New York Estate Planning & Elder Law Blog

Keeping an Eye on Upcoming Supreme Court Cases

Published on: September 27, 2012 | by Ettinger Law Firm

Late September is well-known as the official start of autumn. In the legal world, it also marks the beginning of the new United States Supreme Court term. Many legal observers keep close watch of court actions at this time to figure out what major issues might be decided in the upcoming year. That is because the Court is currently deciding exactly what cases to take for the upcoming term (which begins in October). Thousands of appeals are filed, but only a small fraction will actually be accepted. In many ways it is much harder to get a legal case heard than it is to actually win the case in front of the Court.

Some cases that the high court might hear this year could have implications on elder law or estate planning issues. The most high-profile of these related to same-sex marriage. There are two separate cases that the Court might take, both which would have different effects on the rights of same-sex couples–and their planning.

1) Constitutionality of DOMA: The Defense of Marriage Act (DOMA) has long been a bane for same-sex couples seeking equality in their planning. The law defines marriage as only between a man and a woman for federal purposes. That means that even couples legally married in their state, like New York, receive no federal recognition of their union. Appeals Courts have consistently found DOMA unconstitutional. The law continues to force same-sex couples to work around their lack of recognition of their union in estate planning and long-term care strategizing.

Free Lunches, Legal Information, & Long-term Care Insurance

Published on: September 26, 2012 | by Ettinger Law Firm

A new book is being released entitled “The Adventures of a Free Lunch Junkie.” The author, an 86-year old retired man, wrote the interesting tome based on his goal of eating at 50 “free lunches” over the course of a year. Most of the lunches were obtained during seminars, explaining concepts like estate planning, elder law, financial planning and more. Local seniors obviously know how popular these events are for learning about issues that may affect your latter years. In fact, many clients at our firm first learned about our services after attending one of these seminars.

The author is quick to point out that the book is not an “expose” but a simple satire. It was recently summarized in a LifeHealthPro article.

The book is chalk-full of humor, often highlighting the good (and bad) of the specific meals he received. However, the author importantly notes that there was one free seminar he attended that hit home on the need to plan for senior healthcare. He notes that while he was attending many events as part of his book project, the lessons shared were not ignored. In particular, he was convinced of the immense value in having a long-term care insurance policy. The elder law attorneys at our firm often recommend LTCI as part of prudent senior planning.

Man Tries to Kill Senior Girlfriend in Nursing Home for Financial Reasons

Published on: September 25, 2012 | by Ettinger Law Firm

It is perhaps every senior’s worst nightmare: a dispute over their finances influences the care they receive in their later years. It seems self-evident that nothing should get in the way of making medical and caregiving decisions based on maximizing a senior’s quality of life–not maximizing an inheritance for others once a senior passes on. Unfortunately, case after case demonstrates that some elderly community members suffer in their later years unnecessarily for financial reasons–not because they cannot afford proper care but because other want their money.

This confluence of elder law and estate planning was perhaps most vividly illustrated by a case discussed this week in SF Gate.

According to the story, a 63-year old woman was staying at a local care center because she was not able to care for herself at home. The details of her family situation are not known, however, she had been dating a 67-year old man for the past three years. Unfortunately, the boyfriend appears to have been motivated in the relationship mostly by the way that it could benefit him financially.

Death & Student Loan Obligations

Published on: September 24, 2012 | by Ettinger Law Firm

Not many years ago student loans and estate planning were rarely discussed in the same sentence. That is because in decades past far fewer individuals took out student loans and, even when they did, the size of the loans were smaller. Things are changing, however. Higher education is becoming more and more crucial to long-term employment and the cost of that education is increasing. These changes mean that more individuals have to take student loan obligations into account when conducting long-term financial planning. Those loans may the planner’s own loans or (even more likely) loans for children on which they co-signed.

In any event, more and more families have to take these issues into account in long-term planning. One issue on which there is much confusion is the discharge (or lack of discharge) of these obligations upon death.

Student Loan Obligations & Death

Confusion, Disagreement Surrounding Painter Thomas Kinkade’s Wishes

Published on: September 21, 2012 | by Ettinger Law Firm

An estimated one in every twenty homes contains a copy of the work of Thomas Kinkade–the painter best known for traditional works of gardens, cottages, streams, and small town centers. Considering the mass marking and popularity of his work, Kinkade was able to acquire a considerable fortunate over the years. Unfortunately, Kinkade died this April at the age of 54. Like many others in his situation, disagreement has reigned in the resolution of his estate.

Kinkade was married, but his wife filed for divorce two years before his death. He has four children with his wife. For the last year and a half before his death he lived in his home with his girlfriend.

Estate Dispute

Political Bequests in a Will

Published on: September 19, 2012 | by Ettinger Law Firm

When an individual uses only a will (instead of a trust) and does not have professional advice, there is a greater chance that the intended beneficiaries will not receive the property that the testator (the person who creates a will) wanted them to receive. For one thing, the will itself may not be executed properly. At other times, the beneficiary may pass away before the testator’s death without the will being updated. At still other times there may be unique complications with the ability to give in certain ways. Take, for example, political gifts.

Leaving Money to a Political Party in a NYC Will

Many community members have strong attachments to a political party and may want to leave part of their estate to that party. However, this presents some complications, because there are special rules–campaign finance laws–that often apply to what gifts can be given to these parties (or candidates). It is crucial to take those rules into account. Otherwise, the final decision is left up to the court, with extreme uncertainty as to where the money will actually go.

The Bernard Matthews Case: Putting a Mistress in a Will

Published on: September 14, 2012 | by Ettinger Law Firm

Last week AOL Money shared the story of yet another estate planning feud–this time involving Turkish business magnate Bernard Matthews who died two years ago when he was 80 years old. Like many others, Matthews family life did not quite fit the traditional mold. He married his wife decades ago and soon adopted three children. Later on he had a relationship with another woman who bore him a son. Still later he started a long-term relationship with a third woman, Odile Marteyn. He remained in that relationship with Marteyn until his death. Through it all he never divorced his wife, and did not marry Marteyn after his wife’s death.

As it is easy to guess–the convoluted family arrangements spawned bitter feuding following Matthews’ death.

From the information that has been provided so far, it seems clear that Matthews’ wished to have part of his estate go to Marteyn. The estate is worth roughly $64.5 million. Part of that includes a villa in St. Tropez worth about $19 million. Matthews wrote a letter to his children outlining his wishes, noting that Marteyn “has supported me unfailingly for many years and particularly so during my recent illness. Without such support, I might not have been able to continue directing our family company for our mutual benefit.”

Proposed New York Medicaid “Personal Care” Cuts Halted By Court

Published on: September 13, 2012 | by Ettinger Law Firm

Not long ago a few residents received some disturbing news–the New York Medicaid support that they counted on to survive was being cut back. Many of these community members had severe disabilities, needing help with every aspect of their life, from dressing and bathing to eating and traveling. Many seniors and those with disabilities receive help from at-home care workers around the clock so that they are able function in the least invasive setting possible despite their challenges.

Yet, in an apparent effort to recoup funds given back to federal officials following an overbilling case that settled in November, the New York City Human Resources Administration decided to alter the way some personal care was provided to residents. In particular “split-shift” at home care was curtailed. This care is provided to those who need help 24 hours a day, with two different care workers each taking a 12 hours shift. In it’s place, the city wanted to provide just a single care worker who lived with the Medicaid recipient.

New York City Medicaid Lawsuit

Fundamentals of Estate Planning: Naming a Trustee

Published on: September 12, 2012 | by Ettinger Law Firm

A trust is the central legal tool used to provide the flexibility and protection most residents use when planning for their long term financial, inheritance, and health care needs. There are many different types of trusts which provide different benefits to residents; each type comes with its own rules. However, one common theme is that the when creating a trust a trustee must be named. Deciding upon the right trustee in your case is crucial to ensure that things proceed as you intend when you are gone.

The exact role of a trustee varies, depending on the long-term plans of the individual who creates the trust. Yet, in general the trustee will manage the assets and make distributions from it according to predetermined rules and wishes. Some trusts will last for decades, and so the choice can truly can set the course for one’s long-term legacy.

A Wall Street Journal post this week touched on the importance of the trustee selection topic, and provided a list of key factors that should influence the final decision, including:

Can Doctors Protect Retirees from Fraud?

Published on: September 11, 2012 | by Ettinger Law Firm

As more and more information emerges about the true scope of senior financial exploitation, senior care advocates are leaving no stone unturned when it comes to tackling the problem. The latest statistics from MetLife suggest that, amazingly, one out of every five seniors over 65 years old have already be victimized financially in some way. At a general level it seems that prevention can take three forms: better educate seniors to stop it, better educate interested third parties to identify problems, and improve law enforcement efforts to catch wrongdoers.

Ensuring seniors are able to spot scams themselves seems like an obvious way to cut the problem significantly. However, that comes with many challenges, because the entire issue is rooted in seniors inherent vulnerability. Those with early stages of Alzheimer’s and other dementias are often the most at risk of being taken advantage of. For that reason, many suspect that intervention of third parties, like elder law attorneys and financial professionals, is crucial.

New Advocate to Prevent New York Elder Fraud