What is Elder Law?

February 2019

What is the difference between elder law and estate planning? Isn’t it the same thing? Although there is certainly some overlap between the disciplines of estate planning and elder law, the two are not the same.

Elder Law is Interdisciplinary

Instead of focusing on a field within the practice of law, elder law takes as its focus the whole person. Traditionally, elder law is a practice that crosses disciplinary boundaries. For example, an elder law attorney may have experience with estate planning, health care law, landlord/tenant law, real estate law, and personal injury. That’s because an elder client may present with a number of issues, such as a person who is injured in an assisted living facility, has issues with the facility’s housing agreement, and also has trouble paying for care. These issues cross over into personal injury law, housing law, and health care law. Not all elder law attorneys practice in all of these disciplines, and some may focus in a certain area, but often an elder law attorney has some familiarity with all of these issues and can help the individual client navigate similarly complex situations. By focusing on a client population instead of an abstract discipline, elder law attorneys gain skills and experience in the challenges that face this population and how best to assist clients who are similarly situated. With these unique skills, an elder law attorney can provide superior service to seniors and their families.

Estate Planning, Plus

Elder law can be considered “estate planning, plus”. Increasingly, traditional estate plans are being complicated by the high cost and unpredictability of long term care. In part, this is due to demographic changes, like the fact that aging “baby boomers” are greatly increasing the number of people in need of long term care. And in part, the change is due to the ever-increasing cost of care. The average cost of nursing home care in Minnesota is over $7,000 a month, and for memory care, it can be twice that. Estimates indicate that around half of all people will require long term care services, which means more and more people need to factor long term care costs into their retirement planning and estate plans.

A traditional estate planning attorney primarily deals with wills and trusts and is concerned mainly with minimizing the cost of transferring assets at death, which might include tax planning or probate avoidance. But a traditional estate planning attorney may not understand the impact that an illness requiring long term care may have on a client’s intentions to pass assets on to the next generation, and may not know how to leverage the resources available to minimize the financial impact of necessary care. That’s where an elder law attorney can make a difference. For a client who is concerned about the impact that the need for long-term care may have on their business succession plan or their wealth transfer objectives, an elder law attorney can provide invaluable guidance.

Peace of Mind

An elder law attorney can provide their clients with a sense of assurance that, if long term care is anticipated, all necessary care will be provided without totally derailing the clients’ other objectives, such as providing for a spouse or disabled child or leaving a legacy for the next generation. When faced with a diagnosis like dementia or Parkinson’s, clients often fear that they will lose everything they own or will have to divorce their spouse. The elder law attorney can help the client in this situation to develop a plan to ensure that their quality of life will not suffer even though their cost of care increases dramatically. An elder law attorney can help clients navigate the maze of complicated healthcare programs, rules, and regulations, and provide guidance on care and housing alternatives to meet a client’s goal to age in place as long as possible. With the tools that an elder law attorney can provide, clients can feel empowered to take back control of the process and make a plan that suits them. 

If you’re interested in learning more about elder law, contact FMJ’s Trusts & Estates group.