Elder Law
The term “Elder law” can mean different things to different people. Generally, for us, it
means the focus upon several areas of the law, including:
- Wills, Power of Attorneys and Advanced Directives
- Trusts (special needs, irrevocable, etc.)
- Life Estate
- Guardianships and Conservatorships
- Generational asset planning (e.g., planning for asset disposition and protection)
- Medicare and Medicaid planning
- Opening and Administering Estates
- Probate
- Litigation
With Elder law, we attempt to address a current issue or need, plan for the future or litigate a harm. Our hope is to provide the counsel you need to allow you or your loved one to live their life in a manner that is beneficial and supportive of their health and in the best interest in protecting their assets to promote financial security. In some instances, our services to a client may involve planning for the future, asset protection, addressing a health need, or giving someone authority over their affairs. In other instances, our services may involve litigation, either concerning a harm suffered by a loved one at a nursing home or assisting living facility or in litigating an issue in probate court, such as a dispute concerning capacity
Often, we collectively take for granted that the parameters that exist today are the same that existed yesterday. For example, with life expectancy, we may assume that as it exists today, it is the same as it was 100 years ago. Actually, in the year 1900 the average life expectancy was 32 years, now in 2021 it is 71 years. (Dattani, Rodes-Guirao, Ritchie, Ortiz-Ospina, Roser). With the increase in longevity, there are new issues or maladies affecting individuals or households, namely the loss of mental capacity. Often, you hear about this in the form of dementia or Alzheimer’s disease, but if you know of anyone that has suffered from these conditions, it can be devastating. Also, importantly for the Elder law discussion, if they suffer from a mental capacity issue, they lose the ability to make decisions, such as entering into a Will, providing power of attorney or making other legal decisions on their own.
Because of these potential losses in ability to make decisions, it is important to prepare today (for tomorrow or the future), so that the wishes and desires of your loved one or you may be memorialized. For example, if a loved one or you want to have your Estate distributed to certain individuals or entities, it is important to make a Will while they or you still have capacity. If a Will is made after someone has lost capacity (which is not legal or valid) or there is an argument that they did not have capacity at the time the Will was made, then the distribution may be subject to litigation and a Court may ultimately decide upon the distribution. Also, if no Will is made prior to death, any assets are distributed pursuant to state statute.
Also, generally, there will likely be a period between loss of mental capacity and death. If there is no durable power of attorney during that time period, then no one will be able to legally act on the behalf of the loved one, without costly Court intervention. As a result, it is important to begin to prepare the affairs of your loved one or yourself. In these days and times, the size of an Estate is not the determinative factor on whether or not an individual needs to engage in what we call “life planning.” Instead, if you are over forty-five (45) years of age, you will need to seriously consider “life planning,” which may include a durable power of attorney, at a minimum. From there, whether you will need a Will, Advanced Directive, a Trust or some other form of planning, will depend on your desires and wishes as well as your assets, heirs and health.
If we can help you with “life planning” or any other Elder law issue, please fill out our webform and submit it. Please click here to access our “Free Case Evaluation” form, and we will be in touch with you within 24 hours of your case submission. Or, feel free to text us at (205) 651-5808 or call us at (205) 259-1678.
Photo courtesy of:
Forbes
https://www.forbes.com/advisor/legal/personal-injury/elder-law/
Background courtesy of (on the issue of life expectancy):
OurWorldInData.org
Saloni Dattani, Lucas Rodés-Guirao, Hannah Ritchie, Esteban Ortiz-Ospina and Max Roser (2023) - “Life Expectancy” Published online at OurWorldInData.org. Retrieved from: https://ourworldindata.org/life-expectancy