You probably need an elder law attorney if your parent may need long-term care in the next few years, may apply for Medicaid, is losing the ability to make decisions, or has no power of attorney in place. A general estate planning attorney can write a will or trust, but an elder law attorney also handles the care, benefits and capacity questions that come with aging. Below is how to tell which you need, how to find one, and what to ask.
This guide is general information, not legal advice. Laws differ by state, and an attorney licensed in your parent's state can tell you how they apply.
Elder law vs. estate planning
The two overlap, which is why families get confused.
An estate planning attorney focuses on what happens to your parent's property: wills, trusts, beneficiary designations and how assets pass after death.
An elder law attorney usually does estate planning too, but looks at the whole picture of growing older. The National Academy of Elder Law Attorneys (NAELA) describes the field as the integration of the legal system with social and medical concerns, and says it requires a holistic approach. NAELA lists areas including:
- Estate planning with wills, trusts and other documents, plus probate and trust administration
- Long-term care planning and access to Medicaid and veterans benefits
- Medicare and Social Security claims and appeals
- Guardianships and conservatorships
- Nursing home residents' rights, elder abuse and fraud recovery
- Housing and retirement benefits
A simple rule of thumb: if your parent is healthy and the question is only "who gets what," an estate planning attorney may be enough. If care costs, benefits or declining capacity are part of the picture, look for an elder law attorney.
What an elder law attorney can help with
Powers of attorney and health care documents
A power of attorney is a legal document that lets someone your parent chooses, called the agent, manage money and property if your parent can't. The Consumer Financial Protection Bureau (CFPB) notes that in some states this is called a durable power of attorney, and that your parent can revoke it while still able to make decisions. An attorney can also prepare a health care power of attorney and advance directive so someone can speak with doctors on your parent's behalf.
Timing matters. These documents are far easier to put in place while your parent can still make their own decisions; once they can't, the family may need to go to court instead. Our documents checklist lists the papers every family should have.
Wills and trusts
An attorney can draft or update a will and, where it makes sense, a revocable living trust. CFPB publishes a separate guide for people named as trustees under revocable living trusts, which is worth reading if a sibling will take on that role.
Medicaid planning
This is often the main reason families call an elder law attorney. Medicaid can pay for long-term care once your parent qualifies, but its rules are strict and state-specific. One rule every family should know: when someone applies for Medicaid long-term care, the state looks back at asset transfers made in the 60 months (five years) before the application, according to CMS. Gifts or transfers below fair market value in that window can trigger a penalty that delays when Medicaid starts paying.
That is why it helps to talk with an attorney before moving money, adding a child to a deed, or "gifting" savings to family members. NAELA also points out that Medicaid is not the same across the country, because each state administers its own program.
Guardianship and conservatorship
If your parent can no longer make decisions and has no valid power of attorney, the family may need to go to court. CFPB describes court-appointed guardians of property and conservators as people a court gives the duty and power to make financial decisions on someone's behalf. An elder law attorney can tell you whether guardianship is needed, whether there are less restrictive options, and how the process works in your parent's state.
Benefits and care problems
Elder law attorneys also help with Medicare and Social Security appeals, veterans benefits, nursing home residents' rights, and suspected financial exploitation.
Signs it's time to call one
- Your parent was recently diagnosed with dementia or another condition that affects judgment.
- Your parent may move to assisted living or a nursing home in the next few years.
- You expect to apply for Medicaid, or someone suggested transferring assets to "protect" them.
- There is no power of attorney, or the documents are decades old or from another state.
- A spouse will remain at home while the other needs long-term care.
- Siblings disagree about money or care decisions.
- You suspect someone is taking advantage of your parent financially.
How to find an elder law attorney
NAELA suggests several places to look:
- NAELA's member directory at naela.org, to find a member attorney near your parent.
- Referrals from attorneys you know. NAELA notes that an attorney is in a good position to know who handles these issues.
- Your state or local bar association. Ask whether it runs a lawyer referral service.
- Local agencies, such as your parent's area agency on aging or a hospital or nursing home social worker.
You can also look for a Certified Elder Law Attorney (CELA). The National Elder Law Foundation, which certifies CELAs, says it is the only national organization accredited by the American Bar Association to certify attorneys in elder and special needs law, and it has a directory at nelf.org.
Free or low-cost legal help
If money is tight, the Administration for Community Living (ACL) says Older Americans Act legal assistance programs are available in every state, working through area agencies on aging. The Eldercare Locator can connect you with local agencies, including help finding legal aid providers. USA.gov also points to legal aid for people with low incomes and to law school pro bono programs.
Questions to ask before you hire
NAELA suggests asking these on the first call, even if you only reach the office manager:
- How long has the attorney practiced, and what share of the practice is elder or special needs law?
- Is there a fee for the first consultation, and how much?
- What should we bring to the first meeting?
And once you've explained your situation:
- What will it take to resolve this, and are there other options?
- What are the pros and cons of each option?
- Who in the office will handle our case, and have they handled similar matters?
- How are fees calculated, and what is your estimate of the total cost and timeline?
Two more questions are worth adding. Ask who the client is. If it is your parent, the attorney may want to meet with them privately, even if you are paying. And ask how the attorney works with family members who live in other states, since many families coordinate from a distance.
How elder law attorneys charge
NAELA describes several common arrangements:
- Hourly: different rates may apply for the attorney, paralegals and staff, so ask what each one is.
- Flat fee: a set price for all or part of the work, common for preparing documents such as wills and powers of attorney.
- Retainer: money paid up front and usually held in a trust account; the attorney bills against it, and the total fee often ends up higher than the retainer.
- Expenses: costs such as court fees, copying and postage are often extra.
Ask how often you will be billed, and get the arrangement in writing. NAELA notes that an oral agreement is still a contract, so you are responsible for charges even without written terms. Fees vary widely by region and by the complexity of the case.
Your next steps
- Gather what exists. Find any will, trust, powers of attorney, advance directives, deeds and recent account statements.
- Write down your questions and what you are worried about in the next one to three years: care, money, capacity, family conflict.
- Talk to two attorneys if you can, using NAELA's questions, and compare how each explains your options and fees.
- Don't move money first. Before any gifts or transfers, ask about the Medicaid look-back.
- Plan the care, too. An attorney handles the legal side; an aging life care manager can help with the care plan and local options. Find a care manager, or search communities and nursing homes near your parent.
