May is Elder Law Month and was established by the National Academy of Elder Law Attorneys (NAELA) as a way to bring attention to the particular legal needs of the older adult community. While all adults should create an estate plan to ensure that their wishes are carried out if they become incapacitated or when they pass away, the needs and concerns of older adults are different than those of younger people. Elder law attorneys are attuned to the issues that impact older adults and skilled at addressing those issues. Read on for five reasons why engaging an elder law attorney as you age is important.

1. A Durable Power of Attorney is a legal document in which the maker (the Principal), designates a person (the Attorney-in-fact) to have the authority to manage the Principal’s financial affairs. For estate planning purposes, a Durable Power of Attorney is created to insure that should the Principal become incapacitated, the Attorney-in-fact will have the legal authority to act on behalf of the Principal with respect to legal and financial affairs and non-medical matters. For many older adults, protecting assets from having to be spent down on long-term care costs is important. In order to ensure that their Attorney-in-fact has the authority to undertake long-term care planning, a Power of Attorney must specifically authorize actions that are typically needed to protect assets from spend down. These include granting the Attorney-in-fact the authority to make gifts of the Principal’s assets, create an irrevocable Trust, and so-called ‘self-dealing’ authority. Elder law attorneys are knowledgeable about the importance of these provisions for older adults.

2. Older adults often worry about protecting assets from the high cost of long-term care; something that is not a concern for younger people. Elder law attorneys can advise clients about their options for protecting assets from having to be spent down on long-term care costs along the with the advantages and consequences of such planning.

3. As they age, parents may feel more financially secure – the children are grown and living on their own, college is paid for, there is no longer a mortgage on the house – which may make them more inclined to make gifts to children and grandchildren. While most estate planning attorneys are skilled in advising clients about the tax aspects of gifting, elder law attorneys will also advise clients about the impact that gifting will have on their eligibility for long-term care benefits. This can avoid a serious ‘trap for the unwary’ in the event long-term care benefits are needed.

4. Long-term care insurance can be an excellent ‘tool’ in a person’s long-term care planning tool-box. While elder law attorneys do not sell long-term care insurance, they often work closely with individuals who are specialists in long-term care insurance. Elder law attorneys can advise clients as to how long-term care insurance would work as part of a long-term strategy for payment of care costs as the client ages.

5. Health Care documents consisting of Health Care Proxies, Living Wills and HIPAA Authorizations are important components of every estate plan. For seniors, making sure that their Health Care Proxy includes provisions permitting their appointed agent to make decisions regarding end-of-life care, administration of certain types of medications, and to contract for care givers or care facilities on behalf of the Principal is critical to ensuring that trusted family members, and not a probate court, are the ones making decisions in times of crisis.
Making sure that one’s affairs are in order is a primary goal of estate planning. For older adults, working with an elder law attorney means working with an attorney who is attuned to their particular legal needs. If you are an older adult, ‘celebrate’ Elder Law Month by contacting an elder law attorney to review your estate plan documents to ensure they are consistent with your current goals and concerns.

Attorney Suzanne R. Sayward is a partner with the Dedham law firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate settlement and elder law matters. She is certified as an Elder Law Attorney by the National Elder Law Foundation, a private organization whose standards for certification are not regulated by the Commonwealth of Massachusetts. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit our website at www.ssbllc.com or call 781/461-1020.

May, 2023

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