Suffolk County, NY Estate Planning and Elder Law Blog
Friday, May 17, 2013
Question: My mother is widowed and is beginning to decline in health. I have two 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 $150,000.00 in various CD accounts. A friend of hers told her that she can give up to $14,000.00 to each of us annually without penalty and still qualify for Medicaid if she needs it in the future, is she correct?
Answer: NO! We often see clients who believed this to be true, and thinking that they were doing the prudent thing did exactly this sort of gifting, resulting in long periods of ineligibility when the time came to apply for Medicaid. To begin with, what your friend is likely referring to is the $14,000.00 gift exemption under the Internal Revenue Code. Under the Code, all gifts made in any given year are subject to a gift tax. However, the first $14,000.00 gifted to each individual in any given year is exempted from the gift tax, and for that reason, for many individuals, gifting during lifetime is a way to distribute wealth and reduce their taxable estate at death.
Oftentimes, seniors and their children believe that this same exemption holds true for Medicaid eligibility, and that gifting this amount of money away annually will not affect them should they need to apply for Medicaid benefits in the future. Medicaid requires that all Medicaid applicants account for all gifts and transfers made in the five years prior to applying for Institutional Medicaid. These gifts are totaled, and for each approximately $12,000.00 that was gifted, one month of Medicaid ineligibility is imposed. 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.
For example, if your mother had taken the advice of her friend, and gifted each of you $14,000.00 per year for three years, she would have given virtually all of her money away. If at the end of those three years she then needed Medicaid, those gifts would be considered transfers “not for value” and would have made her ineligible for Medicaid benefits for approximately eleven months. What makes this even more difficult for some families is that an inability to give the money back or help mom pay for her care is not taken into consideration, causing many families great hardship. It is important for families who have done this sort of gifting to know that there are still options available to them. An Elder Law attorney who concentrates their practice in Medicaid and Estate planning can help to you to optimize your chances of qualifying for Medicaid while still preserving the greatest amount of assets.
By: Nancy Burner, Esq. and Robin Burner Daleo Esq.
Monday, May 13, 2013
Spendthrift Trusts: Protecting Beneficiaries from Creditors
Most of my clients come in to my office knowing that a trust can afford some kind of asset protection. In the context of elder law, what the client is usually looking for is asset protection from Medicaid should he or she need long term care in a nursing home after the five year look-back. What many clients do not realize is that trust planning can also provide “spendthrift” protection from the creditors of their beneficiaries.
The term “spendthrift” refers to a trust that prohibits the beneficiary from assigning present or future income and/or principal in the trust to his or her creditors. The idea behind permitting grantors of trusts the right to protect their beneficiaries against creditors is often associated with the proverb “Cujus est dare, ejus est disponere”; that is, “whose it is to give, his it is to dispose.” For many, the idea that their property will be held for the benefit of and pass only to their selected beneficiaries rather than to creditors or divorcing spouses is one of great comfort.
Under the New York Estates, Powers, Trust Law Section 7-3.1, an individual may not create a spendthrift trust for his or her own benefit. Thus, all spendthrift trusts must be made by a third party. If drafted correctly, these trusts provide creditor protection by prohibiting the trustee of said trust from making distributions from principal in satisfaction of the beneficiary’s debts. If a beneficiary has a right to income from the trust, only 10% of said income would be available to creditors, unless a court determines otherwise.
There are many different types of trusts that can include a spendthrift provision. For instance, a credit shelter trust (or commonly known as a bypass trust) is used in estate planning documents for married couples to protect the New York State Estate Tax exemption which is currently $1 million. When the first spouse dies, the credit shelter trust is funded with up to $1 million and held for the benefit of the surviving spouse and other named beneficiaries as well. Of course, if the surviving spouse needs to access those funds, they can unravel it, but if the $1 million is kept in the credit-shelter trust and left to grow, all the funds in said trust will pass tax free to the testator’s other beneficiaries. While these trusts are important for tax saving strategies, they also can be spendthrift trust which protect the beneficiaries (typically the surviving spouse and children) from their creditors or potential creditors. As a result, creditors, including divorcing spouses, cannot make a claim against the assets in the trust.
A second type of spendthrift trust is known as a descendant’s trust. This trust can be created during the grantor’s lifetime or in a will document. The grantor can decide whether they wish for their child to be the sole trustee of their descendant’s trust, or appoint a different trustee, or even a co-trustee with the child. A descendant’s trust holds property for your children in trust and provides for creditor protection, including protection against divorcing spouses. In New York, inheritance is considered separate property and therefore not subject to equitable distribution in a divorce proceeding. However, if the inheritance is co-mingled with marital funds, namely placing the assets in joint names, that property could be subject to equitable distribution in a divorce action. In addition, a surviving spouse of a child has the right to elect against their spouse’s estate. So if a child received an inheritance outright, and then passed away, their spouse would be entitled to “elect” against those funds. By placing an inheritance in a descendant’s trust, you could ensure that when your child passes away, the trust would continue for the benefit of your grandchildren rather than the surviving spouse.
While there is a presumption in New York that a trust is spendthrift unless the grantor states otherwise, the trust must still be drafted properly in order to provide for the most effective asset protection and tax savings strategy.
-By Nancy Burner, Esq.
Monday, May 13, 2013
A woman walked into my office a few years ago. Her longtime companion of 30 years had just passed away suddenly. Her grief was readily apparent. He had been her “rock”, her protection against the world and, not least of all, her sole support. She cared for the house and he provided the financial support. She asked me to handle his estate and we began the task of listing the assets in the decedent’s name. They had some joint bank accounts and she was entitled to all of the proceeds of those accounts as the surviving owner. She had title to the condominium in Florida where they spent a few weeks per year, but he held sole title to their New York residence. It was a beautiful house, their dream house, built on the north shore of Long Island, overlooking the Long Island Sound. They worked tirelessly on the house and gardens and planned to spend their retirement there. They were going to change the deed to include her, but they “never got around to it.” She told me that he had a Last Will and Testament that left the house to her. When she showed me the “Will”, which was handwritten, the concern on my face was obvious. He wrote a simple will naming her as his sole beneficiary. He had 2 witnesses sign and date the document on different dates. No attorney was present. This grieving client was in jeopardy of losing her home.
For a Will to be valid certain formalities must be followed. First, the testator must sign the Will at the end. There must be two attesting witnesses. The witnesses must sign the Will attesting to the Testator’s signature which is either signed in their presence or acknowledged by the testator to be his signature. Another formality involved in the signing of a Will is that the person signing the Will must declare to the witnesses that the document is his Last Will and Testament. The witnesses, at the very least, must be aware that the document they are witnessing is a Will. This issue will await discovery and protracted litigation.
There is a presumption in the law that if a Will is prepared and signed with an attorney, that all of the required formalities have been followed and the Will is valid. In this case, if the Will had been drafted by an attorney and signed in the attorney’s presence, it would have had the benefit of the presumption. Anyone challenging the Will would have the burden of proving otherwise. The lesson is this: a simple Will may not be so simple.
By: Nancy Burner, Esq. and Kera Reed, Esq.
Monday, May 06, 2013
May is National Elder Law Month!
May is National Elder Law Month, for that reason we have decided to switch from our normal format and answer a question that we are oftentimes asked in our practice, “What is an Elder Law Attorney and why do I need one?”
Answer: Elder Law is a fairly new and unknown area of the law. As baby boomers and their parents’ age, they are living longer and oftentimes, living with chronic medical conditions. As the cost of long term care continues to spiral out of control and families struggle to meet the needs of their aging members, an experienced Elder Law attorney can help you and your family members establish an estate plan that maximizes protection of assets while ensuring that your loved one has the best care available to them should they face a health crisis. While it is always best to plan proactively, Elder Law attorneys are adept at crisis planning and oftentimes can provide a solution which can preserve assets or save taxes where others you have consulted have told you that no solution existed.
Elder Law attorneys must be familiar with multiple areas of the law - contract law, estate planning, trusts and estate administration, Medicare, Medicaid, health care insurance regulations, Public Health Law, Mental Hygiene Law, the Internal Revenue Code & State and local tax issues. In each instance the issues that we deal with are fact sensitive and the clients must be willing to give us the information that we need to formulate the Elder Law plan. This in itself is oftentimes a struggle as the clientele that we deal with tends to value privacy and are oftentimes reluctant to divulge information regarding their assets and private family issues.
The various disciplines that make up the Elder Law practice are in a constant state of flux. As a result, it requires the Elder Law attorney to spend a great deal of time reading current journals and cases and continuously taking legal education courses. In addition, many Elder Law attorneys meet in informal study groups to read, understand and strategize.
As the facts change, there will likely be different solutions for each client. What works for one client may be totally inappropriate for another. For instance, in one day, we may see two different clients, both clients are 86 years old, own their own homes, and need long-term care. Client A has a daughter, age 55 and Client B has a niece age 55. Client A, on the eve of going into a nursing facility, is advised to transfer her home to her caretaker daughter, who lives with her and has lived with her for more than 2 years. The transfer does not make Client A ineligible for Medicaid. Client B cannot follow the same plan because her niece is not her child. There are no exceptions for transfers to caregiver nieces. Because we do not have an exempt transfer available to us for Client B I advise Client B to sell the home and advise her that even though no pre-planning has been done, we will likely be able to save more than sixty percent of her aunt’s assets by engaging in crisis planning. Remember - one size fits all – is not the rule. Your Elder Law plan is personal, fact sensitive and requires a careful review of all of the facts and circumstances.
By: Nancy Burner, Esq. and Robin Burner Daleo, Esq.
Monday, April 29, 2013
Q: My mother recently passed away. Her will named my father who died 5 years ago as executor and my sister who died last year as successor executor. My brother and I are her only surviving children and the beneficiaries of her Will. Is her will invalid because all of her named executors are dead?
A: No, your mother’s will is not invalid and it can still be submitted to the Surrogate’s Court for probate. Instead of a named executor being appointed, the Surrogate’s Court will appoint an Administrator c.t.a. An Administrator c.t.a. has the same authority to act on behalf of the estate as an executor.
Administrator c.t.a. is the abbreviation of Administrator cum testaments annex, which means 'administrator to the will annexed'. An Administrator c.t.a. is appointed by the Surrogate’s Court when the decedent had made a Will without naming any executors, the named executors predeceased the decedent, or where the nominated executors refuse to act.
In this situation, the Surrogate’s Court will issue Letters of Administration c.t.a. in the following order of priority:
To the sole beneficiary of the Will;
To one or more of the residuary beneficiaries of the Will;
If there are no residuary beneficiaries of the estate eligible to receive Letters of Administration c.t.a., the Surrogate’s Court may issue letters to the other beneficiaries of the Will. This includes beneficiaries that either receive a bequest of specific property or money under the Will;
If any person otherwise entitled to letters as stated above is a minor or has been declared incapacitated by the Court, the guardian of the property of that person is eligible to serve. Letters of Administration c.t.a. may also be granted to a non-beneficiary upon the consent of all of the beneficiaries. This person would be known as a designee.
Since you and your brother are named in your mother’s Will as residuary beneficiaries, either one of you may serve as the Administrator c.t.a or you may decide that you want to serve together. As the Administrator c.t.a. you will have the responsibility of collecting your mother’s assets, paying any valid debts, timely filing and paying any estate or income taxes due and distributing the estate assets to the beneficiaries of the estate.
By: Nancy Burner, Esq. & Kera Reed, Esq.
Friday, April 26, 2013
Supplemental Needs Trusts
Question: My son is disabled, a friend told me that I needed to disinherit him so that he would not lose his government benefits when I pass away, is this true?
Answer: No, it is not necessary to disinherit an individual simply because he is disabled and receiving government benefits. Your friend is likely making that statement because she is aware of the fact that an individual who is receiving need based government benefits (for example Medicaid or SSI) would lose those benefits if he were to inherit a sum of money directly which placed him over the asset limit for those benefits. The good news is that this end result can be avoided through the use of Supplemental Needs Trusts.
A Supplemental Needs Trust (SNT) is an irrevocable trust designed to provide benefits to, and protect the assets of, physically disabled or mentally disabled persons. The SNT allows such persons to be qualified for and receive governmental health care benefits, such as Medicaid and Supplemental Security Income, even when assets are held for their benefit in one of these trusts.
For simplicity, these trusts can be categorized as either “First Party” Supplemental Needs Trusts or “Third Party” Supplemental Needs Trusts. This distinction refers to whose money is used to fund the trust. Where a disabled person’s own money is used to fund a trust so that he can become eligible for need based government benefits the trust is referred to as a First Party SNT and the law requires that he trust have a “payback provision.” This provision dictates that any monies that remain in the trust at the time of the disabled individual’s death must be paid to the state in an amount equal to the medical assistance paid on behalf of the individual. Should there be any monies left over after the payback, those monies will be paid to the remainder beneficiaries in accordance with the terms of the trust. Third party trusts are trusts created for the benefit of a disabled person and are funded completely with the funds of a third party, commonly referred to as the Grantor. Third party trusts can be created while the Grantor is alive, in the alternative as part of an estate plan at the time of the death of the Grantor. This type of trust is commonly referred to as a testamentary trust and does not come into existence until the Grantor has passed away and his Estate settled.
The assets in the trust can be used to provide the disabled individual with comforts they would otherwise not be able to afford. Because these trusts are set up with the funds of a third party, unlike the first party SNT, they do not have a payback provision. Upon the death of the original beneficiary of the trust, whatever assets remain in the trust can be distributed in accordance with the Grantor’s wishes.
In sum, Supplemental Needs Trusts are invaluable planning tools for those who have a loved one with a disability. The ability to create and fund a SNT for a loved one who is receiving government benefits ensures an enhanced quality of life for disabled individuals who are fortunate enough to be beneficiaries of such trusts.
By: Nancy Burner, Esq. and Robin Burner Daleo, Esq.
Wednesday, April 17, 2013
Now more than ever, computers, smartphones and the internet play a major part in our lives. Statistics show that more than half of American adults ages 65 and older are online and that the majority of internet users have paid to access or download some kind of digital content in their lives, with music and software being the most common kind of purchase. These purchases along with data stored in our computers, smartphones, social media accounts, e-mail accounts and domain names are what are generally known as “digital assets.” A proposed Oregon statute regarding these kinds of assets defines digital assets more comprehensively as:
“Text, images, multimedia information, or personal property stored in digital format, whether stored on a server, computer, or other electronic device which currently exists or may exist as technology develops, and regardless of the ownership of the physical device upon which the digital asset is stored. Digital assets including, without limitation, any words, characters, codes, or contractual rights necessary to access the digital assets.”
While many of these assets are sentimental in nature, some “digital assets” have monetary worth. For example, software and domain names can be extremely valuable. According to Wikipedia, the highest selling domain name was “insure.com” which sold in 2009 for $16 million! A more common example would be the music on your iTunes account or the “reward points” from loyalty programs, usually accessible online.
The question for estate planning practioners therefore becomes, how can one protect these “digital assets?” The answer, unsurprisingly, is, it depends.
Protection of digital assets should be divided into two categories: the safeguarding of access to digital access while you are alive and planning for distribution of any digital asset upon your death.
The first category is essentially a lesson in the importance of protecting against identity theft and allowing access for trusted loved ones should you become incapacitated. Because this area of the law is so new, law-makers and practioners are still debating what the best way to protect and access these assets may be. The simplest way to allow for access to these assets is to write down all your usernames and passwords so your agent can access your assets and accounts should you be unable to do so. This would include accessing your websites, social media accounts, music and video media accounts, e-mail accounts or any online account you may have.
The obvious problem with this technique is determining where to keep such an important document. Some lawyers advise to keep this document attached to your Last Will and Testament, however this not a good idea because Wills become public record. Moreover, since many websites require us to change our passwords every few months, keeping this list updated may prove to be futile.
Finally, giving agents your access information may even violate federal laws such as the Stored Communications Act and Computer Fraud and Abuse Act. Therefore, some savvy lawyers have begun incorporating digital asset access language in to their Durable Power of Attorneys so that agents could have official authority to access online accounts, even without having the proper username and passwords. Whether or not institutions or internet companies will accept such authority remains to be seen. This is because so many accounts we use require us to electronically sign or agree to the “user agreement” which most of many do not even read. If the agreement provides that multiple users are impermissible, the power of attorney may be useless.
The second category regarding what happens to your digital assets when you pass away is equally as complicated as protecting them while you are alive. First of all, most people do not think of digital assets when they execute a Last Will and Testament, and so no specific provisions are written for it, such as what you would like to happen to your e-mail or Facebook account when you die. Granting your Executor the power to access and distribute your “digital assets” is a good place start however, the same problems with practicality arise with this as does granting this authority in a power of attorney.
Secondly, many websites have their own rules regarding what happens to your account whether or not you plan. In most cases you are bound to their rules because of that pesky “user agreement.” For example, when a Facebook user passes away, their family or friends may fill out a form for the decedent’s profile to be “memorialized". This memorializing takes them out of the public search results, and seals their profiles from any future log-in attempts, while leaving “the wall” open for family and friends to pay their respects. But Google requires an authorized representative for a person’s estate to apply to get access to a Gmail account and such application does not guarantee that the representative will receive their requested access.
Lastly, another problem with accessing or passing “digital assets” to your family and friends is that you may not actually own that asset. The “user agreement” rears its ugly head again with many agreements providing only a license to use the property and not actual ownership thereof. For example, if you think you can bequeath your iTunes account to your spouse, you may be mistaken since you likely only have the right to use the software during your lifetime, but this right expires at your death. Therefore, it is important to review these agreements to determine what you actually own and what you only can use.
-By Nancy Burner, Esq.
Friday, April 12, 2013
Question: My mother is a resident of Florida and owns a condominium and several financial accounts in her sole name. She also owns a summer home in New York that is titled in her sole name. If she were to pass away, what is the procedure to transfer her New York home after her death?
Answer: Real estate is governed by the laws of the state where it is located. Therefore, if a person dies owning real estate in two different states, the Executor would have to probate the Last Will & Testament in the decedent’s home state and commence an “ancillary” probate proceeding in the State where the other real property is located. In your mother’s case, her estate would first be probated in the Florida courts. The ancillary proceeding would be commenced in the county in New York where her summer home is located.
The term “ancillary proceeding” refers to a probate or administration proceeding that is required in addition to the primary probate or administration proceeding that will take place in the decedent’s home state. Typically an ancillary proceeding is necessary because a decedent owns real estate located outside of their home state. An ancillary proceeding could also be necessary if the decedent owned personal property, such as a car, boat, or airplane that is registered and titled outside of their home state. The laws of the state where the real estate property is located will govern what will happen to the property that is located in its borders.
An ancillary proceeding necessitates additional costs, including court filing fees and attorneys' fees. Another drawback of an ancillary proceeding is when a person dies “intestate”, meaning that the person died without a Will. Since intestacy laws vary among the fifty states, it is possible that the heirs (or beneficiaries) could be different in each state proceeding.
Your mother could avoid an ancillary estate proceeding by creating a revocable trust and titling her assets in the name of the trust. Upon her death, the trust would govern the distribution of the real and personal property to her beneficiaries and her estate would not be subject to the expense and inconvenience of probate proceedings in two states.
By: Nancy Burner, Esq. & Kera Reed, Esq.
Monday, April 08, 2013
Look Back Period for Medicaid Planning
Question: What does the term “look-back” refer to in the context of Medicaid planning?
Answer: The look-back period refers to the five-year period immediately prior to the submission of application for Chronic Medicaid. The Department of Social Services, the Agency tasked with reviewing and either approving or denying Medicaid applications, requires that full financial disclosure be provided for this five year time period for all applicants and their spouses. Medicaid requires complete copies of all financial statements as well as verification of the source of all deposits. In addition, Medicaid requires a trail of all withdrawals over $1,000.00. Absent proof to the contrary, Medicaid presumes that these withdrawals are gifts and will assess a penalty for such withdrawals. For example, if in the review of the financial statements, Medicaid uncovers cash withdrawals equaling $50,000.00. In many cases, the applicant explains that they have taken these cash withdrawals to pay their monthly expenses. Absent proof of such, Medicaid will assume that these monies were gifted or transferred away; and for every $11,898.00 of withdrawals that cannot be traced; a like penalty will be assessed resulting in a period of Medicaid ineligibility. In this case, the applicant would be ineligible for Medicaid for a period of 4.2 months. It is important to note that the same would hold true if these monies were given away to children or other family members. Medicaid has a right to full financial disclosure during this time period and failure to disclose is grounds for outright denial of a Medicaid application. There are a few instances where transfers during the look-back will not create a penalty. These are exempt transfers and are limited to transfers to: spouses, disabled children, transfers of the homestead to a caretaker child and transfer of the homestead to a sibling with an equity interest. Absent one of these exempt transfers, all transfers and transactions will be scrutinized during this time period. It is important to note that although these transfers are exempt, the requirements of the look-back with respect to full financial disclosure still apply. Another important point to realize is that the look-back period only applies where an individual is applying for Chronic Medicaid to cover the cost of a skilled nursing facility. Where the coverage needed is for Community Medicaid to cover the cost of an aid in the home, there is no look-back. This means that there is no retrospective financial disclosure required nor are there any penalties assessed for transfers made during the five years prior to the submission of the homecare application.
By Nancy Burner, Esq. and Robin Daleo, Esq.
Monday, April 01, 2013
Social Media Will
Q: What happens to my social media accounts (Google, Facebook and Twitter) when I pass away?
A: Google may be able to provide the contents of the Gmail account to an authorized representative of a deceased person’s estate. The process involves two steps, the first is an application and the submission of Court documents by the appointed estate representative. The second step is the review process by Google, where after the submission of the proper paperwork and months of waiting, Google will determine if they will allow the estate representative access to the Gmail account. Having been appointed as a representative of the estate does not guarantee that you will receive access to the Gmail account.
When a Facebook user passes away, Facebook allows their profile to be “memorialized". This memorializing takes them out of the public search results, and seals their profiles from any future log-in attempts. This leaves the wall open for family and friends to pay their respects. Memorializing the account restricts profile access to confirmed friends only.
Facebook’s policy surrounding deceased user accounts require family or friends to fill out a Memorialization request form. This form requires documentation to be provided to Facebook to confirm a user's death, before the profile is officially memorialized. Once that is completed, the user will no longer show up in Facebook's suggestions. Information like status updates will not show up in Facebook's news feed, which is the stream of real-time user updates that is Facebook’s most popular feature. If relatives prefer not to have the profile stand as an online memorial, Facebook will remove the account altogether.
Twitter’s policy allows a person authorized to act on the behalf of the estate or a verified immediate family member of the decedent to have an account deactivated. Twitter requires proof of death along with a signed statement by the estate representative or family member to deactivate the account.
If you are active online and have social media accounts it is important review the privacy policies and the terms and conditions of each website where you have a presence. You may also want to consider updating your will and power of attorney to include instructions regarding the access to and management of your social media and online accounts in the event of your death or incapacity.
By: Nancy Burner, Esq. & Kera Reed, Esq.
Tuesday, March 26, 2013
What is a Caretaker Agreement?
What is a Caretaker Agreement?
Question: I am currently in a position where I need to make some decisions regarding my mother’s living arrangements. I have found the appropriate level of care for her at an assisted living facility that will cost approximately $5,000 per month. My sister would like to avoid assisted living placement and wants my Mother to move in with her. Can my Mother move in with my sister and pay her the $5,000 a month that would have otherwise been paid to the assisted living facility? What are the legal and/or tax implications of this arrangement?
Answer: You Mother can pay your sister a fair rate for taking care of her. Additionally, in the event that your mother moved into your sister’s home it would be reasonable for your sister to collect rent from your mother pursuant to a valid rental agreement. Assuming that your sister can provide Mom with care that is comparable or superior to the assisted living facility, the price quote you received is likely a reasonable measure of what the end cost of your mother’s care room and board should be.
It is advisable for your mother and sister to enter into a written agreement as to the services your sister will be providing mom with in order to avoid any future misunderstanding, these agreements are commonly referred to as “caretaker agreements.” The agreement should outline with specificity the services to be rendered as well as a valuation for these services if they were to be purchased privately. The agreement should also indicate the hourly rate that your sister is to be paid for the services provided as well as the anticipated hours that your sister will provide these services. Your sister should report the money received as taxable income. If in the future, your parents ever needed to apply for Medicaid, the Department of Social Services will require proof of the agreement, proof that your sister has claimed that income on her annual income tax return, and proof of the hours that she actually provided service.
If not properly documented, the payments from your Mother to your sister could have implications with regard to your Mother’s future eligibility for Medicaid benefits. Medicaid considers all payments for less than adequate consideration to be gifts that result in periods of ineligibility. Without a caretaker agreement, your sister’s services would be considered to have been proffered for “love and affection” and any payments made to her could be considered uncompensated transfers or gifts. Likewise, any payments made to your sister in excess of the prevailing rate for the services rendered could also be construed as transfers and/or gifts. For this reason also, it is imperative that your family sit down with an Elder Law attorney before entering into a caretaker agreement. If drafted properly, a caretaker agreement will enable your sister to provide services to your Mother without creating a Medicaid eligibility problem later on.
By: Nancy Burner, Esq. and Robin Burner Daleo, Esq.
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Nancy Burner & Associates, P.C. has offices in Setauket & Westhampton Beach, New York.