Why You Need to Know an Elder Lawyer is not an Estate Lawyer.
When you have a problem with your elderly mom or dad, your friends and acquaintances may readily tell you to seek the advice of an estate attorney.
Whoa Nellie! Since the dawn of complicated nursing home situations, assisted living facilities, at-home care, Medicaid and Alex Trebek giving you midnight advice on life insurance, the landscape of legal advice for the aging population has changed dramatically, but the rumor mill of advice has not yet caught up.
When I speak to audiences, which is what I do most of the time, I like to start with this:
Elder Lawyers are for Live People
Estate Lawyers are for Dead People
Granted, you’re not going to go to a lawyer when you’re dead, but Estate Lawyers are here to help you PLAN for being dead. Their job is to make sure your estate gets distributed, at your death, the way you want it to. From a planning perspective, an Estate Lawyer is there to help you with all aspects of death. That would include wills, trusts, and funerals.
Elder Lawyers are quite a new breed. We have only been around for likely less than 30 years because that is how long it has taken for the federal and state governments to play cat-and-mouse with our money and our lives when it comes to exorbitant costs surrounding caregiving and long-term care health issues. Elder Lawyers are here to guide you through “what happens when I get sick and need help.” That means creating Durable Financial Power of Attorney documents, Health Care Proxy documents, Living Wills, Advanced Directives and Trusts.
Our jobs do cross-over each other. Many Elder Lawyers started out as Estate Lawyers a long time ago. Estate Law has been around since the Magna Carta, so we learned that in law school. But Elder Law, as a new twist on how to keep money and take care of a loved one, has developed only recently.
When you are in the throes of a health care crisis with your mom or dad, spouse or loved one, you don’t really have the time to look at the fine distinctions between Elder Law and Estate Law. And as I mentioned, some lawyers are proficient in both areas of law and can be an extremely good resource.
But this is my caution to you: Right now, every single adult person should visit an Elder Lawyer and go through the process to create a Durable Financial Power of Attorney, a Health Care Proxy, a Living Will and a Will. The reason I stress an Elder Lawyer is that many states have very strict and specific requirements for those Powers of Attorney, that if not reviewed with you and created by an Elder Lawyer, may find you in a crisis situation where you cannot move money around to protect your loved ones, especially if one goes in a nursing home and the other is an at-home spouse.
You may also need an Estate Lawyer if you have a complicated estate. If you own multiple businesses, have trusts from parents or grandparents, need special trusts for disabled or chronically ill children. These issues are for after your demise and that is exactly what an estate lawyer is trained to do.
You may get lucky. In fact, it is much more likely that an Elder Lawyer has done some basic Estate Law and can guide you through simple estate planning. It is always possible that your Elder Law issues are complex but your Estate issues are simple. The reverse could be true as well. You could have very complex Estate issues but not so much in the Elder Law area.
In any event here are four questions you can ask to see if your attorney has a handle on Elder Law issues. I cannot stress enough how critical it is that in the creation of your Powers of Attorney that your lawyer understand how your state will deal with long-term health care issues.
- How does my state handle gifting of assets under my Durable Financial Power of Attorney?
- How does my state handle changing of Beneficiary Designations by my Agent under a Durable Financial Power of Attorney?
- Do your Power of Attorney documents both financial and health, provide for an Alternate by name?
- Does your Health Care Power of Attorney/Proxy provide for decisions to be made if I am in a permanent vegetative state?
One more thing, just like the beginning of this article:
Powers of Attorney are for live people
Wills are for Dead People.
The minute your loved one dies, your Power of Attorney dies with them and you no longer have any authority over their money, estate, wishes, etc. That is governed by a will. So again, get the right lawyer to do the best work.
I know this feels like no laughing matter…but there’s plenty to laugh at in other ways, here’s your chuckle for the day, since You Just Have to Laugh….
My Nana always said: “You can spit in one hand and wish in the other…..see which gets filled first!”
The information is for educational purposes only. Seek professional services from
an Elder Law Attorney in your state.