Navigating the complex world of elder care is a challenge that many will eventually face. Knowing your legal rights and planning for various scenarios can make all the difference.
Steven D. Fleischer Esq. PLLC – a New York City Elder Care Lawyer with expertise in Elder Law, Trusts and Estates, Guardianship, and more – lays out the importance of legal documents like advance directives and offers essential tips for making well-informed decisions.
Whether you're considering elder care options for yourself or a loved one, arm yourself with the knowledge you need.
What does an elder law attorney do?
An elder law attorney is your go-to guide for legal concerns that often come up as you or someone you love gets older, such as estate planning, Medicaid planning, wills, and trusts. They can help avoid the need for guardianship proceedings by preparing and supervising the signing of advanced directives such as Health Care Proxies and Power of Attorney documents.
“A good elder law attorney will help you navigate the paperwork and legal jargon so you can make sure everything is in place long before it becomes an issue,” says Fleischer. “Whether that's securing assets or ensuring that healthcare wishes are followed, they’re your advocate in a system that can be pretty complicated.”
Fleischer emphasizes that the scope of elder law is broader than just legal paperwork. It’s about assembling a team to address all sorts of concerns.
“People have issues beyond the legalities,” he says. “Whether it's geriatric care managers, home health care agencies or hoarding specialists, an elder law attorney can see additional areas where you and your loved one may need more support and give them the resources to bring that support in.”
What documents do I need?
At its baseline, elder law is about Power of Attorney documents, Healthcare Proxy, and other related legal instruments. These documents ensure that you have an agent who you have selected to make decisions for you – without court interception and expense – should you become unable to make decisions yourself. They give you the option to name friends or neighbors in a HIPPA release authorization, thereby allowing them to communicate with hospitals or doctors on your behalf in case your designated agent is not available.
"If you don’t have your documents in place, and you have a stroke, you're in a rough situation,” warns Fleischer. “In what is already an unimaginably difficult time, there is no need for that.”
But, he says, it’s more common than you’d think.
“So many of these documents are common sense on the surface, but people tend to put them off as long as possible,” he says. “It’s understandable – no one wants to think about their own disability or death. But it can leave you and your family in a difficult spot.”
What happens when you don’t have the right documentation in place?
Not having a power of attorney or healthcare proxy in place can turn an already challenging situation into a legal maze. In cases where these essential documents are missing, someone—usually a family member or close friend—has to step up and apply for a guardianship order to make decisions on behalf of the individual who can’t. And it's not a quick fix.
"It's going to take you months and months and months before a guardianship order is provided, naming a guardian," says Fleischer. “This means that during a critical period, there may be no legal authority to make significant healthcare or financial decisions. The process is also very expensive – far more so than having an elder law attorney prepare them ahead of time.”
It’s often a process filled with bureaucratic hurdles, emotional stress, and yes, money—lawyer's fees, court costs, and sometimes even disputes among family members.
In contrast, having a power of attorney or healthcare proxy in place streamlines the decision-making process. These documents express your wishes clearly, so there's no ambiguity or conflict at a time when every moment might count. The difference between having these preparations and not can be night and day, both emotionally and financially.
Tips for Finding the Right Elder Care Lawyer
Finding the right attorney goes beyond just their knowledge of the law.
"You need someone that you feel can understand what you're going through and has the knowledge to help guide you through it," says Fleischer.
So, how do you determine if the attorney is the right fit? Fleischer advises asking questions about changes in Medicaid rules, delays in the surrogate's court, and their experience in specific matters that apply to your family.
“This is a very personal area of the law, and you need to make sure you have the right personality fit as well,” he says. “The right lawyer will care about you and your family as people, not just as clients. They’ll be advocates for your care and make sure to be up-to-date on every development in the profession.”
Why should I plan early?
“People tend to get these documents put together when they see their older parents or another older adult in their life start experiencing issues, but ideally, you should set up all of these directives as early as possible,” he says. “You never know what’s going to happen, and you don’t want to be caught unaware. You're not doing your loved ones any favors by leaving decisions up in the air.”
While it might be uncomfortable to think about topics like disability or even funeral arrangements, Fleischer urges that these conversations are necessary.
"As a loving parent, the loving thing to do is to have those decisions made beforehand," he says, adding that the emotional component is often what people struggle with the most.
"It makes them feel well if I talk about this, maybe it's going to hasten my death. Well, sometimes, it makes sense to focus on a problem. We can work through this," he assures.
Why is this so important?
Navigating the world of Elder Law can be complex, but as Fleischer says, "When a good elder law attorney is finished with the work, the client feels relieved because now they have a plan when things get hard.”
By acknowledging the importance of Elder Law and taking proactive steps, you're not only planning for the uncertainties of life but also ensuring peace of mind for yourself and your loved ones.
*By interviewing Steven D. Fleischer Esq for this article, we look to him for information as an expert in his field. This is not a recommendation or endorsement of his services.