Aging brings a unique set of challenges and considerations, both legal and otherwise, which necessitates the “elder law” field. Elder law is a legal practice area that focuses on addressing older adults’ unique needs and concerns. It encompasses a wide range of legal areas that are essential for ensuring the well-being, protection, and dignity of seniors, as well as assisting family members. Elder law attorneys understand the unique legal needs and challenges that older adults face, and provide personalized legal guidance and support to help protect their rights and interests. Some common areas of focus in elder law include:
- Power of attorney documents and litigation
- Estate planning
- Advance health care directives and living wills
- Guardianship and conservatorship
- Long-term care insurance appeals
- Probate and trust administration
- Estate Litigation
- Vulnerable adult protection actions
Power of Attorney Documents and Common Issues
A power of attorney is a legal document that allows you to appoint someone to make decisions on your behalf if you become incapacitated or otherwise unable to make decisions for yourself. This can be especially important if you become seriously ill or injured and are unable to make decisions about your health care, finances, or other important matters. By having a POA in place, you can ensure that someone you trust will be able to make decisions on your behalf and protect your interests if you are unable to do so yourself.
Common issues involving Power of Attorney documents include challenges with activating the document, obtaining necessary physician letters to confirm incapacity, addressing breach of fiduciary duty by the attorney-in-fact, and encountering resistance from banks that refuse to accept the POA.
A whole host of other issues can occur, though, when there is a war of POAs – we often see this when one sibling has their parent execute a new POA to remove a sibling as attorney-in-fact, motivating the other sibling to do the same. Oftentimes, this occurs once the parent has capacity issues and does not understand what is happening.
In some instances, the principal of the POA may be teetering on incapacity and may revoke their POA out of paranoia. Therefore, while a POA can be a valuable tool in preventing the need for guardianship/conservatorship, it is not a guarantee that it will not be necessary. In general, though, a guardianship/conservatorship is more restrictive than a POA, and it involves more oversight and supervision by the court.
What is Estate Planning?
Estate planning involves creating a plan for managing and distributing a person’s assets, and managing healthcare decisions and authority, during their lifetime and after their death. It also encompasses a wide range of considerations, including financial and tax planning. It is imperative that estate planning be comprehensive, meaning that it takes into account family dynamics, potential long-term care needs, and tax considerations. Estate planning encompasses a wide range of options tailored to meet individual needs and goals. These options may include, but are not limited to, drafting Wills, establishing Trusts, creating Powers of Attorney for health care and finances, preparing advanced directives, facilitating community property agreements, and using transfer on death deeds. By offering these and other strategies, we ensure that our clients’ assets are protected, their wishes are accurately reflected, and their loved ones are provided for in the event of incapacitation or passing.
What is an Advanced Health Care Directive or Living Will?
Advanced health care directives, also known as living wills, are legal documents that allow individuals to express their wishes regarding medical treatment and health care decisions in the event they become unable to communicate or make decisions for themselves. These directives outline preferences for medical interventions, end-of-life care, medication use, and other health care-related matters.
What is a Guardian and Conservatorship?
Guardianships and conservatorships are legal arrangements that are used to protect the rights and interests of individuals who are unable to make decisions for themselves. A guardianship is a legal relationship in which a guardian is appointed by a court to make decisions on behalf of another individual, who is unable to make decisions for themselves due to mental or physical incapacitation. A conservatorship is similar to a guardianship, but it is specifically focused on financial affairs.
In order to establish guardianship or conservatorship, an individual must file a petition with the court and provide evidence of the individual’s incapacity. Though it is ideal to have a Power of Attorney document to hopefully circumvent the need for a conservatorship or guardianship, a POA does not necessarily prevent the need for a guardianship. For example, if the POA only covers financial or healthcare decisions, but not both, the individual may still need guardianship/conservatorship. Further, if someone does not believe the attorney-in-fact under the POA is acting appropriately, it can result in guardianship/conservatorship.
It is worth noting that a POA can be terminated by the principal by revoking the document. In contrast, a guardianship or conservatorship can only be terminated by a court order. Therefore, these may provide more stable and long-term solutions for managing the affairs of a person who is unable to do so for themselves.
What are Long-term Care Insurance Appeals?
Long-term care insurance appeals are a vital part of protecting the rights of seniors and ensuring they receive the benefits they are entitled to. Increasingly, we see clients who have spent years paying into a policy, only to be denied help when needed. When a claim is denied, the insurer provides a basis for the denial. Strategies for dealing with a denial of long-term care benefits vary depending on the basis of denial. If you believe that benefits should be paid under the policy, you should not allow the insurer to merely deny the benefits without submitting an appeal.
What is Probate or Trust Administration?
Probate and post-death trust administration are both legal processes that involve managing and distributing a deceased person’s assets and estate after their passing.
Probate refers to the court-supervised process of settling the estate of a deceased person who did not have a trust or other similar estate planning mechanisms in place. It involves validating the deceased person’s Will, if one was executed, identifying, and inventorying their assets, paying any outstanding debts and taxes, and distributing the remaining assets to the beneficiaries as determined by the Will or via intestacy if there was no Will.
On the other hand, post-death trust administration typically applies when the deceased person has a trust as part of their estate plan. A trust holds and manages assets for the benefit of designated beneficiaries. In post-death trust administration, the trustee carries out the terms of the trust as outlined by the trustor (the person who created the trust) and distributes assets to the beneficiaries according to the trust’s instructions. This process generally occurs outside of the probate court’s supervision.
Both probate and post-death trust administration involve legal and administrative tasks such as asset valuation, debt resolution, estate tax filings, transferring titles and ownership of property, and distributing assets to heirs or beneficiaries.
What is Elder Law Litigation?
Estate litigation is a legal process in which disputes over the administration or distribution of a deceased person’s estate are resolved through the court system. Estate litigation can arise for a variety of reasons, such as disputes over the validity of a will, disagreements about distribution, or allegations of financial mismanagement by the personal representative of the estate. Each litigation matter differs drastically, for example, a will contest can revolve around everything from a lack of capacity at signing; a well-known company’s charitable giving division preying on your elderly mom, sending her gifts and flying out directors to discuss her will; or the newest will going ‘missing’ to the benefit of one beneficiary over the other – we’ve seen our fair share of Will contests. Estate litigation can be complex and time-consuming, and it often involves a number of legal issues, such as contract law, probate law, and tax law.
Other types of litigation can occur while the principal is still alive. These often include actions against attorneys-in-fact under a power of attorney or Vulnerable Adult Protection Actions for financial or physical abuse.
What is a VAPO?
Vulnerable Adult Protection Actions (VAPOs) are a vital part of Washington’s elder law framework. VAPOs aim to protect elderly or disabled individuals who are at risk of abuse, neglect, or financial exploitation. Elder law attorneys play a key role in VAPO cases, advocating for vulnerable adults and their families, guiding them through the legal process, and ensuring appropriate protective measures are implemented. They also assist in proactive planning to prevent elder abuse and financial exploitation through comprehensive estate plans and legal safeguards. Vulnerable Adult Abuse, unfortunately, is far more common than you may realize. We discuss identifying signs of abuse and neglect on our website in our latest blog post.
In summary, elder law is a specialized legal practice area dedicated to meeting the specific needs of older adults. It covers various legal aspects to ensure the well-being, protection, and dignity of seniors and their families. Elder law attorneys possess the expertise to address a wide range of concerns such as estate planning, long-term care, healthcare decision-making, guardianship, Social Security, Medicaid, and protection against elder abuse. Not surprisingly, elder law is something that just about everyone will deal with at some point – whether it be for yourself, your parents, your grandparents, or a friend. As an Elder Law Firm serving the greater Edmonds community, we are committed to meeting the unique legal needs of seniors, protecting their rights and well-being, and promoting their overall quality of life.
Salish Elder Law
144 Railroad Ave, Suite 211
Edmonds, WA 98020