Elder Law

Sunday, October 18, 2009

Elder Law is an important area of the law today for family members, life partners and friends of all ages, financial means and health. Elder Law focuses on protecting your assets, should you become disabled or face catastrophic medical expenses. An elder law attorney helps elderly clients and their families deal with the legal issues involved in growing older, including the handling of medical and financial decisions

Elder Law planning entails gifting programs, Wills and Trusts, Medicare/Medicaid planning both for individuals and married couples, Durable Powers of Attorney, Living Wills and Health Care Proxies, and nursing home care. Other considerations include transferring a portion of your assets to children or grandchildren, Guardianship for person or property of an individual, Social Security and Social Security Supplement, Long term care insurance, Living Trusts and taxes, financial planning and Elder Law abuse.

If you do not make your choices known, the law steps in and makes choices for you based on legal assumptions. Many times, the choices the law makes are not the same as those you would make. A few simple documents can assure that those closest to you-the people you choose-are the ones who can act for you. Without these documents, the court may need to appoint a guardian for you-an expensive procedure which may result in a stranger taking over your affairs.
 

  • Simple and Complex Wills
  • Revocable and Irrevocable Trusts
  • Powers of Attorney
  • Health Care Proxies
  • Living Wills
  • Medical Authorizations

 

Planning For Domestic Partnerships and Families of Choice

The law presumes that we all marry someone of the opposite sex, only marry once, that we have one or more children and that we all get along. If you are part of a traditional family, many choices that need to be made in an emergency have been made for you by law. Usually those choices are in agreement with what you yourself would wish.

But many of us are in relationships that do not fit into these neat boxes. We are in same-sex relationships, or have been married more than once, or have never married, or are estranged from one or more of our children, or have children from more than one marriage.

If your situation is not traditional, it is essential that you execute a series of documents to ensure that matters concerning your health, property and death will be handled in the manner which you choose and not according to the presumptions of law.
 

 

  • Partnership Agreements
  • Reciprocal Wills
  • Co-Parenting Agreements
  • Asset Management
  • Protection of Life Partner
  • Living Trusts
  • Life Insurance Trusts

Long Term Care and Medicaid Eligibility

As we age, we become more aware of the possibility that our medical expenses might exhaust our resources, or that our ownership of the family home might be jeopardized. This is especially concerning considering that the average cost per month for nursing home care in New York exceeds $10,000. When one considers that the average stay in a nursing home is three years (seven years for dementia and alzheimer’s patients), you can see how quickly the earnings of a life-time can be exhausted.

It is often possible to protect our assets and our homes, enabling us to help our children enjoy the fruits of our labors, rather than seeing the results of our lifelong work eaten away by nursing home or home care costs.

Under New York law, several tools are available to aid in protection of one’s assets. Among these tools are trusts, life estates, family agreements, and transfer of assets. In addition, the law gives preferred status to certain life situations, such as when an adult child resides in the home of his or her parent, or a child is disabled.

In some cases, it is appropriate to take advantage of some or all of these tools immediately. In the alternative, some people prefer to make arrangements for use of these tools now, but delay the implementation of the plan until a future date. In any case, it is important that the elderly seek advice and counsel to determine if these steps might be appropriate for them.

Estate Planning (General)

It may be hard to think about how your family would deal with your affairs and finances after you pass away, but it is essential to do so. Estate planning allows you to impact the future by directing how you would like your property and assets distributed upon your death. Without proper planning, your estate could go to the government or to people whom you did not choose.

A second major consideration for executing a Will is to provide for a guardian of your children. If any of your children are under 18 years of age at your death, a court-appointed guardian will be required to manage your minor child’s share of your assets. Usually a court will appoint your spouse a guardian, however, if you and your spouse were to die at or about the same time without a Will, then a court may appoint a guardian not of your choosing.

Having a Will alone may not be sufficient estate planning. As real estate values rise and Congress and state government change estate tax and Medicaid eligibility laws, it is imperative that families prepare for their future and begin planning earlier than ever before. Effective estate planning includes determining one’s lifetime giving objectives, including gifts to younger generation family members (i.e. transfers of closely-held family business) and charitable organizations. The objective is to help you put a plan in place which minimizes federal gift, estate and generation skipping taxes while addressing spousal and family needs. Your plan should also consider provisions for medical decisions, continuing control of finances in the case of incapacity, and other non-tax personal objectives.

The following are some of the tools attorneys use in creating comprehensive estate plans:
 

 

  • Wills, Trusts, Gifts, Health Care Proxies & Powers of Attorney
  • Business Succession Tax Planning
  • Probate & Estate Administration
  • Family Limited Partnerships
  • Credit Shelter, QTIP & Charitable Trusts
  • Irrevocable Income Only Trusts
  • Grantor Retained Annuity Trusts
  • Asset Protection and Spendthrift Trusts
  • Charitable Giving

Estate Planning for Second Marriages

With more and more families coming together as the result of second marriages, New York’s intestate and elective share statutes create significant issues for families of second marriages. Proper estate planning, using prenuptial and marital agreements, Life Estates, Wills, and trusts can eliminate the possibility of disinheritance of your children and their descendents, protect your spouse and help eliminate disputes regarding asset distribution between family groups.

Business Succession

Business owners have special considerations when planning for their futures, including concerns like: who will manage the business in the event of death or incapacity and how can it be ensured that your family will be supported by business income, after retirement?

Probate and Estate Administration

When a loved one dies, the survivor is often overwhelmed by the paperwork involved in transferring the assets to the survivor or other persons to whom the decedent chose to leave his or her property. The transfer can occur in many ways.
 

  • Probate of a will
  • Jointly held property
  • Property held in trust
  • Intestacy

When a person dies with a Will, the Will is probated in Surrogate’s Court. When a person dies without a Will, the state’s intestate laws will distribute a person’s assets in accordance with a formula based on what the typical person may have done with their assets. An attorney may also handle probate and estate administration, including preparation of state and federal estate tax forms, protecting the interests of the fiduciaries, Surrogates Court trials, and accounting submissions.

Probate and Estate Administration begins upon the death of an individual. It refers to the manner and procedures necessary to resolve the decedent's personal and financial affairs in a proper and timely manner. An estate administration can be simple or complex, the determination of which depends on many factors, not simply the size of an estate.

In addition to questions regarding funeral and burial arrangements, a survivor must often deal with transfers of property, estate taxes, the possible need for appraisals, the sale or transfer of assets, payment of debts, and Legal assistance can lessen the burden of all of these issues and make the transition easier.