What is Elder Law?
Author: Amie Clark, The Senior List
With an increasingly aging population, and financial and medical systems that seem to get more confusing every year, it can be difficult to make sense of getting older. Luckily, there’s a growing field to address this concern: elder law. While not a specific branch of law in itself, elder law contains a loose affiliation of experts across multiple fields of law dedicated to understanding the issues facing seniors and helping them navigate the complicated systems surrounding aging.
In this article, we’re going to discuss some of the touchstones of what elder law entails, including some of the financial components of the field, as well as some of the healthcare concerns addressed by elder law professionals. Finally, we’ll take a look at how to choose the right elder law practitioner for your needs.
How Elder Law Helps Navigate Home Health Care
It really can’t be understated how significant home health care is and will continue to be. With an estimated 10,000 Americans turning 65 every day, the demand in healthcare-related jobs is set to increase by 18 percent through 2026. The demand for home healthcare workers, however, is set to outpace that growth at 41 percent in an attempt to keep up with the number of older adults wishing to stay in their homes as they age.
Any person of any working age can tell you, figuring out the American healthcare labyrinth is frustrating at best. As we age, the options available are even more complicated. While some older adults—especially those in better physical and mental health—can rely on family members or other caregivers to provide periodic check-ins and help with the day-to-day, those with more pressing medical concerns may require near-constant attention.
Many older adults pay for in-home care out of pocket, which can be pricey, though it is the least complicated way to get care because it doesn’t rely on any bureaucratic programs that require enrollments or navigating confusing online portals. Consulting with a financial planner well-versed in elder law, especially early on, can save a lot of headaches down the road.
For example, older adults can buy long-term care insurance, which can cover care later in life, though it can also be expensive, clocking in at nearly $4,000 per year. Additionally, life insurance policies can be amended with a rider to help finance long-term, in-home care, and beginning to pay monthly for those plans early on (even before retirement) can help ameliorate some of the pressure of paying for care later in life.
Of course, there are government programs that can help older adults receive home care, notably Medicare, Medicaid, PACE, and healthcare options available through the Department of Veterans Affairs (for service members), as well as supplemental healthcare plans. Figuring out which of these programs work best with your circumstances and understanding which benefits you could be entitled to are all motivations to consult with an elder law professional, especially one with a focus on medical care. These programs are complicated, and enlisting the help of someone who knows the ins and outs can be a huge help in getting the care you’re entitled to.
Elder Law and Estate Planning
For those of us with the benefit of having savings and assets through old age, what happens to it when we pass can be a source of stress. One of the key components of elder law is financial and estate planning, which can help give peace of mind in knowing that both you and your loved ones will be taken care of.
The differentiation point between an elder law approach to estate planning and the traditional will or trust process is that elder law professionals take a more holistic approach to the process. A good estate attorney may do all they can to shield inheritance from taxes to leave your loved ones with as many assets as possible, but they may fail to consider your particular needs in aging.
With an elder law professional, not only will they look at the unique circumstances with regards to assets and inheritance in drawing up a will or creating trusts, but they can help navigate what your particular needs may be with regards to long-term care or medical costs down the road. Generally speaking, experts in elder law are well versed in all aspects of the concerns of aging, and will empathetically address your concerns to help create a plan for while you’re still here, as well as what happens to your assets when you’re not.
Elder law professionals will also help determine the best course of action with respect to guardianship and powers of attorney, which can be additional sticking points in the aging process.
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Elder Law and Guardianship, Conservatorship, and Financial Administration
One of the understated aspects of elder law is understanding the complexities of family dynamics. When enlisting the help of an elder law professional, one of their key objectives will be fully getting to know the ins and outs of your family. Some of the common questions and concerns will be if you have children, where they live, what their relationship to one another is, what their professions are, if they have spouses, if you are married, or if you have previous marriages. Some of these questions can be tough or seem invasive, but they’re all a means of determining who is working in your best interest and who you trust to be there for you down the road.
Finding the answers to these questions is a way that elder law professionals help determine guardianship and conservatorship. If you are unable to make medical decisions for yourself, then someone close to you—ideally one of your children or a close family member—can be appointed as a guardian who can make medical decisions on your behalf. The process of becoming a guardian can be complicated and have various outcomes. For example, if an older adult can be trusted to make some decisions for themselves but not all, limited guardianship can be granted. Oftentimes these arrangements require the consultation of medical professionals supplied to the court. If a loved one is given full guardianship, they become the guardian of their ward and hold many of the same responsibilities to their ward that a parent would to a young child.
Additionally, as we’ve all seen, older adults can be taken advantage of financially, and it’s always a devastating experience. Conservatorship is much like guardianship, but applies more strictly to financial matters. If an older adult becomes mentally or physically incapacitated and can no longer handle their finances, a conservatorship can be granted in a similar way to guardianship and allow a trusted loved one to control bank accounts and other income streams for their ward to ensure that bills are paid and they’re well cared for.
The process of achieving guardianship or conservatorship can be complicated to navigate, and elder law professionals can provide the expertise needed to identify who would be best to take on these responsibilities in the best interest of an older adult.
What is Power of Attorney?
Power of attorney is an important tool in any elder law expert’s kit, and it provides many of the same protections as guardianship or conservatorship but doesn’t require the same sacrifice of autonomy as the latter two designations. A power of attorney allows a family member or loved one the ability to perform financial or medical transactions on behalf of an older adult if they’re incapacitated, but i5 doesn’t require the older adult to entirely turn over their decision making completely.
There are also different designations of power of attorney. A durable power of attorney is what many think of when the term gets thrown around, meaning it allows for an “attorney-in-fact,” or an “agent,” to act on behalf of you, the “principal” in all legal and financial affairs. A non-durable or limited power of attorney can limit those powers to a specific document or act—like signing checks, for example—and doesn’t extend to full authority in legal matters.
There can also be a “springing” power of attorney, meaning the rights of a durable power of attorney don’t lock into effect until certain requirements are met, like a specific medical diagnosis, for example. Experts in elder law can help both principals and agents determine which type of power of attorney makes the most sense for your circumstances.
Elder Law and the Probate Process
When a person passes, even if all the I’s are dotted and T’s are crossed on wills, there are still more legal affairs that need to be tended to; this is the probate process.
Since banks aren’t legal experts when it comes to estate planning, they don’t just turn over access to the bank account of the deceased even if a loved one or family member has been named in a will as a fiduciary and presents a death certificate. The probate court begins with the inheritor filing a petition, then moves on to weathering any challenges to the estate from other potential inheritors, and ends with the final distribution of assets as dictated by the will of the deceased.
Probate courts can be expensive and messy processes, and early planning with an experienced elder law professional can not only soften the blow to make the process go as easily as possible before an older adult passes, but it also can help see an entire family through the courts to guarantee that the deceased party’s wishes are fulfilled.
Finding the Right Elder Law Professional
One important thing to remember when seeking the counsel of an elder law attorney is that it’s never too early. Getting your ducks in a row even before retirement can save years of headache down the road. Finding an elder law professional can be tough because the position relies on trust; as a result, it’s best to start with people you already trust.
Reaching out to current financial planners, friends that may have enlisted the services of an elder law attorney, medical professionals, or members of social clubs you belong to can be a big help here. Word of mouth of a good reputation can be enough for you to place your trust in an elder law attorney.
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