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Elder law is a legal term that describes the legal practice area that places an emphasis on issues that affect the growing aging population.
There are three major categories to elder law: estate and trust planning and administration; Medicaid, disability, and long-term care issues; and guardianship, conservatorship, and fiduciary administration. Described below, developing a plan with thought and vigilant attention to the law, the three categories make the crucial difference of preserving the personal and financial well being of elderly clients.
Most jurisdictions require that the trustee keep a detailed accounting of the trust, so hiring knowledgeable administration is crucial to protecting your assets both in life and beyond.
In addition to utilizing an estate-planning administration team, it’s important to find someone to discuss long-term care possibilities, particularly if the client in question suffers from a disability, or otherwise qualifies for Medicaid benefits:
In the process of all elder law areas, assigning the role of guardian, conservator, and/or fiduciary representative to a responsible individual is vastly important. Guardians and conservators owe a duty of undivided loyalty to the ward and must act in the best interest of the ward:
In addition to the above three categories, other issues specific to elderly people include:
Elder abuse. This includes assault, battery, and inappropriate restraint on any elderly person. Nursing home abuse is a common form of elder abuse.
Elder neglect. This describes the scenario when a caregiver does not provide for an elder's safety, or for his or her physical and/or psychological needs.
Fraud against elders and consumer protection. Consumer fraud is defined as any instance in which an individual suffers a financial or personal loss because of illegitimate or misleading business practices. In 2013 alone, the Federal Trade Commission’s Consumer Sentinel Network database--which collects consumer complaints and makes them available to law enforcement--contained 123,757 fraud complaints from victims who had identified themselves as aged 60 and over.
Age discrimination. The Age Discrimination Act of 1975 implemented the prohibition of discrimination on the basis of age in HHS (Human Health Services)-funded programs and activities. Under its commonly used name, the Age Act, recipients may not exclude, deny, or limit services to, or otherwise discriminate against, persons on the basis of age.
Perhaps the most important piece of legislation surrounding elder law is the Older Americans Act (OAA), which was signed into law by President Lyndon B. Johnson on July 14, 1965. It requires the government to provide assistance in the development of new or improved programs to help older persons through grants to the States for community planning and services and for training, through research, development, or training project grants, and to establish within the Department of Health, Education, and Welfare an operating agency to be designated as the ‘‘Administration on Aging’’. This network of resources provides funding for nutrition and supportive home and community-based services, disease prevention services, health promotion services, elder rights programs, the National Family Caregiver Support Program, and the Native American Caregiver Support Program
Age Discrimination in Employment Act (ADEA)
The Age Discrimination in Employment Act prohibits employment discrimination against anyone at least 40 years of age in the United States. Elders fall under the scope and protection of the ADEA.
While including a broad ban against age discrimination, the ADEA specifically prohibits:
An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing full benefits to younger workers. There is also prohibition of mandatory retirement in most sectors (thought it is permitted for executives over age 65 in high policy-making positions that are entitled to a pension over a minimum yearly amount), as well as elimination of mandatory retirement for tenured workers.
If you have been appointed as an executor of a family member's will, a trustee to a loved one's trust or as an agent in a power of attorney, you may not be aware of the duties and risks of your role. While you may be able to make your way through the complicated procedures required of your role on your own, an experienced attorney can help.
Elder law can be a complex topic because many of us don’t pay attention to it until we’re older. If you or someone that you know is in need of counseling because of an elder law issue, you should not hesitate to contact an attorney that has experience in the practice of elder law. Sadly, up to 5 million older Americans are abused every year, and the annual loss by victims of financial abuse is estimated to be at least $2.6 billion. Contact a lawyer to get the help that you need.
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