New York Estate Planning & Elder Law Blog

How to Choose the Best New York Nursing Home

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

Making the decision to place a loved one in a nursing facility is heart-wrenching. Most seniors prefer to live at home, and everyone has heard horror stories about substandard care provided at some of these facilities. However, even with those concerns, there are times when it is absolutely essential that a senior have access to the around-the-clock skilled nursing care that these facilities provide. Our New York elder law attorneys understand that preparation and investigation before making a nursing home selection are crucial to ensure that the chosen facility is capable of providing the high-level of care that your senior loved one deserves.

Below are a few basic issues to consider when selecting a nursing home:

1) Choose a local facility. Senior care advocates explain that few things are more important at nursing homes than frequent visits by loved ones. Ensure that friends and family will be able to stop by easily. Also, be sure that the facility has liberal policies so that spur-of-the-moment visits, early morning visits, and late-night visits are accommodated.

Supreme Court Rules on Survivorship Benefits in Posthumous Birth Case

Published on: May 23, 2012 | by Ettinger Law Firm

We previously discussed the Supreme Court case Astrue v. Capato. At root in the case was the issue of whether or not children conceived after the death of a parent are entitled to federal survivorship benefits. It is important to note that this refers only to those whose actual conception occurred following the passing, usually using frozen sperm that was saved while the parent was still alive. While representing a relatively small group of children, our New York City estate planning lawyers know that these sorts of techniques are actually growing in popularity. Cancer patients and military servicemembers are the most likely to take advantage of this option.

The father of the children that sparked this case had his sperm frozen after being diagnosed with cancer in 2000–he passed away in 2002. Not long after his passing, his wife became pregnant with twins. After their birth she applied to the U.S. Social Security Administration for survivorship benefits. The agency denied the claim, sparking a lawsuit.

The district court sided with the SSA in denying the claim because application of the state intestacy laws would not have allowed the children to recover. On appeal, the U.S. Court of Appeals reversed. The U.S. Supreme Court agreed to hear the case and arguments were made in the middle of March.

Federal Government Overpays New York Medicaid System by $700 Million

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

The Medicaid program is a joint federal and state effort–the public bodies split the cost. The state cost itself is further subdivided into payments made by county governments and those coming straight from Albany. This interconnected relationship is helpful in that it doesn’t place the burden too heavily on any single public entity. Yet, it also means that the New York Medicaid system is at risk for cuts and changes whenever either the county, state, or federal government faces budget problems.

That means that local residents are constantly bombarded with stories about how one government or another is seeking to alter the way the system works to trim costs. The program is an essential lifeline for many local residents. Each New York Medicaid attorney at our firm appreciates the stress that comes with wondering whether a loved one will be able to stay in a long-term care facility or be admitted to a new facility when faced with health problems.

The latest scare came this week as federal officials admitted that they overpaid New York State by a shocking $700 million in 2009 for Medicaid services. The causes for the overpayment are still being rooted out. Essentially, officials believe that the main problem was a faulty reimbursement formula for nine centers for the developmentally disabled. The Poughkeepsie Journal explains that the rate paid per resident at those facilities was four times higher than the actual cost of care and ten times higher than reimbursement rates paid at similar facilities.

Senior Financial Exploitation Prevention: Legal Documents Before Incapacitation

Published on: May 15, 2012 | by Ettinger Law Firm

Law enforcement officers, senior care agency officials, and senior care advocates all believe that having neutral, third-parties with an eye on a senior’s finances is an important way to identify when financial exploitation occurs. Those outside parties can identify particularly suspicious transactions and alert authorities. Our New York elder law estate planning lawyers are proud to play a role in this process, ensuring some local seniors are not taken advantage of by the unscrupulous.

A Monterey County Weekly article on the topic of senior financial exploitation explained yet another factor in prevention efforts–ensuring proper legal documents are in place well before times of incapacity. This is one of the paramount goals of elder law estate planning. The legal documents, such as a Power of Attorney and Health Care proxy, are crucial in ensuring that trusted others can act on the senior’s behalf in case physical or mental problems develop.

One common problem is that mental health ailments rarely occur suddenly. Instead, most seniors experience lack of capacity gradually, over a period of time. This often leads families to put off taking the proper legal steps, assuming that there is always more time. Many are waiting for a clear sign that help is needed, even though that clear sign will only come when it might be too late. It should go without saying that the earlier alternative decision-making documents are in place, the better.

Does Each Spouse Need Their Own Estate Planning Lawyer?

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

New York estate planning is a family affair–husbands, wives, children, grandchildren and others all have a stake in ensuring that planning is done properly and timely. This might lead some to wonder whether each individual with a stake in the planning needs their own lawyer. In particular, in blended families (involving subsequent marriages), does each individual spouse have adverse interests such that a single lawyer cannot represent them both in their planning?

That was a question discussed in a Forbes story this week.

Of course, in certain family situations it is usually vital that couples have separate counsel. For example, while certain types of uncontested divorces exist, in most cases couples going through a separation must have their own legal advocate, because the entire process is contentious.

First-Ever LGBT White House Conference on Aging Held

Published on: May 9, 2012 | by Ettinger Law Firm

Earlier this year New York City welcomed the opening of the nation’s first ever LGBT Senior facility. The SAGE Center (Services and Advocacy for GLBT Elders) is located in Manhattan on 27th Street in North Chelsea. As our New York elder law attorneys noted in a previous post on the center (see here) the facility will provide a range of services for the often-vulnerable members of this community. Many LGBT seniors have an increased need for support at this time because they are less likely to have adult children providing help when they age.

Fortunately, more and more advocates and community members across the county are recognizing the unique needs of this community. As reported by GSFLA News this week, the nation’s first White House LGBT Conference on Aging was held on Monday. The three day conference was opened by U.S. Representative and chairwoman of the Democratic National Committee, Debbie Wasserman-Schultz. In her remarks, Rep. Wasserman-Schultz noted that the long-term care needs of this community always existed, but they previously existed “in the shadows.” She went on to note the important of elder law issues, explained that, like all senior communities, LGBT elders need a wide range of support services down the road.

Other speakers at the event included an administrator at the U.S. Health and Human Services Department and an assistant secretary for policy development and research at the Housing & Urban Development Department. The two spoke on the crucial issues of senior healthcare and housing.

Gary Coleman Estate Feud Continues–Rocky Relationship Made Public

Published on: May 8, 2012 | by Ettinger Law Firm

TV Star Gary Coleman died unexpectedly nearly two years ago in May 2010. He was only 42 years old. Coleman had some previous estate planning measures handled, because his former manager was apparently named as executor and beneficiary of his estate as early as 2005. However, the plan does not seem to have been updated in any way in the intermediate five years, even though many changes took place in his life.

This has led to an on-going feud that continues to drag out under the public eye–a reminder of the need to update estate plans and the value of privacy that these plans provide.

In 2005, Coleman met a woman, Shannon Price, on the set of a movie. The two began dating and were married about two years later. However, the marriage was apparently a rocky one, and the two divorced less than a year after the wedding. The couple remained living together after the divorce. In fact, it was Coleman’s ex-wife who discovered that he had fallen in the home in 2010. And it was his ex-wife who made the decision to take Coleman off life support after suffering a severe head injury in the fall.

Filing Taxes After Death

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

Most discussion about taxes and death involve the “estate tax.” This is a tax imposed on certain assets usually given to others as an inheritance by a deceased individual. However, after a passing there are still other tax issues that surviving family members have to deal with, even if estate taxes are not a concern. For example, Kiplinger News published a helpful story last month that discusses the federal income tax issues faced after a death. The IRS demands a final accounting–an added stress for families dealing with an already stressful situation.

A final income tax return must be filed after one’s passing. This task usually falls to an executor or administrator of an estate. However, if none are named then a surviving family member must deal with it. Figuring out what income needs to be included on that final tax return is not easy. Depending on when income is earned or received it may be included on the deceased’s tax return or instead taxed as part of the estate. For example, interest earned on accounts is only considered income on the personal tax return up to the date of the passing. The interest that accrues after that date is taxed to either the beneficiary or the estate.

In general, actual monetary inheritances are not subject to the federal income tax. However, the article highlights one major exception–funds in IRAs, company retirement plans, like 401(k)s, and annuities. These funds are treated as “income in respect of a decedent” and taxed to the heir. Then again, Roth IRAs and Roth 401(k)s are an exception to the exception, with unique rules all their own.

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.