According to the 2024 U.S. Census Bureau estimates, there are now 61.2 million individuals who are 65 and over. That makes up approximately 18% of the country’s population, and the age group has grown by 3.1% since the 2023 estimate of 59.4 million.
The growth of elder households will result in a higher number of households having to manage increasingly complicated and demanding legal, financial, and healthcare decisions due to the aging of those households. Many people wonder and ask the question, “What is the Elder Law?” Elder law comprises rules that can vary substantially by state.
A well-thought-out elder law plan eliminates many stressors involved in preparing for the time after 65. The plan is the first step in addressing medical care and financial needs, as well as providing estate planning documents. Having a solid plan and all the correct paperwork done will allow people to stay in control of all their assets and personal matters.
If things do not go as planned, some of the issues that may arise include stress, the unexpected need for health services, family disputes, and so much more.
The purpose of learning this information is to help others learn how to plan for the future legal or medical issues they may face.
Elder Law Is Not Estate Planning
There are several misconceptions around the terms “elder law planning” and “estate planning,” but a closer look shows they address different stages of the same matter.
Estate planning involves both legal and practical preparations for the future of an estate. An executor or administrator must be named, beneficiaries decided upon, and court and probate procedures prepared for, as the case may be, in respect of those issues. All of these concern a single subject, with a clearly defined and final group of assets.
Elder law is about the years before that moment, which are messier and considerably pricier. It is all about the decisions related to healthcare for those who are unable to make them. It covers the responsibility of paying for care and managing finances and property sales. It also covers what happens when family members start siphoning funds. None of those questions can wait until the death certificate is issued.
Elder law is hard to define in part because it covers a range of legal areas. In California, elder law means the combination of laws dealing with an older person’s affairs, including the older person's health care, estate planning, long-term care, asset management, and guardianship.
Elder law is not a single legal area with one set of laws or legal procedures.
The Same File, Ten Years Apart
There is a distinction to be drawn between estate planning and elder law planning. Both are stages of the same issue, and for most people the distinction is not clear until something goes wrong.
The first attorney visit takes place while everybody is well. Documents get signed naming who decides what if a parent cannot decide for themselves. The second attorney visit takes place after a funeral, when somebody has to open an estate, deal with creditors, and move property to the people entitled to it.
What gets signed at the first attorney visit shapes how difficult the second visit becomes. An account that was retitled, a beneficiary form that was updated, and a power of attorney that actually worked when a bank was asked to honor it. Each of those removes a problem from the later file.
The reverse situation is also common. Without planning documents in place, a court may need to appoint a guardian partway through the process, savings may be depleted unexpectedly, and the remaining estate may become more complicated to settle.
There are many reasons for firms to handle both stages. As states establish the guidelines for things such as probate, the rules for powers of attorney, and the standards for guardianship, elder law planning has many variations. For instance, Ohio families planning for their elder years may find the probate process easier when they seek help from a Cincinnati probate attorney in preparing the initial estate documents.
Medicare Does Not Pay for This
The Medicare coverage is often the most expensive misunderstanding in the subject of elder law planning.
Medicare's own coverage page states flatly that Medicare doesn't pay for long-term care. The entry is marked “not covered,” and beneficiaries are responsible for all costs. The program describes long-term care, also called custodial care, as a range of services and support for personal care needs, most of which involves help with dressing, bathing, and using the bathroom.
The explanation of their rationale is in one sentence. Since most of the long-term care does not require medical care, Medicare and most other health insurance, such as Medigap, will not cover it.
People hear this and reach for the exception they half remember, which is skilled nursing facility coverage. That is a different benefit for a different thing, and Medicare's page says so directly. Rehabilitation after a hospital stay is not the same as years of daily assistance, and the federal estimate that about 70 percent of people turning 65 will need long-term care largely reflects the second one.
The Five-Year Rule Is Built to Punish Late Planning
Medicaid becomes responsible for providing many of the long-term care services provided in this nation, and its requirements regarding qualifications make early planning necessary.
The Centers for Medicare & Medicaid Services, or CMS, points out that the lookback period for Medicaid eligibility purposes has changed due to federal legislation. There was a lookback period of up to three years before someone filled out their application for Medicaid. This is currently set at five years under federal law. The Medicaid application process scrutinizes the transfers completed during that time frame.
According to the same federal law, the disqualification period begins on the transfer date or on the date when the individual is both eligible for Medicaid and receiving nursing home care, whichever occurs later. The penalty will not begin while a healthy individual remains at home.
There is a second stage most families never hear about. According to CMS, states are required to seek recovery from estates of those who received Medicaid services after they turned 55 years of age. Such services would include those for nursing facility services, home and community-based services, and related hospital and prescription drug services. Recovery is not permitted when the person is survived by a spouse, a child under the age of 21, or a blind or disabled child of any age. The rules also require states to offer a hardship waiver process.
Roughly 70 percent of people turning 65 will eventually need help with long-term care. After this statistic is viewed alongside the 5-year lookback period for Medicaid, as well as the rules governing most nursing home transfer penalties, it's clear that it's important to start the planning process long before help is needed.
The alternative is not a worse plan. It is a court deciding who is in charge, a family paying privately for care nobody budgeted, and a set of options that all expired quietly while everything still seemed fine.