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Probate-Estate Planning and Administration Newsletter: Elder Law Overview

Elder Law Overview

In recent years, the legal profession has increasingly become aware of the unique legal issues facing older adults, resulting in an increasing number of attorneys who specialize in the practice of elder law. What distinguishes the practice of elder law from traditional estate planning — which has been most concerned with completing wills and trusts — is the increasing importance of planning for state and federal programs to assist in the financial and physical well-being of older adults. Because older adults have such a wide range of legal goals and concerns, elder law encompasses a variety of legal areas. An elder law attorney must cross traditional legal boundaries to meet the needs of each client.

Many older adults want to ensure their property is distributed to the people or organizations that are most important to them. Wills and trusts are both available to create a system of orderly asset distribution. Wills specify how a person's property should be handled after his or her death. They indicate who is to receive what portion or items of property, and they also can establish charitable gifts or set up trusts. A trust allows a person to place the care and maintenance of property or assets in a trustee, who manages the trust for the benefit of a specified person or group. This arrangement helps make a continuing gift over a period of time, which may satisfy the grantor's desire to look after the trustee for a lengthy period, or to ensure the trustee has a continuing benefit rather than using an entire gift quickly.

Many older adults worry about how to handle possible health decisions regarding quality of care and treatment. Living wills are a popular addition to estate plans. A living will (also known as an advance directive) specifies an individual's health care preferences should he or she become terminally ill or incapable of communicating his or her preferences. Durable powers of attorney for health care decisions are another way to plan for possible serious health problems. A power of attorney allows another person (the attorney-in-fact) to act on behalf of the person granting the power. Unlike a living will, the person does not have to be terminally ill to make this decision-making power effective. The assistance of an attorney in planning and creating health care instruments can be critical in assuring that all legal requirements and the wishes of the individual are honored.

The Social Security Administration's Retirement and Survivor's Insurance benefits (RSI) are an important portion of many seniors' budgets. Workers gain RSI coverage through employment for a given length of time. Full retirement age for persons born before 1938 is sixty-five, but will increase gradually to sixty-seven for persons born in 1960 or later. The benefits are based on the primary insurance amount, which is the amount a worker is entitled to if he or she retires at exactly full retirement age.

Supplemental Security Income (SSI) is a national income maintenance program aiding elderly, blind or disabled persons with limited incomes and assets. The Social Security Administration administers the program, but it is not funded by Social Security taxes. To be eligible, a person must be sixty-five or older, blind or disabled. Applicants must make every effort to receive private pensions, annuities, retirement or disability benefits, or worker's compensation payments to offset the need for SSI. SSI eligibility is based on both income level and assets. Some state programs also grant benefits for persons qualifying under SSI.

Preparing to Meet with Your Estate Planning Attorney

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Preparing to Meet with Your Estate Planning Attorney

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