Elder Law

When Should You Get A POLST Order?

Published on: December 5, 2019 | by Ettinger Law Firm

Is an advance directive enough to ensure that your wishes are followed when you cannot express them because of disease or illness that affects your ability to make decisions for yourself? Physician Orders for Life-Sustaining Treatment (POLST Orders) for short, are often confused with advance directives. These medical care planning tools are very different from each other.

What is an advance directive?

An advance directive consists of a living will and a health care power of attorney. Every adult, regardless of age, should have one and update them from time to time, especially following a diagnosis of a serious medical condition.

Changes to Nursing Home Compare Facility Information

Published on: November 27, 2019 | by Ettinger Law Firm

Earlier this month the Center for Medicare Advocacy and the Long Term Care Community Coalition made a joint announcement regarding changes to the Nursing Home Compare website. Nursing Home Compare is a service provided by Medicare.gov to help prospective nursing home residents or nursing home residents and their families obtain information about every Medicare and Medicaid certified nursing home in the country.

A nursing home is a place for people who can’t be cared for at home and need 24-hour nursing care. Over 15,000 nursing home facilities around the country will be affected by this change. Nursing home residents and their families will be able to easily identify if the nursing home they are considering has a history of resident abuse, neglect, and exploitation of its residents.

What’s happening?

Can Debt Collectors and Creditors Garnish My Retirement Benefits?

Published on: November 17, 2019 | by Ettinger Law Firm

More seniors than ever are carrying high debt into retirement. Managing high debt simultaneously with managing the cost of daily living and medical care on a fixed income is a recurring problem in many households. The amount of debt burden has skyrocketed over the past decade.

The National Council on Aging commissioned the Survey of Consumer Finances to study debt and how it impacts seniors economic security. The key findings are listed below:

Percentage of households headed by an adult 65 or older with any debt increased from 41.5% in 1992 to 51.9% in 2010 and then to 60% in 2016.

Understanding the Differences Between Revocable and Irrevocable Trusts

Published on: November 4, 2019 | by Ettinger Law Firm

Adding trust instruments to your estate plan can help a surviving spouse and other beneficiaries have access to assets while the rest of the estate is wound up. Especially if there are young children or children with special needs ensuring continuity of financial security to survivors is at the forefront of individuals making end of life decisions. There are many types of trust instruments, such as a marital “A” trust or a bypass “B” trust. These trusts can also be revocable and irrevocable.

Revocable or living trusts

A revocable trust permits the passing of assets outside of probate, the legal proceeding that winds up and settles the estate of the deceased person. Also known as a living trust, you (the grantor) are able to retain control of the assets during your (the grantor’s) lifetime. A living trust is flexible. They can be dissolved at any time should you wish to change the beneficiary or you yourself need access to the trust assets for any reason. Once you (the grantor) dies, the living trust becomes irrevocable. A living or revocable trust is subject to estate taxes, unlike an irrevocable trust. Lastly, you are able to name yourself the trustee or co-trustee and retain complete ownership and control over all of the trust assets during your lifetime.

Mistakes to Avoid When Establishing Trusts, Part 2

Published on: November 1, 2019 | by Ettinger Law Firm

This is the last post in our in-depth series of trusts and why and how to include them in your estate plan. For prior topics, click here. We were last discussing common mistakes we see in the establishment of trust instruments. Our last post examined failing to fund the trust. The next topics surround beneficiary designations and policy titling.

No. 3 – Unintended beneficiaries of retirement accounts and life insurance policies

Trust funds include life insurance proceeds and other accounts and policies payable to beneficiaries. If those accounts and policies do not properly designate your trust as a primary or contingent beneficiary, then those funds will pass to the beneficiary directly, disregarding any of your instructions from the trust document. The result of the distribution may be that your beneficiary receives more or less than you attended or sooner than necessary, defeating the purpose of the establishment of the trust.

Mistakes to Avoid When Establishing Trusts, Part 1

Published on: October 28, 2019 | by Ettinger Law Firm

We’ve been examining adding a revocable (a/k/a living or inter vivos) trust or irrevocable trust to your estate plan. Trust instruments are an important part of your estate plan, particularly if you have a spouse and young children you wish to provide for upon your death. When mistakes are made, in establishing or setting-up a trust, the errors are borne by your survivors.

When problems arise in trusts they tend to involve issues with trust funding, policy titling, and beneficiary designations. When neglected these issues have their way of creeping into the lives of your loved one and will require significant amounts of money and time being spent that could have otherwise been avoided. What follows is a primer on the top 4 scenarios your survivors will need to get through to correct any problems associated with trust funding, policy titling, and beneficiary designation.

No. 1 – Avoiding probate

How to Deal with Out-of-State Assets in an Estate Plan

Published on: October 12, 2019 | by Ettinger Law Firm

It is not uncommon in our region for people to own real property outside of New York State. Increasingly, people own other home or investment properties out of state and even out of the country. A will generally disposes of all of an individual’s assets. The rules are different however if the asset is real property. There are three rules to keep in mind and carefully consider when dealing with assets outside of New York as part of your estate planning process.

Consider the following rules when drafting or revising your will:

If the out of state asset is real property it is vital to develop your estate plan in conjunction with the law in that locality. Real estate assets are governed by the laws of the country or state in which they are situated. This means that the law of the other locality will determine if the New York will is recognized as valid there with respect to the real property.

Safeguarding Estate Planning Documents

Published on: October 8, 2019 | by Ettinger Law Firm

Clients call this law firm asking for a copy of their will or other estate planning documents because they cannot locate the original all of the time. Our first response is to tell them that if they cannot find the original document, then they do not really have a will. In New York, only a document bearing the original signature of the testator and witnesses can be submitted to probate. While a photocopy or electronic copy of the document may exist, it is not the original and will be rejected by the Surrogate’s Court when seeking to have an estate probated. It is not until the loved person becomes admitted at the hospital under an emergency or that person passes that those left behind start the search for estate planning documents. Another overlooked catastrophic event is damage or loss of estate planning documents after a natural disaster.

Domestic weather events, including nor’easters, tropical storms, and hurricanes often bring a great deal of water to the shorelines and shore communities of New York State. Emergency plans should include provisions for the preservation of estate planning documents. When people are asked or ordered to evacuate their homes, because of emergency weather conditions, they often only leave with the clothes on their backs and their loved ones. Not all temporary shelters for example, allow people to bring their pets with them and many times the pets stay behind. The last thing on peoples’ mind, when evacuating their homes, is collecting and preserving estate planning documents.

What are estate planning documents?

Do You and Your Partner Have Identical Wishes Regarding Your Assets?

Published on: October 4, 2019 | by Ettinger Law Firm

Some couples approach their estate planning lawyer seeking advice on creating a joint will. Generally, the estates lawyer will frown upon such a suggestion because in practice, joint wills are fraught with problems. A joint will can be created by a married couple and is a single will. A joint will is signed by the couple and in it contain provisions leaving all of their assets to each other. The reason why joint wills are not more commonly used as an instrument to bequeath gifts upon death is that usually, even in longtime marriages, most married couples do not have identical wishes regarding their assets.

Joint tenancy vs. tenancy in common

Married couples generally own real estate assets as joint tenants. A lesser form of home ownership is a tenancy in common. The key difference between the two is their effect on the distribution of assets at the death of one of the partners. Joint tenancies contain a right to survivorship. This means that at a partner’s death, their share of any joint assets become the sole property of the surviving partner by operation of law and outside any asset distribution of a will for example. In a will, assets held as a tenancy in common are distributed according to the terms of each person’s will. Tenancy in common may be a better ownership form where couples wish to gift or bequeath their assets or shares in an asset in different ways. This may be an attractive form of ownership for couples with children from a prior marriage particularly if the new spouse has no children of his or her own.

What are Long-Term Care Hospitals?

Published on: September 26, 2019 | by Ettinger Law Firm

Despite the prevalence of aggressive, life-prolonging medical procedures, such as feeding tubes, ventilators, and dialysis, once a patient enters a long-term care hospital, L.T.C.H. for short, more than one-third of them will never return home. According to the New York Times, the median survival for such patients is 8.3 months. Much of the time will be spent in a combination of hospitals, skilled nursing home, and specialized rehab facilities.

The high and low spots

Patients in their 60s with musculoskeletal diagnoses, like complications from a hip fracture or joint replacement, do better in L.T.C.H. institutions then people over 80. A high number of patients that are transferred to L.T.C.H facilities from hospitals have undergone a medical procedure called a tracheostomy. Also called a stoma, a tracheostomy is a surgical opening in the windpipe to accommodate a breathing tube that is attached to a ventilator. This procedure is commonly performed on patients who suffer from chronic and severe lung disease and neck cancers among other neck and voice box disorders.