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Elder Law Attorney or Estate Planning Attorney?

Elder law attorneys are advocates for seniors and their loved ones and should not be confused with estate planning attorneys. Estate planning attorneys primarily focus on the question “what happens when I die?”  That is, how and to whom will your assets be distributed to after you are gone.  An additional emphasis is also placed on minimizing estate tax liabilities through the use of wills and trusts.

Elder law attorneys focus on the question “what happens if I live?”  Or more specifically what happens if I live but am not healthy and have increased health care costs. An estate plan does not address this need.  Although an estate plan can help you answer what happens when you die, only a long-term care plan can help you answer both questions.  In elder law, emphasis is placed on the needs that arise before your death, such as preserving your money, income and assets should you, your spouse or other loved one become ill, disabled or incapacitated.

An estate plan will insure that if you have assets when you die, they will be passed in the manner you wish.  However, the key word here is “if.”  An estate plan will not guarantee that there will be anything left.  Your assets could be depleted by a lengthy illness, hospital or nursing home stay, leaving your spouse and loved ones with nothing.  A long-term care plan can ensure that you and your family will be cared for during any periods of incapacity or disability during your lifetime.

For example, Husband and Wife own a home valued at $400,000 and have $200,000 in additional assets.  They have two adult children.  Daughter has Down’s Syndrome and is currently living in an adult residential home.  Husband and Wife are the guardians and conservators of Daughter.  Wife has Multiple Sclerosis and needs some daily assistance. Although, Husband has been providing the necessary care to Wife, he has been getting confused and forgetful in recent months.  Husband is diagnosed with early onset Alzheimers.   Although an estate plan is important for the couple, it won’t help them deal with the problems they are now facing – i.e., How will they afford the cost of nursing home care should either or both of them need it? Who will care for Wife – and Husband- when his Alzheimers reaches a more advanced stage? Can they remain in their own home with assistance or will they need to go to a nursing home?  Will they lose all their hard-earned savings on long term care? It should be clear that Husband and Wife need a long-term care plan tailored to meet their individual and specific, emotional and physical needs going forward.

An elder law attorney can help Husband and Wife with the following:

  • Discuss the importance of wills and estate planning, including protecting assets for the surviving spouse, planning for daughter with special needs, probate proceedings, and other matters.
  • Create durable powers of attorney to handle financial matters and health care proxies to handle medical decisions in the event Husband or Wife can no longer handle their own affairs.
  • Draft living wills or other advance directives detailing their wishes with regard to end of life decision making if a doctor certifies there is no hope of recovery.
  • Provide help with long term care options, patient rights, Medicare and Medicaid and other health care planning in the event either of them need long term care.
  • Provide help with other benefits, such as at-home community benefits and veteran’s benefits.
  • Help with the selection and appointment of a successor legal guardian and/or conservator of daughter.
  • Help locate long term care facilities and manage assisted living cost, if necessary.