Articles Posted in Elder law estate planning

For over 80 years, Social Security has made guaranteed monthly payouts to eligible retired workers. Today, over 64 million people receive a monthly benefit from the Social Security program. The average retired worker benefit is $1,505.50 a month, as of January 2020. Generally Social Security income for the ordinary retiree is not taxed. There are states however, that do tax Social Security income.

 
The federal government can tax your Social Security benefits

The taxation of Social Security benefits began in earnest as part of the Social Security Amendments of 1983. Beginning in 1984, the Internal Revenue Service (IRS) is allowed to apply federal ordinary income tax rates on up to one-half of an individual’s or couple’s Social Security benefit, depending on their income. If an individual’s or couple’s modified adjusted gross income (MAGI) plus one-half of benefits exceeds $25,000 or $32,000, respectively, they would be subject to this tax.

A power of attorney, including a heath care power of attorney, are crucial estate planning documents. This is especially important if you have Alzheimer’s disease, dementia, or are suffering from another chronic and debilitating illness. Individuals who are widowed or alone should carefully consider who they can trust to manage their financial and medical affairs when they lose the ability to make such decisions themselves.

•     Power of Attorney: A power of attorney is a legal document you can use to appoint someone to make decisions on your behalf. The person you designate is called an “attorney-in-fact.” The appointment can be effective immediately or can become effective only if you are unable to make decisions on your own.

o   New York State has a short-form and a long-form Power of Attorney form.

Adding trust instruments to your estate plan can help a surviving spouse and other beneficiaries have access to assets while the rest of the estate is wound up. Especially if there are young children or children with special needs ensuring continuity of financial security to survivors is at the forefront of individuals making end of life decisions. There are many types of trust instruments, such as a marital “A” trust or a bypass “B” trust. These trusts can also be revocable and irrevocable.

 
Revocable or living trusts

A revocable trust permits the passing of assets outside of probate, the legal proceeding that winds up and settles the estate of the deceased person. Also known as a living trust, you (the grantor) are able to retain control of the assets during your (the grantor’s) lifetime. A living trust is flexible. They can be dissolved at any time should you wish to change the beneficiary or you yourself need access to the trust assets for any reason. Once you (the grantor) dies, the living trust becomes irrevocable. A living or revocable trust is subject to estate taxes, unlike an irrevocable trust. Lastly, you are able to name yourself the trustee or co-trustee and retain complete ownership and control over all of the trust assets during your lifetime.

Some couples approach their estate planning lawyer seeking advice on creating a joint will. Generally, the estates lawyer will frown upon such a suggestion because in practice, joint wills are fraught with problems. A joint will can be created by a married couple and is a single will. A joint will is signed by the couple and in it contain provisions leaving all of their assets to each other. The reason why joint wills are not more commonly used as an instrument to bequeath gifts upon death is that usually, even in longtime marriages, most married couples do not have identical wishes regarding their assets.

 
Joint tenancy vs. tenancy in common

Married couples generally own real estate assets as joint tenants. A lesser form of home ownership is a tenancy in common. The key difference between the two is their effect on the distribution of assets at the death of one of the partners. Joint tenancies contain a right to survivorship. This means that at a partner’s death, their share of any joint assets become the sole property of the surviving partner by operation of law and outside any asset distribution of a will for example. In a will, assets held as a tenancy in common are distributed according to the terms of each person’s will. Tenancy in common may be a better ownership form where couples wish to gift or bequeath their assets or shares in an asset in different ways. This may be an attractive form of ownership for couples with children from a prior marriage particularly if the new spouse has no children of his or her own.

Despite the prevalence of aggressive, life-prolonging medical procedures, such as feeding tubes, ventilators, and dialysis, once a patient enters a long-term care hospital, L.T.C.H. for short, more than one-third of them will never return home. According to the New York Times, the median survival for such patients is 8.3 months. Much of the time will be spent in a combination of hospitals, skilled nursing home, and specialized rehab facilities.

 
The high and low spots

Patients in their 60s with musculoskeletal diagnoses, like complications from a hip fracture or joint replacement, do better in L.T.C.H. institutions then people over 80. A high number of patients that are transferred to L.T.C.H facilities from hospitals have undergone a medical procedure called a tracheostomy. Also called a stoma, a tracheostomy is a surgical opening in the windpipe to accommodate a breathing tube that is attached to a ventilator. This procedure is commonly performed on patients who suffer from chronic and severe lung disease and neck cancers among other neck and voice box disorders.

Parents with dementia and other memory loss disorders, such as Alzheimer’s and Parkinson’s disease, present extraordinary challenges for the parent and adult children tasked with assisting them. Drafting a will, making health care decisions, and taking care of legal and financial matters are just some of the items that must be sorted out, hopefully before the onset of the worst conditions.

 
The first step when caring for a parent is to assess their mental capacity. It is important that you seek medical guidance, including a diagnosis, when you observe signs of dementia. If your parent has been diagnosed with dementia-causing illnesses, like Alzheimer’s or Parkinson’s disease, adjustments should be made to all legal and financial matters.

 
Durable power of attorney