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Suffolk County, NY Estate Planning and Elder Law Blog

Friday, May 27, 2016

Powerless Power of Attorney

Question: My father executed a Power of Attorney and named me as the Agent.  I was recently told by his bank that they would not accept my Power of Attorney, what are my options?

Attorney:  A Durable Power of Attorney is an integral part of any estate plan.  A validly executed Power of Attorney will allow you, the Principal, to designate an Agent to act on your behalf and virtually step into your shoes with respect to all of your business and financial matters.  The purpose of a Durable Power of Attorney is to have one comprehensive document that will allow an agent to transact business on all accounts regardless of the financial institution. Where an individual becomes incapacitated without having these documents in place, the family may find themselves petitioning the Guardianship Court in order to have the authority to do the very same thing that a valid and comprehensive Power of Attorney can provide.


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Friday, May 20, 2016

Revocable Trusts v. Irrevocable Trusts

Question: My wife and I recently executed a Revocable Trust and re-titled our home and some bank accounts into the name of the trust, thinking that we had taken the first steps toward protecting our assets should one or both of us need Nursing Home care in the future.  I just heard from a friend of mine that a Revocable Trust does not protect my assets and that what I should have considered was an Irrevocable Medicaid Trust, could you explain the difference?

Answer: Although a Revocable Trust can be extremely beneficial for the creator of the trust, unfortunately, one benefit which can not be realized from a properly created and funded Revocable Trust is asset protection.  Revocable Trusts have become increasingly popular planning tools for individuals who are interested in avoiding probate, and who are concerned with the orderly and private administration of their assets at the time of their death.  Because the grantor (creator) of a Revocable Trust maintains complete control over the assets in the trust during their lifetime, and in most cases, acts as trustee of their own trust, assets held in the trust are considered completely available to the creator, sometimes referred to the grantor or settlor. Accordingly, these assets will also be considered completely available should the creator need long term Nursing Home care. 


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Wednesday, May 18, 2016

Nancy Burner, Esq., 2016 Big Apple Entrepreneur Award Winner

The Big Apple Entrepreneur Network & Manhattan magazine announce Nancy Burner, Esq. as one of the inaugural winners of the 2016 BIG APPLE ENTREPRENEUR AWARDS.

Starting in 2015, Manhattan magazine and the Big Apple Entrepreneur Network collaborated to research and develop a list of the most innovative and noteworthy companies. 

Nancy Burner, Esq. along with the official list of the 2016 Big Apple Entrepreneur Award winners and their respective nomination categories are highlighted in a Special Section of the May/June issue of Manhattan magazine which can be viewed Read more . . .


Monday, May 16, 2016

Who Inherits My Estate If I Die Without a Will

Q: I am unmarried and have no children. My parents are deceased and I have one sibling, a sister.  I currently have no will.  Who would inherit from my estate if I died without a will?

A: Passing away without a will is known as dying “intestate.”  Administration is the process in which a person receives authorization from the Court to collect the deceased person’s assets, pays the debts, and then distributes the remaining assets to the entitled family members.

                In an administration proceeding, it must be determined who are the next of kin of the deceased person, these are known as the “distributees.” New York State law defines a distributee as a "person entitled to take or share in the property of a decedent under the statutes governing descent and distribution."  The law determines who falls into this category based upon which members of your family are living at the time of your death.  Priority is given to spouses and children, then to grandchildren.  If you do not have any of these relations, then priority shifts to your parents, then to your siblings.  The law follows your family tree until a living person is found in a certain category. 

                The spouse has priority to serve as administrator over the children. If there is no spouse, the children have equal rights to serve. Similarly, if you do not have children, all of your siblings have equal rights to act as administrator.  Any person that is not acting will sign a document waiving their right to serve.


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Monday, May 09, 2016

Should I Be Putting Property in My Children’s Names?

Question: Should I Be Putting Property in My Children’s Names?

Answer: Elder Law attorneys hear this question constantly. Typically, once people reach a certain age there is an invisible pressure to transfer assets out of one’s name and into that of their children. Some people feel that if they do not do this, the “State” will take their money either in taxes or for the costs of long term care. Along with the real issues that seniors should be considering regarding transferring their property, there are also many myths.

The first issue that seniors worry about is that they should give away assets before they pass away to avoid taxes. Currently, the Federal Estate Tax exemption is $5,450,000.00 per person, indexed for inflation. That means that each person can leave $5,450,000.00 to anyone without a tax consequence. Married couples can leave $10,900,000.00 together, and the surviving spouse can use any unused portion of the first spouse’s federal exemption. The New York State Estate Tax exemption is currently $4,187,500.00 per person, and is set to increase by about $1,000,000.00 each year until it matches the Federal Estate Tax exemption amount in 2019. For the average person, taxes are not an issue.

With the Federal and State exemptions being so high, the primary concern for the average person is asset protection for the cost of long term care. The Medicaid program in New York will pay for the cost of long term care in a nursing home facility or for care in the home. For nursing home care, Medicaid requires the applicant to have no more than $14,850.00 in assets and there is a five year lookback. This means that a penalty period will be assessed for any assets transferred for less than fair market value within five years of the submission of an application for Medicaid. While it is true that the five year lookback applies whether or not you transfer assets directly to your children or to a trust, the negatives of an outright transfer far outweigh the convenience and low cost.


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Monday, May 02, 2016

Agent Responsibilities under a Durable Power of Attorney

Question: I was recently named as an agent on my mother’s Durable Power of Attorney which included a “statutory gift rider.” What is this document and what responsibilities will I have?

Answer:  A Durable Power of Attorney is a document by which a principal, in this case your mother, can designate an agent to act on her behalf with respect to financial, business or legal matters.  In New York State, the agent is limited to the powers enumerated in the document and can only act pursuant to that authority. A Durable Power of Attorney is effective when signed and, contrary to popular belief, there is no requirement that your mother be incapacitated or unable to handle her own finances in order for the agent to have the power to act. In fact, the Durable Power of Attorney survives an individual’s incapacity, meaning that you will still be able to act for your mother even if she became incapacitated.

New York State amended its power of attorney statue in 2009 and 2010 and now includes a “statutory gift rider.” The “statutory gift rider” expands the traditional power of attorney by allowing you to make gifts on your mother’s behalf. A gift is defined as any transfer for less than fair consideration.  This is a vital tool should an emergent situation arise which requires Medicaid planning for your mother because it allows you as the agent to strategically move money out of your mother’s name in order to qualify for Medicaid. A well drafted Durable Power of Attorney will avoid the necessity of a guardianship proceeding in court later, should the principal become incapacitated.


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Friday, April 29, 2016

Community Medicaid v. Chronic Medicaid 2016

Question: My mom has been a recipient of Community Medicaid.  As her condition is deteriorating it is apparent that she will require long term care in a nursing facility.  I have heard that her Community Medicaid will pay for the nursing facility. Is that correct?

Answer: No, Community Medicaid will not pay for long term care in a nursing home.  Community Medicaid is the program that covers care at home; such has a personal care aide.  Chronic Medicaid is the program that covers nursing home care.  The requirements and application process for Community Medicaid and Chronic Medicaid are very different.  An individual is unable to receive both Community and Chronic Medicaid simultaneously so it is important to know the differences and make sure you have the correct Medicaid in effect.    

For 2016, an individual applying for Community Medicaid can have no more than $14,850.00, not including their home, in resources and no more than $845.00 per month in income.  Qualified funds such as IRAs or 401(K)s are exempt, but the applicant is required to take periodic distributions which are counted as income each month.  While these limitations may seem daunting, the good news about Community Medicaid is that there is no look-back period and the individual can opt to use a pooled trust to preserve any excess income above the $845.00.  That means someone looking to get care at home can transfer assets and set up a pooled trust in one month and be eligible for Community Medicaid in the following month.


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Friday, April 22, 2016

Power of Attorney on a Bank Account

Q:  I am listed as power of attorney on my mom’s bank account.  Will I be able to access this money after she dies to pay for the funeral?

A: No.  By law, a power of attorney document expires at the death of your mom, the “principal.”  You are the “agent” under the document and you only have the power to act on your mom’s behalf while she is still living.  Whether you have been named as an agent under a power of attorney from the bank or whether you have a general power of attorney executed with a lawyer, the power under  both documents terminates at your mother’s death.

If your mother wants you to have access to the account immediately after her death, you should discuss her intent.  Does she want you own the account at her death, then you should be named as joint owner on the account.  Upon mom’s death, the joint owner becomes the sole owner of the account with full rights to the assets.  Of course your mom must realize that any money in the account will go directly to the joint owner and will not pass on to any other beneficiaries that she may have named in her Last Will and Testament.   If she wants you to share the assets with other beneficiaries, then she may memorialize the fact that it is a convenience account.


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Thursday, April 21, 2016

Nancy Burner, Esq. and Robin Burner Daleo, Esq. are named as Hofstra's Outstanding Women in Law for 2016

Nancy Burner, Esq. and Robin Burner Daleo, Esq. have been selected by Hofstra University School of Law and the Center for Children, Families and the Law in partnership with Long Island Business News as Outstanding Women in Law for 2016. 

 

The Outstanding Women in Law distinction honors those who serve as role models for the next generation of women lawyers and judges. Today, women attorneys are represented in the highest echelons of the legal profession and the judiciary.


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Thursday, April 21, 2016

Nancy Burner, Esq. Honored by Ride for Life

Nancy Burner, Esq., founder and managing partner of Nancy Burner & Associates, P.C., was selected by the Event Committee of Ride for Life to be recognized in the Business Category at the 19th Annual Honoree Recognition Benefit on March 15, 2016 held at Villa Lombardi’s in Holbrook.

 

Each year, Ride for Life selects a handful of supporters as exemplary representatives who have made significant impacts to be honored at the benefit for their contributions to the fight against ALS.
Read more . . .


Monday, April 18, 2016

Community Medicaid Home Health Aide v. Medical Model Daycare

Question:  “I am considering applying for Community Medicaid for my father, but I am not sure if my mother will accept a home health aide into her home.  What, if anything, could Community Medicaid offer other than a home health aide?”

Answer:  The Community Based (Homecare) Medicaid program can offer alternatives to home health aides; however, you must know the requirements in order to enroll in the program.  Once approved for Community Medicaid, the individual may be enrolled in a Managed Long Term Care Company (MLTC).  The MLTC will be in charge of coordinating the recipient’s healthcare needs including, but not limited to, a home health care aide.

In order to enroll in a MLTC the recipient must either have a home health care aide or be enrolled in a Medical Model Daycare program.  If the family wants a home health care aide, the MLTC will determine the amount of hours per day and days per week that the individual is entitled to have the aide depending on the individual’s need.  The home health care aide can assist with all activities of daily living, including, but not limited to, bathing, grooming, toileting, ambulating, meal preparation, laundry and light housekeeping.  Medical Model Daycare programs offer a place for seniors to go during the day and then return home at night and will provide meals, rehabilitation, monitoring of health conditions and assist with personal hygiene.  Unlike Social Model Daycare, the individual must require assistance with activities of daily living to qualify for Medical Model Daycare.  Once the individual is approved for either a home health aide or Medical Model Daycare, the individual may be enrolled in a MLTC.


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Nancy Burner & Associates, P.C. has offices in Setauket, Westhampton Beach, and Manhattan New York.
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| Phone: 631-941-3434
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1115 Broadway , Suite 1100, New York, NY 10010
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© 2014 Nancy Burner & Associates, P.C.
12 Research Way, East Setauket, NY 11733 | Phone:631-941-3434
82 Main St., Westhampton Beach, NY 11978 | Phone: 631-288-5612
1115 Broadway , Suite 1100, New York, NY 10010 | Phone: 212-867-3520

Attorney Website Design by
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