Is Having a Will and an Estate Plan Enough for Long Term Care?

Add comment June 29th, 2015 11:08am Traci D. Blake

At the eCareDiary website, Founding Partner David Cutner was recently asked about the effects of long-term care planning on a Will and an Estate Plan.  A reader asks Mr. Cutner, “I have a Will and estate plan. How will they be affected if I need long-term care?”

Mr. Cutner discusses an overview of some of the long-term care options and strategies available to New York State residents, and how to obtain Medicaid benefits with the assistance of an Elder Law attorney.  He also reviews whether or not Will and Estate plans are satisfactory documents for Long-term care planning, and how these documents can be impacted.

The article is located in the “Expert Q&A” section of, and the link to the article can be found below.

Federal Estate and Gift Tax Limits for 2015

Add comment June 15th, 2015 12:53pm Julia M. Greenberg

The 2015 federal estate and gift tax exemption rose to $5.43 million per person. This amount is slightly above the $5.34 million which was the 2014 estate tax exemption.

This means that during 2015 a person can bequeath to their heirs an estate of up to $5.43 million including any gifts made during lifetime, without having to pay federal estate tax. The top federal estate tax rate remains at 40%.

The 2015 annual exclusion for gifts did not increase from 2014, which was $14,000 per donee. Wealthy individuals will sometimes make gifts to their children and grandchildren on an annual basis to reduce the size of their estate.  For example, a parent can make a gift of up to $14,000 to each child, without having to file a gift tax return or pay gift tax.  Generally, the donor is responsible for the gift tax, but the donee(s) may agree to pay the tax instead, as per IRS guidelines.

Regarding any state estate or inheritance tax, individuals should consult with their attorney, tax advisor or with the department of taxation in their state of residency.

Lamson & Cutner sponsors the Miracle League of Westchester

Add comment June 8th, 2015 11:44am Cynthia P. Kuster

Lamson & Cutner, P.C., is a proud sponsor of the Miracle League of Westchester

The Miracle League of Westchester is a league for special needs children and adults that enables them to play baseball at a specially designed adaptive field.  The organization’s motto is, “Everybody deserves a chance to play baseball.”  At Miracle League games, each player is matched with a buddy who assists the player as needed on the field, gives support and encouragement, and acts as a friend on and off the field.  This year the League’s seven-game season began April 25th.  The League also hosts a Golf Outing, a 3-week Summer Program where participants can try other sports, an Awards Picnic, Fall Ball, Movie Nights, a Halloween event, and a Holiday Party.

Partner David Cutner stated, “I feel that sponsoring the Miracle League is an important way for our firm to give back to the community, enabling people of all ages and abilities to have fun playing the great game of baseball.”  Lamson & Cutner is pleased to be helping people with special needs. Posts Response by David Cutner – Assignment of Nursing Homes by Medicaid

Add comment June 1st, 2015 10:29am Caitlyn McStay

The eCareDiary is a website that offers regular information and updates to caregivers of the elderly and disabled. Partner David Cutner regularly answers questions for readers, as Mr. Cutner is a member of the panel of “experts” on the eCareDiary website.

Recently, a reader asked the question, “Does Medicaid Assign a Nursing Home When It’s Time?”

Mr. Cutner answered by saying that patients and families are able to select the nursing home of their choice, assuming that the nursing home accepts Medicaid patients (almost all do), and if there is an available bed for the patient.

A link to Mr. Cutner’s complete informative article is here below.

David Cutner is Interviewed by Casey Dowd | Fox Business

Add comment April 28th, 2015 10:14am Cynthia P. Kuster

Partner David Cutner was recently interviewed for an article in, “What [Baby] Boomers Need to know About Reverse Mortgages” by Casey Dowd, “The Boomer.”  In the article, Mr. Cutner explains what a reverse mortgage is, and why people use them.  He also explains some of the serious risks of this financial product that people should be aware of – and wary of.

As Mr. Cutner states, “The original idea of the reverse mortgage was to give seniors (age 62 and over) the opportunity to access the equity in their homes without selling or incurring the obligation to make monthly payments to a lender.”  However, at 62, a person could live 30 or more additional years.  “Borrowing too soon – before the funds are really needed – can have a devastating impact later on” should the borrower face unexpected future financial obligations.  Reverse mortgages also often come with high costs and high interest rates.

To read the full article, with more information about the benefits and risks of reverse mortgages, click on the link below:

Alzheimer’s Challenges for Caregivers

Add comment April 21st, 2015 02:13pm Cynthia P. Kuster

When a loved one is diagnosed with Alzheimer’s disease, the challenges are multifaceted and daunting.  The emotional strain on family and friends who become caregivers to the patient can be overwhelming.  They often become distressed seeing their loved one change behaviors, or struggle to remember, recognize their own surroundings, or communicate effectively.

Caregiving can be physically demanding as well.  Alzheimer’s patients sometimes need constant, careful supervision to ensure their safety and take care of their needs.  As Alzheimer’s is a progressive disease that presents in stages, patients in a mid to late stage require more attention.  It can be helpful for caregivers to find personal time for exercise or meditation, to pay attention to their own health concerns and stress levels.

Watching a loved one slip away is difficult enough, but there can also be financial concerns that add to the frustration and stress.  Caregivers, who many times are spouses, often juggle the responsibility of managing the patient’s and the household’s finances.  It is no surprise that about 40% of caregivers for dementia patients suffer from depression.

The drain on financial resources for obtaining home care assistance can be devastating, especially if the afflicted person lives for many years after the diagnosis.  A person’s – or a couple’s – life savings can easily be eaten up, paying for care.  Early planning can help protect most of your (or the afflicted person’s) savings, enabling the patient to maintain his or her lifestyle as long as possible without becoming impoverished.  Even later stage planning, when the Alzheimer’s/dementia sufferer is about to enter a nursing home, can protect a significant portion of the patient’s savings.

Seeking legal advice from a reputable Elder Law attorney as soon as possible after diagnosis gives you the best chance to protect and safeguard the financial resources of a person diagnosed with Alzheimer’s disease.  The sufferer will have the best opportunity possible to live out his or her life in comfort and dignity.  You can also be relieved of some of the stress and anxiety that accompany seeing their, or your, life savings being completely exhausted by the cost of care.

The role of the caregiver for the Alzheimer’s or dementia patient will always be unique, depending on the circumstances.  Understanding the disease, and adapting to your loved one’s needs, can be both challenging and rewarding. Posts Response by David Cutner – Your Caregiver and Medicaid

Add comment April 15th, 2015 01:49pm Cynthia P. Kuster

Partner David Cutner, as an “Elder Law Expert” on the eCareDiary website, recently answered a new question posted by a user of the site.  The question was, “If I have Medicaid home care, can I select my own caregiver, or do I have to work with a Medicaid approved agency?”   Mr. Cutner’s answer was, yes, you can select your own caregiver using Medicaid’s CDPAP program, but you need to be aware of the conditions.

Under the CDPAP program, you choose the caregiver, and she is paid by Medicaid (at Medicaid’s rates).  However, you will not have the support of an agency in the event that your caregiver is unable to come to work.   You would be well advised to have back-up support lined up in advance, in case there is a problem.

If you are waiting to be approved for Medicaid home care and are private paying in the meanwhile, your chances of being reimbursed by Medicaid will be greatly enhanced if you use a Medicaid licensed agency.   As Mr. Cutner states, “if you work with an unlicensed agency or with a consumer directed caregiver, there is a high risk that your reimbursement request will be denied.”

Making sure you understand the issues involved with obtaining and paying for senior care is extremely important.  That is why so many people employ Elder Law attorneys to assist them.

Resources for Alzheimer’s Patients and their Families

Add comment April 9th, 2015 04:26pm Julia M. Greenberg

Alzheimer’s Disease, named after psychiatrist and neuropathologist, Alois Alzheimer, is a mentally degenerative disease that impairs cognitive function.  It is a form of dementia that affects people both in mid-life and later in life.  Today, approximately 5.3 million Americans have Alzheimer’s Disease, according to the Alzheimer’s Association.  Some statistics say that approximately 65% of dementia patients suffer from Alzheimer’s.

Alzheimer’s can often appear in stages.  It sometimes can be mistaken for natural aging or memory loss in its early stages, and it can be difficult to diagnose.  Its cause may be genetic, say some studies.  It is, of course, a very good idea to consult your family physician or neurologist if you or your loved one is symptomatic.   Thankfully, there are current treatment options that delay the advance of the disease, and hopefully with further research and development, treatment options will increase and improve in the future.

As our population ages, the prevalence of Alzheimer’s is likely to grow.  Today, there are excellent resources for the Alzheimer’s patient, their families, and caregivers.  The Alzheimer’s Association is a wonderful resource, and has locations across the country, including one in New York City. They also have a helpline.  Useful information can be found at

Many local hospitals have centers that specifically serve the Alzheimer’s and dementia population, and their Social Service Departments are a great resource for support networks, as well as physician referrals.

The burden associated with caring for your loved one who suffers from Alzheimer’s can be onerous in many ways.  Seeking the advice of an Elder Law Attorney can ease the burden on the family.  For residents of New York State, there are excellent benefit programs available to the Alzheimer’s patient and their family.  The planning options and strategies that Elder Law Attorneys have available to their clients, can help you avoid financial ruin from the costs of extended long-term care.  Alzheimer’s patients can live many years, so understanding legal planning options is certainly worthwhile.  In light of Alzheimer’s effect on mental capacity, it is always recommended to arrange one’s legal affairs as soon as possible.

FIDA: The Non-Covered Services

Add comment March 30th, 2015 03:37pm Traci D. Blake

While the Fully Integrated Duals Advantage (FIDA) Program is not yet in its mandatory phase for seniors receiving both New York Medicaid and Medicare, it is very important to be aware of upcoming gaps in insurance coverage.  Presented as the one-stop insurance plan that covers everything seniors will need for their health care, the new private managed care insurance scheme will not provide health insurance coverage in four areas historically covered by New York Medicaid and/or Medicare. FIDA will provide patients with access to doctors, hospitals, prescriptions, rehabilitation therapy, home care services, nursing home services, and much more.  However, out of network family planning services, methadone maintenance treatment programs, directly observed therapy for tuberculosis disease, and hospice care will now be non-covered services.

These non-covered services may be accessed through fee-for-service Medicare or New York Medicaid. The Interdisciplinary Teams and FIDA plans are required to coordinate, arrange, and ensure receipt of these services by the patient from their Medicare and Medicaid programs when called for in the patient’s service plan.

Rules Related to Nursing Home Discharges and Transfers

Add comment March 23rd, 2015 02:10pm Traci D. Blake

Under New York law, there are just (6) ways in which a nursing home may discharge a patient from their facility.

  1. The patient’s health improved and care at the facility is no longer essential.
  2. The discharge is necessary for the resident’s well-being as the facility is unable to adequately address his or her needs.
  3. The patient needs to be discharged for the safety of individuals in the facility.
  4. The patient must be discharged because the health of others in the facility could be endangered.
  5. Non-payment after adequate and appropriate notice to the responsible parties.
  6. The facility is closing and has received approval of its plan of closure from the New York State Department of Health.

Before a discharge can occur, the nursing home must provide adequate verbal and written notice to the patient’s legal representative or immediate family within 30 days of the transfer/discharge. If the discharge or transfer is due to health and/or safety reasons, then the verbal and written notice must be provided as soon as practically possible. Federal law requires the discharge notice to provide the specific regulation that supports the action taken by the facility along with the reason for the discharge/transfer, the effective date, the location of the discharge, information regarding the right to appeal the decision, and the contact information for the State Long Term Care Ombudsman program.


If you file a timely appeal, you have the right to remain in the facility until a final decision is made.


Elderly Parents Who Reside with Their Children

Add comment February 10th, 2015 02:37pm Tracy Connors

If your parent is living with you, can he or she still qualify for Medicaid?  The answer is – absolutely.  Often an ill parent, or one that requires some care, moves in with an adult child.  The child ends up paying many of the parent’s expenses, and it can be a drain on the child’s time, energy, and financial resources.  Also, often one child pays all the expenses and the siblings pay little or nothing.  Asking for money for groceries, gas money for doctors’ visits, and medical co-pays, can feel petty or embarrassing, but those bits and pieces add up.

In New York and some other states, children do not have a legal obligation to pay for a parent’s care.  If your parent lives with you and needs care, there is a high likelihood that your parent could qualify for Medicaid, and have some of the services paid for.  This would reduce the drain on your resources and alleviate some of the resentment that can occur when one sibling ends up doing most or all of the “heavy lifting.”  If your parent is in your home, he or she would qualify for Community Medicaid or Medicaid Home Care, with no “look-back” period.

An Elder Law attorney can advise you on how you could get your parent to qualify for Medicaid, and what the benefits would be.  Often it is compelling, not only because you can save your parent’s money for their future needs and their heirs and beneficiaries, but also because it can help protect your relationships with your siblings.

When and Why to Engage an Attorney for your Estate

Add comment February 4th, 2015 04:26pm Cynthia P. Kuster

eCareDiary, an online web site for caregivers and people needing long term care, recently published a response by Lamson & Cutner partner David Cutner to the question — “Is an Estate Attorney mandatory in setting up an Estate Plan?”  In his response, David discusses how financial assets can be transferred upon the death of the owner without needing to go through probate or administration in court.  An account owner can designate a beneficiary or beneficiaries who will receive the assets directly upon the death of the owner.  Also, he states, “Real estate that is titled as ‘joint tenants with right of survivorship (JTROS),’ or as ‘tenancy by the entirety’ for married couples, will pass to the survivor directly.”

David says that some families may be able to do effective estate planning without the need for an estate planning attorney.  However, there are numerous situations in which an Elder Law attorney would be useful or even essential.  Foremost among them is that simple strategies for distributing assets and avoiding probate upon death do not take into account the likely scenario in which a person needs expensive long term care well before he or she passes away.  In addition, other types of assets may require going through probate, if not anticipated and prepared for in advance.  Complicating factors such as beneficiaries who are minors or disabled, designating how to treat children from a prior marriage, or contentious family situations, would also make it advisable to engage an attorney.

Formulating and executing a plan for (a) how you will pay for long term care, in the likely situation that you need it, and for (b) the eventual disposition of your assets, is a very beneficial achievement.  It can be the key to ensuring that you will receive the best care you can get while you are alive, and that you will have something to leave to your family or others upon your passing.

Here is a link to the full article.

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