One of the questions we are often asked is what the difference is between estate planning and elder law. As both an estate planning attorney and an elder law attorney, I would say that the primary difference is the focus of the legal problems addressed and the solutions proposed.

In short, Estate planning focuses on how your assets will be managed and distributed after death, assuming you can care for yourself through old age without needing long-term support. Elder law addresses the broader challenges of aging by planning for long-term care, incapacity, public benefits and decision-making needs while you are still alive.

How Traditional Estate Planning Works

Traditional estate planning focuses primarily, although not exclusively, on how your assets (the things you own) will be distributed upon your death.

The goals of estate planning are typically to minimize taxes, probate expenses and family conflicts.

In many instances, the assumptions underlying traditional estate planning are based on a best case scenario. Clients assume that:

• They will be able to take care of themselves through advanced old age
• They will not need long-term care or other assistance
• They will be able to leave an inheritance to their children or other family members

Why Traditional Estate Planning Assumptions Are Changing

Many of the assumptions underlying traditional estate planning have become less relevant for older clients. Although we are living longer today, we are not necessarily living healthier.

Studies show that 52% of Americans age 65 and older will, at some point, require some type of long-term care services.

Long-term care involves services designed to meet the personal and health care needs of an individual with the goal of allowing the person to live as independently and safely as possible when they can no longer perform everyday activities without assistance. The cost of long-term care can be daunting.

The Importance of Planning for Aging and Incapacity

We all know that death is inevitable, but most of us do not want to consider the complications that are likely to arise as we age. While a small percentage of people die suddenly, the majority of us decline slowly and may, at some point, need assistance with daily activities or become incapacitated.

For this reason, it is essential to work with a seasoned elder law and estate planning attorney when arranging for your own future and, or, assisting in arranging a plan for a parent’s or grandparent’s future.

What Is Covered Under the Umbrella of Elder Law Planning?

Elder law attorneys will typically apply a holistic elder centered approach to crafting a plan that will address not only estate planning, asset preservation and public benefits planning, but will also address care coordination, health care and financial decision-making, care advocacy and other services.

Because the future is unpredictable, it is best to consult with an elder law attorney while you are able to plan for yourself. A skilled elder law attorney will be able to set up an effective plan tailored to your individual needs. You should be aware that you will have to review your plan regularly to address changes in your life, such as births, deaths, illnesses or accidents, inheritances and so on.

Common Components of Elder Law Planning

Elder law planning can include:

• Drawing up a will
• Creating trusts to protect assets from taxation and protect loved ones with special needs
• Planning for potential incapacity with all necessary documents
• Preparing for long-term care in assisted living or nursing facilities
• Preparing for eligibility to receive government benefits like Medicaid
• Setting up any necessary conservatorships or guardianships
• Preparing advanced medical directives, durable powers of attorney, health care proxies and living wills
• Addressing income, gifting and, in some cases, estate tax issues

Why Proper Elder Law Planning Matters

Proper planning will give you and your family peace of mind knowing that you are receiving the proper care according to your wishes and that family resources have been protected to best provide you such care.

Sitting down with a competent elder law attorney will enable you to make your own decisions and ensure that your wishes will be realized if you become unable to manage your own affairs.

Posted in: Elder Law, Estate Planning