Why You Need to Understand the Basis of Elder Law
By Leigh Raper
The demographics of the United States are changing. With the US Census Bureau predicting that one in four Americans will be aged 65 or older by 2060, the country is growing older. The shift means that planning for the challenges facing loved ones as they age is more important than ever.
These challenges, including difficult financial and medical decisions, can seem distasteful and overwhelming. But the facts of life—and death—are what they are, and inadequate planning for the inevitable can lead to unwanted, and sometimes devastating, consequences.
Elder law is about more than making a will
Elder law is a broad term that refers to the practice of law related to the elderly and the aging. It includes topics such as long-term care, nursing home issues, retirement planning, wills and estates, and more.
David Parker, an attorney with 25 years of experience in New York, has focused his practice exclusively on elder law, including will and trust issues, since founding his own firm about 10 years ago. He emphasizes elder law goes beyond wills, trusts, and estates, which are the mechanisms to transfer your assets to your family members after you pass away.
“Elder law takes that a step further,” he says. While his practice includes estate planning, it is also about planning for things while his clients are still alive. “Whether you need assistance with your finances or whether you need assistance physically, but you haven’t passed away, that’s a whole world that we haven’t really dealt with until, say, the past 15 or 20 years,” he explains.
Today’s modern elder law approach is much more holistic than in the past. Elder law professionals plan for and handle the entire end-of-life period for their clients. “Almost everybody is going to be in a situation where they are infirm; they need hospitalization or nursing home care, or some sort of care in the last year of two of their lives,” Parker says. Simply focusing on what’s in a person’s will fails to take this into account.
Have the talk
The best elder law professionals in the world can’t help clients who don’t ask for the help. The first step in the process is, for some, the most difficult: having the discussion.
No one likes talking about what will happen when older family members can no longer take care of themselves or can no longer live alone or stay in the family home. But aging is inevitable, and not talking about the big questions (“Where do I want to be?” “How do I want to be cared for?” “What do I want to happen to my things?”) doesn’t make them go away.
While adult children are often the ones who start the process of working with an elder care attorney, everyone needs to remember that the children are not the client. “Even though the child can be leading the situation, you do have to remind them that the parent is a client, not the child,” Parker says. “And you’re going to do what’s in the parent’s best interest,” he adds.
Family dynamics often play a role in planning for an elderly parent. Parker prefers having either all the children involved or none of them, a position he makes clear to the family at the start of representation, before any problems arise. He also makes a point to meet with his client privately without their children.
Loss of control is one of the biggest fears, and obstacles, for clients planning for their final years. Parker is sensitive to this concern and makes sure to address it with his clients. He also deals with clients and families who may be in denial—for example, hoping for an unrealistic improvement after an Alzheimer’s diagnosis—treating them with sensitivity but also the candor that the situation requires.
Prepare for the inevitable and the unknown
Working with experienced elder care professionals adds a layer of peace of mind to an emotionally charged process. The team of professionals could include not only an attorney but also a financial advisor or tax expert. Healthcare decisions must necessarily include plans for how to pay for those decisions. Understanding the tax implications for clients while they are still alive and for their estate after they have passed away is vital.
Some of the most important pieces of an elder care strategy are legal and appropriate powers of attorney. A power of attorney is a binding legal document that allows one person to make legal decisions on behalf of someone else. In the area of elder care, a financial power of attorney might be drafted to handle such matters as accessing the client’s checking account, while a durable medical power of attorney would allow the designated person to make potentially life-saving or life-ending decisions about medical care.
While basic powers of attorney forms are available online and in office supply mega-stores, Parker cautions about using these generic documents to address elder care issues. “With a standard power of attorney, you may not be able to do certain things,” he says. “That’s why you need a power of attorney drafted by an elder law attorney who’s going to have a lot more scenarios packed into that power of attorney to give you powers to do things that come up.”
What might those additional powers be? Parker cautions that what is allowed in a power of attorney will be controlled by relevant state law. In New York, where he practices, Parker adds such powers as the ability to create a trust, guarantee access to a safe deposit box, or the ability to apply for government benefits. An experienced elder care attorney can supplement what is included in the state’s minimum form, customizing the power of attorney to meet individual client needs.
Implement a well thought out plan
While some states are considering whether to ramp up enforcement of filial responsibility laws, seeking payment from adult children for an indigent parent’s medical costs, that isn’t an immediate concern for most families. However, paying the bills and making sure financial needs are met are pressing concerns for everyone involved in developing an elder care plan.
As overwhelming as the prospect of long-term care can be, Parker advises his clients to keep an open mind. There are many government programs, such as those from the Veterans Administration or Medicaid, that can offset and, in many cases, cover the costs.
“I think people assume they don’t qualify and in many cases they do, as long as they get the right advice,” he says. “But an elder law attorney who is VA-certified, or an elder law attorney who does a lot of Medicaid work can figure out how to save the family a tremendous amount of money.”
Another benefit of doing long-term planning is that the end-of-life plan can be integrated with the estate plan, allowing a client to memorialize their wishes in such matters as life-support measures and how to distribute their estate after their death. Having the entire family involved in the planning can eliminate surprises and, hopefully, cut down on disputes after the client has passed away.
Facing these big end-of-life issues is not easy, but tackling them head on and enlisting qualified professionals up front helps ease the burdens for everyone later.