Elder Care and Special Needs Planning Law

What is Elder Care and Special Needs Planning Law?

Elder Care and Special Needs Planning Law is a distinct legal field which focuses on the unique circumstances and legal issues facing older and disabled persons. Commonly, there are complex elder care and special needs – related legal issues which require specialized attention.

The fact is that not all attorneys will have pursued the high degree of skill, knowledge, training, and experience necessary to artfully deal with the complexity of issues in this practice area. Even fewer attorneys have achieved the status of a North Carolina State Bar certified specialist in Elder Law. In North Carolina, for an attorney to be certified as a specialist in Elder Law, he or she must hold two related, but distinct, certifications:

1. National certification by the National Elder Law Foundation as a Certified Elder Law Attorney (CELA). To become a CELA, an attorney is required to pass an detailed screening process which requires that for the three years immediately prior to application, the attorney handled at least 60 elder law matters and practiced elder law at least 16 hours each week. In addition, the attorney must obtain favorable peer references from other elder law attorneys, attend extra continuing legal education beyond that required by attorneys who are not certified, and pass an examination on a variety of elder law topics. As of April 2020, there were only 20 CELAs in North Carolina.
2. Certification as a Specialist by the North Carolina State Bar Board of Legal Specialization. The benefit of retaining an attorney who is a board-certified specialist in Elder Law is to ensure that he or she is proficient in that specialty practice area. Board certification is an indication that the attorney has concentrated his or her practice in that specialty area. An attorney who is certified as a specialist by the North Carolina State Bar Board of Legal Specialization has satisfied a number of rigorous standards for certification in the attorney’s specialty area based upon objective criteria, including continuing education requirements, devotion of a substantial percentage of the attorney’s practice time to the specialty, confirmation by the attorney’s peers that the attorney has the qualifications to be board certified in the specialty, and passage of an exam in the specialty field. In addition, a board-certified specialist must be recertified by the board every five years, at which time the lawyer must satisfy the continuing education, substantial involvement, and peer review standards for continued certification. As of April 2020, there are only 25 attorneys in North Carolina who are board-certified as specialists in Elder Law.

Before you retain an attorney in the elder and special needs planning practice area, verify that he or she is a CELA and a North Carolina Board Certified Specialist in Elder Law. White & Allen attorney Wyles Johnson is both a CELA and board-certified as a specialist in Elder Law. Wyles and attorney Amanda Owens‘s practice is substantially concentrated in Elder Care and Special Needs Planning Law, in which they focus on issues unique to elderly and disabled persons and advocate for their right to public benefits such as Special Assistance, Medicare, and Medicaid to assist with the cost of assisting living or long term care. Wyles is a member of the Elder Law & Special Needs Section of the North Carolina Bar Association. Wyles serves as a member of the Elder Law Committee of the North Carolina State Bar Board of Legal Specialization. He is a member of the National Academy of Elder Law Attorneys (NAELA), the North Carolina Chapter of NAELA and the Academy of Special Needs Planners.

Our Elder Care and Special Needs Planning Services

• Estate Planning: We work with our firm’s estate planning and tax attorneys to advise and prepare powers of attorney, health care powers of attorney, advance directives for a natural death, and last will and testaments. The documents are tailored to meet our clients’ individual needs.
• Asset Protection: Involves developing strategies designed to preserve assets while qualifying for public assistance to help with the cost of assisted living and long-term care. The rules and law applicable to public assistance to aid with the cost of assisting living and long-term care are exceedingly complex and filled with many moving parts, some of which are interdependent upon others. We advise clients on strategies designed to maximize asset preservation while simultaneously qualifying for public assistance. 
• Trust Planning: Consists of advising and preparing irrevocable living trusts, income-only trusts, and testamentary trusts (one created by a last will and testament).
• Special Needs (disability) Trust Planning: Consists of advising and preparing specialty trusts for persons living with a disability who are either seeking to preserve their continued eligibility for supplemental security income (SSI) and Medicaid benefits or become eligible for those benefits. This usually involves adults whom receive monies which could impair their eligibility for benefits, including those whom receive retroactive Social Security Disability benefits, an inheritance or gift from a family member, or settlement or judgment proceeds from a personal injury lawsuit (including working with White & Allen’s personal injury attorneys to resolve cases). We advise clients of their options to preserve the funds for the disabled person’s benefit while ensuring that public assistance benefits are not reduced or eliminated.
• Fiduciary Litigation: We advise and resolve claims for breach of fiduciary duty against attorneys-in-fact under a power of attorney, trustees and executors. We also advise on strategies to recover assets mismanaged or wrongly taken from a principal by his or her agent or trustee.
• Incompetency/Guardianship Proceedings: These services concern a determination of a person’s incompetence by way of a Superior Court proceeding when an adult is unable to manage his own affairs, or is unable to make important decisions regarding his person or property. Guardianship is a legal relationship by which the Superior Court authorizes one person (the guardian) to be substitute decision maker for another person (the incompetent adult). We advise and assist with the statutory procedure required to resolve these complex issues in a way that is in the incompetent person’s best interest.
• VA Benefits for Wartime Veterans: Our advocacy includes claims for aid and attendance benefits, which provide monthly payments for qualified wartime veterans and their survivors. If you need help with daily living activities (such as transferring, bathing, toileting, dressing, or feeding yourself), care confined to a bed for most of the day because of an illness, or are a resident of an assisted living or long term care facility, you may qualify.