The term "elder law" encompasses several different aspects of law into one. Typical elder law subjects are: Wills, Trusts, Estate Planning, VA disability and benefits, Social Security disability and benefits.
Representing the Elderly or Disabled Client: Is decision‐making ability impaired? This refers to mental capacity. For instance, the capacity to make a Will is very low. In the case In re Estate of Weeks, 495 S.E. 2d 454 (1997) the SC Court of Appeals said the test is whether the testatrix (1)knew her estate, (2) the objects of her affections, (3)to whom she wished to give. In this case, capacity was found even though a Guardian and a Conservator had been appointed for Ms. Weeks.
Has the Client delegated decision-making authority?
- Durable Power of Attorney: This allows a person to select another person to exercise the powers enumerated in the document. This is where the agent can still act for the principle even after the onset of incapacity. 62-5-501
- Health Care Power of Attorney: It can be included in the DPA or in a separate document. Gives authority to the agent to make health care related decisions on behalf of the principle. 62-5-504
- Guardian: A Probate Court will appoint one if there is a need for ongoing supervision. 62-5-301
- Conservatorship: If there is a need for someone to handle the affairs of an” incapacitated person,” the Probate Court can appoint someone. 62-5-401.
- Guardian ad litem: When a person involved in a legal action is unable to participate in the decision‐making process, the Court may appoint one of these GAL’s.
Wills: There are 7 Reasons To Make a Will:
- Assets - Your assets may go to the wrong person unless you have a Will
- Taxes - Your heirs will have to pay the estate taxes if no Will
- Family businesses may go to the wrong person if you do not have a Will.
- Court permission - Courts and State laws will decide who gets what if you do not have a Will
- Asset protection - Heirs can take what they want if you don’t have a Will.
- Failed intentions - Nobody really knows the intent of a person unless its stated in writing.
- Equal shares may not be equitable for all children. For instance, 1 son may be CEO and another son an unemployed gardener.