How an Elder Law Attorney is Similar to an Estate Planning Attorney

In a prior article, I discussed the differences between an elder law attorney and an estate planning attorney. In this article,I want to explain how an elder law attorney is similar to an estate planning attorney.

Elder Law Attorney Updates Wills and Revocable Trusts

Many elder law clients saw an estate planning attorney over a decade prior to entering the elder law attorney’s office because they view estate planning as a one-time task. It is important to review one’s estate plan and will periodically to see if there are any changes. Certain assets would be better jointly titled (to avoid probate), other assets ought to be placed into a revocable trust (also to avoid probate). An elder law attorney can assist with this estate-plan review.

Funding The Revocable Trust

Revocable trusts are often created, but not funded. This is kind of like opening a bank account without putting any money into it: it's there, but meaningless. As our clients get older, it becomes more important to actually fund the revocable trust. An elder care attorney or estate planning lawyer can provide detailed instructions and guidance on how to properly fund a revocable trust.

Revocable Trust to Avoid Financial Elder Abuse

Reviewing one’s estate plan with an estate planning attorney or elder law attorney periodically can also help minimize risk of financial elder abuse. Often when a revocable trust is first created, the settlor/grantor is also the sole trustee. As our clients age, at some point it will make sense to introduce a trusted co-trustee. This provides a twofold benefit: (1) as the client ages, it becomes easier to manage their assets with a co-trustee empowered to act and (2) prior to making any financial transaction, being able to tell a new accountant, financial advisor, family member, friend (any potential would-be elder abuser) that “All my assets are in a trust and I need to consult with my co-trustee about any financial transaction” is a powerful deterrent to anyone thinking about committing elder abuse.

Elder Care Lawyer Updates the Durable Power of Attorney

Similar to an estate plan, clients often assume that the durable power of attorney is a once-size-fits-all document. In fact, it is a document that, especially for Medicaid-planning purposes, is the first and most important document that must be changed.  It is also wise to review who has the power of attorney (who is the agent) to make sure that person is still the best choice and the one who will act in the principal's best interest, especially when the principal is no longer capable of making decision for him or herself. If the power of attorney needs amending, an elder law attorney or estate planning attorney can also advise on who to follow up with (i.e. send updated POAs to banks, financial institutions, even government agencies). An enhanced power of attorney is needed for Medicaid planning and long-term-care planning.

Elder Needs Lawyer Review Living Will and Health Care Surrogates

Both elder law attorneys and estate planning attorneys will review the estate planning basics and, if necessary, update other important documents such as the living will and health care surrogate designations to make sure that these documents continue to align with the client’s concerns and desires.

While elder law and estate planning are certainly related fields handling similar client concerns, they are really two different specialties. Most elder law attorneys can handle simple estate planning. For anything complex, especially for tax considerations, I would refer my client to an estate planning attorney. Similarly, most estate planning attorneys do not handle medicaid planning and would refer their clients to an experienced elder law attorney.