What Does an Elder Law Attorney Do? When a Family Needs One
The specialism covers the legal questions that arrive together in later life, and a decision in one area can close options in another.
By naveen · Updated · How we research our guides
What to know
- An elder law attorney handles the legal questions of later life: health and long-term care planning, public benefits like Medicaid, who decides if capacity is lost, guardianship, and estates.
- Those areas interact: federal Medicaid law, for example, looks back 60 months at assets given away for less than they're worth.
- It can help to consult one before a crisis, while your parent can still understand and sign documents.
- Free legal help for older adults is funded under the Older Americans Act and, according to ACL, available in every state.
- Retirement Checklist helps you arrive at that consultation with the right questions.
An elder law attorney counsels and represents older adults and their families on the legal questions of later life: health and long-term care planning, public benefits such as Medicaid, who decides if capacity is lost, and estates. What sets the specialism apart is that these questions interact, and a decision made in one can close off options in another.
We don't refer anyone, don't maintain a list of firms, and don't take fees from practitioners. That's why this page explains the category rather than pointing you at a name.
What does an elder law attorney do?
The National Elder Law Foundation (NELF), which certifies elder law attorneys, defines elder law as counseling and representing older persons and their families "about the legal aspects of health and long-term care planning, public benefits, surrogate decision-making, legal capacity, the conservation, disposition and administration of estates." Its certification rules list the work in more detail:
- Incapacity planning: healthcare directives and durable financial powers of attorney, drafted to your state's requirements.
- Wills and trusts, including gifting and its tax effects.
- Paying for care: how costs interact with assets, and the Medicaid eligibility rules, which ACL says "vary from state to state."
- The home: real estate, and housing options such as "home equity conversion, reverse and other mortgage options."
- Capacity: representing people who "are or may be the subject of guardianship" or conservatorship proceedings, for when planning didn't happen in time; see guardianship and conservatorship.
- Benefits, from Medicare and Social Security to "Veterans benefits and housing and food programs."
Why see an elder law attorney early?
Because some of the choices are time-sensitive. Federal Medicaid law sets a "look-back date" 60 months before an application for asset transfers made on or after February 8, 2006, and a transfer for less than fair market value in that window can delay eligibility (42 U.S.C. 1396p(c)).
NELF's rules say a client of a certified elder law attorney "has the right to expect that the attorney will be able to identify all of the client's needs" and either handle them or refer the client on. That breadth is the point of seeing one before decisions are made. We don't put a number on fees; the National Institute on Aging's advice is to "ask about the lawyer's fees before you make an appointment."
When does it become urgent?
When your parent's capacity is in question. NIA suggests setting up a financial power of attorney "preferably while the person can still understand and approve the arrangement."
Without one, the Consumer Financial Protection Bureau (CFPB) says a family member "might have to go to court to have a guardian appointed," a process it describes as lengthy, expensive and public. An elder law attorney can still help after that point, including in the court process, but the family's options are narrower.
How do you find an elder law attorney?
Start with the routes federal agencies point to. NIA suggests "your local bar association for lawyers, or the Eldercare Locator," and adds that the bar association "can also help you find what free legal aid options your state has to offer." Alzheimers.gov also mentions the National Academy of Elder Law Attorneys.
For free help, ACL says Older Americans Act legal assistance programs "are available in every state, through contracts with Area Agencies on Aging," with services targeted to "older individuals with economic or social needs."
Certification is optional. NELF is "the only national organization accredited by the American Bar Association (ABA) to certify attorneys in elder and special needs law," and its rules state that "No lawyer shall be required to obtain a certificate as an elder law attorney before practicing elder law." A Certified Elder Law Attorney (CELA) must, among other things, have spent an average of at least 16 hours a week on elder law over the past three years and pass NELF's exam.
It can help to confirm the attorney is licensed in the state where your parents live and where any property is. If those are different states, say so in the first phone call.
What questions are worth asking?
- How much of your practice is elder law specifically?
- How is the first meeting billed, and what would a full set of documents cost?
- Are you licensed in the state where the property is?
- Who will do the work: you, or someone else in the firm?
- What do you need from us to make the first meeting useful?
- What do families in our situation most often get wrong?
Frequently asked questions
What does an elder law attorney do?
They counsel and represent older adults and families on health and long-term care planning, public benefits such as Medicaid, surrogate decision-making, legal capacity, guardianship, and estates. NELF's certification rules also cover housing, insurance, residents' rights and elder abuse. The defining feature is that these areas interact, and the specialism exists to handle them together.
How is that different from an estate planning attorney?
There's overlap. NELF's definition of elder law includes the "conservation, disposition and administration of estates," but also health and long-term care planning, public benefits, surrogate decision-making and legal capacity. Estate planning centers on what happens to assets after death; elder law gives the years before it at least as much attention.
When is it worth a consultation?
Prompts can include nothing being in place at all, a recent diagnosis, care starting to be paid for, property in more than one state, a blended family, a family business, or a parent who has already lost capacity. That last one narrows the options to court processes and makes the conversation urgent.
What should we bring to a first meeting?
Any existing documents even if they look outdated, a rough list of accounts and property, a note of which state each property is in, the names of everyone already named in any document, and your actual questions written down. NIA's affairs-in-order checklist is a useful guide to what to gather.
How do they charge?
Ask before you book. NIA's advice is to "ask about the lawyer's fees before you make an appointment." Useful questions are whether billing is hourly or a flat fee for a defined set of documents, how the first meeting is billed, and what a complete set of documents would cost, so the answer isn't a surprise.
What is the average cost of an elder law attorney?
We don't quote figures, because a number here would be a guess. If cost is a barrier, Older Americans Act legal assistance is available in every state for older adults with economic or social needs, through the local Area Agency on Aging or the Eldercare Locator. Otherwise, ask how the first meeting is billed before booking.
What are the biggest elder law mistakes?
Waiting until a crisis, when a parent may no longer be able to sign; giving away assets inside Medicaid's 60-month look-back; setting up a living trust and never putting assets in it, which the CFPB says leaves it "ineffective"; using documents that don't fit the parent's state; and letting beneficiary forms contradict the will.
Getting started
Every family's order is different. The plan this site builds asks four questions, including which state your parents live in, and puts the handful of steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- National Elder Law Foundation, Rules and Regulations: The certifying body's definition of elder law and the work a certified attorney is expected to cover.
- National Elder Law Foundation: NELF's ABA accreditation to certify elder law attorneys.
- Administration for Community Living, Legal Assistance: Older Americans Act legal assistance, available in every state.
- Administration for Community Living, Legal Services for Older Americans Program: Federally funded legal help for older adults, and the issues it covers.
- Administration for Community Living, Medicaid (LongTermCare.gov): How Medicaid eligibility and covered services vary by state.
- 42 U.S.C. 1396p, Medicaid transfers of assets: The federal look-back rule for asset transfers.
- National Institute on Aging, Getting Your Affairs in Order Checklist: Finding a lawyer, asking about fees, and what to gather.
- National Institute on Aging, Managing Money Problems for People With Dementia: Arranging a financial power of attorney while a parent can still approve it.
- Consumer Financial Protection Bureau, What is a power of attorney (POA)?: What happens when no power of attorney exists.
- Consumer Financial Protection Bureau, What is a revocable living trust?: Why a living trust must be funded to work.
- Alzheimers.gov, Planning After a Dementia Diagnosis: Where families can look for lawyers and legal help.
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