Definition and Example Elder Law

Elder law is the specialized field of law that addresses the diverse legal needs of aging populations. It focuses on the legal issues affecting senior citizens and their elderly parents. Lawyers who are versed in these issues are known as” elder law attorney’s”

Suppose 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 advanced medical directive  with a durable power of attorney for healthcare. That is a document that allows you to name a healthcare proxy to make medical decisions on your behalf when you can no longer do so. That kind of legal planning can avoid putting you in a situation where your healthcare providers have to choose treatments or make other decisions about your health that you might not agree with.

How Elder Law Works

Legal issues that impact seniors are governed by complex regulations and laws that vary by state. They often require a unique understanding of the personal impacts of aging, which can make you or your loved ones more physically, financially, and socially vulnerable. Elder law addresses the various decisions and circumstances that come up later in life. It also deals with how your estate plan will be executed after your death.

Elder law attorneys who focus their legal practices on these issues take a holistic approach when working with seniors and their family members. These attorneys help you navigate legal matters while also working with a network of care professionals, such as your health team and social workers and psychologists.

Many people think elder law is only a concern if you have complex life situations, such as a disability or special needs, a second marriage, a high-value estate, or financially reckless adult children. Elder law is important for people with these concerns, but it’s also vital for all seniors to become familiar with elder law. You should be ready to hire an attorney in order to protect yourself and your assets in your golden years and beyond.

Alternatives to an Elder Law Attorney

Not all issues relating to aging require the expertise of an elder law attorney. 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, or clergy member, or your primary care doctor. They can help you determine the scope of the concern and decide whether you need a lawyer. If you are caring for an elderly relative in an assisted living facility, the staff there may be able to recommend resources or experts who can help you find the right kind of help for your situation.

Types of Elder Law

Most elder law attorneys don’t specialize in all areas of the law. It’s important to seek out the right expert 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 appoints someone as a legal agent to make certain financial decisions for you when you can’t.
• An advance medical directive outlines your healthcare wishes in case you become incapacitated, including a durable power of attorney for healthcare.
• A living will  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). You’ll still need to do some planning to ensure that the individual qualifies for, and will receive, adequate assistance for their needs, though.

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. They 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 healthcare needs of veterans of the U.S. military.

Estate Planning and Settlement

Estate planning is the process of 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 Fees
• Protect your beneficiaries from bad decisions and outside influences

A comprehensive estate plan might include the last will, a 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. 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.2

Guardianship or Conservatorship

If a person becomes incapacitated and did not put in place a durable power of attorney or advance medical directive, then a family member, a friend, or, in some cases, a stranger will have to go to court and petition for a guardian or conservator to be appointed on behalf of them.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.

By contrast, if the person took the time to create a disability plan with the help of an estate lawyer who is versed in guardianship, then he or she would have the right legal documents in place to dictate who will make financial and healthcare decisions on their behalf.

Elder Abuse

Unfortunately, as people age, they become more prone to personal or financial abuse. This misconduct 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. For example, someone may wrongfully coerce an older adult to give away their assets or to 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.

How to Get a Lawyer Who Specializes in Elder Law

One way to find a lawyer is through the National Academy of Elder Law Attorneys (NAELA). This non-profit association was founded in 1987. Its 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 standard of professional conduct.

Key Takeaways