Clients sometimes get confused about the way lawyers use the word “property.” In the legal community, the word “property” has a very broad meaning. It means anything a person or entity could own. Different types of property are then classified with different labels. For example, the term “real property” is used to mean land and things affixed to the land. “Intellectual property” refers to things like trademarks and patents. Bank accounts and investments are referred to as “intangible personal property.”
From the perspective of the child who moved to New Jersey 30 years ago, the sibling who moved back into the family home to live with (and be supported by) his aging mother is a ne’er-do-well scam artist who took advantage of and manipulated his mother as her health declined so that, in the end, her entire estate passed to him by one means or another. From the perspective of the son who lived with his mother during those final years of life, he sacrificed to allow his mother to enjoy her final years in a safe environment outside of assisted living, and she favored him out of appreciation for that sacrifice.
As Duane Horton contemplated his death, he decided to use on app on his smartphone to write a message that explained how he wanted his estate distributed when he was gone. Under Michigan law, that “document” was his will. So says the Michigan Court of Appeals in the recent case of In Re Estate of Duane Francis Horton, II.
Recently, a colleague told me about an experience she had with her father and father-in-law. Both were widowed. Both were of an advanced age. Both were beginning to experience trouble getting around. When presented with the proposition that they could benefit from using a wheelchair at times, one was all for it, the other was completely opposed. This story illustrates an important aspect of the aging process that doesn’t always get a lot of attention, but which can be the most important variable in anticipating how challenging the aging process will be.
Fixed incomes and fixed assets make older adults particularly vulnerable to financial fluctuations. A bad investment, an unexpected medical crisis, a financial predator or an unwise financial decision resulting from cognitive decline can quickly turn an older adult’s financial world upside down.
For obvious reasons, I interact with a lot of people who are looking for an “elder law” attorney. The label seems to have caught on. So I will take this opportunity to explain what I understand “elder law” to be, look back at where it came from, and look ahead to where it may be going.
A young but growing specialty
Elder law is a specialized area of legal work that involves traditional estate planning, but focuses more particularly on issues that clients face as they age, and especially legal issues associated with the late stages of life, such as long-term care planning, surrogate decision-making and end-of-life care.
This is a young practice area, probably no more than 30 years old. The founding of the National Academy ofAttorneys in 1987 probably provides the best marker for its start.