What is elder law?

Elissa

Elissa Suh

Published July 26, 2019

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KEY TAKEAWAYS

  • Elder law is a legal practice tailored to the needs of senior citizens

  • A big component is finding and affording long-term care, like in a nursing home

  • Elder law attorneys might also be able to help create an estate plan

  • While elder law and estate planning overlap, they are not the same

Elder law is devoted to all matters that might be important to senior citizens. It is a legal field and practice that covers multiple situations — essentially any concerns a person would encounter as they get older. This includes both medical and financial planning, like how an older person might find long-term care and be able to pay for it in the event of disability.

While elder law initially emerged to help seniors better understand Medicaid and qualify for assisted living, it encompasses much more, like issues of guardianship, neglect, and some aspects of estate planning like wills and trusts and powers of attorney. However, keep in mind that elder law and estate planning are two different fields, and an elder law attorney might not always have the same capabilities of an estate planning attorney and vice versa.

In this article:

What does elder law cover?

As you grow older, your needs and concerns will change. You may start thinking about your health and what would happen if you needed to live in a nursing home or receive another form of assistance. You might also wonder how you would pay for these future medical services if your resources are limited and you wanted to leave an inheritance behind. Elder law covers all of these issues, but it’s a large field and not every law firm will cover all of it.

Long-term care

A major concern as we age is long-term care. The majority of Americans will require some sort of assistance in their old age. This includes at-home care for Alzheimers or chronic illness and nursing homes or assisted living should you become disabled or unable to care for yourself.

Nursing homes are very expensive — around $100,000 a year — and the best way to cover the costs are through long-term care insurance. But this too gets unaffordable if you wait until after age 70 to buy it (it’s best to buy most types of insurance as soon as or even before you have an insurable need).

If you require long-term care, an elder law attorney can help you come up with a strategy to find affordable options. One potential option is through Medicaid. The government program covers the costs of a nursing home, but only for Americans with the most need. Elder law lawyers can help you understand the Medicaid rules in your state and assist you in meeting the qualifications.

To get you started, Policygenius has a state-by-state guide to Medicaid.

Government benefits

In addition to Medicaid laws, an elder law attorney knows the ins and outs of Social Security, veterans benefits and Medicare. They can help you apply for and get the most out of these government benefits.

Guardianship

Guardianship isn’t just for minor children. It can also be granted over incapacitated seniors who have trouble caring for themselves or their finances. Depending on the state, guardianship (sometimes called conservatorship) can either be full or limited in power and in either case typically gives the guardian control of most fundamental decisions, including financial and medical ones, of the incapacitated person, called the ward.

The guardian is appointed by the state, and may not always be a family member or friend, since the court might see anyone who knows the ward as having a vested interest or stake in their property and assets. Guardians are legally bound to act in the elderly ward’s best interest, but because they have direct access to the ward/elder’s bank accounts or health records, it’s possible for them to abuse their powers and exploit the ward for financial gain.

While some elderly persons do benefit from having a guardian, others end up subject to abuse and exploitation, and neglect. There have been many cases of the elderly having their savings depleted because of state-appointed guardians.

To make sure someone you trust is in control of your finances and legal decisions if you are incapacitated, it’s important to consider a durable power of attorney and a healthcare proxy. These estate planning documents are a good first defense against potential guardianship.

If you suspect someone you know is the subject of elder abuse, seek an elder law attorney for help.

Estate planning

Estate planning is the preparation for what happens to someone’s assets and belongings after they die. Certainly someone who is growing older will have considered or thought about how to pass their assets down to their heirs. Many people choose to create a will or trust. An elder law attorney might be able to help you create one, or at least discuss your options. However, you might need to seek an attorney specifically dedicated to estate planning. We’ll go into the differences of elder law and estate planning next.

Other areas that elder law covers

  • Age discrimination
  • Nursing home claims and applications
  • Healthcare planning
  • Financial planning, like asset protection
  • Grandparents’ visitation rights
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Estate planning vs elder law

Elder law and estate planning are two separate practices, though they are in close proximity to one another. While estate planning centers on the question of what happens to your money when you die, elder law focuses on what happens to your money while you’re alive — how best to manage your finances when it comes to your health and otherwise.

One common misconception is that because elder law often deals with Medicaid, those who are not of lower-income have no use for it . Another misconception is that an estate planning attorney is only for the wealthy. There are many middle class citizens that ended up alienated by these misconceptions and perhaps ill-prepared in their twilight years.

Depending on your needs, you may need to seek either type of attorney at different points in your life. You might also be able to find an attorney or law firm that specializes in both elder law and estate planning. But don’t make that assumption. These are distinct legal specialties and not all attorneys will be an expert in both fields. Make sure to do your research and ask any potential attorney about their expertise and limitations.

(Policygenius can help you start your research if you’re trying to find an estate planning attorney.)

Features of elder law vs estate law

Elder law features:

  • Protecting or preserving assets
  • Obtaining long-term care in the case of disability or incapacitation
  • Qualifying for government benefits

Estate law features:

  • Creating wills and trusts
  • Planning for specific circumstances like a second marriage or special needs trust
  • Reducing taxes (including estate tax and inheritance tax)
  • Avoiding and understanding probate
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You're creating an estate plan. Make sure life insurance is a part of it.

Policygenius can help you choose a policy that protects your family and fits your budget.

Policygenius’ editorial content is not written by a certified financial planner or advisor. It’s intended for informational purposes only and should not be considered legal, financial, or investment advice. Consult a professional to learn what financial products are right for you.

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