Summary

Elder Law refers to issues relating to elderly persons, such as age discrimination, abuse, neglect and exploitation, healthcare insurance and fraud, retirement planning and benefits and estate planning.

The elderly may be subject to age discrimination in the context of employment or in credit or financial transactions. The Age Discrimination in Employment Act offers protection for workers who are 40 years of age or older from discrimination in the workplace related to hiring, firing, testing, training, benefits, layoffs and retirement issues. Most states have Fair Employment Practices Agencies to enforce state anti-discrimination laws. The Equal Credit Opportunity Act, which is enforced by the Federal Trade Commission, prohibits creditors from engaging in age discrimination.  A creditor may not use age as a reason to deny or decrease credit when an applicant otherwise qualifies.

Elder abuse and neglect may be physical, mental, financial or sexual in nature and may be perpetrated by family members and/or care givers. Warning signs that an elderly person may be the victim of abuse or neglect may be physical (bruises, broken bones, bedsores), or the elderly person may simply withdraw socially or become depressed as a result of the abuse or neglect. State statutes set forth penalties and protection services through state agencies and programs for victims of elder abuse or neglect. The Older Americans Act, which is administered by the Administration on Aging (AOA), governs the investigation and reporting services for elder abuse in long-term care facilities through its Ombudsmen Program.

An elderly person (or senior adult) should consider executing estate planning documents, such as a will, a trust and/or a durable power of attorney to ensure that their property is distributed according to their wishes, to save money on taxes and court costs and to avoid family conflicts and burdens. A will is a document that takes effect after death that sets forth provisions such as whom the senior wishes to receive property upon his or her death, who he or she wishes to carry out the instructions in his or her will and who he or she wishes to care for dependent minor children in the event neither parent is available to provide such care. If a person dies without a valid will (or intestate), the state will divide his or her estate among relatives according to its intestacy laws and appoint an administrator of the will.

A trust is another document a senior adult should consider. A trust is a legal arrangement where one person or entity (the trustee) manages certain property or assets for the benefit of another person (the beneficiary) who actually owns legal title to the property or assets. Upon the death of the person who created the trust, the trust property is not subject to probate, but passes according to the trust provisions as set up by the creator of the trust. Therefore, a trust is often used as a replacement or supplement to a will in order to avoid the probate process, as well as to lessen taxation. Trusts can have important estate tax, governmental assistance, probate and personal consequences, and therefore, should be drafted in coordination with a person’s will.

Seniors may find themselves unable to conduct their own affairs due to a temporary illness, lack of transportation or general immobility.  Establishing a power of attorney will allow a third party to handle property, financial, medical and/or legal affairs for the senior person. A power of attorney is a written document through which a person gives another person the right to handle their property, financial, medical and/or legal affairs.  Unless the person establishes a durable power of attorney, the power of attorney is only valid for as long the person who made it is able to handle his/her own affairs.  A durable power of attorney will continue after he or she becomes incapacitated.

Alternatively, when a senior adult is unable to care for themselves, a legal guardian will often be appointed by the court.  A legal guardian is a person who will take legal custody of the senior and receive the legal right to handle the senior person’s property, financial, medical and legal affairs.  A limited guardianship gives the guardian the right to handle only some of the senior person’s affairs. The senior adult for whom a guardian will be appointed will receive notice of the hearing date and will have the opportunity to prove to the court that he or she is capable of handling his/her own affairs.


Inside Summary