Aging to Perfection
Living wills, long-term care and more to consider
on September 6, 2017
Updated on January 19, 2023
As baby boomers march in droves toward retirement, many of them—and their families—are discovering they need legal help, sometimes for the first time in their lives, in dealing with a variety of issues.
An elder law attorney can advise clients not only on estate planning, but also on how to set up a legal framework that will ensure their wishes are carried out while they’re alive, even if they’re incapacitated. This type of lawyer can also help clients protect their assets if they need nursing home care.
Elder Care Planning
“For most folks, the way they enter a nursing home is after something bad has happened: a fall or an illness that put them in a hospital,” says Scott Solkoff, a board-certified elder law attorney in Delray Beach. “Because they didn’t plan ahead, the family isn’t making decisions about which facility their loved one goes to. The hospital discharge officer decides, and the facility may or may not be appropriate.”
Solkoff says it’s important for older adults to plan for nursing home care—including how it will be financed—though many clients believe they will never need it. “One misconception is [that] going to a nursing home is a choice, but it almost never is,” he says. “People go to nursing homes because they need skilled care.”
Setting Up a Trusted Person for Decision-Making
It’s a constantly evolving area of the law. In 2015, Florida enacted a law that allows people to choose a health care surrogate—someone authorized to make medical, but not financial, decisions for them. The surrogate doesn’t need to be a family member.
“The law allows someone to decide when they want someone else to take over making health care decisions for them—either immediately or when they become incapacitated,” explains Stephanie Schneider, a board-certified elder law attorney in Plantation.
Durable power of attorney—the authority to handle financial matters—can be given to the same person, or someone else.
Without proper planning, family members may find themselves forced into a guardianship—which is handled by the probate court—in which a judge names a legal guardian to handle both legal and financial affairs. This can be costly. “That guardianship is going to stay in place until the person either dies or until they recover enough to take control of their affairs again,” Schneider says. And acting as someone’s legal guardian is not easy.
“They’re going to have to do financial reports and medical reports to the judge,” Schneider says. “It’s not that they’re going to have complete financial access. Plus there’s the expense. An attorney has to continue to represent them in a guardianship.” Schneider also notes that another disadvantage of guardianship is that those records are publicly available. Choosing a surrogate in advance can protect privacy.
Then there’s the matter of choosing an estate representative, sometimes called an executor, to make sure a person’s wishes are followed after death. Ellen Morris, of Elder Law Associates in Boca Raton, says Florida residents need to know that, if their estate representatives live outside the state, they must be direct relatives.
Keep in mind that not every elder law attorney might be right for you.
“Law, like medicine, has areas of specialty,” says Schneider. “Some are focused on estates and trusts, while others may be litigators.”
For more information on this area, see our overview of elder law and estate planning. An experienced elder law attorney can help you plan for your future.