Suffolk County, NY Estate Planning and Elder Law Blog

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.


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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.


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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. 


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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.


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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.”  


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Monday, May 1, 2017

To Probate or Not To Probate

While recently discussing an estate plan with a client, she stopped me and asked “What is probate?”  Sometimes we forget to explain certain concepts.  Essentially, probate is a Surrogate’s Court proceeding whereby a decedent’s Last Will and Testament is given effect.  Under New York State Law, a Will is admitted to probate after the nominated Executor files a Petition for Probate with the decedent’s Will attached and gives proper notice to the individual’s that would have inherited from the decedent’s estate had the decedent died without a Will.  The proceeding for the probate of a Will takes place in the Surrogate’s Court in the County where the decedent resided at the time of his or her death.  The probate proceeding gives the interested parties (or “distributees”) the right and opportunity to object to the probate of the Will.

Typically, we advise that a client that creates a Will consider if there are any circumstances that will make the probate proceeding an expensive one.  For instance, is any distributee being disinherited?  If so, that disgruntled distributee may appear before the Surrogate and object to the Will.  The litigation objecting to a Will can be long and drawn out in addition to being expensive as well.  Are there missing heirs that must be found before the Will can be probated?  If so, it could be very expensive and time-consuming to find all the individuals that are required to be given notice and an opportunity to object.  Is there real property owned by the decedent in different states?  If so, then the Will would have to be probated in each state. If any of these circumstances exist, you may want to avoid probate altogether.  We also suggest avoiding probate if you are the surviving spouse and your spouse is or has received Medicaid benefits.  Medicaid has a lien against the spouse’s estate for any Medicaid benefits paid for the other spouse within ten years of the death of the surviving spouse.  Another reason to avoid probate is if you have a disabled beneficiary as the Surrogate’s Court may appoint a Guardian ad litem to protect that person’s interest.  That could be another delay and cost to the estate. 


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Friday, April 21, 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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Wednesday, April 12, 2017

Inventory of Assets

Answer:  The Inventory of Assets is a form that is required by the Surrogate’s Court.  The Inventory of Assets must be completed and furnished to the Court by the fiduciary of the estate.  Alternatively, at the request of the fiduciary, the attorney of record can also complete and provide the Court with the Inventory of Assets. 

The Inventory identifies and provides the Court with information regarding the following:

 

  • The total value of the assets of the estate that were owned by the decedent individually, or those assets which the decedent had a partial interest; and
  • The total value of the assets which were payable or transferrable to the decedent's estate.

     

    In addition, the Inventory further identifies, by either yes or no answer, whether the Decedent had any of the following:


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Friday, April 7, 2017

Comprehensive Power of Attorney

Q:  If my mom signed the Power of Attorney provided by the bank, does she need to sign any other Power of Attorney?

A:        This is a question I am often asked, since many if not all banks have their own Power of Attorney forms.  The short answer is yes, it is important that your mom sign a comprehensive Durable Power of Attorney in addition to the document provided by the bank.

A review of the purpose of this document will be helpful to understand why it is important to sign this advanced directive. 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. A Power of Attorney will be practical should your mom become incapacitated or not be able to handle her accounts or assets at any time. Without a Power of Attorney, it may be necessary for you or one of your mother’s loved ones to petition the court to be appointed guardian of your mother in order to make decisions for her if she is incapacitated. The guardianship court process is expensive, time consuming, and invasive into your family affairs. This is why it is important that your mother name an agent under a Power of Attorney before any possible future disability or incapacity.

It is also imperative that the Power of Attorney your mother signs be a comprehensive document. While the Power of Attorney your mother signed with the bank could be valid, it may only allow the named agents to act with regard to that specific bank and often only on a specifically designated account at that bank. Additionally, changes in the law regulating Powers of Attorney mean that if a power is not specifically listed in the document itself that the agent does not have that power. In other words, a Power of Attorney is only as good as the powers listed within the document.


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Friday, April 7, 2017

End of Life Decisions

Q: My mother is getting older and I am nervous I will not know how to make the right medical decisions for her if the situation arises.  What can we do to prepare in case that happens?

 

A: There are several documents your mom can sign in advance that can assist you if a time should come when you need to make medical decisions for her, including end of life decisions.  A review of these documents will help you to understand the purpose of each.  They include:  a Health Care Proxy, Living Will, Do Not Resuscitate (DNR) and/or Do Not Intubate (DNI), and Medical Orders for Life-Sustaining Treatment (MOLST) form.  As Elder Law practitioners, we usually prepare a Living Will and Health Care Proxy for our clients to sign, although they need not be prepared by a lawyer.  The other documents listed are prepared under the supervision of a physician and are signed by that physician. 

A Health Care Proxy is a document in which your mom can name an individual to make her medical decisions if a doctor deems her unable to make these decisions for herself.  The health care proxy applies to all medical care except artificial hydration and feeding. Therefore, the proxy should indicate if the agent is permitted to refuse hydration or feeding.  While only one person can act as agent at a time, the Health Care Proxy can have a list of successor agents in case the initial agent is unable, unavailable or unwilling to act.

Many clients choose to sign a Living Will at the same time as signing a Health Care Proxy.  This is a document which evidences an individual’s wishes regarding medical care or life support to be administered in the event their condition is terminal. This document can be used to show your mom’s wishes if she is unable to communicate them for herself.  Some of the treatments that could be accepted or refused on the individual’s behalf include cardiac resuscitation, mechanical respiration, artificial nutrition and hydration, antibiotics, blood or blood products, kidney dialysis and surgery or invasive diagnostic tests.  


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Friday, March 31, 2017

Health Care Proxy

Question:  I recently signed a Health Care Proxy naming my daughter to make healthcare decisions for me.  Is she able to access my medical records and speak to Medicare and my supplemental health insurance company?

Answer: It depends on the information your health care agent is attempting to gather.  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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Nancy Burner & Associates, P.C. has offices in Setauket, Westhampton Beach, and Manhattan New York.
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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

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