What are Elder Law and Special Needs Law? While estate planning focuses primarily on how assets are distributed after death, elder law and special needs planning is broader, focusing on a senior or disabled individual’s finances, autonomy, and healthcare while they are alive. A variety of other practice areas commonly intersect with elder law and special needs, not just estate planning. Domestic relations, personal injury, and worker’s compensation are just a few practice areas that intersect. If these types of cases are not handled properly for a disabled individual, it could have a catastrophic impact on a client’s ability to qualify for government benefits, which for many disabled individuals are needed to help pay for care needs. Some basics that every attorney should know about elder law and special needs: Medicaid Planning and Long-Term Care Planning. Traditional estate plans can easily be derailed by the high cost of nursing home care. Most people do not want to think about what may happen if they or a family member needs extended care. The fact is that most people will require some form of long-term care and most will either be unable to afford it or will completely deplete their assets to pay for that care. There are legal and ethical ways of protecting one’s assets against the cost of care. Further, inheritance or settlements can be lost if the recipient has care needs and is already on or needs to apply for government benefits like Medicaid or Supplemental Security Income (SSI). The Medicaid rules are complex and include a look-back period and asset transfer penalties. But with proper planning some assets can be preserved. Prior to transferring assets to a client or beneficiary that is disabled you should consult an elder law and special needs planning attorney to make sure the transfer of assets will not impact the disabled client’s ability to qualify or continue to qualify for benefits. There are different types of trusts that can be used to protect a disabled individual’s assets, while still qualifying for Medicaid or SSI. It is imperative to use a type of trust best suited for the client and his or her specific situation. Powers of Attorney Clients should appoint trusted agents to manage complex medical and financial decisions if cognitive decline or a disability arises. While Ohio has a statutory financial power of attorney form, this document alone is not sufficient to assist a disabled individual when trying to protect assets or apply for care. For example, if a qualified income trust is needed for an individual to be income eligible for Medicaid, the financial power of attorney needs to give the trusted agent the power to create this type of trust. The statutory form alone does not allow an agent to create this type of trust. Broader powers should be included in the financial power of attorney to allow for Medicaid planning or special needs planning. Creating a durable non-springing power of attorney is another important consideration. Springing powers of attorney can often be difficult to activate and generate delays in their effectiveness when proof of the springing event is required. We often see springing powers of attorney leading to delays in obtaining needed benefits. If you use a springing power of attorney, clearly identify the triggering event and documentation needed to activate the power of attorney. Clients should also have comprehensive healthcare directives, including health care powers of attorney, living wills, and HIPAA releases. While Ohio does not recognize Medical Orders for Life Sustaining Treatment (MOLST) or Physician Orders for Life Sustaining Treatment (POLST), these documents can be helpful for a client to review with his or her trusted agent to spark discussions of what type of medical care the client may want in the future under certain medical situations. For both the financial and health care powers of attorney, it is also important to discuss naming at least two agents. If only one agent is named and something happens to prevent that agent from serving, an incapacitated principal could be left with a court approved guardianship as the only option. If proactively planning by naming multiple agents, then the discussions focus on whether to designate co-agents or successor agents. If a client wants to name co-agents, it is important to use clear language on how to handle decisions if the co-agents do not agree on a financial or medical decision. Diminished Capacity and Planning. A common misconception is that a diagnosis of dementia, Alzheimer’s or some other disease impacting cognitive ability automatically renders the individual incapable of signing legal documents. This may or may not be true. It depends on the disease’s progression and a more detailed analysis of whether the individual has the requisite capacity at the time the documents are signed. The medical definition of incapacity can differ from the legal definition of incapacity. A person with a diagnosed cognitive impairment may still be legally competent to sign the documents. It is important to know the capacity requirement for each document when assessing a client’s ability to execute such legal documents. When working with a client that possesses a capacity issue, it is essential to establish a framework for assessing capacity and documenting capacity in the client’s file in case it is called into question in the future. On February 9, 2026, the American Bar Association updated Model Rule 1.14 to help combat disability bias and misconceptions around “diminished capacity.” The ABA’s Model Rule 1.14 updated by replacing “client with diminished capacity” with “clients with decision-making limitations.” The ABA also removed the phrase “normal client-lawyer relationship” in favor of “ordinary client-lawyer relationship.” The amendments sought to emphasize that a client’s capacity is rarely an “all or nothing” permanent deficit. Limitations are treated as situational, capable of varying over time, and can be supported by appropriate accommodations. If a client has failed to establish a financial or health care power of attorney and now lacks the legal capacity to execute one, then the family may be forced into a guardianship. Guardianship is the most restrictive form of support for an individual. Since guardianship requires probate court intervention, it can be both timely and costly. However, without an adequate power of attorney in place, it may be the only option for a client with decision-making limitations. Veterans Benefits. If a client is a veteran, they may be eligible for veteran benefits in addition to pension or disability compensation benefits they may be receiving. However, the veteran will need to meet specific service eligibility criteria for most of these benefits and the rules differ significantly from the Medicaid eligibility rules. Veteran benefits are governed by the U.S. Department of Veterans Affairs (VA) and the VA has complex eligibility rules for veteran benefits. These criteria include asset and income limitation rules, look-back periods, and asset transfer penalties. Vulnerability and Abuse. Seniors and disabled individuals are highly susceptible to financial exploitation and undue influence. Attorneys are required reporters of elder abuse in Ohio. (See Ohio Rev. Code Ann. § 5101.63) Attorneys should know how to spot the warning signs of abuse, exploitation, or undue influence. They also should integrate safeguards into legal documents they are drafting. Below are some warning signs of financial exploitation and undue influence:
Summary. If you are working with an elderly or disabled client, stop and consider if anything you are doing could impact the client’s assets, income, insurance, or quality of life. If the answer is yes, please do your client and yourself a favor and consult an elder law and special needs planning attorney. This may ensure your client can maintain their autonomy, insurance, assets, and qualify for government benefits they currently need or may need in the future. Ashley Shannon Burke, CELA, CAP. Ashley is certified as a Certified Elder Law Attorney by the OSBA and The National Elder Law Foundation. She is a member of the Council of Advanced Practitioners (CAP) and the Special Needs Alliance (SNA). She regularly advised clients on Medicaid, estate planning for families with disabilities, lifetime gifting and transfer at death, and asset protection.