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Areas of elder law carry particular weight and sensitivity to them. Older adults need an attorney they can trust to act as a guide, an advisor, and a custodian for their most important affairs.

If you have questions about planning for your estate, medical incapacitation, or a scenario where you might otherwise need someone to oversee your financial affairs, now is the time to start. Review the most important areas of elder law below, and then reach out to an experienced New Mexico elder law attorney who can assist you with preparing for anything that may lie ahead.

New Mexico Financial & Family Law is here for you. You can entrust our seasoned guidance as we assist you with estate planning, guardianship, or other critical elder law matters. Learn about the steps you need to take to be ready for any scenario during a no-risk, no-obligation consultation. Call (505) 503-1637 or contact us online to schedule your appointment now.

What Is Elder Law?

Elder law practice encompasses the areas of law that are of unique concern to individuals who are approaching critical milestones in their life. This can involve retirement but also estate planning. Proper estate planning is essential so that older adults can know with confidence that their wishes will be well understood and easy to execute following their passing.

Medical emergencies and other incapacitating situations are more likely to arise when someone has advanced past a certain age. Elder law practice encourages preparation for this scenario. Senior clients should consider what arrangements they would like in order to put their financial, medical, and personal affairs in the hands of an individual or individuals with whom they place their trust. These individuals should be capable of executing their duties faithfully and with respect to the agent’s wishes.

In sum, elder law can involve any or all of the following areas:

  • Estate planning
  • Trust formation
  • Probate law
  • Long-term healthcare planning
  • Insurance law, including Medicare
  • A living will/advanced directives
  • Medical/financial durable power of attorney
  • Adult guardianship
  • Conservatorship
  • Breach of fiduciary
  • Elder abuse
  • Nursing home abuse

Estate Planning

Estate planning is a fundamental component of elder law. With proper estate planning, an individual can prepare for the end of their life knowing with confidence that their intentions will be carried out after their passing.

Proper estate planning involves more than just the creation of a valid will. Clients must also anticipate the administrative burden of handling their estate, and the reality that their estate will typically pass through probate before being distributed to beneficiaries. The client may also have specific wishes for their end of life, including funeral arrangements, charitable donations, or the creation of a legacy.

A living trust is an important instrument to consider during the estate planning process. By creating a trust, the client can allow certain assets to bypass probate. They can also provide specific instructions for the administration of the trust or the distribution of its contents to beneficiaries.

Learn more about these matters and other aspects of estate planning in our estate planning and probate portal.

Durable Power of Attorney

An individual can be given durable financial power of attorney or durable medical power of attorney. This status grants them the ability to act as your representative when electing to make certain decisions involving financial matters and healthcare matters, respectively.

Adult Guardianship & Conservatorship

A guardian/conservator is an individual appointed by the court to act on an individual’s behalf once they lose the capacity to do so themselves. This appointment can be made because of a medical condition where the individual (ward) is in a coma or otherwise unconscious for long periods of time. An individual may also gradually lose capacity as a result of a degenerative brain disease, or they may have severely diminished capacity after a stroke or similar episode.

In every case, the court will consider the appointment of a guardian for legal decisions and a conservator for financial decisions. A guardian will be proposed, and an attorney can facilitate the decision-making process on the ward’s behalf.

Careful selection of a potential guardian or conservator is strongly encouraged. An individual can also be placed in a similarly responsible role of fiduciary under the terms of a trust. The proposed agreements should be reviewed continually and revised according to the most recent information and understanding.

For more information and services related to guardianship, visit our adult guardianship portal.

Medical Planning, Long Term Care, Advanced Directives

Medical matters can be particularly sensitive, not just for older adults but also for those in their families. Making rushed decisions usually has the effect of one or both parties feeling dissatisfied with the outcome.

Careful medical planning can allow an older individual to prepare for such scenarios. They can anticipate a time when they will be older and unable to care for themselves. They can select a mixture of financial planning and insurance coverage to cover the costs of the needed care. They can also make arrangements for possible long-term care scenarios.

Forming a living will and other advanced directives is an essential component of medical planning for older adults. An advanced directive can make clear the wishes of the individual in a situation where they could be incapacitated, either in the short or long term. They can elect to specify which forms of life-saving care or life-sustaining care they would wish to receive in such situations. Durable financial power of attorney, durable medical power of attorney, guardianship, and conservatorship can all become important matters during such times.

Like other aspects of elder law, it is important to revisit long-term medical plans and advanced directives continually so that they can reflect your current situation and current wishes.

Elder Abuse

Elder abuse can be both a criminal and a civil matter. It can involve financial exploitation as well as physical, mental, emotional, or sexual abuse. Harmful neglect is considered a form of abuse. Abuse can also involve a breach of the trust placed in a fiduciary, guardian, conservator, trustee, or individual with power of attorney.

If you are the victim of elder abuse or you suspect a loved one might be, report the information to Adult Protective Services (APS) as soon as possible. You can then explore your options for holding the abuser or exploiting the party responsible, including the possibility of financial restitution.

Nursing Home Abuse

Nursing home abuse is a common scenario. An individual placed in the care of a skilled nursing facility, long-term care facility, or similar healthcare provider can suffer many forms of possible abuse. Common abuses enacted include financial exploitation, neglect, undue restriction of rights, and physical, mental, emotional, or sexual abuse.

When dealing with matters of nursing home abuse, it is critical to report the incident quickly to APS as well as the nursing home itself. Be prepared for staff and administrators to attempt to handle your case and resolve it within their preferred procedure. They may claim you are forced to attend arbitration or that you waived your rights to a claim when agreeing to stay in the facility. Do not take such statements at face value. Review your rights and legal options with the assistance of an experienced nursing home abuse attorney near you.

Undue Influence

“Undue influence” refers to a situation where an individual pressures, coerces or otherwise unfairly manipulates someone else into making legal, financial, or medical decisions against their own personal interests.

Concerns about undue influence can arise in reference to an older adult’s last will and testament or a trust fund. Often, an heir/beneficiary will exert undue influence in order to obtain assets they otherwise wouldn’t have been given. 

A will can be considered invalid if it was drafted in a situation involving undue influence against the testator. Often, issues involving undue influence are raised after the testator’s death and during probate. 

If you are concerned about someone exerting undue influence over a loved one, either before or after that loved one’s death, then speak to an undue influence attorney promptly.

Breach of Fiduciary Duty

Breach of fiduciary duty is a specific type of elder abuse. When an older individual enters into certain relationships with a party where they entrust that party with specific duties and powers, then that person is considered a “fiduciary” under the law.

Common types of fiduciary relationships include:

  • Attorney-client
  • Spouse
  • Trustee-grantor
  • Guardian/conservator-ward
  • Individual with the power of attorney
  • Executor/administrator of estate-beneficiaries

In any situation involving a fiduciary, the fiduciary has a legal duty to uphold the interests of the beneficiary/partner/etc, to act in good faith, to be honest, and transparent, and to act reasonably and fairly to the best of their ability.

When a fiduciary breaches their duty, they could be liable for the harm they have caused as well as other damages. The fiduciary may be punishable under specific criminal laws, but they are also accountable in a civil case for all damages inflicted.

Monitoring fiduciary behaviors and setting specific boundaries, guidelines, or expectations can go a long way towards preventing extensive abuse. However, sometimes the fiduciary evades supervision or acts outside the bounds of expectations, in which case it is essential to take action quickly.

Speak to a breach of fiduciary attorney for advice on the next steps to take and your legal rights.

Entrust Our New Mexico Elder Law Lawyers for the Most Important Matters of Elderly Law

New Mexico Financial & Family Law works closely with clients to ensure the actions that are in their best interests remain clear. We can help you review all of the most sensitive elder law matters, inform you of your options, and help you prepare arrangements for as many scenarios as possible. We can also revisit these plans and arrangements from time to time, reviewing them and updating them in light of your most recent concerns or priorities.

Speak to an elder law attorney near you who cares. Start a relationship intended to protect your interests, keep you informed of your rights, and help you during your times of greatest need.

Schedule a no-obligation consultation now when you call New Mexico Financial & Family Law at (505) 503-1637 or contact us online.

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