January 13, 2016
What is Elder Law?
Wikipedia gives the following definition: Elder law denotes the law, regulations, and prevailing good legal practices applicable to a range of issues affecting individuals aged 65 and over. The subject matter of elder law arises from careful legal analysis of the concerns of elders and their caregivers as to planning for foreseeable circumstances (e.g., property or capacity) and dealing with harmful situations (e.g., abuse or neglect).
Some attorneys think elder law is any matter they may handle for an older person. For example, an attorney may say they are practicing elder law because they draft powers of attorney for older clients, or wills for that matter. That is too broad a definition of elder law. Elder law is very specific as to the attorneys who practice in the various subsections of elder law. For example, some attorneys only handle nursing home abuse cases. Some attorneys may only deal with health care advocacy. Attorneys who are Elder law attorneys usually practice in the areas of long‐term care planning, public benefits and special needs. Some Elder law attorneys focus only on Medicaid Planning or Veterans Benefits planning. Elder law is a legal term coined to cover an area of legal practice that places an emphasis on
those issues that affect the growing aging population. It is the only area of law practice that is defined by the clients it serves.
Introduction to Elder Law
Elder law is a broad area of law. It can include any legal issue facing older adults and their families. It includes things like estate planning, probate, guardianship, real estate, nursing home neglect and a dozen other areas of law. In fact, Elder law is such a broad topic that no one lawyer is likely to have expertise in all of the topics. The goal of most elder law attorneys is to know several topics very well and to work with other attorneys who know the others. Here are some common things that elder law attorneys handle and a brief description of the area of law:
Estate Planning
This involves the preparation of documents necessary to pass your estate to your heirs. Typically it involves the preparation of a will or trust agreement. Common goals of an estate plan are to avoid estate tax and probate and to ensure that assets go to the right people.
Probate
Probate is the court system’s method for processing the estate of a person who has died. Probate involves gathering all of the assets of the estate, paying all of the debts and distributing the balance to the heirs. It is a useful process, but it can be expensive and time
consuming. As a result, a common goal of estate planning is to avoid probate altogether, which can often be accomplished through a living trust.
Medicaid Planning
Long‐term nursing home care is expensive and it is not covered by Medicare. If you run out of money, it can sometimes be paid for by Medicaid. In order to qualify, however, you must be almost completely out of money and you cannot give away your money just to qualify. The situation can be more complicated if one partner in a marriage is in good health and the other needs nursing home care. The Medicaid rules for how much money you can protect and the circumstances under which you can do that, are complex. Elder law attorneys are often able to help families to plan how to get the best possible care for seniors.
Durable Powers of Attorney
Durable Powers of Attorney are documents that appoint a person, called an agent, to handle your financial affairs if you are incapacitated. The document gives the agent powers as to what they are permitted or not permitted do. Powers of attorney may be limited or general.
Guardianship
When a person becomes unable to make decisions, the courts will look to their powers of attorney to see who should make decisions for them. If the person has not prepared a power of attorney, or the power of attorney is deficient, the court must appoint someone to handle the finances and they are called a guardian. The best way to avoid guardianship is to prepare comprehensive powers of attorney. Unfortunately, many people never get around to doing this, and guardianship becomes a necessity. Elder law attorneys can assist families and older adults who find themselves in this situation.
Housing Transitions
There are a variety of living arrangements available for the elderly today. They include independent living, senior communities, assisted living, skilled care and a variety of other permutations. What they all have in common is that they involve a transition from a house or apartment. The transition involves many personal, medical, and financial intricacies. Under ideal circumstances, this transition may occur when everybody is healthy and sound. Often, though, the decisions happen in a rush and after dementia or other issues have crept into the picture.
Estate Planning v. Elder Law
Most people are familiar with traditional estate planning. When people think of estate planning they automatically think of writing a will. How many times have you heard someone say that everyone needs a will?
Why does everyone need a will? What are the reasons for writing a will? Most people will say that you need to write a will because if you don't the State will write one for you. The reason most people need a will is to say what happens to their stuff when they die. Traditional estate planning is also concerned about lowering taxes and administrative costs as much as possible after someone dies so that their loved ones may inherit without having to pay unnecessary taxes and probate fees. Usually when someone writes a will, they will also sign a power of attorney and advance health care directive. Sometimes people will use a revocable living trust as the foundation of their estate plan. There are many issues that go into designing your estate plan. However, most traditional estate planning lawyers focus on what will happen once you die. Estate planning is death planning.
What happens if you don't die? How do your clients plan for the possibility of nursing home costs or assisted living costs or the cost of trying to hire people to help them in their home so that you don't have to leave? The answer to these questions is answered by long‐term care planning. That is the difference between estate planning and elder law.