Questions to Ask an Elder Law Attorney
For an older adult, or the grown child helping a parent, at a first consultation with an elder law attorney and before hiring one. The questions follow the order the meeting tends to take: the attorney, the documents (powers of attorney and health care directives), guardianship, paying for care, the will or trust, then fees and what happens next. Most are worded for a son or daughter, so swap 'my parent' for 'I' if you are asking for yourself; each has a note on what a good or a worrying answer sounds like.
The questions
Each question, and why to ask it
The attorney
How much of your practice is elder law, and which kinds of elder law matters do you handle most weeks?
Why ask it
Elder law is a wide label: incapacity documents, guardianship, paying for care and benefits claims are close to separate specialties. A useful answer names the two or three the office handles every week, so you can see whether your problem is among them. Be wary if elder law turns out to be a sideline next to injury or divorce cases.
Do you hold any certification in elder law, and which elder law groups do you belong to?
Why ask it
In the US the usual answers are the Certified Elder Law Attorney credential, the National Academy of Elder Law Attorneys or a state bar's elder law section. None of them is required to practice, and plenty of capable lawyers hold none, so treat a yes as a sign of commitment and still ask about families like yours. What you are listening for is someone who keeps up, since benefit rules are revised often.
Who would be your client: my parent, me, or both of us?
Why ask it
Many elder law attorneys treat the older person as the client even when a grown child booked the meeting and pays the bill. Hear how this office handles it, because it settles who gives the instructions and who is entitled to be told what. A lawyer who has not thought about the question, in a room with two generations in it, is one to be careful with.
Will you want to talk with my parent alone, and how should we prepare them for that?
Why ask it
A private conversation with the older person is usually there to protect the documents from a later claim that someone was leaning on them. It is not a sign the family is distrusted. Tell your parent beforehand so it does not feel like an exam, and think twice about a lawyer who would draft everything on a child's say-so without it.
Who would we deal with day to day, and how fast can we reach someone when my parent's situation changes overnight?
Why ask it
The urgent moments in this kind of work are often a fall, a hospital discharge or a facility asking for a signature, so the useful part of the answer is who picks up on a bad day. A paralegal or care coordinator handling the routine work is normal and often cheaper; get that person's name and which decisions always go back to the attorney. An office that cannot say how soon it returns calls will be hard to work with during a discharge.
My parent lives in one state and I live in another. Which state's rules apply, and can you act there?
Why ask it
Benefits, guardianship and the wording of the documents generally follow where the older person lives, and the lawyer has to be able to practice there. If a move closer to family is on the cards, say so now and ask what would have to be redone afterward. A good answer includes the name of someone in the other state, or a plain statement that they would find one.
Are you paid by anyone besides us for what you recommend, such as an insurer or a financial adviser?
Why ask it
Some advice aimed at older people comes attached to an annuity, an insurance policy or a referral fee. The answer you want is no, or a clear account of the arrangement before any product is mentioned. If a product is the first thing recommended, ask what the plan would look like without it.
Do you work with care managers, social workers or financial advisers, and when would you bring one in for us?
Why ask it
Part of the problem is often not legal at all: finding a facility, arranging help at home, judging what level of care your parent needs. Some offices have a care coordinator on staff and others refer out, so ask who they would send you to and whether any money changes hands for the referral. If the reply is that the documents are the whole job, you may have to find that help yourself.
Can you meet at home, in the hospital or by video if my parent cannot get to your office?
Why ask it
Offices that do this work every day tend to have a routine for it, including how witnesses or a notary get to the bedside. Ask what the visit costs and how soon it can happen. Leave this one out if travel is no trouble for your parent.
What should we bring next time so that you can advise on our own case and not in general terms?
Why ask it
Expect a list: existing wills, trusts and powers of attorney, a rough inventory of accounts and property, monthly income, insurance policies including any long-term care policy, and military discharge papers if there was service. Ask whether the office has an intake form. Whatever is hardest to find, start on it today.
Documents
Which documents should my parent have for money and for medical decisions, and what does each one let someone do?
Why ask it
The names and the signing formalities differ from state to state, so have the attorney say what each paper is called there, who it puts in charge and from what moment. Ask as well whether your parent should sign a release so that doctors and the hospital can speak to the family. You should leave able to explain each document to a sibling in a sentence.
How do you decide whether my parent is still able to sign legal documents?
Why ask it
The test for signing is a legal one, it can differ from one type of document to another, and a diagnosis alone may not settle it. Listen for a description of the conversation the attorney would have with your parent and when a doctor's letter would be asked for. Walk away from anyone willing to have papers signed without meeting the person signing them.
My parent has good days and bad days. Can documents be signed on a good day, and how would you record that?
Why ask it
Ask whether the office can move quickly when a clear morning comes, and what notes are kept about how your parent seemed. Notes made at the time are the kind of record a court may look at if a relative challenged the documents later. Tell the attorney which hours of the day are usually best.
What would you write into the power of attorney for long-term care planning that a standard form leaves out?
Why ask it
Planning for care can call for powers a basic form may not grant, such as making gifts, setting up a trust or dealing with benefit agencies. Those same powers are the ones most open to misuse, so ask which the attorney would include for your family and why. 'We give everyone the same form' is the answer to push back on.
Who should be named as agent when the obvious choice lives far away or the children do not get along?
Why ask it
Describe the family honestly, including who is good with money and who is not speaking to whom. The reply should cover a first choice, a backup, and what the attorney thinks of naming two children to act together where you live. Reliability and being close at hand usually count for more than birth order, and a good lawyer will say so.
What checks can be built in so that the person holding the power of attorney is accountable?
Why ask it
Possibilities to raise include a duty to send statements to a second family member, a limit on gifts, or a named person with the right to ask for an accounting. Each one adds friction for an honest agent, which is the trade to talk through. An attorney who has seen a power of attorney abused will have firm views here.
What does the agent have to do once the power of attorney is in use, and will you explain the job to them?
Why ask it
The work is duller than people expect: keeping the parent's money separate, saving receipts, signing in the right form. Some offices hand the agent written instructions or will meet them for half an hour, and that is worth asking for. If you are the one being named, this question is really for you.
What should the health care directive say about a long decline with dementia, and not only about the end of life?
Why ask it
Standard forms tend to be written around a final illness in a hospital, and a long decline raises different decisions: help with eating, who chooses a care home, how much treatment to accept for other conditions. Ask what your state's form covers, what can be added, and whether instructions about where to live carry any weight there. The lawyer supplies the wording; the wishes have to come from your parent, so have that talk at home first.
My parent signed documents years ago, in another state or from an online form. Are they still good enough?
Why ask it
Bring them and ask for a straight verdict on each one: keep, patch or replace. Older or out-of-state papers may be legally valid and still be refused at a bank counter, so ask how they would hold up in practice where your parent lives now. Be a little skeptical of a recommendation to redo everything that arrives before anyone has read them.
Which agencies and institutions will not accept a power of attorney, and what do they want instead?
Why ask it
Some bodies run their own system for appointing a person to handle someone's affairs, and in the US Social Security and the VA are the usual examples. Have the attorney list which ones apply to your parent's income and what each application involves. It is a much easier job while your parent can still take part.
Guardianship
My parent can no longer sign anything. Is going to court the only route, or are there less drastic options here?
Why ask it
Depending on the place, alternatives may exist for particular tasks: a benefits payee, a law that lets close family make medical decisions, an account already held jointly. A careful attorney goes through those before proposing a court case, because guardianship is usually slower, more public and more expensive. If court really is the only way, you should hear why each alternative fails.
What does a guardianship or conservatorship case involve in this county, from filing to the hearing?
Why ask it
The words themselves change by state, so start by asking what each one means locally and whether your parent would need one or both. Then get the sequence: medical evidence, notice to relatives, any investigator or court visitor, the hearing. Someone who does these regularly will describe how the local court runs them without being asked.
How long would a guardianship take and what would it cost, including the fees for anyone the court appoints?
Why ask it
The petitioner's own lawyer is seldom the only bill. Ask who else is paid, whether the costs come out of your parent's funds or yours, and what happens to the estimate if a relative contests. Get the range in writing, along with the yearly cost of reports and accounts once a guardian is in place.
Which rights would my parent lose under a guardianship, and can the order be limited to the things they need help with?
Why ask it
Many courts can tailor an order, for instance to finances only, leaving other decisions with the person. Whether and how often that happens where you live is the thing to learn. An attorney who raises limited orders before you do is thinking about your parent and not only about the petition.
My parent would not agree that they need a guardian. What happens when the person objects?
Why ask it
Expect to hear that your parent gets a voice of their own in the case, often through a separate lawyer or an advocate named by the court, though the details depend on the state. A contested case is longer, costlier and harder on the family. Notice whether the attorney takes your parent's objection seriously or treats it as an obstacle.
If the family disagrees about who should be guardian, how does the court choose, and could it appoint an outsider?
Why ask it
Courts in some places turn to a professional guardian when relatives are fighting, which is rarely what any of them wanted. Ask how often that happens locally and what tends to prevent it. If a sibling is likely to object, the cheapest step may be a family meeting before anything is filed, and a good lawyer will suggest one.
Is there a faster procedure if my parent is being exploited or is unsafe right now?
Why ask it
Most places have some emergency or temporary route, with its own standard of proof and a short life. Ask what evidence would be needed and how quickly a judge could act. Ask too whether adult protective services or the bank's fraud team should be called today, which costs nothing and does not wait for a court date.
A relative already holds power of attorney and I am worried about how it is being used. What can be done?
Why ask it
Bring facts, not suspicions: dates, amounts, and statements if you have a right to see them. The options tend to run from a letter asking for an accounting to a court petition, and the attorney should say which fits what you have. Hear what it would cost to be wrong, too, in money and in the family.
Paying for care
What are all the ways to pay for the care my parent needs, and in what order would you draw on them?
Why ask it
The full list usually runs: savings and income, long-term care insurance, veterans benefits, home equity, and Medicaid. Ask what Medicare would and would not pay in your parent's case as well, since families often count on it for more than they should. An attorney who goes straight to a single strategy, before every one of these has been considered, has skipped the part of the meeting you came for.
Roughly what does care cost around here at home, in assisted living and in a nursing home, and how long would my parent's money last?
Why ask it
An office that works with local families will know the going rates within a range, and can turn your parent's savings into months of care at each level. That number decides how urgent everything else is. Check the figures yourself with two or three providers afterward.
My parent is already in a facility, or about to be. Is it too late to plan?
Why ask it
Families often assume it is and stop asking. What remains possible depends on the state, on whether there is a spouse, and on the kind of assets, so make the attorney go through your case specifically. Distrust both extremes: 'nothing can be done' said before looking at the numbers, and a promise that everything can be saved.
I am still healthy. What would you do now, years ahead of needing care, and what would you leave alone?
Why ask it
Early planning buys more choices, and the larger ones tend to involve giving up some control over your own money. Ask for the modest version first: documents, a look at insurance, a conversation with the family. Any step that cannot be undone deserves a second meeting and a night's sleep before you sign.
How do we keep the spouse who stays at home from running short while the other is in care?
Why ask it
Ask for it worked out with real figures: the household's monthly bills against the income the at-home spouse would be left with. The protections for that spouse differ by state and the figures change from year to year, which is why a general answer is not enough. Pay attention to whether the attorney asks about that spouse's own health.
Before we talk about trusts or gifts, what should we not do on our own?
Why ask it
The usual do-it-yourself moves are putting a child on the deed, giving money to family, and moving accounts into someone else's name. Each can carry consequences for benefits, tax and control that depend on the rules where your parent lives. If one of them has already happened, say so in this meeting; it is far better heard now than discovered.
We would like to keep the house in the family. Is that realistic, and what would it take?
Why ask it
The honest answer may be yes, partly, or no, and it turns on who lives there, what else your parent owns and the local rules. Have each route explained with what it costs your parent in control and security. A worrying answer is a deed transfer suggested within minutes, with no question about where your parent will live.
Under the plan you are suggesting, what control does my parent give up, and can any of it be reversed?
Why ask it
Arrangements that protect assets generally work by taking them out of the owner's hands, in whole or in part. Get a plain account of who could say no to your parent afterward, and what happens if a child named in the plan divorces, is sued or dies first. If the explanation does not make sense to your parent, the plan is not ready to sign.
I have cut back my work to look after my parent. Is there a proper way for me to be paid or reimbursed?
Why ask it
Money handed over informally can be read later as a gift, so ask how a written care agreement works in your state and what it should say about hours and rates. Ask about tax on what you receive as well. Raise it with your brothers and sisters before signing; a contract they first hear about afterward causes more trouble than the payments themselves.
My parent has a long-term care insurance policy. Will you read it and help with a claim?
Why ask it
Bring the whole policy, not the summary page. The points to have explained are what triggers a payout, how long the waiting period runs, the daily or monthly limit, and whether care at home by a relative counts. Some offices handle claims and others only advise, so find out which this is.
My parent, or their late spouse, served in the military. Could that help with care costs, and are you accredited to work on VA claims?
Why ask it
The VA has pension benefits that can add a monthly amount for some wartime veterans and surviving spouses who need help with daily living, under its own service, income and asset rules. In the US a person generally has to be accredited by the VA to help prepare a claim, so ask directly, and ask how the office charges for that work. Have the discharge papers with you, or ask how to request a copy.
How would applying for a veterans benefit affect a later Medicaid application, and the other way around?
Why ask it
The two programs have separate rules about assets and gifts, and a step that helps with one can do harm with the other. A sound answer treats them together and tells you which to pursue first in your parent's case. Be on guard if qualifying seems to depend on buying a financial product from the person advising you.
Do you prepare Medicaid applications yourselves, and at what point would that conversation begin for us?
Why ask it
Here you only need to learn whether this office does the work and how far off it is for your parent. The application is a meeting of its own, with questions about look-back periods, countable assets and who deals with the caseworker, and this site's separate list of questions to ask a Medicaid attorney covers it. If the firm sends that work elsewhere, ask who it sends it to.
Will you look over the nursing home or assisted living admission agreement before anyone signs?
Why ask it
Take the unsigned agreement to the attorney if there is any time at all. Ask who should sign and in what capacity, since a relative who signs in the wrong box may be taking on more than they realize, and ask about any arbitration clause. Facilities often say the paperwork is routine and needed today; a day's delay to have it read is a reasonable request.
Will and trust
My parent already has a will or a living trust. Does it still do its job if long-term care becomes the main expense?
Why ask it
People often assume a living trust shields assets from care costs, so ask plainly whether the one your parent has does anything of the kind where they live. A plan written to avoid probate and a plan written around care are aimed at different problems. Expect the attorney to read the documents before answering, and be wary of an answer given without them.
Another lawyer wrote my parent's will years ago. Would you redo the estate plan, or work alongside what is there?
Why ask it
Some elder law offices write wills and trusts every week and others leave them to an estate planner, so find out which this one is. If the old documents stay, ask who makes sure the will, the trust and the new powers of attorney name the same people and do not contradict one another. Two sets of papers drafted years apart by different offices are where the gaps tend to be.
Should the spouse who is well change their own will in case they die first?
Why ask it
Couples commonly leave everything to each other, which could put the whole estate in the hands of the spouse who is in care. Ask what the alternatives are in your state and how each would affect benefits. It is an easy question to miss, because all the attention is on the person who is ill.
One of the heirs has a disability and receives benefits. How should an inheritance to them be set up?
Why ask it
A direct gift can interfere with benefits that depend on what a person owns, and a specially drafted trust is the usual tool to discuss. Find out whether the attorney writes those regularly or refers them on, and who would serve as trustee over the long run. Skip this if it does not apply to your family.
My parent wants to leave more to the child who has done the caregiving. How do we do that without a challenge later?
Why ask it
The risk is a claim after the death that the caregiver steered the decision. Expect the attorney to meet your parent without that child in the room, to write down the reasons in your parent's own words, and perhaps to suggest telling the other children now. If you are the caregiver, the most useful thing you can do may be to stay out of that meeting.
Fees and next steps
What does this first consultation cost, and what will we leave with at the end of it?
Why ask it
Free, flat and hourly first meetings all exist, and the price says little about the quality. The more useful half of the question is what you leave with: a written summary, a fee quote, a list of next steps, or only a conversation. Ask when you book, not when you sit down.
How do you charge for each piece of work: the documents, the care planning, a court case, a benefits claim?
Why ask it
Elder law work is often priced in pieces, with documents at a flat fee and court work by the hour, though every office differs. Ask for a figure or a range for each piece you might need this year, and what would push it higher. An engagement letter that names the client and lists what is not included is the thing to leave with.
Does it matter whose money pays your fee, my parent's or mine?
Why ask it
It can matter for benefits planning, in ways that depend on the program and the state, so ask before writing a check from the wrong account. Paying the bill also does not usually make the payer the client, which is worth hearing the lawyer say out loud. If several children are sharing the cost, ask how the office wants that handled.
Which of these steps is urgent for us, and which can wait until we have talked to the rest of the family?
Why ask it
A good answer sorts the list into this week, this season and someday. Signing a power of attorney while your parent is able is the kind of step that tends to land in the first group, and trust planning in the second. Pressure to commit to the whole package before you leave the room belongs in neither.
After the documents are signed, what changes in my parent's health or living situation should bring us back to you?
Why ask it
Ask for the office's own list and keep it with the papers: a new diagnosis, a hospital stay, a move to another state or into a facility, the death of a spouse, the sale of a house, an inheritance. Find out what a review costs and whether the firm writes to clients when the rules change or leaves it to you to call. The person holding the power of attorney should have a copy of the list too.
How will you keep the family informed, and what will you not be able to tell us?
Why ask it
The lawyer's duty of confidentiality runs to the client, so what the rest of the family hears is normally the client's decision. Ask whether your parent can sign a permission naming who may be told what, and who in the office takes calls. Setting this up at the start is much easier than arguing about it from a hospital corridor.
How to use a first meeting with an elder law attorney
Practical guidance for the conversation itself
Before the consultation
Settle who is going
If the meeting is about your parent, your parent should be there whenever that is possible, in person or on a screen. Ask the office who they want in the room and whether part of the time will be with your parent alone. One or two family members is plenty; five turns a consultation into a family meeting.
Put the situation on one page
Write down the diagnosis if there is one, where your parent lives and who helps, monthly income, a rough list of what they own, and the one thing that worries you most. Send it ahead if the office will take it. The hour then goes on advice instead of on gathering facts.
Collect the papers that exist
Old wills, trusts, powers of attorney, health care forms, deeds, insurance policies and military discharge papers. Copies are fine for a first meeting. Do not hold the appointment up for a missing document; say what is missing and ask how to get it.
Choose the groups that apply
Nobody needs all of these in one sitting. Skip Guardianship if your parent can still sign, and treat the Medicaid application as a later meeting with its own list. A dozen questions, with the first group and the fees among them, fills a consultation.
In the meeting
Let your parent speak first
Grown children tend to answer for a parent without noticing. Hold back, and watch whether the attorney speaks to your parent directly and waits for the reply. How the lawyer treats the older person in the first ten minutes tells you most of what you need to know.
Ask how it works where your parent lives
Benefit limits, signing rules, court procedure and the names of the documents all change from state to state and from year to year. Whenever the answer is a rule, ask whether it is this state's rule and this year's figure, and write it down with the date.
Say the awkward things
Gifts already made, a child with money troubles, a second marriage, a relative nobody trusts. Ask at the start how confidentiality works with family members in the room, since it can depend on who is present and on the rules where the attorney practices. Advice built on a tidied-up version of the family will not fit the real one.
Leave with something written
Before you stand up, ask for the next steps in order, who does each one and what it will cost. If the office does not send a summary, send your own notes by email and ask them to correct anything wrong. Do not sign an engagement letter in the room unless something truly cannot wait.
Choosing between two attorneys
Compare what each one asked you
The attorney who asked about your parent's health, the spouse at home, earlier gifts and what your parent wants was already working on the problem. One who described services for most of the hour was presenting. Count the questions that came your way.
Line the fees up piece by piece
Put documents, care planning, any court case and any benefits claim in separate rows for each office. A lower total often leaves a piece out, and a flat fee is only comparable to an hourly estimate once you know what the flat fee stops covering.
Check the record yourself
Your state bar's website will normally show whether a lawyer is licensed and whether there is public discipline. A claimed certification can be looked up with the body that grants it. It takes ten minutes and nobody will mind that you did it.
When the two plans disagree
Two competent attorneys can recommend different routes. Take the first plan to the second lawyer and ask why they would not do it, then do the same in reverse. The one who can explain the other's reasoning, and where it falls short for your family, is usually the one who understands the case.
Reasons to keep looking
A product before a plan
An annuity, a policy or a trust package recommended before anyone has asked about health, family and finances is a sale. The same goes for a free seminar that ends with an order form. Ask what the advice would be if nothing were being sold.
The lawyer talks only to the child
If your parent is in the room and is not asked what they want, the documents that come out of that office are easier to attack later, and your parent has been poorly served today. This is true even when you are the child and it feels convenient.
Certainty about outcomes
Benefit decisions are made by agencies and guardianships by judges. An attorney can tell you what usually happens and what they would do; one who promises a result is promising something they do not control.
Urgency with no reason given
Some things in this field really are urgent, such as getting documents signed while a person is able. A good attorney says which step is urgent and why. Pressure to buy the whole plan today, with no reason attached, is a different thing.