What Is Elder Law and How Does It Work?

Elder law is a specialist subject of law that deals with the legal issues of the elderly. It focuses on the legal challenges that seniors and their elderly parents face. "Elder law attorneys" are lawyers who specialize in these matters. Assume that your health is deteriorating or that you expect it to deteriorate as you become older. You can complete an advance medical directive with a durable power of attorney for healthcare with the help of an elder law attorney who specializes in disability planning. This is a legal document that permits you to appoint a healthcare proxy to make medical choices on your behalf if you cannot do so yourself. This type of legal planning can keep you out of a position where your healthcare providers are forced to choose treatments or make other health decisions that you disagree with.

How Elder Law Works

Senior legal difficulties are governed by complicated regulations and laws that differ by state. They frequently necessitate a particular understanding of the personal effects of aging, which can put you or your loved ones in a vulnerable physical, financial, and social position. Elder law is concerned with the decisions and circumstances that arise later in life. It also covers how your estate plan will be carried out once you pass away. When working with seniors and their family members, elder law attorneys specializing in these matters use a holistic approach. These attorneys collaborate with a network of care specialists, including your health team, social workers, and psychologists, to help you manage legal concerns. Many individuals believe that elder law is only relevant if you have complicated life circumstances, such as a disability or special needs, a second marriage, a large estate, or financially irresponsible adult children. Elder law is crucial for persons who have these issues, but it is also necessary for all seniors to learn about it. In order to protect yourself and your assets in your elderly years and beyond, you need to be prepared to engage an attorney.

Alternatives to an Elder Law Attorney

Not every situation with aging necessitates the assistance of an elder law attorney. Interpersonal or physical concerns, for example, may necessitate the services of a social worker, psychologist, or doctor. Hiring one when you don't need one can be costly and useless. If in doubt, seek advice from a family member, friend, church person, and your health care physician. They can assist you in determining the magnitude of your problem and determining whether you require legal assistance. Suppose you're caring for an older relative in an assisted living facility. In that case, the staff may be able to refer you to resources or experts who may help you discover the correct kind of assistance for your needs.

Types of Elder Law

The majority of elder law practitioners do not practice in all areas of law. When you or a family member requires legal aid, it's critical to find the correct professional. The following are some of the most important aspects of elder law:

Disability and special needs planning
Long-term care planning
Estate planning and settlement
Guardianship or conservatorship
Elder abuse

Disability and Special Needs Planning

This branch of elder law focuses on the support systems that the elderly put in place to safeguard themselves in the event of physical or mental incapacitation. You may wish to prepare some crucial legal documents ahead of time in case something like this happens. These are some of them:

A durable power of attorney appoints someone to act as your legal agent and make financial choices for you if you are unable to do so.
An advance medical directive, which includes a durable power of attorney for healthcare, states your healthcare desires if you become incapacitated.
A living will specify which therapies you want and which you don't.

Without these documents, the court may delegate these choices to a guardian (described below), who may or may not be your preferred choice. Individuals with impairments or particular needs and their family members will be eligible for government benefits in many circumstances (Social Security disability benefits, for example). However, you'll need to plan ahead to ensure that the person qualifies for and receives appropriate assistance for their needs. This branch of elder law focuses on the services that elders rely on to live safely when they cannot do so on their own. Nursing homes or assisted living facilities and long-term health insurance are among them, as are the methods by which they obtain these benefits (Medicaid or the Department of Veterans Affairs, for example). Part of Medicaid planning is repositioning and transferring assets to qualify for Medicaid nursing home benefits. Veterans' elder law benefits include meeting the long-term healthcare needs of veterans of the United States military.

Estate Planning and Settlement

Estate planning is the process of determining who will inherit your property when you die and who will be responsible for carrying out your ultimate wishes. It includes planning for disability, as mentioned above, as well as planning to:

Avoid probate
Minimize estate taxes
Protect your beneficiaries from unwise decisions and influences from the outside world.

The last will and testament, a durable power of attorney, an advance medical directive, and, if necessary, a revocable living trust are all part of a comprehensive estate plan. A revocable living trust, sometimes known as a "living trust," permits you to choose someone else to make decisions about trust assets. The court-supervised process of settling a deceased person's estate is probated. Depending on how your assets are titled at your death, it may or may not be necessary. If you have a revocable living trust, you can settle your estate without probate court.

Guardianship or Conservatorship

Suppose a person becomes incapable and does not have a durable power of attorney or an advance medical directive in place, a family member, a friend, or some situations. In that case, a stranger will have to petition the court to appoint a guardian or conservator on their behalf. In some states, guardianship, sometimes known as "conservatorship," is the court-supervised process of administering an incompetent person's inheritance and is frequently referred to as "living probate." A guardian is usually in charge of making daily care decisions for someone, such as medical decisions. A conservator is in charge of making financial choices. Depending on the state, these duties may be filled by the same person or by two distinct people. By contrast, if the person took the time to construct a disability plan with the help of a guardianship attorney, he or she would have the legal documentation in place to specify who will make financial and healthcare decisions on their behalf.

Elder Abuse

Unfortunately, as people get older, they become more vulnerable to financial or personal exploitation. This behavior can range from Social Security fraud (for example, a non-spouse family member receiving benefits after the person has died) to blatant asset theft. Financial elder abuse can also occur when a durable power of attorney is used or when undue influence is used. Someone may, for example, improperly force an elderly person into giving away their assets or changing their will, or revocable living trust. This particular area of litigation aims to preserve and, if necessary, retrieve an older person's assets due to such abuse. Keep an eye out for elder abuse schemes that involve phony IRS calls or other "gramma scams" to defraud the elderly. People posing as grandchildren generally make urgent demands for money in these frauds.

How to Get a Lawyer Who Specializes in Elder Law

The National Academy of Elder Law Attorneys is one place to look for a lawyer (NAELA). In 1987, this non-profit organization was established. Its lawyers are educated and skilled in the complexities of elder law, and they follow a set of "aspirational norms" that hold them to a high level of professional conduct. You can search for an attorney by name, location, practice area, or other criteria on its website's "Find a Lawyer" page.

Key Takeaways

Elder law is a branch of law that deals with legal issues that impact the elderly.
Disability and special needs planning, long-term care planning, estate planning and settlement, guardianship or conservatorship, and elder abuse are all major elder law topics.
The NAELA can help you find elder law attorneys.