New York Estate Planning & Elder Law Blog

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.

Misconceptions About Cost of Insurance

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

Market Watch reported last month on new research that suggests that many community members are misinformed about the cost of certain types of insurance. As New York estate planning attorneys we understand the importance of life insurance policies in many local resident’s financial planning efforts. Similarly, an important part of an elder law estate plan often involves securing long-term care insurance. Misinformation about the practicalities of these insurance options may leave local residents less legally and financially secure down the road.

The latest research focuses mostly on life insurance and was conducted by LIMRA and the non-profit group, LIFE (Life and Health Insurance Foundation for Education). Most surprisingly, the effort–conducted via surveys–found that consumers often overestimate the cost of life insurance. The confusion about the costs means that some families may have less protection than they need.

The research involved asking respondents to estimate the cost of different types of policies. The average estimates were four to seven times higher than the actual cost. For example, the annual cost of a 20-year, $250,000 life-insurance policy for a healthy 30-year old is about $150, but the average consumer guess was over $400.

Graduation Season is Perfect Time for Grandparents to Consider Gifts

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

This is the time of year when many teenagers and young adults end one chapter of their lives and prepare for the next. It is also a time for many families to consider how far they’ve come and what the future holds for themselves and their loved ones. For those graduating high school, the obvious next step is college. Our New York estate planning attorneys are intimately aware of the challenges of paying for a college education these days–tuitions seem on a never-ending upward spiral.

No matter what the family financial situation, there is benefit to properly planning for these costs and understanding the implications of certain financial decisions. For example, Daily News published a story this week on the way that grandparent gifts to grandchildren heading to college can be properly tailored to meet tax goals. The story noted how the tremendous student loan burden faced by so many college graduates make tuition support one of the best gifts any grandparent (or other loved one) can provide to a young person.

But not only is the gift an act of generosity, it may be a particular prudent financial decision this year. Right now the lifetime gift and estate tax exemption rate is at $5 million. The level is set to drop down to $1 million next year. It may be logical to take advantage of these rates, so that assets can be passed on now instead of through one’s estate.

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.