Posts filed under 'Elder Law Planning'
May 27th, 2013
Lamson & Cutner founding partner David Cutner joins a panel of distinguished speakers for a discussion entitled: “The Keys to Senior Life Planning: Documents, Dollars, & Doing.”
The event is at the Association of the Bar of the City of New York, 42 West 44th Street, New York, NY, on Wednesday, May 29, 2013, from 6:00 pm to 8:00 pm. Admission is free (registration required). The event is sponsored by the Committee on Senior Lawyers.
Program notes: “What will I HAVE?” – “what will I NEED?” – “what will I DO?” As those of us who are “of an age” think about the future, these questions inevitably arise. Whether you never plan to retire or are counting the days, whether you are a baby boomer or years beyond, this program will help focus your thinking on the need to ask those questions and provide some insights into answering them.
April 5th, 2013
The New England Journal of Medicine recently published the results of an extensive study led by the RAND Corporation into the costs of caring for patients afflicted with dementia or Alzheimer’s disease. The number of people affected, and the costs of their care, are turning dementia into the number one disease in the United States. According to the study, in 2010, the costs of care for dementia were $109 billion, as compared to $102 billion for heart disease and $77 billion for cancer. Of those 71 years of age or older, 15% or approximately 3.8 million people have dementia. In the next 25 years, it is estimated that the number of people affected will grow to over 9 million.
The costs of caring for dementia patients are particularly high, because of the chronic, progressive, and long-term nature of the disease. Many patients require constant surveillance, and cannot be left alone. Also, care of dementia patients often takes a toll on family members, financially, physically, and emotionally.
If family members or close friends are showing signs of the onset of dementia (typically memory or cognitive difficulties), it is time to seek advice from an Elder Law attorney about options for care, and preservation of assets and income.
January 3rd, 2013
As reported in the Washington Post, China recently enacted legislation requiring adult children to visit their elderly parents “often.” The law does not specify how often is often enough, but gives parents the right to sue their children for failing to visit. Chinese news outlets frequently carry stories about parents being abused or neglected, so it will be interesting to see how this new law is applied.
There is probably little risk that any similar law would be enacted in the U.S. However, a number of states (not including New York) have enacted laws making children financially responsible for the care of their indigent parents.
As the costs of medical care and long-term care increase, and government agencies try to reduce their share of these costs, it may be wise to seek the advice of an Elder Law attorney. Particularly in New York, excellent planning options exist to prevent parents’ financial ruin from these costs.
November 15th, 2012
Julia M. Greenberg, attorney with Lamson & Cutner, P.C., is presenting to the Asthma/Emphysema Self-Help Group, Inc., on Thursday November 15, 2012. Ms. Greenberg will be speaking on “How Respiratory Patients Can Get Long Term Home Care Without Losing Their Shirt, also: Health Care Proxies, Powers of Attorney and Related Matters. ”
The Asthma/Emphysema Self-Help Group, Inc., established in 1990, is an independent group of adults with chronic respiratory disease and their caregivers who sponsor informational support group meetings. Those with chronic respiratory disease and their caregivers are invited to attend their meetings. They also publish a nationally-distributed newsletter, Respiratory News & Views. They can be contacted at (212) 777-0486 or [email protected] for more information.
June 29th, 2012
On June 28, 2012, the Supreme Court of the United States upheld most of the Affordable Care Act, President Obama’s comprehensive health care law. The central issue before the Court was the individual health insurance mandate, the section of the law that requires virtually all Americans to purchase health insurance or pay a fine. In the 5-4 decision, written by Chief Justice Roberts, the personal mandate was upheld as constitutional since it can be reasonably characterized as a tax, and therefore falls within Congress’ power to “lay and collect taxes.”
One important section of the law that was struck down dealt with the major expansion of the Medicaid program and the federal government’s enforcement of the expansion on the state level. Essentially, the law threatened to penalize states that didn’t participate in the Medicaid expansion by entirely withdrawing federal funding for existing Medicaid programs. Seven justices agreed that this provision was overreaching and coercive, and that Medicaid expansion should be optional for the states.
Though today’s decision invalidates certain parts of the Act, and in some ways limits the federal government’s power by relying on Congress’ taxation powers and not the Commerce Clause, the holding is by and large a big victory for President Obama, Democrats and supporters of health care reform. Stay tuned to the Best Elder Law Blog and the Elder Law Exchange Newsletter to find out how this ruling will impact you and your family.
June 14th, 2012
Last month, one of New York Magazine’s cover stories was a poignant article titled “A Life Worth Ending,” by journalist Michael Wolff. The story is a personal narrative of Mr. Wolff’s confrontation with the long and slow decline of his aging mother’s mental capacity and physical health.
Wolff’s mother suffers from a host of chronic disabilities and medical problems, including advanced dementia and seizures. For years, Wolff and his siblings have had to make decisions on how best to care for their incapacitated mother within a medical model that focuses more on preserving life than quality of life.
Wolff’s mother is currently residing in a studio apartment. She is bed bound and unable to speak. She is being cared for by personal caregivers 24/7, paid for by her long term care insurance policy, her own savings, and contributions from her three children. Her latest living arrangement was settled upon after a series of stretches in assisted living facilities (costing $8,000 per month), hospitals, and rehabilitation facilities. Over the course of his mother’s long, gradual decline, Wolff and his siblings have had to make crucial decisions on her behalf regarding major medical decisions, her living arrangements and her long term care, including matters relating to hospice, long-term care insurance, nursing home placement, assisted living facilities, Medicare, home care, health care proxies, and palliative care. They have held numerous meetings with teams of doctors regarding their mother’s diagnosis, quality of life and life expectancy and have faced intra-family differences of opinion.
Wolff’s direct writing about his difficult experience gives voice to a reality that many people are suffering first hand. The article makes the importance of documents such as the health care proxy and power of attorney abundantly clear, and, that gaining knowledge on how to plan for our futures and discussing those plans with our loved ones is imperative.
March 15th, 2012
Lamson & Cutner’s latest Special Report is currently at the printer, and will be available soon. The motivation for writing this report, according to David Cutner, was that “we felt there was a huge gap in the available literature about Elder Law techniques and strategies. There was nothing that could give someone a quick, but comprehensive, view of how to go about solving their legal and financial issues concerning their health care, particularly if they’re faced with the ruinous costs of long-term care.”
The Elder Law Crash Course answers the call by giving readers a 15-minute education in the master strategies to qualify for Medicaid and protect your money and property at the same time. The Crash Course isn’t legal advice, but it will certainly alert you to your rights and options, and help you make the most of a consultation with an Elder Law attorney.
If you would like to have a FREE advance copy of The Elder Law Crash Course, please contact our office by sending an email with your name and address to [email protected], or calling us at 1 (855) 898-1919.
Also, you can get up-to-date information on current Elder Law issues by signing up for a FREE subscription to THE ELDER LAW EXCHANGE newsletter at www.theelderlawexchange.com.
November 4th, 2011
This fall, Partners in Care, one of the premier providers of home care and geriatric care management in New York City, has been hosting a series of free online seminars focused on helping you make difficult elder care decisions.
The next online seminar, “The Financial Realities of Home Care” takes place on November 16 at 1 PM EST. It will be moderated by Mary Alice Williams, an Emmy Award-winning television journalist and health educator. The online seminar includes an informative presentation by three experts in the home care field, followed by an interactive question and answer session.
The three panelists for the online seminar will be Marki Flannery, the President of Partners in Care; Paula Brancato, a representative of Northwestern Mutual and an expert in long-term care insurance; and Elder Law attorney David Cutner, a founding partner of Lamson & Cutner, P.C.
Individuals interested in learning about the costs of long-term care, and how to plan and pay for it, should plan on joining the seminar, which can be viewed conveniently and privately on your own computer. You’ll have an opportunity to send your own questions to members of the panel, and the seminar is free.
You can register for the seminar at www.caregiverseminar.org
September 26th, 2011
Lamson & Cutner has published a New Updated Second Edition of its popular and highly regarded “25 Strategies to Prevent Financial Ruin from Long-Term Health Care Costs.” A copy of the informative Special Report is available free of charge. Click here to access a free download of the report, or contact the law firm by email or telephone to obtain a printed hard copy. If you represent an agency or organization that provides assistance or services to the elderly or disabled, please call Lamson & Cutner for delivery of multiple copies that you can provide to your population and their families.
While the “25 Strategies” Special Report deals with complex legal issues and strategies, you will find that it is clearly written and easy to understand. David Cutner, the principal author of the report, explains: “I believe it is important to de-mystify the legal process, and state in plain language what we do and how we do it. It makes no sense for attorneys to speak to clients in the same way they speak to other attorneys or judges. Clients are entitled to understand what is involved when they seek our advice, so they can make an informed decision about what is best for them.”
September 15th, 2011
The NYS Department of Health has finally issued long-awaited regulations implementing changes in New York law regarding recovery and reimbursement from estates of Medicaid recipients. These changes have been very controversial because the law’s new definition of what constitutes the “estate” is in conflict with other, long-established, laws affecting estates, trusts, and real estate. In essence, under the new laws and regulations, Medicaid will seek to recover from non-probate assets, i.e., assets that have never been considered to be part of a decedent’s estate, or even to exist at all after death. A prime example is that Medicaid will seek to recover the value of life interests in real estate (which, under real estate law, are extinguished upon death). Lamson & Cutner is currently analyzing the new regulations, and will be posting additional advisories once we have a clear view of their implications.
April 4th, 2011
Two of the New York Medicaid Redesign Team’s proposals that were most damaging to the elderly and their spouses, and to the parents of disabled children, were not included in the final budget approved by the Legislature on March 30, 2011.
We can all breathe a sigh of relief that New York is not going to impose a “look back” period for gifts and transfers for Community Medicaid or Medicaid Home Care, which would have caused devastating penalties. In addition, spousal refusal and parental refusal for community based Medicaid will not be eliminated. Both of these proposals are discussed in an earlier post on this Blog.
At the same time, however, the Legislature enacted an amendment to the definition of an individual’s “estate” for Medicaid purposes, with the obvious purpose of expanding Medicaid’s ability to recover greater amounts from the estates of Medicaid recipients. The expanded definition now includes retained life estates, jointly held property, and interests in trusts.
We believe that the expanded definition is problematical in a number of respects, and will likely lead to litigation. Unfortunately, it may be some time before we have clarity from the courts regarding the reach of these definitional changes.
In the meanwhile, it may be important to have your estate plan reviewed by an Elder Law attorney.
November 30th, 2010
Many seniors currently need assistance paying their bills and managing their finances, or may need help sometime in the future. It’s important to have a trustworthy person authorized to manage your finances should you be unable to do so yourself.
For many seniors, adding a child or other loved one as co-owner on bank and brokerage accounts can be an easy and convenient way of managing those assets and making sure bills are paid on time. However, many seniors do not take into account the possible risks and potential consequences of joint ownership, and the other available alternatives that may be more in line with their objectives.
First, be aware that a joint owner will have complete access to your bank account and has the right to make an unlimited amount of withdrawals, even if it is your money in the account. A joint owner can write checks and withdraw money without your permission. This is why it is imperative to name an individual who you trust will act in your best interest.
Second, once your co-owner’s name is on the account, your money will be vulnerable to his or her creditors. For instance, if your co-owner goes through a divorce, has a business failure, or gets sued, your money will be exposed to those claims.
Third, when you die, the assets in a jointly-owned account will automatically become the property of the surviving owner. A joint owner generally has a ‘right of survivorship,’ so the assets will pass directly to him or her at your death. This can be a desirable and convenient way of passing assets at death, as long as it is in line with your wishes. However, the results can be disastrous if your intention is for the money to pass to someone else, or to be divided among several beneficiaries according to the terms of your will.
Additionally, as Elder Law attorneys, we are always concerned with possible Medicaid implications. Many people erroneously believe that Medicaid will view a joint account as being owned half by the Medicaid applicant and half by the other owner. However, Medicaid presumes that the entire account belongs to the Medicaid applicant, and the burden is on the applicant to prove otherwise. Therefore, joint ownership does not protect any portion of an account from Medicaid’s rules unless it can be proven that money in the joint account belongs to someone other than the Medicaid applicant.
A joint account may be appropriate in certain situations, however, there are several alternatives to joint accounts that can protect you and your assets in different ways.
One simple alternative is to sign a durable power of attorney, and file it with the financial institutions where your accounts are held. Your agent under your power of attorney would be able to manage your finances on your behalf, including making withdrawals and writing checks without your permission, but the assets would be owned by you alone. Your agent would have a legal duty to manage your finances on your behalf and in your best interest.
Also, if you are the sole owner on the account and have a power of attorney, you should designate beneficiaries to avoid lengthy and costly probate proceedings. By using “in trust for” (also known as “ITF”), “pay on death” (also known as “POD”) or “for the benefit of” (also known as “FBO”) designations on your accounts, your money will pass directly to the beneficiaries that you have listed after you pass away, but they will have no ownership interest during your lifetime.
Although they are beneficial for assistance with managing your assets while you are alive and distributing your assets after death, neither a power of attorney nor an ITF designation will protect your money should you need to apply for Medicaid benefits. In almost all situations, the best and most protective vehicle for safeguarding your assets is going to be a trust. A trust is a legal entity that is created in order to assume ownership of your assets and property, and hold them for your benefit during your life and for your beneficiaries after your death. A Trustee is named to manage the funds in the trust according to the terms of the document.
Once your assets are transferred to the trust neither you nor the Trustee is the owner of the funds, thereby allowing you to become financially eligible for Medicaid benefits. Additionally, the trust protects your money from your – and your Trustee’s – creditors (including Medicaid). At your death, the trust assets pass to the beneficiaries you designate within the trust agreement itself. There are several types of trusts available to protect assets and property from potential creditors, avoid probate, and keep your assets safe and available for you even if you need to apply for Medicaid services.
As you can see, there are many ways to title your assets in order to place yourself in the best possible position according to your particular needs and comfort level. It’s important that you speak to an Elder Law attorney about planning for a time when you may be incapable of managing your own affairs and placing you in the most advantageous position possible should you need to apply for Medicaid. Elder Law attorneys will work closely with you to devise a plan that works for you and in which your priorities are tantamount. If you would like advice about your specific situation, call us today at (212) 447-8690.