Elder Law and Estate Planning

Today it's more important than every before to plan your estates. People are living longer and thus acquiring more assets, it is imperative that you protect those assets.

With people living longer there are additional considerations that intersect the “traditional” areas of estate planning and elder law. Estate planning was traditionally done with a will and dealt with the succession of wealth and assets to beneficiaries upon the decedent's death. Elder law has traditionally dealt with advanced care, health care, living arrangements, powers of attorney, and fulfilling the wishes of the client as they advanced in age.

The intersection of elder law and estate planning:

1. Distribution of assets upon death

As persons live longer there are additional concerns about retirement income, advanced care, and then the distribution of assets upon death. Attorneys and clients must be aware of the family dynamics, any family-business succession, and care directives. A will or living trust are two mechanisms to accomplish these goals. A will takes effect at the time of death and moves through the probate process. A living trust is a legal instrument where the client (grantor) contributes all their assets to a trust and have the use and benefit of those assets during their lifetime and then upon death, those assets are distributed according to the terms of the trust.

Clients should discuss the income generated and use of that income during their lifetimes to appropriately plan for their remaining years. Furthermore, there are benefits and detriments to each instrument, and the right instrument will be highly dependent upon individual circumstances. However, a client who is elderly will have to discuss the proper mechanism to distribute assets at their passing while retaining enough income generating property for use in their retirement and health-care planning needs.

2. Living Arrangements

There are now various types of living facilities for the elderly. There are traditional nursing homes, which offer the most care to the individual as they age, assisted-living care facilities, which allow persons to live mostly independently while providing some services, and continuing care facilities, which increase care as the individual needs it. Elder law and estate planning intersect now as persons must plan for the cost of these various living arrangements and care needs. A properly drafted trust or estate plan (which would have multiple parts to fulfill the evolving needs of the client as they age) must account for current needs, future needs, and the wishes of the client and the distribution of their assets after their passing.

3. Health Care

Health care planning is an expensive and time-consuming proposition, but an extremely important one. As people age they will naturally have increasing and different health care needs than they did previously. Medicare, private insurance, health care proxies, advanced health care directives, and “living wills” are all concerns that need to be addressed by the client and attorney. Some of these issues were more traditional elder care and others were traditional estate planning ones. However, long term care, medicare, and traditional retirement income, as well as durable powers of attorney or health care proxies, are all intertwining issues that the attorney should resolve with the client. As people age, how they want to spend their remaining years and the kinds of health care services they wish to accept or decline are some of the most important decisions to be made.