What Is Elder Law vs. Estate Planning?

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,” 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. Elder law encompasses many issues of the special needs community as well as the elderly community.”

Legal issues within elder law include:

• Residency options, including independent living, assisted living, long-term care, continuing care, and nursing homes
• Public benefits available to help pay for care, such as Medicare and Medicaid
• Veterans’ benefits
• How to access the benefits you’re entitled to

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 understand how these legal areas may apply to you, 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 a will or living trust.

Wills

A last will and testament, or will, 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. 

Estate Taxes

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. 

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 want to receive if you have a terminal illness.

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

A durable power of attorney (POA), also called a health care proxy or health care power of attorney, 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 
• 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? 

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.” 

Finding an Elder Law Attorney 

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.