Elder Law

Elder law is a field of law specializing in issues that affect older adults. Areas include estate planning, long-term care and end-of-life planning. Elder law attorneys can help older adults with financial and medical decisions that provide them with peace of mind in the latter stages of life.

Terry Turner, writer and researcher for RetireGuide
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APA Turner, T. (2022, July 26). Elder Law. RetireGuide.com. Retrieved August 14, 2022, from https://www.retireguide.com/retirement-planning/elder-law/

MLA Turner, Terry. "Elder Law." RetireGuide.com, 26 Jul 2022, https://www.retireguide.com/retirement-planning/elder-law/.

Chicago Turner, Terry. "Elder Law." RetireGuide.com. Last modified July 26, 2022. https://www.retireguide.com/retirement-planning/elder-law/.

What Is Elder Law?

Elder law is a legal field that focuses on a diverse range of legal issues that mostly affect older adults, including financial, medical, social, legal and family issues.

Examples of Elder Law Services
  • Personalized estate and financial planning
  • Long-term care planning, including securing long-term care insurance or other types of financing for care costs
  • Protecting and preserving your assets in retirement and beyond
  • Coordinating living arrangements as you age
  • Granting decision-making authority to others if you are incapable because of illness, injury or another incapacity
  • Transferring your property and other assets to your beneficiaries after your death

It’s wise to familiarize yourself with elder law as you age and to understand how elder law services can help your unique situation. The field of elder law can protect your assets — your home, retirement savings and income. It can also protect you from financial, physical and other forms of elder abuse as you age and become more vulnerable.

Elder law services are particularly important for older adults with complex family or financial situations, like those with large estates to distribute or those who have a spouse or children with special needs who will require care after they are gone.

Main Areas of Elder Law

Elder law attorneys usually specialize in specific areas of the broader field of elder law. For example, some may focus on estate planning while others specialize in issues related to long-term care.

There are several areas of elder law. You should seek an attorney that specializes in the specific areas that fit your particular needs.

Advance Directives

An advance directive is a legal document allowing you to outline your expressed desires and values for your end-of-life care. Advance directives fall under advance care planning.

Examples of Advance Directives
Living Will
Outlines how you want to be treated if you are dying or otherwise incapable of making decisions.
Durable Power of Attorney for Health Care
Names a health care proxy to make medical decisions for you if you cannot.
Do Not Resuscitate (DNR) Order
Tells medical staff ‌not to use CPR or other means to return your heart to a normal rhythm if it stops.
Organ and Tissue Donation Orders
Allows your organs or other tissues to be donated or transplanted to people who need them.

These are all living documents ‌you can change as your situation or views about end-of-life care change.

Conservatorship or Guardianship

Conservatorship — also called guardianship — is a legal process applied when an adult can no longer make sound decisions about themselves or their resources and assets.

In these cases, a court can appoint a conservator or guardian to make personal and financial decisions for them.

A court may also apply conservatorship if a person becomes particularly vulnerable to financial fraud, identity theft or other similar scams.

Elder Abuse

Elder abuse includes a wide range of intentional acts and failures to act that cause or create a risk of harm to an older adult, according to the U.S. Centers for Disease Control and Prevention.

Types of Elder Abuse
  • Emotional or psychological abuse includes verbal or nonverbal actions which cause mental pain, fear, distress or anguish and may include disrespect, threats or harassment.
  • Financial abuse includes illegal or otherwise improper use of money, belongings, property or benefits belonging to an older adult.
  • Neglect includes any failure to provide basic needs including food, water, shelter, clothing and necessary medical care to an older adult.
  • Physical abuse encompasses illness, pain, distress, injury, functional impairment or death occurring as a result of a physical force such as hitting, pushing or burning.
  • Sexual abuse includes unwanted sexual contact or interaction with any older adult, including sexual harassment.

Criminal laws exist at the state level to prosecute elder abuse, but elder law attorneys may also represent a victim in a civil lawsuit against a perpetrator of elder abuse.

Estate Planning

Estate planning attorneys ensure that your property is transferred according to your wishes upon your death. The central legal instrument involved in estate planning is called your will, the legal document laying out how your estate will be distributed.

Estate planning also involves working with professional legal and financial advisors so that your beneficiaries can smoothly carry out your plans for distributing your estate and assets. Estate planning encompasses a range of personal and financial matters and often incorporates tax planning.

Your advisors should be familiar with your goals, assets and family structure — and how they all interact — to determine the best strategy for your estate plan.

Long-Term Care Planning

Long-term care planning is important for protecting your resources and assets from the costs and legal requirements associated with long-term care.

Long-term care can be very costly and, since Medicare does not cover it, can burn through your assets quickly.

Long-term care planning involves looking for sources to pay for necessary care through such methods as reverse mortgages, home equity lines of credit, long-term care insurance, irrevocable income-only trusts, life estates and public benefits like Medicaid.

What Do Elder Law Attorneys Do?

Elder law attorneys advocate for older adults and their families.

They work with you to navigate the legal issues that inevitably arise as you age. Typically, elder law attorneys work with health care workers, social workers, psychologists and other professionals along with your family members and other beneficiaries.

Example Services of Elder Law Attorneys
  • Guidance for conservatorship and guardianship
  • Durable power of attorney creation
  • Civil claim filing in cases of elder abuse
  • Financial planning, including setting up durable financial power of attorney and income, estate and tax planning
  • Health care planning, including protecting patient rights, creating advance directives and outlining long-term care plans
  • Protecting rights of nursing home residents and filing claims against nursing homes
  • Living will creation

Elder law attorneys typically bill by the hour based on the type of work they do. They may also charge a flat rate for certain services such as writing a will, filing tax returns or signing documents.

Elder Law by State

Elder law differs from state to state. If you have an elder law attorney draft a will, trust, advance directive, power of attorney or similar document in one state, the document may not carry the same legal effect if you move to another state.

It’s wise to have your legal documents reviewed by an attorney in your new state to ensure they are also accepted there. You may have to have them redone to make sure they meet the legal requirements of your new state.

An elder law attorney in the new state can use your old documents to make sure your intentions are carried over to the new state’s regulations and laws. You can make any necessary changes at that time.

Last Modified: July 26, 2022

7 Cited Research Articles

  1. U.S. Department of Homeland Security. (2021, October 27). What Is Elder Law? Retrieved from https://www.dhs.gov/employee-resources/blog/2019/05/31/what-elder-law
  2. U.S. Centers for Disease Control and Prevention. (2021, June 2). Retrieved from https://www.cdc.gov/violenceprevention/elderabuse/fastfact.html
  3. Legal Information Institute. (2020, June). Elder Law. Retrieved from https://www.law.cornell.edu/wex/elder_law
  4. Doron, I. (2006, March 16). Elder Law: Current Issues and Future Frontiers. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5546353/
  5. American Bar Association. (n.d.). Estate Planning Info & FAQs. Retrieved from https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/
  6. National Academy of Elder Law Attorneys. (n.d.). Guardianship and Conservatorship. Retrieved from https://www.naela.org/web/consumers_tab/consumers_library/consumer_brochures/elder_law_and_special_needs_law_topics/guardianship_conservatorship.aspx
  7. National Center on Law & Elder Rights. (n.d.). Retrieved from https://ncler.acl.gov/