Elder Law is a specialized field of law that deals with the numerous legal issues faced by the fastest growing segment of the U.S. population, the elderly.
The legal term elder law denotes a wide variety of state and federal laws and regulations that are designed to help protect the elderly. These laws and regulations apply to anyone who is, knows, or associates with someone who is elderly, which amounts to practically everyone.
When it comes to planning for Medicare or Medicaid, the earlier you begin the better. Oftentimes people do not put their plans into motion early enough and find that they are unable to qualify for government assistance without a substantial sacrifice of their personal finances. This outcome can negatively impact not just the individual, but the loved ones as well.
Many of the harsh consequences that result from seeking government assistance through Medicare or Medicaid can be alleviated with careful legal planning.
Examples of Elder Law Practice
The term estate planning can encompass a number of different legal instruments and concepts. Estate planning is an ongoing process and should, ideally, be begun early in life. This is because estate planning encompasses a wide variety of issues that are especially important to seniors, such as: determining legal representation, choosing estate beneficiaries, planning for assisted living needs, and establishing protocol following the death or incapacitation of a senior.
The failure to plan for considerations such as these can lead to delay and confusion among loved ones during the administration of the estate; as well as higher costs and fees which can deplete estate assets, such as those associated with the probate process and estate taxes.
A basic estate plan may utilize a variety of legal instruments, including: the last will and testament, revocable living trust, durable power of attorney, designation of healthcare surrogate, and living will. However, more complicated estate planning may be necessary, depending on the circumstances of the individual.
As the life of a senior progresses and their wishes change, the estate plan should be adjusted to accomplish these new goals.
Long Term Care Planning
Planning for long term care is an important subset of estate planning for the senior citizen. The Florida Medicaid provisions have strict guidelines that must be met in order to achieve government assistance with the payment of nursing home expenses.
With the monthly cost of nursing home care continuing to climb exponentially, proper planning to satisfy these guidelines is essential. For example, seniors seeking government payment of nursing home expenses under Florida’s Institutional Care Program must not have more than $2,000 in “countable resources” or more than $2,022 of income per month. Satisfying these limits can be difficult since it is not merely a matter of giving away assets or reducing income, but qualifying in a manner that is acceptable under the law.
With proper legal planning, the senior may receive long term nursing home care while still providing assistance for their loved ones and without leaving their estate indigent. Conversely, improper planning and reckless actions can hinder the application process and cause problems for the senior and their family.
Tax planning is another area of law that, while necessary for everyone, is especially important for seniors. For example, proper tax planning can often reduce or eliminate estate taxes, which currently are set at 35% (and could reach as high as 55% by 2013) and which are more likely to affect seniors who have had a lifetime to accumulate significant wealth.
Additionally, seniors are more likely to receive distributions from income sources such as retirement accounts, pension plans, or annuity contracts, which are often replete with complicated tax consequences.
Finally, there is the tax strategy associated with determining which assets to transfer during one’s lifetime and which to hold until death in order to limit income tax consequences.
These are just a few of the many tax issues that can affect seniors, which is why it is so important to consult with a Florida attorney who is familiar with state and federal tax law when establishing a senior’s estate plan.
A guardianship is a legal proceeding in which a guardian exercises the legal rights of someone who cannot take care of themselves (often referred to as a ward).
Examples of the need for a guardianship include:
- Ensuring that a loved one who is no longer legally competent will continue to receive the care they need.
- Obtaining control of assets that are in the ward’s name only such as a car, bank accounts, or real estate in order to represent their best interests.
- Settling a claim or lawsuit the Ward may have against a third party while making sure the Ward is getting a fair deal.
Adults who are unable to care for him or herself may benefit from having a legal guardian. Guardians can be family or friends, or can be appointed by a court.
When an adult becomes mentally ill, suffers from dementia, or becomes physically incapacitated, a guardian can be highly beneficial in looking out for the best interest of the adult.
Unlike guardians for children, guardians for adults do not usually have the authority to control all aspects, and may only have power of attorney for specific decisions.
Selecting a guardian in advance of need can minimize family and legal battles, and should be carefully considered and discussed with appropriate parties, and initiated through legal procedures.
How We Can Help You
The practice of elder law is a necessary element of the legal field in order to accommodate the needs of the ever-expanding class of aging Americans. As the practice continues to become clearer and more developed, the senior population of the United States will continue to enjoy better provisions, more effective protection of their rights, and an enhanced quality of life.
We have extensive experience in all of the areas discussed above, and many more, in order to assist seniors in establishing an estate plan that is thorough, comprehensive, and individually tailored to their special needs.
If you are looking to create an estate plan with an involving elder law issues, contact our firm today to see how we can assist you.