As you get older and begin to plan for living life in retirement, you may hear the terms “estate planning” and “elder law” brought up regularly. There are some clear differences between estate planning and elder law, but they also have some important similarities.
Even though these two types of law are technically utilized for two different stages in life, elder law and estate planning are often handled at the same time. It doesn’t have to be that way. Many people tend to wait till later in life to start their estate planning, which can complicate the process and might require additional elder law counseling from an attorney. To better understand the similarities and differences between estate planning and elder law, we’ve broken down how they work independently, and how they can work together.
The main goal of estate planning is to create legal documents that will determine what you want to happen to you and your assets after you have passed away or become incapacitated. An estate planning attorney will walk you through important decisions and how those decisions can impact your future, such as:
- Who makes medical and financial decisions if you are unable
- How are assets distributed after you are gone
- Who cares for minor children if you become incapacitated or die
- Who manages money for your minor children if you are no longer able
- How to handle your funeral arrangements and burial
- What type of trust is best for your long-term goals
- How to reduce and avoid estate tax when possible
- How to avoid the probate court process and guardianship
Wills and Trusts
When you work with an estate planning attorney, two important documents you may want to create include a will and trust. In your will, you can name the beneficiaries of your estate as well as a guardian to care for any minor children you may have at the time of your death. If you have assets you are concerned about, such as your home, you can create a trust, or trusts, to hold your assets during your lifetime and after death. This process of securing your assets in a trust may help your family avoid probate down the line. However, everyone’s situation is different, and you will want to work with an experienced estate planning and elder law attorney to help you navigate creating and updating your will and trust(s) to avoid probate or guardianship.
Powers of Attorney
A general durable power of attorney (POA) document can name a person, or persons, to make financial decisions on your behalf if you are no longer able to do so. A healthcare POA will allow an individual of your choosing to make healthcare decisions on your behalf if you are no longer able to do so. By completing a Health Insurance Portability and Accountability Act (HIPAA) form, you will give your healthcare providers permission to share your medical records with the people listed on your HIPAA form. Both a financial POA and a healthcare POA are important to complete in case of emergency.
Estate planning focuses mostly on establishing your wishes for what happens after death (or in cases of incapacity). The area of elder law focuses on a person’s last years or months of life. This can include planning for long-term care and applying for government assistance, such as Medicaid, Medicare, and veterans’ benefits. Proper estate planning can answer some of these questions and get the long-term healthcare process started early. Using elder law and appropriate estate planning tools, an elder law attorney can help you preserve your assets while preparing to apply for benefits.
Like estate planning, it is best to start the elder law planning process early (before you think you need it). To qualify for benefits, such as Medicaid, you may have to sell or transfer ownership of some assets years before applying for benefits. Gifting or transferring assets out of your name must be done according to local government requirements, and every state is set up a little differently. Applying for benefits can be a complicated process, and hiring an experienced attorney can mean the difference between receiving benefits when you need them or not at all.
Seniors are at a greater risk for exploitation, neglect, and abuse. Here in southern Nevada, the elder law and estate planning attorneys at Michealson Law work to help these seniors every day. If you know a senior whose rights are being violated, we are ready to work together to remedy the situation.
Estate Planning and Elder Law Together
It is best to start your estate planning process early, before you are even thinking about elder law. Since you never know when an accident or tragedy can strike, it is best to be prepared and have your wishes clearly laid out as soon as possible. Planning for end-of-life care and asset protection well in advance lets you legally reduce assets and have an easier time qualifying for benefits, like Medicaid, later in life. An attorney experienced in both estate planning and elder law can advise you in these areas and help you navigate and prepare for any future complications.
This article does not constitute legal advice, and everyone’s circumstance is unique. For legal advice regarding your estate planning and/or elder law needs, contact the attorneys at Michaelson Law for a consultation today.