Elder law is a field of law dealing with the unique legal issues that affect older adults. Understand how elder law works through an example, what areas of law the field covers, and how to get a lawyer for your legal needs.
What Is Elder Law?
The broad definition of elder law is the specialized field of law that addresses the diverse legal needs of aging populations. It focuses on the legal issues affecting baby boomers and their elderly parents. Lawyers who are versed in these issues are known as elder law attorneys.
How Elder Law Works
Legal issues affecting seniors are governed by complex regulations and laws that vary by state. They’re also multifaceted, often requiring a unique understanding of the personal impacts of aging, which can make a person more physically, financially, and socially vulnerable. Elder law addresses the various life decisions and circumstances that arise during this time of life as well as how estate plans will be executed after your death. Elder law attorneys who focus their legal practice on these issues take a holistic approach when working with seniors and their family members, helping them navigate legal matters in conjunction with a network of professionals including health and social workers and psychologists. Many people erroneously assume that elder law is only a concern for those with complex life situations, such as a disability or special needs, a second marriage, a high-value estate, or financially reckless adult children. Although the field is of particular importance to seniors in such circumstances, it’s vital for all seniors to familiarize themselves with elder law and enlist an attorney when needed in order to protect themselves and their assets from what may befall them in their golden years and beyond. For example, let’s say that your health is waning or you expect it to as you approach your senior years. You can work with an elder law attorney who specializes in disability planning to complete an advance medical directive with a durable power of attorney for health care, a document that allows you to name a health care proxy to make medical decisions on your behalf when you can no longer do so. Doing so can avoid the need for health care providers to later administer treatments or make other decisions about your health that you may not agree with. Not all issues relating to aging require the expertise of an elder law attorney, and hiring one when you don’t need one can come with unnecessary and high costs. For example, interpersonal or health issues may call for a social worker, psychologist, or doctor instead. When in doubt, consult a family member, friend, clergyman, or your physician to help determine the scope of the concern and potential alternatives to a lawyer.
Types of Elder Law
Most elder law attorneys are not versed in all areas of the law, making it important to seek out the right type of elder law attorney when you or your family members need legal assistance. Major areas of elder law include:
- Disability and special needs planning
- Long-term care planning
- Estate planning and settlement
- Guardianship or conservatorship
- Elder abuse1
Disability and Special Needs Planning
This area of elder law focuses on the support systems that the aging put in place to protect themselves in the event that they become physically or mentally incapacitated. There are some key legal documents that you may want to prepare in advance of such a scenario; these include a durable power of attorney which allows you to appoint someone else as a legal agent to make certain financial decisions for you when you can’t, and an advance medical directive including a durable power of attorney for health care and a living will that sets out which treatments you do and don’t want. Without these documents, the court may leave these decisions up to a guardian (discussed below) who may not be of your choosing. In many cases, individuals with disabilities or special needs and their family members will be eligible to receive government benefits (Social Security disability benefits, for example). But you’ll still need to do planning to ensure that the individual qualifies for and will receive adequate assistance for their needs.
Long-Term Care Planning
This type of elder law focuses on the services that seniors often use to live safely when they cannot take care of themselves. These include nursing homes or assisted-living facilities and long-term health insurance, along with the means by which they get these benefits (Medicaid or the Department of Veterans Affairs, for example). Medicaid planning involves repositioning and transferring assets to qualify for Medicaid nursing-home benefits. Veterans benefits concerning elder law encompass providing for the long-term health care needs of veterans of the U.S. military.
Estate Planning and Settlement
Estate planning is the systematic approach to deciding who will receive your property after you die and who will be in charge of making sure your final wishes are carried out. It includes disability planning, as discussed above, as well as planning to avoid probate, minimize estate taxes, and ensure that your beneficiaries are protected from bad decisions and outside influences. A comprehensive estate plan might include the last will, durable power of attorney, an advance medical directive, and if needed, a revocable living trust. Also known as a living trust, a revocable living trust allows you to appoint someone else to make decisions about assets held in a trust. Probate is the court-supervised process for settling a deceased persons estate, and it may or may not be necessary depending on how your assets are titled at the time of your death. If you have a revocable living trust, the estate may be settled without the supervision of a probate court.
Guardianship or Conservatorship
If a person becomes incapacitated and did not put in place durable power of attorney or advance medical directive, a family member, friend, or, in some cases, a stranger, will have to go to court and petition for a guardian or conservator be appointed on behalf of the incapacitated person.3 Guardianship, also referred to as conservatorship in some states, is sometimes referred to as “living probate” as it is the court-supervised process of administering an incapacitated person’s estate. In contrast, if the person took the time to create a disability plan with the help of an estate lawyer versed in guardianship, then he or she would have the right legal documents in place to dictate who will make financial and health care decisions on their behalf.
As people age, they, unfortunately, become more prone to personal or financial abuse. This mistreatment can range from Social Security fraud (for example, a non-spouse family member continues to receive benefits after the person has died) to the outright theft of assets. Financial elder abuse can also occur through the use of a durable power of attorney or by undue influence, such as wrongfully coercing an older adult to give away their assets or change their will or revocable living trust. Such abuse has led to this specialized area of litigation aimed at preserving, and, if needed, recovering, an older person’s assets. Watch out for elder abuse scams that dupe seniors out of their money through fake IRS calls or “gramma scams” involving desperate pleas for money from people pretending to be grandchildren.
How to Get a Lawyer Specializing In Elder Law
The best place to find a lawyer is through the National Academy of Elder Law Attorneys, a non-profit association founded in 1987 whose lawyers are trained and experienced in the nuances of elder law and adhere to a set of what it calls “aspirational standards” that hold them to a high bar of professional conduct. The “Find a Lawyer” page on their website allows you to search for an attorney by name, location, area of practice, or other criteria.