Most people are unsure what the term “elder law” means. As the word “elder” suggests, elder law is a legal practice area devoted to the needs and issues facing the aging population. Elder law encompasses everything from traditional estate planning (wills, powers of attorney) to Medicaid planning and long-term care issues. However, you do not have to be over 65 to get your legal and financial affairs in order. In fact, the sooner you think about, organize, and finalize your estate plan and foundational documents – you and your loved ones can rest assured that they will not have to deal with an overly burdensome process as you age and after your demise.
One of the first things that comes to mind when we think of elder law is a last will and testament. Most people think that a will is the most important estate planning tool. It is a common misconception that a will takes care of everything regarding someone’s estate. But this is not necessarily the case. While a will is an important tool to navigate the probate process, avoiding the probate process altogether is even better. That’s where a good estate planning attorney’s advice is extremely valuable.
Please beware: many companies offer wills online or as a cheap fill-in-the-blanks form document. Those documents usually do not comply with North Carolina legal standards and often create a false sense of security. If a will is not done in proper form, it fails and will not serve to carry out the wishes of the testator.
One of the most important estate planning or elder law foundational documents to have in place is a general durable power of attorney. A general durable power of attorney allows your designated agent to act on your behalf during your lifetime. This document is usually recorded with your county’s register of deeds so that third parties (like banks) can rely on it. This document can serve as a convenience so that your agent can sign documents and do business on your behalf, but it really comes into play when/if you become incapable of making your own decisions or become completely incapacitated. Once you are unable to act on your own behalf, it’s too late to give someone else power of attorney to handle your legal and financial affairs. A general durable power of attorney is an important foundational document to have in place at any age.
Another important foundational document to have in place is a health care power of attorney. Again, this document is important to have at any age – as accidents and emergencies can happen at any time. This document is private – it is not usually recorded or made to be public information. It can and should be kept on file with your primary care physician. In selecting a health care agent, choose wisely. Your agent will be able to direct health care decisions for you in the event of an emergency or if you become unable to make your own health care decisions.
A health care directive or living will is another document that is important to have in place. A living will declares your desire to die a natural death, and it instructs heath care providers what means you desire to help keep you alive or comfortable in the event of an emergency situation or protracted illness. Having a living will gives your directions and decisions about your own life and well-being directly to the health care providers and relieves your loved ones from having to make life or death decisions for you.
Elder law clients almost always ask about their real property. Real estate is usually a family’s largest and most valuable asset. They want to ensure that their primary home and other real estate holdings are protected and passed down to their beneficiaries with advantageous tax benefits. Depending on your real estate portfolio, a Lady Bird Deed (enhanced life estate deed) may help protect your real property or a Trust may be a better option. A consultation with a knowledgeable elder law attorney can help you and your family decide which estate planning tool is best for you to protect your real property.
With a general durable power of attorney, a health care power of attorney, health care directive/living will, and a last will and testament in place – along with a Lady Bird Deed and/or a Trust to hold your real estate, you will be well on your way to have your affairs in order which brings with it a sense of security and peace of mind. Stay tuned for more information on advanced and detailed explanations of our favorite and most effective estate planning tools.
Jane Dearwester
McIntyre Elder Law
Hendersonville, NC
