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Key Takeaways
- Our elder law attorneys in NYC help families face the challenges that come with age. Specifically, we can 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 primarily focuses on long-term care, incapacity, and wealth transfer at death.
- Our NYC attorneys often help seniors establish Durable Powers of Attorney, Living Wills, Health Care Proxies, and more.
- Planning ahead of time for your long-term care needs can help avoid life-changing costs later on. Certain legal documents can help ensure you get the Medicaid coverage you need later in life.
- Elder law also includes guardianship law. When a person becomes too incapacitated to take care of themselves and/or their finances, a loved one can file for guardianship. The allegedly incapacitated person can also contest the need for guardianship. Other interested parties may file their own petitions for guardianship or contest the petition brought by another family member. Our elder law attorneys in NYC have successfully represented those filing for guardianship and those fighting against it.
What is an Elder Law Attorney?
An elder law attorney, sometimes referred to as an elder care attorney, helps clients and their families navigate the challenges unique to seniors as they age. 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 and advanced 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 them in case of incapacity and afford them the greatest autonomy.
As elder law attorneys, we help seniors with planning for long-term care, guardianship proceedings, and estate planning.
Elder Law Estate Planning
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.
2.) Living Will
Documents what life sustaining measures should be taken at the end of your life.
3.) Health Care Proxy
Allows you to nominate someone to make health care decisions for you if you cannot do so.
4.) Medicaid Asset Protection Trust
Protects assets in case you or your spouse need long term care.
5.) Revocable Living Trust
Avoids probate and allows you to name a trustee to manage your assets if you become incapacitated.
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 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. 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 and more than 2.5 years for Community Medicaid or 5 years for Chronic Medicaid pass, Medicaid will not look to those trust assets as available to pay for your care. Learn more about the 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.
With locations in Westhampton Beach, E. Setauket and New York City, our elder law attorneys know the nuances of each county and enrolled thousands of clients in the Medicaid long term care program.
Learn more about Medicaid Eligibility and how our attorney can help families find care for their loved ones either at home or in a nursing home.
Guardianship Proceedings
Sometimes seniors face guardianship proceedings, either initiated by a family member, nursing home, or government agency such as the department of social services. These proceedings are brought under Article 81 of the Mental Hygiene Law when a petitioner alleges that the senior (alleged incapacitated person) is likely to suffer personal and/or financial harm because they cannot care for themselves or their financial affairs.
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 AIP is incapacitated and would suffer harm if a guardian is not appointed.
The elder law attorneys at Burner Prudenti Law know how Guardianship proceedings work from every angle. We have represented petitioners bringing the guardianship case, the alleged incapacitated person (AIP) defending against the guardianship, and interested parties such as family members. Our attorneys are regularly appointed by the courts in the surrounding counties to act as attorney for the AIP or as court evaluator. We have experienced guardianship attorneys in our Westhampton Beach, E. Setauket and Manhattan offices.
New York State adopted a statutory Durable Power of Attorney form in 2010 that allows your named agents to make financial decisions on your behalf and assist in taking care of your daily financial obligations. The “durable” description means that the document remains in effect even if you become incapacitated.
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 can generally have no more than $15,750.00 in available resources, however, certain assets are considered exempt and do not count toward eligibility. Any income over $50.00 must go toward the cost of care. Engaging in Medicaid planning early can preserve assets in case nursing home care is needed.
At the cost of $15,000-$20,000 per month for nursing home care and upwards of $9,000 per month for home care, figuring out how to pay for 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, it is important for you to see an elder law attorney in NYC 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.
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.
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.
Gifting your home directly to a child may not be the best course of action since 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. 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. 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.
The vast majority of seniors in this country would prefer to “Age in Place” rather than go to a nursing home. In most 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 usually additional funds will need to be made available to caregivers. For some individuals, implementing a revocable living trust that names a successor trustee in case if incapacity is prudent. 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.
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 making the decision where he or she wishes to live, it is your parent’s decision. If he or she does not capacity to decide, you would need a health care proxy and likely a durable power of attorney to bring him or her home. Proper care needs to be available at your parent’s home to ensure his or safety, which may involve privately paying for personal care aides or qualifying a parent for Medicaid long term care.
