Suffolk County, NY Estate Planning and Elder Law Blog

Friday, February 16, 2018

MOLST Form

Question: My mother has been diagnosed with a terminal illness and has specific wishes with regard to end of life decisions. She executed a living will and a DNR during her last hospital stay; however, she is concerned that her wishes may not be followed. Is there any other document that would ensure her wishes are carried out?

Answer: In addition to traditional healthcare advance directives, such as a Healthcare Proxy and Living Will, the MOLST form is another advanced directive one can execute to ensure their end-of-life wishes are followed.

MOLST stands for “Medical Orders for Life-Sustaining Treatment.” It was originally tested in Onondaga and Monroe Counties in May 2006. In July 2008, after a successful pilot program, the MOLST program was implemented on a permanent, statewide basis. The Department of Health updated the form in June of 2010 to make it more user-friendly and to make it compliant with the Family Health Care Decisions Act. Despite the fact that the MOLST form has been around for several years, many people are unaware of its existence. In fact, even many physicians and social workers are not familiar with it.

Unlike a Living Will which can be prepared well before the end of your life, the MOLST form is a medical document traditionally executed when the patient wants to avoid or receive any or all life-sustaining treatment, is in a long-term care facility or requires long- term care services and/or may die within the next year. It is intended to assist health care professionals in discussing and developing treatment  plans  that  reflect  the  patient’s wishes.



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Monday, February 5, 2018

Estate and Gift Taxes in 2018 after the Tax Cuts and Jobs Act

The Tax Cuts and Jobs Act (the “Act”) increased the federal estate tax exclusion amount from $5 million to $10 million indexed for inflation for decedents dying in years 2018 to 2025. This amount is indexed for inflation back to 2011. The exact amount of the exclusion amount is not yet known for 2018. However, it is estimated to be $11.18 million. This means that an individual can leave $11.18 million and a married couple can leave $22.36 million dollars to their heirs or beneficiaries without paying any federal estate tax. This also means that an individual or married couple can gift this same amount during their lifetime and not incur a federal gift tax. The rate for the federal estate and gift tax remains at 40 percent.

The doubling of the basic exclusion also means that the Generation Skipping Transfer Tax (GST) exclusion is doubled to match the basic exclusion amount of $11.18 million for an individual and $22.36 million for a married couple.

The sunsetting of the doubled basic exclusion amount after 2025 raises the prospect of exclusions decreasing in 2026. Taxpayers with estates over $11.18 million will want to discuss with their estate planning attorneys the potential for making transfers to take advantage of the larger exclusion amount before the anticipated sunset.

The Act does not make changes to the rules regarding step-up basis at death. That means that when you die, your heirs’ cost basis in the assets you leave them are reset to the value at your date of death.


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Monday, February 5, 2018

Should I Revoke My Trust?

Question: Several years ago, I went to a lawyer who convinced me to do a trust. Now, I am not so sure that it was the right thing for me. Am I able to revoke a trust? Should I revoke my trust?

Answer: The answer is…..it depends.

The first question is whether or not a trust can legally be revoked. If the trust is a revocable trust, then you as the grantor can revoke it at any time, without any other party’s consent. The revocation is usually done by a simple document stating your intent to revoke the trust, followed by the transfer of the assets from the trust to your name individually.

However, if the trust is an irrevocable trust, it may not be so easy. The New York Estates, Powers and Trusts Law provides that an irrevocable trust can be revoked provided all those with a beneficial interest agree. However, if you named a beneficiary who will not consent or if you have named a beneficiary that cannot consent, such as a minor or disabled person, you cannot revoke the trust. You may however be able to “decant” the trust. Decanting is a process whereby the Trustee of the old trust pours the assets into a new trust with more favorable terms. While you would still have a trust, the new trust may be able to give you more flexibility and achieve your new estate planning goals.

The second question is should you revoke your trust. If your lawyer suggested a trust as part of your estate plan, there may be a good reason for you to keep it. 


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Wednesday, January 31, 2018

Advance Directives

Advanced directives are documents that you should execute in an advance of incapacity.  These documents come into play when you need someone to act on your behalf with respect to health care decision making and finances.  It is imperative that anyone over the age of eighteen should discuss advanced directives with an estate planning attorney. 

Specifically, you should ask your estate planning attorney about a health care proxy, a living will, and a power of attorney.  Each one of these documents will allow that person you appointed to make medical and financial decisions on your behalf.

The health care proxy states who you would like to make your medical decisions for you if you are unable to make them for yourself because you have been deemed incapacitated by a doctor.  The living will state your wishes regarding the withdrawal of treatments.  This document can direct that certain treatments be stopped if they are serving to prolong your life without any reasonable expectation of recovery and allow the administration of certain painkillers that may hasten your death.  The final document is the power of attorney.  An attorney should be consulted when signing a power of attorney because it can give the powers to control your financial life. 


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Friday, January 26, 2018

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.


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Monday, January 22, 2018

Article 81 Guardianship

Question:  My aunt has been diagnosed with dementia and she will need 24/7 care. She is not able manage her finances or secure her own care.  Prior to her current state she did not take any precautions to have assistance in place. What are my options?

Answer:  As a first step it is important to assess your aunt’s mental capacity.  Although she requires daily assistance, she may still have the capacity to sign advanced directives such as a Health Care Proxy, Living Will, and/or a Power of Attorney. Based on your above description, I would advise that you consult an experienced elder law attorney to who can assess your aunt’s capacity. Your aunt must have the mental capacity to understand the documents and the power she is giving to the named agents. 

The other option, if in your aunt’s circumstance she does not have adequate capacity, would be to apply to the court to appoint a guardian. This court proceeding is held under Article 81 of the New York State Mental Hygiene Law and takes place in Supreme Court. You can request that the court appoint you as guardian or an independent person to act as guardian on behalf of your aunt.

The court can appoint a guardian for the personal needs and/or for the property management of a mentally incapacitated person. The authority of a personal needs guardian could include making health care decisions such as consenting medical treatment, who shall provide personal care and assistance, and choosing where your aunt lives.


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Wednesday, January 17, 2018

Family Healthcare Decisions Act

Q:  My mother is 87 years old.  She is getting more confused each day and refuses to sign a health care proxy or power of attorney.  What will happen if she becomes unable to manage her affairs?

A: If your mother becomes unable to manage things on her own there may be the need for a guardianship proceeding, however this is usually used as a last resort.  Regarding healthcare decisions, there is a New York State law called the Family Healthcare Decisions Act which lists, in order of priority, who can act as a surrogate decision maker for a person that is unable to make their own decisions regarding treatment.  It is important to note that this law only applies if someone is in an institution, meaning a nursing home, rehabilitation facility, or hospital.  At the top of the list of substitute decisions makers in the absence of a health care proxy is a court appointed guardian.  This is followed by a spouse or domestic partner, adult child, parent, sibling, and then a close friend.  Problems can arise with these default designations.  For example, if the person who is first in line to make decisions does not act as the patient would want them to, or if there are multiple persons at the same priority level and they do not agree on the plan of action.  If your mother understands that this default would be in place, she may be motivated to designate an agent to know she picked someone who is aware of her wishes.

The top of the priority list is a guardian appointed by the court.  If your mother has not signed a health care proxy, you could bring a guardianship proceeding before the court to ask for the authority to make these decisions. 


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Friday, January 12, 2018

Estate Accountings

There are many steps and layers associated with the administration of an estate.

Ultimately, for most estates, the goal is to distribute the assets to the respective beneficiaries which are named in the decedent’s Will or are intestate heirs pursuant to the laws of intestacy. As part of this administration process, and prior to making any final distributions, the beneficiaries of the estate are entitled to receive and review an accounting prepared and provided by the fiduciary for the estate.

One of the fiduciary duties the executor or administrator is tasked with is to marshal the assets of the estate. The accounting reports to the beneficiary the assets of the estate, the income collected during the pendency of the administration, the expenses, debts and claims that were paid on behalf of the estate, and the amount and value of funds that ultimately remain on hand to be distributed to the beneficiaries.

The function of the accounting is to provide a clear and concise review, in proper reportable form, of all of the estate receipts and expenditures of the estate so that the beneficiary fully understands exactly why he or she is receiving a certain sum of money. As discussed above, once the accounting is approved, the ultimate distribution is made in accordance with the terms of the probated Will or as provided by the laws of intestacy.


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Monday, January 8, 2018

Medicaid Resource and Income Levels

Q: What are the Medicaid Resource and Income levels?  I was told they change every year and differ from County to County.  Can you explain?

A: With the new year and the cost of living adjustment from social security, the State Department of Health adjusts the maximum amount of income and assets a Medicaid recipient can have in her name. As of January 1, 2018, a single person is eligible for Medicaid if she has assets totaling less than $15,150, up from $14,850 last year, and up to $842 in income (for home care Medicaid applicants), up from $825. 

In addition to these allowable funds, there are certain assets one can own over and above $15,150 that are considered exempt for eligibility purposes, as well as extra income amounts that can be disregarded.  There are also tools that can be used to allow the Medicaid recipient to retain the use of all of their income while receiving care at home through the Medicaid program, even when their income exceeds $842 per month. 

If an individual is in need of home care or nursing home care and has income or resources above the State levels, she will have to spend down or make certain allowable transfers for the Medicaid program to cover some or all of the cost of care.  This is where proper estate and Medicaid planning are important for families who foresee a need for assistance in the home or in a nursing home.


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Wednesday, January 3, 2018

Trusts and Medicaid Planning

Question:  My husband and I created a trust many years ago.   I am not sure whether this trust will protect our assets should we need Medicaid in the future.  I am also unsure of what other documents we have in place.  How do I know whether the trust that we have will protect our assets?

Answer:  This is a great question and unfortunately, one that is asked too late in many cases.  Initially, it is important to note that Revocable Trusts do not offer asset protection for the purpose of Medicaid planning in any situation.  In most cases, a Medicaid Asset Protection Trust will be an Irrevocable Trust, created and funded by you. There are other trusts that may offer protection for the purpose of Medicaid planning, but we will limit our discussion to the Medicaid Asset Protection Irrevocable Trust.  An indication of whether the trust is Revocable or Irrevocable will typically appear in the name of the trust, however, if you are unsure you should contact the drafting attorney and ask him or her for an explanation of the type of trust that you created.  It is also important to note that all trusts are not created equally and just because a trust is named “Irrevocable” does not necessarily mean it will pass muster for the purpose of Medicaid asset protection.  Unfortunately far too often we see trusts in our office that are entitled Irrevocable with a promise of protecting assets and because of a drafting error are in fact not drafted in such a way that if the need ever arose, would protect assets for the purpose of Medicaid planning.   Assuming that you created an Irrevocable Trust, the next consideration is whether that trust was properly funded.  Simply creating the trust is not enough.


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Friday, December 22, 2017

Does Community Medicaid Cover Supplies?

Question: “I am considering applying for Community Medicaid for my mom in order to cover the cost of home health aides.  I heard that Community Medicaid might pay for certain supplies my mom could use in her home, is that true?”

Answer: Yes.  The Community Based (Homecare) Medicaid program can assist families in paying for the cost of home health aides as well as other programs, supplies and equipment.  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. 

The MLTC will determine the amount of hours per day and days per week that the individual is entitled to have a home health care aide.  The determination is based upon the needs of the individual.  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. 

The MLTC will also cover Adult Day Health Care programs which offer a place for seniors to go during the day and then return home at night.  The entire cost of the program, including transportation, will be covered by Community Medicaid. 


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12 Research Way, East Setauket, NY 11733 | Phone:631-941-3434
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