New York elder law

Elders Caring for Spouses with Alzheimer’s Must Plan for Their Future

Published on: June 5, 2017 | by Ettinger Law Firm

Anyone with a spouse stricken by Alzheimer’s disease knows exactly how devastating the condition is on the patient and how taxing it can be on the person administering care. Often times, senior act as primary caregivers to their spouses battling Alzheimer’s, a testament to their love and commitment until the very end.

While the nature of alzheimer’s disease means afflicted persons do not often outlive their spouses, those acting as caregivers should nonetheless plan for contingencies such as these to ensure their surviving spouse is well taken care of. Depending on the disease’s progression and the overall health of each spouse, couples may need to plan differently to suit their individual situation.

First and foremost, elder spouses need to ensure their power of attorney is up to date and names the caregiver spouse as the primary decision maker for the individual afflicted with Alzheimer’s. Furthermore, this document should give the caretaker the power to name another individual as the decision maker upon passing away.

What is the Dead Man’s Statute?

Published on: June 2, 2017 | by Ettinger Law Firm

When someone passes away, he or she typically has the estate in order by creating a will or trust and designating an executor to oversee the dispersal of assets to named beneficiaries, ensuring a smooth process during a time of grief. However, even the wills and trusts that seem cut and dry can face legal challenges to parties claiming to have a stake in the estate and are rightfully entitled to certain assets.

Fortunately, New York and other states have laws on the books known as “dead man’s statutes” that help to exclude testimony concerning conversations between the deceased and the individual challenging the estate. The main reason to exclude such conversations as evidence from probate proceedings is to prevent purgery and the introduction of evidence that cannot otherwise be verified.

While not limited to cases involving trusts and estates, New York Surrogate Courts often find themselves hearing arguments involving the dead man’s statute. There are three-exceptions to the exclusion of testimony by interested parties under New York law. These exceptions include:

Which Court Handles Probate Cases in New York?

Published on: May 28, 2017 | by Ettinger Law Firm

Barring the creation of a trust, all estates must pass through probate court to certify the estate before assets may be disbursed to beneficiaries. In New York state, every one of the 62-counties has at least one Surrogate Court (New York and Kings Counties have two) to hear all types of matters related to decedents and their estates as well as certain types of guardianship proceedings and adoptions.

The law invests these powers to Surrogate Courts through the New York Surrogate’s Court Procedure Act (SCP). The section pertaining specifically to probate cases is NY SURR CT PRO § 201.3 and reads:

“The court shall continue to exercise full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents, and upon the return of any process to try and determine all questions, legal or equitable, arising between any or all of the parties to any action or proceeding, or between any party and any other person having any claim or interest therein, over whom jurisdiction has been obtained as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires.”

Overzealous Powers of Attorney and How to Handle Them

Published on: March 22, 2017 | by Ettinger Law Firm

When determining how you want your estate and assets administered upon your death, it is also important to consider how you want decisions made in the event that you cannot make them for yourself. Naming a power of attorney has a number of benefits that will avoid any drawn out court proceedings to name an agent in the event of your incapacitation. Power of attorney documents name an individual, also known as an agent, to perform specific tasks when you cannot. These powers can vary, as there is medical/health care power of attorney and also property or financial power of attorney powers.

Medical power of attorney gives an individual the ability to make your health care decisions, such as where you should receive care, if you should receive a specific treatment in the event your wishes are not listed, as well as dealing with your insurance and medical premiums. Financial powers of attorney allow an individual, upon a specific event, to handle a variety of your financial matters on your behalf. While many people will name someone as power of attorney in the event of incapacitation, some will name a power of attorney to take effect immediately, thus, delegating decision making power.

These situations are predisposed to undue influence, something the court is very suspect of and will closely monitor in the event they believe an individual is abusing their power of attorney role over an elderly individual. In the event that you are competent and have named someone as a power of attorney, but due to a number of circumstances, including the end to a relationship or a possibility of undue influence, you wish to revoke the power of attorney, you can do so by delivering a notice to the power of attorney, your estate attorney, as well as other interested parties notified of the document.

New York Elder Care – Pain Treatment for the Elderly

Published on: March 1, 2017 | by Ettinger Law Firm

Aging comes with a number of considerations, including how to deal with ailments, conditions associated with older age, as well as how method of treatment is best for you or a close loved one. Today, there are an overwhelming amount of options to choose from when it comes to pain management and treatment for chronic conditions, however, many of them can become very addictive. One somewhat controversial treatment option for pain management being used by a number of elderly citizens is the use of medical marijuana.

Although the use of marijuana whether medicinally or recreationally is illegal under federal law, over half of the states have decriminalized and now approved it for use medicinally. Based on numerous studies and research, it has been shown that as compared to other pain management treatments, the use of marijuana leaves less risk for addiction, fewer side effects, as well as allowing individuals to still go about their daily lives while managing health issues. Health issues associated with aging include autoimmune diseases such as multiple sclerosis, arthritis, as well as cancer, dementia and Parkinson’s disease, which have all been approved under conditions managed using medicinal marijuana.

While the current elderly population has been somewhat skeptical of what they have known as an illegal drug being approved for use in the medical setting, as more states make it legal for use, approval among the older generations increases. Since many seniors are seeking to determine if use of marijuana is suitable for their condition, many nursing homes and assisted living facilities have had to come up with their own policies, either endorsing or shaming it’s use. Almost a dozen nursing homes in the state of Washington have amended their policies to respond to the demand for approval of medical marijuana as treatment in their facilities.

Are Illegitimate Children Considered Beneficiaries?

Published on: February 24, 2017 | by Ettinger Law Firm

The legal rights of illegitimate children and their ability to take under the terms of a trust have for years been the subject of many litigation proceedings. Illegitimate children are traditionally known as children who are born out of wedlock or to unmarried parents, however, the most widely known cases are those children who were born as the result of an affair by either or both parents. When one parent is the beneficiary of the grantor of a trust, the other spouse of the child, when old enough, may try to assert claims that they are also entitled to access the trust due to blood relation.

How Does an Illegitimate Child Take?

While traditionally under common law, an illegitimate child was not seen as a legal child of either parent, with no right of parental support or right of inheritance, today the laws have changed to better reflect the rights of an illegitimate child. Although states differ regarding their laws on wills and trusts, many now favor giving children rights, under statutes such as The Status of the Children Act as well as the Equal Protection Act. Under the Status of the Children Act, there is a presumption that any reference to children not further defined in a will includes both legitimate and illegitimate children, regardless of their relationship to the father.

New Nursing Home Regulations and Implementation

Published on: February 9, 2017 | by Ettinger Law Firm

Daily, thousands of baby boomers are forced to make the decision as to whether they need care and assistance as they continue to age. Currently, there are 1.4 million adults residing in nursing homes and that number will only continue to grow over the next few decades. Plans for how to cover the millions of adults who thought they would rely on Medicare and Medicaid in their old age as well as where they will live and who will assist in taking care of them if needed, are questions that must be addressed soon.

Thus, it is not surprising that it took four years and thousands of comments in the rulemaking process in order to revise the broad nursing home regulations that were put in place in the 1990s under the Nursing Home Reform Act. Nursing homes must comply with federal nursing home regulations, but some state laws have adopted more strict laws.

What New Regulations?

The Basics – Nursing Home Abuse: Signs and How to Stop It

Published on: February 4, 2017 | by Ettinger Law Firm

Many of our elderly adults end up in nursing homes or assisted living, whether as a result of an accident or due to a declining ability to care for themselves. While many have family members or friends who are able to ensure their loved one is being taken care of properly in their respective homes, not all of those elderly are fortunate to have someone to look after them. In fact, the Special Investigations Division of the House Government Reform Committee found that 30% of nursing homes in the United States were cited for nearly 10,000 instances of abuse over a two year period.

Abuse in a nursing home can take many forms, some problems involving physical abuse and negligent include untreated bedsores, inadequate medical care through dehydration and improper hygiene, as well as physical abuse such as broken bones, untreated bruises and cuts. Other examples of abuse involve verbal abuse, for example yelling, and ignoring requests, as well as withholding medication.

This problem happens all too often, and it can come down to the caretakers word against the elderly abused patient. An Illinois man concerned about the care of his father after he voiced concerns about a new nurse, installed a surveillance camera in his father’s room in an assisted living home. The camera unfortunately confirmed exactly what he believed, he was being neglected at times, verbally and physically abused by a certified nurse’s aid working at the facility. The nurse was charged with a felony aggravated battery to a person older than 60 years and felony abuse of a long-term health care facility resident.

Back to the Basics – The Gift Tax

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

Putting your assets in an irrevocable trust has a number of benefits, including: allowing the settlor, also known as the maker of the trust, to establish how his or her assets will be kept and eventually distributed, it allows the settlor to have access to the income produced by the trust, as well as the numerous tax benefits such as capital gains taxes being either deferred or in the event of gifting, avoided.

According to the Internal Revenue Service, the federal tax code applies a gift tax on an individual level, however, that tax does not apply to trusts. If you transfer funds from your personal account, whether it is a savings or checking, to another, in excess of $14,000 you will be subject to a tax for the gift made, however, the IRS does not place these same taxes on trusts, depending on how the gift was made.

If the beneficiary makes a discretionary gift to another, a gift that can be shown to be made for the immediate benefit of another, it depends on whether the donation is viewed as present or future interest in the gift. If it can shown that the gift was made for the future interest of another, the IRS will not subject the trust to gift tax, however if it can be perceived that the gift was made for a temporary relief of another, the gift tax will be applied to the donation made.

How to Properly Choose a Caregiver For your Loved One

Published on: November 5, 2016 | by Ettinger Law Firm

There comes a time when difficult conversations must be had with an elderly loved one in your life that requires a caregiver, but is not receptive to the idea. These conversations can initially be overwhelming for both the loved one and the elderly person, as they start to make a plan about how their lives will change, but as so many Americans continue to live longer with a number of chronic health problems, enlisting the help of a caregiver is a very realistic and responsible choice in order to ensure an elderly person is well taken care of. This also tends to be the best option for those families who are not geographically close enough to care for their loved one full time but see the need for change in the current situation.

In determining the needs of your loved one, continue the dialogue to assess what is most important to both of the parties, such as, full time versus part time care, what daily activities the individual partakes in and what kind of assistance is needed with those, if any, as well as whether overnight care or meal assistance is needed, among many other factors.

Once needs have been determined, it is important to build a pool of applicants to interview. Caregivers build a very personal and intimate relationship with those they care for, thus, it is critical that the individual not only approves of the caregiver, but shares something in common and can trust that person.