Elder law is a catch-all term for the legal issues that people face as they either age or encounter disability. I practice elder law. I strongly prefer to discuss legal planning needs in person so that advice can be tailored to your individual circumstances. This article is intended to be helpful in helping you learn about the issues, but it cannot substitute for a personal legal consultation.
Elder law includes planning for things we don’t like to think about. Namely, disability and death. Unfortunately, sooner or later every one of us is going to face these issues, even if we would rather not. It is a gift to your family to have already completed a plan for your physical, financial and even spiritual affairs well ahead of the time of need. That way, your family is not called on to second guess major decisions concerning what you would have wanted. Making a plan ahead of time benefits you directly as well, because it gives guidance concerning management of your financial and health matters in the event something happens which prevents you from managing those issues yourself.
It is important not to postpone, because disability can strike anyone at any time. It is as close to each of us as a random motor vehicle accident or unforeseen illness. You purchase life insurance and medical insurance to help insure against these potential threats. You need a legal plan in place, as well.
The specific decisions your attorney will walk you through include planning for management of your business affairs in the event of disability (generally using a durable power of attorney), legal planning for death (generally using a will and often including one or more trusts), and expressing what kind of medical treatment or care you would want (or not want) if you were unable to speak for yourself (generally using a health care power of attorney or advance directive). If plans are not in place before the worst case scenario happens, a family already facing an emotional and financial crisis as the result of disability or death may be forced to face the added stress and financial expense of legal actions to establish guardianship or conservatorship. In elder law, it is certainly true that an ounce of prevention is worth a pound of cure. Many families have been torn apart by these issues, which could have been resolved peacefully if only the disabled or deceased person had been more clear (and thoughtful) about their wishes and intentions. Failure to plan or to create advance directives is like magical thinking. It doesn’t stop the inevitable, but it sets up a recipe for heartache and financial disaster.
The difference between Elder law and Estate Planning is that estate planning primarily refers to the complex arrangements that should govern property distributions for people who have substantial estates (so that they need to avoid estate tax) or small children (so that they need to set up a trust to govern financial management of assets which could be inherited by children too young to manage them). Elder law is more about planning for a bigger picture than just tax or money. It involves care decisions that will impact directly how the Elder is cared for when they are no longer able to care for themselves.
One of the most important decisions an elder needs to make is who they will entrust their care to, and who will manage their money. Many people just assume that the oldest child will do this for them, or the child who lives the closest, but making such assumptions without serious and honest discussion of the pro’s and con’s can be a serious mistake. Ideally, this will also be a decision which is shared with and agreed to by all of those family members who are most important in the life of the Elder, and disagreements or differences in expectations should be clarified and worked through early, while the Elder is still a strong and active adult. Do not leave these important decisions to be worked out among disputing siblings!
Another document everyone needs is a Health Care Power of Attorney. If you are in a hospital, your direct instructions and wishes regarding your care will be honored. But what if you are not able to communicate your wishes? This is when you need either an advance directive (which declares in advance what you want) or a health care power of attorney (which appoints an agent you trust to make decisions on your behalf). These documents are unique to each jurisdiction, so you need an attorney in the state or territory where you live to draft them for you. A South Carolina Statutory form Health Care Power of Attorney can be downloaded from my scribd account, HERE.
A list of 25 documents everyone (no matter what their age) should compile and keep in a safe place is listed HERE.
Good elder law is preventive law. Good planning, clear and honest communication, working through difficulties ahead of time, and improvement of healthy family relationships will go a long way toward ensuring that the Elder will be properly cared for and that family relationships will continue in a healthy way beyond the lifetime of the Elder. On the other hand, failure to address potential challenges or trouble spots early can have serious detrimental impact on the Elder’s financial, physical, and emotional well being in the long run. Don’t put your head in the sand! No matter who you see as an attorney, the matters are too important to set aside or procrastinate (as we are all prone to do)! Take care of your Elder Law planning today.