What Is Elder Law?

Elder Law refers to the area of legal practice pertaining to issues that affect older people (usually those over 60 years of age). The three primary focuses of elder law include estate planning; Medicaid, disability and long-term care; and Guardianship or Conservatorship.
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Happy Couple - Long Term Care in Cookeville, TN
Financial Planner - Elder Law in Cookeville, TN

Estate Planning

As one approaches the end of their life, issues related to what they will do with their belongings once they are gone become a greater focus. For elder law, this includes not only the preparation and administration of a will, but also advising the elder client and his or her family about the tax consequences of different inheritance strategies, including establishing trusts, the use and purpose of a living will, and any other matters that could affect the elder's personal or estate interests at the end of his or her life.

Medicaid, Disability, and Long-Term Care

Another key area of elder law is paying the elder's medical needs at the end of his or her life. Most medical expenses tend to be incurred at the end of one's life. As a result, ensuring that sufficient coverage is in place to cover these expenses is essential. Moreover, simply having the coverage is often not enough. Beyond the financial considerations, however, it is also important to consider just how far one wish for medical practitioners to go in extending their life. Leaving behind plans for how this is to be handled, often in the form of a living will, can help prevent family disagreements, suffering of loved ones, and uncertainty about how the elder wished to have their medical treatment handled once they became incapacitated.


The third area of primary focus in elder law is guardianship. This deals with who can care for an elderly person should their mental or physical factors begin to fade with old age (for example, as a result of dementia, Alzheimer's, or after a stroke). While close family members often serve as guardians, it can frequently be necessary to consider establishing a power of attorney for such person prior to the incapacitation so that the guardian can handle all business and legal affairs of the elder. In cases where there is no family member who can take on the task, laws exist for the appointment of a conservator by the court, including how that person will be paid, what their legal obligations are to the elder, how they must administer and preserve the estate, and so forth.

Other Concerns

Elder law can also touch on many other issues, such as:

Living Arrangements – removal from a home environment when an elder becomes too disabled to live outside of a care facility.

Retirement planning – while much of elder law focuses on the very end of one's life, it is worth remembering that Americans are living longer than ever, and a lot can happen after the age of 60. Careful retirement planning can be the key to remaining financially secure during those years.

Crimes against the elderly - Unfortunately, many older people become more susceptible to fraud and other crimes as they age. A large and growing body of law pertains to preventing crime against the elderly and enhancing penalties against those who take advantage of these persons. These laws can include consumer protections, nursing home abuse laws, and sentencing guidelines for crimes against older persons.

If you or someone you know has questions about elder law, the Jones Law Firm can help.

How Can an Elder Law Attorney Help Me?

An elder law attorney can help with any one of the following:

  • Discuss the importance of wills and estate planning, including planning for a minor or adult with special needs, probate proceedings, and other matters.
  • Create durable powers of attorney for finances.
  • Provide help with health care and planning including long term care options, patient's rights, Medicare, and health care power of attorney.
  • Financial representation: financial planning (including housing opportunities and planning, income, estate, and gift tax matters).
  • Guardianship: help with the selection and appointment of a legal guardian or conservator.
  • Help locate long term care facilities and manage assisted living cost.
  • Explain nursing home resident rights and help file nursing home claims.
  • Draft a living will or other advance directives and long term planning documents.

Long Term Care and Medicaid Asset Protection Planning

One of the major areas of long term care planning is the protection of assets for a well spouse when the other spouse must be placed in skilled nursing. The state and federal laws and regulations allow a certain amount of assets and income for the well spouse while still permitting the spouse who is placed in skilled nursing to have his care paid for or supplemented. In many cases, this minimum amount can be enlarged, so that the financial security of the spouse who is still living in the home is maintained. We are able to advise you on the options available when a spouse is to be placed in skilled nursing. Additionally, there are legitimate asset preservation strategies when it is a widow or widower who is anticipating long-term care and wishes to preserve an asset, such as the family home, for his or her children.

Paying for Long Term Care in a Skilled Nursing Home Facility

Long term care, also called custodial care, is the living arrangement that includes nursing home care, assisted living facility care, and some at home care circumstances. Medicare does not pay for nursing home care except up to 100 days that is available from Medicare for rehabilitative skilled care that may be provided in the same type nursing home facility. In Tennessee, the cost of nursing home care typically is between $6,000 and $8,000 per month, or more than $80,000 per year. The question many families with elderly members face is how to pay for nursing home costs when it is needed. Your elder law attorney may include qualified income trusts (sometimes referred to as a Miller Trusts), Medicaid asset protection trusts, personal care contracts, and many other techniques designed to protect a family's assets without impairing eligibility for Medicaid nursing home benefits.

Will Medicare Pay For My Nursing Home Costs?

However, the cost of, and paying for long term care are but one of the issues involved in the selection of a skilled nursing facility in Tennessee for your loved one. Long term care in a Tennessee nursing home is paid for in one, or a combination, of three ways:

  • Long Term Care Insurance
  • Private Funds
  • Medicaid – through TennCare

Long Term Care Insurance

If you have assets worth protecting, are young and healthy enough to qualify and can afford the premiums, long term care insurance may be your best option. An elder law attorney can help you determine whether long term care insurance will be appropriate for you.

How Can I Avoid Being Impoverished by the High Cost of Nursing Home Care?

Without long term care insurance, it will be necessary for you to use your own resources to pay for nursing home costs or apply and qualify for Tennessee Medicaid benefits to pay for nursing home care. An elder law attorney can help you develop a properly designed Medicaid spend down plan that may allow you to protect some of the elder person's assets for family members, and still allow the elder person to qualify for Medicaid benefits to pay the costs of the nursing home.

If you would like to have the help of an elder law attorney to reduce your family member's assets and qualify for Medicaid benefits to pay for nursing home costs, please call The Jones Law Firm.

Conservatorship of an Elderly or Disabled Person

When an elder loses the ability to think clearly, it affects his or her ability to participate meaningfully in decision-making. When the person you are caring for is unable to make rational, clear-headed decisions about health care, finances, or other aspects of life, a Conservatorship may be the next step (particularly if there is disagreement among family members about these issues).

Who Needs a Conservator?

Conservatorships deprive the incapacitated or disabled person of many civil rights. Thus, before you begin conservatorship proceedings you should be certain such steps are absolutely necessary. If the incapacitated or disabled person already executed a durable power of attorney who is willing and available to assist him or her, then a conservatorship is likely not necessary.

Someone may need a conservator when:

  1. Due to disability, the person has difficulty making decisions that keep him or her from harm, and the person refuses or is unable to accept assistance or support services (such as money management or home care services) to protect him or her from harm; or
  2. Help is being provided but is not protecting the person from harm; or
  3. The person has not previously chosen an individual to act on his/her behalf, or the individual chosen has not acted in his/her best interests; or
  4. The person's health and well-being are in imminent danger, and decisions about medical treatment, placement, and/or finances must be made.

Procedures for Establishment of Conservatorship

Normally, any interested adult person may file a petition with the Court for the appointment of a conservator of an incapacitated person. The person filing the petition is not necessarily the person who will be appointed the conservator. The individual for whom conservatorship is sought has the right to a notice of the proceeding and a right to a hearing on the question of his or her capability. The Court may appoint an attorney or guardian ad litem to represent the interest of the alleged disabled person. If the Court finds the person incapacitated and in need of the protection, supervision, or assistance of the Court, it will appoint a conservator. The alleged disabled person has the right to appeal the decision to a higher court. Where appropriate, the Court should appoint a "limited" conservator for a person who suffers from only a mild disability or partial incapacity. This appointment can preserve many of the person's legal rights.