Suffolk County, NY Estate Planning and Elder Law Blog

Friday, November 17, 2017

Power of Attorney and Digital Assets

Question: Should I update my power of attorney every few years even if my agents have not changed?

Answer: Yes; powers of attorney, indeed all estate planning documents, should be reviewed periodically. This is because even though your wishes may not have changed, the law may have changed.

Powers of Attorney are particularly important to keep current because, unlike the Health Care Proxy which confers broad authority to make decisions, the Power of Attorney must be on a specific form and enumerate, with specificity, what powers you grant to your agent. Because of the nature of having to “list” what your agent can do, this form keeps estate planning attorneys on their toes by requiring us to continually add powers to the document as new caselaw or circumstances develop.

The most recent example of this came last year when Governor Cuomo signed the Fiduciary Access to Digital Assets Act into law. The new law provides fiduciaries with the right to access digital assets. However, in order to give this power under a power of attorney, the power referencing digital assets must be specifically referenced in the modifications section. Without such a reference, the institution holding the digital asset could refuse to accept the power of attorney. Absent another designation of authority to access your digital assets, most loved ones are bound by a Terms of Service Agreement, typically consented to in haste when creating an email or social media account. The law permits the owner of digital asset to direct who can access the account and to what extent.


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Monday, November 13, 2017

Contesting a Will

Q:   If I specifically disinherit my child in my Will, does he or she still have the right to contest my Will?

A:  There are certain individuals who have the right to contest your Will even if they are specifically disinherited, whether or not they are named as a beneficiary under your Will or if they were left with a disproportionate share of your estate.  A disinherited child has the right to challenge or contest your Will because, if you died without a Will, your child would receive a share of your estate through the laws of intestacy. 

A disinherited child is required to receive notice that your Will is being offered for probate in the Surrogate’s Court by the Executor named in your Will.  One form of such notice is called a “Waiver of Process; Consent to Probate”.  The Executor is required to obtain a signed Waiver from your disinherited child.  If your child signs the Waiver, he or she is stating that the Will is valid and that the person named in the Will as Executor should be appointed as such. 

Alternatively, if your child does not sign the Waiver discussed above, there is the more time consuming and expensive process of obtaining a probate citation and a court date to appear in Surrogate’s Court to formally object to the Will.  Once the Court issues the citation, it will be served on your child.  On the citation return date, your child and/or his or her counsel will be required to appear in Court to formally contest your Will.  If no one appears on the citation return date, your child effectively waives his or her right to contest your Will. 


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Monday, November 13, 2017

Pre-need & Chronic Medicaid

When someone enters a nursing facility, an application for Chronic Medicaid may be appropriate.  The average cost of a nursing facility on Long Island is $15,000.00 per month.  This type of cost would exhaust assets very quickly in most cases.  Chronic Medicaid is the program that covers nursing home care.  Medicaid is a needs based program which means there are resource and income requirements that must be met.  For 2017, an individual applying for Chronic Medicaid can have no more than $14,850.00 in liquid non-qualified assets, an unlimited amount of retirement assets so long as the applicant is taking a monthly required distribution and an irrevocable pre-paid funeral trust.  The applicant may keep no more than $50.00 per month in income.   

Chronic Medicaid has a five-year look-back.  The look-back refers to the period of time that the Department of Social Services will review your assets and any transfers that you have made.  To the extent that the applicant has made transfers or has too many assets in their name to qualify, they will be ineligible for Medicaid.  If the applicant gifted or transferred money out of his or her name in order to qualify for Medicaid, the Department of Social Services will total the dollar amount of gifts and for each approximately $12,811.00 that was gifted, one month of Medicaid ineligibility is imposed.  For example, if an individual gifted away approximately $50,000.00 within the five-year time period, the Department of Social Services will impose a four-month penalty.   It is also important to note that the ineligibility begins to run on the day that the applicant enters the nursing home rather than on the day that the gift was made.  


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Friday, November 10, 2017

Health Care Proxy

In our Elder Law practice, we often times see our clients experiencing difficulty in getting health care information regarding a love one.  While privacy and HIPAA are important, you want to ensure that you are able to get important information regarding your love one’s medical condition.  A Health Care Proxy is a document in which you designate an agent to make health care decisions for you in the event you are unable to make these decisions for yourself.  The Health Care Proxy often contains language allowing your healthcare agent to hire and fire physicians and health care professionals.  Federal regulations specifically “HIPAA,” or the Health Insurance Portability and Accountability Act, make it difficult for anyone, even a spouse, to obtain any medical information on your behalf absent a properly executed Health Care Proxy.  You must read the Health Care Proxy carefully and make sure the document gives your agent the ability to do exactly what you would like them to do, for example, have access to your medical records.  It is also important to note that signing a new Health Care Proxy will revoke the previous Health Care Proxy you may have signed in the past.  This is important when you take the time to establish a comprehensive Health Care Proxy and then go to the hospital and sign a very basic Health Care Proxy with the staff at the hospital which will revoke the comprehensive one you signed previously.

In addition to the Health Care Proxy, you can sign a HIPAA release form which would allow the individuals listed in your Health Care Proxy access to your medical records.  The Healthcare Proxy itself may give the same authority; however, the HIPAA release form is a very simple form which is easily recognizable by most hospitals and doctor offices.  This can simplify the process to get medical records instead of using the Healthcare Proxy. 


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Wednesday, November 8, 2017

Spousal Medicaid

Question: My husband suffers from Alzheimer’s disease and may soon need a nursing home.  I have been told that if he needs to go to a Nursing Home, they will take our house and I will have to give them all of his income, is this true?

Answer: No, it does not have to be.  Because Medicaid is needs based program, certain income and asset requirements must be met in order to be eligible.  The good news is that those requirements take into account that where there is a situation where one spouse requires nursing home care, there is often a spouse still residing in the community who depends on the joint income and assets to pay their expenses.  For that reason, the Medicaid program allows certain spousal allowances.  Specifically, where there is a spouse living in the community, that spouse is entitled to keep up to $3,022.50 in combined income after payments of medical premiums.  What this means is that where you have a husband and wife, and one spouse requires Nursing Home care, the community spouse can keep his or her income and as much as the institutionalized spouses’ income to bring them up to $3,022.50.

In addition, although the applicant is permitted to have no more than $14,850.00 in his name at the time of application (not including retirement accounts and an irrevocable pre-paid burial which are exempt and not counted towards the $14,850.00 asset limit) the community spouse is permitted to keep $120,900.00 in liquid assets plus a home.


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Monday, October 30, 2017

Revocable and Irrevocable Trusts for Assisted Living

Question: About six years ago my parents signed two trusts: a revocable trust and an irrevocable trust.  They transferred about $150,000.00 into the revocable trust and their house into the irrevocable trust.   They sold their home about three years and deposited $400,000.00 into the irrevocable trust.  My dad passed away and my mom is at an assisted living.  I went to the bank and I was told that I do not have access to the revocable trust because I am not the Trustee but I am the Trustee of the irrevocable trust.  Can I use the money in the irrevocable trust to pay for the assisted living?

Answer: No, you cannot use the money in the irrevocable trust to pay for your mother’s assisted living.  In order for the irrevocable trust to be considered exempt for Medicaid purposes, it must provide that no principal distributions can be made to the grantor (your mother) or on the grantor’s behalf.  In other words, any distribution made from the irrevocable trust to your mother or directly to the assisted living would violate the terms of the trust.  Since the house was transferred to the irrevocable trust over five years ago, the money in the trust is protected in the event your mother requires care in a nursing facility.

Even though your mother is currently in assisted living, it is still important to keep the irrevocable trust in tack because she may need to be transferred to a nursing facility which would result at the rapid depletion of her assets.  The average nursing home stay is $15,000.00 per month.  The money in the irrevocable would be considered exempt if your mother needed to rely on Medicaid to pay for the nursing facility.


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Monday, October 23, 2017

Durable Power of Attorney

Q: Why do I need a Power of Attorney? Can I just use the Power of Attorney form provided by my bank?

A:  A Durable Power of Attorney is a document that allows your named agents to make financial decisions on your behalf and assist in taking care of your daily financial obligations. This document will be practical should you become incapacitated or if you are not able to handle your accounts or assets at any time. New York has adopted a statutory Power of Attorney form with detailed requirements for it to be considered valid in the state. While the statutory form or the form provided by the bank may be accepted by certain institutions, it is typically not sufficient to convey all the powers needed to a client.  Not all power of attorneys are the same.  A good Elder Law attorney will make numerous modifications to the statutory form.

The form provided by your bank is likely valid, however it will only authorize the named agents to act with regard to that specific bank and possibly only on a specifically designated account at that bank. Additionally, the law regulating Powers of Attorney states that if a power is not specifically listed in the document itself that the agent does not have that power.  As Elder Law attorneys we have added a list of powers that may be necessary to assist with long term care planning and the Medicaid application process. This could include the creation, funding, amending or termination of trusts, or gifts to the principal’s loved ones. The agent named in your Power of Attorney can also play an important role in the Medicaid application process since your agents will be able to assist in obtaining the documentation needed.


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Friday, October 20, 2017

Nancy Burner, Esq. Honored at LIBN Top 50 Most Influential Women in Business Awards

Long Island Business News announced Nancy Burner, Esq. as one of its honorees for the Top 50 Most Influential Women in Business awards.

The Top 50 Most Influential Women in Business honors Long Island's top women in the areas of business, education, government, and nonprofit for their business savvy, influential work, mentoring, and community involvement.

The honorees celebrated this achievement at a formal awards gala on Thursday, October 19, 2017 at the Crest Hollow Country Club in Woodbury, New York. 


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Monday, October 16, 2017

NY ABLE Program Helps New Yorkers

Q:        I am a disabled person that receives Social Security Disability Insurance as a disabled adult child and Medicaid and will be inheriting $20,000.00 from my aunt. I am able to manage my own finances. Are there any options that would allow me to manage my inheritance while maintaining my eligibility for Medicaid?

A:        You are in luck, New York state has a new savings plan, called the New York Achieving a Better Life Experience (NY ABLE) program, designed to help individuals with disabilities maintain their health, independence and quality of life. The program was modeled after the 529 College Savings Program. NY ABLE accounts are also known as 529A accounts. New York is one of 28 states in the country that offer this type of program.

The NY ABLE program allows New Yorkers with disabilities to save money in their own names without risking their means-based benefits. NY ABLE accounts can be opened with a minimum contribution of $25.00. Contributions can be made by eligible individuals, family members or friends, but are not tax-deductible. The annual contribution is capped at $14,000.00 and the maximum account balance is $100,000.00. New York residency is required and only one account per eligible individual is permitted.

A NY ABLE Account can be opened by: The eligible individual; a parent or legal guardian of the eligible individual or a person granted power of attorney on behalf of the eligible individual.


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Friday, October 13, 2017

Trustee Responsibilities

If you have been named as a trustee of someone’s trust, you may be wondering what you are supposed to do. It is important that the trustee understand their duties and responsibilities.  The most important thing to remember as trustee is that the trust assets are not your assets. You are safeguarding them for the settlor and/or beneficiaries, who will receive them after the settlor dies.

 As a trustee, you stand in a "fiduciary" role with respect to the beneficiaries of the trust.  As a fiduciary, you will be held to a very high standard.  The trustee must read the trust document carefully, upon acting initially and when any questions arise. The trust is the road map the and trustee must follow its directions in administering the trust.  A trustee should be aware that failing to abide by the terms of the trust document and mismanaging the assets can have serious financial repercussions for the trustee personally such as forfeiture of commissions and surcharge.

 This very issue came up in the recent Suffolk County Surrogate’s Court case of Accounting Proceeding the Schweiger Family 2013 Irrevocable Trust decided on September 7, 2017. 

The subject trust stated that during the lifetime of the settlor, the trustees in their sole discretion may pay the net income to or for the benefit of the settlor's beneficiaries or accumulate such income. With respect to principal, the trustees were given the discretion to pay so much of the principal to or for the benefit of the settlor's beneficiaries. 



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Wednesday, October 4, 2017

Estate Planning for Young Couples

Question: I recently completed my estate planning which included doing an irrevocable trust to protect my assets in case I need Medicaid in the future. I have nominated my 35 year old daughter to be my Trustee. What kind of estate planning should my daughter be doing? She is married and has two small children.

Answer: People often put off estate planning far too long. But it is just as important for young families to do their planning as it is for older family members to do asset protection. I always recommend the following basic documents to my young clients.

Any one over the age of 18 should have advance directives. These are documents that you execute in advance of needing them which designate someone to make medical and financial decisions on your behalf if you were disabled. These documents include a healthcare proxy, living will, HIPAA release form and durable power of attorney.

The healthcare proxy designates a person to make medical decisions if you were unable. The living will is a statement of your wishes with regard to ending life-sustaining treatment if you were in a vegetative state. Finally, the HIPAA release permits your healthcare agents to obtain protected medical information from your medical practitioners.


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12 Research Way, East Setauket, NY 11733 | Phone:631-941-3434
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45 W 34th St Suite #1203, New York, NY 10010 | Phone: 212-867-3520

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