Elder Law

1. What is Elder Law?

Elder law is a field of legal practice that addresses the needs and concerns of individuals aged 65 and older. While elder law encompasses a variety of topics, it is most commonly associated with matters related to healthcare, estate planning, and long-term care. Elder law attorneys are skilled in helping seniors navigate the legal complexities surrounding these areas and often work with families to ensure that older adults are treated with dignity and respect.

In Michigan, elder law also includes issues such as guardianship and conservatorship, protecting vulnerable seniors from financial exploitation, and advocating for seniors' rights in healthcare settings.

2. Estate Planning and Wills

Estate planning is a crucial aspect of elder law. As individuals age, it becomes increasingly important to ensure that their assets are protected, distributed according to their wishes, and managed properly during their lifetime. Michigan has specific laws that govern estate planning and probate, which include wills, trusts, and powers of attorney.

a. Wills

A will is a legal document that dictates how an individual’s property will be distributed after their death. In Michigan, a will must be signed by the testator (the person making the will) and witnessed by two individuals to be valid. Without a valid will, Michigan law determines how a person’s assets will be distributed under the state's intestate succession laws.

b. Trusts

Many individuals use trusts as part of their estate planning. A trust allows a person to transfer property to a trustee, who then manages the property for the benefit of the beneficiaries. Trusts can help avoid the lengthy and costly probate process and may provide certain tax advantages. For seniors, trusts can also be used to plan for Medicaid eligibility and protect assets from being depleted by long-term care costs.

c. Powers of Attorney

A power of attorney (POA) allows an individual to appoint someone to manage their financial or healthcare decisions if they become incapacitated. A durable power of attorney remains in effect even if the person becomes mentally or physically incapacitated, which is especially important for seniors who may face health challenges as they age.

3. Long-Term Care Planning and Medicaid

One of the most pressing concerns for seniors in Michigan is the need for long-term care, including nursing home care, home health care, and assisted living. Long-term care can be prohibitively expensive, and many seniors may need to rely on Medicaid to cover the costs.

a. Medicaid Eligibility

Medicaid is a joint federal and state program that provides healthcare coverage for low-income individuals, including those in need of long-term care. In Michigan, Medicaid is administered by the Michigan Department of Health and Human Services (MDHHS). To qualify for Medicaid, seniors must meet specific financial eligibility requirements, including income and asset limits.

Seniors often use Medicaid planning strategies to protect their assets while qualifying for benefits. This may involve creating irrevocable trusts, spending down assets, or gifting assets in a way that does not disqualify them from Medicaid. Because Medicaid eligibility rules can be complex, working with an elder law attorney who specializes in Medicaid planning is crucial.

b. Long-Term Care Insurance

In addition to Medicaid, some seniors use long-term care insurance to help cover the costs of nursing homes and other long-term care services. Long-term care insurance policies vary, so it is important to review options early in life and ensure the policy will meet your future needs. Elder law attorneys often assist clients with navigating long-term care insurance claims.

4. Guardianship and Conservatorship

As individuals age, they may lose the ability to make decisions for themselves due to mental or physical impairments, such as dementia or Alzheimer’s disease. In such cases, guardianship and conservatorship may become necessary.

a. Guardianship

A guardian is someone appointed by the court to make decisions on behalf of an individual who is unable to make decisions due to incapacity. Guardianship can cover decisions related to personal care, such as housing, medical treatment, and day-to-day needs.

In Michigan, a court may appoint a guardian if it determines that the individual is incapacitated. The court considers the person’s ability to manage personal affairs and whether they are at risk of harm due to their incapacity. A guardian must act in the best interests of the individual and may be required to submit reports to the court.

b. Conservatorship

A conservator is responsible for managing an individual’s financial affairs when they are unable to do so themselves. Conservatorship may be necessary if a senior has significant assets or financial obligations that require management. Like guardianship, conservatorship must be granted by the court, and the conservator must act in the best interests of the individual.

5. Elder Abuse and Financial Exploitation

Elder abuse is a significant concern in Michigan, as seniors are often vulnerable to various forms of exploitation, including physical abuse, neglect, and financial exploitation. Elder law attorneys play a key role in advocating for victims of elder abuse and helping families navigate the legal system to protect their loved ones.

a. Financial Exploitation

Financial exploitation occurs when a person takes advantage of a senior’s financial resources without their consent or through coercion. This can include fraud, scams, or taking funds from a senior’s account. If financial exploitation is suspected, an elder law attorney can help families take steps to protect the senior, including seeking a guardianship or conservatorship arrangement.

b. Reporting Elder Abuse

If elder abuse is suspected, it is important to report it to the appropriate authorities. In Michigan, individuals can report abuse to the Michigan Adult Protective Services (APS). APS investigates cases of abuse and neglect and may work with law enforcement if necessary. An elder law attorney can also assist with seeking protective orders or initiating legal actions to stop the abuse.

6. End-of-Life Planning and Advance Directives

End-of-life planning is another crucial aspect of elder law. Advance directives are legal documents that outline a person’s wishes regarding medical care in the event they become incapacitated. These include:

Living wills: Documents that specify a person’s preferences for life-sustaining treatments, such as ventilators or feeding tubes.

Healthcare powers of attorney: Documents that designate someone to make healthcare decisions on a person’s behalf if they are unable to do so.

In Michigan, healthcare providers are required to follow the directives specified in these documents to ensure that an individual’s end-of-life wishes are respected.

7. Conclusion

Elder law in Michigan is an essential area of legal practice that helps protect the rights and well-being of seniors. With the complexities of healthcare, estate planning, guardianship, and the growing risk of elder abuse, it’s vital for older adults and their families to understand their legal rights and options. By working with an experienced elder law attorney, seniors can better navigate the legal challenges they face, ensuring that their financial and personal needs are met as they age with dignity and security.

Works Cited

Michigan Department of Health and Human Services. "Medicaid Eligibility," MDHHS, 2024, https://www.michigan.gov/mdhhs.

State Bar of Michigan. "Estate Planning for Seniors," State Bar of Michigan, 2024, https://www.michbar.org.

Michigan Legal Help. "Guardianship and Conservatorship," Michigan Legal Help, 2024, https://michiganlegalhelp.org.

National Center on Elder Abuse. "Elder Abuse in Michigan," National Center on Elder Abuse, 2024, https://ncea.acl.gov.