New York Estate Planning & Elder Law Blog

Mental Capacity Issues in Estate Planning Fights

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

“Lawsuit-proofing” an estate is a common goal in estate planning. Of course, this refers to use of strategies and tools to ensure the inheritance process does not lead to legal fights down the road. A benefit of having an experienced New York estate planning lawyer involved in the preparations is that the legal professional will be able to anticipate possible challenges and incorporate those risks into the work that is performed. In this way, proper planning requires strategizing and unique legal maneuvering, not simply filling out lines on legal documents.

For example, one of the most common ways that an inheritance plan in attacked is by questioning the capacity of the settlor. If one is unhappy with the way that a senior decided to manage their estate or dispose of their trust assets at death, challenging that senior’s mental capacity is a common. A Lake County News article last week discussed this possibility by highlighting real appellate cases where capacity was at issue.

In one case, an elderly settlor decided to leave most assets to his long-term romantic partner instead of his children. The senior, who was known to be forgetful, changed his trust documents to leave the majority of the assets to the partner. He also named her as beneficiary for his retirement accounts. The man’s children, with whom he had strained relationship, did not find out about these changes until the man’s death. They initiated a legal suit seeking to attack the changes to the trust and retirement plan. The argument that they made in the legal challenge was that their father did not have the requisite capacity to control his affairs at the time that he made changes to his trust documents. A key issue in that case is obvious: what level of understanding is required to make the senior’s actions legally sufficient?

Elder Law is Not Just for the Elderly

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

Some mistakenly dismiss elder law issues as something with which they need not concern themselves until they personally need help getting by each day. However, our New York City elder law attorneys have worked with many local residents on these issues decades before they need care themselves. That is because many adult children are forced to deal with these concerns on behalf of their parents–many of whom have serious health concerns that arise quite quickly.

With demographic changes leading to a boom in the elderly population, the need to care for aging parents is catching more and more adult children by surprise. According to the AARP, more than 42 million individuals (usually adult children) provide caregiving for elderly friends and family. Another 61.6 million provide partial caregiving support at various times throughout the year. A story from Life Stages discussed the very serious worries faced by those who are unexpectedly forced to wade through a myriad of confusing and complex issues (including many related to elder law) when their parents can no longer get by on their own each day.

The story profiles one woman whose story is shared by many in our area. Her eighty three year old mother had a massive stroke last summer which led to her becoming paralyzed. Her father, also eighty-three years old, was unable to provide the care that she needed. The hospital recommended that the mother be moved into a nursing home. Before taking that step, the daughter wanted to learn if she had any other options.

Estate Planning Challenges For the “Asset Rich and Cash Poor”

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

This week the USA Today shared a helpful story that analyzed some estate planning difficulties faced by certain families, often farmers, who have many physical assets but few liquid cash stockpiles. One obvious challenge for these families is dealing with the uncertainty of the estate tax. Estate tax considerations are of clear concern, because the family may be unable to pay the tax burden that comes with inheriting the assets without being forced to actually sell those very assets.

Currently, there is a $5 million exemption level for the estate tax. However, without federal action, that exemption level will drop to $1 million by the end of the year. All inherited assets that exceed that level will then be taxed at various rates up to 55%, with a 5% surcharge on estates over $10 million.

Our New York estate planning attorneys appreciate that these estate tax issues are of paramount importance to certain community members, like farm families or those with family-owned businesses. For example, it does not take much for farms of various sizes to cross over that $1 million threshold when taking into account land, buildings, and equipment. In addition, for many farmers, land values have risen steadily with advances in natural resource technology because of the increased profitability of available minerals. Many resources can now be extracted from land that was previously unattractive to the mineral industry. This increases the value of land but makes estate tax considerations a real concern for more families.

Money for Senior Care Services Fails to Keep Pace with Rising Need

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

Surveys from the AARP suggest that more than ninety percent of seniors would prefer to stay in their own homes as they age instead of moving into a nursing home or assisted living facility. Our New York elder law estate planning attorneys work with many seniors who take preparations specifically to avoid being forced to move in the future.

Unfortunately, access to the support services that allow seniors to stay at home is getting harder and harder to come by. Transportation services, meal delivery programs, adult day care centers, and similar programs are finding it tougher to stretch stagnant resources to aid a growing number of seniors. The Times Herald-Record touched on these New York elder care concerns in a story this week.

For example, at the end of this month the Dial-A-Bus service will no longer be providing support to elderly community members in New Windsor, Cornwall, and many nearby towns. Senior care workers explain that it is hard to underestimate the value of those sorts of services. For some isolated seniors, the bus service was not simply the only way they had to get to doctors appointments, but it was often the only chance these seniors had to socialize and interact with those in the community.

Green House Project: Nursing Homes Shift Away From Institutional Settings

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

Nursing homes can be intimidating places. The traditional model for these facilities is institutional, with facility designs and procedures based on mass efficiency instead of individual concern for the well-being of each resident. Our New York elder law attorneys appreciate that this “regimented” lifestyle is feared by many local residents who likely have personal stories of friends or family members who lived unhappily in one of these facilities. Some resident even put off elder law estate planning specifically because thinking about these issues is unpleasant and many would prefer to just avoid the issue altogether.

Of course, failure to plan for long-term care issues actually has the opposite effect–making it more likely that one will be forced to live in a less than ideal location. In fact, so long as resources are available, there is a growing chance that around-the-clock care can be provided for even the most ailing seniors in locations that reject the old model and prioritize individual care and personal well-being.

For example, the Democrat & Chronicle published a story on a new national movement to improve elder long-term care. The Green House Project is a program originally funded by the Robert Wood Johnson Foundation. It seeks to phase out the old nursing home model for one that focuses on more intimate settings. New homes built as part of the project have clusters of seven to ten residents who each have their own room and are given more autonomy. While projects like Green House are growing in popularity, it is undeniable that there is still a long way to go before all nursing home residents have care that places emphasis on their individual quality of life.

Increase in Blended Families Cited For Causing “Uglier” Estate Fights

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

The world is a different place today than it was in 1950. Several decades ago the vast majority of families were of similar make-up: father, mother, kids, dog, house, and car. Inheritance planning in those situations often followed very predictable patterns. A spouse received the assets after a death, and the children split the remaining assets when the second parent moved on. However, our New York estate planning lawyers know that there is much more complexity these days.

That is true for several reasons. On one hand, the law has changed, with different tax situations, legal tools, long-term care concerns and other realities forcing estate plans to take more into account. In addition, families are much more diverse these days than in the past.

Blended families are quite common, necessitating families take special care to account for their inheritance wishes. “Default” statutory inheritance rules may have been a bit less off-putting several decades ago. However, considering the unique make-up of most families these days, it is incumbent upon local residents not to risk their estate being split via default intestacy rules. As a new USA Today story explains, it is no longer a luxury to have the help of an estate planning lawyer–it is a necessity.

Mom Has Dementia and We Don’t Know What to Do

Published on: March 14, 2012 | by Ettinger Law Firm

There is no easy way for a family to deal with a senior grappling with a cognitive mental disease like dementia or Alzheimer’s. Like any health problems faced by loved ones, a family’s initial reaction is to try to get the senior the help they need. However, each New York elder law attorney at our firm understands that cognitive conditions are tricky, because the injury is not physical and often the senior may not be fully aware that they are even suffering from the problem at all.

One elder law advocate recently discussed this challenge in response to a reader question explaining her family’s difficulty dealing with her mother’s dementia. As published in the L.A. Times, the reader revealed that her 82-year old mother, who has dementia, began accusing the family of spying on her. As a result, the mother admitted to her doctor that she wouldn’t share anything about her health with them. The family has been left wondering what to do to help their ailing matriarch get through this difficult phase. Many local families visit our New York elder law estate planning attorneys with the same concerns about helping relative with cognitive issues.

For one thing, in many cases a doctor will not be willing (or legally able) to discuss the mother’s condition without legal documents in place. This is particularly true when the doctor suspects that there may be a family rift. Creating those legal documents is a large part of the work done by elder law estate planning lawyers. The documents help ensure that the senior can receive help with their legal, financial, and healthcare decisions. Creating a trust may allow a third party to manage an ailing senior’s assets. A durable Power of Attorney allows financial decisions to be made by another. Health Care Proxies are needed to make key medical decision when another is unable to do it on their own.

DOMA Developments May Have Implications for Married Same-Sex New York Couples

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

The Defense of Marriage Act (DOMA) is a federal law passed in 1996 that defines marriage for federal purposes as only between one man and one woman. As our New York estate planning lawyers have often discussed, this means that same-sex couples married in our state are still not considered married for federal purposes. This has serious implications for tax preparation, estate planning, and a host of other concerns facing these residents. DOMA prevents married individuals from filing joint federal tax returns, receiving Social Security benefits, or having tax-free inheritances.

Many advocates on all sides of the aisle are working to overturn the law. Bills have been advanced in Congress which would repeal DOMA. However, with the current partisan split it appears unlikely that these legislative measures are likely to pass anytime soon. But that does not mean DOMA is here to stay. Most of the recent action on the issue has taken place in the courts. Several federal lawsuits have been filed which challenge the constitutionality of the legislation. President Obama has refused to defend the measure, and so the law is currently being defended under the auspices of the Republican leadership in the U.S. of Representatives.

Last month a U.S. District Court judge in one of those cases found that DOMA (or at least section 3 of the law) violates the equal protection clause of the U.S. Constitution. The case is being appealed to the federal appellate court. This particular ruling relates only to one provision of the law as applied to one couple. However, it is a clear indicator that the entirety of DOMA may one day–perhaps soon–be found unconstitutional.

Make Plans for Dividing Up or Preserving Collections in Estate Plan

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

One important part of the elder law estate planning process involves working out inheritance details. This comes with unique concerns for each family as various assets have different meanings for each individual, far beyond their market-value. Accounting for these emotional attachments is a delicate process that should not be done hastily. For example, one valuable that may present unique inheritance challenges are collections. Our New York estate planning lawyers appreciate that many residents have spent years building collections–from holiday villages and marbles to art–and have strong feelings about how they’d like to see the valuables handled after they are gone. A recent story in The Ledger argues that planning is paramount.

Collections, like other art and antique valuables, can present somewhat complex inheritance concerns. Large collections can be hard to physically manage, have difficult value estimates, and still may have tax implications. On top of all of that, collections are often laden with emotional value–some family members may love the collections, others may not. But it may not even be as simple as passing it on to one who cares for the objects. Some children may have no desire for the objects beforehand but may become emotionally attached after their parent’s passing because of the way that the collections helps them remember their loved one. In this way, family fights over what to do with collections–particularly large ones that are hard to manage–can be common.

For local residents, avoiding the potential inheritance mess comes down to one thing: have a specific New York inheritance plan in place. The planning process will involve asking tough questions about the best options for the future.

Elder Law Associations Announce Support for Older American Act

Published on: January 31, 2012 | by Ettinger Law Firm

Advisor One reported his week on a push by a variety of national legal associations to support the “Older Americans Act of 2011.” The Older Americans Act (OAA) was first passed over 45 years ago, in 1965, to support seniors nationwide with a range of community planning and social services. The Administration on Aging was established as part of the legislation. Many New York elder law attorneys have joined in the advocacy effort to reauthorize the bill. In fact, just this week the National Academy of Elder Law Attorneys (NAEL) announced their support for the measure. NAEL is a professional association of elder law attorneys that work with the elderly and those with special needs.

Over the years many advocates have come to appreciate the important role that the OAA plays in the lives of vulnerable seniors throughout the country. However, the law was set to expire in 2011. That is why Senator Bernie Sanders from Vermont proposed legislation which would reauthorize the Act. It is difficult t get anything passed through the gridlocked Congress these days. However, that has not stopped those supporting these important efforts from trying to get it through the system. Many elder law advocates believe that the reauthorization effort is actually gaining steam.

A separate bill–the Older American Act Amendments of 2012–would make a few important changes to the original measure. For one thing, it calls for a revision of the ‘Experimental Price Index for the Elderly.” This initiative would change the index so that it more accurately reflects the costs which impact seniors at this stage in their lives. Other changes include altering the definition of “economic security” as it applies to determinations for housing, transportation, and long-term care assistance. A Meals on Wheels program would also be established along with a senior center community planning grant program.