Trusts and Estates Wills and Probate Tax Saving Strategies Medicaid

Schedule an in-office, Zoom or phone consultation Here.

It has been said that life is a journey, not a destination. So it makes sense that in our last days, on our final journey, we should strive to have a good one–a bon voyage.

While talking about end of life issues–particularly our own–can sometimes be uncomfortable, the best way to make sure that your end of life wishes are honored is to lay them out in writing and make sure that your loved ones are aware of them. Don’t miss the opportunity to have a bon voyage–take the opportunity to set out your end of life wishes and take control of your journey.

Unfinished Life Matters

Yesterday we discussed the various programs, agencies, options available to help families with aging seniors. In addition to assistance programs, it is important for caregivers of older adults to make sure that their loved one’s wishes will be met at the end of life or if the older adult becomes mentally incapacitated. Preparing for management of finances also is important. These matters can be addressed in the following documents–

Living Will- a living will is a written statement about an individual’s wishes regarding medical treatment should he or she become incapacitated. This includes statements about a person’s wishes regarding “Do Not Resuscitate” (DNR) orders, intubation, feeding tubes and hydration, and other critical care matters.

Health Care Proxy (also called Durable Power of Attorney for Healthcare)- The Health Care Proxy is a written document where the older adult appoints someone he or she trusts (such as a family member or close friend) to decide about medical treatment for the older adult if he or she cannot make that decision. The agent is instructed to act on the older adult’s behalf and in his or her best interests.

Being a caregiver to an older adult can be very rewarding for both the caregiver and the person receiving the care. However, being a caregiver also is hard work. It’s hard mentally, emotionally, physically and sometimes financially, as well. However, certain programs and actions can sometimes make caring for an aging parent less difficult.

Assistance Programs

There are a variety of benefit program and support services are available to older adults who need care. Tapping into these sources can help free up financial resources that are otherwise being provided by an adult child caregiver. Programs vary by state, but here are a few places to start–

When American Top 40 legend Casey Kasem’s daughter, Kerri Kasem, appeared in front of a Los Angeles County Superior Court Judge this past Monday, she told the Court she believed her 82 year old father had been “kidnapped“. Prior to the disappearance the radio icon, who suffers from Lewy body dementia, had been residing in a Santa Monica nursing home receiving 24-hour medical care. Kerri Kasem feared that removal from the nursing facility allegedly by Kasem’s wife, with whom Kasem’s children had been involved in a long-time feud, threatened his health and safety considering his medical condition. Kerri Casem was immediately granted a temporary medical conservatorship, filed a missing persons report with the Santa Monica Police Department, and Kasem was ultimately located on Wednesday in Washington State with his wife. Kasem’s children suspect Jean absconded with their father out of fear that they would coerce him into changing his will.

Casey Kasem’s family saga is a public and an extreme example of how contentious familial relationships can become when disagreements as to the health care of an older family member arise. Medical Conservatorship is a legal concept in the United States where a guardian is appointed by a court to manage the healthcare decision-making concerning an incapacitated or individual. As explained by the New York Department of Health, an individual is determined incapacitated when an attending physician finds to a reasonable degree of medical certainty that the patient lacks ability to understand and appreciate the benefits, risks and consequences of proposed health care. The individual must be able to make an informed decision as to health care. If an individual already has in place an advanced healthcare directive, the decision-making about the individual’s medical care in the event of sudden incapacity, or incapacity due to old age, is already taken care of.

But oftentimes, there is no directive document. That is where the conservatorship arises. Conservatorship is a legal arrangement that requires appointment by a court, granting authority to a legal decision-maker to act on behalf of the incapacitated family member. In addition, a conservatorship provides a legal process where major healthcare decisions, for example removal from life support, must be approved by the court. In the absence of a healthcare directive, conservatorship grants family members a clear legal determination of authority when it comes to medical care of an incapacitated family member.

Recent economic times caused many people to take on a lot of home projects that they otherwise would have hired out to a handyman. While some do-it-yourself (DIY) projects turned out alright, people often found that seemingly easy projects were significantly more complicated than they had anticipated. Worse yet, sometimes these DIY projects even end with disastrous consequences, requiring calling in professionals to fix the job at greater hassle and cost than would have originally been incurred if the professional had been called in the first place.

The same can be said for estate planning.

DIY Estate Planning “Kits” And Pre-Packaged Computer Software Are Not The Answer

There is growing discussion about elder caregiving in America and across the world. As the population ages, much more attention is being paid to how seniors are treated when their health falters and their ability to care fully for themselves wanes. In general, there is a rough assumption that many cultures around the world have closer family units, while here in the United States we are more likely to pay professional caregivers.

That assessment is somewhat misleading, because even in the U.S., younger generations (adults children) continue to provide the majority of care to seniors. That is not to say that use of nursing homes, assisted living facilities, and at-home caregivers is not common. But, elder care is simply a reality for tens of thousands of families throughout New York.

Who is Providing Care?

For many New Yorkers, the term ‘trust‘ continues to invoke visions of the super wealthy. Similarly, terms like “trust fund baby” are used to refer to spoiled, rich individuals who do no work on their own and simply live off their parents savings. The connotation is always negative.

As our estate planning attorneys often explain, however, trusts are critical tools for families of all income levels. And there is no reason why children who benefit from the trust suddenly become slovenly or without their own motivations. For one thing, many trusts are not large enough to offer income that can last a lifetime. Even when the trust is large, conditions can be placed on child-beneficiaries which can help prevent them from relying solely on an unlimited stream of income.

Incentivizing a Trust in New York

To challenge the validity of a prenuptial agreement, one looks to see if any of the above elements were abused or not satisfied. This can include–

1. Duress- A prenuptial agreement can be voided if one party was pressured or coerced into signing it. Duress also can be shown if the agreement was presented too closely to the wedding date and is not given enough time to think about the terms of the agreement before signing it. Some sources suggest that agreements signed within 60 days of the wedding may be challengeable based on duress. For example, duress has been shown where the wedding is only days away, the invitations have been sent, large sums have been expended, and cancelling the wedding would be costly and embarrassing. Another example is a case where the groom presented a prenuptial agreement just before the bride’s visa was to expire and told her to sign or the wedding would not take place prior to the visa’s expiration date.

2. Lack of mental capacity- Lack of mental capacity can be shown if the agreement was signed when one party was drunk or under the influence of drugs.

Elder financial exploitation is a nuanced term for a growing problem–the financial abuse of the elderly.

Financial abuse of the elderly is a growing concern in today’s society. There are more senior citizens now than ever before and many of them are institutionalized or require help to get by in life. These dependent situations create an environment where the elderly can be taken advantage of financially.

What Is Financial Abuse?

Every year, over 2 million people get married in the United States. In the same year, almost 900,000 people get divorced. Broken down even further, approximately 50% of all first marriages, 67% of all second marriages, and 74% of all third marriages end in divorce. With these statistics, it should be of little surprise that the use of prenuptial agreements is on the rise. However, one surprise may be that more agreements are being requested by women.

In New York, the state statutes have little to say about prenuptial agreements. Section 3-303 merely says, “A contract made between persons in contemplation of marriage, remains in full force after the marriage takes place.” This is because prenuptial agreements, by their nature, are highly customized and tailored to the couple who is entering into it.

In general, a valid prenuptial agreement requires the following–

Contact Information