elder law

The Center For Estate Planning, PLC
Michigan Estate Planning Attorneys

In recent years, the legal profession has increasingly become aware of the unique legal issues facing older adults, resulting in an increasing number of attorneys who specialize in the practice of elder law. What distinguishes the practice of elder law from traditional estate planning, which has been most concerned with completing wills and trusts is the increasing importance of planning for state and federal programs to assist in the financial and physical well being of older adults. Because older adults have such a wide range of legal goals and concerns, elder law encompasses a variety of legal areas. An elder law attorney must cross traditional legal boundaries to meet the needs of each client. Many of the areas contained in elder law are distinct legal topics fully discussed elsewhere on this site; please refer to the links at the end of this page for more detailed information.

Many older adults want to ensure their property is distributed to the people or organizations that are the most important to them. Wills and trusts are both available to create a system of orderly asset distribution. Wills specify how a person's property should be handled after his or her death. They indicate who is to receive what portion or items of property, and they also can establish charitable gifts or set up trusts. Without a will, the government determines how property will be divided, and may impose substantial estate taxes. A trust allows a person to place the care and maintenance of property or assets in a trustee, who manages the trust for the benefit of a specified person or group. This arrangement helps make a continuing gift over a period of time, which may satisfy the grantor's desire to look after the trustee for a lengthy period, or to ensure the trustee has a continuing benefit rather than using an entire gift quickly.

A court may appoint a guardian or conservator to make personal care or financial decisions on behalf of an adult incapacitated person who has not created a durable power of attorney. While the details vary from state to state, a guardian generally makes personal care decisions, while a conservator is responsible for managing the property and assets for an incapacitated individual. Guardians and conservators are entitled to payment for their services. An individual who is concerned about whether his or her wishes will be respected in the event of incapacity is well-advised to consult an attorney on how to elect an attorney-in-fact to handle these issues, rather than rely on the court system to appoint someone who might not have been the personal choice of the individual. A living trust also may alleviate the need for a conservator.

The Social Security Administration's Retirement and Survivor's Insurance benefits (RSI) are an important portion of many seniors' budgets. Workers gain RSI coverage through employment for a given length of time. Full retirement age for persons born before 1938 is sixty-five, but will increase gradually to sixty-seven for persons born in 1960 or later. For instance, the full retirement age for a person born in 1950 is sixty-six. However, a beneficiary may opt to start benefits at age sixty-two. In any case, the benefits are based on the primary insurance amount, which is the amount a worker is entitled to if he or she retires at exactly full retirement age. A retiree who elects to start receiving benefits before full retirement age receives a permanently reduced amount based on the number of months up to his or her full retirement age.

A worker also can delay the start of RSI payments until after full retirement age, which results in a permanently increased monthly payment based on the primary insurance amount. Monthly payments vary based on the wages the worker made each year-the higher the pay rate, the higher the benefits, up to a legal maximum. The system builds cost-of-living increases into the system. If a person chooses to keep working, RSI benefits may be reduced if work income exceeds a certain level. This offset lapses after the worker reaches full retirement age, and supplemental work income after that age does not affect RSI benefits.

A spouse of an eligible worker may draw spousal benefits from the worker's account if he or she is at least sixty-two or cares for a child who is eligible for children's benefits on the worker's account. The spousal benefit is equal to approximately one-half the worker's primary insurance amount. A divorced spouse still can receive spousal benefits if he or she was married to the insured worker for at least ten continuous years and has not remarried. A surviving widow or widower of a covered worker may receive benefits on the worker's account at age sixty (fifty or older if disabled, or any age if caring for the covered worker's children under age sixteen). Children's survivor benefits may apply if a worker's child is under eighteen and unmarried, under nineteen and still in school, or an adult child disabled before age twenty-two. A one-time death benefit may be paid to a fully-covered worker's surviving relatives, although a survivor must apply for the benefit within two years of the worker's death.

Generally, an eligible individual must apply for benefits in order to receive them. A beneficiary should to apply at least two months before he or she desires the payments to begin in order to allow time for paperwork to be completed. Failure to apply in a timely fashion can result in forfeiture of earned benefits, although in certain limited circumstances, a beneficiary may receive benefits for up to six months preceding his or her application.

Commencing in 2000, workers of any age who have worked enough quarters to qualify for social security benefits will receive a statement from the Social Security Administration each year, approximately three months before his or her birthday, showing his or her updated lifetime earnings record and potential benefits at various retirement ages. This statement should be carefully reviewed and any errors reported to the Social Security Administration, so that your benefits will be accurately based on your correct lifetime earnings record.

Supplemental Security Income (SSI) is a national income maintenance program aiding elderly, blind, or disabled persons with limited incomes and assets. The Social Security Administration administers the program, but it is not funded by Social Security taxes. To be eligible, a person must be sixty-five or older, blind, or disabled. Applicants must make every effort to receive private pensions, annuities, retirement or disability benefits, or worker's compensation payments to offset the need for SSI. SSI eligibility is based on both income level and assets. Some state programs also grant benefits for persons qualifying under SSI.

The Centers for Medicare & Medicaid Services (CMS) is the Federal agency within the U.S. Department of Health and Human Services that administers Medicare, a program designed to defray basic medical and health care costs of eligible individuals over sixty-five, as well as some younger disabled persons. No financial need for the coverage must be shown. Medicare plans include the Original Medicare Plan, available nationwide, under which Medicare Part A covers medically necessary hospital and related health expenses. This division covers hospitalization, skilled nursing home care, hospice care, inpatient psychiatric care, and home health care providers. Part B, or Supplemental Medical Insurance, is a voluntary part of the Original Medicare Program covering some costs not covered by Part A, such as outpatient services, ambulance assistance, and medical equipment. Part B requires a small monthly premium. An alternative, enacted in 1997 and implemented in 1999, is the Medicare Advantage Program (formerly the Medicare+Choice Program). In order to participate, a person must be entitled to participate in Part A and enrolled in Part B. The Medicare Advantage Program provides the opportunity to obtain health insurance through a variety of health care plans. This program requires payment of premiums, deductibles and co-payments.

The Original Medicare Program does not pay for certain medical expenses, including eyeglasses, hearing aids, non-skilled nursing home care, prescription drugs, and routine physicals. However, a Medicare recipient can obtain these benefits if enrolled in the Medicare Advantage Program or other private health plans. Most older adults therefore seek supplemental private insurance coverage. Often, workplace insurance may be continued into retirement, or coverage from an HMO may be available. Many insurance companies offer policies that only cover gaps left by the Original Medicare Program. These so-called Medigap programs are highly regulated. State-level government programs also may offer additional coverage.

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