Elder Law and Senior Legal Matters
LegalShield offers comprehensive estate planning services and support from local law firms.
LegalShield offers comprehensive estate planning services and support from local law firms.
SeniorLiving.org is supported by commissions from providers listed on our site. Read our Editorial Guidelines
What is Elder Law?
There’s a myriad of laws in the United States, designed to protect seniors as they decline, both mentally and physically. The broad topic is called elder law, and it covers a variety of issues, from health care to social security to guardianship to fraud, and much more. It also deals with wills and estate planning, and what happens to your assets after you’re gone. It can be a complicated topic, but it’s important to know about as you get older. Here are some of the most important issues to be aware of.
In This Article:
Advance Directives ↓
Fraud and Abuse ↓
Statutes ↓
Trusts and Estates ↓
You never know what might happen to you down the road, so it’s best to be prepared. You may be fine now, but if you ever become incapable of handling your own affairs, you and your loved ones must have a plan in place. Here are some advance directives you can take while you’re still of sound mind and body, against the day that you might not be.
As a person gets older and begins to lose their faculties, it’s more difficult for them to make important decisions regarding their own lives. They might have a child, spouse, or trusted friend to advise them on these decisions. However, as they decline further, it may be necessary to give that other person complete control over their lives and affairs.
Power of attorney (or durable power of attorney) is a legal document that authorizes someone to act on behalf of another person in various matters, such as financial, legal, etc. This can include things such as paying bills, managing property, and making medical and end-of-life decisions. There are several different types of power of attorney that can be granted:
General POA
This gives a guardian complete control over their charge’s affairs. They handle all of the person’s money and other assets. They can make all decisions on the charge’s behalf, including purchasing life insurance for them, operating their business for them, speaking for them in court, and more. It’s usually given when a person no longer has the physical or mental capacity to make decisions for themselves or act on their own behalf.
Special POA
This allows a person to give control of one specific aspect of their lives over to someone else, but retain autonomy in all other areas. It’s given when that person is no longer capable of doing specific things, but still retains their general mental faculties.
Healthcare POA
This specifically grants a person the authority to make medical decisions on someone else’s behalf. This can include things like medications, surgeries, and other procedures, as well as what actions should be taken during a person’s last days.
For a senior whose physical and mental health are declining, it can be a good idea to make arrangements in advance to hand some form of power of attorney over to someone you trust when you’re no longer capable yourself. Doing it voluntarily is much easier for all involved than having to go to court and have them declare you legally incapable.
Living Will
A living will is similar to a healthcare power of attorney. It deals with a person’s medical issues after they’re no longer physically or mentally able to make important decisions for themselves. However, a healthcare POA grants someone the authority to act as an agent on someone else’s behalf and make those decisions for them. On the other hand, in a living will, the senior writes down their medical wishes themselves, while they still have their faculties, in anticipation of the day when they no longer do.
There are forms you can fill out which ask you questions about what, specifically, you want done in various medical situations, such as if you need long term care or lifesaving surgery, or are in your final days. Different states have different requirements for filing a living will, so talk to an attorney who can help you through the process.
Do Not Resuscitate (DNR)
A DNR order states that no immediate lifesaving measures are to be taken on your behalf. For instance, if you suddenly stop breathing, or your heart stops, a paramedic should not perform CPR. It also means you do not wish to be kept on life support. While a living will is filed by an attorney, a DNR comes from your doctor.
Guardianship or Conservatorship
If an elderly person has not given power of attorney to someone else, but they clearly no longer have the capacity to act on their own behalf, then a guardian or conservator can be appointed for them. The court appoints a trusted family member or friend to make decisions on your behalf, such as financial and medical. If no family members or trusted friends are willing or able to take on that responsibility, then a professional guardian may be appointed instead.
Friendly Grandparent Syndrome
This refers to the fact that older people tend to be more trusting, which makes it easier to take advantage of them. This is particularly common with telemarketers and phone-based scammers. A person who seems charming and helpful on the phone can convince an unsuspecting senior to buy a product or service for far more than it’s worth—or simply to provide their credit card and bank account information, which can be used to drain their savings and commit identity theft.
Statistics show that seniors are less likely to report fraud. Often, they don’t realize that they’ve been scammed. And if they do, they might be ashamed to tell anyone. Falling for a scam could be evidence that they’re no longer able to care for themselves and need an appointed guardian, making many seniors reluctant to admit they’ve been duped. Or even if they want to report it, they may not know how or where to do so.
To protect yourself against fraud and elder financial abuse, make it a point never to give out financial information over the phone. Never pay a fee in order to collect winnings you’re supposedly entitled to. Don’t sign any documents without first consulting with an attorney or a financial expert. And if someone tells you that a particular product or service is necessary or required, always get a second opinion from someone you trust before moving forward.
Charity Fraud
Friendly grandparent syndrome is not just about trusting others when they call, but about wanting to be helpful. For this reason, common scams against seniors involve fake charities or fundraising efforts. This type of fraud is particularly prevalent after natural disasters. A scammer will call and pretend to be collecting money to help the victims. And unsuspecting seniors will give them money in an effort to be helpful.
To guard against this type of fraud, only give to charities that you know and trust. If someone calls claiming to be raising funds for a particular organization, check them out online first and, once they’ve been verified, give directly through the official website, rather to someone over the phone.
It also helps to ask questions. Who, exactly, will benefit from this donation? How will the money be used, and what specific efforts is the charity making towards its goals? Scammers often use sad stories to prey on a senior’s sympathies, but when it comes to actual details about how the money is spent, or what actions the charity is taking, they may be lacking.
Home Repair Scammers
Does this scenario sound familiar? Someone comes to your door claiming to be a contractor, or to be providing a particular service for your home. The outside of your house looks shabby, but they can repaint it. Your driveway is cracked, but they can repave it. They have a special introductory offer for people in your neighborhood, but only if you act right now.
This is how home repair scammers take advantage of people all over the country, particularly seniors. They may also call and offer a specific service, such as cleaning your air ducts—or simply ask what kind of repairs or improvements you’d like done around the house, and if they can come by to give you an estimate.
They’ll quote you a price that sounds reasonable. But then, once they’ve had a closer look at your house, they’ll find all sorts of other problems, which could threaten your safety and must be taken care of immediately—and which will cost thousands of dollars more. They may also simply do subpar work, or sell you an extended warranty which they then refuse to honor when the job doesn’t hold up.
Here are some things you can do to guard against home repair scams:
If You Get Scammed
So what if, despite all your precautions, you do end up getting scammed? What recourse do you have? What can you do? Here are the steps you should take.
We’ve talked a lot about how to protect yourself, whether it be from fraud, or from your own eventual decline. But what does the law say with regards to aging and related issues? Let’s take a look.
U.S. Senate Special Committee on Aging
This committee was founded in 1961 to examine issues affecting people as they get older, and take steps to address them. They aren’t able to enact legislation themselves, but they can make recommendations. In particular, their research in health insurance was one of the factors that led to Medicare’s enactment in 1965. To this day, they’re constantly working to improve it. And they’ve been integral in reducing age discrimination when it comes to employment and other matters. Some of the issues they look at include:
They also regularly hold hearings on important issues affecting the elderly, from diseases like diabetes and Alzheimer’s, to preventing fraud and scams against seniors, to social security benefits and financial independence, to the rising cost of prescription drugs, and much more. And their website has copious resources on these and other issues, so that seniors can stay informed on things that affect them.
Fraud, Waste, and Abuse
These three issues are extremely important, particularly when it comes to seniors, which is why the Office of the Inspector General for the Department of Defense is committed to investigating and preventing them.
One of the most important legal issues as you get older is what happens to your estate after you’re gone. Even if you don’t have very much, it’s important to lay out a specific plan for your assets. Otherwise, the people who survive you could end up embroiled in legal battles and red tape for years afterwards.
Estate Planning Law
Estate planning involves more than just a will. It also covers many of the issues we’ve already covered, such as DNRs, power of attorney, and living wills, as well as tax issues related to your property, and more.
Most estate law varies from state to state, so to find out what you need to do and make sure these issues are all dealt with properly, talk to a lawyer with experience in estate planning. They can help you through all of the important decisions, make sure everything is legally binding, and save your heirs as much hassle as possible after you’re gone.
It’s also important to appoint an executor for your will. This is the person who will oversee the distribution of your assets and make sure that your final wishes are honored. Other duties of an executor include:
Obviously, for issues that involve payment, the money comes out of the estate, rather than the executor’s pocket. In fact, often, an executor will be paid for their services. If the money can’t be found to pay off the deceased’s final debts, then a portion of their property may need to be sold or auctioned, even if it was previously promised to someone else.
Trusts
In some situations, it may be best to put your assets into a trust. That means that a trusted third party is given care of your assets until your loved ones can claim it. This can help your heirs avoid probate after you die, which is often a long and drawn-out process that delays them getting what you’ve promised them. There are several different types of trusts:
Elder law can be a complicated matter—particularly if you yourself are in decline. However, it’s essential for you to know what your rights and responsibilities are: what you’re entitled to, and how you’re protected. To understand elder law better, and how it affects you, talk to a lawyer, who can guide you through the ins and outs and help you make all necessary arrangements, both now and after you’re gone.
Answers to the most common queries lawyers encounter about elder laws. As we grow older, many questions and concerns arise about how to live the rest of our lives. Where to live if you become frail, who will care for you, how to pay for care, how to turn over your assets, and so much more. Because the population of older adults is growing fast In the last decade, laws are also built to assure their rights and take care of their concerns. The elder law was made for senior citizens, especially those with special needs, who wants help in managing their medical and financial circumstances while growing old. Regardless whether you need to personally understand your rights, or just want to know more about the legalities of end-of-life planning, it always best to ask questions from the experts – the lawyers of Elder Law. One of which is the author of ElderCare Ready Book, Stuart Furman, Esq. from California. Based on Furman’s years of experience, these are the 5 common elder law questions they get from older adults who want answers.
Q: Can I defend my properties, assets, and estate from being taken away by Medi-Cal (Medicaid in California) when I die?
A: Most people in California believe that if they get Medicaid, assets they didn’t  include in their application are also exempted from being recovered by the Medicaid recovery statutes.
This is a “false impression,” based on Furman. Based on his experience, people often confuse the written words in the Medi-Cal document. “One of the common misconceptions people have is they… confuse eligibility exemptions with recovery exemptions,” said Furman. If a person’s house is exempted, meaning, not included in determining eligibility, it is not exempted from recovery. Because most people are confused with this, they apply for Medical recovery lien for their houses thinking those were not included in the program. The worst part is, local Medicaid offices do not usually give advice on protecting assets. But Furman says there are various legal ways to save your houses from Medicaid lien and other liens in your state. Consulting with an elder lawyer about it is a must.
Q: Can I afford long-term care for the remaining years of my life?
A: Answering this frequently asked question is not easy. None can’t make money “magically appear,” says Furman.
But according to him, you can afford it if you assess all your possible needs long before you need long-term care. Lay out all your resources and from there, develop a way how to stretch those funds to last your lifetime. Consider the following in when determining whether you can afford long-term care for the rest of your life.
Q: If I make a trust, can I modify it whenever I need to?
A: If you create a trust, you can also change it, according to Furman. An older adult can make two kinds of trusts. First is the revocable or amendable trust, which is a trust you can alter, modify, change and revoke. Second is the irrevocable trusts that you cannot revoke or change unless it says you can. Furman says that there are instances in which “irrevocable trust” can be changed and repealed. Ask your local lawyers on elder law for more information.
Q: If I make a living trust, does this mean I’m giving up control over my assets?
A: Furman says you are not giving up control even if you have a living trust. The switch of control occurs only when you die, or you become incapable of handling your own affairs.
“You are in control until death,” said Furman. Only then will a living trust be disseminated to your beneficiaries. In the instance that you become incompetent, the trustee successor you placed in your living trust will be the one to take over your “trust without court involvement,” Fruman added.
Q: Is it OK to make a living will without probate?
A: Most people confuse the meaning of “living will” and associate it with “living trust”. However, Furman notes that both legal documents are not the same. When a person makes a living will, they are leaving behind directions for people close to them to “pull out the plug” in the instance that the creator of the will becomes comatose. On the other hand, a living trust a legal tool a person can use to evade probate. However, every state has different regulations and rules about it. It is recommended to consult local attorneys about your situation to be sure.