How different is elder law from estate planning, really? Estate planning, in part, deals with helping clients plan for disability, minimize taxes at their death, and to help their estate pass to their desired beneficiaries under conditions set by the client. Estate planning can also involve asset protection, retirement planning, and business succession planning.
Elder law involves many of the same issues, but for an aging population. As we age, our needs change – both health and legal needs. For example, in elder law, attorneys often help clients plan for the possibility of needing long-term care and how to pay for it without depleting all of their savings. Elder law can also involve helping clients already receiving long-term care. Helping people with disabilities is also an important area of elder law, as is assisting wartime Veterans in obtaining care-related benefits.
What is estate planning?
Estate planning is a proactive task. It is all about preparing for the inevitable – death. Proper estate plans establish the who, what, and when of what happens to a client’s property after the client’s death. The plan provides a roadmap for families to follow when they can no longer look to the client for guidance.
A client will express his or her desires concerning the distribution of their property after their death, and the attorney will know the best strategies to obtain the desired outcome. This could include drafting one of the following for a client: last will and testament, revocable living trust, irrevocable trust, special needs trust, pour-over will, business formation documents, and documents to transfer assets.
Without a recognized estate plan, the court decides how to distribute the decedent’s property. The results can be devastating to families that have discussed informal arrangements that were not properly established through appropriate planning. Planning for where the client’s money goes, who will care for their children, what happens if they become disabled, whether trusts are in order, and avoiding probate are all important focal points for the estate planning attorney.
Estate planning is an ongoing task. Estate plans should be updated whenever the client experiences noteworthy life changes. Acquiring a rental house, selling an existing home, buying stocks, new children or grandchildren, marriage or divorce are all significant reasons for the estate planning lawyer to recommend revisiting the existing plan.
The estate planning lawyer’s purpose is to minimize estate taxes through trusts, establish caretakers for children, name executors, and identify beneficiaries for IRA’s, life insurance, and other financial assets. Plans also include funeral arrangements, charitable contributions, and personal property distributions. These lawyers commonly create wills and trusts to manage the needs of their clients.
An estate planning attorney will likely draft a durable power of attorney and medical power of attorney for their clients, as a part of their estate plan. These documents give a named person the authority to make medical or financial decisions for the client, should the client become incapacitated. Without these documents in place, a client’s family would have to file a lawsuit against the client in order for a judge to give someone the authority to make these decisions. Finally, an estate planning attorney will likely draft a living will or medical directive for each client. This document states the client’s wishes regarding life support and other medical care in the event the client is incapacitated or otherwise unable to state their wishes.
What is elder law?
Where estate plans lay the groundwork for a client’s desires for their family and their assets after their death, an elder law attorney focuses on the many needs of the senior population. This often includes focusing on preserving assets and obtaining medical care while the client is elderly or incapacitated.
Planning for long-term care, whether in advance of the need for it or when the need arises, is a difficult road to navigate. Qualifying for Medicaid or Veteran’s benefits can be a confusing and strategic process, especially when a client has assets in their name. An elder law attorney can advise a client how to protect these assets in the best manner while qualifying the client for medical benefits as soon as possible. Many elder law attorneys are experts at Medicaid planning for long-term care. Although Medicaid is a federal program, states vary on qualification criteria. An elder law attorney can help a client preserve assets, fill out and submit the Medicaid application, handle any Medicaid hearings or appeals, talk with Medicaid or nursing home employees, and ensure the client continues to qualify for Medicaid.
If an elderly client becomes incapacitated, planning is needed to protect their assets and obtain the necessary medical care. Hopefully the client had the proper estate planning in place and has written documentation of their wishes in the event of incapacitation. Then, the elder law attorney will help the client’s family carry out those wishes in the best manner possible. Does the client require a special needs trust? A conservatorship? How are they going to pay for their medical care? Do they have the proper support network in place to provide trusted and competent care? These are some questions an elder law attorney can help their clients answer.
An elder law attorney will also advise clients on senior rights, age discrimination, elder abuse, and other issues that impact the senior community. Seniors can be targets for crime and discrimination and some will need an elder law attorney to help battle these issues. Many states are recognizing the wide-spread and growing problem of elder abuse and are starting initiatives, such as crime units, to aid seniors in their struggle against crime and abuse. An elder law attorney can assist their senior client in recognizing abuse and crime, reporting it, and making sure their rights are protected.
Expanding Into the Elder Law Realm
Estate planning attorneys write the blueprints for a future event, the passing of his or her client, and help that client protect his or her assets along the way. Elder law attorneys help seniors navigate their changing needs as they age. Many lawyers find that these areas of law often overlap, both in skill and clientele. Because of this, many estate planning attorneys find it useful and beneficial to also offer elder law services. Their existing client-base likely needs elder law services now or in the future. Why not offer more services to existing clientele, with whom the attorney already has a good rapport? It would be advantageous to both the attorney and the client if these additional services were available. Attorneys could increase their workload while the client can stay with the same trusted attorney over their lifespan, as their needs change.
Skills used in estate planning can also be useful in elder law. For example, seniors will need to make sure they have their disability documents in place and have a plan for their assets after they pass. Seniors will have some of the same goals that a traditional estate planning client might have. An estate planning attorney can cross these estate planning skills over into a new area of law, elder law, pathing the way for additional revenue while offering a more comprehensive set of services.
For an estate planning attorney, it would be a practical choice to expand their practice to include specialization in elder law areas. Estate planning clients will develop elder law needs at some point during their lifetime. Why not be ready to satisfy them? Even younger clients can succumb to illness or disability and the skills used in elder law could be helpful for their needs. Estate planning attorneys often find it easy to expand on their skills to include elder law, since there are similarities and overlapping between the two. Expanding to include elder law in an attorney’s practice can mean the difference between getting that additional business or the client being referred to someone else that does.
ElderCounsel provides practical, relevant education focused not just on the law but how to apply it, how to build and grow a profitable elder law practice. Membership also includes a top-notch drafting system with over 100 documents, unmatched support, and a community of like-minded attorneys across the country that are always willing to help.
Contact us and let’s discuss your practice goals and we’ll show you how we can support your success in elder law.
If you're interested in learning more about estate planning or support and documents for estate planning, visit our partners at wealthcounsel.com