April 27, 2023

7 Questions to Ask an Elder Law Specialist

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There are many reasons for a senior to see an attorney — estate planning, age discrimination, death and disability, and even cognitive impairment — but few people know what to ask an attorney when the time comes. Kerry Peck, elder law attorney and active chairman of the Illinois Supreme Court Commission on Elder Law, gave us the rundown on the most essential ground to cover.

“Will you work with my doctor?”

If you or a loved one is experiencing cognitive impairment issues, this may be the first and most important question you should ask an attorney. In order to best represent a client, attorneys first must discern their client’s capacity to execute the often cognitively demanding tasks of estate planning and the like.

“I think it’s important that [people] understand that lawyers and doctors must, should, and do work together,” explains Peck.

If assembling a team of doctors and lawyers to help you plan your estate sounds like going above and beyond, rest assured — it typically isn’t. You are taking the steps you should to protect yourself, your estate and your family.

“What organizations are you part of?”

When it comes to vetting an attorney, it is important to understand that although all attorneys hold the same degree, not all attorneys are made equal. As with any professional, an attorney’s experiences will inform their expertise — and, in turn, their ability to help you.

“Sitting behind the desk 24 hours a day doesn’t put you in touch with the problems that seniors have on an ongoing basis,” says Peck.

Therefore, it is often important to find an attorney who is actively involved — whether that means attending events, giving speeches or writing journal articles — in the medical community, the bar association, and community organizations serving seniors, such as the National Academy of Elder Law Attorneys.

“Do you understand my perspective on end-of-life planning?”

Opinions on end-of-life proceedings vary widely, and more often than not, they are very strongly held. For that reason, it’s important to find an attorney who understands your unique perspective on how end-of-life proceedings ought to go.

“End-of-life planning is really among the most important and sensitive issues that anybody, regardless of age, can make,” begins Peck. “When people make end-of-life decisions, they bring to the table their religious beliefs, their morality, [and] the ethics of the issue — all of which are sometimes at odds.”

It’s the sometimes-competing nature of end-of-life preferences and reality that underscores the importance of having an attorney who understands the ethos behind your wishes. That way, your attorney can execute your wishes dutifully, even in the face of unforeseen or undesirable circumstances.

“Can you find out how my assets are titled?”

When planning an estate, the first item on the agenda is generally determining what is in the estate. This means enumerating all your assets — such as real estate, stocks, bonds, and 401(k) plans — and finding out (1) whose name they are in, and (2) who the beneficiaries are. If you are unable to remember who the beneficiary of your 401(k) is, it is important to find an attorney who will figure it out for you. Fortunately, most of this information is easily discoverable via public records.

“To whom should I grant power of attorney?”

The person you name as power of attorney has the ability to make your healthcare decisions, estate decisions and/or financial decisions. In no uncertain terms, the person you select as your power of attorney is a person you trust with your life.

However, it is important that when evaluating those around you, you do so with clear eyes.

“I think people need to realistically assess their children — their weaknesses and their strengths,” explains Peck.

“If you have a nurse or doctor in the family, you want them in charge of your medical decisions,” says Peck. “If someone’s a wealth manager or has worked in a bank, that’s the person that you get involved [in financial decisions].”

“How do I handle my family dynamics?”

“Family dynamics are incredibly important,” says Peck. “They need to be discussed between an older adult and the lawyer, and regrettably we see a lot of arguments and disputes.”

These arguments and disputes most often arise in the course of estate planning. Knowing your children, you may opt to leave your estate to them in different ways. However you choose to allocate your estate, it is generally important to communicate with your children your reasons and rationale for doing so. Writing a letter of intent (an informal addition to your estate planning documents that explains your intentions and/or goals) may help you avoid not only future disputes among your children, but hurt feelings as well. There are also a number of public services available to help.

“The local senior centers can provide, in many instances, counseling, access to social service[s] [and] LCSWs [licensed clinical social workers],” offers Peck.

“I must leave my money to someone; whom should I choose, and how should I do it?”

This is perhaps the most difficult question facing an elder law client, and there is no one-size-fits-all answer. As with selecting someone to name as your power of attorney, when selecting your heirs, it is important to see your loved ones with clear eyes. While some beneficiaries might have no problem managing finances, others might benefit from having their inheritance put in a trust. With a trust, you are able to specify conditions for how and when beneficiaries may access the money. You are also able to avoid probate and, in many cases, minimize taxes paid on the inheritance.

“If you’re going to name someone [as your heir],” says Peck, “make sure that person has managed their own finances appropriately and has had some experience — maybe at work, maybe personally, or maybe they own a business — to do a good job managing Mom and Dad’s money.”

Learn more about estate planning.

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