Elder Law

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 What is Elder Law?

Elder laws are a body of laws that address issues that are specific to individuals who are, in general, over the age of 65. This includes rights to:

  • Social security benefits;
  • Retirement plans;
  • Drafting wills and trusts; and
  • Age discrimination.

Who is Considered to be an Elder?

Pursuant to federal laws including the Older American Act (OAA), an elder is defined as any individual who is at least 60 years of age. The definition of an elder individual may vary by state.

However, the majority of states define an elderly person as being over 65 years of age. In addition, disabled individuals who are over the age of majority, 18 years of age in most states, may, in some cases, be classified as elders under state laws and federal laws.

What is an Elder Law Attorney?

Elder law attorneys are lawyers who specialize in laws that are specific to individuals who are over the age of 65. There are numerous important issues that elder law attorneys can assist individuals with, including:

Elder law attorneys will help an individual carry out the plans they desire for their future, including how they want their property to be distributed to their loved ones when they pass away. It is essential for an individual to have their wishes in writing to ensure that they are carried out as desired.

Elder law attorneys can be invaluable assets when planning for the future. If an individual is attempting to help their parents plan for their future or their retirement, an elder law attorney is a great recommendation.

What are Social Security Administration Benefits?

The federal Social Security Administration office allocates funds to individuals with disabilities and senior citizens. The Social Security Administration manages monthly payment programs for individuals who qualify, including social security retirement and supplemental security income.

Social security retirement is provided to workers over the age of 65 who plan to stop working. Supplemental security income is provided to individuals who are 65 and older or individuals who are blind and disabled and who have limited income or limited financial resources.

What are Pension Plans?

Many individuals make payments into retirement or pension plans during the time they are employed. In general, the federal Employee Retirement Income Security Act (ERISA) regulates pensions provided by private employers.

Typically, there are two categories of pension plans:

  • Defined benefit plan: Under a defined benefit plan, an employer promises an employee will receive a certain monthly benefit arrangement after they retire. Employees are informed in advance of what their benefits will be after retirement; and
  • Defined contribution plan: Under a defined contribution plan, an employer makes regular deposits in an account created specifically for the employee. Often, the employer invests the funds. The employer bears the risk if any investments fail.

What are Wills and Trusts?

Wills and trusts are estate planning tools individuals can use to distribute their assets when they pass away. It is essential to draft these documents clearly and properly, avoiding any ambiguities regarding how assets will be divided.

If an individual fails to have a will or a trust in place, the state in which they resided will determine what happens to their property. This means that their loved ones may not receive the property the decedent wanted to pass to them.

What is Age Discrimination?

Congress has enacted laws laws that prohibit private individuals or organizations as well as governments from discriminating against individuals based on their age. In the context of employment, individuals are protected from discrimination by their employers on the basis of age under the Age Discrimination in Employment Act.

As a general rule, workers who are over the age of 40 are protected.

What are Elder Abuse Laws?

Elder abuse laws are a body of laws that aim to prevent the abuse of elders, either by their professional caregivers or by a private citizen. These laws provide penalties for individuals who engage in the abuse of an elderly individual.

Each state has its own set of elder abuse laws in addition to those enacted by federal authorities. There are some states that may have different standards and penalties for elder abuse which vary based on the caregiver committing the abuse.

The standards tend to be stricter for elder care facilities and professional workers than for those applied to informal caregivers, such as friends or relatives. This is done to prevent the occurrence of institutional abuses, for example, when an elderly care home has deficient health care policies.

Are There Different Types of Elder Abuse?

The majority of states define elder abuse as any action of physical abuse, harm, neglect, or deprivation of care towards an elder individual. Elder abuse may also include mental and emotional harm to an elder, not just physical injury.

There are some laws that define non-consensual contact sexual contact as abuse as. Elder abuse may be classified into two main categories, passive elder abuse and active elder abuse.

Passive elder abuse occurs when a caregiver’s negligence, illness, disability, stress, lack of maturity, or lack of financial resources results in elder abuse. Active elder abuse occurs when a caregiver intentionally fails to provide care to an elderly individual whom they are responsible for.

This may occur in situations where there is tension between the elderly individual and their caregiver. Active elder abuse typically results in criminal charges.

There can also be cases of self-neglect. In these cases, the elderly individual is either unable or unwilling to care for themselves. In these cases, intervention may be required to prevent further harm, even if this intervention occurs against the elder’s wishes.

Is Elder Abuse a Civil or a Criminal Offense?

Elder abuse may be categorized as either a civil offense or a criminal offense. As previously noted, active elder abuse usually results in criminal charges.

The penalties for criminal actions of elder abuse may include incarceration, criminal fines, or both. There are some states that allow elder individuals or their representatives to file civil lawsuits against individuals who instituted or abused them.

These lawsuits may result in the offender being required to pay monetary damages to compensate the elder victim for their losses. The damages may include compensation for:

  • Physical injuries;
  • Pain and suffering; and
  • Attorney’s fees.

In some states, the elder laws specifically require certain caregivers to report instances of elder abuse. For example, the majority of long-term elderly care facilities are required to report elder abuse to the proper authorities.

Individuals who have a duty to report instances of elder abuse may face criminal charges if they fail to do so when they have witnessed elder abuse or have knowledge of its occurrence.

Should I Consult an Attorney about My Elder Law Issue?

If you or a loved one has an issue involving elder abuse, it is important to consult with an elder lawyer. Your attorney can advise you of your rights as well as recommend options and possible solutions to remedy the issue or to obtain compensation for injuries.

If you are in a situation where you need to report an instance of elder abuse, it may be helpful to consult with an attorney prior to reporting. The reporting process may be complex and state laws can vary on the requirements.

If you are an individual who is in a professional position and are required to report instances of elder abuse, it may be helpful to consult with an attorney to ensure that you avoid any possible criminal charges.

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