What Is Elder Law vs. Estate Planning?
Planning for end-of-life matters
on January 4, 2023
Updated on January 19, 2023
Estate planning and elder law are two distinct but related areas of law that address what happens near the end of a person’s life and after their death. Both areas of law help ensure that an individual’s personal affairs are taken care of and that their loved ones are provided for.
“There isn’t necessarily a definition of elder law that applies to every attorney who practices in the area. Some elder law attorneys also practice estate planning,” says Virginia elder law attorney Ann McGee Green.
Generally speaking, elder law has a broader focus than estate planning. “Estate planning is primarily thinking about where your estate goes when you’re gone,” says Green. “Elder law is broader, [encompassing] many issues of the special needs community as well as the elderly community.” For example:
- What are my options for residence?
- What are the differences between independent living, assisted living, long-term care, continuing care, and nursing homes?
- What public benefits are available to help pay for care?
- What does Medicare offer?
- What does Medicare versus Medicaid pay for?
- How do I get access to these benefits?
- What about veterans’ benefits?
Green started practicing elder law through her earlier work as an estate planning attorney. As previous estate plan clients experienced illness or disability, their estate would be significantly reduced or eliminated through 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 issues in public benefits and care. The two areas of law often work together.
This article will introduce the areas of elder law and estate planning. Once you have an understanding of the two areas, it’s wise to speak with a lawyer who practices in these areas in order to create a strong plan for yourself and your loved ones.
What Is Estate Planning?
An estate plan prepares for what happens to your property after you die. This is accomplished through one of the following:
- Last will and testament. Also called a “will,” this is a core estate planning document that 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.
- Living trust. A living trust is an alternative method of transferring assets to beneficiaries that avoids the probate process. When you create a trust, you’re called the “grantor.” As grantor, you put assets in the trust (through transfer or deed, for example). When you pass away, control of the trust passes to a trustee. The trustee oversees trust administration, including making sure that trust assets are distributed to your beneficiaries. There are different types of trusts for different types of property. Trusts vary in terms of your control over them once they are created. Revocable trusts can be altered after you create them. Irrevocable trusts generally cannot be modified once created. The essential point is that many types of trusts exist for different purposes.
Depending on how large your estate is, it may be subject to state or federal estate taxes. One method for avoiding estate taxes is gifting assets and 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.
An estate plan can also include documents that address end-of-life matters, such as the type of medical care or life support you want to receive if you have a terminal illness. These documents include the following:
- Living will. A living will is a type of advance directive that says what kind of health care you want to receive if you become incapacitated and unable to make medical decisions. It can address issues such as life support, medical operations, and organ donation.
- Durable power of attorney. Also called a health care proxy, a health care power of attorney (POA) is an individual legally authorized 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 health care, estate planning has some overlap with elder law.
What Assets Should Be Considered 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 of assets include:
- Real estate, including land and residences
- Personal property such as clothing, cars, books, jewelry, and other tangible property
- Financial assets, including bank accounts, retirement accounts, life insurance policies, and stocks and bonds
- Intellectual property
- Digital assets and other intangible 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?
Whereas estate planning focuses on what happens to your assets after you die, the area of elder law is more focused on managing assets while an individual is alive.
Additionally, elder law deals with legal issues related to the long-term care and well-being of elderly individuals. From financial concerns to health care-related problems, the purpose of elder law is to ensure that you are taken care of 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, from health care to insurance to 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 with long-term care planning, helping you answer questions such as:
- Where will I live?
- Will I have enough money to live on?
- How do I protect my property from being taken by others?
- How will my medical expenses be covered?
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.”
Questions for an Elder Law Attorney
Many estate planning and elder law attorneys provide free consultations for potential clients or will count consultation fees towards future legal services. These consultations allow you to get legal advice about your situation and consider if you need legal help.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees and billing options?
- What legal services do you provide in estate planning or elder law?
- What estate planning documents do I need?
- What asset protection strategies should I take?
- What are ways to avoid probate?
- Should I appoint a power of attorney? What happens if I don’t?
Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship.
Look for an elder law attorney in the Super Lawyers directory for legal help with issues related to end-of-life planning. Look for an estate planning lawyer to help with planning what happens to an estate after death.