What is Elder Law?
Addressing the Diverse Legal Needs of Our Aging Population
As baby boomers age and their parents live well into their 90s or even over 100, the field of elder law has continued to expand to meet the legal needs of this growing population. But what exactly is elder law, and why do you need to know about it?
Definition of Elder Law
In its broadest sense, elder law is the specialized field of law that addresses the diverse legal needs of aging baby boomers and their elderly parents.
This includes the following legal areas:
- Disability planning, including special needs planning
- Long term care planning, including Medicaid planning and veterans benefits
- Estate planning
- Guardianship and conservatorship
- Estate settlement, including probate and trust administration
- Elder abuse, both personal and financial
Below is an overview of each of these areas of elder law, which, as you can see, are quite diverse. This is why it will be important for you or your family to seek out the right type of elder law attorney when you or they need assistance with an elder law problem.
Disability Planning and Special Needs Planning
Making a plan for the possibility of becoming mentally incapacitated is a must, especially for baby boomers and their elderly parents. Why? Because without a disability plan, you and your assets will end up in a court-supervised guardianship, also called conservatorship in some states, which is discussed in more detail below.
There are several legal documents that you need to have in place to protect you and your property from guardianship or conservatorship, including a Power of Attorney, an Advance Medical Directive and a Living Will. In addition, a Revocable Living Trust can be part of a comprehensive disability plan.
Special needs planning encompasses the legal needs of disabled individuals, including both children and adults. In many cases, these individuals will be eligible to receive government benefits (both state and federal) due to a physical disability and/or mental disability. However, if these individuals are gifted assets or inherit assets, then they may no longer qualify for any government assistance, so it is important to understand that if you want a special needs individual to receive part of your estate, then you will need to do specific planning to ensure that the individual will continue to receive government assistance.
Long Term Care Planning, Medicaid Planning and Veterans Benefits
Unfortunately, many people don't think about planning for their long-term health care needs until a crisis hits. Proactive long-term care planning is the only way to ensure that your health care needs will be met without having to spend all of your assets on your care. Medicaid planning is a subcategory of long term care planning and involves re-positioning and/or transferring assets in order to qualify for Medicaid nursing home benefits. Veterans benefits in relation to elder law encompass providing for the long-term health care needs of veterans of the U.S. armed forces.
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. Estate planning will include disability planning as discussed above as well as planning to avoid probate and minimize estate taxes and ensuring that your beneficiaries are protected from bad decisions, bad marriages, and outside influences.
Guardianship and Conservatorship
When a person becomes mentally incapacitated, who will be able to make the incapacitated person's personal and financial decisions? If the person took the time to make a disability plan, then he or she will have the right legal documents in place and will be able to dictate who will make these decisions. But if the person does not have a disability plan, then a family member, friend, or, in some cases, a complete stranger, will have to go to court and request that a guardian or conservator be appointed on behalf of the incapacitated person.
Guardianship, also referred to as conservatorship in some states, is sometimes to referred to as "living probate" since it is the court-supervised process of administering an incapacitated person's estate.
Estate Settlement - Probate and Trust Administration
Probate is the court-supervised process for settling a deceased person's estate. Probate may or may not be necessary depending on how the deceased person's assets were titled at the time of death. If the deceased person had a Revocable Living Trust, then the trust will need to be settled in a manner similar to probate but without the supervision of a probate court.
Personal and Financial Elder Abuse
As people age, they unfortunately become prone to personal and/or financial abuse. This can range from "granny kidnapping" to outright theft of personal belongings and financial assets. Financial elder abuse can occur through the use of a Durable Power of Attorney or by undue influence, such as wrongfully coercing an elderly person to give away their assets or change their Last Will and Testament or Revocable Living Trust. This has led to a specialized area of litigation aimed at recovering the elderly person's assets.