• What is Elder Law?
• What Does it Mean to Have a Personal Plan?
• Do all elder law attorneys practice in all areas of elder law?
• Why consult an elder law attorney?

What is Elder Law?

Elder Law concerns planning for aging. It is the practice of law that serves both young and the elderly. You may be in your 30s or 40s, concerned about estate planning for your children, and at the same time be confronted with concerns about an elderly parent or other relative. Or you may be in your 60s and 70s or older and concerned about how to protect your assets for future generations and alleviate the concerns and pressures of caring for you that will ultimately fall upon your children or others in your circle of family and friends.

Elder Law addresses many different planning-related concerns, such as: including Medicaid Planning and Applications, Estate Planning, Trusts, Wills, Powers of Attorney, Living Wills or Revocable Trusts, Assisted Living and Chronic Care or Nursing Home arrangements, and when necessary a Guardianship/Conservatorship proceeding.

Elder Law deals with disability planning, in which you would want to plan for the potential need to delegate authority in the event of incompetency or incapacity. It is important for attorneys dealing with the elderly to have a unique understanding of the laws that may have an impact on the elderly. It is important that you hire an attorney who regularly handles matters in your area of concern and knows about the other areas of law that might impact this decision. It is also equally important to choose an attorney who you are comfortable talking with and who seems to share an empathy of the elder’s real life problems.

The experienced Elder Law attorney will also be able to address estate planning options when there is a family crisis arising from the need for chronic care for an elderly or otherwise disabled family member. Crisis-driven planning may permit fewer planning options, but you may have options nonetheless.

What Does it Mean to Have a Personal Plan?

A Personal Plan is your roadmap for your family and friends so that they can help you when you need it most. Personal planning must be tailored to your needs, whether you are single, or in a marriage or other domestic arrangement, or whether you have children, including the four-footed kind that we consider members of the family.

Generally, this planning includes the following documents:

• Will
• Power of Attorney
• Health Care Proxy
• Revocable Trust (Living Trust) and/or Irrevocable Trust
• Living Will
• Directive for Disposition of Remains

A Personal Plan includes a Last Will and Testament (sometimes confused with a “Living Will”), which is your statement of what you want to happen with your assets upon your death. Whether you are 18 or 88, you should have a Will. An estate can have different meanings for tax purposes than it does for the distribution of your assets after your death. Planning for the distribution of your assets, whether you distribute these during your lifetime or not until your death, gives you a measure of control.

If you die without a Will, then your assets are distributed to your “distributees” according to the New York laws of intestacy, which may not accomplish your objectives. Furthermore, if you die without having prepared a Will or a trust, you leave your family with a difficult burden at an already difficult time.

If you have a Will at the time of your death, then the person you named as your executor will petition the Surrogates Court for Letters Testamentary, and then proceed to gather and administer your assets, pay the liabilities of your estate, and then distribute the net assets as you have directed in your Will.

If you die without a Will (intestate) the law requires the appropriate person or persons to seek Letters of Administration, which involves petitioning the court for the authority to do for your estate what a nominated executor would do if you had a Will.

The Executor of your Estate has what are known as “fiduciary duties” to the Estate, rather than to any particular beneficiary of the Estate. Generally, a Will specifies that the testator waives the requirement for the Executor to obtain a Bond (to insure the Estate against a breach of fiduciary duties, rather than against the result of actions taken in good faith). An Administrator will almost always be required to obtain a Bond from an insurance company, and this is an additional cost to the Estate itself. I always recommend that you name not only your first preference for Executor (or two people who will serve as co-Executors) but that you also consider your second and even third preference just in case the first person you choose is unavailable or, by the time they would be required to serve, unwilling to do so. You should always discuss the appointment with your preferred Executors to be sure that they are both willing to serve and understand what they are being called upon to do. Although a family member is typically among the preferred Executors, this is not necessarily the case. The most important requirement is that the person be capable of understanding their role and carrying it out diligently, responsibly and efficiently.

Beneficiaries under the Will often include close family members, but the definition of one’s “family” may have grown to include close friends, and others whom you care about. Sometimes, there are one or more members of your close or extended family whom you may choose, for very personal reasons, to either exclude as a beneficiary or to otherwise limit their share in relation to the testamentary gifts you bestow upon others, as difficult as it may be to make these determinations, you are always free to choose when you are doing a Will. If you do not execute a Will, then New York State law dictates who will be a beneficiary of your Estate. I also encourage clients to consider their relationships with various charities, and ask whether one or more charities will benefit under the Will. Not only will a charitable gift be a legacy, but it also may be deductible from your gross estate for purposes of calculating Estate taxes due at death.

Revocable Trusts, also frequently called “Living Trusts”, are an alternative to testamentary gifts. A Revocable Trust is, as the name implies, a trust that can be revoked by the “grantor” (the person making the transfer to the trust). Typically, the Revocable Trust is also a so-called “grantor trust”, which means that income from the trust continues to be taxable to the grantor. The grantor of the Trust can retain various powers over the Trust and the property to ensure that the Trust has “grantor trust” status for tax purposes. The grantor can even be the trustee.

A Revocable Trust becomes irrevocable upon the death of the grantor, so that any assets in the trust then pass to the beneficiaries of the trust immediately. Many people view this as an advantage because it avoids the time and expense of probating the Will before the property can be transferred to the beneficiary. The property in the trust is still considered part of the grantor’s taxable estate, however. It you establish a Revocable Trust remember that property you want to be in the Trust must actually be transferred to the Trust (eg, the deed to your home must be changed from your name to the name of the Trust). If you later revoke the Trust then you have to remove the property from the Trust. Even if you establish a Revocable Trust, you still need to have a Will just in case there is, at the time of your death, any property that has not already been transferred to the Trust (otherwise that property would pass under the law as if you died without a Will or a Trust). The Will can be a “pourover” Will in which the property that was outside the Trust goes automatically into the Trust, or it can provide entirely for gifts outside the Trust.

Finally, just as the position of Executor under your Will is a very important role, the position of Trustee under the Trust carries with it fiduciary duties to the Trust. This responsibility should be placed in someone who is capable of understanding the requirements of the role, and who will carry out those responsibilities diligently, responsibly and efficiently.

Do all elder law attorneys practice in all areas of elder law?

Many, but not all, Elder Law attorneys practice in several or all of these areas. You will want to hire the attorney who regularly handles matters in the area of concern in your particular case and who will know enough about the other fields to question whether the action being taken might be affected by laws in any of the other areas of law on the list. For example, if you are going to rewrite your Will and your spouse is ill, the attorney should be able to address Medicaid Planning in the context of your overall Estate Planning.

Why consult an elder law attorney?

Attorneys who practice in the field of Elder Law work with multigenerational issues. They work with the elderly, and are able to empathize with some of the true physical and mental difficulties that often accompany the aging process. Their understanding of the afflictions of the aged allows them to determine more easily the difference between the physical versus the mental disability of a client. They are more aware of real life problems, health and otherwise, that tend to crop up as persons age. They are tied into a formal or informal system of social workers, psychologists and other elder care professionals who may be of assistance to you. All of these things will hopefully make you more comfortable when dealing with them and ease your way as you try to resolve your legal problem