Elder law is a broad term for any area of law that impacts the elderly.
While it is a great deal of transactional law, elder law may also involve litigation.
As elders have unique legal needs, elder lawyers work in niche areas to meet those needs.
Elder law broadly encompasses any kind of legal need that is unique to the elderly.
What Is Elder Law?
Elder law is the legal practice of areas of law and issues that impact the elderly.
It is an area of law that’s targeted to a particular age group and the issues that are unique to them.
The purpose of elder law is to have attorneys available and equipped to meet the needs of elderly people.
While some elder law issues result in litigation and contested hearings, most elder law is transactional including document preparation.
Elder law is the area of law that focuses on legal areas and topics that primarily impact seniors.
Areas of Elder Law
There are a number of different types of elder law.
Certainly, a large part of elder law is wills and trusts.
However, elder law encompasses all of the following:
Wills and Trusts
Wills and trusts are two kinds of estate planning.
Although wills and trusts are not just for seniors, every senior should have estate planning documents.
A will is a document that states how a person wishes to dispose of their assets.
A trust is a legal entity that can manage property.
There are various reasons, depending on the state law that applies, that a will or trust may be preferable in any given case.
An estate planning attorney helps their client understand the different options for creating a will or trust.
They give informed legal advice and ensure that their client knows the legal effect of a particular course of action.
The estate planning attorney drafts legal documents for the client based on the client’s wishes.
A Durable Power of Attorney and Health Care Power of Attorney
In addition to wills and trusts, another important part of estate planning is powers of attorney.
A power of attorney may give a person the legal right to conduct financial transactions on behalf of another person.
The power of attorney can be effective immediately, or it may be effective when the person is no longer able to make decisions for themselves.
A health care power of attorney states a person’s wishes for medical care in the event that they are not able to participate in making decisions themselves.
An elder law attorney helps a client understand their choices when it comes to preparing these documents.
They help clients understand how they can create a power of attorney and what the legal impact is of these documents.
Sometimes, seniors need help from others to manage their affairs and make decisions on their behalf.
A guardianship is a legal decision to allow another person to control a senior’s care, finances, and other major decisions.
There are specific legal requirements for when a state can put a guardianship into place.
Elder lawyers not only help clients understand when a guardianship is appropriate, but they may help a client challenge a guardianship or protect against exploitation.
Elder law includes probating an estate.
Even with careful planning, disputes may arise among potential heirs about the distribution of an estate.
These disputes are settled with probate litigation.
A court may hold a contested hearing in order to determine the validity of a will or interpret the terms of the will.
To the extent that elder lawyers may participate in contested probate hearings, they are litigators.
A contested hearing may involve witnesses, legal arguments, and presentation of case law.
Probate litigation may also involve settlement negotiations with other involved parties.
Social Security, Disability, and Medicaid
There are a number of federal programs available to help seniors.
Elder law involves helping clients access those programs and use them to meet their needs.
A client may need information about what programs they qualify to use.
They may need help filing an appeal when the government denies their participation in the program.
Practicing elder law means helping clients understand and access federal Social Security, disability, and Medicaid programs.
Managing Elderly Care
Helping a client plan their estate means helping them manage their care as an elder.
An elder attorney may help their client understand the various options for assisted care.
They may help their clients manage personal finances in a way that allows them to afford the care that they need.
Tax planning may be another important part of managing assisted care expenses on behalf of a client.
Where Does Elder Law Come From?
Elder law comes from a variety of sources, including the following:
State Probate Codes
Each state has laws about wills and trusts.
The laws are typically called the probate code.
There are significant variations between states for things like how to create a valid will or a trust.
While federal tax laws may impact wills and trusts, wills and trusts are primarily governed by state law.
Older Americans Act
The Older Americans Act is a federal law that is designed to ensure that seniors have the resources that they need.
The Act provides funding for social services directed at seniors.
Grants fund research, employee expenses, and training in order to provide resources for senior needs.
The Act also includes elder justice initiatives.
Age Discrimination Act
The Age Discrimination Act and the Age Discrimination in Employment Act protect certain workers from age discrimination.
Because of these laws, employers may not discriminate against workers over the age of 40 because of their age.
The law applies to employment actions like hiring, compensation, promotions, and termination.
Criminal laws are part of elder law when they protect elderly people from exploitation.
Most states have laws that prohibit exploiting or abusing an elderly person.
There may be unique laws that prohibit particular activities directed towards the elderly, or there may be sentencing enhancements that increase penalties when the victim is a senior.
Laws may prohibit physical abuse like assault and battery, or they may prohibit financial exploitation.
State Family Law
Grandparent’s rights are an issue that may impact elders.
In some circumstances, a grandparent may have a legal right to request time with a grandchild.
Although these rights are limited, they are critically important in circumstances where they apply.
Elder lawyers may practice family law if they help seniors with grandparent custody issues.
Laws for Other Federal Programs
Elder law may encompass other types of federal law.
For example, Medicare is a federal law that applies to seniors.
Social security is also a law that impacts seniors.
Elder law comes from these sources.
Attorneys must be versed in these laws as well as knowledgeable in the resources and processes available to help clients pursue legal issues.
Who Practices Elder Law?
Elder lawyers practice throughout the United States.
Lawyers in the field may work in large law firms in big cities.
They may also work in small, rural communities.
Elder lawyers in large firms may focus exclusively on elder law issues.
In addition to lawyers in private practice, there are also lawyers who work as probate court judges.
These judges hear cases about guardianships, contested probate matters and other types of elder law matters.
In some circumstances, these lawyers are elected.
In other cases, they may be appointed by other judges.
Typically, probate judges begin their legal careers in local private practice before assuming the role of a judge.
Why Practice Elder Law?
Attorneys who practice elder law have the flexibility to design a legal practice of their choosing.
Even in a community of modest size, an attorney may sustain an entire legal practice focusing only on elder law issues.
However, an attorney who needs to sustain a solo practice may also supplement their legal practice with other areas of law.
Elder law is an area of law that an attorney can incorporate into a full-service, solo, or small-firm law practice.
Elder lawyers live and work throughout the United States.
There is also an opportunity for career advancement including judgeships.
For attorneys who want to establish a sustainable and robust legal practice, elder law may be a critical part of their business plan.
In addition, elder law is a viable career option for attorneys who enjoy writing and drafting.
Attorneys in the field must have interpersonal skills in order to work with clients to understand the laws and make sound choices.
However, an attorney must be skilled in litigation in order to handle contested matters as they arise.
Advocating for Seniors Through the Practice of Law
Elder law is an area of law in which lawyers advocate for seniors and the issues that they face.
Through client advocacy and awareness of laws and programs that may impact seniors, an attorney can provide effective advocacy for their clients.
Elder attorneys live and work in a variety of communities and professional settings throughout the United States.