New York Estate Planning & Elder Law Blog

Auction of Calder Sculptures Example of How Art Can be Handled at Death

Published on: May 1, 2012 | by Ettinger Law Firm

Well-known architect and designer Eliot Noyes died thirty five years ago, in 1977. Some of his prized possessions were large mobiles by famous sculptor Alexander Calder. Calder was a personal friend of Noyes, and the artwork was commissioned especially to fit the family home. Upon Noyes’s death there was no major issue with what would happen to the sculptures, because his wife inherited all of the family assets. Estate planning had been conducted such that she could keep the mobiles without having any complicated tax issues.

However, Molly Noyes passed away in 2010, leaving behind four children who will split the family assets. Unfortunately, the family did not specifically decide how certain possessions would be divided after the matriarch’s death, and so they were left in a conundrum. At first the children did not want to give up the unique, valuable art that had been in their family home for decades. Eventually they decided that it would be best to sell the pieces. When talking about the valuable sculptures one child explained, “There are four of us and two of them. The math didn’t work.”

That is why two sculptures will be auctioned off at Christie’s next week. One of the pieces, Untitled, is expected to fetch $3 – $4 million while the second, Snow Flurry, is valued slightly higher at $3.5 – $4.5 million.

Beneficiary Designations and Asset Titles – Simple, But Crucial Planning Issues

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

One of the most common estate planning mistakes is failure to change names on the title of assets and beneficiary designations. This rarely a problem when one first visits with an estate planning lawyer to create a new plan, because, so long as the work is competent, the professional will ensure these issues are properly handled. However, when one tries to handle matters on their own or does not properly update their plan to account for life changes, then even a plan that was good at the time will not work when needed.

Wills and trusts are legal documents that name beneficiaries for assets that pass via the will or are placed in the trust. However, regardless of what is said in a will or a trust documents, many significant assets may have their own beneficiary designations. Those designations will control who gets the asset.

Beneficiary designations apply frequently with assets like IRAs, 401(k)s, company benefit plans, and insurance plans. These assets have their own “payable upon death” designations which decide who will receive benefits, regardless of what other estate planning documents indicate.

Do-It-Yourself Legal Planning–The Dangers

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

One wouldn’t choose a surgeon who had never performed that particular surgery before. Experience and training matter when it comes to medical health, and the same principles should apply to legal planning efforts. New York elder law planning requires first-hand knowledge of the process as well as familiarity with common pitfalls to help craft overall strategies that provide the maximum benefit to meet one’s specific needs. There is rarely a “one-sized-fits all” approach to any of these issues, because no family is identical. That is why is it usually counterproductive to try to deal with elder care issues using do-it-yourself form legal documents.

Two of the most important documents in any elder law plan are powers of attorney and health care proxies. While the concepts behind these legal documents seem simple, failure to get help crafting them can have significant consequences. For example, New York has a statutorily created form to guide powers of attorney. The form is long and includes various features of which residents might not be aware. For one thing, to protect seniors from being taken advantage of, the statutory form restricts the power that the agent has over financial issues. Any additional powers needed in addition to those in the statutory form must be added individually. In addition, when not done correctly banks or other financial institutions may fail to recognize it.

A do-it-yourself health care proxy may come with similar issues. For example, under state law an agent cannot make decision about withholding certain extreme life support measures even when they have a valid health care proxy. The principal’s wishes about the withholding must be explicitly stated in a living will. When the proxy is crafted without proper legal help, this feature is often left out. Unfortunately, this error is usually only uncovered at the exact moment when it is needed–which is too late.

Editorial Calls for Keeping “Spousal Refusal” Option for New York Medicaid

Published on: April 16, 2012 | by Ettinger Law Firm

New York is one of three states that provide a Medicaid planning option known as “spousal refusal.” Essentially the option provides a way for a healthy spouse to save assets and income beyond that originally exempt from Medicaid while still having an ill spouse receive necessary long-term care under the New York Medicaid program. Our New York Medicaid attorneys have helped many families plan in just this way. We often advise clients that there are some potential complications following use of this tool–like a possible lawsuit from the Department of Social Services. However, regardless of the risks, for a variety of reasons the spousal refusal option is a prudent tool for families in many different situations.

However, there is a chance that spousal refusal may not be available to couples in the future. That is because New York Governor Andrew Cuomo recently proposed removing the spousal refusal option in the state. Financial concerns are driving this plan. Some estimates suggest that $34 million a year may be saved by eliminating the state’s spousal refusal.

Many senior advocates have voiced fierce opposition to the proposal, suggesting that the cost to local families would be devastating. Assemblywoman Nicole Malliotakis–a member of the Assembly Committee on Aging–explained that the proposed policy change would force some couples to lose everything that they have built up over a lifetime. Forcing healthier spouses to spend down their assets may have serious adverse effects on the healthy senior’s own well-being. That individual may then require even costlier care themselves than if they had been allowed to keep their assets instead of losing them so their ill spouse qualified for New York Medicaid.

Mike Wallace’s Passing Reminder of Planning Needs for Dementia

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

Dementia refers to the loss of cognitive ability to a degree beyond what is expected from normal aging. It is not a specific disease but simply a phrase to collectively refer to a set of symptoms. In later stages of the condition, the affected may have severe impairments, becoming disoriented in time and place. They may also be unable to understand who they are or who is around them. Alzheimer’s disease is perhaps the most common form of dementia, but there are many others including semantic dementia vascular dementia, and dementia with Lewy bodies.

Dementia is far more common among the geriatric population. For example, according to the Alzheimer’s Association, one out of every eight Baby Boomers will get Alzheimer’s disease after they turn 65. However, “early onset dementia” can also occur, affecting those under 65 years old. The risks posed by dementia and the uncertainty with which it strikes makes it common sense for elder law estate planning efforts to be put into place ahead of time to guard against the risks. As a Forbes article notes, the recent passing of veteran newsman Mike Wallace is a reminder of this.

Wallace’s son, news anchor Chris Wallace admitted that his father suffered from dementia in his later years. “Physically, he’s okay. Mentally, he’s not. He still recognizes me and knows who I am, but he’s uneven,” the son explained. Our New York elder law estate planning lawyers know that many local residents have families in the same situation. Fortunately for the Wallace family, planning had been conducted to account for this possibility.

Defending Seniors–Consumer Financial Protection Bureau’s Office of Older Americans

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

The Star Tribune recently profiled Hubert Humphrey III–a former favorite son of Minnesota–who is now in a new role in Washington D.C. helping to enact national senior care policy that might affect older Americans across the country. Humphrey was recently chosen to lead the Consumer Financial Protection Bureau’s Office of Older Americans. He was chosen for the position in large part because of his previous advocacy on the AARP’s national board of directors.

The new federal office is engaged in many different battles, all aimed at improving the lives of the growing class of American seniors and protecting them from falling victim to financial predators. Our New York elder law attorneys understand the challenges faced by so many older Americans and appreciate the need to enact common sense safety steps at the federal level.

The Office of Older Americans was actually created as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act. It was created to safeguard the rights of those over 62 and ensure they are properly educated about their financial options. Assistance in these and similar matters is all the more important now in a world with stagnant retirement accounts and rising healthcare costs. Each New York elder law attorney at our firm works first-hand on many of these goals, helping local residents seeking to craft plans to protect their long-term financial and medical well-being.

The Complex Issues of Disinheritance

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

Delineating what family members, friends, and charities will inherit after one’s death is a large part of New York estate planning. However, intrinsic in the process is also distinguishing who will not receive any part of one’s estate. Disinheritance is therefore just as much a part of the process as anything else. There are many high-profile stories of wealthy families who have children intentionally ignored in the inheritance process.

Perhaps the most well-known example involves “Mommie Dearest,” Joan Crawford, who disinherited her children “for reasons known to them.”

However, the issues involved affect all families, not just the rich. An MSNBC story last month touched on some of the complex motivations woven into disinheritance.

Farm Families Reminded of Need for Estate Planning to Smooth Transition to Next Generation

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

Over the past few months there has been a surge in awareness efforts by agricultural publications around the need for farm families to take estate planning seriously. For example, late last week Agri-View published an article re-emphasizing the need for families to get serious about their succession planning if they would like to preserve their farm for generations to come. Our New York estate planning lawyer appreciates that the principles outlined in the article can be applied to contexts outside of farm families and are apt for all families with small businesses which may wither without proper preparation for transitioning from one generation to the next.

The article reminds readers that a succession plan is not the same thing as an estate plan. The estate plan is best viewed as one part of the process to prepare for business transitioning. The overall succession plan in not a one-time event–it is a gradual process that is completed with consultation with a variety of professionals, including estate planning lawyers. The estate planning component of the process will strategize ways to transfer assets to ensure tax savings and a smooth transition of property and responsibilities to younger generations.

Getting legal documents in place is just the beginning. In addition, the succession planning process will also involve the family elders answering questions about what they’d like their future to hold. For example, the older generation of the farm family should think seriously about what they’d like to do when their time isn’t filled with farming. The answer to this and similar question will dictate how much money will be needed to meet those goals in retirement. From there, concrete strategies can be crafted which provide the older generation with needed resources while preserving the younger generation’s ability to inherit and continue family business endeavors in the future.

Alzheimer’s Association Focuses on Providing Senior Care Assistance & Support

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

There were 39.6 million individuals in the U.S. over 65 years old in 2009. In roughly twenty years that number is expected to increase to 72.1 million. At that point the senior population will constitute roughly 19% of the total American populace. The changing demographics are placing significant strain on public Medicare and Medicaid resources. That is why many observers have focused more attention on the ways that outside not-for-profit groups are working to help seniors in need. Our New York elder law attorneys realize that tremendous good work is performed by so many local groups on these issues. It remains unclear if public programs will be able to fully handle the influx of seniors, and it is likely that local nonprofit groups will continue to play a vital role in ensuring that particularly vulnerable elderly community members receive the care they need.

A new Western Edition article recently summarized some organizations that provide various types of aid to seniors. For example, the Alzheimer’s Association is the nation’s leading organization raising awareness of this cognitive disease that affects so many local residents. Beyond advocating for support in research, the organization provides patient and family services to help those dealing with the effects of the condition which causes memory, thinking, and behavior challenges. The agency has a 24-hour a day help line where families can call for information and referrals.

5.4 million Americans are currently living with Alzheimer’s and the number is expected to more than triple in the next few decades. It is currently the sixth leading cause of death in the United States. Our elder law attorneys have worked with many families whose loved ones are dealing with various stages of the disease. According to the Alzheimer’s Association, more than $210 billion worth of unpaid care is currently being supplied by family members helping loved ones with different forms of dementia.

Is Medicaid Funding Getting Harder to Come By?

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

A Wall Street Journal article this weekend asked some tough questions about the availability of Medicaid nationwide. Our New York Medicaid attorneys realize that many local residents are understandably concerned about the program in our state–it is an essential lifeline for many seniors. The latest WSJ article suggest that some states are making it harder for individuals to receive Medicaid help to pay for long-term care costs–however, the “crack down” on Medicaid expenditures is advancing very differently in certain states.

According to the Kaiser Family Foundation, Medicaid now accounts for about 40% of long-term care spending nationwide. The program is a joint state and federal effort that provides healthcare resources for those unable to afford it. There are federal qualification guidelines, but states are free to work within those guidelines to set specific standards about what is required before a resident is able to receive Medicaid support. As a result of this state flexibility, there can be significant differences in qualification factors in different parts of the country.

Considering that most state are experiencing budget shortfalls, many are looking into different ways to save on these costs. Of course, New York Medicaid changes and proposals are frequently in the news, as local policymakers continue to explore various ways to save money. As the article notes, some of those proposed changes include tinkering with the ways that the state can recover costs from the estates of those who used the program. Our New York elder law estate planning attorneys work closely on those issues, following along with all changes in the law so that local families are best positioned to receive the care they need while saving as many assets as allowable under the law.