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SCOPE OF ELDER LAW
The elder population is the fastest
growing population in America. The laws and methods of
protection for the elderly are evolving just as quickly as the
needs and demands of the senior population are evolving. As a
result, new challenges and questions arise for health care
providers, financial planners, attorneys, and individuals trying
to keep up with the ever-increasing range of alternatives for
aging Americans. The various avenues for available health care
choices, housing options, and the methods for financing the
aforementioned options are constantly changing.
Elder law is a rapidly evolving
discipline that confronts these issues that eventually will
affect every individual. 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 making certain those
decisions are implemented in accordance with the individual’s
original intent. Two main categories within this emerging
practice area are safeguarding assets and protecting personal
integrity during one’s lifetime. Nevertheless, elder law
encompasses everything from traditional methods of estate
planning to enforcing an individual’s rights to prescribe
housing and care options for oneself or a loved one. Some of the
relevant areas, but by no means an exhaustive list, include:
- Long-term care (insurance and
financing options)
- Asset management alternatives
- Income, estate, and gift tax
consequences of various alternatives
- Medicaid planning
- Planning in the event of
incapacity
- Implementing long-term care
and financial planning alternatives
- Surrogate decision-making for
personal and financial needs
- Retirement and estate 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 are often younger than what comes to mind when hearing the
word “elder”. 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 asset management tools
are only effective if employed well in advance of (i) the onset
of expensive medical care or (ii) certain medical conditions. As
an example, it is too late to execute a general
power-of-attorney once an individual has become mentally
incompetent. Without addressing these issues ahead of time, the
potential benefits available are often greatly diminished, and
in some cases lost completely.
ELDER LAW IS NOT ESTATE
PLANNING
Elder law combines elements of
legal counselling, 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 to pay those costs, achieving this
balance is paramount. For example, an individual who has
executed a Last Will and Testament 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 Last Will and
Testament to pay for any one or more among assisted living
expenses, nursing expenses, and medical expenses, causing the
intended beneficiaries under the Last Will and Testament to
receive nothing. By using a combination of trusts, insurance,
and inter vivos gifts, an individual may be able to give the
intended amount to the beneficiaries without reducing the level
of funding available for personal care.
Furthermore, if the arrangements
one has made for his or her own care during life conflict with
the arrangements one has made for others following his or her
death, one must then ask: which of the decisions will prevail;
to what degree; and is it possible to alter the situation?
Although the answers to these questions depend upon a myriad of
facts, the general scope of planning for and addressing these
concerns is precisely the “big picture” with which the field of
elder law is concerned. An individual who examines his or her
goals through the lens of the current (and potentially
forthcoming) regulatory framework will have a more comprehensive
understanding of those questions which need to be answered now
in order to ensure a more desirable future outcome. |
