New York Estate Planning & Elder Law Blog

MOLST Forms Gaining Attention

Published on: July 31, 2016 | by Ettinger Law Firm

MOLST Forms, What Are They?

Easily identifiable by its bright pink color, another advance directive has been approved for use in New York medical treatment and healthcare administration. Medical Orders for Life Sustaining Treatment are medical forms similar to a DNR Order, being that they both provide for life of end care preferences. However, Medical Orders for Life Sustaining Treatment (MOLST) not only allows a patient to refuse resuscitation in the event it is needed, but it also allows for a patient to state when they would allow or request it. Once the form was approved in 2008, EMT agencies now may use the MOLST form without needing a non-hospital DNR order, however, they must honor the DNR bracelet if worn by the patient or a non-hospital DNR form if it is on file.

How it Differs from DNR Orders

Back to the Basics – Do Not Resuscitate Orders

Published on: July 28, 2016 | by Ettinger Law Firm

Advance Directives

When determining the type of health care you wish to receive in the event that you are no longer able to make medical decisions, advance directives give you the ability to determine when you will continue or cease to receive medical care, the kinds of care or treatment that are acceptable, as well as who has the power to make health care decisions on your behalf as your health care power of attorney/health care proxy. There are a few different types of advance directives, we have previously discussed the health care proxy roles in medical decisionmaking as well as the importance of living wills. Although the names and regulations vary by state law, there are also Medical Orders for Life Sustaining Treatment forms, as well as Do Not Resuscitate Orders that patients can fill out in order to refuse or request medical care.

DNR Orders

Back To Basics: Where To Keep Your Estate Plan

Published on: July 28, 2016 | by Ettinger Law Firm

You have finally done it; you took the necessary and important step to sit down and put together an estate plan with a qualified New York estate planning attorney. You have all of the necessary documents you need to move forward confident into the future about how your assets will be managed and distributed. You have gotten over the biggest hurdle that a majority of Americans never address but now you are faced with a trivial but important matter: where do I keep my estate plan?

Location, Location, Location

Where you store your estate plan matters. As we have written about before, failure to locate the documents in your estate plan at the necessary time could end up with them being treated as if they did not exist at all. Having your wishes written down somewhere that no one knows about does no one any good. Estate planning documents like wills serve an important evidentiary purpose for the courts as they are written proof of your final wishes. No court will probate a will that you cannot find and no hospital or financial institution is going to respect a Power of Attorney if they cannot see and examine the documents themselves.

Palliative Care: Know Your Rights To It

Published on: July 24, 2016 | by Ettinger Law Firm

New York Statute

In February 2011, New York amended the Palliative Care Information Act, requiring doctors and nurse practitioners to inform terminally-ill patients about end of life options and counseling regarding palliative care. To receive palliative care information under the New York statute, the patient must reasonably be expected to be within the last six months of his or her life, a standard that is commonly associated with hospice care. The information provided to the terminally ill patients includes their diagnosis and the likely course of the disease, the options that would be available to treat the disease, risks and benefits of those options, and their legal rights to pain and symptom management during their final months. If the patient lacks decision making capacity, their appointed proxy or representative must be provided with the information.

Hospice versus Palliative Care

Gifts to the Dead in New York: Are They Still Effective?

Published on: July 23, 2016 | by Ettinger Law Firm

Most people plan their estate believing that everyone they have left money or bequests to will survive them, such as when a parent specifies that money or property will be left to a child. But sometimes unexpected deaths happen and when it does, many people are left wondering what will happen to the property that they specified to go to the predeceased. It is a tricky situation, but thankfully New York law and proper estate planning precautions can address the problem.

New York “Anti-Lapse” Statutes

Common law followed in the past dictated that gifts to someone who was deceased was null and void. This is due to the fact that a dead person cannot own property. Since they cannot have property, they cannot inherit it. When someone left property to a person who had predeceased them, the bequest would be said to have lapsed. This would have unintended consequences, such as cutting out people who would have inherited the property if the bequest had not failed and others receiving more than the testator intended.

What Happens if my Beneficiary Turns Down My Bequest?

Published on: July 21, 2016 | by Ettinger Law Firm

It is not a common situation but it does happen. After you pass, your will is entered into probate and your beneficiaries are notified of your bequests but there is a problem: they do not want it. They refuse to take ownership of the property you have left them and in doing so have thrown a wrench in your well laid estate plan.

No Claim to the Bequest

When a beneficiary turns down a bequest this is known legally as a “disclaimer.” There is no requirement under a law that a person who is left assets or property under a will must take it. You cannot force property onto someone else. If a person disclaims a bequest, the person is treated as if they had predeceased the testator and the property will pass onto another beneficiary.

Validity of Living Wills in New York

Published on: July 20, 2016 | by Ettinger Law Firm

In a previous post titled Health Care Proxy: What is Their Role in My Health Care Decisionmaking?, we discussed the role of health care proxies in your end of life planning and what capabilities they have regarding your medical treatment in the event you are not able to make your own decisions due to incapacity. In New York, naming a health care proxy is commonly done along with the formation of a living will. A living will is another type of advanced directive, it is a written statement that outlines what the patient seeks to have done regarding his or her medical treatment, in the event of incapacity or unconscious. A health care proxy will carry out the terms of a living will when there is one on record, instead of making the medical decisions for the patient which is their traditional role. A living will puts the patient’s loved ones on notice of what the patient’s wishes are and ensures they are carried out.

Interestingly, in New York, legislation has not given guidance as to the right of an incapacitated individual to have their last rights respected. However, courts in New York will, through clear and convincing evidence, attempt to respect those wishes if there is a way for them to be known, i.e. through a written document such as a living will. In the living will, you can state which treatments you wish to refuse in the event that they are being considered for treating your condition. Many forum living wills state that in the event of irreversible physical or mental condition, either due to terminal illness, permanent unconscious condition, or minimal consciousness but inability to make decisions, the patient can decide whether they wish for treatment to be withheld. You can also indicate in which scenarios, such as cardiac resuscitation, artificial feeding, mechanical respiration or refusal of antibiotics, you wish for treatment to be administered or withheld.

When it comes to terminal illness, majority of doctors are quick to respect the wishes of a patient who has completed a living will. Terminal illness is generally the most common and uncontroversial example of a situation where a patient’s living will being recognized by the court. However, situations such as permanent disability have been more difficult to apply living wills to. While some people view disability as an intolerable condition in which they would rather cease living than to have a lesser quality of life, doctors have a difficult time because many people will show signs of improvement over time in situations such as a traumatic accident or episode in which they are left in a lesser state than before.

Disinheriting Your Spouse? Not So Under New York Law

Published on: July 18, 2016 | by Ettinger Law Firm

You are always told that you can leave whatever assets you want in your will to whomever you want. After all it is your last will and testament. Your will represents your final wishes and they are to be carried out to the letter. You may be shocked to learn that in some cases under New York law that your will can actually be disregarded almost in its entirety, and that special case comes into play if you do not leave anything to your spouse.

Sacred Institution, Sacred Inheritance Rights

Marriage holds a special place in society and the laws of New York not only reflect that distinctive position but also protects the institution of marriage. Under New York’s Estate Powers and Trusts law section 5-1.1, a surviving spouse has the right to collect assets from a deceased spouse’s estate if the deceased spouse’s will either does not provide for the surviving spouse or does not give enough to the surviving spouse. It does not matter if the will has bequeathed those assets to someone else; the surviving spouse’s rights to the property trumps all others.

Understanding Joint Ownership with Rights of Survivorship

Published on: July 16, 2016 | by Ettinger Law Firm

There are many ways to pass on your assets without having to go through probate. Any account or policy with a beneficiary designation, payable on death clauses or joint ownership with rights of survivorship will not be considered to be a part of a probate estate. Those assets will pass to the person designated or the other joint owner at the time of your death. Despite being handy estate planning tools that help assure that the assets in question are never out of reach or frozen, many people fail to understand the nuances and rights associated with such designations and it is this failure that can frustrate and cause unintended consequences when dealing with a person’s estate.

Only After You Pass

Many people are familiar with a beneficiary designation on a life insurance policy. After you pass, the insurance company gives the money from the policy directly to your beneficiary avoiding probate. Similar to a beneficiary designation is what is called the payable on death clause (POD). At the time of your death, your designated beneficiary can claim the assets in the account by showing a death certificate, similar to claiming a life insurance policy. The designated beneficiary has no claim to the assets in the account while you are alive and cannot withdraw or otherwise dispose of them.

Home Care Workers Secure Compensation Victory

Published on: July 15, 2016 | by Ettinger Law Firm

While most of us know that the baby boomer population is vast, many do not realize the impact this population will have as they start to retire over the next few decades. In fact, over the next 20 years, 10,000 baby boomers will turn 65 everyday. Between 65-70 years old has been the age of retirement for many, with some retiring early and some pushing through another decade of work. However, as this generation gets older, their need for care will continue to grow.

Federal Level

In late June, the Supreme Court decided not to hear Home Care Association of America v. Weil, a case that was attempting to deprive home care workers of their ability to qualify for minimum wage and additionally, for overtime pay for those hours worked over 40 per week. These home care workers have been part of the ‘Fight for 15’ movement to get equal pay and higher pay for minimum wage. Home care workers have previously been labeled by the Labor Department as ‘companions,’ which does not allow them to qualify as employees who are subject to minimum wage and overtime pay. The rules governing home care workers were not fixed until this past year, when the Labor Department determined that home care employers needed to follow the same rules as any other employer and pay their employees according to minimum wage standards.