Best Elder Law Attorneys in America

Elder law is a legal term coined to cover an area of legal practice that places an emphasis on those issues that affect the growing aging population.

The three major categories that make up elder law are:
1. Estate planning and administration, including tax questions;
2. Medicaid, disability and other long-term care issues; and
3. Guardianship, conservatorship and commitment matters, including fiduciary administration.

Other issues found under the umbrella of elder law include such areas as estate planning; wills; trusts; guardianships; protection against elder abuse, neglect, and fraud; end-of-life planning; all levels of disability and medical care; retirement planning; Social Security benefits; Medicare and Medicaid
coverage; Medicaid planning (United States); consumer protection; nursing homes and in-home care; powers of attorney; physicians' or medical care directives, declarations and powers of attorney; landlord/tenant needs; real estate and mortgage assistance; various levels of advice, counseling and
advocacy of rights; tax issues; and discrimination.

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Estate Planning

Estate planning is the process of accumulating and disposing of an estate to maximize the goals of the estate owner. The various goals of estate planning include making sure the greatest amount of the estate passes to the estate owner's intended beneficiaries, often including paying the least amount
of taxes and avoiding or minimizing probate court involvement. Additional goals typically include providing for and designating guardians for minor children and planning for incapacity.

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Estate Planning Tools

The tools involved in estate planning include the will, various types of trusts, beneficiary designations, powers of appointment, various forms of property ownership (Joint tenancy with rights of survivorship, tenancy in common, tenancy by the entirety, etc), gifting, and powers of attorney, specifically the durable financial power of attorney and the durable medical power of attorney. After widespread litigation
and media coverage surrounding the Terri Schiavo case, virtually all estate planning attorneys now advise their clients to also create a living will. Note that many people (and even some attorneys) confuse a living will with a durable medical power of attorney. The former controls solely those decisions that must be made at the end of the patient's life, while the latter is used to give decision-making authority to someone else (usually a family member or close friend). This person, the attorney-in-fact, then makes all medical decisions leading up to the person's death, but has no such power to make end of life decisions for the patient. Those decisions are made by the patient in the living will; in the absence of a living will, and where the patient is incapable of making end-of-life decisions
for him or herself, such choices are left to family members.

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Remainder Interests

The tax code allows wealthy people to set up charitable remainder trusts and set up qualified personal residence trusts to own their personal residence yet leave it to their children without estate tax.

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Fiduciary

The fiduciary duty is a legal relationship between two or more parties (most commonly a "fiduciary" or "trustee" and a "principal" or "beneficiary") that in English common law is arguably the most important concept within the portion of the legal system known as equity.. A fiduciary duty is the highest standard of care imposed at either equity or law. A fiduciary is expected to be extremely loyal to the person to whom they owe the duty (the "principal"): they must not put their personal interests before the duty, and must not profit from their position as a fiduciary, unless the principal consents. The fiduciary relationship is highlighted by good faith, loyalty and trust, and the word itself originally comes from the Latin fides, meaning faith, and fiducia. When a fiduciary duty is imposed, equity requires a stricter standard of behavior than the comparable tortious duty of care at common law. It is said the fiduciary has a duty not to be in a situation where personal interests and fiduciary duty conflict, a duty not to be in a situation where their fiduciary duty conflicts with another fiduciary duty, and a duty not to profit from their fiduciary position without express knowledge and consent. A
fiduciary cannot have a conflict of interest. It has been said that fiduciaries must conduct themselves "at a level higher than that trodden by the crowd" and that the distinguishing or overriding duty of a fiduciary is the obligation of undivided loyalty."

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Will

In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his or her property or family after death. For the devolution of property not disposed of by will, see inheritance and intestacy. In the strictest sense, "will" is a general term, while "testament"
applies only to dispositions of personal property (this distinction is seldom observed). A will is also used as the instrument in a trust.

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Requirements for the Creation of a Will

Any person over the age of majority can draft their own will without the aid of an attorney. Additional requirements may vary, depending on the jurisdiction, but every will must contain
the following:
   - The testator must clearly identify himself as the maker of the will, and that a will is being made; this is commonly called "publication" of the will, and is typically satisfied by the words "last will and testament" on the face of the document.
   - The testator must declare that he revokes all previously-made wills and codicils. Otherwise, a subsequently-made will revokes earlier wills and codicils only to the extent that they are inconsistent. However, if a subsequent will is completely inconsistent with an earlier one, that earlier will be considered completely revoked by implication.
   - The testator must demonstrate that he has the capacity to dispose of his property, and does so freely and willingly.
   - The testator must sign and date the will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries). In some jurisdictions, for example Kentucky, the spouse of a beneficiary is also considered an interested witness. In the USA, Pennsylvania is the only state which does not require the signing of the will be witnessed.
   - The testator's signature must be placed at the end of the will. If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes
after the signature is so material that ignoring it would defeat the testator's intentions. After the testator has died, a probate proceeding may be initiated in court to determine the validity of the will, i.e., whether it satisfied the legal requirements, and to appoint an executor. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted. There is no legal requirement that a will be drawn up by a lawyer, although there are pitfalls into which home-made wills can fall. The person who makes a will is not available to explain him or herself, or to correct any technical deficiency or error in expression, when it comes into effect on that person's death, and so there is little room for mistake. Some states recognize a holographic will, made out entirely in the testator's own hand. A minority of states even recognize the validity of nuncupative wills. In England, the formalities of wills are relaxed for soldiers who express their wishes on active service. A will may not include a requirement that an heir commit an illegal, immoral, or other act against public policy as a condition of receipt. In community property jurisdictions, a will cannot be used to disinherit a surviving spouse, who is entitled to at least a portion of the testator's estate. It is a good idea that the testator gives his executor the power to pay debts, taxes, and administration expenses (probate, etc.). Warren Burger's will did not contain this, which wound up costing his estate thousands. This is not a consideration in English law, which provides that all such expenses will fall on the estate in any case.

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Trust Law

In common law legal systems, a trust is an arrangement whereby money or property is managed by one person (or persons, or organizations) for the benefit of another but is owned by the 'Trust'. A trust is created by a settlor, who entrusts some or all of his or her property to people of his choice (the trustees). The trustees are the legal owners of the trust property (or trust corpus), but they are obliged to hold the
property for the benefit of one or more individuals or organizations (the beneficiary, a.k.a. cestui que use or cestui que trust), usually specified by the settlor. The trustees owe a fiduciary duty to thebeneficiaries, who are the "beneficial" owners of the trust property. The trust is governed by the terms of the trust document, which is usually written and in deed form. It is also governed by local law. In the United States, the settlor is also called the trustor, grantor, donor, or creator.

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