Articles Posted in Elder Law

It is often difficult for parents to determine whether to share details about an estate plan with their adult children. Unfortunately, there is no simple answer or easy solution to determining when to share this information with adult children. Fortunately, there is some advice to help parents decide when to disclose these details with adult children. This article will list some critical advice that parents should follow when discussing information about their estate plan with adult children.

Tip #1 – Be Certain to Make Personal Property Plans

It is very important that parents have a conversation with adult children about any personal property that multiple individual might want because personal property is one of the estate planning areas most likely to result in arguments between beneficiaries. To fully anticipate any arguments that might arise, parents should make sure to afford each adult child the opportunity to talk about their favorite items so that an agreement regarding how the personal property will be divided can be made.

It is important for individuals to properly plan the end of their lives. There are many critical estate planning tools that should potentially be used during this planning process. While an estate planning attorney can help individuals navigate each of these issues, it is important for people to understand what each of these documents are and why they are very important. This article will review four of the most important end of life documents that individuals should consider creating with the assistance of a strong estate planning attorney.

Document # 1 – Advance Care Directives

These documents place in writing the desires that a person has about their health care to make sure that their wishes are followed in the event that they become incapacitated or in any way are unable to communicate them. These documents are very important because they make sure that patients who are permanently unconscious or terminally ill receive the care they deserve.

In the last decade, digital platforms like Facebook and Twitter have exploded in popularity to the point where millions of people, both young and old, have accounts and regularly post and share information with one another. Other media like Google Drive and Dropbox allow allow anyone with an email address to set up an account and store and share information across the cloud with anyone the individual gives access to.

Just like with any other material assets, we need to plan for someone to take charge of managing these digital accounts for when we pass on. Fortunately for New York Residents, state law allows individuals to grant executors of their estate legal and practical powers to digital assets upon death. New York is one of several states which passed the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in the New York Consolidated Laws §13-A-1 through §13-A-5.2.

The RUFADDA defines “electronic communications” as a type of digital assets that requires stronger privacy protections as these are often private communications between one person and another. The law requires individuals give explicit consent for the executor of the estate to access these sensitive electronic communications, no matter how benign they may be. Whether these digital assets are simply an email or social media account, certain procedures must be followed to ensure quick and expedient access.

While none of us expect to become so ill we cannot manage our own affairs, we should nonetheless prepare contingencies in case these types of situations arise out of an injury, old age, or another unexpected event. One of the most important types of planning we can do is to create a financial power of attorney to allow a trusted person to manage money for health care and and lifestyle to ensure we continue to live comfortably with dignity.

 
With a financial power of attorney, an individual can perform many duties on your behalf such as making bank deposits and withdrawals, paying bills, manage government benefits, and watch over any financial investments. Income and finances are an incredibly important part of our lives and need continuous oversight to ensure there are no interruptions that could negatively impact our ability to provide for ourselves.

 
In New York, any competent person may serve as your agent to manage your finances. While legal and financial management experience are always a plus, the individual creating the financial power of attorney need only choose a capable and trusted person, depending on the situation he or she may find themselves in. When and for how long the financial power of attorney lasts depends entirely on the wording of the document.

New York’s Surrogate’s Courts handle a wide variety of civil issues, mostly related to trusts and estates, guardianship, and adoption. The Surrogate’s Court is established in every county in New York, helping to provide residents with timely and effective due process for legal issues under the court’s jurisdiction. The following is a brief overview of the types of cases the Surrogate’s Court handle and what individuals can expect from the proceedings.

Probate – Probate proceedings deal with the process validating the last will and testament of a deceased person, if the individual created such a document. A last will and testament are the final directions given by the deceased to allocate his or her to estate to heirs and other beneficiaries.

It will be the responsibility of the person named as the executor of the estate to file the will with the probate office of the Surrogate’s Court, collect all the necessary documents, pay off creditors, and finally divide assets of the estate among beneficiaries per the wishes of the deceased.

In New York state, individuals can place their estate into a trust to distribute to beneficiaries and thereby avoid lengthy and costly probate proceedings in a Surrogate’s Court. While a traditional last will and testament may be better for some individuals, for many it may be best to create some form of a trust, particularly a living trust, to ensure loved ones receive their portions as quickly as possible and with as little tax liability.

It is also worth noting that even after creating living or inter vivos trusts, you will still need a last will and testament to ensure any of your final wishes are carried out and assets left out of the trust are dealt with as you see fit. Without a will to cover newly acquired assets or those not named in the trust, the remainder of your estate could considered in intestacy and pass on to your heirs in succession under New York law.

While creating a trust is a fairly straightforward affair, it may still be necessary to consult with financial advisors or an estate planning attorney to ensure proper transfer of your assets. The first step will be to create the trust and there are many resources from the New York State Bar and Surrogate’s Court system online you can go to for forms and information how to file.

When planning for our later years, forward thinking individuals often wonder what is the best way to spend down their assets to qualify for Medicaid but still live a comfortable and dignified life until services like nursing care are absolutely needed. With the value of real estate skyrocketing over recent decades, homes that were just a few thousands dollars may put homeowners in a financially difficult spot now that the property is worth many times the initial investment.

Under federal Medicaid laws, individuals may only have a net worth below a certain level, including things like homes and automobiles in some cases. Often times, seniors need to “spend down” their assets to qualify for the invaluable services Medicaid provides and many individuals may attempt to give away homes or spend down savings accounts to qualify. However, Medicaid has a “look back” period that can last a few months, meaning seniors may be penalized for recently giving away assets or spending bank accounts before applying for coverage.

One solution which may be effective for some is to create a “life estate” with their home. By doing so, seniors can own, live in, and exercise full control over their home and simply pass it on to a beneficiary like a child once they pass. With the help of an estate planning attorney, individuals can create the life estate with the deed to their property and create a “remainder interest” for the person who will receive the property, known as the remainderman, upon the deceased’s passing.

Most folks never believe they or their elders could be the victim of financial exploitation by a family member or a caretaker but the truth is that every year, millions of well meaning or vulnerable individuals find themselves taken advantage of. Even independent and acute elders can find themselves fleeced by scammers over the phone or a seemingly trusted individual charged with ensuring their wellbeing.

However, with some careful planning and vigilance we can help safeguard ourselves and our loved ones from the malicious intentions of someone pretending to be someone they are not. Often times, warning signs pop up that can alert us to foul play and give us the opportunity to intervene before unscrupulous individuals unjustly enrich themselves.

Many situations of financial exploitation against elders involve family members such as adult children or another close person engaged in life care. Sometimes, these caretakers feel entitled to large portions of an individual’s wealth for rendering the care and attention needed for the elder to live a comfortable and dignified life. While there is nothing wrong with someone rewarding a child or a close individual for watching over them when needed most, some individuals may take matters into their own hands to see their inclinations through.

Individuals with disabled family members understand the many obstacles life can put in front of them and their family, especially when it comes to finances. For many, having a permanent disability can mean being unable to provide for oneself and that can mean relying on benefits from social welfare programs to get by. However, many of these programs have strict income thresholds that can exclude potential beneficiaries if they earn too much money or have too much capital.

Fortunately, New York is one of several states that allow disabled persons and their families to create special savings accounts to help maintain the person’s health, independence, and quality of life. The New York Achieving a Better Life Experience (NY ABLE) helps supplement but not supplant benefits provided through Medicaid, SSI, SSDI, private insurance and other sources and is exempt from om tax on its earnings and distributions, provided the funds are used to pay for qualified disability expenses.

The laws creating the ABLE statute was signed into law by Gov. Andrew Cuomo in December 2015 and is federally authorized by the federal Stephen Beck, Jr. Achieving a Better Life Experience (ABLE) Act enacted on December 19, 2014, as Section 529A of the Internal Revenue Code. The NY ABLE program is administered by Office of the State Comptroller in consultation with specific State agencies and individuals appointed by legislative leaders, as specified in the NY ABLE statute.

In New York, patients have the right to make many decisions about their end of life care and even appoint a representative to do so in their interests if circumstances leave them unable to make such decisions for themselves. Using what is known as a Medical Orders for Life-Sustaining Treatment (MOLST) form, patients can create a doctor’s order that informs physicians and emergency care givers whether to administer treatment like CPR or place the individual on ventilator or other life-saving equipments.

MOLST forms can be used in combination with a do not resuscitate (DNR) order to help give patients the most control over how their health care is delivered in an emergency situation or at the end of life where tough decisions must be made. In order for the MOLST form to be valid, the document must be signed by your physician and yourself, otherwise doctors may continue to deliver treatment during and emergency. The form will become a part of your medical file and will transfer over to whatever facility you may be treated at.

The main difference between a MOLST and DNR order is the former covers a broader range of care doctors may deliver, including intubation, administering antibiotics, and interesting feeding tubes, with DNR orders only cover administering CPR. Often times, patients using a MOLST face a life-threatening medical condition or lives in a long term care facility like a nursing home or hospice.

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