Elder Law involves the legal issues that result as a consequence of the aging process. This is a rather narrow field and can be a little confusing to some senior citizens.
Many seniors have legal problems that are similar to people in their thirties and forties; for example, wrongful termination (employment), bankruptcy, or real estate disputes. Sometimes a potential client calls an elder law attorney to obtain, for example, family law advice regarding a possible divorce. That lawyer explains that family law and divorce issues do not fall under the category of elder law. Elder law pertains to persons who, generally, are 65 years of age or older. Nearly always, the client responds by saying: “But I’m over 65 years old”.
Elder law generally involves the following types of legal matters:
Elder financial abuse. Taking advantage of another person’s weaker state of mind and wrongfully obtaining their money and property through undue influence, coercion and manipulation. A civil lawsuit is usually filed to recover the property fraudulently taken.
Elder physical neglect. Most often, this concerns nursing homes that fail to properly care for their elderly patients. It can also be caused by in-home caregivers or anyone who has the primary responsibility of caring for an elder.
Estate Planning. This involves the creation of trusts, wills and powers of attorney for financial matters and healthcare decision making. Although these tools should also be utilized by younger people, they are most often created for elder adults at a time when they seek to get their financial affairs in order.
Probate. The probate process enables a decedent’s estate to be distributed to loved ones after death. With the proper use of trusts and wills, the probate process may not be necessary. However, if no prior estate planning was accomplished, then it may be necessary to utilize the probate court in order to complete the distribution of assets.
Conservatorships. When proper estate planning documents have not been put into place (for example, powers of attorney), then it may be necessary to establish a conservatorship over the elder’s person and/or estate. Court intervention is sought to grant someone the authority to make necessary healthcare and financial decisions for the incapacitated elder.
Medi-Cal Planning. This area refers to the laws and regulations in California that determine the guidelines to qualify an elder to receive government benefits to pay the high cost of long term care in a skilled nursing facility. Riverside County, for example, has local Medi-Cal offices where the application process is begun and an ultimate determination of eligibility is made. Medi-Cal is a complicated area of law with the goal of having the state pay the monthly nursing home bills and, at the same time, allowing the elder and their spouse to keep as much of their assets as possible so they can pass them on to their loved ones.