What is Elder Law and How is it Different From Estate Planning Law?

 

Elder law is a practice area that started out as an outgrowth of the more traditional trusts and estates field, but is essentially a general practice area that is concerned with the needs and legal challenges of older people (elders) as the American lifespan continues to increase.  With medical advances and relative affluence, people are living longer, and periods of incapacity are more common, along with a greater incidence of cognitive and physical disability.

Other factors that impact the growth of elder law are the outsourcing of some of the care that families have traditionally provided elders, which has resulted in no small part from the number of women in the workforce, along with family members living apart from each other geographically.  There have never been so many octogenarians on the face of the planet, and  this has important implications for attorneys practicing law, particularly for those of us who are baby boomers.

 

What are some of the “legal problems” associated with longevity relevant to elder law?  Here are some to consider:

      • Wills (especially important if part of a blended or nontraditional family, or if no children)
      • Durable Powers of Attorney (preventive tools used, among other things – to keep people out of guardianship or conservatorship proceedings in probate court);
      • Longevity  Estate (financial and tax) Planning;
      •  Elder Abuse and Financial Exploitation: Prevention,  Detection and Redress;
      • Age and Disability Discrimination in Housing;
      • Marriage, Common Law Marriage; Divorce and keeping the peace in a blended family;
      • Health Care Power of Attorney and  Advance Directives (living will);
      • Guardianship and Conservatorship probate litigation;
      • Capacity Issues in a variety of contexts (especially troubling financial concerns for someone who is starting to “slip” cognitively);
      • Probate Decedent’s Estate or Trust  Administration; and
      • Medicare and Medicaid planning.

Because elder law is a practice area defined by the client served, which means the representation of older people (elders), this sometimes involves the presence or participation of family members or other persons who are involved with caring for or supporting the elder. Elder law has developed from a relative niche practice when it was first recognized as such about thirty years ago – to more of a general practice area. As a practice area elder law is constantly developing,  and will continue to do so as we see the number of baby boomers age.   The durable power of attorney for health care is probably the most recognized symbol of the rise of the number of elders in our population. Our society will continue to grapple with many longevity and bioethics issues, and quality of life questions will loom larger as baby boomers age and the number of elders rises.

So how do elder law attorneys help their clients?  I like to say that the law in this practice area is “a healing profession.”     We help individuals, who are often supported by and rely on family members and other loved ones manage disability – negotiating the short term and long term measures to assist an elder in financial and health care decision-making.  We can also identify the legal requirements for maintaining an elder’s safety net (aging in place in community, what is effectively “social security”).  An elder law attorney with some EQ (emotional intelligence)and empathic skills can also have frank conversations and  look at legal problems in the context of financial, medical, emotional , and autonomy factors and values important to the individual.  Many elder law attorneys have a wide and deep network of allied professionals who perform work for elders as professional guardians, professional fiduciaries, money management and bill paying services, geriatric care managers, among others.

A big part of elder law is about counseling clients about how available options and alternatives can serve their identified strategy and  goals.  Each of us who has attained “elderhood” has done so in an individual way, based on certain values, attitudes and approaches to life.  You may not think that an attorney would be asking clients about these personal matters, but they are often a substantial part of how an elder law attorney approaches a client’s problem.  Why would this be beneficial to the client and his or her family or community? I think it is because many of us – me included – take a big picture approach to our client’s problems, applying helping principles in a multidisciplinary way and with a focus on empathic listening.

Here I would also offer an insight from  a favorite book of mine – Daniel Pink’s “A Whole New Mind,”   which talks about “high concept, high touch”  and in terms of the elder law attorney’s work, it takes us from being a document preparer to being a symphony conductor.   A symphony conductor . . . . really Barb?!    What I’m talking about is an ability to do my work for clients with sensitivity to the big picture of creating something unique for them  that is beautiful, an artistic expression of legal craftsmanship.  What Pink writes about is a shift from IQ alone to include also EQ (emotional intelligence), an increased value placed on creativity, and the importance of meaning-making in our work lives.  All of these are important considerations for solo attorneys, particularly those working in elder law where there is often chaos, loss, grief, and high levels of emotionality among clients and their family members.   I know that focusing on how I am helping people in creative and compassionate ways makes all the difference for me – it is why I love doing the work I do for clients.

Legal and Financial Considerations for Nontraditional Relationships

 

 

This post is the first of a series about estate planning and unmarried couples.  By “unmarried couples,” I mean both heterosexual couples who choose not to marry and same sex couples whose unions or marriages are recognized by some states.

Being in a nontraditional relationship presents a number of challenges about which people need to be aware.  These challenges vary from state to state but tend to be uniform in the federal context (IRS, social security, veteran’s benefits).  The legal challenges stem from the fact that (unless there is marriage, civil union or in Colorado – a designated beneficiaries agreement) the couple are legal strangers to each other, with limited or to-be-determined rights regarding the other or their relationship.

Some financial difficulties include:

1. You have to file your taxes as head of your household, or as a single individual.

2. The state you live in may not provide a divorce-like (palimony or settlement) procedure that gives you your equitable share of assets.

3. You and your partner do not get each other’s Social Security benefits.

4. You may have to sell your house to get long term care benefits under Medicaid. (This is changing, read  this for more information.)

5. You must designate your partner as the person to make your decisions if that is what you would like to see happen (by using a medical or financial power of attorney). Otherwise, the state you live in may default to a blood relative to make those decisions.  See this news release from the CMS website regarding Medicare’s enforcement of equal visitation.

6. You will want to carefully consider creating a will to get around your state’s intestacy laws in the event they do not recognize your union.  Keep in mind that Colorado is one of ten states that recognizes common law marriage, and unmarried couples can execute a designated beneficiaries agreement

7. You are not eligible to receive the transfer of your partner’s exemption like married couples are.

For more information about the financial difficulties, check out Erik Carter’s article “In a Nontraditional Relationship? Beware These 7 Financial Pitfalls,” in Forbes.

The lack of legal and financial protections apply to same sex couples along with unmarried couples who could otherwise get married but have chosen not to get married.  Keep in mind that your relationship may seem like a marital one, but just because you behave the same way as a married couple, the law will not treat your relationship with as a marital relationship.  It’s best to know these things up front and not be surprised by them!

Estate Planning for Someone With a Chronic Illness

A large factor in the burgeoning number of older people in our population is the successful management of chronic conditions and diseases.  Many chronic conditions and diseases are now, thankfully, routinely managed with regular medical care and pharmaceutical drugs.  Some chronic diseases can adversely impact a person’s ability to make a living during the prime earning years of their lifetime, and may cause periods of physical and mental disability and have serious emotional consequences as well.  Many people who are disabled as a result of chronic illnesses or conditions are not “seniors” and they face special estate planning challenges.

I recently had the opportunity to hear Martin Shenkman, a nationally recognized estate planning attorney, CPA and RV driver,  speak to a professional group to which I belong.  He had some very useful insights into legal, financial, medical and tax planning for those suffering from a chronic illness.  Shenkman’s wife Patti (an M.D.) was diagnosed with multiple sclerosis in 2006 and now he and his wife and their little dog Elvis (yes, he’s a chick magnet) spend some time traveling around in an airstream trailer so that Shenkman can deliver insightful and entertaining educational programs to professional planners (lawyers, CPAs, financial planners and insurance consultants) on  tips for advising clients and their families who are living with chronic illnesses including: ALS; Alzheimer’s Disease; Parkinson’s Disease; COPD and others.

Shenkman’s article “Estate Planning for Clients with Chronic Illnesses” is available here.  You can look at his numerous articles helpful for both consumers and professional planners here.  I especially liked his “holistic” or multidisciplinary approach to planning for individuals and individuals relative to their unique family situations,  and which addresses not only the legal issues but also financial, tax, health and lifestyle considerations of those facing chronic diseases and conditions.

In the legal context, chronic diseases and conditions can often impact a client’s capacity to hire an attorney, as well as the capacity to make a will or trust.  This is problematic in some progressive diseases in particular, such as Alzheimer’s and Parkinson’s, but also in MS or COPD, where flare-ups may implicate cognitive functioning.  Parkinson’s may also involve certain forms of dementia, and where there is depression with any of these chronic diseases, it can sometimes be masked in other symptoms.

People facing these diseases may be more motivated to consider planning for their future and to take care of their family.  Clients who are meeting with an attorney may want to make sure that their lawyer asks enough questions and that she or he listens carefully to responses.  What can sometimes happen is that a detail that the client thinks is not important is indeed important from a legal planning perspective. Some elder law and estate planning attorneys are more knowledgeable about and sensitive to medical conditions and diseases and how they impact a person’s life.  The average age of diagnosis for both Alzheimer’s  and Parkinson’s is 60 and over.  Both Alzheimer’s and Parkinson’s are progressive in nature – Alzheimer’s is a brain disease and Parkinson’s is a disease of the nervous system.  Both of these diseases present challenges for persons interested in taking care of themselves and their families while they are living with the disease, so it is important to not wait until the opportunity for planning has passed.  Both The Alzheimer’s Association at http://www.alz.org  and the Parkinson Association of the Rockies at http://www.parkinsonrockies.org have helpful information for the public about legal issues for planning purposes.  Taking an approach to plan for a progressive disease such as Alzheimer’s or Parkinson’s can help people affected by these diseases maintain quality of life and dignity.

National Healthcare Decision Day – Are You Ready?

Does It Matter How We Face a Health Crisis or the End of Our Life?  If you answered yes, like most Americans, then you may want to have that difficult conversation now – while you can, and put a plan in place to ensure that your preferences are known and that the pressure is taken off family members to decide in a vacuum.

Monday, April 16th marked the 5th Annual National Healthcare Decisions Day.  What is National Healthcare Decisions Day?      It is designed to educate the public and providers about the importance of advance care planning.  It promotes the idea that having these conversations and making plans to support having the preferences and choices carried out is taking care of each other.

Please don’t mistake this for a national “fill out a form” day.  This is not the message!  It is about appreciating the significance of talking to loved ones about health care scenarios and making preferences known.  The end result of this process is the documentation.

You can begin the process by asking yourself: “what kind of health care do I want if I have suffered a life-threatening traumatic injury, accident or face an illness that may be terminal or is likely to impair my ability to decide for myself?  These are not “unthinkable” scenarios, they happen every day whether we are aware of them or not.  While we cannot control many of the circumstances leading up to the illness or injury (when it is often too late to have the conversation), we can choose to make deliberate and informed choices about health care, and this will make it much easier for our loved ones to take care of us, instead of worrying about “what we would have wanted.”  A great form that is readily available to assist in thinking about these questions, scenarios, preferences and values is available from the University of New Mexico in pdf form.     This form is long but it is thorough and likely to cover situations that we otherwise wouldn’t consider.  Many of us use our personal experience as a reference point (“don’t let me end up like great-Grandma Jones who was kept alive for seven months . . . !”), but that should just be the starting point for the conversation.

How do I get started?

  1. Educate yourself – take a look at the Colorado Bar Association’s pamphlet about Advance Medical Directives.
  2. Think about what is important to you by using a tool like the Values History form or the American Bar Association’s Toolkit for Health Care Advance Planning
  3. If you have special concerns relating to your decisions, or need help getting family or loved ones involved in the process – get assistance!
  4. Pick a person (an agent or proxy) on whom you can rely to be your health care agent and make sure that any questions you have about how this arrangement works are addressed by legal and/or medical professionals.  Some basic questions about the difference between a financial and a health care power of attorney are answered in the Colorado Bar Association’s Senior Law Handbook   where you can also find good information about hospice and palliative care.
  5. When you have identified what you want, communicated with others and discussed your preferences, you will want to ensure that these will be carried out – so don’t forget the last step of making the documents!  Each state has its own unique laws, so while you may think that  a “one-size-fits-all” form you find is great, you may want to be sure that it will work in the way you want it to – so check with an attorney who focuses on elder law and these types of issues.

Law As A Healing Profession

For you detractors who scoff at the idea of law as a healing profession …

I was inspired to write this post after reading a recent article by Mark Glover, “A Therapeutic Jursiprudential Framework of Estate Planning,” in 35 Seattle Univ. L. Rev. 427 (2012).

The author is an assistant professor at Louisiana State University.  The article begins with a reference to Moby Dick – specifically when Ishmael’s brush with mortality in the attack on the longboat in which he was riding was attacked.  Having survived the “jaws of death,” Ishmael subsequently puts his affairs in order and makes a will, and feels as if a stone was rolled away from his heart.  Glover’s article looks at therapeutic jurisprudence, the aim of which he describes as “to shape the law in a way that maximizes its therapeutic potential without undermining the law’s fundamental purposes.” at 429 (citation omitted).  Why did I read this article and describe it here?  Glover’s stated aim is to spread the word about therapeutic jurisprudence in the estate planning and administration context.  I was interested!

I liked his point about one of the “antitherapeutic”  aspects of making and finalizing a will – that the experience is essentially “taboo-defying,” and as such, tends to be upsetting to many people.  In my experience I think this is a stretch.  I work with many people who have been thinking about estate planning for a long time, and it takes them a while to come in and get started or to complete the process.  I can also say from my own experience of updating my will and POA just several weeks back, that a couple folks in my office looked at me as if I was not telling them something important about my life (or death).  Therein lies the taboo.  It is insidious!  Next he identifies seven concerns that psychologists have identified that lead to a fear of death:

  1. They can no longer have any life experiences;
  2. They may be uncertain as to what will happen to them if there is a life after death;
  3. They may be afraid of what will happen to their bodies after death;
  4. They realize they will no longer be able to care for their dependents;
  5. They realize that their death will cause grief to their relatives and friends;
  6. They realize that all their plans and projects will come to an end; and
  7. They may be afraid that the process of dying will be painful. (citation omitted)

Avoiding estate planning helps some people avoid thoughts of their own mortality. I must ask the practical question – and how is this a good thing? It is about perpetuating death-denial that pervades our culture.  The crazy thing is that busting the “taboo” of thinking about death by making an estate plan is – I believe – an invaluable way to think about what is important to us in our lives right now, and are we living the kind of life for which we want to be remembered?  I already broached this topic in an earlier post, about writing your obituary now. [link to post]  From this article I learned of a study that (more than thirty years ago) that referred to the professional estate planner’s anxiety about raising the issue of mortality with clients?!  I don’t think I know of colleagues with that type of skin.

Glover also looks at estate disputes and familial conflict and the tangled web of concern over who gets what when there are children and assets involved and everyone may not get along.  I liked his footnote citing an article by M. Begleiter entitled “Anti-Contest Clauses: When You Care Enough to Send the Final Threat.”  This is a primary reason that I advocate mediation clauses in wills. The mediation clause cannot, under present law, force disputing parties to go first to mediation prior to a challenge in court, but a testator can certainly express herself about how she intends her children to get along and resolve any disputes they may have. A good article by Lela Porter Love about mediating probate matters to preserve and promote family harmony can be found here.

In the second half of the article, Glover finally gets to looking at the “therapeutic consequences” of estate planning.  He seems to start with the premise that only sailors on whaling ships (like Ishmael) should be entitled to feel good about getting their affairs in order.  I would tend to disagree!  One of the first benefits he discusses is that of self-determination, namely that deciding in advance who will be your beneficiaries knocks out the possibility of others determining the distribution (even “the government” meaning state laws of intestacy).  He also cites a helpful article about the “Power Tools” of estate conflict management by Paul Fisher, available here.

Finally, I liked what Glover had to say about the will execution ceremony.  It is and ought to be recognized as an important achievement, one which should provide the testator an amount of satisfaction.  The typical will ceremony in Colorado involves two witnesses, and can provide a certain amount of relief in that the anxiety remaining about mortality will often be replaced by a feeling that a person has put his or her affairs in order.  The last bit of fascinating information in this article concerns the origins of the Nobel prizes.  Grover points out that Alfred Nobel was the reader of a premature and highly critical obituary, as it was erroneously originally reported that Alfred, not his brother Ludvig, had died of a heart attack.  As a result of the “merchant of death” description in the obituary, Alfred Nobel bequeathed the bulk of his family fortune and his family name to the prizes that rewards persons making contributions for the benefit of humanity.  I recommend this article for reading by anyone who questions the therapeutic benefits of making a will, writing a testament, or executing durable powers of attorney.