When Do You Need an Elder Law Attorney?

Elder Law Attorneys Devoted to Frisco

What exactly is Elder Law? What makes Elder Law Attorneys different from other attorneys? Is it really such a specialty that it needs its own name? Do I really need an attorney who focuses their law practice in Elder Law, or can I hire just any attorney? Does the title infer that its only for senior citizens? Are elder law matters determined by State or Federal law? These are just a few of the questions that come to mind when hearing the term “elder law.” This article will focus on what exactly is elder law, and how to know when you need an Elder Law Attorney.

Planning for the future can be extremely challenging without the correct information. As Benjamin Franklin once said, “An investment in knowledge pays the best interest.” Simple situations can rapidly turn into complicated and expensive problems without good advice. That’s where an elder law attorney can help. Elder law is a practice area devoted to the needs of a particular type of client as opposed to a particular area of law.

Although seniors (55 and up) are often clients of an elder law attorney, this area of law also helps those families who are of the Sandwich Generation – the generation of people, typically in their 30s or 40s, who are responsible for bringing up their own children while also responsible for the care of their aging parents. This Sandwich Generation is getting larger every day, thanks to the increasing amount of baby boomers reaching their senior years. According to the Pew Research Center, more than 1 out of every 8 Americans, age 40 to 60, is both raising a child and caring for a parent. They estimate that between 7 and 10 million adults are currently caring for their aging parents from a long distance. The US Census Bureau statistics indicate that the number of Americans 65 years of age or older, will double by the year 2030, to over 70 million.

So what exactly is elder law? A general definition is that elder law is the field of law that addresses the distinct legal needs of people as they age. It also includes focused areas for those who have special needs, disabilities or incapacities, or for those preparing for the unfortunate possibility of these unexpected events. This may include:

  • Estate Planning and Family Protection Planning
  • Disability planning, including special needs planning
  • Long term care planning, including Medicaid planning and Veterans benefits
  • Asset Protection and Tax Planning
  • Probate and Heirship administration
  • Guardianship and Conservatorship
  • Trust administration
  • Elder abuse, both personal and financial

What’s the difference between Estate Planning and Family Protection Planning? Personally, I have never liked the term estate plan because if focuses on the term “estate.” I can’t tell you how often I hear, “I don’t need an estate plan because I don’t have an estate.” The reality is that everyone over the age of 18, has some type of an estate. The term estate is defined as “all the money and property owned by a particular person, especially at death.” That means that the focus of Estate Planning is on your “stuff.” But is your stuff the most important thing in your life …. or is it your family? That’s why I believe the attention should be Family Protection Planning. This emphasis is both on protecting your assets (during and after life), while also adding lifetime personal protections and putting things in place to protect your family from predators, creditors, possible lawsuits, bankruptcies, family fights, unnecessary legal fees, stress and anxiety. Proper family protection planning maintains family privacy while keeping the courts and the government out of your life.

Making a plan for the possibility of serious illness, injury, physically or mentally incapacity or disability, is a MUST. Why? Because without a disability plan, you and your assets could end up in a very expensive court-supervised guardianship. Everyone over the age of 18 needs a: Financial Power of Attorney, Medical Power of Attorney, Directive to Physicians (also referred to as Advanced Medical Directive or Living Will, HIPAA Authorization, and Declaration of Guardian in case of future incapacitation. These documents allow you to appoint someone that you trust, to ace as your agent for financial matters and for making medical treatment decisions. They also say who can get your medical information and medical records. While you’re well, you can decide if you want to be kept alive on life-support, if all medical treatment hope is lost and the only way to keep you alive is on a machine. And last, it allows you to have a say-so in who you want (and who you don’t want) to be your guardian if you ever become permanently incapacitated or disabled. I call these the living documents, because they give you protections during your life, if the dreaded what-if ever happens.

Elder law attorneys are absolutely necessary because state laws govern elder law matters. State laws are very specific about what can and cannot be in a will, trust, advance medical directive (called Directive to Physicians in Texas) or financial power of attorney; who can and cannot serve as an agent, personal representative, executor, trustee, etc.; when a probate is necessary and what assets can pass outside probate, as well as all the legalities of a guardianship. Even Medicaid is administered by the states at the local level, and the laws and rules governing Medicaid vary greatly from state to state. The Latin proverb, “Caveat Emptor,” or “Buyer Beware,” definitely applies to elder law issues. Trying to save a few dollars by being a do-it-yourself lawyer, using forms found on the internet or in a do-it-yourself book, to prepare your estate planning documents often results in your family having a rude awakening when they learn that part or all of a loved one’s will, trust, or medical or financial power of attorney is not legally valid or will not work as anticipated. Thousands of dollars are spent every year when families have to hire a qualified elder law attorney after the fact to fix these unnecessary mistakes and clean up the mess. It’s a lot less expensive to pay a professional to properly repair your car than it is to have to replace the engine. So, if you have any additional questions or think you might need an elder law attorney, please schedule a call with the professionals at the faith-based estate planning and elder law firm of HAIMAN HOGUE, PLLC. It’s our calling.

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