Articles

SCOPE OF ELDER LAW

Elder law is a rapidly evolving discipline that confronts the issues that most often affect the elder population.  The focus of elder law is on an individual’s right to make both personal and financial decisions for oneself, as well as the mechanisms for ensuring those decisions are implemented in accordance with the individual’s intentions.  Elder law encompasses everything from traditional methods of estate planning to enforcing an individual’s rights to choose housing and care options for oneself.  Some of the relevant areas, but by no means an exhaustive list, include:

• Long–term care (insurance and financing options)
• Implementing long–term care and financial planning alternatives
• Planning in the event of incapacity
• Surrogate decision–making for personal and financial needs
• Retirement and estate planning
• Tax planning

MYTH: ELDER LAW IS FOR THE ELDERLY

The practice of elder law entails proactive planning for various contingencies, and addressing those contingencies once they arise.  Elder law is somewhat of a misnomer, in that the individuals who stand to benefit the most from planning are often younger than those generally associated with the elder population.  Those individuals who identify their goals and begin to plan at an early age will have the widest range of alternatives available to them.

Certain tools are only effective if employed well in advance of certain medical conditions or the onset of expensive medical care.  As an example, it is too late for an individual to execute a general power of attorney instrument after such individual has become mentally incapacitated.  By not addressing these issues ahead of time, the available alternatives and potential benefits are often greatly diminished.

Although planning early is encouraged, elder law also addresses the time-sensitive legal issues which may arise.  For example, elderly individuals are often motivated to seek legal assistance after a health concern arises, such as an imminent surgery or discovery of a terminal illness, or a change in personal circumstances, such as a death, divorce, or birth in the family.

ELDER LAW IS NOT ESTATE PLANNING

Elder law combines elements of legal counseling, financial planning, and healthcare administration.  While traditional estate planning is primarily concerned with the distribution of one’s assets after death, elder law focuses on balancing an individual’s goals for his or her lifetime with the plan an individual has for the distribution of those assets that remain at the time of death.  Given the ever‑increasing cost of healthcare and the ever–changing alternatives available for financing such healthcare costs, achieving this balance is paramount. 

Elder law specifically addresses conflicts which may exist between the arrangements one has made for his or her own care during life and how one has planned for the disposition of his or her assets upon death.  For example, an individual who has executed a Last Will and Testament (a "Will") may exhaust, during his or her final years of life, a large amount (if not all) of the assets that would otherwise pass under such Will in order to pay for any one or more among assisted living expenses, nursing expenses, and medical expenses, causing the intended beneficiaries under the Will to receive a smaller amount of assets (if anything at all) than were initially intended to pass to such beneficiaries.  By using a combination of trusts, insurance, and inter vivos gifts, an individual may be able to ensure he or she will receive quality care during his or her lifetime and still provide for his or her beneficiaries following death.   

© 2010 GANDERSON LAW, P.C.