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Finance and Legal

Elder Law 101: Learn The Basics

Reviewed by: MySeniorCare Staff
Last Updated: 4/13/2010 4:01:36 PM

Seniors and their caregivers should know that there are laws protecting elderly Americans and ways in which seniors can safeguard their assets and wishes before it becomes an issue.

Elder law is all about preparation, and it is important for all seniors to consult an attorney and make decisions that could impact their lives for many years to come.

Finances, Assets & Family

The only way to protect your finances and assets and ensure your possessions are distributed according to your wishes is through a last will and testament. A will can be either written or oral, and it dictates how an individual's finances and assets should be distributed upon death.

However, you must realize that there are laws in every state that determine the conditions under which a last will and testament must be rendered and observed. Elder law dictates that wills must be completed by a person of sound mind, and that the will must be signed and dated by the creator as well as by witnesses. Some states require two witnesses, while others require three.

There are numerous software programs and templates that allow seniors to draft their own wills, but it is usually best to hire an attorney. He or she is far more intuitive than a computer program, and can ensure that all matters are taken care of in the document.

Elder law also allows seniors to establish living trusts, which allow dispensation of property without the necessity of probate. Some trusts are revocable, which means that they can be changed, altered or rescinded at any time, while others are irrevocable and cannot be altered once they are placed in effect.

If you are concerned about your finances or assets while you are still living (such as in the event of incapacitation), you can also create a power of attorney that assigns a friend or relative the right to make financial decisions on your behalf. These include real estate decisions, banking decisions, investment decisions and even health care decisions.

Future Medical Care

One of the more unpleasant aspects of elder law is the right to create a document that allows someone other than you to make decisions about your future health care in the event that you are unable to do so for yourself. For example, you might create a health care proxy that allows a son or daughter to make these decisions if you are ever incapacitated.

The most important aspect of creating a health care proxy is to realize that the courts who interpret elder law can only base their decisions on what is written on paper. Every wish must be spelled out with great care and in the finest detail. Otherwise, there is no way to ensure that your wishes will be honored in their entirety.

For example, many seniors attach DNR orders ("do not resuscitate orders") to their health care proxies. This document tells health care personnel that you do not wish to be revived if you experience cardiac or respiratory arrest, even if your family members want you to be resuscitated.

Seniors should take full advantage of elder law by including all aspects of a health care proxy. They must appoint a health care agent (someone to make decisions) and outline exactly what they want to happen in the event of incapacitation.

Elder law can only protect seniors in certain ways; the rest is up to individuals. If you do not take full advantage of the opportunities available, there is no way to ensure that your health care and finances will be handled according to your wishes.

Seniors and their caregivers should discuss the best way to handle these issues, then meet with an attorney to finalize them.

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