New York Estate Planning & Elder Law Blog

DOMA Challenge Likely Headed to U.S. Supreme Court

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

http://www.washingtonpost.com/lifestyle/style/edie-windsors-fight-for-same-sex-marriage-rights-continues-even-after-partners-death/2012/07/19/gJQARguhwW_story.html

In the wake of the passage of marriage equality laws in our state, many assumed that the issue was settled for New York’s same-sex couples–they would be treated the same as all other couples in our state. Not so. Our New York estate planning attorneys are acutely aware of the continued inequalities faced by these citizens. The problem is rooted in federal treatment of these couples with clear estate planning ramifications.

A 1996 law–the so-called, “Defense of Marriage Act” (DOMA)–forces the federal government to treat same-sex married couples differently than others. Breaking with long-standing tradition of recognizing all marriages legal in each states, the federal government explicitly defined marriage as not including same-sex couples. As a result, same-sex couples married legally in individual states are still considered strangers by the U.S. government. Obviously, this split recognition has negative consequences for the involved couples. All estate plans for these couples must continue to take this into account.

Federal Bill to Protect Seniors Advances in Senate

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

Over the past two years there has been increased focus on the scourge of elder abuse in all its forms. Yet, the awareness effort has not led to any federal legal changes to help protect seniors from things like physical neglect at home to senior financial exploitation. That may soon change.

According to a report from the West Central Tribune, a bill in the U.S. Senate to help prevent these harms recently advanced out of the Senate Judiciary Committee. It passed out of committee on a 15-3 vote and will now be sent to the full Senate for approval.

Known as the Guardian Accountability and Senior Protection Act, the measure strengthens the tools available to states to provide proper oversight of guardians and senior conservators. This focus on oversight is critical, as New York elder law attorneys know that, at least when it comes to financial abuse, a lack of third-party monitoring allows the problem to go unnoticed.

Institute of Medicine Report: 1 in 5 Boomers With Mental Health Issue

Published on: July 18, 2012 | by Ettinger Law Firm

There is a tendency to underestimate the actual risk of suffering mental and physical disabilities as one ages. Everyone knows that seniors often face physical issues and others suffer from cognitive problems, but most relatively healthy individuals convince themselves that they are less likely to face those concerns down the road. In our area, this self-denial often means that individuals put off creating a New York elder law estate plan. The consequence is that many only look into the issue after suffering an emergency. Available options are always less attractive when planning in the face of immediate need.

Everyone needs to plan, regardless of their current mental and physical state. That fact was made even more evident following the release last week of a new report from the Institute of Medicine. Entitled, “The Mental Health and Substance Use Workforce for Older Adults: In Whose Hands?”, the project was commissioned by Congress to better understand the long-term mental health and wellbeing needs of seniors. The full report can be read HERE.

What were the findings?

Life in an Assisted Living Facility

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

This week the Washington Post published an interesting, extended story seeking to share information on life in assisted-living facilities. The article, written by a man living in one of these homes, paints a grim picture of life for seniors needing extra day-to-day care. The text was adapted from a literary journal, The Feathered Flounder, which showcases work of people over sixty years old.

Each New York elder law attorney at our firm appreciates that it is important for local residents to understand the realities of long-term care so that decisions can be made as early as possible to plan for the ideal care.

The man in this case suffered from early-onset Parkinson’s disease in his 40s. For a decade he lived at his home, able to manage with at-home care. However, as his condition deteriorated, and he ended up in a wheelchair, the man decided to move into an assisted-living facility. He was only 53 years old. He admits knowing that it was a unique choice, considering that most residents were decades older and facing far more severe health problems.

Bizarre Estate Feud Leads to Drive By Shooting

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

One of the more unique estate planning feuds in recent memory remains under investigation, three years following the death of the family matriarch that started the debacle. While few families descend into physical violence, our New York estate planning lawyers appreciate that this case is a stark reminder of the mix of extreme emotions often present in these cases.

According to a Seacoast Online report, when Eugenia Boies died in 2009 at the age of 96 she left a family fortune valued at $12 million. The estate had mostly passed to her when her longtime husband passed away in 2007. The family wealth originated on the husband’s side of the family, dating as far back as a Civil-War era gunpowder company. The wealth included over a million dollars in the bank, real estate in North Hampton, and millions in stocks.

Before her death Eugenia named her nephew, Peter, as one of three executors of her estate. Shortly after Eugenia passing, while the probate process was underway, Peter and his wife were awoken in the middle of the middle to a drive by shooting, with dozens of high-caliber bullets shot into the family’s bedroom. The family home was riddled, but fortunately the couple survived the ordeal.

Losing Home Over $400 Tax Bill

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

Senior care advocates repeatedly remind families that oversight is needed in some cases to ensure seniors do not fall victim to financial exploitation. Having an elder law estate planning attorney involved in the process is one way to provide some professional oversight.

However, beyond protecting against scammers and hucksters, many seniors are facing a new financial crisis that is not rooted in illegal misconduct. When on a fixed income and struggling with confusing money issues, some seniors might face incredibly severe financial penalties for falling behind on certain bills or taxes.

For example, CNN Money reported this week on a growing number of individuals who are losing their homes because they owe relatively small sums. A report from the National Consumer Law Center detailed how some states have outdated laws that allow states to sell tax liens on delinquent properties. Essentially this means that instead of the government having a lien on a piece of property that owed back taxes or bills for services like water and gas, private investors own the lien. The investor then collects interests on the overdue bill or, in some cases, forecloses on the home. Some states allow investors to charge staggeringly high interest rates, from 15% to 50%.

Consider Updating Your Estate Plan Before Remarrying

Published on: July 10, 2012 | by Ettinger Law Firm

Our New York estate planning attorneys frequently remind residents that it is important to update an estate plan following major life changes, such as a divorce or marriage. However, that basic advice may be misleading, because in some cases it is crucial to consider updating the plan before the major life event takes place. That may be especially true in the case of second marriages.

A recent Elder Law Answers article summarized a few points to consider at this time:

-Make sure both spouses are on equal footing. Secrecy at this time is toxic. Both partners should take an inventory and understand what assets and debts are on the table. All planning extends from that base.

Is PACE Program Future of Senior Health Care?

Published on: July 6, 2012 | by Ettinger Law Firm

CBS News recently reported on glowing praise for a relatively small program seeking to help seniors live independently. Known as the Program of All-Inclusive Care for the Elderly (PACE), the program is being credited with helping many on New York Medicaid avoid being forced to move into nursing homes. For example, one New Yorker interviewed for the story is a 65-year old woman who faces a series of health challenges. Her osteoporosis has left her wheelchair bound, as she can only walk in small doses. Like many, the woman faced serious financial setbacks and is currently unemployed. With a history of chronic depression, the woman admitted that if she was forced to move into a nursing home, she doubts she would survive.

Yet, so far, she has been able to avoid the nursing home as a result of PACE. The program allows this woman, any other seniors is similar situations, to live at home and receive support from area day care center. Seniors can visit the center for various services, from coordinated medical care, social work support, and various activities, like yoga.

Our New York elder care attorneys appreciate the immense value of this program which allows more seniors to age in place.

Tax and Planning Consequences of Affordable Care Act?

Published on: July 3, 2012 | by Ettinger Law Firm

No legal news item last week was bigger than the U.S. Supreme Court’s decision to uphold virtually the entirety of the Affordable Care Act (so-called “Obamacare”). In a move that surprised many observers, in a 5-4 decision the Court deemed the controversial “individual mandate” portion of the measure constitutional on grounds that it constituted a tax. While the court held that the Congress could not pass the law pursuant to its power to regulate interstate commerce, it did find it a permissible use of the legislature’s taxing power.

Now that the matter is reasonably settled, local residents may be wondering how the law affects their New York elder law estate planning, if at all. A recent Smart Money story talked about some of these issues, explaining how certain tax matters will indeed change in the upcoming year as a result of the decision.

A few select rates will change next year. For example, an extra .9% Medicare tax increase will start for various individuals making over $200,000 or $250,000. In addition, some investment income (long-term capital gains and dividends) may face a 3.8% “Medicare contribution tax.” This is in addition to the rising rates if the “Bush tax cuts” expire without renewal.

Helping Aging Parents with Money

Published on: July 2, 2012 | by Ettinger Law Firm

Elder law professionals agree that preventing senior financial exploitation requires acting fast–it is never too early to investigate suspicions about a senior loved one’s finances. As reported in a recent Star-Telegram article, many adult children begin asking questions about their parents finances only when it is too late–after they’ve already been swindled out of a fortune. For example, the article shared the story of a woman who waited to learn mor after noticing some red flags with her parents money management. By the time she started investigating the elderly couple had already had nearly $100,000 taken by another family member over a ten year period.

Unfortunately, each New York elder law attorney at our firm knows that this situation is far from unique. Many seniors, particularly those without outside observers keeping an eye on their finances, find themselves exploited in their golden years. The wrongdoers can be anyone, from family members and caregivers to strangers who gain the senior’s trust.

Financial exploitation takes many forms. In the case described in the article, the elderly parents, in their 80s at the time, had more than 35 different credit-card accounts taken out in their names unknowingly. It took their daughter almost two years to sort out the mess. The solution included giving the daughter a Power of Attorney over the couple’s finances so that the daughter could monitor the situation and identify any problematic issues.