Elder Law

Elder law emerged in the 1980s to address the needs of our growing elderly population. It embodies some traditional areas of law, such as public benefits, estate planning, guardianships, and probate, but it focuses on the issues that affect our senior citizens, such as incapacity, dementia, and how to pay for one’s long-term care without impoverishing a spouse.

• Medicaid applications to qualify for care at home or in a nursing facility and, for married persons, to protect the healthy spouse of a Medicaid applicant
• Advanced long-term care planning for the preservation of assets
• Guardianship and conservatorships for incapacitated persons
• Special needs planning
• Probate proceedings to create a special needs trust for a disabled surviving spouse.

Guardianship is a legal process by which a judge appoints a person to act on behalf of someone legally incapacitated and unable to manage their affairs or care for themselves safely. A court may appoint a guardian of the person, the estate (sometimes called a “conservatorship”), or both. A guardian of the person has legal control over the incapacitated person’s body. In contrast, the guardian of the estate has legal control over the incapacitated person’s assets.

Usually, a person can avoid guardianship by creating a Durable Power of Attorney naming an agent to manage their affairs for them before becoming incompetent. A person who wishes to become a guardian must file a petition with the court, qualify to serve as the guardian, and file annual reports about the incompetent person’s condition and finances.

Sometimes, guardianship is necessary to protect an elderly parent from being financially exploited or physically abused, whether by a third party, by a caregiver, or even by a member of the family. Guardianship is a necessary process to protect someone who is unable to protect themselves.