Attributes of an Elder Law Attorney

The elder law attorney must be familiar with various areas of law. These areas include elder law, tax law, constitutional law and estate law. The following are merely some examples. In a prior ICLE seminar, Janice Chapin, Esq. pointed out that the Medicaid statute should not be reviewed from the tax point of view but should be reviewed from the benefits point of view. The following are an example of this and other examples:

1. In the Mishkin case, the court held that the IRA of a community spouse was a resource. Technically, since Medicaid incorporates the social security statutes by reference and such IRA is not a resource for social security purposes, this decision is technically incorrect.
2. The elder law attorney must be familiar with the constitution. In one of my prior seminars, entitled: Constitutional Aspects of Elder Law, I stress such constitutional issues and in particular the doctrine of federal pre-emption.
3. The elder law attorney must be familiar with estates and trusts. For example, an estate in probate is an inaccessible resource. The question becomes when a community spouse inherits, whether the property in probate becomes a resource.
4. The elder law attorney must be able to rely on other professionals and determine what the appropriate time is. In Blog 165, I pointed out the need for other professionals and the appropriate time.
5. The approach of the elder law attorney is pointed out in Blog 167. That is, the elder law attorney should not dictate to the client what to do, but should point out the various possibilities and let the client decide.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© January 2012, Post 180