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What’s Elder Law and Do I Need It?

McNair Dallas Law

Attorney John McNair

Why Elder Law Is Necessary? In two words: baby boomers.

The aging U.S. populations has created a need for lawyers trained to serve clients with the distinct needs of seniors according to Yahoo News in its recent article entitled “What Is Elder Law?”.

The National Elder Law Foundation defines elder law as “the legal practice of counseling and representing older persons, persons with special needs, and their representatives about the legal aspects of health and long-term care planning, public benefits, surrogate decision-making, legal capacity, the conservation, disposition and administration of estates and the implementation of their decisions concerning such matters, giving due consideration to the applicable tax consequences of the action, or the need for more sophisticated tax expertise.”

The goal of elder law is to ensure that the client’s wishes are honored. It also seeks to protect an aging adults and individuals with disabilities from abuse, neglect and any illegal or unethical violation of their plans and preferences.

Baby boomers, the largest generation in history, have entered retirement age in recent years.  Roughly 17% of the country is now over the age of 65. The Census estimates that about one out of every five Americans will be seniors by 2040.

Today’s asset management concerns are much sophisticated and consequential than those of the past. Medical care has not only managed to extend life and physical ability but has itself also grown more sophisticated. Let’s look at some of the most common elder law topics:

Estate Planning. This is an area of law that governs how to manage your assets after death. The term “estate” refers to all of your assets and debts, once you have passed. When a person dies, their estate is everything they own and owe. The estate’s debts are then paid from its assets and anything remaining is distributed among your heirs.

Guardianship & less restrictive alternatives. A person may become temporarily or permanently incapacitated at any time.  Incapacity is legally defined as when an individual is either physically unable to express their wishes (such as being unconscious) or mentally unable to understand the nature and quality of their actions.  If a physician and the court agree that a person cannot take care of themselves, a third party may be placed in charge of their affairs. This is known as a conservatorship or guardianship. In most cases, the guardian will have broad authority over the adult’s financial, medical and personal life.

Advance Directives.  The need to pursue guardianship can often be avoided by careful planning and appointment of Agents under powers of attorney.  This power can be limited, such as assigning your accountant the authority to file your taxes on your behalf. It can also be very broad, such as assigning a family member the authority to make medical decisions on your behalf while you are unconscious. A power of attorney can also allow a trusted agent to purchase and sell property, sign contracts and other tasks on your behalf.  A living will or directive to physicians allows you to put your wishes for aging and end-of-life care into writing.

Government programs. At age 65 most people in the U.S. enroll in Traditional Medicare or a Medicare Advantage Plan.  If someone becomes disabled before age 65, they may also be entitled to Medicare health insurance.  Medicaid is a health insurance program for individuals with medical needs and very low income and assets administered jointly by the federal and state government.  Many people who need long-term care in a nursing facility use Medicaid to cover the cost of their care.  Another program that helps offset the cost of long-term care is the VA Pension program (also called Aid & Attendance).  For seniors, understanding how these programs work is critical, and elder law attorneys can help with qualification and application.

Healthcare. As we get older, health care is an increasingly important part of our financial and personal life. Elder law can entail helping a senior understand their rights and responsibilities when it comes to healthcare, such as long-term care planning and transitioning to a long-term care facility.

If you are over the age of 50, and/or have a family member with special needs or disabilities, it may be wise to work with an experienced elder law attorney.  The National Elder Law Foundation provides credentialling for attorneys who practice in this area, so look for a Certified Elder Law Attorney.

Reference: Yahoo News (Jan. 26, 2020) “What Is Elder Law?”

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