Guide · Wills and Estates

Elder Law: A Comprehensive Guide to Incapacity Planning, Medicaid, and Guardianship

42 U.S.C. § 1395

Type
Guide
Jurisdiction
National
Date
2024-04-24
Topic
Wills and Estates

A complete practitioner's treatment of elder law for the lawyer advising older clients and their families. Part I frames the field and the recurring problem of who the client actually is. Parts II through V cover the incapacity architecture: assessing capacity across its different legal standards, the durable power of attorney and the gifting authority without which Medicaid planning is impossible, health care directives and surrogate decision-making, and guardianship and conservatorship with the less restrictive alternatives and supported decision-making arrangements that must be considered first. Parts VI through XI cover paying for care: what Medicare does and does not cover, Medicaid income and resource eligibility including exempt assets, the sixty-month look-back and the transfer penalty whose start date makes late planning so dangerous, the spousal impoverishment protections, estate recovery, and the planning techniques that remain available after the Deficit Reduction Act. Part XII covers special needs planning across first-party and pooled and third-party trusts and ABLE accounts. Part XIII covers long-term care insurance and veterans benefits. Parts XIV and XV cover nursing home resident rights under the Nursing Home Reform Act and elder abuse and financial exploitation. Part XVI addresses the distinctive ethical problems of representing clients with diminished capacity, and Part XVII is the verification list.

Elder Law: A Comprehensive Guide to Incapacity Planning, Medicaid, and Guardianship

Wills and Estates > Elder Law | Published 24 April 2024 - Updated 6 June 2026 | UpLaw - uplaw.us

In brief. Elder law is defined by its client rather than its doctrine, and it draws on estate planning, public benefits, health law, family law, litigation, and professional responsibility simultaneously. Two questions organize almost all of it. Who decides when the client cannot — which is the incapacity architecture of powers of attorney, directives, and guardianship. And who pays for care — which is Medicare, Medicaid, insurance, and veterans benefits. Get both wrong and a family loses a house and a person loses their autonomy.

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