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Elder Law versus Estate Planning

Michael S. Winsten Aug. 24, 2022

A comparison of estate planning and elder law shows some overlap while both provide important protection for you and your family. The two terms tend to go hand in hand, but there are some differences. The biggest difference is that elder law planning helps a person during their lifetime, while estate planning activates after your death through already existing wills, trusts, and other legal entities. While the functions are separate, both are equally important for individuals seeking to be more peacefully prepared through effective legal planning.

Many law groups provide both elder law and estate planning services. This overlap of law practice specialties can create confusion, particularly because elder law attorneys also participate in estate planning (elder law estate planning). However, not all estate planning attorneys take part in aspects of elder law.

Elder Law Focuses on Seniors

The concern of elder law is to ensure older adults can live their most healthy, protected, and financially secure lifestyles as they age. Planning may include anticipating future medical needs such as long-term care, qualifying for Medicaid without depleting all assets, creating a living will, and legally naming individuals to guide your medical decision-making if you become incapacitated. In addition to aging seniors, elder law may also focus on the needs of war veterans and individuals with disabilities and assist with conservatorship or guardianship if needed.

Areas of elder law specialization include:

  • Asset protection

  • Long-term care planning

  • Elder law trust administration

  • Decision making for an incapacitated person

  • Estate planning and settlement

  • Disability and special needs planning

  • Conservatorship or guardianship

  • Elder abuse

Elder Law May Involve Many Family Members or Caretakers

When practicing elder law, your attorney will often involve your close family and friends to work most effectively. Protecting the aging process of a loved one is usually a multigenerational effort addressing medical, financial, long-term health care needs, emotional support, and day-to-day living needs like shopping, transportation, and going to doctor appointments. These aspects combine to create the most healthy and secure aging environment and lifestyle. Elder law can also address veteran benefits, family home protection, special needs loved ones, estate administration, probate, and long-term nursing home care claims.

Looking at Law from a Senior’s Perspective

Comprehensively, elder law focuses on legal issues, complex regulations, and laws that vary by state that impact seniors. An elder law attorney has a unique understanding of the personal impacts aging brings and how it can physically, socially, and financially affect your loved ones, making them vulnerable. They are familiar with the various circumstances and decisions confronting older loved ones. The approach is holistic. While living, they will assist in navigating legal matters and tap networks of care professionals like social workers, health groups, and psychologists. Designated family members are trusted to help seniors coordinate financial matters and the long-term care they may require.

In truth, elder law is essential to all seniors, not just those with complex life situations, and will require refinement of goals as you age. Whether you want to protect yourself and your assets, address your special needs, a second marriage, high-value estate, or adult children who are financially irresponsible, an elder law attorney can help you manage the processes within the confines of the laws in your state. Elder law in action can protect you from the vulnerabilities that present themselves in your later stage of life.

Estate Planning Basics

Conversely, estate planning concerns asset protection, retirement planning, business succession planning, and distribution of estate assets after your death. Estate planning also concerns minimizing taxes after your die, identifying a personal representative to carry out your estate plan, and navigating legal tasks. Your estate plan also seeks to simplify probate requirements, name guardians for minor children, and prepare long-term assistance for loved ones with special needs.

Essential aspects of a comprehensive estate plan include:

  • Your will and perhaps a pour-over will

  • A health care proxy

  • A power of attorney

  • Your living will

  • A trust – revocable living trust or irrevocable

  • Estate tax returns

  • Documents for transfer of assets

Your estate planning attorney can help guide you as you name your representatives and trustees, identify the right choice of guardian for minor children, identify IRA, 401(k) and life insurance beneficiaries, create business succession plans, guide personal property distribution, and make charitable contributions.

Estate Planning Requires Periodic Review

Estate planning is not a one-time task. Life events may trigger a change in your estate plans, such as buying stocks, selling your current home, purchasing a rental home, getting a divorce or remarrying, losing a loved one, or gaining a new child or grandchild. Reviewing your estate plan frequently is critical.

If you do not develop a complete plan to manage your estate assets after your die, the probate court will take over the process of your property distribution. State intestacy laws will apply in the absence of a will to identify inheritors. If you skip estate planning, you will forgo your opportunity to provide for family and loved ones as intended. With estate planning, you can decide where you want your money to go, who will watch over your minor children, and even the care you prefer if incapacitated via a living will. Estate planning also enables your family to avoid the probate process, which can be lengthy and expensive.

Talk to your family about your needs as you age. Identify an estate planning lawyer who also understands elder care planning in your state. Be sure to find the right fit and establish a trusted and comfortable relationship with them to make plans that address your unique needs and desires for your remaining years.

We hope you found this article helpful. If you have questions or would like to discuss a personal legal matter, contact our office at (949) 418.1083.