First and foremost, I recommend that you have an open discussion with your family about the disposition of your remains. These are very sensitive issues and there is no substitute for a well- informed family. New York State law, however, does provide a mechanism for you to express your wishes in writing. Section 4201 of…

One of the most unfortunate situations in my practice is when I hear that someone spent most, if not all, of their assets on the cost of a nursing home or home care aides because they believed they were ineligible for Medicaid as a result of having income and assets.  Most often it is due…

Co-authored by Joanna C. Feldman This question was recently asked at an event we hosted during which we discussed strategies to leave a legacy after death.  A Medicaid Trust is an irrevocable trust used to protect assets should one need nursing home care and seek Medicaid to help cover the cost.  Because assets in a Medicaid…

While I cannot say whether there are mistakes in your estate planning documents, the wording of your document may be confusing to you as a non-attorney. Legal documents contain a great deal of legalese.  For purposes of this response, I am assuming that you are leaving all of your assets to your children.  First, it…

The elderly are vulnerable, and as a result, are often soft targets for non-physical abuse. I refer to them as “silent abuses” because they are often difficult to identify, or worse, prove. Examples include undue influence, duress, coercion, mental abuse, and financial exploitation. Generally, a common predicate for most cases begins with a close, confidential…

Co-authored by Joanna C. Feldman To be eligible for Medicaid benefits in a nursing home in 2018, one may have no more than $15,150.00 in available assets. A life insurance policy with no cash value is not considered an available asset. If a life insurance policy has cash value, however, the cash value of the…

Co-authored by Joanna C. Feldman A Medicaid Trust is often used when planning for the future and contemplating the fact that one might eventually need nursing home care.  The average monthly cost of a nursing home in our area exceeds $12,000.00, and there are only four ways to pay for such care: privately (which can be…

Co-authored by Joanna C. Feldman As Monday, April 16, 2018, was Health Care Decision Day, your question is timely.  In New York, a Health Care Proxy allows you to appoint someone to make health care decisions for you should you become mentally incapacitated.  You can even appoint a successor should the primary person be unable…

Co-authored by Joanna C. Feldman The truth is that very often, “elder law” attorney is a misnomer as it pertains to many of our clients.  For example, nearly everyone should have a comprehensive Power of Attorney. Some of our youngest clients have just become adults who come to us for a Power of Attorney before…

A 529 plan is a very common planning technique used by grandparents to fund a grandchild’s college education.  Simply stated, contributions to a 529 plan grow tax-free over the life of the plan and if used for qualified tuition costs, the distributions from the plan are also tax-free. Notwithstanding the beneficial tax treatment of a…

Contrary to popular belief, it is never too late.  An elder law attorney can work to implement many different techniques even at the 11th hour to preserve assets.  What is important is that you have a relationship with an elder law attorney.  An elder law attorney can relieve some of the anxiety natural to this time…

Special Needs Trusts are an integral part of almost every estate plan.  I use them in most of my estate planning documents.  There are two types of Special Needs Trusts: First Party and Third Party. A First Party Special Needs Trust is a trust created with the assets of a disabled person who is under…

You are never too young to draft your estate planning documents.  I am sure you would agree that anything can happen to anyone at any time.  There are several cases in my office that can be used for illustrative purposes. A few months ago, I was retained by the family of a 43-year-old male who…

Annuities are very complicated and often sold to individuals without considering their interplay with Medicaid eligibility.  While there are various forms of annuity contracts, an annuity is either qualified or non-qualified. A qualified annuity is like an individual retirement account in that Medicaid will not take the principal balance of the annuity so long as…

Generally, in determining the Medicaid eligibility of a person receiving nursing facility services, any gifting of assets made by the applicant within the “look back period” will render the person ineligible for Medicaid for a period of time equal to the value of the gift divided by the regional rate.  Under current law, the look…

Your spouse might be able to access your bank accounts but he will be very limited in doing much else. A properly drafted power of attorney and statutory gifts rider is an absolute necessity. When an elder law attorney prepares a power of attorney and statutory gifts rider, powers are included that are not readily…

Actually, yes!  When someone dies, the first step is to determine if the decedent owned any assets individually, meaning there were assets with no joint owner or designated beneficiary.  A very common fact pattern is where a surviving spouse dies owning a house.  Once it is determined that individually owned assets exist, someone needs to…

No.  When someone appoints you as his/her attorney in fact (people casually refer to their title as “power of attorney”) to handle their financial affairs, you are acting as an agent to that person.  You are called a fiduciary and fiduciaries must act according to certain fiduciary standards.  For instance, a fiduciary must act in…

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