Estate Planning & Administration,
Medicaid Planning, and Guardianship
Elder law is the area of legal practice that supports the elderly. The three main components of elder law are estate planning and administration, Medicaid/VA planning (i.e., nursing home planning), and guardianships.
Related elder law legal issues include fraud, consumer protection, discrimination, elder abuse and neglect, end-of-life planning, medical care, advanced health care directives, disability, Medicare, Social Security, retirement planning, long term care, real estate, landlord/tenant, and tax issues.
Estate Planning & Administration
If an elderly person wants to stay in control of future decisions as they age, they need their own estate plan; while each estate plan should be customized to fit the individual’s situation, these are the basic components of an estate plan: will, revocable living trust, financial power of attorney, health care power of attorney, living will, and organ donation authorization.
If the elderly person does not have their own estate plan, the District of Columbia, the State of Maryland, and the courts will essentially make one for them. For example, if there is no will, the courts will decide who administers the estate and handles the debts. State law will determine who gets the assets. In addition, if there is no financial power of attorney or trust, the court will decide, through a guardianship proceeding, who will be in control of the person’s finances. And, it may not be whom the person would want; this is how they may lose control of their choices.
Estate administration is the settlement of a person’s estate after death. The personal representative (i.e., executor) gathers, protects, values, and manages the assets; pays last bills; files all appropriate tax returns and distributes assets to the beneficiaries, all while following the instructions of the probate court.
Medicaid/VA planning (i.e., nursing home planning) is the practice of helping elderly people qualify for Medicaid/VA paid long term care. Medicaid is a federal program, administered by the states, that provides health care to low-income people. Often special trusts, caregiver contracts, and gifting programs are used as part of a Medicaid plan.
Guardianship proceedings, also called conservatorship proceedings, are mandated when an elderly person becomes disabled or incapacitated and can’t manage their day-to-day business affairs but they have not executed a legally valid financial power of attorney or revocable living trust. The court hears evidence, determines whether the person is indeed incapacitated, and if so, appoints an individual to take over and manage their finances. This person is called a “guardian.” The guardian can be a family member or a stranger, such as a local attorney. The guardian must report back to the court periodically and follow all court instructions.