People sometimes confuse elder law and estate planning. While many of the tools used for elder law matters are also helpful for estate planning purposes, these two areas of law are definitely different.
Estate planning primarily concerns what happens to someone’s resources and their dependent family members after they die. An elder law plan, on the other hand, focuses on what someone will need later in life. They may engage in long-term care planning, as well as planning for the possibility of future incapacitation. Incapacity planning requires that someone address the possibility that they may eventually become unable to speak on their own behalf due to prolonged unconsciousness or a decline in mental acuity.
The tools people use are often similar
A basic estate plan may primarily use a will to arrange for the descent of property and the care of loved ones. However, people may also include a trust. Trusts often play an important role in elder law matters. Trusts can help protect certain resources from creditor activities while someone is older and living on a fixed income. It will also protect those resources from creditor claims after they die. The resources in a trust will not have to pass through probate court after someone’s passing, which can be beneficial. They also will not count against someone for the purposes of qualifying for Medicaid benefits later in life.
Many in-depth estate plans also include living documents that address the care someone will require when their health declines. Powers of attorney and advanced medical directives can describe what treatment someone would prefer to receive and name an agent that they trust to act on their behalf.
Those same documents often play a key role in elder law plans. They allow someone to control the medical treatment that they may undergo and to prevent a conservatorship or guardianship. Durable powers of attorney will retain their authority even if an older adult becomes permanently incapacitated and can no longer enter into legal agreements on their own behalf.
Those who have engaged in thorough estate planning may already have achieved many of the basic goals that people set when addressing elder law matters. Understanding the key difference between estate planning and elder law may help people recognize gaps in their existing documents and identify how to protect themselves as they prepare for their golden years and beyond.