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A recent report by CNN revealed the lengths to which one California drug maker may be going to push sales of Nuedexta, a little red pill developed to treat certain behavioral problems but has been increasingly used in nursing homes to control residents. The story by CNN was so compelling that the City Attorney for Los Angeles even opened an investigation into the drug maker’s targeting of nursing home residents.

The Food and Drug Administration (FDA) approved Nuedexta to treat a disorder marked by sudden and uncontrollable laughing or crying, known as pseudobulbar affect (PBA). According to maker Avanir Pharmaceuticals’ own data, less than 1 percent of American’s suffer from the condition and is most commonly associated with patients suffering from multiple sclerosis (MS) or ALS (Lou Gehrig’s disease).

Unfortunately, Avanir appears to paying doctors to push the medication onto nursing home workers as a way to control the behavior of unruly residents, something the drug is not approved for nor studied enough to warrant such applications. CNN reports suggest some doctors even took in tens of thousands of dollars in exchange for speaking engagements and other talks on the benefits of using the drug for “off label” applications.

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.

Your last will and testament is an incredibly important legal document needed to ensure New York probate courts carry out your final wishes and ensure your heirs receive the portion of your estate so delegated. After going through all of the careful considerations of consulting with family, speaking to an estate attorney, and drafting a will, testators need to take care in storing the original copy of the document to ensure the estate passes as swiftly as possible through probate courts and make the process easy on the executor.

Testators have numerous options to keep the original executed copy of their will safe. Often times, the last will and testament remains in the office of the probate attorney who helped craft the document. Other times, testators may choose to keep the document in a safety deposit box at a bank or another custodian of records. In any case, the executor of the estate needs to know the will’s location to pass the estate through probate.

Under New York probate laws, if the original copy of the last will and testament cannot be found, the court presumes the testator intended to destroy and revoke the document. Proving anything to the contrary can be extremely difficult and time consuming and the court may order an executor take custody of the will in keeping the chain of succession in New York state law. Furthermore, the Surrogate Court hearing the case will most likely not enter a copy of the will.

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.

Advance directives for health care are legal documents that ensure an individual’s wishes are carried out if he or she cannot make decision. New York State recognizes three types of advance directives including a health care proxy, living wills, and do not resuscitate orders (DNR). Even younger and more healthy individuals should consider putting these types of directives into place in case of a serious accident or medical event.

Health Care Proxy in New York

A health care proxy allows individuals to name a health care agent who will make decisions if that person cannot make those decisions for himself or herself. Under state law, these types of decisions can take effect after two doctors examine the individual and determine that person cannot make decisions for his or her health. New York state offers standard forms for a health care proxy.

Planning your estate and having a last will and testament is important to ensuring your final wishes are carried out and your heirs receive everything you intend to pass on to them. Whether you are the testator or executor, there are many duties you will need to perform to make sure an estate passes as quickly as possible through probate court, including calculating the costs associated.

 

First and foremost, New York probate courts handling estates have a variable schedule of filing fees which depend on the size of the estate. Section 2402(7) of New York’s Surrogate’s Courts Procedure Act (SCPA) are as follows:

 

Value of Estate or Subject Matter Fee Fee Rate
Less than $ 10,000 $45.00
$10,000 but under $20,000 $75.00
$20,000 but under $50,000 $215.00
$50,000 but under $100,000 $280.00
$100,000 but under $250,000 $420.00
$250,000 but under $500,000 $625.00
$500,000 and over $1,250.00

 

Section 2402(8)(a) of the SCPA also proscribes a fixed fee for filing a petition to commence certain proceedings. These types of fees can range anywhere from $10 to $75, depending on the type of motion filed. Such petitions can include common probate proceedings such as filing wills and suspending a fiduciary.

 

What are the fees for executors in New York?

 

Under section 2307 of the SCPA, executor fees are based on the value of the estate. These fees can be between 2 and 5% of the total amount of estate money the executor receives and pays out. Executor’s fees in New York are as follows:

 

  • All sums of money not exceeding $100,000 at the rate of 5 percent
  • Any additional sums not exceeding $200,000 at the rate of 4 percent
  • Any additional sums not exceeding $700,000 at the rate of 3 percent
  • Any additional sums not exceeding $4,000,000 at the rate of 2.5 percent
  • All sums above $5,000,000 at the rate of 2 percent

 

These amounts come out of the value of the estate and in cases where multiple executors handle an estate, the split is commiserate on the amount of work performed by each individual.

 

Attorney costs for probate of a will

 

When going through probate, it is strongly suggested the executor seek help from an experienced and dedicated New York probate and estate lawyer. The fees associated with a probate attorney depend on size of the estate, work put in by the executor, and the complexity of the case.

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