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Disability Planning from the Elder Law Perspective

By Michael Ettinger, Esq.

A power of attorney will assist you in the event of possible physical incapacitation.
This means someone else can handle your legal and financial affairs that might require your physical presence, such as a real estate closing or refinancing. Later in life, it is imperative that you have your own plan for disability because

You get to choose the people you want to make decisions for you, be it family or friends, and
Your own power of attorney legal document affords them many more options than a legal guardian would have under the law to protect assets. For example, they can move much more in assets more quickly which, in a “move it or lose it” environment is crucial. Nursing homes in New York cost an average of $10,000 a month so the sooner you act, the more of your assets you are able to keep.

A legal guardian has to get a Judge’s permission to move or protect assets which can take many months, not only possibly costing tens of thousands in nursing home costs, but potentially the same amount in legal fees to prosecute the matter. Worse yet, after all the time, expense and effort, a Judge may not act in your best interest because sometimes the Judge has a different view of the matter politically or considers the State’s interests ahead of those of your family. If you have a power of attorney in the event of disability, the people you have chosen will do what’s best for you.

In New York, a Judge has the authority to cancel a power attorney and substitute someone else of the Judge’s choosing as your legal guardian. By creating a trust, however, you can completely protect against this. If you have a trust set up, where you name a back-up trustee or trustees, this defeats a guardianship proceeding for the trust assets. The Judge has no authority over the trust, so you are guaranteed to get the persons you choose. If you are unable at present to decide upon specific persons to act as your “power of attorney,” you may ask your elder law attorney to perform trustee duties.

Get the person(s) you choose to make difficult financial and legal decisions for you in the event of disability. This often makes the difference between keeping your home and life savings and losing them. A New York elder law attorney can assist in the proper drafting and execution of a power of attorney.

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