Elder Law and Estate Planning: FAQ

One of the largest areas of law within elder law is estate planning. This article covers some frequently asked questions about elder law and provides helpful links to dig deeper into each topic.

Elder law, formerly referred to as older adult law, is a general term for all the laws that protect older adults or vulnerable adults. These laws and policies are put in place by the federal or state government to help protect their rights.

Legal issues for older adults can happen at nursing homes, assisted living facilities, hospitals, home with loved ones or caregivers, or public spaces. There is no place where elder abuse, or abuse of their legal rights, is acceptable.

What is a will?

A will is a legal document explaining how you want your property distributed after your death. They are administered through probate court to ensure your debts are paid, including taxes, and your assets are allocated to your beneficiaries according to your wishes.

An attorney can help you make a will, or you have the option to DIY a will.

What is a living trust?

A living trust, sometimes called an "inter vivos" trust, is a document covering the administration of your affairs. This document can apply under these circumstances:

• You are living and able to make decisions for yourself
• You are living but disabled or incapable of making decisions on your own
• Upon your death

Assets are placed in the name of the trust. This eliminates the necessity of probate and saves probate fees and costs. The trustee can be:

• Yourself, making it a self-declaration of trust with no fees
• A bank or trust company, which often will charge fees
• An individual third party, which often will charge fees
• An individual family member or trusted friend, which may or may not involve fees

The trustee administers the trust, pays your bills, invests your surplus funds, and liquidates assets when necessary to cover your expenses. After your death, they will distribute your assets to your designated beneficiaries. This happens only after paying your debts, including federal and state taxes, if owed.

What is a living will or healthcare directive?

A living will is a document that lists your medical and end-of-life care decisions. It expresses your desire to have death-delaying procedures provided or withheld.

You can also decide to withdraw them if your attending physician has determined you are suffering from an end-stage medical condition such as a terminal illness, persistent vegetative state, or permanent unconsciousness.

What is a durable power of attorney for health care?

A durable power of attorney for health care is a document that allows you to appoint someone to make health care decisions on your behalf. You, as the principal, can delegate the authority to make medical choices to another person, who is the agent. This is typically a trusted friend or family member.

Your agent will make decisions and act for you regarding your health care. This is necessary if you can no longer make or communicate medical decisions as determined by your healthcare provider.

A healthcare power of attorney may be used instead of, or together with, a living will. Your agent, who does not have to be an attorney, will speak for you and make health decisions according to your specific wishes when you are incapacitated. In some cases, you may need to create a medical power of attorney for an older adult parent or loved one.

What is a durable financial power of attorney?

A durable financial power of attorney is a document that delegates the power to handle your money and your property to another person, often a trusted friend or family member. As your agent, this gives them decision-making authority to act regarding your property and financial decisions. This only applies if you are incapacitated and unable to make them yourself.

Are there any rules for gift-giving?

There are many rules about giving gifts and the taxes that come with them. It's important to understand the annual gift tax exclusion, which lets you give a specific amount to someone without having to pay gift tax. A tax professional can help you stay updated on any changes in tax laws that might impact your gift choices and give you personalized advice based on your situation.

Learn more about estate taxes and any eligibility for tax breaks through FindLaw's page on Estate Tax Law.

What happens if my older adult parent doesn't have a will?

Without a will, states deal with a person's estate according to their own estate and probate laws. Generally speaking, if your parent has a spouse and adult children:

• Their spouse will receive part of the estate, such as 50%
• Their children will receive the remainder

If they don't have a living spouse and/or living adult children, their estate will be divided among their heirs “at law." Each state defines that term.

What information is needed to prepare an estate plan?

There are a lot of questions you should be prepared to answer when creating an estate plan. This is especially true if you are creating it for an older adult parent or someone else.

Who can help me with Medicaid planning for my parent?

The high costs of long-term care can be disruptive to many families. You must consider nursing home care, various Medicaid benefits, medical needs, and nuanced laws about eligibility. Long-term care planning can help you be prepared early on before these actions are necessary.

Can I make medical decisions for my older adult parent?

This will depend on their legal arrangements. It is possible they have life insurance, a living will, health care directive, medical power of attorney, or a power of attorney for health care that had these choices spelled out. These documents can also be called an advance directive.

In other cases, you may follow a legal process to become their conservator or guardian. This lets you make choices for your loved ones if they don't understand their best interests.

What is elder abuse?

Elder abuse refers to any intentional or neglectful act causing harm or serious risk of harm to an older person. There are many types of elder abuse. Elder abuse includes physical, emotional, financial, or sexual abuse, as well as neglect. It is crucial to recognize the signs of elder abuse, such as unexplained injuries, withdrawal, or sudden changes in financial situations. If you suspect elder abuse, reporting it promptly is essential.

What are the signs of elder abuse?

Knowing the signs of elder abuse is really important for the well-being of older adults. Keep an eye out for the following things:

• Unexplained Injuries: Bruises, fractures, or other injuries without a clear reason
• Emotional Changes: Suddenly becoming withdrawn, sad, or anxious
• Financial Irregularities: Unexplained changes in money situations, missing money, or transactions that weren't allowed
• Neglect: Signs that someone isn't getting proper care, like poor hygiene, not enough food, or living in unsafe conditions

If you see any of these signs, it's crucial to investigate more and report any suspected elder abuse right away to make sure older individuals are safe and treated with respect.

How frequent is elder abuse?

It was estimated that one in 10 older adults faces various forms of abuse. It is suspected that the pandemic caused an increase in the abuse or neglect of older adults.

The lack of access, social distancing, or reduced ability to travel to check on the welfare of loved ones likely left many special needs and vulnerable adults in dangerous situations.

Everyone has the right to age with dignity, and older adult abuse should be reported immediately.

Need Help? Speak With an Elder Law Attorney

Elder law attorneys specialize in legal issues affecting older adults, covering areas like Medicaid planning, conservatorships, social security concerns, and protection against elder abuse. They can assist in creating last wills and testaments, trusts, and other legal documents to ensure asset protection. If you find yourself facing legal issues related to elder care, reach out to an elder law attorney near you for legal advice.