Long Island Elder Law Firm
Elder Law is the practice and knowledge of several distinct areas of law that are all intertwined which affect people, families, and their decisions regarding assets, retirement and a whole host of other considerations. Your attorneys need to understand and, just as importantly explain, the following programs and laws and how each of them affect you and how they are affected by each other law, program or issue.
Simplifying these complex issues and laws and programs in an understandable way is probably the most important task we have.
- Medicaid can pay for the costs of a nursing home or skilled nursing facility. Additionally, there are Medicaid benefits beyond paying for nursing homes like paying for home health care.
- Qualification for Medicaid benefits. Medicaid (the Department of Social Services) performs several eligibility tests. There are income tests. There are asset tests. There are tests to punish transfers of assets or income. These tests can differ if there is a single person, a widow (or widower), or a married person.
- There are appeals to unfavorable decisions. There are reviews within the Department of Social Services, there are quasi-judicial appeals known as Fair Hearings. There are further appeals known as Article 78 hearings.
- There are Medicaid recoveries against a Medicaid recipient’s estate
- There are liens that can be placed on a Medicaid recipient’s assets although the Medicaid recipient is receiving Medicaid benefits.
To greatly simplify the services provided, there is Part A or hospital insurance. Part B, the medical insurance. Part C, Medicare Advantage, and Part D the Medicare prescription drug programs.
Knowledge of taxes and how they affect benefits and planning options is of paramount importance. Your attorney needs to be knowledgeable about income taxes, capital gains taxes, real estate taxes, gift taxes, estate taxes, and generation skipping transfer taxes to name, but a few. Additionally, your attorney needs to understand planning options as well as tax planning opportunities. With one of our law partners also being a CPA, we take this area very seriously as the different options can have significant consequences.
Proper planning involves preparing health care proxies, powers of attorney, living wills, trusts, and a last will and testament. However, if an individual loses capacity or never has had the legal capacity to prepare these documents, a Guardianship hearing can help. There are a couple of types of Guardianships. There is the:
- Article 81 hearing (Article 81 of the Mental Hygiene Law) or the
- Article 17A hearing (Article 17A of Surrogate Court Procedures Act).
The appropriate hearing for each individual varies based on their own specific situation.
Knowledge of real estate law is important because often the primary residence is a valuable asset that clients are trying to protect from losing to the costs of long term skilled nursing care.
Some questions need to be answered like:
- How is the property owned currently?
- Does the deed create a tenancy by the entirety?
- Does the deed create a tenancy in common?
- Or does the deed create a joint tenancy with rights of survivorship?
- Is there a deed at all or is ownership evidenced by shares of a corporation and a proprietary lease as in a cooperative (co-op)?
- Was there a transfer of the deed? And, if so, how was it transferred?
- Was the property transferred outright?
- Was it transferred into a trust?
- Does the deed create a life estate interest?
- Does the deed transfer by operation of law?
- What is the basis in the property for calculating capital gains?
- Can capital gains be eliminated or avoided entirely?
These are but some of the issues that must be considered.
There are a myriad of issues involved with retiring and retirement income including eligibility of the wage earner. Additionally, certain other family members may be entitled to benefits of the wage earner. These benefits can also affect Social Security Disability benefits.
SUPPLEMENTAL SECURITY INCOME
Aged, blind or disabled persons may be entitled under this program for monthly cash payments. To determine eligibility there are asset and income tests to name a few.
Veterans are entitled to a number of benefits if they qualify. Some of these benefits include: disability compensation, aid and attendance, Veterans Administration services, and burial allowances.
There are so many different types of trusts and they all serve different functions and purposes. There are living trusts, testamentary trusts, revocable trusts, irrevocable trusts, trusts for Medicaid planning, trusts for estate planning, trusts for tax planning, to name a few.
Some questions that need to be explored include:
- Who can make a trust?
- How is a trust created and when?
- Is the trust effective now or in the future?
- Who are the beneficiaries of the trust?
- Does the trust benefit the creator of the trust? Others? Or both?
- What’s a pooled trust? What is a pooled trust’s function or purpose?
New York law defines a will as a written instrument to take effect upon death, whereby a person disposes of property or directs how it shall not be disposed of, disposes of his body or any part thereof, exercises a power, appoints a fiduciary or makes any other provision for the administration of his estate, and which is revocable during his lifetime.
Different wills are appropriate for different individuals and their estate planning goals. Some information or facts that may affect how a will is drafted includes: marital status, citizenship, amount of assets, children from a prior marriage, and children or other beneficiaries with special needs.
There are formal requirements to the execution and attestation of a last will.
HEALTH CARE PROXIES
A person with mental capacity is clearly in charge of their health decisions. However, when a person loses capacity to make decisions, it is important to name an individual as a designated agent to make health care decisions on his or her behalf.
A living will (not to be confused with a last will or a living trust) is another document that works in conjunction with the health care proxy to express an individual’s wishes and instructions if they were diagnosed to be in a permanent vegetative state.
These documents are not do not resuscitate orders (DNRs) which can be executed with an individual’s physician.
POWERS OF ATTORNEY
An individual with mental capacity can conduct their financial affairs as they desire. However, a person with diminished capacity may make poor decisions and may benefit from naming an individual or individuals as an agent or co-agents to help conduct their financial affairs.
Some questions that need to be considered include:
- How much power does this agent have?
- Who is best qualified to serve as agent?
- When does the agent assume responsibility?
LONG TERM CARE INSURANCE
Clients need to discuss with their attorney issues involving long term care insurance including the following:
- Coverage and limitations
- How it can complement estate and Medicaid planning
- Costs and affordability
- Tax benefits and deductions
Free consultation We offer a free initial consultation with an elder law and estate planning attorney.Call : 631-979-4300