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Suffolk County, NY Estate Planning and Elder Law Blog

Monday, August 31, 2015

Advance Directives

Q: How do my doctors make decisions about my treatment plan if I do not have the mental capacity to be part of the decision making?

A: Since we all have a right to independence over our medical decisions, a doctor is required to receive “informed consent” from a patient before treating or withholding treatment.  To give informed consent, you must be able to understand the options being presented by the doctor and be able to weigh the risks and rewards of the proposed plan.  If a patient is not able to give informed consent, the doctor must look to another individual who can give informed consent on behalf of a patient. 


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Friday, August 28, 2015

2nd Annual Client Appreciation Event: Family Night at the Long Island Museum
This past Wednesday, August 26th 2015, over 350 of our clients and their families joined us for our 2nd Annual Client Appreciation Event: Family Night at the Long Island Museum. Fun was had by all as we enjoyed music from the Hackensack Men and Trenton Horns, a BBQ dinner from Villa Sorrento Restaurant & Catering and of course ice cream from Mr. Softee. Children and grandchildren participated in fun activities including games, face painting and spin art while the adults were able to tour the historic carriage museum on the beautiful grounds of the Long Island Museum in Stony Brook.


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Wednesday, August 26, 2015

Increases In Estate Tax Exemptions Allow For More Meaningful Estate Planning

As the Federal and New York State estate tax exemptions continue to increase over time, , clients are less concerned with the tax consequences of their estates and more concerned with protecting the beneficiaries from outside invaders, like divorcing spouses, creditors and long term care expenses.   As a result, the wills and trusts we draft today are geared towards protecting those heirs.  It may be time to review your estate plan in view of the changes in the estate tax laws and the general evolution of trust law itself.

A major shift is in how we transfer assets to beneficiaries.  Many clients in the past would create trusts that distributed assets to children at specific time intervals, i.e. upon turning the age of 25, 30, and 35.  While this is still an option, it does not provide the maximum level of protection for the beneficiary.  


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Monday, August 24, 2015

Community Medicaid v. Chronic Medicaid

Question: My mom is a recipient of Community Medicaid.  As her condition deteriorates, she will require long term care in a nursing facility.  Will her Community Medicaid pay for the nursing facility?

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 as 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. 


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Monday, August 17, 2015

Gifting and Medicaid Eligibility

Question: My mother is widowed and is beginning to decline in health.  I have three siblings.  We know that in order to qualify for Medicaid, Mom cannot have more than a certain amount of assets in her name.  She rents a house, but has approximately $200,000 in various CD accounts.  A friend of hers told her that she can give up to $14,000 to each of us annually without penalty and still qualify for Medicaid if she needs it in the future. Is that correct?

 

 Answer: No, this is a common misconception. It is not uncommon for us to meet clients who have engaged in this method of gifting, thinking they were doing a prudent thing, only to find out that these gifts would result in long periods of ineligibility once the time came to apply for institutional Medicaid benefits.  Your friend is likely referring to is the $14,000 annual gift tax exclusion under the Internal Revenue Code.  The “annual gift tax exclusion” is the amount a person can give away to any individual each year without it being considered a taxable gift.  


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Monday, August 10, 2015

IRA: Are They an Item of Income or a Resource?

Question:  My mother is a widow and she lives with me.  She has an IRA with $10,000 and about $2,000 in her checking account.  Her only income is $1050 per month from Social Security.  She is being placed in a nursing home and I am told that she will have to take monthly distributions from her IRA and pay those distributions and her Social Security to the facility.  She may only keep $50.00 per month allowance from her income.  This does not seem fair.  Isn’t her IRA protected?  Why does she have to spend some of her IRA each month for her care? 

Answer: The question you ask is interesting.  As you may know, when an applicant applies for Medicaid, the agency looks at income and resources.  Resources are the total amount of assets in their name, as opposed to income, like social security, which is paid to her each month.    You indicate that she has a total of $12,000 in resources- her IRA and her checking account.  Under Medicaid regulations, she may keep a total of $14,850.  This is her resource allowance.  From her income of $1,050, she may keep $50. She does not have to take monthly distributions from her IRA as income. 

The confusion has to do with protecting IRA accounts when an applicant applies for chronic care Medicaid.  


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Monday, August 03, 2015

Why Do I Need a Will?

Question: I am a married with two grown children.   I want my wife to inherit all of my assets so why do I need a Will?

Answer: While many people assume that their spouse will automatically inherit their assets if they die, this may not be the case.  If you die without a Last Will and Testament, your assets will be distributed according to the Laws of Intestacy.   If you die intestate in New York State, your wife would only be entitled to the first fifty thousand dollars ($50,000.00) and one half of your residuary estate.  Your residuary estate will consist all of the assets left in your sole name without a beneficiary designated after your debts have been satisfied. The other one half of your estate will be divided between your surviving children.  


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Friday, July 31, 2015

Not All Powers of Attorney Are Created Equal

In practicing Elder Law, it is common for clients to come in to discuss applying for Medicaid to cover the cost of long term care for an ailing parent who has lost the mental capacity to make decisions for themselves. Before we even begin to discuss what transfers would need to be made to make the parent eligible for Medicaid, I ask if their parent has a power of attorney. When they reply “yes” it is tempting to breathe a sign a relief and falsely believe that the child designated as agent under a power of attorney will be able to take the necessary steps to qualify their parent for Medicaid. However, all powers of attorney are not created equal. Simple, one-page powers of attorney will likely not provide adequate authority for the agent to properly implement a Medicaid plan.

            A landmark case decided in 2009 changed the power of attorney law drastically in an effort to prevent abuse by the agents. Since its decision, any power of attorney executed by a principal that permits the agent to transfer assets out of the principal’s name must use the statutory form and have an additional rider called the Statutory Gift Rider. Without this rider, the agent is limited to whatever powers are expressly designated in the document, but in no event may they move money from the principal’s name.


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Monday, July 27, 2015

Internet Wills

Q: My friends used an online service to prepare their Wills.  They signed them at in the presence of their neighbors.  They said it was much less expensive than going to an attorney to have a Will prepared. I am planning to disinherit one of my children but I am hesitant to have my Will prepared by an online service. Can you give me some advice?

A: In my career, I have seen some do-it-yourself at home estate planning blunders. One of the most memorable is an estate where the testator signed her will at the bottom of every page, but not on the clearly marked signature line on the last page. This made the entire Will invalid.  I have also had circumstances where the person asked witnesses to sign the document but never told them that it was a Will they were witnessing. 


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Monday, July 27, 2015

Aging in Place
For most of us, if a time ever came that we needed assistance, the preferred option would be to remain at home and receive whatever care services we needed in our familiar setting surrounded by family.  For many, the Community Based Long Term Care Program, commonly referred to as Community Medicaid makes that an affordable and therefore viable option. 

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Tuesday, July 21, 2015

Does Medicare Cover Nursing Home Care?

Question: My mom fell in her home and is being discharge from the hospital tomorrow.  A friend told me that Medicare will pay for Nursing Home Care, is this true?

Answer: Long Term Nursing Home care is not part of the Medicare program.  However, where a person, like your Mom is being discharged from the hospital to a skilled nursing facility for the purpose of receiving skilled or rehabilitative services, the stay will be covered under Medicare Part A so long as certain pre-requisites are met.  The prior hospitalization must be for at least three consecutive days, excluding the day of discharge, and the admission to the facility must be within thirty days of the date of the hospital discharge.  It is important to inquire from hospital staff whether the patient was admitted to the hospital or was merely under “observation” because observation status days do not count towards the three day minimum. 


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