What is Elder Law?

What is Elder Law?

We are often asked What is elder law? While the definition of “elderly” is the subject of some debate, the most common defining point is someone who is 65 years or older, as that is when federal Medicare benefits begin. Elder Law, much like “Family Law” or “Employment Law” is an umbrella term for a broad-based area of law.  For Elder Law attorneys, this consists of multiple areas of practice that relate to older adults, individuals with disabilities, and those who care for seniors and disabled individuals, including:

  • Health Care and Legal Capacity
  • Public Benefits (e.g. Medicaid and SSI)
  • Special Needs Trusts
  • Long Term Care
  • Asset Protection and Nursing Home Planning
  • Wills, Trusts, and Powers of Attorney
  • Probate and Trust Settlements
  • Guardianship and Conservatorship

The term Elder Law can be somewhat confusing because most Elder Law Attorneys also focus on solving legal problems for individuals with special needs, regardless of age.

The National Elder Law Foundation (NELF) defines Elder Law as follows:

“Elder Law” is the legal practice of counseling and representing older persons and persons with special needs, and their representatives 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 and the implementation of their decisions concerning such matters, giving due consideration to the applicable tax consequences of the action, or the need for more sophisticated tax expertise.”

NELF is the American Bar Association-approved agency that certifies attorneys as a Certified Elder Law Attorney (CELA). There are less than 15 CELAs in the state of Wisconsin. To become a CELA one must have enhanced knowledge, skills, experience, and proficiency in the field of elder law. The attorney must complete an exam and be certified by the National Elder Law Foundation Board. Attorneys must complete 75 hours of continuing education in the elder law field every five years.

If you or a family member require an elder law or special needs law attorney please contact our office.


Guardianship Training is Now Required

Guardianship Training is Now Required

As of January 1, 2023, Wisconsin law requires all new individual guardians to complete a state-approved training course. Prior to this year, Wisconsin only required corporate guardians to have formal training. Now every individual who is nominated to be the guardian of a person or of the estate (the assets and finances of the person) must complete training on a variety of topics, and submit a sworn, notarized affidavit attesting that the training has been completed before they can be appointed guardian.

Wis. Stat. § 54.26 sets forth the required areas of training, including the following:

  • The duties and required responsibilities of a guardian under the law and limits of a guardian’s decision-making authority.
  • Alternatives to guardianship, including supported decision-making agreements and
    powers of attorney.
  • Rights retained by a ward.
  • Best practices for a guardian to solicit and understand the wishes and preferences of a ward, involving a ward in decision making, and taking a ward’s wishes and preferences into account in decisions made by the guardian.
  • Restoration of a ward’s rights and the process for removal of guardianship.
  • Future planning and identification of a potential standby or successor guardian.
  • Resources and technical support for guardians.

In most cases, it is a family member who is petitioning for guardianship of a loved one, and they often have misconceptions about what guardianship is or is not. Many are not aware of the responsibilities that they will have as guardian, or that there are a number of ongoing administrative requirements they will be required to complete. The court system is not equipped to provide guidance and advice to guardians on an ongoing basis, which can leave guardians feeling overwhelmed and lacking support. Training for guardians can be vital in helping guardians know what to expect and how to address concerns as they navigate their ongoing role as guardian.

The training must be completed no later than four days (96 hours) before the final guardianship hearing, and must be completed by the nominated guardian of person or estate, as well as any standby or successor guardians of person or estate. The training is free and available as a self-paced, online course. https://www.uwgb.edu/guardianship-training/

If you have questions on guardianships or the required training please reach out to one of our experienced attorneys.

World Elder Abuse Awareness Day – June 15th

World Elder Abuse Awareness Day – June 15th

World Elder Abuse Awareness Day (WEAAD) is June 15th. WEAAD is observed the same date each year and was launched in 2006 by the International Network for the Prevention of Elder Abuse and the World Health Organization at the United Nations. Its purpose is to provide an opportunity for communities around the world to promote a better understanding of elder mistreatment by raising awareness of the cultural, social, economic and demographic factors that drive and influence elder abuse, neglect and exploitation. (American Society of Aging)

As many as 1 in 10 older Americans are abused or neglected each year and only 1 in 14 cases of elder abuse ever comes to the attention of authorities. Older Americans are vital, contributing members of our society and their abuse or neglect diminishes all of us. WEAAD reminds us that, as in a just society, all of us have a critical role to play to focus attention on elder justice. (Administration for Community Living)

Experts have reported that knowledge about elder abuse lags as much as two decades behind the fields of child abuse and domestic violence. The need for more research is urgent and it is an area that calls out for a coordinated, systematic approach that includes policy-makers, researchers and funders.  (National Center on Elder Abuse citing the Elder Justice Roadmap)

Each year, an estimated 5 million older persons are abused, neglected and exploited. Older adults throughout the United States lose an estimated $2.6 billion or more annually due to elder financial abuse and exploitation, funds that they desperately need to pay for basics such as housing, food and medical care. And it is estimated that only about one in five of those crimes are ever reported. (American Society of Aging)

Financial exploitation causes large economic losses for businesses, families, elders, and government programs, and increases reliance on federal health care programs such as Medicaid.  Research indicates that those with cognitive incapacities suffer 100% greater economic losses than those without such incapacities.   (National Center on Elder Abuse citing The 2011 Utah Economic Cost of Elder Financial Exploitation and Broken Trust: Elders, Family & Finances)

Not only are older people heavily targeted by scam artists, but surprising data suggest that, as we get older, we become more vulnerable to fraud in so many of its forms.  There is neuroscience and psychological data to suggest our ability to detect risky situations may decline. Or, we may become prone to seeing the upside of a risky endeavor and dismiss the downside. Others may lose the ability to push back on a high-pressure predator. Safeguards against financial fraud take the shape of a state-by-state patchwork and, too often, once the money is gone, it is gone for good. Therefore, many advocates are fighting for better defenses. (Marketplace – Age of Fraud: Are Seniors More Vulnerable to Financial Scams)

If you have questions regarding elder abuse or need assistance, in addition to reporting to your local Adult Protective Service agency, an attorney can also assist you in taking legal action.

Local Resources

Portage County Adult Protective Services

Portage County Aging & Disability Resource Center

Portage County Department of Health and Human Service

Wisconsin Elder Adults-At-Risk Hotlines