4 minute read

Elder Law & Estate Planning - What You Need to Know

In this comprehensive guide, we’ll touch on the basics of elder law, and how it plays a role in estate planning.

Patrick Hicks

Patrick Hicks, @PatrickHicks

Head of Legal, Trust & Will

If you have an aging loved one in your life, you might be wondering if they have an established estate plan. Talking about their end-of-life planning can be tough, but at the same time, it’s better to have transparent conversations now. 

This gives your family time to understand areas that can be improved upon, and how your loved one can be supported best. Having an understanding of elder law is one way you can help. By understanding elder law, you’ll be able to help your aging loved one strengthen their estate plan where needed.

What is Elder Law?

Elder law is an area of law that deals specifically with issues that affect older, aging adults. 

However, the elder law definition doesn’t just encompass the elderly. FindLaw describes that it can also pertain to the caretakers, friends, and family members of the elder person in question. This means that if you have an aging loved one, or are providing care for an elder individual, you too are affected by elder law. This makes it even more pertinent for you to have at least a basic understanding of it.

Here are some of the most common elder law issues observed by attorneys:

  • Estate and financial planning

  • Decisions regarding guardianship

  • End-of-life planning

  • Health care and caretaking

  • Elder abuse

According to TheSeniorList, the field is quickly growing because laws governing financial, legal, and medical systems are increasingly tricky to navigate. In addition, many of these fields are quickly adapting to technology-based systems. While this may be convenient for digital natives, it can make it cumbersome for older generations who aren’t adept to digital environments. This already creates one potential area in which you could support your aging loved one.

Are There Different Types of Elder Law?

Elder law is very broad because it touches on any issue that can affect an elderly person. However, experts who work in the field cite a few different types of elder law that rise to the forefront. According to HG.org, a law and government information site, elder law focuses on four main areas: 

1. Estate Planning

It’s important to have an estate plan no matter your stage of life, but these issues come more into focus as you approach the end of your life. Elder law touches on legal documents for seniors, such as a Will or Trust, health care directive, and Power of Attorney. Estate planning also includes discussions about inheritances, tax consequences, and so much more. We’ll expand more on elder estate planning shortly.

2. Medicaid, Disability, and Long-term care

Elder law also touches on the needs of elder individuals in terms of disability benefits, medical insurance, and planning for long term care. It’s important to make a plan to ensure that our seniors can live safely, and have the best quality of life possible, especially when they cannot take care of themselves. These also tie in closely with estate planning.

3. Guardianship

What happens when an individual becomes incapacitated due to an accident or an illness? Individuals can empower themselves by putting an advance medical directive and durable power of attorney in place, through their estate plan. However, if these documents are missing, it means that a court will need to appoint a guardian or conservator  on behalf of the incapacitated individual.

4. Elder Abuse

It’s very sad, but the abuse and mistreatment of our elderly is a common occurrence. As people age, they can become more susceptible to hacking, financial abuse, scams, and even worse, physical and mental abuse. There are a number of laws designed to protect and recover an individual’s assets, and to mark certain activities as illegal. Read more on how to prevent elder abuse with estate planning.

What is Elder Estate Planning?

Elder estate planning is the specialized area of planning an estate for an aging adult. As we touched on earlier, one of the top areas of elder law pertains to planning an estate. You might have also noticed that the other pertinent areas of elder law were also closely interlinked with estate planning. This shows just how important it is to put a proper estate plan in place. 

Let’s start with the basics of estate planning, which is signing a Trust or Will into effect. These are two types of legal documents that designate how you’d want your property to be passed when you pass away. In some cases, you can arrange for property to be distributed to your loved ones during your lifetime as well. You can also use these documents to express certain wishes, such as what you’d like the end of your life to look like, and instructions for your remains and celebration of life. (Check out our full end of life planning guide here.) 

However, estate planning doesn’t stop there. It’s a powerful process that helps you protect yourself as well as your loved ones during challenging times. As we touched on earlier, there are certain mechanisms you can put into place for your long-term care. For example, you can be proactive and purchase insurance policies and make financial arrangements for your senior living, such as a home caretaker or assisted living facility. You can use your estate plan to make these wishes known to your loved ones as well. In the case you become incapacitated, your loved ones will know exactly what you would have wanted. This helps relieve stress and burden during a time that can be challenging for everyone.

Last but not least, your Advance Directive and Durable Power of Attorney are also important documents to include in your estate plan. The Advance Directive, or Healthcare Directive, is a document you can use to make sure that your wishes regarding medical care are known. That way, if there’s a time when you can’t make your own decisions, your medical team and family will know exactly what to do. Similarly, you can implement a Durable Power of Attorney to appoint a trusted individual to act on your behalf. This type of POA is called “durable” because that individual can retain their agency even if you were to become incapacitated. 

What is the Difference Between Elder Law and Estate Planning? 

Although elder law and estate planning are interrelated, they are not the same thing. Elder law pertains to any legal issues that affect aging adults, their caretakers, and their friends and family. Estate planning is the process of providing instructions to carry out our wishes and providing legal authorizations where necessary. Estate planning certainly falls into elder law, but they are not mutually exclusive. Estate planning is applicable to anyone, regardless of age.

Create an Estate Plan Today

You might have been surprised to learn that elder law doesn’t strictly pertain to the elderly. These laws are also designed to help protect their loved ones and their caretakers. Understanding elder law is an important aspect of knowing the rights of your aging loved one, but your own rights as well. We hope that you picked up some valuable tips today on how to leverage elder law to help strengthen your loved one’s estate plan.

If you’d like some more resources on how to get started on the estate planning process, whether it be for yourself or someone you love, click here.

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