Suffolk County, NY Estate Planning and Elder Law Blog

Friday, June 23, 2017

Managed Long Term Care Evaluation

Question:        My mom has been approved for Community Medicaid and is eligible to receive a personal care aide in her home.  I have been trying to schedule an evaluation with a Managed Long Term Care Company but I have been having some difficultly.  So far she had one evaluation and she was not awarded sufficient hours.  Should I be hiring an attorney to assist with the home evaluation component of Medicaid?

Answer:          The home evaluation done by the Managed Long Term Care Company (or “MLTC”) can be a complicated process. It is also the most important as the MLTC will determine the benefits your mother is entitled to through the Medicaid program.  Once an individual is financially approved by the local Department of Social Services for Community Medicaid, he or she must enroll with a MLTC.  The MLTC will send a nurse to the Medicaid recipient in order to evaluate and create a care plan.  The evaluation typically will result in an award of hours to the Medicaid recipient for a home health aide to come to the home and assist the recipient with activities of daily of living.  The amount of hours can consist of a few hours per day or live-in care depending on the needs of the Medicaid recipient.  If the Medicaid recipient is satisfied with the care plan, he or she may choose to enroll with the MLTC.  Otherwise, he or she can request another evaluation with a different MLTC.

Our office determined that our clients were struggling with maximizing the care component at the MLTC evaluations.  Community Medicaid is a great benefit, but the client needs to have an appropriate care plan along with sufficient home health care hours in order to ensure their safety and ability to remain at home.  


Read more . . .


Monday, June 19, 2017

Funding Your Irrevocable Trust

Question:  My mother has a trust that is supposed to protect her assets in case she needs Medicaid in the future.  How do assets get into a trust, I am confused.

Answer:  In order for an asset to be owned by a trust, there must be a transfer. The five year look back for Medicaid does not even begin to run until the month after the asset is put in the trust.  That is true for each and every asset transferred.  So, if you transfer a deed in January 20017, the five year period begins to run on February 1 and ends on January 31, 2022.  If you put another asset in the trust in March 2017, the look back period begins April 1, 2017 and ends on March 31, 2022.   That penalty period is just for the new assets transferred in March, not for all the assets in the trust. 

The method of placing assets in the trust depends upon the type of asset.  If you are putting monies from a savings account into the trust then the Trustee must open the trust account.  Once the account is open you can remove the savings from your account and deposit in the Trust account.  This will probably require the Trustee to go to the bank to create a trust account.  If the asset is a life insurance policy, then you will be requesting change of ownership and change of benenficiary forms from the insurance company and name the trust as the new owner. 


Read more . . .


Monday, June 12, 2017

Will Disinheritance

Question:  My spouse recently passed away and I just learned that he disinherited me in his Will.  What rights do I have?

Answer:  In New York, a decedent generally cannot disinherit his spouse.  This principle is governed by Estates, Powers and Trusts Law Section 5-1.1-A (Right of Election by Surviving Spouse) and requires that the surviving spouse receive a portion, or share, of the decedent’s estate.  The surviving spouse’s share will be equal to the greater of $50,000 or one-third of the decedent’s estate.

The right to elect to take your spousal right of election is governed by time frames.  An election under this section must be made within six months from the date letters testamentary are issued but no later than two years after the date of the decedent`s death.  A written notice of the election is required to be served upon the executor, or upon the person named as executor in the Will if the Will has not yet been admitted to probate.  The written notice must then be filed and recorded with the Surrogate`s Court. 

Of course, there are limitations to the spousal right of election.  For instance, the right will generally be severed if a final decree of divorce or separation has been entered.  Further, the right of election can be waived in a pre-nuptial or post-nuptial agreement.  It is important to note that, for these agreements to be upheld and enforced, both parties to the respective agreement should be represented by counsel of their own choosing who can properly advise them of their rights. 


Read more . . .


Wednesday, June 7, 2017

Trust vs. Life Estate

Question:  My parents are concerned about protecting their home.  Some people have recommended that we consider creating a trust while others have suggested that they transfer to house to me and my siblings and retain a life estate, which is a better idea?

Answer:  This issue comes up often in our practice.  For starters, an explanation of the two planning tools is probably necessary so that you can make the choice that is best for you.  A deed with a life estate legally transfers the title of property to a designated party after the death of the original party.  The original party retains the right to live in the house and is responsible for all household expenses.  A transfer of a deed into an irrevocable trust transfers the title of property to the beneficiaries of the trust after the death of the trust creator.  Like a deed with a life estate, the creator of the trust retains the right to live in the house and is responsible for all household expenses.  The trust is considered a Grantor Trust for tax purposes, meaning that the Grantor is still considered the owner for tax purposes.

A deed with a life estate and a deed to an irrevocable trust both start the five-year look-back with respect to Medicaid planning and asset protection.  Both transfers would allow your parents to retain certain rights with respect to lifetime use of the property including tax benefits associated with ownership including enhanced star benefit, Veteran’s benefit and any capital gains exemptions they would otherwise be eligible to receive.  However, there are several benefits to a deed transfer to an irrevocable trust over a deed with a life estate.


Read more . . .


Wednesday, May 31, 2017

First Party Supplemental Needs Trusts

Q: I am 50 years old and a recent injury has left me in a wheel chair permanently.  I need help with certain daily tasks such as bathing and getting dressed.  I am not working but I am receiving payments from my disability insurance.  I know community Medicaid will pay for my care if I qualify but I am afraid I have too much income, will they take my disability payments?

A: Since you are under 65 years old, you can create a first party supplemental needs trust to hold the income that you are receiving in excess of the Medicaid allowable amount.  The first party supplemental needs trust created for a person under 65 requires that someone other than yourself serve as trustee.  The trustee has the discretion to make payments to or for your benefit.  However, the trustee is limited by the trust terms from exercising this discretion for any purpose that would replace a government benefit you are receiving.  The trust assets are meant to supplement your benefits, not replace them.  If you are on community Medicaid and they are providing care for 4 hours per day, then your trust cannot supplement the payment to the aides for those same four hours.  However, your trust can pay for additional hours that the program will not provide to you.  As long as you are not on any other government benefits, the trust can pay for food, clothing, travel, etc.  The trust funds can be expended for your benefit only.

It is important to note that while you can put money into the trust only until you turn 65 years old, the assets that have accumulated in the trust can be used for your benefit for your entire lifetime.  To be a valid first party supplemental needs trust for these purposes, the document will state that the Medicaid program will receive a payback at the time of your death.  


Read more . . .


Wednesday, May 31, 2017

Long Term Care Insurance

With the ever changing healthcare landscape both federally and on a state level, and the aging of the baby boomers, it may be time to take a second look at long term care insurance.  Historically, New York State residents have had the opportunity to receive long term care benefits through the Medicaid program.  New York has been one of the most generous states in providing care for disabled and aged residents.  But you do not have to be a healthcare expert to see that State and Federal budgets are being threatening to curtail Medicaid benefits and the many current programs cannot be relied upon to provide the same amount of care that they have in the past. 

To battle these changes, a proper estate plan should provide an arsenal to protect against catastrophic healthcare costs.  It is often advisable to take consider all available resources when putting together a long term care estate plan.  We do not have a crystal ball that will show the future of Medicaid or what the needs of each individual will be.  But we do not that the baby boomers represent a critical mass of individuals moving toward unprecedented longevity.  In addition, we know that a large percentage of these individuals living longer will likely need care.  Further, while many baby boomers and their relatives traditionally cared for aging parents, the economics facing future generations shows that third party caregivers will be the norm, not the exception.   

For clients facing these looming questions of who will provide care, where will the care be provided and how will it be paid for, long term care insurance is one possible solution.  Prudent estate planning may require putting together a team of professionals to help make decisions to protect your assets and autonomy, regardless of what the future holds.  This team may include an elder law attorney, financial advisor and an insurance professional.  Working together, they can provide you with options for protecting assets to avail yourself of public benefits, preserving and growing assets and purchasing insurance products that make sense in your plan.


Read more . . .


Friday, May 26, 2017

Credit Card Debts of a Decedent

Q: My brother passed away with significant credit card debt, as the executor and one of the beneficiaries his estate am I responsible to pay these bills?

A: As executor of your brother’s estate you have the responsibility to pay the debts out of the assets of your brother’s estate. Assets that are includible in the estate are ones that are in your brother’s sole name without a joint holder or named beneficiary. You are not held personally liable for your brother’s debts and the Fair Debt Collection Practices Act prohibits collection attempts against you personally as a surviving relative.

            As executor, you should locate all of your brother’s credit cards and cancel them to prevent new and unauthorized charges. To prevent identity theft you should send a copy of the death certificate to three major credit reporting bureaus (TransUnion, Equifax and Experian).

            In New York, there is a seven month creditor period. It runs from the date of appointment as executor, not from the date of death. The law imposes a good faith standard on the executor in determining the payment of claims against the estate. The seven month creditor period does not bar a claim that is presented after seven months and does not mandate that all claims against the estate be filed within seven months of appointment.  The purpose of the seven month creditor period is to protect an executor who after seven months distributes the estate’s assets in good faith before a claim is presented.


Read more . . .


Friday, May 19, 2017

Managed Long Term Care

Question: My mother has Community Medicaid and she lives in her own home.  Now the Managed Long Term Care provider, GuildNet, is leaving this area.  What are my options?  Will her hours of care be reduced?  Should I be worried?

Answer:  Once an individual is financially approved by the local Department of Social Services for Community Medicaid, he or she must enroll with a Managed Long Term Care Company (or “MLTC”).  The MLTC will send a nurse to the Medicaid recipient in order to evaluate and create a care plan.  The evaluation typically will result in an award of hours to the Medicaid recipient for a home health to come to the home and assist the recipient with activities of daily living.  The amount of hours can consist of a few hours per day or live-in care depending on the needs of the Medicaid recipient. If the Medicaid recipient is satisfied with the care plan, he or she could choses to enroll with the MLTC.  Recently, one of the MLTCs, GuildNet, announced that it will no longer service Long Island and sought permission from the Department of Health to drop all current Long Island enrollees effective June 1, 2017.  This has led many Long Island Medicaid recipients to panic due to the fear of having a gap in coverage.

Enrollees in GuildNet must enroll in another MLTC to continue coverage through the Medicaid program.  In order to start the process, the new MLTCs must be contacted and a new home evaluation must be set up.  Each MLTC that comes to the home will conduct an evaluation and propose a care plan that includes how many hours the Medicaid recipient would receive under their program.  The care plan does not need to match the care plan established by GuildNet.  For example, if the Medicaid recipient is currently receiving live-in care, the new MLTC might assess the Medicaid recipient and only offer 8 hours per day.  This is a concern for many Medicaid recipients as a decrease in hours could result in devastating consequences.


Read more . . .


Friday, May 12, 2017

Medicaid Recertification

Question:  My mom is currently approved for Community Medicaid.  I received a notification that her benefits need to be recertified.  Is this something I should go back to my attorney to handle or can I fill it out myself?

Answer:  Once someone has been approved for Community Medicaid (home care benefits) or Chronic Medicaid (nursing home benefits) they will need to recertify with the local Department of Social Services each year.  The recertification notice comes with an application that must be completed and sent in prior to the due date.  The application should be sent in with supporting documentation showing income and asset verification for the Medicaid recipient and spouse.   This is the way the Department of Social Service ensures that the Medicaid recipient is still entitled to the benefit.

Retaining an attorney to prepare and submit the recertification is typically advisable.  If the application is not filled out correctly or documentation is missing the recertification could be denied for failure to provide information.  This would result in a loss of benefit for the Medicaid recipient and the possibility of a gap in coverage if a new application is not timely filed and approved. 

Another reason to have the attorney prepare the recertification documents is that this will be another opportunity for the attorney to review the entire file and make sure that all of the Estate planning is also in order.  For example, in the case of a Community Medicaid application, the homestead (primary residence) is an exempted asset for the purpose of eligibility.  Even though the property will be exempted from the calculation during the life of the applicant, under New York State law, costs of services provided under Medicaid to an individual over the age of 55 are subject to estate recovery at the time of the Medicaid recipient’s death, this would include the house. 


Read more . . .


Friday, May 5, 2017

Britt Burner, Esq. Named as One of Hofstra's Outstanding Women in Law for 2017!

Britt Burner, Esq. has 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 an Outstanding Woman in Law for 2017.

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.

Britt was honored at the 2nd Annual Long Island Outstanding Women in Law reception held on April 25, 2017.


Read more . . .


Wednesday, May 3, 2017

Veterans Benefits

Most veterans are not aware of the wide range of benefits they may be entitled to under the United States Department of Veterans Affairs even if they did not directly retire from the military or suffer injuries in the line of duty.  For example, there is a benefit referred to as the improved Pension through the Department of Veteran’s Affairs (VA), more commonly referred to as Aid and Attendance Pension.  Assuming you meet the eligibility requirements, the VA permits payments to care givers (including family members, but not spouses) for care provided to the veteran and/or the spouse.  This benefit is also commonly used for veterans and/or the surviving spouses who reside in an assisted living facility.  This monthly benefit can be used along with income in order to prevent the depletion of assets for care services.  There are three main requirements to qualifying for Aid and Attendance. 

       First, the claimant must have served at least 90 days active duty with one day served during wartime.  There are specific wartime periods: World War I (April 6, 1917 – November 11, 1918); World War II (December 7, 1941 – December 31, 1946); Korean conflict (June 27, 1950 – January 31, 1955); Vietnam era (February 28, 1961 – May 7, 1975 for Veterans who served in the Republic of Vietnam during that period; otherwise August 5, 1964 – May 7, 1975); or Gulf War (August 2, 1990 – through a future date to be set by law or Presidential Proclamation).  The claimant must have received a military discharge “other than dishonorable.”  


Read more . . .


Archived Posts

2017
2016
December
November
October
September
August
July
June
May
April
March
February
January
2015
December
November
October
September
August
July
June
May
April
March
February
January
2014
December
November
October
September
August
July
June
May
April
March
February
January
2013
December
November
October
September
August
July
June
May
April
March
February
January


Nancy Burner & Associates, P.C. has offices in Setauket, Westhampton Beach, and Manhattan New York.
Disclaimer Attorney Advertising



© 2017 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

Elder Law / Medicaid Planning | Estate Planning | Special Needs Planning | Estate Planning for High Net Worth Individuals | Asset Protection | Business Succession Planning | Guardianships | Probate & Estate Administration | Veterans Benefits | Gallery | About | Attorneys | Resources

Attorney Website Design by
Zola Creative


© 2016 Nancy Burner & Associates, P.C. | Copyright
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
Zola Creative