I use the term Elder Law Attorney and Medicaid Planning Attorney interchangeably. Many people ask: what is the difference between an Elder Law lawyer / Medicaid planning lawyer and an estate planning lawyer? This question was touched upon here, but we will delve a little deeper in this article. Let’s break this question down into two parts:
What is an Estate Planning Lawyer?
Estate planning attorneys provide an excellent legal service. In the simplest terms, estate planning lawyers help their clients plan for what happens to their stuff after they pass away. Everyone can benefit from basic estate planning because everyone needs what I call the four essentials: (i) a Last Will and Testament; (ii) Revocable Trust; (iii) Power of Attorney; and (iv) Advanced Directives (Health Care Surrogate Designation, Health Care Durable Power of Attorney, and Living Will).
Resource Box: You can read more about the four essentials planning documents here:
Your estate is comprised of your assets: i.e. property - real property, such as your residence and owned rental properties and personal property, such as jewelry, artwork, cars, collectibles, etc…, bank accounts, financial holdings, business interests and more. So an estate planning attorney helps you plan for how best to protect and dispose of these assets upon your death. They see to it that your wishes are carried out. An estate planning lawyer should guide you on how best to avoid or minimize probate (since that is a long and expensive process). Estate planning lawyers also are involved in asset protection - they can also assist and help you plan for how best to protect your assets against attack from creditors. Advanced estate planning practitioners can help minimize your exposure to taxes and get into some very complex estate planning techniques for the ultra-wealthy. But I should emphasize again that everyone, rich or modest, should have some kind of estate plan in place.
What is a Medicaid Planning Attorney?
You can think of a Medicaid planning attorney (or Elder Law Attorney) as a kind of sub-specialty of estate-planning law. Medicaid planning lawyers focus on planning for what happens when their client becomes incapacitated – while estate planning attorneys focus on what happens to their client’s assets after they die. Medicaid-planning lawyers will often work closely with estate planning lawyers (or create estate planning documents themselves if necessary). Some of your estate planning documents may need revision to address your Medicaid-planning needs. This in no way is to cast dispersions on estate planning lawyers. A good estate-planning attorney will listen carefully to your desires and craft your estate documents accordingly. The reason why attorneys who focus on Elder Law or Medicaid Planning often need to amend these documents is because we are addressing different issues and trying to meet different goals. For example, a durable power of attorney is not just a form document. They are not all the same. They have to be carefully drafted to specifically enumerate what the holder of the power of attorney (called the agent or attorney-in-fact) can do because Florida does not allow for a general / all-encompassing durable power of attorney. Estate planning lawyers don’t focus on Medicaid-planning because it’s not the reason you seek them out – in essence, it’s not their job. Just as an attorney who specializes in estate-planning would not engage in advanced Medicaid planning; a Medicaid or elder-law attorney would not attempt advanced estate planning. This is why these two types of lawyers often work together.