease in personal hygiene
- Not enough food
- Not enough water
- Trouble locating things like walkers, dentures and medication
- Unclean living conditions
- Unsafe living conditions
- Pest infestations
General signs of abuse
- Angry or demeaning behavior toward seniors
- No affection shown to the senior
- Struggling to explain injuries suffered by the senior
- Isolating the senior and preventing them from talking to others
- Reluctance to leave the senior alone with other people
- Using inappropriate language around the senior
Questions to ask yourself as you consider an elder care lawyer
- Is my senior capable of speaking out for themselves? Do they need an advocate to represent their voice?
- Is my senior the type of person to accept abuse without complaining?
- Have there been any other instances of abuse at my senior’s nursing home?
- Is my senior more vulnerable to scams and frauds?
What services do elder care lawyers provide?
Elder care lawyers help you file abuse lawsuits
If your senior has suffered legitimate abuse at the hands of their caregivers, you have the right to file a lawsuit against the guilty party. Your lawyer can help you assess whether a lawsuit is possible during a consultation.
A consultation is an initial meeting with a lawyer. During this meeting, you can discuss your unique situation and your concerns. Based on this information, your lawyer can recommend various courses of action. If a lawsuit is possible, they will guide you forward and help you initiate this legal process.
A lawsuit may be filed against a nursing home, a long-term-care facility, or any other organization responsible for caring for your senior. Once you’ve filed your lawsuit, you will have the chance to negotiate with the at-fault party for a settlement.
If a settlement cannot be reached, your elder law attorney will likely represent your senior in court and fight for their rights in front of a judge and jury. The court will then decide on the penalties and financial awards.
Elder care lawyers help with Social Security
According to the AARP, you’re statistically more likely to achieve a positive outcome when you get help from a lawyer when approaching the Social Security Administration (SSA). Lawyers who have experience in this area know the steps they can take to get the Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) your senior deserves. Both of these programs can provide your senior with considerable financial assistance as they age.
Lawyers can fill out your SSDI or SSI application on your behalf while also collecting important evidence to back up your claim. This might include medical records that are not easily accessible. Without the careful assistance of a lawyer, it’s easy to make simple mistakes on your application, and this could result in denied Social Security benefits. If you are denied, your lawyer can also help you appeal the decision and represent you during a hearing.
Elder care lawyers help with Medicare and Medicaid planning
With an elder care lawyer by your side, handling issues associated with Medicaid and Medicare is easy. During a consultation, your attorney can accurately assess your senior’s eligibility and determine whether it’s worth applying for Medicaid. This legal advice can help you avoid spending unnecessary funds and time on something that will never work out. If your senior could become a qualifying Medicaid recipient, an elder care attorney can put together a plan to secure assets and ensure they qualify.
If your Medicaid application is denied, your attorney can help you appeal this decision. From there, you can attend a hearing and advocate for your senior’s rights effectively. Your attorney will represent your senior during this hearing, and they can help you present evidence and witnesses to back up your appeal.
An experienced Medicare lawyer can help you understand the various options available to you, allowing you to move forward and pursue the best possible health care assistance for your elder loved one. You may be paying more than necessary in premiums or out-of-pocket expenses, and a lawyer can guide you toward more suitable choices.
Lawyers often prove their worth when you’re struggling with denied coverage under Medicaid, as they can help you approach the appeals process with confidence and efficiency. This increases your chances of approval. You may also need to hire a lawyer if you have been accused of Medicare fraud, which can result in fines or even incarceration if you’re not careful.
Elder care lawyers help with conservatorship
Conservatorship is another important aspect of elder care law. Sometimes, seniors can no longer be relied upon to make responsible decisions. This is often due to natural cognitive decline or dementia. Fortunately, concerned family members have the ability to become legal guardians of their senior loved ones. Gaining durable power of attorney or conservatorship ensures the best possible decisions are made on behalf of seniors, and that their best interests are truly served. It also helps protect your senior’s health and financial well-being.
With that being said, gaining conservatorship isn’t always easy. In fact, the burden of proof is quite high, and you will need to prove to the courts your senior has become legally “incompetent.” From there, the court will appoint a guardian or conservator to handle the incapacitated person’s affairs. This includes their finances, living arrangements, medical decisions and more.
Representation from a qualified, experienced elder care attorney is important during this process. Not only will you need to prove your senior has become incompetent, but you will also need to show that you’re the best possible candidate to fill the role of a conservator. Your lawyer can help you collect evidence and present witnesses that prove your suitability. Sometimes, more than one person will seek conservatorship.
Elder care lawyers help with probate
In addition, you may need to enlist the help of a lawyer after your senior loved one has died. Probate lawyers guide the entire family through this difficult time, assisting executors and ensuring that beneficiaries receive their inheritances. Probate lawyers are also known as “estate attorneys” in some circles and they can perform a number of important duties, including:
- Ensuring that proceeds from life insurance policies are distributed properly
- Appraising real estate property owned by your deceased senior
- Helping the family pay your senior’s outstanding debts
- Preparing and filing documents required by the probate court
- Handling estate or inheritance taxes
- Transferring assets from the decedent to the appropriate beneficiaries
Estate planning attorneys for seniors
Of course, the probate process can be avoided entirely if your senior works with a qualified estate planning attorney prior to their death. There are a number of estate planning tools that can make inheriting assets much easier, including trusts. With help from an estate planning attorney, your senior can identify the most effective types of legal documents for their needs, from a living will or living trust to an irrevocable trust.
Estate planning attorneys can also help with wills, advance directives, powers of attorney and much more. Perhaps one of the most notable benefits of estate planning attorneys is the reduction of estate and inheritance tax, and this can be especially beneficial for wealthier families.
Estate planning is itself an important aspect of protecting seniors and their long-term wishes. We’ve written a comprehensive guide on choosing an estate planning attorney to help you learn more about this topic.
Questions about elder care lawyers
What questions should I ask elder care lawyers?
It’s always a good idea to come up with a few questions to ask the law firm during your initial consultation. These questions can help you get a better sense of your lawyer’s personality, their overall philosophy toward elder law, and whether they can develop a working relationship with you. Also, find out if they’re a member of the National Academy of Elder Law Attorneys (NAELA), which provides continuing education to elder law and special needs planning attorneys.
- How much experience do you have with elder law?
- How long has your practice been in operation?
- What degrees do you hold?
- Where did you attend law school?
- Do you have any academic awards or honors?
- Have you taken any additional courses from the bar association or NAELA specific to elder law?
- What is your philosophy toward elder law?
- Have you won any settlements for elder victims in the past?
- How much were these settlements worth?
- Do you operate on a contingency basis?
- How much is your commission fee or hourly rate?
- Do you do any pro bono or other volunteer advocacy work?
Talking about elder care lawyers
How to talk to family members about elder care lawyers
Getting help from a lawyer is a major decision, and it’s something you should discuss with your elder loved one and other invested parties. If you suspect your senior is being abused, the first step is to sit down with friends and family to discuss the next steps.
Things can become slightly more complicated if one of your family members is the one suspected of abuse. You might want to meet without the suspected abuser first before bringing them into the discussion and giving them a chance to tell their side of the story.
If certain family members are concerned about the cost of hiring a lawyer, you can remind them that many attorneys operate on a contingency basis, and you will not have to pay unless you win your lawsuit.
In other situations, the cost of hiring an elder care lawyer can pay for itself. For example, the savings you may experience with an approved Medicare, Medicaid or Social Security application can outweigh any legal fees you might incur. Proper estate planning and long-term-care planning can save the family thousands or even millions of dollars. It always makes sense to do the math before you dismiss the cost of hiring a lawyer.
How to approach the topic of an elder care lawyer with your senior
In many cases, seniors will be incapacitated or even deceased by the time you consider legal advocacy and representation. If your senior is of sound body and mind, the decision of whether to hire a lawyer ultimately lies on their shoulders.
This means you might have to convince them to take legal action, fight for their rights, and hold negligent parties accountable. If you’re dealing with elder abuse, make sure your senior knows what they’ve experienced is wrong, and that an elder care lawyer can advocate for their well-being. If your senior is applying for Medicaid, Medicare or Social Security, remind them a lawyer can improve their chances of success. If you need an estate planning attorney, stress the fact that legal representation can save the family considerable time, effort and even inheritance taxes.
Paying for elder care lawyers
How much do elder care lawyers cost?
If you’re suing health care providers or nursing homes responsible for taking care of your senior, your lawyer will likely be paid on a “contingency basis.” This means you won’t pay the lawyer up front, and you only pay if you win your lawsuit. After you win your lawsuit, you will pay a percentage of your settlement to your lawyer. This is known as a “commission fee,” and the exact percentage may vary from lawyer to lawyer.
If you’re interested in other elder law services, such as estate planning, conservatorship, medical directives or Social Security assistance, you will likely pay an hourly rate. Although working with a lawyer can be costly, the long-term financial benefits can far outweigh the up-front costs.
Getting help paying for legal action after elder abuse
The Department of Justice may provide funding for victims of elder abuse. This funding is provided through The Office for Victims of Crime (OVC), which is part of the Office of Justice Programs (OJP). The Victim Assistance Program provides grants on an annual basis for victims of various crimes, including elder abuse.
How can I find elder care lawyers?
If you’re ready to find legal advocacy or representation for your senior, you can readily find an elder care law firm in your area. Thanks to our Resource Hub, locating qualified attorneys nearby has never been easier. Browse these free online listings to create a shortlist of potential lawyers. From there, you can book consultations, choose an attorney and take legal action. Remember, the statute of limitations can prevent you from seeking justice if you wait too long, so it’s best to get started as soon as possible.