“There isn’t necessarily a definition of elder law that applies to every attorney who practices in the area. Some elder law attorneys also practice estate planning,” – Ann McGee Green, an elder law attorney.
Elder Law and Estate Planning are branches of the same tree but hold different essences altogether. From assisting clients in preparing for disability and minimizing taxes upon their death to facilitating the transfer of their estate to chosen beneficiaries according to the client’s specified conditions, estate planning takes various areas of tasks under its umbrella.
Not only the aforesaid, but the fact that it also entails considerations ranging from asset protection, retirement planning, and planning for the succession of businesses serves as a highlight.
On the other hand, the idea of elder law, though it addresses similar concerns, focuses on the unique challenges faced by an aging population. As individuals age, both their health and legal needs evolve, which is why, under the realm of elder law, attorneys often aid clients in anticipating the potential need for long-term care and developing strategies to finance it without exhausting their savings.
Running on similar lines of thought, the elder law practitioners may also support clients who are already in possession of long-term care and thus, they play a crucial role in assisting individuals with disabilities. Complementing the same, elder law also looks over the aspect of helping wartime Veterans to secure benefits related to receiving care.
1. The Concept of Elder Law
As stated previously, estate planning runs side by side with elder law. This refers to the fact that while the former establishes the framework for fulfilling a client’s wishes regarding their family and assets posthumously, the ambit of elder law drives its focus to address the diverse needs that are required by the elderly population.
From emphasizing asset preservation to securing medical care for clients, elder law circles the essentialities needed during their senior years or in times of incapacity.
On the same lines of thought, it is essential to pinpoint the fact that navigating the challenging path of planning for long-term care, whether in anticipation or immediate need, can not only be tricky but also beneficial.
To qualify for Medicaid or Veteran’s benefits becomes a strategic as well as a confusing process, particularly when the client has possession of their assets in their name. The elder law not only plays an essential role in guiding clients on how to safeguard these assets effectively but also aids them in expeditiously fulfilling the requirements for medical benefits.
The fact that having expertise in Medicaid planning for long-term care serves as a hallmark of many elder law attorneys. As it is known that the concept of Medicaid, being a federal program, had different qualification criteria amongst the states prevailing in the country.
What stands on a pivotal point is the idea that the elder law can bestow upon valuable knowledge and provision for preserving assets, assisting in completing and submitting Medicaid applications, handling the aforesaid hearings or appeals, engaging with Medicaid or nursing home staff, as well as ensuring ongoing requisites for the Medicaid benefits are fulfilled.
Delving further into the topic, when an elderly client faces incapacitation, the aspect of strategic planning takes precedence in order to safeguard their assets, followed by securing essential medical care. The essence that the client must have comprehensive estate planning in effect, which includes documented wishes for such situations, is marked to be crucial.
Complementing the aforesaid, in the event of incapacitation, the existence of the elder law holds a crucial duty in assisting the client’s family so they can execute these wishes optimally.
Running on the aforesaid plane of thought, there are several questions that arise under the ambit of the said context. Inquiries revolving around whether the client requires a special needs trust, the possibility of a conservatorship, as well as how to finance their medical care are some that serve to be of utmost essentiality.
Ensuring that a reliable and competent care network is established also marks a point of concern. An attorney well versed in elder law is not only adept at helping clients address these questions but also aids in providing guidance on the necessity of specific legal instruments like special needs trusts or conservatorships.
Not only the aforesaid, but the fact that they can also offer insights on structuring financial arrangements for medical care as well as craft a robust support system in order to make sure the client receives trustworthy and competent care is another feather on their cap.
Complementing the fact that the elder law deals with matters of estate planning and incapacity, the aforesaid legislation also takes under its umbrella the task of advising clients on a range of issues which circles the arenas relating to senior rights, age discrimination, as well as elder abuse.
The community of senior individuals is unfortunately deemed to be vulnerable to crimes and discriminatory practices, which certainly makes the expertise of an attorney working under the ambit of elder law invaluable while addressing these challenges.
Being targeted for various forms of mistreatment, the senior citizens then rely on the elder law as it is one such legislation that not only deals with battling these issues but also makes it a point to grant certain relaxations for them.
Due to the fact that there is a widespread as well as a growing problem of elder abuse, many states have initiated programs that stand inclusive of specialized crime units, which dedicate their focus solely to supporting seniors in their fight against crime and abuse.
What serves as a highlight is the fact that in this context, an attorney practising under the elder law attorney can not only guide their senior clients in identifying instances of abuse and crime and facilitate reporting but also focus on the idea that the client’s rights are strictly safeguarded throughout the process.
1.1. The Different Types of Elder Law
Serving to be expansive in nature, the field of elder law is known to take under its umbrella a wide range of issues that can impact the well-being of senior individuals. As stated to be inherently broad, the experts working in the field often highlight specific types of elder law that stand to be particularly prominent.
1.1.1. The Estate Planning
Having an estate plan crafted and maintained is crucial at any stage of life, but its significance becomes more significant when an individual approaches the later stages of life. Addressing essential legal documents for seniors, Elder law becomes particularly relevant as it revolves around the concepts of a Will or Trust, health care directive, as well as Power of Attorney.
From discussing the inheritances, and potential tax implications, to comprehending various other aspects that stand to be critical in order to ensure a well-prepared and secure future, the idea of estate planning serves to be brief, essential and valid.
1.1.2. The Medicaid, Disability, and Long-Term Care
In addition to the aforesaid, the very fact that elder law expands its horizons to deal with certain other aspects serves the legislation to be crucial. From dealing with disability benefits and medical insurance to bringing into play long-term care planning, the aforementioned regulation takes into account the specific needs of elderly individuals.
Crafting a comprehensive plan becomes essential when it circles the aspect which deals with making sure the safety and the enhancement of the quality of life for seniors, particularly when they are unable to independently care for themselves is given a thought.
Such aforestated ambits of elder law lie in sync with estate planning, which solely pinpoints the holistic approach that is needed to protect the well-being and upcoming aspects of the life of the seniors.
1.1.3. The Guardianship
It has been categorically observed that, when an individual becomes incapacitated due to an accident or illness, to have an advanced medical directive followed by curating a durable power of attorney in place, can not only empower them to dictate their preferences but also aid in designating someone to make decisions on their behalf through their estate plan.
On the same lines, when an instance pops up where such crucial documents are deemed to be absent, the tables turn. In such circumstances, the responsibility of the same falls on the court, which they are empowered to appoint a guardian or conservator so they act on behalf of the incapacitated individual, which aids in making decisions related to their well-being, finances, as well as any other necessary matters.
Such a process, as aforementioned, states the importance of proactive estate planning so the potential complications can be omitted followed by ensuring that individuals retain control over their affairs even if they are in a debilitated state.
1.1.4. The Elder Abuse
Common as it is, and though extremely disheartening, are the executions of actions that circle the concepts of abuse and mistreatment of elderly individuals. From hacking, financial abuse, and scams, to, regrettably, physical as well as mental abuse, as people age, they can become more vulnerable to such unfortunate scenarios.
The very fact that there are numerous laws in place designed to protect and recover an individual’s assets, as well as to designate certain activities as illegal, serves to be of essentiality. Such aforementioned legal safeguards not only aim to provide a legal remedy and recourse but also bestow protection for elderly individuals who may be targeted for the aforesaid acts of illegality.
1.2. The Purpose of an Elder Law Attorney
Legal matters become significantly prevalent in bringing into play a broad spectrum of end-of-life issues, which range from the concepts of healthcare and insurance to any form of long-term care.
Along the same lines, it is best to engage an elder law attorney, as not only do they hold expertise in the said field but also help deal with these complexities followed by establishing a properly curated plan. It is important to state that when speaking of long-term care planning, an elder law attorney acts as a guide, especially in answering critical questions as mentioned below:
- Where will the senior citizen live?
- Will the senior individual have enough financial resources to sustain their lifestyle?
- How can the elderly safeguard their property from potential claims by others?
- What provisions are bestowed upon that can aid in covering the aged individual’s medical expenses?
Apart from granting knowledge to seniors in the above-mentioned field of questions, an elder law attorney also holds the power to provide valuable assistance in various areas, such as:
- To obtain Social Security benefits
- To secure the Veteran’s benefits
- To aid in Medicaid planning, standing inclusive of the coverage endowed for nursing home or home care costs.
- To cater to the special needs that must be planned for individuals with disabilities categorically
- To address elder abuse concerns followed by pursuing compensation through legal channels
- To craft guardianships or conservatorships that take under its umbrella the ambit of involving a court-appointed individual who makes decisions on behalf of an incapacitated person that stands similar to a power of attorney.
Highlighting the diverse and essential role that elder law plays in supporting the needs and rights of seniors, individuals with disabilities, and their families is what stands as a pivotal point of importance.
2. The Idea of Estate Planning
Centred around preparing the individuals for the inevitable phase of life, which is death, is the main aspect of estate planning. A well-crafted estate plan not only defines the who, what, and when of the distribution of a client’s property after their demise but also functions as a comprehensive roadmap that guides the families when they can no longer seek guidance from the client.
Delving further into the said concept, it is noticed that during the estate planning process, not only do clients put forth their wishes with regard to their property distribution posthumously but also, the attorneys hold a crucial position in employing the most effective strategies to achieve the said desired outcomes.
From curating the last will and testament, revocable living trust, irrevocable trust, special needs trust, and pour-over will to drafting the business formation documents, as well as the asset transfer documents, these are the essential documents that are required to be crafted under the ambit of estate planning.
Not only this, but it stands pivotal to state that the goal circles the arena of creating a robust plan that aligns with the client’s intentions, followed by providing clarity for their loved ones in the aftermath of their passing.
What is essential to pinpoint is the fact that in the absence of a recognized estate plan, the court is empowered to assume the responsibility of determining how the decedent’s property is supposed to be distributed.
The outcome obtained by the aforesaid method can be truly distressing for families as they have relied on informal arrangements without having a proper establishment through formal planning.
From the allocation of the client’s assets, care for their children, provisions for potential disability, and the necessity of trusts, to the strategies that are curated with regard to avoiding probate are all the aspects which are considered pivotal considerations for an estate planning attorney.
On the same lines of thought, to put forth that estate planning is not a one-time event, rather, an ongoing task, serves to be of essentiality. When an individual undergoes significant life changes, bestowing upon them regular updates revolving around acquiring or selling property, making financial investments, welcoming new children or grandchildren, as well as experiencing marriage or divorce.
The aforesaid stand as substantial reasons that prompted the estate planning lawyer to recommend a revisit to the existing plan. The idea of keeping the plan up to date not only makes it a point that it accurately reflects the client’s wishes but also aids them in adapting to the evolving circumstances of their life.
From minimizing estate taxes through the establishment of trusts, designating caretakers for children, and naming executors to identify beneficiaries for assets like IRAs, life insurance, as well as other financial holdings, following and adhering to the primary objectives of estate planning helps in developing a better future plan in case of demise for the individual.
Crafted by the attorneys who specialize in the ambit of estate planning, they are also granted the duty revolving around curating the details such as funeral arrangements, charitable contributions, and the distribution of personal property.
Complementing the same, wills and trusts are also an aspect that falls under the umbrella of tasks of the said attorney, so they keep in mind and emphasize the comprehensive needs of clients.
Running on the same plane of the idea, as part of the estate plan, an attorney practising under the said field of law often drafts a durable power of attorney as well as a medical power of attorney. The aforementioned contracts bestow the authority upon a designated individual to make financial and medical decisions on behalf of the client in the event of dysfunction.
The fact that the client’s family has the authority to file a lawsuit so a judge can grant someone the power to make such decisions in case such aforesaid contexts are deemed absent is an aspect to be highlighted.
Not just the aforesaid, but an estate planning attorney is also likely to draft a living will or medical directive for each client, which outlines their preferences with regard to their life support as well as other medical care in situations where the client is unable to articulate their wants.
The Assets Considered When Planning for an Estate
The main reason for estate planning is to secure the future when an individual faces incapacitation of any kind, hence developing an estate plan is deemed crucial as it revolves around considering all of the assets. The range of assets is subjective and can vary significantly from one individual to another, but there are some common types of assets which are generally focused upon:
- Real Estate: This ambit takes under its umbrella the idea of land and residential properties.
- Personal Property: From clothing, vehicles, books, and jewelry to any other possessions that the individual owns tangible items fall under this arena.
- The Financial Assets: This segment takes into account a variety of holdings such as bank accounts, retirement accounts, life insurance policies, and stocks and bonds.
- Intellectual Properties: Involving patents, trademarks, copyrights, and other intangible creations are the reasons this aspect is deemed crucial to consider.
- The Digital Assets and Other Intangible Property: This section takes into account items like online accounts and cryptocurrencies, as well as any other non-physical possessions with value.
3. The Difference Between Elder Law and Estate Planning
As stated above, both aspects of the law are interlinked. Where elder law takes into consideration legal matters affecting ageing individuals, their caregivers, as well as their broader social circles, on the other hand, estate planning revolves around the formulation of instructions in order to execute an individual’s wishes followed by establishing the legal authorizations, which, though deems applicable to elder law, is not exclusive to it.
It is essential to state that estate planning is a broader concept than compared to elder law as it stands to be relevant to individuals of any age. It focuses on the comprehensive preparation for the management and distribution of one’s assets, regardless of their stage in life.
Stemming from the same lane of thought, elder law and estate planning hold crucial elements separately. Elder law focuses on the various issues faced by senior citizens, such as senior rights, age discrimination, and elder abuse.
Running on parallel lines, estate planning revolves around the curation of guidelines and instructions for when any individual positioned in any stage of life witnesses the wrath of death. In a nutshell, it can be stated that the idea of estate planning applies to all age groups, whereas the concept of elder law is deemed to be restricted to dealing with aged individuals only.