New York Estate Planning & Elder Law Blog

First “Fiscal Cliff” Proposal Made — What It Means for Estate Planning

Published on: December 4, 2012 | by Ettinger Law Firm

You cannot turn on the TV, flip open a newspaper, or pull up a news website this month without seeing the words “fiscal cliff.” As many are aware, this refers to sweeping, mandatory federal tax and budgetary changes that are set to take effect January 1st unless the Congress and White House pass legislation with an alternative plan. Essentially the “cliff” is about $7 trillion worth of tax increases combined with significant spending cuts across the board–including everything from Medicare and Medicaid to the military.

What is interesting about the cliff is that virtually no one on either side of the aisle actually wants it to take effect. Instead, it was only put into place as a compromise over a previous debt ceiling legislative fight. The idea was that that the cliff would be so abhorant to both sides that its impending appearance would force a compromise. However, as the end of the year gets closer, more and more observers are worrying that even with the serious consequences of the cliff, no compromise is in sight.

Currently, the Obama Administration and Congressional leaders (most notably, the Republican House leaders) are trying to reach agreement on an alterantive to prevent the mandataory changes. As part of that effort, President Obama recently released his “first offer.” As summarized in a recent article, the offer is far from what the Republican leaders have proposed, so it is unlikely that it will be taken seriously. Essentially, it calls for around $1.6 trillion in tax increases over a ten year period–mostly related to expiration of the so-called “Bush tax cuts.” In addition, it calls for modest stimulus spending. The proposal would also permanently eliminate Congressional control over the debt ceiling level (which caused the current crisis to begin with).

Celebrity Example Of Need for Living Will and Health Care Proxy

Published on: November 30, 2012 | by Ettinger Law Firm

The Huffington Post recently reported on the aftermath of the tragic death of former boxing champion Hector “Macho” Camacho. The boxer had only recently retired from the sport after nearly three decades in the ring against some of the sports biggest stars. In his 50s, the boxer lived in Puerta Rico following his 2010 retirement. Tragically, earlier this month he was gunned down outside of a bar on the island. Emergecy responders were able to stablize the fighter, but not before he was declared brain dead by medical professionals at a nearby hosptial. What ensued was a bit of family feuding over the star’s end-of-life wishes–a testament to all of us of the importance of making these wishes well-known before tragedy strikes.

Camacho’s family disagreed on whether or not to remove life support to the boxer. Reports indicate that there was mass confusion and infighting. However, in the end, the extra life support measures were removed and the boxer passed away. The disagreement between the family members in the final few hours, however, may very well affect the family dynamic for years to come.

New York Health Care Proxy

Modernization to New York Medicaid Coming As Part of Affordable Care Act?

Published on: November 29, 2012 | by Ettinger Law Firm

Speculation was rampant over the past year regarding exactly how full implementation of the Affordable Care Act (ACA) (Obamacare) would actually affect the current healthcare programs, like Medicare and Medicaid. Now, with President Obama’s re-election in place and the long-term security of the ACA secure, we are beginning to see some possible ways that the program is going to alter current state practices. For one thing, it may act as a spur to modernize the interaction between various state agencies, including Medicaid.

For example, as discussed in a recent Albany Times Union editorial, the federal Centers for Medicare and Medicaid (CMS) is making a one-time offer to states of 90% matching funds for “modernization” efforts. What does this mean? States will have a significant incentive to spend some resources to improve the efficiency of its programs, including Medicaid. This increased matching fund effort was spurred by the “health exchange” components of the ACA.

In general, CMS pays 50% of Medicaid costs, and the state pays the remaining 50%. That is why Medicaid is deemed a joint state and federal program. However, as part of this new push to improve certain aspects of the program, when a state wants to work on a modernization project, instead of paying for half of the cost of the project, they would only have to pay 10%, with federal coffers taking care of the remaining 90%.

Benefits for Children Conceived After Father’s Death to Be Decided By Court

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

Medical and technological breakthroughs in recent decades have impacted virtually every facet of life–estate planning is no exception. For example, many rules in the field hinge on definitions of legal heirs. In the past, it was pretty clear who those heirs were, typically biological or legally adopted children. When an indiviual dies intestate (without a will), then each state has specific default rules regarding what to do with the individual’s assets. Often the biological or legally adopted children receive part or all of those assets.

But it doesn’t end with inheritance rules. Many state and federal programs also use these definitions to make decisions about who qualifies for certain benefits. This includes the federal Social Security program. In many cases, when a parent dies, a family eligible for Social Security assistance for the minor children that remain following their parent’s passing. In the past there as little confusion over when a child did or did not qualify for those survivor benefits.

No longer. As recent of improvements in medical research have changed reproductive technology, the line between when a child is considered an heir and when they are not is blurred. That is perhaps best evidenced by a new case that is slated to go before one state court.

The Hobbit & Long-Term Estate Planning

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

One of the biggest movies set to debut this holiday season is “The Hobbit,” based on the well-known fantasy novel by J.R.R. Tolkien. This film follows in the footsteps of the very successful “Lord of the Rings” movies made over the last decade and a half. However, the release of the film is coinciding with a lawsuit filed by Tolkien’s estate against certain companies using material from the series. The case is a testament to the fact that proper estate planning can have implications many years after a passing –even half a century later . That is because the assets passed on at death are not necessarily just physical property, bank accounts, and other material that is finite at the time of the passing. Instead, trademarks, copyrights, and patents can also be given which may have implications far into the future.

Estate Lawsuit

In this case, according to a story published recently by Guardian News, Tolkien’s estate is claiming damage to his legacy as a result of certain gambling products and games using the Hobbit character and themes. The defendants in the case include the producers of the upcoming film version of The Hobbit. More specifically, the estate claims that the copyrights which were granted to the producers were infringed by use of the material in this way–for gambling and online games.

Holiday Gatherings: Time to Check for Senior Financial Exploitation

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

If there was an easy way to identify and prevent seniors being taken advanage of financially, then the rate of exploitation would be far lower than it is. The stark reality is that it is a big challenge to catch elder financial abuse before it occurs and identify the problem afterwards. Yet, the difficulty does not mean that nothing can be done. Instead, there must be an amped up effort to address the problem, and there is no better time to do that than now.

Over the next few weeks many families will get together in various settings to celebrate the holiday season. From dinners and parties to religious services and family meals, this time of year is always filled with relatives and close friends convening together to share in one another’s company. As such, it may be a great time for families to bring up–very carefully–any concerns they might have about protecting a senior loved one’s financal resources from those who prey on vulnerable elders. A recent Forbes article recently made the same point.

The story mentioned that represenaties from the Aging section of the U.S. Department of Health and Human Services issued a similar call. The representive remarked: “This holiday season, we encourage families to spend some time asking older family members some basic questions to ensure that their finances are in good hands and that if there are signs of abuse, that the right steps are taken to stop it.”

Estate Planning, Values, & Spirituality

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

A perennial hot-button topic in estate planning and the creation of inheritance documents involves the passing on of personal values. Of course, the majority of work related to estate plans invovles physical assets: who gets the house, the bank accounts, the stocks, the insurance, the family china, and more. Making these allocations efficiently and saving on taxes are the hallmarks of these preparations. But our team often discusses the other aspects of estate planning, including setting in place material that ensures one leaves a legacy for those they are leaving behind.

This often includes spiritual issues but can just as well include secular notions like hard work, the importance of charity, and other values.

But how are these issues woven into an estate plan?

Medicare Funding & Nursing Home Overbilling

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

One question many New York seniors (and their loved ones) considered during the presidential campaign was how each candidate’s election might affect programs like Medicare and Medicaid. While it is hard to say with certainty what changes, if any, will be made to these areas, much of the discussion between candidates centered around general approaches to tackling financial problems as they relate to Medicare and Medicaid.

In general, Governor Romney’s approach was more far-reaching, favoring structural changes to the programs, including shifting more responsibility to the states. It was claimed that this would result in more flexibility on top of cost savings. Conversely, President Obama was more inclined to focus on attacking “waste” within the system as well as fully implementing Obamacare to lower healthcare costs overall by better insuring all Americans.

Of course, with the President’s re-election, Obamacare is preserved and the approach championed by his opponents is less likely to become law. In fact, a new report out last week from the U.S. Department of Health and Human Services suggests that the administration may be going strong with its attempts to root out overbilling, waste, and fraud in the system.

Hurricane Sandy, Pets, & Planning

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

Many lessons can be taken from the beating that our state took in recent weeks as a result of Hurricane Sandy, not least of which is the resiliency of New Yorkers. However, as we piece things back together, some advocates are reminding community members of one overlooked victim of lack of preparation: pets. A story from Today discussed how many families were forced to make tough choices about their pet, partiularly when they had to evacuate or seek other shelter that did not allow animals.

Of course, there were no easy answers, but in all cases it was a reminder of the need to have some preparations in place ahead of time so that beloved animals are taken care of no matter what the circumstances. While few expect severe weather patterns to disrupt the care of an animal, there are some events which we all must plan for: death and disability.

The article points to statistics from the American Society for the Prevention of Cruelty to Animals (ASPCA) that nearly 100,000 pets are forced into shelters each and every year as a result of guardians who pass away or become disabled without planning for their care. The future for those animals is unclear. Resources are incredibly tight, and so, depending on where the animal is taken, their long-term prospects are varied. It is truly a tragic sitaution that affects far too many pets that were devoted companions to their owners throughout their lives.

Don’t Wait for Disaster to Plan for the Future

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

Hurricane Sandy brought with it many preparedness lessons. Everyone leads a busy life, and it is easy to procrastinate on matters that do not have immediate ramifications. Update the will or drive Mom to her doctor’s appointment? No contest. Often it is only when something is barrelling down on us–like a hurricane–that we act to get certain affairs in order. Sometimes, there is simply not enough time to properly plan before disaster strikes.

For example, stories have emerged regarding the lack of planning exhibited by a nursing home in Queens, leading to suffering and chaos among residents. The New York Times recently reported on the fiasco at the long-term care facility. According to reports by several familiar with the incident–including some facility employees–the owners of the home were far from prepared for the major weather event. The facility is near the water, and in the midst of the storm, most of the first floor windows were blown out. Rising waters then seeped into the area, flooding everything. Many of the residents were upstairs at the time, and the water took out the power. At first the caregivers assumed the back-up generators would have things up and running again. They didn’t. That is because the generators were on the first floor and were swept up in the flooding. On top of that, the owners and operators of the facility had not stocked up enough food for the disaster, and the kitchen itself was on the first floor. This all meant that very vulnerable senior residents were forced to wait hours in the cold without food, water, or access to certain electronic devices they desperately needed for health and well-being purposes.

But it gets even worse.