New York Estate Planning & Elder Law Blog

Aging Without Fear

Published on: June 28, 2012 | by Ettinger Law Firm

There is no shortage of news stories about the changing demographics in the United States. Advances in healthcare and slowed birth rates mean that a much larger percentage of the country is elderly than ever before–the trend will continue for years to come. Our New York elder law attorneys understand that most discussion of these issues revolves around fear about what these changing demographics mean. However, an interesting New York Times article this week took a different look at the issue, noting that it is wrong to “assume defeat” when considering the challenges posed by an aging population. Instead of dwelling on the challenges, we instead need to embrace the benefits of our increasing longevity and buckle down to get the financial, social, and healthcare concerns raised by the demographics in check.

The article included an interview with Dr. Linda P. Fried, an epidemiologist and geriatrician. She noted that new research needs to “reframe our understanding of the benefits and costs of aging.” Dr. Fried notes an increased focus on science into the aging process, with the potential for positive impacts on social and political policies that address these issues–including many elder law concerns.

Dr. Friend is at the forefront of exciting new research into the aging process, with implications in many different fields, from nationwide healthcare policy to nursing home abuse prevention.

Who is Paying for the Nursing Home Bill?

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

Many local residents consider a single issue when hearing about New York elder law planning: who is going to pay for nursing home care? Of course elder law includes much more than simply figuring out the finances of necessary long-term care. But for many families, the crux of this work is receiving help with Medicaid applications, protecting assets, and otherwise putting seniors in the best position possible to ensure comfortable care in old age.

There are different ways to provide for the care. Long-term care insurance is worthwhile for those who plan ahead, while the New York Medicaid program provides support to seniors who have no insurance and otherwise cannot afford the care on their own. Many middle-class seniors are forced to ‘spend down’ their assets in order to qualify for Medicaid. Various legal tools exists, however, (like Medicaid Asset Protection Trusts) to help keep assets in the family while still receiving Medicaid support.

This week many headlines were made across the country as an appellate court upheld a ruling that forced a son to pay a nearly $100,000 nursing home bill for his mother. The nursing home instigated the legal matter by seeking to enforce a “filial law” to collect unpaid long-term care bills.

Should You Take Advantage of Tax Situation Now?

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

The New York Times published a story this weekend on the continued uncertainty regarding the gift and estate tax and the questions it raises for many families. As each New York estate planning lawyer at our firm explains to local residents, the current tax situation is in flux, requiring many different considerations when engaging in estate planning. As it now stands, residents can each give up to $5.12 million tax free and then pay a 35% tax rate on any gift above that amount. The tax-free amount will drop and tax rate rise at the end of the year without Congressional action.

The uncertainty about the future of the tax details present very obvious challenges to many families. Giving away money to heirs now means reducing an eventual tax bill down the road. However, there are many questions about whether couples will have enough money to live on themselves after giving large sums to others. Obviously these considerations all depend on the value of the family estate. In general, only comparatively wealthy families are impacted by these issues. But for those families who are “on the cusp” and stand to pay more in taxes when the changes take effect, tough decisions will need to be made in the next six months.

One consideration beyond basic tax savings for estate planning purposes is the amount the any money passed on might grow over the years. For example, if a couple gave their child $5 million to take advantage of the favorable exemption, the gift could grow to nearly $30 million in about 30 years based on reasonable return rates.

Inheritance Disputes Among Children While Parents Still Alive

Published on: June 20, 2012 | by Ettinger Law Firm

Family inheritance disputes are legion. In most cases that make headlines, a famous individual passes away without conducting thorough estate planning and various family members publicly feud to get their fair share of the individual’s wealth. Our New York City estate planning attorneys often advise clients that these sorts of disputes are not only for the famous or even the wealthy. Family disagreements regarding an inheritance are quite common, particularly when no planning is done and the matters must be left up to the court-centered probate process.

Not only that, but sometimes feuding occurs even before the family matriarch or patriarch passes away.

For example, a recent Sacramento Bee letter explored a situation where two siblings seemingly isolated an aging mother from other siblings. Claims of undue influence and abuse were made. The three ostracized siblings were left wondering what options were available to ensure they received their share of the inheritance.

Is 80 the New 65?

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

New York elder law estate planning is all about putting plans into place to designate inheritances, account for taxes, plan for disability, and otherwise provide peace of mind to account for long-term financial concerns. However, part of the challenge of the process is realizing that the future is unknown. It is impossible to determine with precision how long one will live, what finances are needed, and what care is required as one ages. Not only is speculation inherent in some of this planning, but changing government policy, medical advances, and societal cultural changes must be taken into account when conducting this estate planning.

No More Retirement Age?

For example, a recent Business Times article discussed statements made by representatives from Wells Fargo that the concept of a retirement age “is going the way of the typewriter, another 20th-century relic.” Instead of retiring at 65, say the executives, most won’t retire until age 80 or beyond. The claims were made following a Wells Fargo survey which found that at least ¼ of all respondents did not believe they’d be able to retired until they were 80 years old. On top of that, most thought that they’d never actually be able to stop working with some extra income needed after retirement.

Changing Ideas About Leaving a Legacy?

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

Our New York estate planning attorneys often help clients create “ethical wills.” An ethical will refers to a document left by an heir to pass along intangible assets like morals, lessons, and memories. Creating one of these wills is an important way to clarify the meaning of one’s life to family and friends, sharing gifts of the heart and mind.

Recently, a Time magazine article discussed how, following the recession, the importance of this ethical legacy planning was growing. While no one welcomes a difficult financial climate, some observers note that a positive side-effect is the growing importance of relationships, experiences, and memories for many families. The article author notes:

“Born out of national need, this national (if not global) rethinking of what is most important has had remarkable staying power, even as the economy has started to improve.”

Exception Proves the Rule: Joe Paterno’s Will Sealed

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

Most local residents cherish their privacy. That extends to privacy in sensitive matters like estate planning. When considering estate planning, the first thing that comes to mind for many is the traditional will. Our New York estate planning lawyers frequently explain how there are now many more tools beyond wills to properly tailor these affairs. Trusts are often far-superior ways to pass on assets and protect loved ones down the road. One of the many benefits that a trust can provide is privacy. Wills do not provide that privacy.

Public Records

Even though wills contain private, sometimes sensitive information, at a certain point they become public records, open to view to anyone interested. A will must be filed with the court during the probate process to settle affairs following a death. The court will eventually file the will in its records, where it becomes available to the public. This means that anyone can usually access the documents at a courthouse, often having the ability to make their own copy of the material.

Another County Set to Privatize New York Nursing Home

Published on: June 7, 2012 | by Ettinger Law Firm

New York elder care advocates rallied this weekend in an attempt to save the Horace Nye nursing home in Elizabethtown. The public facility may be the latest in our state to be privatized as a cost-cutting measure by the county. The Essex County supervisors are set to vote this week on whether to move forward with the plan to sell the public facility to private owners and operators.

All those working on New York elder law and Medicaid issues appreciate the concerns of those fighting the change. Studies from a wide-range of sources find that residents at private facilities are more likely than those in public homes to suffer nursing home abuse or neglect. Most point to staffing levels and compensation for direct-care workers as the difference. Private owners are more likely to lower pay and cut staffing levels in order to increase the facility’s profitability.

Regardless of the worries, there is a very clear trend in local governments getting out of the nursing home business. Facilities in Warren County, Washington County, and Saratoga County all may be sold in coming months. The motivation is obvious: local government budgets are tight. For example, those supporting the Essex County sale explain that the facility loses $2 million every year. A property tax cap is in place, and so it is difficult for the County to absorb rising costs.

Credit Card Fraud Among the Elderly on the Rise

Published on: June 5, 2012 | by Ettinger Law Firm

Main Street had a helpful story this week discussing the risk that many seniors face from credit card fraud. The story was published in awareness of May as “Older Americans Month.” Each New York elder law attorney at our firm appreciates the need to increase community understanding of the various issues affecting seniors, including financial exploitation.

Credit card fraud is common because it is relatively straight-forward. A thief gets the senior’s credit card information and uses it to make a string of purchases. The culprit usually continues until the senior catches on to the problem and puts a stop to it. Depending on the senior’s living situation, it may be quite some time before the theft is identified. Thousands and thousands of dollars can be lost in these simple scams.

Prevention measures take two forms: minimizing risks that the credit card information will be obtained and putting steps in place to catch wrongdoing soon after it occurs.

What is Legal Incapacity for Medical Decision-Making Purposes?

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

Legal incapacity is an important term in New York elder law estate planning. An crucial part of the process is ensuring that another is able to handle legal, financial, and medical affairs in case one is unable to do so on their own. “Incapacity” is the term used to delineate when that alternative decision-making kicks in, giving an agent the power to act on another’s behalf. There is not necessarily a bright-line rule when it comes to identifying incapacity on a case-by-case basis. Therefore, many local residents might wonder how incapacity is defined in the law.

Defining Capacity

The New York Department of Health is a good starting point, as the agency website provides an overview of how incapacity is determined in our state for medical decision-making purposes. The resource explains that for health care purposes capacity to make medical decisions is “the ability to understand and appreciate the nature and consequences of health care decisions, including benefits and risks of and alternatives to any proposed health care and to reach an informed decision.” When a patient lacks capacity, then an identified agent (often via a New York Health Care Proxy) is able to act on the patient’s behalf. An elder law attorney can help create the Health Care Proxy so that the desired agent is able to make decisions in the event of disability.