Older adult law covers several legal and practical issues affecting people over 65, their caretakers, friends, and family members. This legal area is also called "elder law."
Some common issues for this age group involve:
- Health care
- End-of-life decisions and care
- Older adult abuse
- Estate planning
- Financial planning
- Care planning
- Guardianship decisions
While older adult law naturally focuses on the needs of older adult citizens, family members and friends also need to be informed.
Older Adult Law Encompasses Many Legal Fields
We face important decisions as we age. How to receive care, where to live, and what's going to happen ultimately are daunting questions. Many of these issues involve crucial legal considerations.
This area of law features many specialized fields. You've likely heard of some of them:
- Criminal law (abuse, fraud, scams, etc.)
- Corporate law (nursing home issues, etc.)
- Family law (guardianships and disputes, etc.)
- Tax law (avoid tax penalties, estate tax, prepare for probate, etc.)
- Social Security and disability (file claims and appeals, etc.)
- Property law (asset protection, managing a property, etc.)
- Estate planning (plan for retirement, prepare advance health care directives, etc.)
Older adult law attorneys are there to offer advice, prepare, and advocate for the interests of their clients. Their knowledge of older adult issues and experience with emotionally sensitive topics also make them reliable sources of advice.
Children of Older Adults: The Need for Planning
Perhaps the two most common concerns for older adults and those caring for them are:
- Estate planning
- What to do if an older adult is unable to take care of themself
These issues can be uncomfortable, but a lack of proper planning can lead to confusion and conflict. It's best to plan for these concerns while the older adult still can.
To take full advantage of public benefits, you may also need Medicare and Medicaid planning and to fully understand the Medicaid program.
Older Adults: Making Plans for Old Age
Many people worry about their lives in retirement, such as:
- Patients with medical conditions can require care
- People combating serious illnesses might need assistance to manage their affairs
- End-of-life issues can overwhelm families
Estate planning is a major part of being prepared. Creating a will or trust to distribute your property after death is recommended.
Estate Planning for Older Adults
One of the oldest areas of law is estate planning and administration. This area of law involves the transfer of a person's property to their intended beneficiaries after death.
This often occurs through probate – an infamously complicated and drawn-out legal affair.
Estate planning can take many forms. Most people who do make plans choose to write a will. Create a DIY living will or last will and testament if you or a loved one does not already have one.
There are other options in estate planning as well. Some people choose to set up a trust to manage their property after death. Alternatively, people who die without an estate plan see their property distributed following applicable state laws. This is known as intestate succession.
Advocates for Older Adults: Family and Professionals
You can hire trained advocates, like an attorney, to ensure your loved one has the proper future planning. For example, nursing home residents have rights that everyone must respect. Sudden healthcare decision-making can involve tough questions of who's empowered to make decisions.
Agencies can wrongfully deny, reduce, or cut off benefits intended for older people. An older adult can be the target of abuse, neglect, and fraud. Families may need to step in and ensure that the rights of older adults are respected.
Care Options for Older Adults
There are several ways for an older adult to give a trusted family member or friend certain care and planning rights.
A power of attorney for health care can help ensure that a close friend or family member makes medical and treatment decisions based on the older adult person's preferences. A less binding option is to create an advanced health care directive.
Deciding which care option is best for an aging loved one is important. Doing so can prevent conflicts, such as disagreements about placing the loved one in an assisted living facility.
An older adult can give power of attorney for financial matters.
For example, if an older adult's relative is a financial professional, it might make sense to give that relative power of attorney over financial decisions. This is helpful in case the older adult becomes incapacitated.
If you or a loved one do not have a power of attorney yet, you can use a DIY form.
Guardianship or Conservatorship
When plans aren't made in advance, courts can step in to appoint guardians and conservators.
This option is known as guardianship (or conservatorship, in some states). Family members can petition a court to appoint a guardian, and they are entrusted with the following:
- Caring for the older adult
- Making decisions in that person's best interests
- Choosing where they live
- Handling finances and care decisions
Guardianship may be the last resort for many. They often involve a court stepping in on behalf of an older adult who can no longer care for themselves.
These options are available to create a legal relationship so that a caregiver can manage an older adult's finances, health care, and/or property.
These options range from being limited in scope to broad. For example, an older adult can assign the right to manage only their finances only to a family member or friend in case of incapacity.
Or, an older adult could designate someone to be their guardian and manage all of their affairs.
Stepping In During Older Adult Self-Neglect
What to do when someone becomes incapable of caring for themselves is a topic fraught with controversy. The Terri Schiavo case is a famous example.
Older adult law is frequently involved in this area because incapacitation due to illness or age most often strikes those over age 65.
Courts are often called on to appoint a guardian for incapacitated or disabled people. The guardian is generally responsible for caring for the ward and handling their affairs.
This includes providing for basic necessities, making medical and care decisions, and managing the ward's financial affairs. A conservator is similar to a guardian but is limited to handling the ward's financial affairs.
Older Adult Rights: The Basics
The federal government and many states have passed laws to protect older adults. For example, under federal law, nursing homes that receive Medicaid or Medicare payments must report cases of possible abuse within specified time frames.
Under federal and some state laws, older adults have a right to:
- Dignity and privacy when residing in nursing homes
- Choose their own physicians
- Have meals that meet religious and dietary needs
- Certain rights when signing a contract
Under the law, caregivers for older adults have certain duties as well. They must give "proper duty of care" and ensure that the older adult's basic needs are met.
Older Adult Justice Act
The federal Older Adult Justice Act protects older adult residents of long-term care facilities. This requires nursing home facility employees to report abuse within a short time frame.
States have passed laws that protect older adults from abuse, neglect, abandonment, and exploitation.
Older Adult Abuse: The Basics
Older adult abuse is a serious problem that appears to be heavily underreported.
Abuse can be physical, emotional, or financial, including neglect and abandonment. Sadly, family members are often the abusers, and abuse can be caused by frustration, a feeling of being overwhelmed by responsibility, and financial pressures.
Each state has protective services for older adults.
Health Care & Social Security Issues
Securing benefits such as Social Security, Medicare, and state-based aid can be critical in old age.
Health care is an important part of older adult law. Applying for and receiving benefits such as Medicare and state-equivalent programs can be important to someone's health, welfare, and financial well-being.
Disputes over medical care, including injuries due to medical malpractice, are a major legal area in their own right and frequently affect older adult patients. Concerns over patients' rights and care in hospitals and nursing homes are also common.
Many older adult people rely on Social Security benefits during retirement. Problems in securing Social Security benefits, transferring benefits to spouses and dependents, or applying for benefits in the first place can require an attorney.
People who are disabled can also apply for Social Security disability benefits. These applications and the appeal of unfavorable decisions from the Social Security Administration are often grouped in with older adult law.
How an Older Adult Law Attorney Can Help
An older adult law specialist can help you or an older adult family member to make long-term care and estate plans. For example, an older adult law attorney can help ensure that any medical treatment and end-of-life decisions are made based on the older adult's preferences. They can also explain the rights and protections the older adult has in your state and help you to report abuse.