Elder Law

What to do when someone becomes incapable of caring for himself or herself is a topic fraught with controversy. The The Brittany Spears Case is a famous example. Elder law is frequently involved in this area because incapacitation due to illness or age most often strikes the elderly.

Courts are often called on to appoint a guardian for incapacitated or disabled people. This involves a legal proceeding where a court decides whether to appoint a guardian to make decisions for and manage the affairs of the incapacitated person (ward). The guardian is generally responsible for caring for the ward and his or her affairs. This includes providing for basic necessities, making medical and care decisions, and managing the ward’s financial affairs. A conservator is very similar to a guardian but is limited to handling the ward’s financial affairs.

Many people choose to make preparations in advance in case they become unable to care for themselves. An Advance Health Care Directive allows people to set out their wishes for medical treatment and care should they become disabled. More binding forms of preparation include drafting a living will or granting someone power of attorney for healthcare. Giving someone a durable financial power of attorney allows him or her to manage your financial affairs in case of incapacity. Decisions relating to long-term care in nursing homes and residential facilities may involve elder law attorneys too.

Health care is an important part of elder law. Applying for and receiving benefits such as Medicare and state-equivalent programs can be important to someone’s health, welfare, and financial well being. Disputes over medical care including injuries due to medical malpractice are a major legal area in their own right and frequently affect elderly patients. Concerns over patients’ rights and care in hospitals and nursing homes are a common concern as well.

Many elderly people rely on Social Security benefits during retirement. Problems in securing Social Security benefits, transferring benefits to spouses and dependents, or applying for benefits in the first place can require an attorney. People who are disabled can also apply for Social Security disability benefits. These applications and the appeal of unfavorable decisions from the Social Security Administration are often grouped in with elder law.

One of the oldest areas of law is estate planning and administration. This area of law involves the transfer of a person’s property to their intended beneficiaries after death. This often occurs through the probate process – an infamously complicated and drawn-out legal affair. Attorneys are frequently involved in estate planning matters from beginning to end. Estate planning is an area of law in its own right, but is a familiar topic among elder law attorneys.

Estate planning can take many forms. Most people who do make plans choose to write a will. A will states how the deceased (testator) wants his or her property distributed after death. The will also appoints someone to manage and distribute the testator’ estate (executor). Every state has detailed laws governing the drafting of wills and the administration of a decedent’s estate. Because of this, many people hire an attorney to prepare their will. However, individual can make a valid will without legal assistance too.

There are other options in estate planning as well. Some people choose to set up a trust to manage their property after death. The establisher of a trust (grantor) creates the trust and transfers property (such as stocks, bonds, and cash) to the trust’s control. An appointed trustee then administers the trust, often disbursing funds in accordance with the terms of the trust. Alternatively, people who die without an estate plan see their property distributed in accordance with applicable state laws. This is known as intestate succession.

If you or a loved one needs legal help with an elder law issue, you should consult with a qualified elder law attorney. An elder law attorney will be able to draft guardianship and estate planning documents for you, answer any questions you have about health care and Social Security issues, and aid you in dealing with elder abuse.