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Key Takeaways
- Our elder law attorneys in NYC help families face the challenges that come with aging. Specifically, we assist with planning for long-term care, navigating guardianship proceedings, determining eligibility for government benefits, and ensuring that legal documents are in place. Burner Prudenti Law’s elder law practice focuses on long-term care, incapacity, and wealth transfer at death.
- Our attorneys help seniors establish Durable Powers of Attorney, Living Wills, Health Care Proxies, Last Will and Testaments, Revocable and Irrevocable Trusts, and more.
- Planning ahead of time for your long-term care needs can help avoid enormous costs later on. Certain legal documents can help ensure you get the Medicaid coverage you need as you age in place.
- Elder law also includes guardianship law. When a person loses the capacity to take care of themselves and/or their finances, it may be appropriate for a friend or family member to file for guardianship. Once the petition is filed, the person who is alleged to be incapacitated has the ability to contest the appointment of a guardian. Other interested parties may file their own petitions for guardianship or contest the petition. Our elder law attorneys have successfully represented those filing for guardianship and those fighting against it.
What is an Elder Law Attorney?
An elder law attorney helps clients and their families navigate the challenges unique to the aging population. At Burner Prudenti Law, P.C., we help seniors in New York with planning for long-term care, determining eligibility for government benefits, and ensuring that legal documents such as wills, trusts, powers of attorney, and advance directives are in place. We also help family members when guardianship proceedings are needed to ensure the health and safety of a loved one who has lost capacity – or protect the rights of seniors who oppose a guardianship.
Our elder law-specific estate planning focuses on aiding seniors in implementing estate plans with a particular focus on long-term care, incapacity, and wealth transfer at death. Burner Prudenti Law is a vocal advocate for aging in place and entering the third age with a clear plan of action that can protect in case of incapacity and afford seniors the greatest autonomy.
As NYC elder law attorneys, we help seniors with planning for long-term care, guardianship proceedings, and estate planning.
Elder Law Estate Planning Tools We Can Help With
Our elder law attorneys recognize the specific legal issues that seniors face as they age. Some of the most common estate planning we do for seniors:
1.) Durable Power of Attorney
A crucial document for aging seniors to avoid a costly and intrusive guardianship proceeding. The power of attorney appoints an agent to act on one’s behalf to handle certain business and financial matters. A comprehensive power of attorney is an essential tool in the practice of elder law.
2.) Living Will
Documents what life-sustaining measures should be taken at the end of life. This document can direct your agent to authorize the withdrawal or withholding of certain medical treatments.
3.) Health Care Proxy
Allows for the appointment of an agent to make health care decisions if the individual is incapacitated and cannot make such decisions.
4.) Medicaid Asset Protection Trust
Protects assets in case you or your spouse needs long-term care.
5.) Revocable Living Trust
Avoids probate and allows for a trustee to manage your assets if you become incapacitated.
How Planning Ahead Can Address the Cost of Long-Term Care
While some seniors are able to afford private pay care, the cost of long-term care will wipe out the savings of all but the wealthiest families in a matter of years. By engaging in estate planning while you are healthy, you can minimize your asset exposure if a time comes when you need to rely on Medicaid to assist with the cost of care.
The gold standard for asset protection is the creation and funding of an Irrevocable Trust. If you were to fund an Irrevocable Trust with certain assets, Medicaid will not see those trust assets as available to pay for your care. Learn more about Medicaid Asset Protection Trusts.
It is important to note that even without planning, New York Medicaid law allows certain exempt transfers that can be done on the eve of entering a nursing home to preserve some or all of the assets. It is not too late to plan.
With locations in Westhampton Beach, E. Setauket, East Hampton, and New York City, our elder law attorneys are knowledgeable in the nuances of each county and have assisted thousands of clients in gaining access to care through the Medicaid long-term care program.
Learn more about Medicaid Eligibility and how our attorneys can help families find care for their loved ones, either at home or in a nursing home.
What To Know About Guardianship Proceedings
Sometimes, seniors face guardianship proceedings, which can be initiated by a family member, friend, nursing home, government agency such as the Department of Social Services, or any other person or entity with knowledge of the circumstances. These proceedings are brought under Article 81 of the Mental Hygiene Law when a petitioner alleges that an adult (alleged incapacitated person) is likely to suffer personal and/or financial harm because they cannot care for themselves or their financial affairs due to a lack of capacity.
It is important to understand the serious civil liberties at stake in a guardianship proceeding and that the procedure moves quickly – a hearing must be brought within twenty-eight (28) days. At the hearing, the petitioner must present evidence that the alleged incapacitated person is incapacitated and would suffer harm if a guardian is not appointed.
At Burner Prudenti Law, our New York City elder law lawyers know how guardianship proceedings work from every angle. We have represented petitioners bringing the guardianship, the alleged incapacitated person (AIP) defending against the guardianship, and interested parties such as friends or family members. Our attorneys are regularly appointed by the courts in the local counties to serve as attorney for the AIP or as court evaluator. We have experienced guardianship attorneys in our Westhampton Beach, E. Setauket, East Hampton, and Manhattan offices.
Frequently Asked Questions
How are elder law and estate planning different?
Elder law is concerned with aiding seniors in implementing estate plans with a particular focus on long-term care, incapacity, and wealth transfer at death. Elder law attorneys can help clients with Medicare, Medicaid, and Guardianship-specific issues, which are especially important as we age. Burner Prudenti Law promotes “Aging in Place” to allow seniors the greatest autonomy as their needs grow.
When should I hire an elder law attorney?
An elder law attorney helps clients and their families navigate the challenges unique to seniors as they age. Elder law attorneys can help seniors with planning for long-term care, determining eligibility for government benefits, and ensuring legal documents such as wills, trusts, power of attorneys, and advance directives (living will and health care proxy) are in place. Burner Prudenti Law is a vocal advocate for aging in place and entering the third age with a clear plan of action that can protect them in case of incapacity.
How do I prepare for a meeting with an NYC elder law attorney?
Generally, you should come prepared to discuss your assets, potential beneficiaries, and personal goals. Burner Prudenti Law provides all potential clients with a comprehensive questionnaire that includes general questions about assets. Every estate plan is tailored to a client’s particular needs and circumstances.
Will a power of attorney still be valid if I become incapacitated due to Alzheimer’s Disease or Dementia?
New York State General Obligations Law creates the Durable Power of Attorney, allowing your named agents to make financial decisions on your behalf and assist in taking care of your daily financial obligations. While this is a long-standing law and document, the statute was amended most recently in 2021. The “durable” description means that the document remains in effect even if you become incapacitated.
How does the law work for elderly citizens who need help with nursing home expenses?
Medicaid is a joint federal-state program that provides medical long-term care assistance to individuals needing nursing home care, who are 65 or older‚ disabled, or blind. Recipients must meet certain income and asset guidelines. Applicants must demonstrate they are financially eligible with countable resources less than the allowable Medicaid limit. Not all assets are countable; certain assets are considered exempt and do not count toward eligibility. Engaging in Medicaid planning early can preserve assets in case nursing home care is needed.
How do I plan for my long-term care?
Figuring out how to pay for the rising costs of long-term care can seem daunting. If you are under 65 years old, you should consider long-term care insurance. However, if the cost of long-term care insurance is too high or it is unavailable to you, it is important for you to see an elder law attorney to review your options. Our attorneys often work with your financial planner in coming up with a plan. We can also discuss whether Medicaid planning is necessary.
How can I make sure my parents are not taken advantage of by others?
As your parents grow older, it may be a concern that they will fall prey to scams targeting the elderly or family members asking for money. You can protect your parents by making sure they have an estate plan in place – including a healthcare proxy and power of attorney naming an agent they trust. If they do not have these documents and become incapacitated, your only recourse is a guardianship proceeding.
Do nursing homes take your Social Security check?
Yes, unless the resident is privately paying for their care each month. Nursing homes often apply to the Social Security Administration to become the “Representative Payee” of residents in order to collect their Social Security income. Medicaid will pay for the cost of nursing home care, but recipients’ income must first go toward the monthly payment. The resident is only entitled to keep $50.00 per month.
If I gift my home to my child, how can I make sure that I can live in the home for the rest of my life?
Gifting your home directly to a child may not be the best course of action for several reasons. First and foremost, it opens up the equity in the house to your child’s creditors. Additionally, if your children plan to sell the home after you pass away, they may have to pay substantial capital gains tax. One way to ensure that you can legally remain in the house and your heirs avoid capital gains tax is to retain a life estate. However, placing the house in an irrevocable trust might be a better option if you want to maintain a greater level of control or foresee any possibility of moving in the future.
How can I stay out of a nursing home?
The vast majority of seniors in this country would prefer to “Age in Place” rather than go to a nursing home. In many cases, this can be done with proper planning. People who do not have close family members to rely on often put together a team of friends who are willing to implement long-term care planning. At a minimum, such planning includes a healthcare proxy, living will, and power of attorney. Long-term care insurance can help cover the costs of care, but may not be sufficient to provide all of the required care. For some individuals, it will be prudent to create and fund a revocable living trust that names a successor trustee in case of incapacity. Others should explore a Medicaid asset protection trust. The best way to avoid a nursing home is to consult an elder law attorney well in advance.
Can I bring my parent home from the hospital even though the hospital is recommending transfer to a nursing home?
Hospitals often send seniors to nursing homes upon discharge for rehabilitation. When seniors have no safe discharge plan, they can end up in a nursing home. If your parent is capable of deciding where he or she wishes to live, it is their right to make that decision. If he or she does not have the capacity to decide, you would need a health care proxy and a durable power of attorney in place to determine next steps and an appropriate safe discharge. Proper care needs to be available at your parent’s home to ensure safety, which may involve privately paying for personal care aides or qualifying a parent for Medicaid long-term care.
