New York Estate Planning & Elder Law Blog

WHAT IS LOST AFTER DIAGNOSIS OF DEMENTIA

Published on: November 7, 2015 | by Ettinger Law Firm

LEGAL RIGHTS

The highly charged trial of former Iowa legislature Henry V. Rayhons is now over. Five months ago, jurors voted to acquit the Defendant of third degree sexual assault. One of the voting jurors was a local reporter who wrote a revealing and no doubt personally difficult article. The article and ultimate outcome of the case should give pause to anyone who thinks that our system of justice is broken. By all accounts, the jurors all made their decision based on the evidence and took their job seriously and with the utmost integrity. The larger question that the case spawns, which can now be discussed given that some time has elapsed, is the issue of what rights do dementia patients retain? More particularly, can a dementia patient consent to intimate contact with loved ones? For example, can a husband of over 50 years, in the privacy of his wife’s room embrace her in an intimate and loving fashion? What if the grandchild gives the same loving embrace? Can the spouse sleep in the same bed without concern for legal liability? Leaving the issue of intercourse aside, sexual expression is perhaps one of the most profound and important rights.

MEDICAL AND ETHICAL PERSPECTIVE

LACKING IN MENTAL CAPACITY AND FAMILY, WHO DECIDES

Published on: November 6, 2015 | by Ettinger Law Firm

On June 24, 2015 a trial Court in California invalidated a California law as unconstitutional, which created a default surrogate decision maker when that individual is mentally incapacitated and does not have a family member, or anyone else for that matter, to make key decisions for them. The law and the issues addressed are not limited to California. Even though by definition, the law deals with individuals with no proxy decision maker, that does not mean someone did not exist in the past or could not step up to become one. Proxy decision makers pass away themselves, they move or simply just fade away and no longer attend to their responsibilities. New York law deals with these issues in a rather collaborative way. In 2010, New York enacted the New York Family Health Care Decisions Act, which creates a decision ladder for medical professionals who need to know with whom to check with for certain critical decisions. It was designed to avoid the parade of horribles that the California law dealt with. Certainly, no one wants a loved one or relative, even a distant relative, to have to rely on these provisions; they are used as a last resort.

DETERMINATION OF INCAPACITY

In the absence of a health care proxy, The New York Family Health Care Decisions Act begins to shape decisions, for all intents and purposes, at the time of the determination of incapacity.

LONG TERM COMMUNITY CARE REPORT CARD

Published on: November 4, 2015 | by Ettinger Law Firm

2015 REPORT ON LONG TERM COMMUNITY CARE FACILITY SAFETY AND INTEGRITY

On April 21, 2015, the Long Term Care Community Coalition issued a 30 page comprehensive report to document and report on the state of the long term care community. It was a report card of sorts, where the report notes “significant problems in resident care, quality of life and dignity are pervasive across the country.” Indeed, the report gives a failing grade for enforcement of the robust laws that provide promises of dignity and superior care. More specifically, the report notes that long term care facilities have “inadequate care staff” and provide subpar care, lacking in dignity “because there is nothing stopping them from doing otherwise.” There are too often little or no consequences when the facility fail to live up to the standards that they are contractually bound to, even when these shortcomings result in “significant suffering.”

The Coalition wrote an additional report focused on New York for various reasons. New York’s findings can be found here. The New York report is even more detailed, at least as judged from the fact that it is 18 pages longer than the national report.

WHAT OF MY ESTATE PLANNING IF MOVE TO ANOTHER JURISDICTION?

Published on: November 3, 2015 | by Ettinger Law Firm

Say you live here in New York and made significant plans to avoid probate. You have a will, own a business that you pass on and even set aside significant assets for your grandchildren. You worked hard to put your financial house in order. Now you find out that you have to move to another jurisdiction for work and will likely be there for some time. More likely than not your will and other plans to avoid probate will survive as legally enforceable documents in the new jurisdiction. Nevertheless, you worked hard for your plans to be finalized and do not want to live with the idea that “more likely than not” your plans will be followed. As such, it is always best to check with a local estate planning and review your plans.

FACTORS TO CONSIDER

There are a few things to keep in mind when it comes to decisions on where to live and changes in law and nuances on how to handle the change. Most laws are relatively uniform throughout the country. Procedure may be different but substantive laws are similar in many cases. Except when they are not. Some issues have two different ways of handling things. A good example is common law states versus community property states. Community property states are generally Rocky Mountain states and west (Louisiana and Wisconsin are the exceptions). There are some important differences in their approach to passing on assets between the two camps. Another factor to address is that you need to clarify your residence or domicile or you may end up paying taxes in two different states, as what happened to the heir to the Campbell’s soup fortune in 1939.

CAN AN HEIR BORROW AGAINST INHERITANCE?

Published on: October 31, 2015 | by Ettinger Law Firm

Perhaps your prodigal child wants to start a law firm or a medical practice and needs start up funding. You have some money set aside for your children’s and grandchildren’s inheritance but agree to loan them the money out of this fund. It’s not uncommon for these monies to be secured by a promissory note, even though many parents would not strictly enforce its terms. If the promissory note is not paid off by the time the parents pass away, it becomes an asset of the estate that must be accounted for. If it is a significant amount of money, the IRS or state tax authority will impute interest. If the parent decides to forgive the loan, that is usually considered taxable income to the child.

LOAN DOCUMENTS AND ESTATE DOCUMENTS CONTROL

The parent controls these issues and to the extent that it can be controlled during his or her life, they should be. Loans should be in writing, with the repayment schedule outlined. Most loans obtained on the open market have extensive outlines of the remedies that the creditor reserves. These are not necessary unless the parent actually intends to exercise these remedies. If no remedies are outlined in the document, the parent always has the right to document his or her intentions on how the estate should treat these loans.

DONATE MY BODY TO SCIENCE

Published on: October 29, 2015 | by Ettinger Law Firm

Donating an organ or even a whole body for scientific study or medical education is a relatively common event, which permits a person with perhaps a rare or not well understood disease to contribute to medical science. Even if the person passes without a disease or any unique characteristics, medical schools need these volunteers for very important work. Some people see their act as an act of charity, a way of giving a gift to society. Organ donation helps to reach even more people by providing spare parts for surgeons, for those who need a replacement organ or tissue. It has been estimated that 114,000 Americans are awaiting organ transplants and that one person is added to the list every 11 minutes and that each year 6,600 people die each year while on the organ transplant list.

ANATOMICAL GIFTS PERMITTED VIA WILL

In 2005, the New York legislature passed a law which made it easier to give an anatomical gift. Organ donation is easy enough now, as it can be a mere check the box designation on your driver’s license. No additional signatures or witnesses are needed. New York further permits a person to validly donate their organs or their whole body by way of will. If the will is later invalidated, the donation is considered valid and any physician or medical school acting on the gift is shielded from liability. Some people with religious or moral objections to donating their body may still decide to donate organs without violating their conscience or religion. Even with these provisions in place, it is still best to discuss these decisions with your family and loved ones.

INTELLECTUAL PROPERTY IN ESTATE PLANNING

Published on: October 29, 2015 | by Ettinger Law Firm

Intellectual property is an umbrella term that includes several different specific areas of the law. Trademark law, patent law, copyright laws and trade secret laws are all examples of intellectual property laws. The constitution guarantees that the federal government has exclusive jurisdiction over patent and copyright laws. Patent and copyright laws are designed to “promote the progress of science and useful arts.”

COPYRIGHTS, OWNERSHIP, HEIRS AND ESTATE PLANNING

Copyrights created after 1978 are generally good for the life of the author plus 70 years. When written for a corporation, so called work for hire copyrights, the copyright is valid for 95 after first publication date to 120 years after the work is created. To pass a copyright on to heirs, you must be careful to do it the right way. If a painter passes a painting on to an heir the right to control the copyright of that painting does not necessarily follow. The painter will have only passed on the original painting. To pass a copyright, the trust, will or other document must specifically mention that the copyright to the painting passes to the heir. It is entirely possible for a painter to pass the original work to a friend or partner but pass the copyright on to another person.

Back to the Basics – Probate Administration

Published on: October 25, 2015 | by Ettinger Law Firm

The death of a loved one is an especially traumatic event. Lives can be upended and surviving family members and friends can be left feeling lost and confused about how to carry on. This is especially true when the death occurs suddenly or under tragic circumstances. Unfortunately, the law does not provide grief-stricken family and friends much time to mourn their loss before important work must be done. This important work involves admitting the deceased’s estate to probate and then administering that estate.

In New York and elsewhere, an individual who dies with a will or similar document in place is said to die testate. If a person does not have such a document in place, the person dies intestate.

Dying Testate: If the deceased left a will, the first step of administering the estate involves probating the will, or proving the will’s validity. Usually this involves simply introducing the will into the appropriate court. Once the will has been probated, the executor or administrator named in the will is tasked with carrying out the wishes of the deceased as expressed in the will, settling any lawful debts the deceased must pay, and providing an accounting or report to the court showing that the deceased’s assets were dispersed according to the terms of the will.

Health Care Power of Attorney Good Planning Tool for Seniors & Singles

Published on: October 19, 2015 | by Ettinger Law Firm

News reports reveal that America is increasingly becoming a nation of single people. For adults navigating life solo, careful planning about who will make health care decisions on their behalf in the face of unforeseen, incapacitating illness is a smart decision, especially for singles who are childless, have minor children and/or are estranged from their families. One available option is an advanced directive called a Durable Power of Attorney (DPOA) for health care. It allows singles to appoint an agent to step in and carry out their wishes when they are unable to make critical medical decisions for themselves.

Most states have enacted advanced directives legislation. This contract allows a person, called a principal, to designate to a selected agent the power to make decisions about the course of medical care should the principal become incapacitated. Decisions covered by a DPOA for health care include such things as the power to consent to or withdraw treatment for physical or mental conditions, or to determine when to initiate or terminate life-sustaining treatment.

Health care DPOA gives singles autonomy

Using Beneficiaries as Part of Your Estate Plan – Part II: Considerations

Published on: October 13, 2015 | by Ettinger Law Firm

An earlier post on this blog provided an overview of using beneficiary designations as part of your estate plan. Recall that beneficiary designations are a way to transfer property automatically upon the death of the asset owner outside of the probate process. This post is part II of that discussion, and include some of the pros and cons of using beneficiary designations, as well as a few special considerations related to certain forms of beneficiary designations.

Pros and Cons of Using Beneficiary Designations

Beneficiary designations can be a simple and effective mechanism to transfer your property in much the same a will or trust distributes your property. The advantages of beneficiary designations include the ease in which it can be set up and the speed and in which the beneficiary receives the asset. Also, the owner of the asset has flexibility to designate any of combination of shares to any number of primary and contingent beneficiaries. Beneficiaries may be individuals, trusts, charities, or the property owner’s own estate by way of its personal representative.