Elder Law

How the Law Protects and Governs the Legal Issues of Aging

Elder law is a broad area of law encompassing the many issues that aging people face in today’s complex society. It includes:

  • estate planning,
  • planning for incapacity,
  • guardian and/or conservatorship issues,
  • financing long term care,
  • nursing home residents rights,
  • divorce and eligibility for public benefits,
  • property disputes,
  • financial exploitation by family members or friends, and
  • physical and emotional abuse of elders.

Navigating through the maze of figuring out how to pay for long term care, how to pass on assets to the next generation without jeopardizing the elder person’s care and financial stability in any way, making sure the elder person’s rights and independence are maintained and protected, and protecting the elder against the dangers of financial exploitation can be difficult and confusing for the elder and for his or her family. An elder law attorney can make sure you are aware of the variety of legal mechanisms which can help you or an elder close to you make sure that all the foreseeable important things are thought out ahead of time.

Here are some examples of common concerns where Elder law Attorneys can provide guidance and legal advice.

As we age, we grow concerned about passing our assets on to the next generation. Giving away some or all of the assets during life can have very serious consequences for the elder who may be left without necessary resources to pay for needed care. An attorney can assist with planning for eligibility for MaineCare (formerly Medicaid) to pay for long term care by assessing potential available options.

Well-meaning elders may make gifts of cash or real estate to family members or good friends only to find out that he or she did not carefully analyze the consequences of making such gifts with respect to getting financial assistance from the state to pay for expensive long term nursing home care. Consultation with an attorney before assets are given away can prevent the elder from possibly making serious mistakes that may leave him or her vulnerable, and if appropriate, can come up with a structured plan to gift.

Family conflicts can arise as decisions need to be made about the care of the elder. It is important to make sure that the voice of the elder is heard and that he or she be included in the decision making process. An attorney can draft the appropriate documents to protect the elder and can assist when a guardianship and/or conservatorship is necessary or has been filed against an elder who objects.

Increasingly, families face the reality of having to pay for very expensive care in assisted living facilities or nursing homes. A spouse who is able to remain at home may worry about paying his or her own bills while also paying for the bill of the facility in which the spouse resides. An attorney can assist by explaining the rules on eligibility, asset limits, and protection for the spouse who stays at home.

If an elder is denied public benefits such as long term care benefits (MaineCare/Medicaid) or is required the elder to spend down most of his or her assets, an elder law attorney can advocate for the elder.

Related Legal Terms

Improvident Transfer of Property – a presumption in the law that if a person who is 60 years old or older and transfers property to someone with whom he or she is in a confidential or fiduciary relationship for less than market value, that such transaction was the result of undue influence and may be revoked

Conservatorship – an action asking the probate court to establish a third party as a conservator to oversee that person’s finances, pay bills, manage investments, etc. when that person is unable to do so.  Guardianship may be established against the impaired person’s wishes if the court believes they are unable to handle their own affairs, and can therefore cause upset between people involved. A guardian has authority to make decisions regarding the one being represented, with the duty to make those decisions according to the best interests of the person under guardianship, but whether or not that person agrees. Depending upon circumstances, a better way to handle this is for an elderly person to designate such a person ahead of time to become Durable Power of Attorney in the event of disability.

Durable Power of Attorney – a document designating ahead of time a person who will make decisions on an individual’s behalf when he or she is declared disabled by a physician; or voluntarily giving a trusted person the authority to manage financial affairs when someone needs assistance with paying bills, managing investments, handling real estate sales, and other transactions.

Advanced Health Care Directive – a document designating who is responsible for making health care decisions when an individual is incapacitated and unable to make decisions regarding his or health or is at the end stage of life, and noting preferences regarding choices such as prolonging life or not prolonging life, the provision of artificial nutrition and hydration, the use of pain killers, the use or prohibition of extreme measures, and the choice of whether or not to donate organs

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This is for general information only. It is not intended as legal advice.