What Is Elder Law vs. Estate Planning?

Estate planning and elder law are two related areas of law that address common issues for older people. Estate planning governs how assets and property are handled after someone passes away. Elder law governs end-of-life planning, including healthcare directives, Medicaid planning, and protection from elder abuse.

This article introduces the fields of elder law and estate planning. For personalized help, talk to a local elder law attorney for legal advice.

Understanding Estate Planning and Elder Law Issues

The focus of elder law is generally broader than estate planning. “Estate planning is primarily thinking about where your estate goes when you’re dead. Elder law encompasses many issues relating to older adults as well as the special needs community,” explains Ann McGee Green, an elder law attorney at Anderson, Desimone & Green in Roanoke, Virginia. 

Legal issues within elder law include:

• Residency options, including independent living, assisted living, long-term care, community care, and nursing homes
• Public benefits available to help pay for care, such as Medicare and Medicaid
• Veterans’ benefits and how to access the benefits you’re entitled to
• End-of-life care, including living wills and powers of attorney
• Asset protection and special needs trusts to care for family members

Green started practicing elder law through her earlier work as an estate planning attorney. As previous estate planning clients experienced illness or disability, their estates would be significantly reduced or even eliminated due to medical or personal care expenses.

“Clients would come and say, for example, ‘I’m not going to have an estate since my spouse had a stroke,'” Green says. To assist these clients in their new situation, Green broadened her practice from estate planning to elder law, including public benefits and care. The two areas of law often work together. 

What Is Estate Planning? 

An estate plan prepares for what happens to your property after you die. This is most commonly accomplished through a will or living trust.

A will, or last will and testament, is a core estate planning document. It states your final wishes, names your beneficiaries (people who will inherit your property), and appoints a personal representative (also called an executor) who will guide your estate through probate court when you die. 

A living trust is an alternative to probate that transfers assets to beneficiaries. When you create a trust, you’re called the “grantor.” As the grantor, you transfer assets into the trust. Upon your death, control of the trust passes to a trustee. The trustee oversees trust administration, including the distribution of assets to your beneficiaries.

There are different types of trusts for different types of property. Trusts also vary in terms of your control over them after creation. You can alter revocable trusts after you create them, but you generally can’t modify irrevocable trusts once created.

The essential point is that there are many types of trusts for different purposes, and a lawyer can help you choose the one best suited to your situation.

Estate Tax Planning

Depending on the size of your estate, it may be subject to state or federal estate taxes. One way to avoid estate taxes is to gift assets, thereby reducing the size of your estate. However, there are limits on how much an individual can give before it becomes subject to gift taxes. 

End-of-Life Planning in Your Estate Plan

An estate plan can also include documents that address end-of-life matters, such as the type of medical care or life support you wish to receive if you have a terminal illness.

A living will is an advance healthcare directive that says what kind of healthcare you wish to receive if you become incapacitated and unable to make medical decisions. It can address issues related to life support, medical operations, and organ donation. 

A durable power of attorney (POA), also called a healthcare proxy or healthcare power of attorney, is an instrument that legally authorizes another person to make medical decisions on your behalf if you become incapacitated. There are also financial POAs who are similarly authorized to make decisions related to financial affairs. A POA’s authority to make decisions about your affairs generally ends when you die. 

Since an estate plan can address end-of-life issues such as healthcare, it overlaps with elder law. 

What Assets To Consider When Planning for an Estate? 

When creating an estate plan, you should consider all your assets. Of course, assets vary from one person to another, but some of the main types include: 

• Real estate, including land and residences 
• Personal property such as clothing, cars, books, jewelry, and other tangible assets
• Financial assets, including bank accounts, retirement accounts, life insurance policies, and stocks and bonds
• Digital assets and other intangible property 
• Intellectual property  

While an estate plan can do many things, it ultimately gives you and your surviving family members peace of mind that affairs are in order. It’s wise to speak with an estate planning lawyer as soon as possible about your estate and the creation of a will and other documents. 

What Is Elder Law? 

The area of elder law focuses on managing assets while an individual is alive rather than after they die. Elder law also deals with legal issues related to the long-term care and well-being of elderly individuals.

From financial concerns to healthcare-related problems, the purpose of elder law is to make sure you get the care you need in your old age. 

What Is the Purpose of an Elder Law Attorney? 

A wide range of issues that arise at the end of life involve legal matters, including healthcare, insurance, and long-term care. An elder law attorney can help you with these issues and ensure a plan is in place.

Ultimately, an elder law attorney helps you answer such questions as: Where will I live? Will I have enough money to live on? How do I protect my property? How can I cover my medical expenses? 

Some of the things an elder law attorney can assist with include the following: 

• Obtaining Social Security benefits 
• Veteran’s benefits 
• Medicaid planning, including covering nursing home or home care costs 
• Special needs planning for individuals with disabilities 
• Stopping elder abuse and suing for compensation 
• Creating a guardianship or conservatorship (a court-appointed individual who acts like a power of attorney in making decisions on behalf of an incapacitated individual) 

Green says that in addition to the planning side of elder law, “Some elder law attorneys practice litigation — for example, against nursing homes or on behalf of individuals who have been hurt in regard to care issues.” 

Finding an Elder Law Attorney 

Many people put off planning for long-term care costs and estate planning. However, ignoring these important issues often puts the burden on your loved ones after incapacity or if you pass away. Informed legal planning can help provide for your family and ensure your wishes are carried out as planned.

Look for an elder law attorney in the Super Lawyers directory for legal help with issues related to elder law planning.