No one likes to consider the fact that they may one day need help in managing their affairs, but the fact remains many people will need a fiduciary they can trust to act on their behalf when incapacitated. Typically as part of an estate plan, an individual will execute a power of attorney appointing one or more individuals of their choice to manage their health care decisions and financial matters in the event they can no longer handle their own affairs. Powers of attorney can vary in scope and purposes, and can serve as one method to avoid judicial intervention, including guardianship or conservatorship proceedings.

Guardianship Proceedings

When a health care or financial power of attorney are not sufficient or absent from an estate plan, a guardianship or conservatorship proceeding may be necessary to appoint someone to represent the person suffering an incapacity. In New York, a proceeding for guardianship can be commenced by a variety of parties, including, a distributee of the incapacitated person’s estate, certain fiduciaries, an interested party concerned with the welfare of the individual, or the incapacitated person himself. Incapacity is determined by clear and convincing evidence that the individual is unable to manage their own affairs and is unable to understand the consequences surrounding their inability in such a way that will likely cause harm to themself or others.Courts will consider a variety of factors when selecting a guardian, including the incapacitated person’s specific needs and the capabilities of the proposed guardian in meeting those needs.

Can I Select My Guardian?

A frequent question that many people have is whether they can select their guardian or conservator to represent them if the become incapacity. Some states provide the ability for individuals to designate a guardian in advance of incapacity. At the very least, most states, including New York, allow the incapacitated person to nominate a guardian, in which case such preferences contained in the power of attorney document could be used as evidence in demonstrating the incapacitated person’s intention as to who should act on their behalf in case of incapacity.

Planning for Incapacity
Your estate planning and elder law attorney can help you consider the risks and benefits of granting a power of attorney against the burdens and benefits of guardianship and conservatorship proceedings. Based the solution that best fits your needs you may need to include essential documents with the appropriate language to support and effectuate your choice of how oversees your affairs in the event you become incapacitated.

In many ways, growing older is not easy. Neither is choosing the right long-term care solution. The range of options vary from complete in home care to skilled nursing facilities. The resources you have to pay for your care, will in part guide the choices you have for long-term care, including individual care, boarding homes, assisted living, nursing homes, among others. The following are some common options for long-term care needs.

Long-Term Care Facilities and Communities

Personal In-Home Care. In-home care can range from full time, live-in nursing professionals to periodic care provided by private services and not-for-profit organizations. Personal in-home care is highly desirable for many, but equally as expensive and often cost prohibitive. Because in-home care can be an effective solution for the health of an individual, some states have implemented options for staying home while receiving Medicaid benefits.

Residential Care Facilities. If personal in-home care is not an option, another consideration is a community setting with private or shared rooms, with community activities and dining. These settings can feel more like home while offering an a greater level of care than independent living. A similar option includes apartment type facilities for seniors that support independence while providing a safer environment and access to care as needed. Residential care facilities are typically not as expensive as full service nursing homes; however, because residential care facilities are not qualifying nursing facilities, they are typically not covered by Medicaid.

Continuing Care Retirement Communities and Assisted Living. Continuing care retirement communities can serve an individual’s evolving needs for care and assistance. These facilities have various settings and may include independent living options as a point of entry into the community, followed by assisted and advanced care as the resident’s health and condition change over time. Depending on the community, costs can vary and include substantial upfront fees or commitments.

Skilled Nursing Facilities. Skilled nursing facilities are an advanced care option for those requiring a monitored environment, ready access to constant medical care, and community programing. Life in a skilled facility can be highly structured and vary from facility to facility. Skilled nursing facilities can be expensive and quickly reduce a resident’s savings and assets.

Long-Term Care Planning
Planning for the eventual need for long-term care is one of the principle objectives in an elder estate plan. With the help of an elder estate planning attorney, you can implement strategies to help pay for your care while preserving your assets, which can include long-term care insurance and Medicaid planning. Depending on your circumstances and choice of care alternatives, you will need to start taking action many years before you actually need the services of a long-term care facility or service.

Recently, a New York woman pleaded guilty to charges in connection with neglect and sexual abuse of nursing home residents in a New York long term care facility. The woman’s case was related to charges against others working at the facility, including the company that operates the home. According to the National Council on Aging, 1 in 10 persons over the age of 60 have been affected by elder abuse, many of which go unreported. The number of elder abuse cases increases dramatically in nursing homes, with abuse occurring in 1 in 3 nursing homes. Sometimes a nursing facility is the best care setting for a loved one; however, with the staggering statistics of nursing home abuse cases, you have to take steps to ensure your loved one is getting the best care possible with the dignity and respect they deserve.

Showing Up is Half the Battle

One of the single most effective ways to ensure the proper care for your loved one is to visit the facility often and monitor your loved one’s condition. By frequently making visits to your loved one’s facility you can engage the staff, observe behavior, ask important questions, and make your presence known to those who will be providing care. By planning your visits at varying intervals and times, you can ensure your visits are unexpected so that you have the opportunity to see the delivery of care throughout the day and different staff members.

Evaluate the Facilities

Another tip to protect your loved one is touring the facility, and inspecting the settings in which care is provided. The State of New York provides an informative website that catalogs inspection reports for nursing facilities across the state. You should also review the nursing home’s preparedness plan in the event of disasters like floods, fire, and tornadoes. In addition to showing up, knowledge is the key to keeping your loved one safe.

Make Sure Staffing is Adequate

Adequate staffing will have a direct relationship to the quality of care received by resident-patients. The Centers for Medicare and Medicaid issue guidance on staffing ratios that take into account the number of caregivers, level of licensure, and number of residents at the facility. Obviously, more skilled care professionals on duty will translate to readily available care to the residents of the nursing home facility. The State of New York and other agencies make nursing home staffing information available to the public so you can evaluate staffing levels for facilities in New York. Taking the time to personally evaluate the nursing home facility, and those who deliver care, will go a long way to protecting your loved one from the risks that many elderly face.

As increased numbers of investors reach the age of retirement, the market for investment services designed for the needs of seniors has greatly expanded. The needs for retired seniors is often unique from those individuals who are still working. For example, senior investors must execute a plan that allows for a comfortable living without the fear of running out of money. Because of this growing market, the Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA) are concerned about the potential for abusive sales practices that may constitute elder financial abuse.

What is Elder Financial Fraud?

There are three primary ways in which elder financial fraud is committed. These include when a financial advisor or stockbroker:

  1. Knowingly, through the use of deception or intimidation, deprives an elderly person of personal funds, assets, or property;
  2. Knew or reasonably should have known that the elderly person lacked the capacity to consent; and
  3. Breaches a fiduciary duty owed to an elderly person which results in an unauthorized sale or transfer of property.


A popular method for committing elder financial fraud involves the use of “free” lunch seminars. Financial advisors organize seminars advertised as being for informational purposes with the promise of a free lunch and other incentives to encourage people to attend. They often are held at upscale locations, like hotels, restaurants, or golf courses.

These seminars are frequently targeted specifically at senior citizens by promising to provide advice and information to help secure the financial resources to make it through retirement without running out of money. In addition, financial advisors at these seminars may provide investment advice and planning for passing on assets to children or other heirs.

While free lunch seminars are often presented as being only for the purpose of providing information to seniors, they are quite often actually organized in an attempt to obtain new customers. Some of the most common products sold during these seminars include real estate investment trusts, mutual funds, and reverse mortgages.

Alternatively, financial professionals may also use misleading designations in order to secure the trust of investors. A special designation is intended to indicate a specialty or expertise in a certain area. When a person does not have the special training or expertise that the designation represents he or she as having, it is often an indication of an attempt to deceive. As it relates to elder financial fraud, misleading designations include “senior specialist” or other designations that indicate a specific expertise in the needs of senior investors.

It is important to keep in mind that free lunch seminars and misleading designations are just two of the many ways in which elder investor fraud may occur.

Protecting Against Fraud

There are several ways in which seniors (and all investors) can help protect themselves from investment fraud, including, but not limited to, the following:

  • Investigate your advisor/stockbroker and do not agree to make an immediate decision if you are not comfortable;
  • Do not let your fear impact your decision: advisors and stockbrokers may attempt to use issues like your fear of outliving your retirement funds or losing it all due to a serious event (like hospitalization) to influence your investment decisions. While these issues should be considered and planned for, they can also be used inappropriately to steer you to unsuitable or unnecessary investments or decisions; and
  • Report suspected misconduct to authorities like FINRA


Not all investments are created equal. You investment portfolio may include a 401(k), individual retirement account, pension plan, or deferred compensation plan, among others investment vehicles. Whether your investment trust account is qualified under the Internal Revenue Code will determine the tax treatment of your contributions and withdrawals.


Qualified vs. Non-Qualified Investment Accounts


A tax-qualified account features the ability to contribute income to the qualified account and defer tax on the account funds. Typically, you must be 59 ½ to withdrawal funds from a tax-qualified account without penalty. Conversely, non-qualified accounts do not offer tax deferred treatment. When you withdraw funds from a tax-qualified account, your entire withdrawal will be taxable, as opposed to being taxed on only the growth of your non-qualified account. Qualified tax plans include, but are not limited to:


Minimum Distribution Requirements


After years of saving for retirement, there will come a time when you will have to withdraw money from your investment accounts. With respect to your tax-qualified investment accounts, the Internal Revenue Service has decided that this time will begin, at least in part, when you reach the age of 70 ½. The requirement to withdraw funds at this age is a mandate from the Internal Revenue Code’s required minimum distribution rules. A required minimum distribution (RMD) is the minimum annual amount you must withdraw from your account. Generally, the money you withdraw will be taxable. The amount you will be required to withdrawal depends upon your account balance and life expectancy.


Tax Planning
For most accounts, your first required minimum distribution should be taken by the first day of April in the year following the end of the calendar year in which you reach the age 70 ½. For instance, if your 70th birthday was May 5, 2015, you turned 70 ½ on November 5, 2015, and your first required minimum distribution must be taken by April 1, 2016. For the second year, and every year thereafter, you must take your annual required minimum distribution by December 31st. If you fail to take your required minimum distribution in any given year, you will be penalized by the Internal Revenue Service. The penalty is 50% of the required minimum distribution amount you were supposed to have taken. To avoid hefty penalties you should meet at least annually with your tax advisor to ensure your are withdrawing the required amounts. Often it is helpful to couple this practice with a review of your estate plan, so you are making appropriate decisions that optimize your investments as you grow older.


At some point in your life you or a loved one may need full time care in a nursing home facility. As part of the process of being admitted into a nursing home you, on your own behalf or on behalf of a loved one, may have to sign a nursing home agreement that outlines the terms and conditions of your residency in the facility. This agreement, by whatever name it may be called, e.g., admission agreement, provider agreement, or nursing home contract, is a legally binding document that governs the relationship between you and the nursing home. For that reason it is important that you become familiar with the terms and conditions in the nursing home contract for your own benefit or to protect your loved one.

Understand Your Rights

Every nursing home resident has rights that nursing homes are required to honor.  These rights include, among others, access to quality medical care, the freedom from discrimination and third party payment guarantees, and a complete and understandable disclosure of the facility’s rules and regulations. You have the right to be an active participant in your care, and be informed of your treatment, and the operations of the facility in which you or a loved one are a resident. However, sometimes nursing home facilities either ignore the rights of the patients in their facility, or act in a negligent manner. To the extent you have a dispute with the facility, residents have the right to assert your grievances to the nursing home, and even government officials, without the fear of reprisal.


When you or a loved one cannot resolve a breach of your rights or are harmed by the nursing home facility or its staff, you may need to assert your rights under New York law or your agreement with the nursing home. Typically, this entails initiating an action in court against the nursing home. However, sometimes nursing homes attempt to include an arbitration clause in the nursing home agreement. Arbitration is a private dispute resolution process before a neutral arbitrator outside of the judicial process. Arbitration may limit your ability to have your case heard by a judge and jury. Clauses that feature mandatory arbitration are disfavored and are limited in some states. Also, the Centers for Medicare and Medicaid Services have recently proposed a rule to curtail mandatory arbitration. While mandatory arbitration clauses may become less of a problem in the future, voluntary arbitration agreements are still prevalent. Generally, arbitration clauses in nursing home agreements are enforceable in New York.


Before signing a nursing home contract, you should clearly understand your rights and obligations included in the agreement, especially where the nursing home has included an arbitration clause. Clauses that purport to require mandatory arbitration or offer voluntary arbitration of your claims against the nursing home must be carefully considered before you sign on the dotted line.

A home equity conversion mortgage, or reverse mortgage, is a lending option that gives qualified homeowners the ability access the equity in their home. The benefits of a reverse mortgage include the ability to access a regular stream of funds or access to a line of credit when you need additional funds for life’s many unexpected events. However, reverse mortgages do have risks that you need to consider.

How a Reverse Mortgage Works

A reverse mortgage is designed to make payments to you from the unencumbered value of your home, which is the difference between the appraised value and the loan balance on your home. After you obtain a reverse mortgage, you will receive a lump sum or monthly payments from your lender; provided, however, you remain in the house and use it as your primary residence. If you have an existing mortgage, you may have to pay the balance of that mortgage as part of obtaining a reverse mortgage, but you will otherwise not have to make payments on the reverse mortgage until you sell the home or stop using the home as your primary residence. When you pass away, the lender will be paid upon the sale of the home.

Requirements for Obtaining a Reverse Mortgage

You must be 62 years or older to obtain a reverse mortgage. You must live in the house being mortgaged as your principal place of residence and not be in default on any debt to the federal government. In regard to the property, it must be a qualifying single-family home or condominium, and must be in good repair in accordance with minimum property standards. Before you agree to a reverse mortgage you should review the information and disclosures provided by your lender, and consult your legal and financial advisors before signing any paperwork.

Reverse Mortgage Considerations

As part of your review there are many factors to consider before obtaining a reverse mortgage. You need to remember that you remain the owner of your home, and you will continue to be responsible for upkeep, taxes, and any other related expenses. You also need to consider that with each payment you receive, the reverse loan balance due will increase and interest will accrue through the life of the reverse mortgage; however, the principal balance of the loan will not exceed the value of your home. Lastly, your reverse mortgage will come with additional fees and costs, which should be provided to you before closing.

How Reverse Mortgages Affect Your Estate

Your home will secure the reverse mortgage loan. During the administration of your estate, the sale of the home will be used to pay the lender, or if your heirs want to receive the home they will have to either pay the loan balance due or obtain a new mortgage. Unless your heirs elect to pay off the reverse mortgage loan with a new mortgage, your heirs will not be personally responsible for the reverse mortgage loan balance. Consulting with an experienced elder law attorney can help guide you through the risks and benefits of a reverse mortgage so you can determine if it is the right decision for you.

When planning for the possibility of eventual nursing home admission, the key is not so much building up assets, but rather, spending as much as possible in ways that will not trigger penalties or ineligibility. So, some of the best tricks are finding exempt expenditures; these are things Medicaid allows you to spend money on without being considered part of your assets.

Prepaid burial

When it comes to the morbid topic of death, no one likes thinking about purchasing the last piece of property they will ever live on, but everyone does eventually die. Not thinking about it will not stop it from happening. Since we know death is inevitable, paying for that burial plot now will take that money out of the scope of Medicaid. There are also other alternatives that may qualify. Loved ones will have to shell out the money to bury you later anyway, so at least this money is now not going to the nursing home.

What can be included?

Now, there is a lot of misinformation on the Web about what Medicaid will exempt for funeral and burial expenses. To be clear, the burial plot is almost always permitted, as are the opening and closing charges and other incidentals that are required to be purchased along with the plot. However, many states will simply not allow you to include flowers, services, or $10,000 for a performance by your favorite local band, and so forth. Be reasonable, but if you have a lot of money to spend down, treat yourself.

Make it irrevocable

If you have the right to revoke the prepaid plot and receive a refund, then Medicaid will treat this as an asset you can liquidate to pay for your own nursing home care. Your burial contract should have a clause that makes it a final contract that cannot be revoked for any refund of money. That way, you technically have no immediate liquid value in the plot or the services relating to it. Instead, the only way you can enjoy the benefits of the contract – if one can call it enjoying – is to die first. For that reason, irrevocable burial contracts are exempt.

Buy a plot for family

Medicaid will also allow certain reasonable burial contract purchases for immediate family members, such as children and spouses. This rule is not absolute and such purchases are scrutinized closely. However, careful consultation with an elder law attorney is your best way to determine if this often overlooked planning tool could help you spend down your assets to qualify for Medicaid assistance if admitted to a nursing home.

Guardianship is difficult for many families. It is especially difficult for those who are just competent enough to realize they are losing much of their autonomy yet not competent enough to carry on their own affairs. So it is even more unthinkable that many guardians every year take advantage of vulnerable seniors and prey on their trust and weakness. As with all forms of greed, the facts tend to show that the greater the wealth, the greater the likelihood of abuse. Here are just a few ways that guardians abuse their wards.

Creating New Estate Planning Documents

Some guardians will have the incompetent person sign powers of attorney or wills and trusts designed to leave everything to the guardian. Typically the goal is to avoid courts, so trusts and powers of attorney – especially property powers – are the most common. One would think ethical attorneys would never participate in helping a guardian do this, but sadly there are many unscrupulous attorneys who have no problem doing so.

Undervalued Liquidations

Many guardians may need to liquidate tangible property to prepare a house for sale after the ward enters a nursing home or must downsize. They tell their wards, and often the families, that they had a certified appraiser review the tangible property, and the value is $25,000. While family may be quite shocked, they often do not question such an official and certified appraiser. Then, the guardian makes contact with potential buyers from liquidation companies who buy estate property. They in turn buy all the goods, load them into a truck and haul them away. The money is paid, and all seems well. Sadly, what was hidden from the appraiser was $100,000 worth of collectibles and family heirlooms.

Allowing Foreclosures or Other Losses

Any guardian who pays himself before the mortgage is committing a grievous error and is indeed committing fiduciary abuse. However, this is sadly quite common. Even some well-trained professional guardians have allowed homes to be foreclosed and vehicles to be repossessed so that they could ensure their own payment. They do not make diligent efforts to negotiate payments or reduce the impact of financial harm.

Manipulating Incompetency

It seems crazy to believe that in this day and age doctors would falsify a diagnosis of Alzheimer’s disease or other mental impairment. However, guardians often doc-shop, looking for a favorable diagnosis so that they can remain in power over an affluent incompetent person. There is also the chance of misdiagnosis. Sometimes a guardian will take the ward to dozens of doctors. Eventually, as with any professional opinion, if the person does have even the smallest infirmity, there is a chance a doctor will agree that the person has limited capacity. They get a report, and voila, they now have what they need to justify continuing guardianship.

When a guardian is in place for a loved one, family members should remain diligent and routinely ask for an accounting and inventory of assets, funds, and tangible property. If at any time a guardian refuses, contact an elder law attorney immediately.

New York’s Attorney General, Eric Schneiderman, unveiled a sweeping Fraud Control Unit designed to target healthcare providers who abuse the Medicaid system. According to the AG’s website, they are continuing to add dozens of prosecutors and investigators to keep up with reports and investigations. Nursing homes throughout the country are largely paid by Medicaid funds. To stay profitable, nursing homes must remain at near full occupancy. This often means cutting corners, refusing to transfer residents who need critical care or higher levels of care, and even billing for services that are not (or cannot be) provided. Below are just three simple examples of Medicaid fraud in nursing homes.

Billing for Services Not Rendered
When a resident goes to a skilled nursing facility, the resident and his or her family typically sign a contract and apply for Medicaid. At times, the application takes some time to be approved, but once it is, the money begins flowing to the nursing home, paying for whatever services are billed. There are fairly strict rules on what the facility can bill for and how much they are paid.

Nursing homes are only paid a fraction of their regular charges. Say the actual room charge is $8,000 per month, Medicaid may pay only about $1,500 to $3,000. Usually it is only a small fraction. So, nursing homes do anything they can to ensure they get every penny. Some will bill for a private room, when in truth the resident shares a room with 4 other residents who themselves all pay for private room as well. Nursing homes may also report that a resident is receiving a gait belt to help with mobility or other assistive devices, when in reality such devices are being share among an entire floor of residents, each being billed as having the same expensive device.

Medications Not Being Administered

As horrible as it sounds, some nursing homes have even stooped so low as to report the administration of medications to residents when no such medications are given. The way this little scheme is done is the nursing home will “ration” meds by giving patients less critical medications every other day instead of daily. Or, perhaps that does that requires 3 times per day will become 2 times per day. When spread over time, they save a lot of medicine by again sharing the same medication across the population and yet still billing as though all patients received appropriate doses.

Physician Extenders Being Overused

In the past 10-15 years, we have seen a real surge in the use of nurse practitioners and physician’s assistants. And for the most part this is a cost savings for the public. However, some nursing homes use these “physician extenders” to bill as though the physician had actually visited. To explain this a little better, each nursing home must have a medical director – a doctor who oversees care. That doctor does not typically stay on the premises but is required to visit and see patients at certain intervals, and he or she also consults with the nursing staff to ensure more critical issues are properly addressed. However, some facilities will allow the nurse practitioner to fax treatment records and orders to the physician, who in turn signs them without ever seeing the patient. Then, since the care appears to have been provided by a physician, Medicaid is billed at a different rate than if billed for just the nurse practitioner’s bill was generated.

Given the recent attention paid to fraud by New York’s Attorney General, nursing homes should be careful. When selecting a nursing home, be sure to do your homework and review state complaints and investigations. You can also discuss the decision with an elder law attorney to learn more about quality homes in your state.

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