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Estate Planning and Elder Law

 Elder Law Part 1: Estate Planning 

While the mansion in the photo is indeed elderly (circa 1700), and many would no doubt call it an “estate,” Elder Law as it relates to estate planning isn’t always about large homes, or even elder persons.

The term “Elder Law Attorney” actually refers to a fairly new field of Law – yes, you guessed it – Elder Law. This speciality encompasses the traditional Estate Planning arena, but also includes healthcare, planning for mental disability or incapacity and the receipt of benefits as related to seniors. Often Elder Law overlaps with other practice areas and legal issues when a person is over 65. So how has this field come to be?

One of the primary reasons is the rapid increase of the elderly population in the United States. In the early 2000’s, 12% of our population was over 65 – but by 2050, it’s estimated that it will be upwards of 20%. These same people are also wealthier and more educated than ever before, thus giving them more political sway. This power, however, has been met with the cutting of government benefits upon which many senior citizens depend, and the rise of healthcare costs. In order to protect their assets, more and more seniors are seeking legal assistance in order to protect their hard earned assets.

In this post series, I will address the primary facets of Elder Law: Estate Planning, Medi-Cal Planning, Conservatorships/Guardianships, Elder Abuse, Estate & Trust Administration, and Probate & Trust Litigation. First, let’s consider Estate Planning as it relates to Elder Law.

Estate Planning and Elder Law:

An estate plan with a Trust (in addition to a will) is essential for anyone with assets over $150,000.  However, an estate plan is also necessary to plan for one’s medical care should they no longer be able to make medical decisions for themselves. A durable Power of Attorney and Advance Healthcare Directive provide a means by which to secure a trusted 3rd party to make medical decisions in case of incapacity. These documents are typically part of an estate plan, which can be done with an experienced estate planning attorney.

Estate Planning and Elder Law are also closely tied together in the sense that if one does not formally complete their Estate Planning documents and should become incapacitated or pass away, their family will be left to cope with one of the other facets of Elder Law – Probate, Conservatorship/Guardianship, Estate Litigation, and possibly Financial Elder Abuse. A probate is defined as the court distribution of assets upon the passing of someone who may have a will, but does not have a Trust. A conservatorship (also called guardianship in some states) is necessary if an individual becomes mentally unable to care for themselves, their assets, or both. In Contra Costa County, the majority of conservatorships I have dealt with as an attorney are for elderly persons who have Alzheimer’s or dementia. Probate or Estate Litigation can occur when there is no will, or a will in which gray area exists.

If estate planning documents are not carefully worded, specifically for you and your family members by an experienced attorney, room is left for argument between family members. Family members, as we all know – can and will argue. Arguments most frequently ensue over money and assets, but can occur when there is a contested conservatorship or other disagreement about medical care as well. Without estate planning documents, elder abuse claims can arise around financial elder abuse or physical elder abuse. Example: a sibling receives money from a parent just prior to passing instead of it going through probate to be distributed to all the children equally. Estate planning documents do not exist, so another sibling accuses the sibling who received money of applying “undue influence” to the parent, who was known to have dementia. Physical elder abuse claims can occur in situations like the Casey Kasem case, in which his daughter decided to “pull the plug” on his life support machine and his wife decided to remove him from the hospital and take him on a wild west coast excursion.

The bottom line is obvious: if you haven’t done your estate plan, it’s a really good idea to get it out of the way. I suggest going with an Estate Planning Attorney who specializes in Litigation – that way, they’re familiar with all of the ways things can go wrong, and can ensure your documents are executed as air tight as possible. And if you have a parent or elderly relative who has not yet done an estate plan – encourage them to do it as well.

Estate Planning is an often overlooked but critical part of a healthy financial future. If you need an estate plan, or need to update your estate plan, contact Matthew B. Talbot, Walnut Creek Elder Law attorney at 925-322-1763.

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