New York Elder Law Attorney Blog

Many local residents discover the complexity that comes with determining long-term care needs as they work through the aging process with a loved one. Figuring out the best living situation and determining the effect that it will have on finances is one of the more stressful parts of New York elder law. For one thing, many families feel a bit of sticker shock when they learn of the often daunting cost of many long-term care facilities, like nursing homes. Yet many residents may not be doing all they can to lower the cost of that service according to an article published this weekend in the Wall Street Journal.

A wealth of information is now available to those exploring long-term care options that reveal the likely costs of nursing homes and at-home services. Armed with data about reasonable costs, consumers are much better positioned to take a proactive approach in bargaining for their needed care. Many nursing homes, for example, will charge wildly different rates even in areas near one another. By knowing the local averages and median rates, consumers can ask facilities directly about the potential for rate decreases. If a facility is charging more than the median rate there may be room for a discount.

Also, many facilities quote a base rate per month--often between $8,000-$12,000--and then tack on additional charges depending on the services required, like help with bathing, dressing, and similar needs. Some facilities may be willing to bargain on the costs of those added services. Negotiating those finer points is an important way for many families to save money. While a few hundred dollars a month may not seem like a make or break requirement at first glance, it means much more built up over a period of years. With many families unsure how long an elder relative's money will last, small differences in price become very important.

Besides receiving the best rate possible for long-term care, before it even gets to that point it is also important for families to understand ways that they can protect an individual's assets in these situations. Strategies exist to help a family navigate the Medicaid process so that assets can be protected from the high costs of long-term care. For example, if one does not have long-term care insurance a common alternative is the Medicaid Asset Protection Trust. This option involves naming someone other than the senior or their spouse as the trustee, is helpful to save assets like a family home, and usually has little effect on an individual's lifestyle.

Continue reading "You May Be Able to Bargain For Long-Term Care" »

After discussions with New York elder law attorneys, many individuals seek to protect their assets by creating a trust and assigning a specific family member as the "trustee" of that trust. Most are aware that the trustee will make decisions about the distribution of an estate following the death of the "grantor"--the individual whose assets were placed in the trust. It is important to remember, however, that the trustee is taking on specific legal duties. A trustee is more than a mere title indicating that the individual will help handle affairs; it is an acceptance of very specific responsibilities owed to all beneficiaries.

Unfortunately, with the recent passing of a loved one, stresses are at their highest at the very moment when a trustee is required to fulfill their duties. This often leads to complications between family members.

For example, the Napa Valley Register shared a story about an all too common occurrence involving a dispute with a trustee. A man died with a living trust. He left his estate to be administered by a trustee--one of his five children. Some of the children helped in the organization and distribution of the man's assets, while some did not. Shortly after all of the matters appear settled, one of the children who was not involved began to wonder whether they received a fair percentage. They asked the sibling who was a trustee for an accounting of the distribution, and a protracted disagreement among the family members ensued.

This situation often occurs in our area, as living trusts and the designation of a family member trustee are common components of a New York estate plan. As the children in the above situation show, there remain legal issues of which to be aware following the creation of that trust plan. Trustees are fiduciaries, which means they owe a duty of competence and loyalty to those who seek to benefit from the trust--often a group of siblings. Even if some of those family members initially seem indifferent to the distribution process or are unwilling to help, the trustee must never act in a way that could treat certain beneficiaries unfairly.

Continue reading "Family Trustees Must Be Aware of Their Duties and Requirements" »

Many local seniors visit a New York elder law lawyer to sign a power of attorney form. These documents represent a popular way for many aging residents to have help with the management of their finances. A power of attorney usually involves a senior appointing a loved one as an agent who has the ability to make business and financial decisions on their behalf.

For many families, this remains an important part of their New York elder law planning. However, it is important that these legal arrangements not be entered into lightly, because they come with risks and complications.

Last week the Wall Street Journal discussed those potential power of attorney dangers, reminding readers to consult with elder law professionals to avoid future problems. Perhaps the biggest risk is the potential for fraud. Experts report that cases of elder financial exploitation and abuse have been on the rise for several years. One tracking method developed by the Metlife Mature Market Institute suggests that a staggering $2.6 billion is taken unlawfully from vulnerable seniors each year.

Federal and state lawmakers have recently attempted to curb this problem. For example, here in New York adults are now allowed to name third-party monitors with these documents. Those monitors receive regular reports from an agent which includes a check of accounting records to ensure that no unusual activity is found.

In addition, to prevent abuse some banks are taking tough stances and refusing to honor powers of attorney that do not meet certain criteria, such as those created out of state. While it is encouraging that financial institutions understand the risks of fraud, these practices often present challenges to well-meaning loved ones who are honestly working to help their senior.

Continue reading "Powers of Attorney Pose Risks and Complications for Area Families" »

Many New Yorkers will one day be called to help care for their elderly parents. The majority of those caregivers report that the complexities and challenges of the process cannot be fully grasped until one experiences them firsthand. There is often no easy way to handle the emotional and financial toll incurred while helping an elderly loved one when they need it most. Our New York elder law lawyers know well the challenges so that many local families face as they work through this experience.

A new book released last week by New York Times reporter Jane Gross offers a first-hand look at how her own New York family struggled through the process of helping their elderly mother. In "A Bittersweet Season" the writer shares the tumultuous way in which she tried to navigate the eldercare system. She reports on her family's confusion with Medicare and Medicaid programs and other problematic parts of the American health-care system as it relates to the elderly. The book also shares the impact that the time had on her mother's finances. An itemized ledger is revealed which imparts the true monetary cost incurred by her loved one throughout this time in her life.

In the new volume the author explains how her family was unprepared for the experience. In some aspects the main take-away from book is summarized by Ms. Gross when she writes that "being clueless--utterly clueless--is the central and unavoidable part of this experience." As difficult as the process is on many families, there are resources available to ease that uncertainty. In fact, a main lesson from the book is the need for families to do what they can to prepare for the process ahead of time.

Continue reading "New York Writer Releases New Book Explaining Complexity of Elder Care System" »

An unavoidable statistical reality is that area women may be much more affected by New York elder law and estate planning issues than men. Demographics and life patterns are at the heart of the explanation. Women have a longer life expectancy and more often marry older companions. This explains how of all Americans over 65 years of age, 42% of women but only 14% of men are widowed. On top of that, women still have lower average lifetime earnings.

Those characteristics have profound effects on the lives of many women in our area. As explained Thursday in a newly published Forbes article, women are much more likely than men to face compromised living situations following retirement. However, those who have taken time to conduct proper New York estate planning have a better chance at avoiding major decreases in living standards in their later years.

Many ways exist for a surviving spouse to maximize their financial protection, no matter what their future holds. In fact, the tools to plan for the future are frequently in flux.

For example, federal estate tax changes enacted late last year offer new opportunities and risks for spouses to ensure their assets are protected and preserved in as efficient a way possible. For one, starting this year there are new rules for the amount of unused estate tax exclusion a surviving spouse can add to their own. This "portability" option may double the amount of money that a spouse can pass on to heirs untaxed. However, the portability does not automatically occur. Without proper planning, some spouses may fail to take advantage.

Continue reading "New York Elder Law Estate Planning is Particularly Important for Women" »

Opening up a joint bank account is one of the first things that some area seniors and their loved ones consider when they begin seriously analyzing their need to conduct New York estate planning. Providing a child or other trusted relative access to one's finances is often the easiest way for a potential victim of elderly financial exploitation to provide an extra set of eyes on their finances. With many unscrupulous individuals willing to prey on vulnerable community members for their own financial advantage, some protection is better than none.

However, as was discussed in a March New York Times blog post, the joint bank account option is typically a dangerous and inadequate means of protecting a senior family members assets.

The joint bank account can create problems for both the senior and the co-signer. If for some reason the co-signer has financial problems, that individual's creditors may be able to go after the senior's account, regardless of the elder member's connection to those debts. These accounts also include a right of survivorship, which entitles the family member who joins in the account to retain the proceeds following the older family member's death. The potential for complicated family disagreements around that issue are clear and should be avoided.

Fortunately much more comprehensive, tailored, and effective means of protecting and preparing an estate are available. For example, a New York elder law attorney would be able to explain that a more logical solution may be for a family to create a durable power of attorney. This legal instrument often provides more balance to fill the needs of an aging senior--this option comes with both rights and responsibilities for the family members involved.

Continue reading "Be Aware of Potential Pitfalls with Joint Bank Accounts" »

Creating and updating a Will remains one of the most common reasons that an individual contacts a New York estate planning lawyer. Popular culture has enshrined the belief that a "Last Will & Testament" is the foundational document that everyone needs to prepare for their future and that of their heirs. This is a particularly common assumption among senior community members who are giving close thought to how they'd like their assets to be distributed, concerned about possible healthcare costs, and interested in protecting their estate from various contingencies.

However, Wills represent only the very beginning of the estate planning process that most families should consider. Actually, for many seniors Wills may be counterproductive. Instead, "living trusts" continue to increase in popularity as a legal tool to help seniors plan for their future in a much more comprehensive manner than that available through a traditional Will. Even the American Association for Retired Persons has advised seniors of the dangers of basing an elder law estate plan on a Will alone. If you are a senior in our state, it is vital that you learn more about a New York living trust.

For one thing, a Will only takes effect upon death, which means it does nothing to help seniors plan for possible disability, guardianship, or others matters later in life. In addition, using a living trust instead of a Will avoids the risk of a protracted probate contest where a judge--not the family--will decide what happens to an estate.

More and more seniors and their families are discovering the benefits of the living trust. The trust ensures that a wide range of planning can be conducted in private by the family, and often at a far lower cost than necessary to handle an estate according to a Will.

Continue reading "Consider Alternatives to a "Last Will & Testament"" »

In January, new legislation initiated by President Obama went into effect whereby hospitals participating in Medicaid and Medicare must now allow all patients to decide visitation rights, as well as whom to entrust with making medical decisions on their behalf, regardless of sexual or gender identity.

To read the bill, click here. While this paves the way for members of the LGBT community to have further control over their own medical decisions, it is important to note that this legislation defers to state laws with regards to giving proxy for advanced medical directives. This makes a power of attorney form for LGBT seniors all the more relevant and necessary.

A power of attorney form designates who will make legal and financial decisions for you should you become physically and/or mentally incapacitated. With a health care proxy and living will you may also spell out an "advanced directive" for medical decision-making, including end-of-life decison making, such as life support. The person who you specify in these legal documents will then be able to inform the medical personnel what your wishes are. While the recent legislation is enormously helpful for providing equal rights in medical care, it will help to ask an experienced New York LGBT elder law attorney whether or not a power of attorney can guard against discrimination at the time of a partner's greatest need.

Written by A.K. Lehmann, ABA Paralegal
Lehmann & Lehmann Legal Communications