FREQUENTLY ASKED QUESTIONS
What is Elder Law?
Elder Law is a relatively new specialized field of law
that deals with the issues faced by the fastest growing
segment of the US population, the elderly. It combines
elements of Estate Planning, Wills and Trusts,
Conservatorship, Health Care Planning and
My close relative is ‘losing it’ and doing bizarre things.
What can I do?
If a person has truly lost mental competence, and is
unable to exercise rational control over his or her
property, the courts may appoint a "conservator" in a
Just because someone is acting a bit eccentric is not
likely to be sufficient to justify the appointment of a
conservator. The courts are likely to respect a person’
s wishes to control his or her own affairs unless
convinced that the person really needs to be
protected against him or herself.
A very careful determination of mental capacity must
be made, and this typically involves at least one
physician, often a psychiatrist, and a lawyer familiar
with elder law matters.
How long does conservatorship last?
Jurisdiction of the court in a conservatorship
continues while the incapacity exists but ends at
death. The conservator has to make periodic reports
to the court and petition the court for additional
authority under certain circumstances.
Are conservators paid?
Typically a conservatorship allows the conservator to
be paid for his or her services. The conservator is
also entitled to attorney fees to seek legal advice. In
addition, the court will require a conservator to
purchase a type of insurance policy known as a
"surety bond" to protect the conservatorship estate.
The costs and expenses of a conservatorship are paid
from the property of the person.
How can an estate plan prevent a conservatorship
An estate plan uses several tools which can prevent
the court from gaining jurisdiction over your affairs.
A Living Will or Directive to Physicians is used to
determine if artificial life support systems are to be
used or withheld.
A Durable Power of Attorney for Health Care is used to
provide authority to a person, in whom you have the
utmost trust and confidence, to make decisions
regarding health care treatment when you are unable
to provide informed consent.
A Durable Power of Attorney for Property enables you
to authorize a person to act in your place and stead in
the event of your incapacity; this attorney-in-fact can
manage your financial affairs without the need to have
intervention by the courts.
A Trust or Family Limited Partnership is used to hold
property; the Trustees or Partners manage the
property held by either of these entities. Both the
Trust and the Family Limited Partnership continue to
manage the property even if you are incapacitated.
Thus, a properly prepared estate plan can enable you
to avoid a Conservatorship proceeding over your
estate. Compared to the cost of a Conservatorship
proceeding, an estate plan can be very attractive.
My father cannot manage his own affairs. What can be
Some people simply are not able to manage their own
financial affairs. For these people, there are a number
of courses of action, depending on the mental state of
the person and the laws of the home state. A popular
choice is to obtain a power of attorney, which is a
notarized, revocable document allowing you to handle
a specific matter or a wider range of affairs. It can
involve one or more than one person, but if they are
required to act together, getting consensus on how to
handle your affairs will, undoubtedly, prove to be
irritating and infuriating at times.
They are three types of power of attorney: (1) a
durable power of attorney that remains in effect
during incompetence or other disability; (2) a standby
power of attorney that is triggered when there is an
incapacity to manage affairs; and (3) a temporary
power of attorney that generally applies only if an
A Guardianship may also be used. The guardian, a
relative, friend, or heir, can be appointed by the court
to handle your affairs and well-being.
My family member has some savings. I fear he will
have to go into a nursing home, and that will wipe out
all his savings. Is there anything I can do?
There are very strict laws, with criminal penalties,
designed to prevent people from giving their property
away at the last moment, or even within a few years of
the time that they enter a nursing home, if the result is
that the Government will be expected to pay the costs
of nursing home or other care, rather than the person
himself from his or her assets.
If you anticipate that you may have to enter a nursing
home down the road, an elder care attorney may be
able to help you create a plan that will both protect
much of your assets and make you eligible for
I don’t want to be kept alive if I am in a ‘vegetative’
condition or with irreversible brain damage. Can I use
a living will to state my desires?
Yes. But despite its popular name, a Living Will is not
actually a Will at all. A Living Will is a document
spelling out what kind of medical care a person wants
in the event of terminal illness and incapacity to
communicate one’s wishes. A Living Will can also spell
out the kinds of treatment a person does want or does
not want in any circumstances. Any competent adult
can make a Living Will.
I strongly recommend having a Living Will drawn by an
attorney if a Living Will is an viable (and crucial)
option. Careful drafting and word choices are
Is a living will different from a ‘living trust’?
A Living Trust is VERY DIFFERENT from a Living Will. A
Living Trust is a way to manage and control property
during your lifetime and to distribute it at your death.
If I have a living will, would I also need a real ‘will’ or a
Yes. A "Living Will" has absolutely nothing to do with
managing or controlling your property either during
your lifetime or at your death. It deals only with health
Which is better: a living will or a durable power of
attorney for health care?
I recommend both. Some states approve one kind
over the other; some health care providers are more
comfortable with one type of document than another.
But whatever document is elected, make sure that it is
consistent, describes treatment choices in a variety of
situations, and names someone (called a "proxy") to
make decisions for you, should you be unable to make
decisions for yourself.
What is elder abuse?
Elder abuse may be domestic or institutional.
Domestic elder abuse refers to maltreatment of an
older person residing in his/her own home or the
home of a caregiver. Institutional abuse refers to the
maltreatment of an older person residing in a
residential facility for older persons, e.g., a nursing
home, board and care home, foster home, or group
What are the forms of elder abuse?
The four common kinds of elder abuse are:
(1) physical abuse, the infliction of physical pain or
injury, e.g., slapping, bruising, sexually molesting,
(2) psychological abuse, the infliction of mental
anguish, e.g., humiliating, intimidating, threatening;
(3) financial abuse, the improper or illegal use of the
resources of an older person, without his/her
consent, for someone else's benefit; and
(4) neglect, failure to fulfill a care taking obligation to
provide goods or services, e.g., abandonment, denial
of food or health-related services.