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What is Elder Law?

By Ann Salek

January 27, 2017

   Traditionally, as people aged, their legal concerns were generally limited to planning for their estate when they die.  In other words, who should get what and figure out the easiest way to get them what you want them to have. The practice of Elder Law certainly still involves estate planning, trust and probate.  However, as people are living longer, their legal concerns are no longer limited to “what happens when I die?”  More issues have arisen by the question of “what happens if I don’t die?” 

   Of course, the one surety in life is that you will die.  However, according to data compiled by the Social Security Administration:

      A man reaching age 65 today can expect to live, on average, until age 84.3.

      A woman turning age 65 today can expect to live, on average, until age 86.6.

   And those are just averages. About one out of every four 65-year-olds today will live past age 90, and one out of 10 will live past age 95.  With living longer, comes additional legal issues.

   Elder law attorneys need to advise clients regarding long-term care planning.  This includes financial issues pertaining to how to pay for long-term care and whether lifetime savings can be protected from having to be depleted to pay for long-term care.  Planning discussions include long-term care insurance, privately self-insuring to pay for long-term care, obtaining Medicaid benefits, or obtaining Veterans Aid and Attendance benefits to pay for long-term care.

   Along with the financial aspects of living longer, elder law attorneys need to advise clients regarding the mental capacity aspect of living longer.  What if the client no longer has the mental capacity to make decisions, handle their finances, administer their health care?  These areas involve powers of attorney and potentially guardianships.  

   The Elder Law attorney also needs to be well-versed in dealing with the children or other family members of the elderly.  Oftentimes, the elderly client may not even realize they need legal advice.  The elderly client’s children are often quite involved in this planning process to assist their parents.  However, this can cause considerable issues surrounding who is the client and who is the attorney representing.  This is all part of the practice of Elder Law.

   Elder Law attorneys also get involved in Medicare and other government benefits; abuse, neglect, and exploitation issues.  Another topic that has become important in many Elder Law practices is special needs planning.  This type of planning does not necessarily involve the elderly but rather children and adults with disabilities.  The Elder Law attorney often works with special needs planning because many of the common legal problems of the elderly are shared by younger clients who may be disabled.

   It is important to note that traditional estate planning, trust and probate attorneys are not necessarily well-versed in many issues particular to what has become the practice of Elder Law.  Long term care planning can be very cumbersome and complicated so clients should really search for the attorney with experience in the practice of Elder Law.

Keywords: elder law, probate, trust
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