02/08/2016










Who is Responsible for Protecting Your Rights as a Shareholder?

Long Island Shareholder Rights Attorney - Law Office of Andrew M. Lamkin P.C. Becoming a shareholder in a corporation is a weighty decision. You are deciding that you trust a company enough to invest. Sometimes, it’s hard to be certain that the company is holding up its end of the deal. As a shareholder, you have certain rights that must be upheld, and it can be difficult to know where to turn if you suspect your shareholder rights have been violated.

How Shareholder Rights Work

Corporations are a unique type of organization. They aim to make a profit, but they operate on behalf of many different actors. Corporations typically rely on shareholders for investment. When things are going well for the company, this is an excellent system for everyone involved: the company continues to grow, and shareholders then “share” in the profits. Shareholders vote on major company decisions, can access information about the company’s operations, and may be given priority for buying additional stock. In some cases, however, shareholders get the short end of the stick. For example, you might:

  • Be induced to sell your shares at unfair prices
  • Not receive the opportunity to vote on important company matters
  • Not receive proper dividends
  • Not be permitted to transfer your stock

Shareholder rights are outlined in the corporation’s bylaws, but these actions are generally violations of your shareholder rights, and you have recourse if such actions have occurred. The strange thing about corporations is that they themselves have no obligation to you as a shareholder. Being a shareholder can be understood as “owning” part of the corporation, but only in a very limited way. A corporation is not one single entity, but a set of contracts between the various stakeholders. Shareholders are just one piece of a rather complex puzzle.

When you hold shares in a corporation, you aren’t in a direct relationship with the corporation as a legal entity. Instead, you’ve entered into a fiduciary relationship with the board of directors and the officers of the corporation. Therefore, it is the board of directors and officers who are responsible for upholding your shareholder rights. This is actually a good thing, because having your rights linked to the entire corporation, with all its interrelated functions and parts, would be difficult. The board of the directors, on the other hand, consists of several readily identifiable individuals who hold the duty to act in the interests of shareholders.  

What to Do When Your Shareholder Rights Are Violated

If your shareholder rights are violated, the initial action is to issue a formal complaint to the directors. Hopefully, the situation will be rectified at this step. If not, you may be able to bring a lawsuit. This will typically be against one or more of the directors or officers. In a derivative lawsuit, you’ll actually be suing the corporation (represented by the directors) on behalf of the corporation. You’ll be suing as a partial owner of the corporation, and not as an individual. A seasoned attorney can assist you to determine how to move forward with a legal action, based upon the facts in your case.

If you would like to learn more about your rights as a shareholder and what you can do to protect your rights or file a lawsuit, contact us at the Law Office of Andrew M. Lamkin P.C.

Exactly How Does Power of Attorney Work?

Long Island Power of Attorney Lawyer - Law Office of Andrew M. Lamkin P.C.Some people think that establishing power of attorney is only for the very wealthy, or those with pressing health concerns. In fact, it’s a good idea for every person to have this important safeguard in place. With the help of a good power of attorney lawyer, the process need not be complicated. To start, we’ll discuss a few different types of powers of attorney and how they work.

Types of Power of Attorney

  • General power of attorney. In essence, general power of attorney gives someone of your choosing the power to act on your behalf. This might involve managing financial transactions, settling claims, operating your business, or handling gifts. General power of attorney is useful for those who may foreseeably not be able to operate at their full mental or physical capacities. It can also be useful for people who travel abroad often, and need a trusted individual to have the right to act on their behalf in the U.S. General power of attorney is often included in an estate plan.   
  • Special power of attorney. This works similarly to general power of attorney, but you specify exactly which powers you want your chosen agent to have. Commonly, these will include selling property, managing real estate, handling financial transactions, and collecting debts. You might choose to designate special powers of attorney if you have health concerns, or if you have commitments that draw you away from certain tasks.
  • Healthcare power of attorney. Giving an agent healthcare power of attorney gives that person the power to act on your behalf if you are medically incapable of making your own decisions regarding your care and treatment.
  • Durable power of attorney. Signing this order means that whatever power of attorney you have given your agent will remain valid. Certain situations and health conditions make it wise to have this document in place.

How to Establish Power of Attorney

The first step is to choose a trusted individual to be your agent. It might be a family member, a friend, or an attorney, but no matter who it is, you must trust them implicitly to act in your best interests. They should keep careful records of every transaction undertaken under your name. You may designate multiple agents, but keep in mind that doing so can result in delays when it comes to taking action. Once you have chosen your agent, it’s time to sign the power of attorney. You must be of sound mind when you sign the document, so if there is any chance that this could be called into question, you might consider having a doctor attest to your mental competency prior to signing.

It’s important to have an experienced lawyer working with you when establishing power of attorney. Contact us at the Law Office of Andrew M. Lamkin P.C. for a consultation. We can help you develop a plan for how your finances and healthcare will be handled if an accident, illness, or medical condition renders you incapable of making these crucial decisions yourself.

Why a Nonprofit Nursing Home May Be the Best Option for Your Loved One

New York State Nursing Home Lawyer - Law Office of Andrew M. Lamkin P.C. Choosing a nursing home facility for an elderly loved one is a difficult decision for a family to make. There are so many factors at play: quality of care, distance from home, and a pleasant environment, among others. Many options may be available, but be careful. Some nursing homes are more concerned about making a profit than about providing the right level of care for residents.

The Rise of For-Profit Nursing Homes

These days, most nursing home facilities in the U.S. are for profit. In fact, 78% of nursing home revenues went to for-profit institutions in 2010 (up from 72% in 2008). These nursing homes may be more willing to cut crucial corners in order to bring in more revenue, even when doing so puts residents in harm’s way, and skirts around what the law permits.

Between 2010 and 2012, federal prosecutors brought 120 cases against nursing homes. Many of these homes are run by enormous companies that operate thousands of nursing homes nationwide. Some are even facing lawsuits associated with preventable deaths of residents. These cases involve a situation in which residents often went without food, bathing, or proper medical treatment. Neglect is not a problem that is unique to for-profit nursing homes, but it is more common within them.

How For-Profit Facilities Cut Corners

The most important factor that influences a nursing home’s quality of care is the staff. It’s not surprising that when a facility hires skilled, well-trained personnel–and hires enough of them–residents are well cared for. Conversely, it is unsafe to have a low ratio of caretakers to residents, as many residents suffer from serious health and cognitive conditions that require close supervision.

A 2011 report published by the Government Accountability Office found that for-profit institutions were severely lagging in this area. For-profit nursing homes had fewer registered nurses present per resident per day, and had the highest number of deficiencies causing harm or jeopardy to residents. For-profit institutions are also likely to spend less money on activities for residents, as well as nursing supplies, and even food. This all leads to a lower quality of life and more health risks for residents. Not-for-profit institutions, however, are not driven by the bottom line. These facilities generally hire more staff, and are able to commit more resources to keeping residents healthy and happy.

Making a Decision

Choosing a nursing home for your loved one is a deeply personal decision, and one that is different for every family. However, when researching nursing homes, it is worth weighing the true goals of the facility–is it the well-being of residents, or is it profit? It is well worth your time to look into non-profit nursing homes, as they often provide a higher standard of care.
If you already have a loved one in a nursing home, don’t hesitate to speak up on their behalf if it appears he or she is not getting the quality care they deserve. And, if you suspect mistreatment or abuse, contact us at the Law Office of Andrew M. Lamkin P.C.

Resident-on-Resident Nursing Home Abuse More Common Than You Might Think

New York State Nursing Home Abuse Lawyer - Law Office of Andrew M. Lamkin P.C. When we think of nursing home abuse, we tend to think of nurses and caretakers mistreating our elders. This is an important problem, but there’s another aspect of nursing home abuse that can fly under the radar. Sometimes, nursing home residents themselves are guilty of abusing other residents. If you have a loved one in a nursing care facility, be aware of the very real risk of mistreatment by other residents.

Types of Abuse by Residents

In a group setting like a nursing home, it’s easy for small, but nevertheless troubling, behaviors to escalate if they go unchecked. Every month, one in five nursing home residents experiences some type of aggression from another resident. Some of these offenses are merely aggravating. Residents might yell, insult, or curse at another resident. If this behavior is habitual, it can take a serious toll on the mental health of the targets.

Moreover, poor behavior may not stop there. Frequently, residents enter other people’s rooms without permission, looking through other’s possessions. Sometimes, residents go as far as hitting, biting, scratching, or sexually assaulting other residents. This is, of course, unacceptable. Nursing home employees have a difficult job, but more must be done to protect residents from abuse.

What Causes Resident-on-Resident Abuse

In most incidents, it’s hard to point to a single cause of aggression. Many nursing home residents are cognitively impaired, and engage in actions that may be associated with some form of dementia. If resident-on-resident abuse is rampant in a particular nursing home, it may potentially be linked to the overall conditions in the facility. Abuse is more likely in facilities in which the following factors are present:

  • Conditions are crowded, with less private space for each resident. This can lead to frustration and tension, which can in turn lead to residents acting out. It also means that residents may have more frequent unwanted interactions.
  • Inadequate staff for supervision. Stretched thin, personnel can find it difficult to find time to resolve conflicts, and to respond quickly to explosive situations.
  • There is not a good system in place for conflict resolution. With many people living in the same close quarters day-to-day, it is not surprising that tensions can develop between residents. Without a mediation structure, those tensions can fester and potentially become explosive. Staff members may become desensitized to conflict, ignoring the warning signs for abuse.
  • Staff members aren’t communicating with residents in a sensitive manner. Particularly for relatively young residents who are suffering from cognitive impairments such as dementia, pent-up frustration is an enormous problem. If they aren’t given the chance to talk about it, and provided with proper outlets, it could lead to such a resident engaging in abusive acts against other residents.

What to Do If a Loved One is Being Abused in a Nursing Home

There is nothing more painful than seeing a family member suffer. If you believe a loved one is the victim of abuse at the hands of another nursing home resident, don’t wait. Contact us at the Law Office of Andrew M. Lamkin P.C. An experienced elder law attorney, Andrew Lamkin can help your family resolve the situation and pursue justice and full compensation for your loved one.

Top 4 Reasons to Rewrite Your Will

New York State Wills and Trusts Lawyer - Lamkin Elder LawWhile you may be aware of the importance of estate planning, preparing a last will and testament, establishing trust, and having other advanced directives, when did you last update your will? Do you review your will and your trusts regularly? Have you had any major life changes since your will was originally prepared or last updated?

Keeping your will up-to-date is extremely important not only to help you reach your estate planning objectives, but for the future well-being of your family and other beneficiaries. If you have not reviewed your will recently, these are four of the main reasons you should consider doing so right now:

1. You Are Getting Married

Getting married is one of the biggest decisions a person will make during his or her life. Your will should include your new spouse and his or her future needs, as well as your own. Getting married is an ideal time to rewrite your will.

2. You Bought a New House

Making the decision to buy a new house is an important decision. That being said, a new home can add a substantial asset to your estate. A new home purchase is a long-term investment you will want to protect both now and for your beneficiaries. Don’t delay on adjusting your estate planning following a new home purchase. This way your property will be protected and covered under the conditions of your will.

3. You Are Having Your First Child

Becoming a parent for the first time is a joyful occasion; however, with the joy comes many legal and financial responsibilities. While it will be your job to provide and care for your child as he or she grows, you also need to ensure that your child will be taken care of in case of an untimely death. If tragedy struck, you would want to have your child’s financial future secured. You would also want to ensure that guardianship is assigned so that your child is cared for by the person you feel best suited to the task.

4. You Just Received a Life-Threatening Diagnosis

Even though we all know we’re going to die one day, people don’t like to dwell on their own mortality. That all changes though when you receive a life-threatening diagnosis. Finding out from your doctor that you have an illness or medical condition which will lead to death far sooner than you may have hoped is extremely sobering. At a time like this a person should review and update his or her will. Take the time to make sure your affairs are in order for the benefit of those you love.

In truth, rewriting your will should be done any time major changes in your life occur. Whether you experience one of the above, you are going through a divorce, you are about to welcome your first grandchild, your financial situation has significantly improved, you recently sold or purchased new assets, or you simply changed your mind about beneficiaries, talk to a lawyer about rewriting your will. When the time comes, you and your loved ones will be glad you did.

Experienced Wills and Trusts Lawyer in New York State

If you have made any major life changes in recent months, or your outlook on life and what the future may hold has changed, now is the time to rewrite your will. With the help of an experienced lawyer from the Law Office of Andrew M. Lamkin P.C., changes and adjustments to wills and trusts can be accomplished with ease. Our firm has years of estate law experience and we are committed to doing all we can to help our clients achieve their estate planning goals.

To get started with rewriting your will, call our firm and schedule a free consultation with a New York State estate planning lawyer today. Protecting your future begins now!

Elder Financial Fraud Explained

Long Island Elder Financial Fraud Attorney - Lamkin Elder LawAccording to the National Center on Elder Abuse (NCEA), major financial exploitation is self-reported by seniors and elderly adults at a rate of 41 per 1,000 surveyed. This figure is significantly higher than the rates for self-reported emotional, physical, sexual, or other types of abuse and neglect. What makes this statistic so frightening is knowing elder financial fraud is not limited to any one particular area – anyone can fall victim. Elder financial fraud is a very real concern, nationwide. Out of all the elderly adults surveyed by the NCEA, only one in ten abuse cases did not include some form of financial abuse.  

What Is Elder Financial Fraud?

Elder financial fraud is a type of elder abuse involving taking or swindling an elderly adult of out their assets by fraudulent means and for personal financial gain. Examples of elder financial fraud include:

  • Forging a person’s signature.
  • Coercing an elderly adult to “donate” money for a non-existent or fraudulent charity.
  • Using false pretenses to convince a person to give you money.
  • Using deceptive methods to rob an elderly adult of his or her savings.
  • Telemarketing scams.
  • Credit card scams.
  • Identity theft.
  • Promising goods or services in exchange for money, and then not delivering.
  • Confidence crimes (i.e. gaining someone’s confidence for fraudulent financial gain).
  • Physical or mental harm for extortion purposes.
  • Embezzlement.

Who Is Most Likely to Perpetrate Elder Financial Fraud?

Elder financial fraud can be perpetrated by anyone from a loved one to a trusting friend, a relative to a long-time confidante, a caregiver or healthcare provider, and even a dishonest telemarketer or thief who targets the elderly.

Most people, particularly older adults, are extremely trusting. They want to believe people are good and have faith in humanity. While that is not necessarily bad, it can leave them open to financial scams and make them easy targets for financial fraud.

If a “friend” calls claiming he or she has fallen on bad times and is in desperate need of assistance, an elderly adult may not think twice about lending money. Unfortunately, this is one of the ways our loved ones fall victim. Even an unsuspecting call from a company informing your loved one about a computer virus and offering to remedy the problem for a price is often a scam.

Sadly enough, some of the worst cases of elder financial fraud involve loved ones facing substance abuse or financial problems, or those simply wanting to gain access to money they believe is rightfully theirs.

What You Can Do to Prevent Elder Financial Fraud

Although you can’t keep a watchful eye on your elderly loved ones at all times, you can take certain actions to help minimize or prevent elder financial fraud:

  • Check bank statements and accounts regularly; be watchful of suspect charges.
  • Talk to your loved ones about potential scams to which they could fall victim.
  • Restrict access to your loved one’s checking and savings accounts.
  • Agree to discuss all financial transactions before money changes hands.
  • Be watchful of property or belongings going missing.
  • Assign a financial power of attorney so your loved one will no longer be burdened with making financial decisions.

If you suspect your loved one has become the victim of elder financial abuse, or you are worried about his or her financial well-being, speak with an elder law attorney at once. An attorney from our firm can assist with estate planning and other asset protections, as well as advise you of how to best manage these issues. Call the Law Office of Andrew M. Lamkin P.C. to schedule a free consultation.

Understanding Health Care Power of Attorney

Long Island Advanced Health Care Directives Attorney - Lamkin Elder LawAs your loved ones get older, there may come a time when they will be unable to make healthcare decisions on their own accord. When this happens, you’ll want to have a health care power of attorney, advanced directive, or proxy in place, particularly if your loved one is living on his or her own.

These important legal documents are extremely beneficial in cases in which a parent is unexpectedly involved in an accident or contracts a life-threatening or debilitating illness. Any elder adult, single parent, or individual living on his or her own can benefit from having a health care power of attorney in place.

Assigning power of attorney to a trusted loved one or friend gives a person peace of mind in knowing his or her wishes pertaining to medical treatment and end-of-life care will be followed. You don’t want your loved one put through unnecessary pain and suffering for the purpose of prolonging life, if that is not what he or she wishes. You don’t want decisions to be made by those who may not know you or those who can’t be trusted to focus on your best interests.

What Is a Health Care Power of Attorney?

A health care power of attorney is a legally-binding document that assigns rights and responsibilities for health care decisions to another person. The person who is granted the power of attorney would then have the authority to make life and death decisions in situations where the individual is no longer able to do so.

What Exact Decision-Making Power Does a Health Proxy Give?

As a health proxy or health power of attorney gives a person decision-making power over any and all medical – as well as end-of-life – decisions, you will want to make sure the person you choose understands your wishes and can be trusted to follow them. Decision-making power may include:

  • Whether you should be admitted or discharged from a hospital
  • What treatment or medication you do or do not want to receive
  • What parties can have access to your medical records
  • When you should be resuscitated
  • Whether you should be put on life support
  • Whether you want doctors to go to extraordinary measures to keep you alive

Who Should You Choose As Your Proxy?

Giving another person the power to make decisions about your medical needs, health care, and end-of-life treatment is an important life decision. The American Bar Association’s Commission on Law and Aging recommends people choose an agent who:

  • Will take the time to talk with you about your wishes, your health care priorities, and any end-of-life needs.
  • Will understand what you want and faithfully do what you wish when the time comes.
  • Lives nearby or can easily travel to you if the situation arises.
  • You trust with your life.
  • Will not give in to family members’ arguments or conflicting opinions, but will follow your wishes as laid out.
  • Will not bend to medical personnel’s recommendations, if these go against your wishes.
  • Will be an unwavering advocate for you.

Choosing health care providers, nursing home staff, doctors, government representatives from organizations that have a financial responsibility for your care, court-assigned guardians, or individuals who have health power of attorney for numerous people is not advised. You need someone you can trust to make the same decision you would make, if you were able.

Legal Assistance with Advanced Health Care Directives

If you are interested in creating an advanced health care directive, health care proxy, or living will, we recommend you speak with a skilled Long Island advanced directives attorney right away. An attorney from the Law Office of Andrew M. Lamkin P.C. can help prepare these documents and give you the peace of mind afforded by knowing that your interests are protected.

Contact our firm now to find out how to get started.

Finding the Right Retirement Community for Your Loved One

Long Island Elder Law Attorney - Lamkin Elder LawAs your loved ones age, you may find yourself in search of a retirement community able to fulfill their social and recreational interests, as well as meet their personal healthcare needs. Finding the right retirement community or senior housing option can be a difficult task. Not all retirement communities offer the same amenities and services. In addition, not all communities may fit within the available financial budget.

So, how can you go about finding the right retirement community? How can you know your loved one’s needs will be met and he or she won’t fall victim to any hidden pitfalls or risks? A decision such as this should be undertaken with great care. Seeking counsel from an experienced elder law attorney before making a commitment can improve your chances of finding the right community where your loved one is safe from harm.

Questions You Should Ask

While touring retirement communities, reading brochures, and checking online reviews can be beneficial, getting answers to certain questions are a key part of your search. You want what’s best for your loved one, so don’t hesitate to ask questions or raise concerns. Discuss the matter with your loved one; make sure all of his or her needs will be met. Finding out the answers to these and other questions can help you narrow your search:

  • Is there a waiting list, and if so, how long is it?
  • What medical and healthcare services are available?
  • Will your loved one have access to advanced care services? What type?
  • Is nursing care available for when your loved one is unable to care for him- or herself?
  • Are housekeeping and other in-home services available on site?
  • Does the facility have specialists trained to care for Alzheimer’s patients, Parkinson’s patients, or those suffering from other types of dementia?
  • What activities are available in the nearby area?
  • Does the community offer transportation to and from these activities?
  • Does the community have an ongoing relationship with local colleges, art schools, or libraries that offer events residents can attend?
  • What exercise and recreational activities are available on site? Is there a pool? Golf course? Putting green? Tennis court? Other activities?
  • Does the community sponsor or support social activities such as bingo, card games, book clubs, movie nights, and other group get-togethers?
  • What services are included in the basic contract?
  • What additional services can be added to the contact, and at what cost?
  • Are there other fees or costs of which you should be aware?
  • How are the costs broken down (food, housing, transportation, etc.), and what portion of the costs are eligible for refund?
  • Are refunds available at any time, or only under certain circumstances?
  • Is a down payment or deposit required?
  • Does the facility have any specific requirements or qualifications residents must meet before being allowed to join the community?
  • Does a person’s age, health, mobility, or mental capacity have any bearing on eligibility?
  • What will happen if your loved one is unable to pay? Will he or she be evicted? Will the facility try to help find a decent alternative? Will loved ones be notified ahead of time so a resolution can be reached without causing undue disruption?
  • Where do residents eat? What meal plans are available? Do residents have access to a cafeteria or dining hall? Is food provided only at designated meal times? Do residents have other food options? What can be arranged for residents on strict diets?
  • How many staff are employed at the facility?
  • Are trained nurses or medical staff available or on call 24 hours a day?

If you or your loved one has other questions, the time to inquire is prior to signing a contract and moving your loved into the facility. As you want what is in your loved one’s best interests, be sure to have an elder law attorney review the contract and terms.

As the National Council on Aging states, it is important for seniors to stay connected with family, friends, and the community. In fact, this can have a much greater impact on their happiness than material goods. So, finding the right community will give you and your loved one peace of mind in knowing he or she will have a good quality of life and standard of care.

Contact a Long Island Elder Law Attorney

Helping families protect their assets and loved ones is what we do. At the Law Office of Andrew M. Lamkin P.C., our attorneys are committed to being the legal advocate our clients deserve. With in-depth knowledge of elder law, we are able to assist with legal and non-legal matters, including but not limited to retirement planning, long-term care, and nursing home placement. If you are in search of the right retirement community for your loved one, we are here to help. Call our firm today to schedule your free consultation.

Who Should Be Your Estate Agent?

Long Island Estate Planning Attorney - Lamkin Elder LawOne of the most important aspects of estate planning is assigning a power of attorney. The power of attorney is a nationally recognized role, but requirements will differ from state-to-state. This paper gives one or more individuals the power to act on your behalf – operating as your agent. Their power can be limited to just one activity, such as making healthcare decisions, or the power can be general. You can also authorize permanent or temporary power of attorney to a single individual.

These roles take effect immediately once the document is signed or upon the occurrence of an event – such as becoming incapacitated. The power of attorney can also be revoked, but you will be required to submit a written notice of revocation to the individual that is currently acting as your agent.

The person that is assigned a power of attorney is your “agent” or “attorney-in-fact.” With that valid power of attorney, they can take whatever action that is permitted within the scope of the document. For example, they can sell assets or even acquire new assets on your behalf.

While you may be wary about assigning someone so much power over your life and wealth, it is important to realize that without a power of attorney, if you are unable to manage your own personal and business affairs, the court may have to appoint one or more individuals to do so for you – and these may be individuals that you would rather not have managing your life.

Who Should Be Your Estate Agent?

You are allowed to choose anyone as your agent. Most individuals will name a family member, such as their spouse or child to act on their behalf. You can also name more than one person to act as an agent at the same time – but be aware agents may disagree. Co-agents should have special provisions in the power of attorney to ensure there is limited disagreement among both parties.

You should also name a successor agent to your primary agent. This is because if the first agent is unavailable or unable to fulfill their role, you will need a secondary agent to step in and assume their duties. Without a successor, the courts will have to decide an agent on your behalf.

There are no requirements or qualifications needed to be an estate agent. The only qualification is that the person is of legal age and that they are not incapacitated themselves. The best choice is always an individual that you trust and know is responsible enough to carry out your wishes. This person should be impartial and able to put what you request ahead of their own personal gain.

Before Selecting an Agent, Consult with an Estate Planning Attorney

Because of the broad powers that can be assigned to an agent, it is important that you speak with an attorney. Your attorney can advise you as to the roles of an agent and help you not only select the proper party, but designate their powers so that only competent individuals are handling certain aspects of your estate – and most importantly, that they are handling things in your best interests. Attorney Andrew M. Lamkin, P.C. can assist you with your powers of attorney. Contact him at 516-605-0625 or online for a free consultation appointment.

What Is the Estate Attorney’s Role?

Long Island Estate Attorney - Lamkin Elder LawMost individuals are easily lured by the idea of saving time and money by creating their own estate plan using those do-it-yourself kits or websites. Unfortunately, these alternatives rarely generate a suitable estate plan that accomplishes all of their objectives. In fact, the only way to truly have an effective estate plan is by hiring a qualified estate lawyer that can interpret the laws that bear on tax rights, wills, probate, property, etc. Most importantly, these programs and forms do not offer the legal advice necessary to ensure the estate plan is correct or in accordance with New York State laws.

You Can Still Save While Hiring an Attorney

Save time and money by preparing for your meeting with an estate planning attorney early on. You can organize your information before the meeting – including assets, liabilities, titles and your feelings regarding how you want to provide for family members once you are gone. When you schedule your consultation, you can ask if there is a questionnaire the attorney uses and request that it be sent early so that you can complete it.

Also, have copies of important documents ready, such as your previous will (if any), powers of attorney, life insurance policies, employment and retirement benefits, divorce decrees and any prenuptial agreements.

During the Consultation

Do not be shy about requesting information regarding legal fees and how those fees will be used. You should also carefully review the written agreement between you and the attorney and the provisions for how things will be handled if you are dissatisfied with their service. Engagement letters are a critical component in every attorney-client relationship.

Consider Your Estate Attorney Your Advocate

An estate attorney is your advocate. They are there to protect your loved ones and your estate long after you pass. Because you have spent your entire life achieving your own personal goals, it is important that you have advice and direction from a legal professional. An attorney is an essential component in implementing a well-drafted, legal estate plan that meets your wishes and handles all personal objectives and concerns you may have. Instead of putting your wishes at risk with a do-it-yourself form, you may find that the benefits more than outweigh the costs of hiring a professional.

Speak With a New York Estate Planning Attorney Today

Learn more about how an estate lawyer can help you achieve your goals – including long-term planning. Contact attorney Andrew M. Lamkin today at 516-605-0625 or fill out an online contact form.

The Basics of Estate Administration

Long Island Estate Planning Attorney - Lamkin Elder LawWhen a person dies owning specific assets in their name alone, the estate must then be opened by a representative to handle those assets and settle all of the decedent’s affairs. The estate is opened in the courts with a petition alongside a death certificate. An attorney should always draft such a petition and ensure matters are done properly.

If the decedent dies testate, the original will must be then filed alongside that petition. This procedure is referred to as the “probate” procedure. As long as the will is notarized, it will be considered self-proving. If not, then two witness signatures must also be present on the will in order to make it valid. After the will has been probated, the letters of testamentary will be issued to the estate’s personal representative – also referred to as the executor.

What if the Decedent Passes Without a Will?

Dying without a will, or intestate, requires the personal representative to receive letters of administration. These letters will only be granted to specific individuals in a prioritized order, which includes:

  1. Residuary legatees
  2. Surviving spouses
  3. Intestate heirs (those with the closest relation get first preference)
  4. Creditors
  5. Other fit individuals

The Duties of the Personal Representative

The estate’s personal representative has many roles, and they are required to use the estate’s assets to pay all debts and obligations, estate taxes, inheritance taxes and to communicate with the beneficiaries of the estate. Just some of the duties that they will be required to fulfill include:

  • Safeguarding and Collecting the Estate’s Assets – They must collect and safeguard assets from theft, vandalism, and destruction. That may mean changing the locks on the decedent’s home, renting a safety deposit box for jewelry and small items, or locking items into a storage unit.
  • Advertising – A personal representative is also required to advertise in a legal newspaper with general circulation. The advertisement must include the decedent’s name, address of the representative and the contact information of the estate attorney.
  • Notification – Executors must then notify all beneficiaries about the death of the decedent within several months of receiving the grant letters. A copy of the will can be included if the death occurred in testate.
  • Filing Inventory – The executor will create an inventory of the estate’s assets not only for tax purposes, but for purpose of distribution later.
  • Status – An executor must keep the state comprised of their actions, including any tax returns and applicable taxes due.
  • Payments – The executor must then also pay all expenses, taxes and other creditor debts from the estate’s assets. This may require selling or liquidating particular assets in order to pay these obligations. In addition, the executor must pay all court filing fees and costs of administration as well as any attorney’s fees applicable to the estate.

Only after everything is completed, and often several months to a year after the decedent has passed, is the estate officially closed and assets are distributed.

Navigate the Complexities of Estate Administration – Speak to an Attorney

Administering an estate is a highly complex process that often requires the assistance of an attorney. Contact attorney Andrew M. Lamkin today regarding your estate plan or for assisting with estate administration. Call 516-605-0625 for a free consultation or contact us online with your questions.

Assessing the Legal Aspects of Organ and Tissue Donation

Long Island Estate Planning Attorney - Lamkin Elder LawEstate planning often involves the preparation of Last Wills and Testaments, Powers of Attorney and Advance Directives for Health Care. It can also involve discussions and planning for long-term care. During that meeting, the option for tissue and organ donation should also be explored. An attorney’s main role is to get their client thinking about potential issues, including guardianship of special needs children, inheritance of property, what to do during incapacitation, etc. When a person is in a coma or legally suffering from “brain death” it is also an attorney’s job to ask how they want their organs and tissues handled.

Unfortunately, tissue and organ donation does not always become a topic of discussion. That is because some clients or even attorneys are too uncomfortable talking about it. It is important, however, that individuals understand that it is a viable option.

Opening the Discussion

By raising the issue of tissue and organ donation, and assisting clients with understanding their rights in regards to making provisions for doing such, an attorney can have a big impact on their clients’ lives as well as on the community.

In New York, competent individuals over the age of 18 years can authorize the donation of their own organs and tissues. This decision can be as quick as becoming a donor on their driver’s license. The driver’s license will then indicate that the individual is a legal “organ donor” and doctors at a hospital facility will be able to carry out their wishes.

Also, an individual can obtain an organ donor card from the Center for Organ Recovery & Education (CORE) by calling 1-800-donors-7 or by going to the core.org website to receive their card. The card must be signed not only by the donor, but in the presence of two witnesses.

Powers of Attorney and Organ Donations

Agents under the Powers of Attorney can also make anatomical gifts as long as they have the consent to do so by the individual. Parties that are authorized under New York law to make anatomical gifts include:

  • Spouses
  • An adult sibling
  • An adult child
  • A guardian of that individual
  • Parent of the individual
  • Anyone with the legal authority to donate the organs and tissues

Agreeing to the anatomical gift can be done in writing or via a recorded message.

The Last Will and Testament can also have specific language pertaining to organ donation wishes. Once the testator dies, the anatomical gift can be given without the need for probate.

Speak with a New York Estate Planning Attorney

If you want to become an organ or tissue donor, you can have language placed under your Powers of Attorney documents and in your Last Will and Testament regarding your wishes. Attorney Andrew M. Lamkin can assist you with drafting your will or revising it to address your organ and tissue donation concerns. Contact him for a free consultation at 516-605-0625 or contact us online.

How to Avoid Inheritance Disputes: 3 Expert Tips

After your death, the last thing you want is your loved ones to fight over your assets and liabilities.  The courts and anyone in the probate system also want these processes to go as smoothly as possible. Even with the best intentions, there are disputes that could arise. And, these disputes can often turn bitter – especially when the emotions of loss are driving everyone’s opinions.

There are things you can do to help lessen the likelihood that your loved ones will have drawn-out courtroom battles and bitter disputes.

Creating an Excellent, Well-Articulated Will

Having a will isn’t always enough – especially if your will is full of holes or missing critical information. Naturally, a will is better than no will at all, because leaving your heirs to figure out inheritance on their own can always lead to disaster.

What Happens if You Don’t Have a Will?

If you do not have an estate plan, the state’s laws will determine how your estate is distributed amongst your family. These intestacy laws can vary, but often involve first your marital status and then surviving children. If you did not want a certain child to inherit something, but didn’t have an estate plan dictating that, you will not be able to say much after you are deceased.

Creating a Valid Will is Important

Writing your intentions on paper and signing it isn’t enough. Instead, you need a will that is well-drafted and in accordance with the state’s laws. If your will is not valid, the courts will not honor your requests. A few things you must have present in order for your will to be valid under New York state laws include:

  • You must be at least 18 years old;
  • You must be of sound mind and body when writing the will;
  • You cannot be coerced into the will;
  • You must have had the intentions to create that estate plan;
  • You must have all assets listed and assign them to heirs;
  • You must have an estate plan that is signed, dated and witnessed.

Skipping Over Probate

Probate court is not automatically avoided with a will. Instead, your property will still go through probate where the court will then transfer property in accordance with your will. These processes are costly and lengthy – sometimes lasting anywhere from six months to a few years. Your estate planning attorney can advise you as to how you can avoid probate, such as establishing a revocable living trust or assigning death beneficiaries on specific accounts.

Create Durable Powers of Attorney and Living Wills

Inheritance disputes often come later in life, especially when an elderly loved one is no longer able to make decisions for themselves. By having living wills and durable powers of attorney already present, you can avoid these disputes regarding your estate and even your health care.

Meet With a Long Island Estate Planning Attorney to Dispute-Proof Your Plan

If you do not want your loved ones fighting over assets and decisions, meet with an attorney from the Law Office of Andrew M. Lamkin, P.C. today. We can assess your risks, assets and liabilities and help draft a will that is as dispute-proof as possible. Contact us at 516-605-0625 or fill out an online contact form to get started.

Can I Disinherit My Spouse?

You have spent the time and money creating an estate plan, but now you are going through a divorce. This is by far one of the most emotionally and legally trying times any person will ever go through. Not only do you have a myriad of legal documents to deal with, and requirements that can be daunting, but you may accidentally forget about updating your estate plan. Neglecting this very important step could mean that your ex-spouse will still inherit all of your property – which may not be what you intended post-divorce.

Most individuals in a divorce situation do not want their ex-spouse inheriting anything from their estate, which is why it is imperative you speak with an estate planning attorney to disinherit your spouse.

Marital Property and Assets

New York law requires equitable distribution of marital assets, which means all marital assets and liabilities are split equally in the eyes of the law – but not necessarily 50/50. Regardless of who paid for it or whose name is on the asset, the asset is still a marital asset if it was received or acquired during the marriage.

During the divorce process, you will split these marital assets. Some of these may have been associated with an estate plan, which means you will need to update your estate plan not only to reflect the spouse you are disinheriting, but the change in assets. If you are not selling and splitting the profits of those assets, then they would remain in your estate plan and your ex would still be able to receive their share of that property – whether you attempted to disinherit them or not.

Revising Your Will Is Key

Revising your estate plan is the only way you can disinherit a spouse. If you have not created a will, then now is the time to sit down with an estate planning attorney and do so. Your will can create specific instructions regarding your intentions to disinherit your ex-spouse. Because state intestate succession laws will take over if you do not have an estate plan or updated plan, this is an imperative step. You must decide who will inherit from you and who will not – and dictate that within your estate plan for the courts.

The most important feature of an estate plan is clarity. Then you will be able to clearly identify who should inherit property and assets after your death. You will also want to revise your life insurance policies, retirement plans and other documents that list your soon-to-be ex as your beneficiary – because even your estate plan cannot protect against those.

Speak with an Estate Planning Attorney in Long Island, NY Today

If you are going through a divorce, protect your assets from your ex-spouse by speaking with an estate planning attorney. The Law Office of Andrew M. Lamkin, P.C. can assist you with revising or creating a new estate plan that specifies who will inherit your assets. Schedule a consultation at 516-605-0625 or contact us online with your questions.

Purchasing a Grave: 5 Things to Consider First

No one likes to think about it, but purchasing a plot for graves is still an important part of the estate planning process. Unfortunately, it is not something people do every day and there is little information out there that tells consumers how they can protect themselves against gravesite scams or to ensure they get fair treatment. Furthermore, gravesite purchases are extremely costly and most individuals are unaware of what they are getting or what they are signing up for when they purchase them.

If you are purchasing a gravesite for yourself or if you and your spouse are purchasing together, there are still a few things you will need to consider first.

Land Ownership

When you purchase a gravesite, it is not the same as purchasing land outright. You do not usually own the land your gravesite is on; instead, someone else has ownership, but you are purchasing an easement or license that allows you to bury a body into that plot. It is best that you clarify if you are purchasing the easement or the land when buying.

How Many Burials in the Same Plot?

Some cemeteries will only allow one individual to be buried in a plot, while others will allow a maximum of two individuals to be buried in the same plot – as long as they are buried on top of one another. However, double-deep plots often come with an extra fee. For couples, sharing a plot may be ideal, but it is a big consideration to make. After all, if you are to split later on, you still share a grave plot, but may not wish to be buried next to one another.

Maintenance Fees

There is typically a one-time maintenance fee you must pay when purchasing a plot at a cemetery. This fee is often referred to as the endowment fee in the contract and the prices will vary depending on the cemetery you select. You will want to ask about the endowment fee to see if that is in addition to the plot purchase or included in the purchase price. Most of the times it is not included and you will have to pay it after you have selected and started the purchase process.

Grave Marker Restrictions

Even if you purchase a gravesite, you could be restricted as to what types of grave markers you can actually place. Some will allow standing headstones, while others will only allow the use of flat plaques. You will want to clarify this when purchasing, especially if you are also preordering a gravestone or thinking about the type of gravestone you wish to place at the site. Ask about any applicable regulations, including size restrictions and material types.

Reselling Your Site

Most importantly, you want to ask about the transferability of the gravesite. If you want to sell the plot, you typically should be able to sell it to anyone you would like, but there are some cemeteries that request to review the purchaser and they reserve the right to refuse to resell.

Enlist the Assistance of an Estate Planning Attorney

If you are picking out a gravesite for purchase as part of your estate plan, enlist the assistance of an attorney. An attorney can help assess the purchase agreement and also make stipulations in your estate plan in regards to the newly purchased gravesite. Contact the Law Office of Andrew M. Lamkin, P.C. today regarding your estate plan by calling 516-605-0625 or contacting us online for a consultation.

Who to Call for Elder Abuse

senior-living-blog-close-up-nursing-home-residents

Unfortunately, elderly abuse is becoming a growing problem in the United States. Despite the fact that most people know they must respect their elders and it is wrong, elderly individuals are taken advantage of and abused across multiple cultures residing in the U.S. According to the U.S. Department of Health and Human Services, it is estimated that one out of every 10 elderly Americans is mistreated by a loved one or stranger.

Elder abuse can take on numerous forms, including mental, emotional, physical, sexual and financial abuse. The abuse can be by a family member or a caregiver. The abuse can also include abandonment, neglect or misallocation of funds by a professional. Loved ones that suspect elder abuse should contact the authorities and report the abuse immediately.

Family Members Abusing Loved Ones

The reason elder abuse is so widely underreported is because of the personal relationship between the abuser and the abused. Frail family members are unlikely to contact strangers to report their abuse or mistreatment, especially if it is a loved one committing the abuse. Also, most elderly individuals are unaware of their options and do not even know about the abuse prevention and protection programs available to them – so they just accept the abuse and assume they have nowhere to turn.

The National Adult Protective Services Association states that there has been a dramatic increase of elder abuse across the country since the 1980s, but there has not been a unified approach to correct the problem still to this date. There is no one federal agency that is solely tasked with helping the elderly and addressing abuse or mistreatment; the states have been tasked with the job instead.

Every state has its own program for elder and adult abuse protective services, but a lot of that work falls on the shoulders of already overworked social service and health department professionals.

Finding Where to Turn

To report any form of elder abuse, the National Center of Elder Abuse’s State Resources help find state agencies that are tasked with overseeing these types of cases. Even if mistreatment is suspected, family members or friends should report that behavior and initiate an investigation to protect the individual from further abuse. Also the agency can help locate additional resources for caregivers that are overwhelmed and unable to care for their loved one.

Elder abuse is like any other type of violence. If the abuse is severe or it is an emergency situation, individuals can contact the police or even call 911 for help. Families and elderly loved ones injured by caregivers may need to also enlist the services of an attorney to help with compensation.

Was Your Loved One Injured? Speak with an Elder Law Attorney

Sometimes guardianship issues arise during elder abuse cases. The Law Office of Andrew M. Lamkin, P.C. can assist with guardianship requests and help further protect elderly individuals who are being abused by loved ones or their caregivers. Contact us at 516-605-0625 or contact us online to schedule a consultation today.

Funding a Trust

Long Island Trust Funding Attorney - Lamkin Elder Law

Now that you have established a trust, you should transfer all applicable assets into that trust. Doing so will not only ensure your trust is funded, but all of your assets will now be protected by that trust and can hopefully avoid probate court. The process of formally transferring assets into a trust is not complicated, but it should still be done with the assistance of your estate planning attorney to ensure all applicable assets have been properly transferred. Not moving assets over correctly could mean that your trust has no positive effect (or any effect for that matter) on your assets. Instead, assets would be passed through your will and without a will, forced to pass through your state’s intestate succession laws.

Unfortunately, it is all too common for individuals to skip the funding portion of setting up their trust or leave out valuable assets that should be placed into the trust. To ensure your loved ones and assets are fully protected, make sure funding is the first step you take after the trust documents are completed.

Title-Documented Assets

Assets with a title document that verifies you own that asset can be transferred into the trust. You will need a new title document that shows the asset is now held by the trust. Some assets that are titled include:

  • Real estate properties
  • Stocks
  • Bank accounts
  • Retirement accounts
  • Life insurance policies
  • Investment accounts, such as CDs
  • Vehicles
  • Patents, trademarks and copyrights

For example, if you wish to transfer your home into the trust, you need to prepare and record a new deed that certifies the property is held by the trust instead of yourself. To transfer bank accounts, contact your financial institution and request the ownership be transferred to your trust. The institution typically requires copies of the trust documents, but they handle all transfers after they have evidence a trust exists.

What About Assets without a Title?

There are numerous valuable assets that may not have a titled document. For example, you may have expensive artwork or family heirlooms of significant value that you wish to transfer into the security of your trust. These items can be listed in the trust document so that they are protected by the trust. For a more secure asset transfer, your attorney can draft an Assignment of Property.

Speak with Attorney Andrew M. Lamkin, P.C. Today

If you want to protect your assets, including non-titled assets, contact the Law Office of Andrew M. Lamkin, P.C. today. We can explore your options and not only help you establish a trust, but transfer your valuable assets into that trust so that they do not have to endure the hassles of probate court. It is important that your assets are transferred properly; otherwise, your assets could experience more problems – such as a retirement account that requires a full distribution and tax penalties. To get started with a properly funded trust, schedule a free consultation online or call 516-605-0625.

529 Plans and Estate Plans

Long Island 529 Plan Attorney - Lamkin Elder Law

A 529 college savings plan is the ideal way to help fund your child’s future college expenses. What you may not know about a 529 plan is that it is also a valuable estate planning tool. For individuals of wealth, a 529 college savings plan provides an opportunity to help transfer some of that wealth as part of the overall estate plan.

The Rules of 529 College Savings Plans

All 50 states allow the use of a 529 college savings plan. Also referred to as qualified tuition programs, these investment opportunities offering parents numerous tax benefits are overseen by the state’s treasury department. One of the best features of a 529 plan is that you do not have to live in the same state where the plan is established. Additionally, you do not have to send your child to a college in the state where the 529 plan is set up.

Because of this open-ended option, states are now competing with one another – which means they are offering generous contribution limits to parents. These types of plans are a simpler form of investment with minimal risk too, making them ideal for every estate plan.

Using a 529 Plan in Your Estate Plan

From an estate planning perspective, there are several attractive features to a 529 college savings plan. Unlike their competition, the education IRA, you are not restricted by income limits nor are you prohibited from fully contributing to the plan. That means that everyone will qualify to own a 529 college savings plan regardless of how much they make each year.

529 Plans and Tax-Free Gifting

One of the most attractive features of 529 plans is that they allow you to reduce your estate tax obligations with an annual tax-free gift contribution of $13,000. Married couples can contribute as much as $26,000 per year in tax-free gift contributions for each beneficiary (each child) without any federal gift tax issues arising later on.

For individuals that wish to reduce the size of their estate, they can fund 529 plans for their children and reduce the tax burden on the estate as well as their beneficiaries. Each contribution can help reduce the size of a wealthier individual’s estate dramatically and minimize or even eliminate tax obligations altogether.

Grandparent Gifts

529 plans are not exclusively offered to parents. Grandparents that wish to contribute to a child’s education can use a 529 account as well. However, grandparents must keep in mind the federal generation-skipping transfer tax or GSTT. This tax is applied to individuals that are one generation below the gift-giver, such as a grandchild. There is a GSTT exemption and GSTT is not due until that exemption has been exceeded. Grandparents can contribute a maximum amount per year to a grandchild’s 529 plan to reduce their own estate value and still keep their grandchildren free of federal taxes later on.

Speak with the Law Office of Andrew M. Lamkin, P.C. Regarding Your 529 Plan

If you are interested in using a 529 college savings plan as part of your overall estate plan, contact attorney Andrew M. Lamkin, P.C. today for a free consultation. We can discuss your options and help find the best method for reducing your estate tax obligations. Contact us online or call 516-605-0625 to get started.

The Pitfalls of DIY Estate Plans

Long Island Estate Planning Lawyers - Lamkin Elder Law

The age of the Internet is upon us, and that means more sites educating consumers and even offering cheaper DIY alternatives to professional services. One of these popular DIY sites offers estate planning where you can find all of the forms you need, along with information and tutorials. While it may seem like an ideal option, at closer examination you may find that you truly get what you pay for.

Online services offer contract templates and use boilerplate language that claims to offer you maximum protection, but you are also required to create your own terms and other provisions tailored to the unique estate situation you have. Because these online sites are so simplified, they often create more harm to an estate than good.

Common Issues with DIY Wills

DIY kits claim to offer attorney-level advice and guides for drafting an official will; however, it is up to the customer to take the time to read all of the documentation. Also, these guides do not encompass every circumstance and are often too general in their scope. Most importantly, they use generalized laws instead of addressing specific state laws.

If you are thinking about using a cheaper alternative, like a DIY site, here are some pitfalls you may want to be aware of first:

  1. No Residuary Clause – A template lets you name beneficiaries and bequeath assets, but it rarely allows you to indicate how that property will remain after all estate taxes, debts and other expenses are paid. These online templates lack the residuary clause to ensure property passes according to the laws of intestacy. This means that certain assets may go to an individual you never intended.
  2. Fill in the Blank Errors – Another common pitfall with DIY estate plans is that the consumer must fill in the blanks. That means you are required to name your executor and add in beneficiaries, guardians and other provisions. It is easy to misunderstand each provision and accidentally fill in the wrong role with someone you did not intend, such as accidentally listing a beneficiary as your executor.
  3. A Clear Lack of Execution – When it comes to witnessing a will, you are required to have the will notarized and a witness present during the signing. This is easily overlooked on a DIY will and in some cases, you are not even prompted to have it notarized. Also, the sites rarely update with the latest probate laws; therefore, you may have a will that violates those laws.
  4. Not Creating a Trust – While a will is a valuable tool, a trust is also something that most individuals will want to create when they make an estate plan. Unfortunately, DIY sites will not advise individuals about creating a trust or even follow the state laws for drafting one.
  5. Special Needs – DIY kits lack the complexity to handle children, especially those with special needs. They may jeopardize your child’s eligibility for public benefits and assets may be passed incorrectly, leaving your child with nothing.

Don’t Risk Your Estate – Contact the Law Office of Andrew M. Lamkin, P.C. Today

DIY estate plans do cost less, but they cost you more in the end. Having an estate plan drafted to meet the specific circumstances of your estate is the only way to protect your assets and your loved ones. Let the Law Office of Andrew M. Lamkin, P.C. help you with your personalized estate plan. Schedule a free consultation online or call 516-605-0625 now.

When There Is Not Enough Money to Pay Estate Debts

Long Island Estate Debts Lawyers - Lamkin Elder Law

After an individual passes, their debts do not cease. Instead, their estate survives and is then obligated to pay any existing debts that the deceased incurred during their lifetime. But what if the deceased’s estate does not have enough funds in the estate account to cover those debts or has no plan for paying them?

Paying Joint Debts

The Federal Trade Commission (FTC) has strict guidelines for the debts of the deceased. Under those regulations, family members are not required to pay any debts of the deceased from their own assets. However, there are exceptions to this regulation and there are instances where surviving family members may be held liable for any debts. These exceptions include:

  • Someone that co-signed on the debt;
  • Community property states;
  • The deceased’s spouse and if state law requires that the spouse pay for certain debts (such as health care expenses);
  • The individual was legally responsible for resolving any remaining estate debts per probate laws.

Referred to as “joint debts,” these debts are then the obligations of the surviving debt holder. Therefore, if you have joint debts with a deceased individual, you need to contact the lender to review the terms of the loan or credit line and if required, transfer the obligation into your name and address for fulfillment. You also need to ensure future payments on the debt no longer come from the estate account, but from your personal account.

Paying Individual Debts

When debts are in the decedent’s name and there are no joint account holders, these individual debts must be paid by the estate. The executor is obligated to sell any existing assets to raise enough funds to cover these debts as much as possible. If there are no assets and no cash, creditors have no other options for collection.

Executors must follow an order of priority with estate debts, which includes:

  • Administration, funeral and testamentary expenses;
  • Creditors with security, such as a mortgage lender;
  • Taxes and social insurance contributions;
  • Unsecured debts.

When the estate does not have sufficient assets to cover the debts, then the debts are paid from the following assets:

  • Property that was not dealt with specifically in the estate plan;
  • Any remaining assets that are leftover;
  • Property that was specifically left to pay for remaining debts;
  • Gift monies or other bequests in the estate plan.

Create an Estate Plan That Addresses Your Debts – Contact an Estate Planning Attorney Today

It is important that you leave enough assets or create a plan for covering debts your loved ones may be required to pay. The Law Office of Andrew M. Lamkin, P.C. can help you devise a plan that ensures joint debts are adequately covered and your individual debts are satisfied. We can explore your options and find creative ways to fund your estate – even when you think there is no way to cover your debts. Contact us now for a free consultation at 516-605-0625 or fill out an online contact form to learn more.

Valid Reasons to Remove a Trustee

Long Island Trustee Removal Lawyers - Lamkin Elder LawFiduciaries that misappropriate trust assets or fail to comply with trust terms can create significant problems for an estate, as well as its beneficiaries. Because a trustee holds all assets of the estate, it is imperative that an inadequate fiduciary is removed. However, removing the individual endowed with the task of overseeing a trust requires special circumstances – and the assistance of an estate planning attorney.

Reasons That Constitute Fiduciary Removal

  1. Failure to comply with trust terms. A trustee has the legal ownership and management of all trust assets. These assets are held for the benefit of the heirs, and the trustee is obligated to act in the best interest of those heirs. If the trustee fails to act in the best interest of the heirs or blatantly ignores trust terms, beneficiaries can petition the court to remove them from their role.
  2. Mismanagement of trust assets. As an elected individual, the trustee has a fiduciary duty to manage all trust assets in a manner that ensures they are not wasted or devalued. If a trustee neglects that duty or purposely neglects their role, leading to a significant decline in trust assets, a petition for removal is valid.
  3. Using trust assets for their own benefit. A trustee who uses their control over trust assets to their own benefit breaches their fiduciary duty to the estate and its beneficiaries. This may lead to a prompt trustee removal by a probate court judge. Unfortunately, if the trustee is a financial institution, beneficiaries may be required to sign a “conflict of interest” waiver, which would allow the institution to legally self-deal in trust assets.
  4. The trustee shows clear hostility toward estate beneficiaries. A trustee must act in the best interests of the estate and cannot allow for a significant breakdown or continuing conflict with beneficiaries. If the trustee shows clear hostility toward beneficiaries or cannot work professionally with the estate’s beneficiaries, the trustee must be removed.
  5. Trust administration methods have led to a breakdown in beneficiary trust. Beneficiaries must trust the individual overseeing their assets. If the way in which the trust is administered has led to a breakdown of confidence in the trustee, leading to further hostility, the beneficiaries can petition for the trustee’s removal.

Hire Attorney Andrew M. Lamkin, P.C. to Help with Your Trustee Removal Petition

Beneficiaries faced with the task of removing a trustee need to carefully consider their position. Even if there are adequate grounds for removal, they must consider the potential costs and consequences of doing so – especially if the trustee resists the petition. The Law Office of Andrew M. Lamkin, P.C. can assist you with your trustee removal. We will explore your options and if you have a valid reason, we will represent your petition to the court. Contact us online today to learn more, or call 516-605-0625 to schedule a consultation.

Things You Didn’t Know About Estate Planning – But Should

Long Island Estate Planning Lawyers - Lamkin Elder LawMost Americans are aware they should complete an estate plan, but little have done so. An estate plan does not only distribute assets, but it can also protect an individual and their loved ones from creditors, conflict, and much more. Unfortunately, the biggest reason for a lack of pre-planning comes down to information – or the lack thereof. Consumers are often giving into misconceptions about estate plans, and these misconceptions can cost American households thousands of dollars later on.

What Consumers Should Know About Estate Planning

From making important decisions to addressing formalities, there is plenty you should know about creating and maintaining an estate plan.

  1. An estate plan is not reserved for the wealthy. The number one reason Americans do not create an estate plan is because they assume you need excess wealth to have one. In reality, even middle- to low-class citizens could benefit from a well-drafted estate plan. Even those with no assets, but with children, can name a guardian for their minor children if they pass. On the other hand, without an estate plan, a judge will determine the guardian for minor children, which may not be a guardian you would have selected voluntarily.
  2. Estate plans have strict formalities. Despite being in the electronic age, there are formalities with an estate plan. While it may be seen as an antiquated law, wills must be signed in the presence of witnesses. This is not because the law it out of date; instead, it is to protect yourself and your beneficiaries, ensuring that your will is valid and you did not make your decisions under duress.
  3. Estate plans cover all valuable property. Whether you have a retirement account from employment, a coin collection, or a family home, your estate plan can dictate how each asset you own is distributed after your death.
  4. A properly drafted estate plan can avoid probate. Probate court, which involves taxes, fees, and legal costs, can be avoided with a living trust. While a trust does not guarantee an estate will avoid probate, if the trust has all assets titled in your name you can save your heirs the costs and lengthy delays associated with probate court.
  5. Omissions can cause legal issues. Self-drafted estate plans usually lack the complexity required to cover your estate, including any unique aspects of it. A simple omission or use of confusing language can result in an unfavorable outcome. This is why it is imperative your estate plan is drafted by an attorney who understands New York estate laws, giving them the ability to draft a will that addresses your estate’s unique characteristics.

The Law Office of Andrew M. Lamkin, P.C. – Estate Planning Attorney

Estate plans should always be customized to the unique aspects of the individual. Attorney Andrew M. Lamkin can help you understand your estate planning options and draft a plan that addresses your concerns after you have passed. Schedule a consultation online or call 516-605-0625 to learn more

Choosing the Executor of Your Estate

estate planningOne of the most important decisions you will make for your estate plan is in selecting the individual (or institution) to be in charge of your assets after you have passed. Also known as the executor, the tasks of this fiduciary can impact your beneficiaries and estate; therefore, there are factors you should consider before selecting a person for the position.

You are allowed to select more than one individual to fulfill these roles, known as co-executors. Some people choose more than one fiduciary – individuals legally obliged to act in your estate’s best interests – to ensure that at least one individual has legal and financial expertise, while the other is close to the family. If you do choose to have more than one executor, be sure to choose two people who can work well together. It is also recommended that you select a successor for each role, in case your first choice is unable to serve.

Choosing Your Executor(s)

The individual responsible for administering your estate is the executor. Because this individual will have direct access to your assets, finances, and resources, it is imperative that you select an individual who is financially stable, responsible, and – most importantly – trustworthy.

The law requires your estate to have an executor so that there is someone responsible for collecting all assets of your estate, protecting your estate property, creating an inventory, paying valid creditor claims (including taxes), representing the estate, and distributing assets to the estate’s beneficiaries. In some cases, an executor may have to liquidate assets (such as selling stocks, bonds, or even furniture) to have adequate cash on-hand to pay taxes, creditors of the estate, and beneficiaries.

Paid versus Non-Paid Executors

One approach is to appoint someone who has no conflict of interest with your estate, meaning someone who has nothing to gain from your will. Many testators will name a paid executor, such as an attorney or accountant, to avoid conflict. Some valid reasons for choosing a paid executor include:

  • Spouses and family members are often burdened with grief; therefore, it is too much of a burden to ask that they are personally liable for all estate taxes, filings, and fiduciary tasks.
  • Executors must gather assets; therefore, a spouse or family member would be required to retrieve money and property loaned to friends, which creates a conflict for that family member.
  • A professional has the ability to call on the advice of other professionals, such as accountants, tax experts, investment counselors, and business administrators to assist them with their fiduciary demands.
  • A professional also has the time and emotional distance to handle the complex role of being the executor, while a family member does not.

Non-paid executors, which are usually family or close friends, can waive the executor’s fee to which they are entitled and serve the estate. However, this individual must be capable of doing the job; therefore, a person should be selected like an employee. A desirable executor is one who has experience handling bills (especially complicated Medicare, ambulance fees, hospital bills, etc.). This individual should be highly organized because they will be required to manage a preponderance of paperwork and meet strict deadlines with the court.

Most importantly, the law does not allow convicted felons, minors, or non-U.S. citizens to serve as fiduciaries. While a nonresident can serve as an executor in the state of New York, it is often best if the executor is local so that they can meet the demands of their position.

Schedule a Time to Meet with Attorney Andrew M. Lamkin, PC

Selecting an executor is extremely important. An estate planning attorney can assist you with not only your estate plan, but also with selecting a responsible, suitable executor for your estate. Contact the Law Office of Andrew M. Lamkin, PC online or call 516-605-0625 to schedule a consultation.

How Your Cell Phone Can Help in an Elder Abuse Case

elder abuseElder abuse is a growing issue in the United States. While estimates vary, it is believed that four to six percent of elderly Americans are abused. According to research provided by the National Incidence Study on Elder Abuse, approximately 450,000 elderly individuals experienced some form of abuse in 1996.

What is Elder Abuse?

Elder abuse does not have to be physical, though physical contact is the most common. Any form of mistreatment that results in harm or a loss is considered abuse under the law. The New York State Office for Aging categorizes elder abuse into several categories, including:

  • Physical Abuse – Any physical force that results in serious bodily injury, impairment, or pain. This can include assault, battery, or the use of inappropriate restraints.
  • Sexual Abuse – Any non-consensual sexual act of any kind with an elderly individual.
  • Domestic Violence – Violence from an intimate partner or family member, especially when the violent acts are used to exercise power or control.
  • Psychological Abuse – While no bodily injury occurs, psychological abuse is still against the law. This can include the willful infliction of emotional or mental anguish, humiliation, threats, or verbal conduct.
  • Neglect – This applies to caregivers (both professional and family) who fail to provide a reasonable level of care under elderly care standards.
  • Financial Abuse – This includes the illegal use of an elderly person’s property, resources, and funds.

How a Cell Phone Can Help

Whether an elderly individual is being cared for in a professional facility or in their own home, providing them with a cell phone can help prove elder abuse. Just some ways a cell phone can help include:

  • Contacting Authorities – Many elderly victims do not report their abuse simply because they are kept from using a phone. By providing them with a cell phone, they are more likely to contact the authorities or loved ones to report abuse.
  • Video – Capturing video of threats, battery, sexual misconduct, or even psychological abuse offers key evidence in proving that the abuse exists.
  • Photos – A cell phone can be used to capture photographs of injuries immediately after the abuse – including restraint marks. Because cell phones are equipped with Meta data, they will automatically timestamp when the photo occurred, which can later be used at trial.

Speak with an Attorney Regarding Your Elder Abuse Case

Elderly individuals are a prime target for abusers, especially elderly individuals with dementia. If you suspect abuse, contact the authorities and then an attorney right away. At the Law Office of Andrew M. Lamkin, PC we offer comprehensive representation for elderly individuals to ensure that their rights and health are protected – especially when they cannot protect themselves. Contact attorney Andrew M. Lamkin online or call 516-605-0625.

Does Retirement Mean You Are Old?

 

Long Island Elder Law Attorney - Lamkin Elder Law

Retirement is meant to be a pivotal time in a person’s life. They have the opportunity to enjoy life, stop working an 8-to-5 job, and possibly even see friends and family more. However, another thing retirement may mean for some people is a sign of being “old.” As a society, retirement and age are closely related, and while a person may retire at 65, that does not necessarily mean they are old. Overcoming the negative mindset about aging is important, not only for creating a positive light on retirement, but it could actually improve a person’s outlook on life too.

Why Age is a Big Issue

People see age as something negative. They do not look forward to aging and the term “elderly” is almost offensive to some people. However, aging is also a symbol of something else: growing and succeeding. A person must age to succeed in life and gain responsibility – both of which are positive things.

How to Overcome the Stigma of Age

To age successfully and overcome negative stigmas, a person must stop being reluctant to the concept of aging. Instead, they should feel more empowered. To do this, a person should prepare for retirement so that it is a rewarding experience – rather than a hassle. This can be done by:

  1. Getting Paperwork in Order – An estate plan should be established long before retirement – and should be reviewed and updated at least once a year or every other year. An estate planning attorney can advise a person as to which documents their estate will need – such as a will, setting up a trust, creating a healthcare directive, and more.
  2. Maintaining Great Health – There are those that age well and those that do not. By maintaining a healthy lifestyle, staying active, taking medications and supplements, a person could age successfully without issue. Whether it is swimming daily, taking walks or riding a bike, physical activity will keep the body feeling young and also gives retired individuals activities to fill their days.
  3. Stay Engaged – Often people retire and isolate themselves. Instead, a person should remain engaged with family, friends, and even previous coworkers. Staying active in the community can empower a retired individual and provide them with a more fulfilling life.
  4. Embrace the Change – Retirement provides individuals with the opportunity to explore themselves and the world around them. Instead of looking at retirement as a negative situation or a sign of “old age,” a person should embrace it and look at it as an exciting time in their life.

Prepare for Retirement With an Estate Plan – Meet with Andrew M. Lamkin Today

Retirement can be a rewarding and fulfilling time. With the right estate planning documents in place, you can retire with a secure financial future. Contact the Law Office of Andrew M. Lamkin today for a consultation regarding your estate plan. To schedule an appointment, call 516-605-0625 or fill out an online contact form.

How Much Will It Cost to Financially Support Your Aging Parents?

 

estate planning

Caring and supporting aging parents can be rewarding, but it can also be a highly frustrating and exhausting experience. When financially supporting your loved ones, it may be much more expensive than you realize. If your parent has little to no financial safety net, then a child may be the sole provider – making him or her wonder not only how much it will cost, but how he or she will plan for their own retirement when they are financially supporting someone else.

According to a study published by MetLife, 10 million adult children over the age of 50 are currently caring for their aging parents. These individuals not only provide care but financial support as well.

Aging Parents Are Running Out of Funds

The situation of elderly parents running out of financial savings is becoming increasingly common. That is because aging individuals are living longer than expected but are not finding ways to make their money last as long as their health. Also, rising long-term care costs are quickly draining what was considered an adequate savings a decade ago.

How Much Will It Cost?

To determine how much it will cost to support an aging parent, children need to assess the financial future and costs associated with their parents. This can include:

  • Healthcare Costs – How much will it cost for health insurance, copays, prescriptions, or in-home care.
  • Nursing – Will the aging parent need around-the-clock nursing care at a facility or in their own home?
  • Savings – Children will need to find out how much money is left in their parent’s savings and what retirement and Social Security benefits they are receiving each month.
  • Equity and the Home – A discussion will be needed to find out what will happen to the family home and more importantly, if there is any equity that can help support the aging parent.
  • Monthly Expenses – Lastly, calculating the monthly living expenses – from groceries to utility bills to even social events – is important.

Long-Term Care Planning Can Help

For families supporting their aging parents, sometimes the solution is not pooling funds together or even selling off assets; instead, long-term care planning is needed. By meeting with an elder law attorney, families can explore their Medicaid options and create a plan that not only protects their aging parent’s assets, but can help pay for medical expenses, nursing home facilities, and more. The cost of caring for an aging parent can easily equal thousands of dollars each month – especially if that parent is in a private care facility and family members are paying out of pocket.

How to Avoid Court with Your Aging Parents

 

Long Island Elder Law Attorney - Lamkin Elder Law

It is not uncommon for children and their aging parents to have issues. Conflicts often arise (including old, once-settled conflicts) when aging parents begin to slowly decline in health and start needing emotional and financial assistance from their children. Any time there is conflict present, it can escalate to the point where a family winds up in court discussing their issues with a judge. These court costs and attorney fees will not only take out funds from the estate, but are often avoidable.

Even if family members do not get along, there is usually a way to avoid legal battles and keep the conflicts out of the courtroom.

Three Ways to Avoid Going to Court

  1. Organize Legal Documents – Some parents create an estate plan, but if they created that plan 30 years ago and have not updated it, now is the time. Certain life changes can severely alter the effectiveness of those documents – from divorces to changing heirs to medical needs. Children should have their parents meet with an estate planning attorney to revisit their documents and make changes as necessary. Also, parents should have a Durable Power of Attorney and Advance Healthcare Directive. These documents will prevent costly legal battles when the time arrives and a child must care or make decisions on behalf of the parent. The Advance Healthcare Directive will dictate who can make healthcare decisions on behalf of their parents, while the Durable Power of Attorney allows an agent to have legal authority over the estate.
  2. Plan for Care – Most families neglect to think of the future, especially when it comes to long-term care needs. As parents degrade in health, they may need private care or may even need a care facility. These are expensive and if the estate has not planned for these expenses, families may become aggressive towards one another while trying to find financial solutions. If one sibling is burdened with the costs while the others are not, it could create unwanted friction. This can be avoided by having a discussion, creating a plan, and establishing a system for covering long-term care costs.
  3. Use Mediation, Not Courtrooms – If a dispute does arise, mediation is a cost-effective solution. This organized process is conducted by a trained individual. Both parties will meet with the mediator and he or she will offer suggestions and ways to work out the issues. Most family conflicts can be easily resolved in mediation.

Avoid Family Disputes Altogether with a Sound Estate Plan

By establishing an estate plan that covers things like finances, healthcare decisions, and power of attorney, a family can reduce the likelihood that there will be any disputes in the future. Because emotions often play a vital role in these types of disputes, having legal documents in order can stop any attempt for someone to bring a grievance against the estate.

Take control of your estate’s future by meeting with an estate planning attorney. Contact the Law Office of Andrew M. Lamkin today for a consultation by calling 516-605-0625 or filling out an online contact form.

When Should Elderly Drivers Stop Driving for Good?

 

Elderly Woman driver

Most individuals want to drive as long as they can. However, there may be a time in a person’s life when they need to stop or at least limit how often they drive, which could be on a temporary or permanent basis, depending on the person. As a person ages, their driving abilities change as well. There are some things older drivers can do to reduce their risk factors, but these do not make up for medical conditions or age degradation that makes it unsafe for a person to drive.

It is important that elderly drivers pay attention to the warning signs that their age may be impacting their ability to drive safe, and either make adjustments or stop driving altogether.

How Age Affects Driving

Age does not automatically translate into bad driving skills. There are numerous drivers that continue to use safe driving practices and even drive into their 80s or 90s. However, age does affect a person’s strength, coordination, and flexibility, which all affect how a person safely controls their vehicle.

Signs That It Is Time to Stop Driving for Good

There is not a set age for when someone should stop driving. Instead, an elderly driver must be on the lookout for signs that their ability to drive safely is declining. These signs include:

  1. Too many “close calls” on the road – meaning almost crashing.
  2. Dents or scrapes are present on the vehicle, but the individual does not know how they received them.
  3. The driver frequently becomes lost while on the road – even in familiar locations.
  4. Response times have lessened dramatically or the individual has a decreased ability to quickly press on the brake.
  5. Vision has dramatically changed.
  6. Hearing has decreased.
  7. Easily distracted or no longer can concentrate on a single object for several seconds.
  8. Taking medications that affect reflexes and senses. A physician may recommend the elderly driver no longer drive or at least stop driving while taking the medication.
  9. Increase in citations, such as tickets for speeding or driving too slow.
  10. Difficulty staying in the lane, accelerating, or failing to use turn signals.

While losing the ability to drive may make some elderly individuals feel as though they have lost their independence, there are benefits to no longer driving. The adjustment will be difficult, but an elderly individual will save money, decrease the likelihood of being in an accident, and can still keep a busy social life by allowing public transportation, friends, or family members to drive them around.

Have You Planned for the Future? Meet with an Elder Law Attorney

As you age, there are many changes. It is important to meet with an elder law attorney to plan out the future “unknowns,”  such as Medicare, Living Wills, and Health Care Proxies. The Law Office of Andrew M. Lamkin can assist you with your estate and legacy planning needs. Contact us today for a consultation at 516-605-0625 or fill out an online contact form.

Cities Consider Restructuring Due to Increased Elderly Population

 

Helping A Sick Elderly WomanWhile the nation’s senior citizen population has increased at a rapid pace over the past ten years, many elder issues have come to the forefront, including increased medical needs, social security discussion and nursing home debate. A recent report, led by the Organization for Economic Cooperation and Development (OECD), considered the growing elderly population in urban development across the country. The organization reported a 24 percent increase in senior living population in cities across the U.S. from 2001 to 2011. The fastest growing demographic is seniors age 80 and up. These statistics lead to the question: How can urban areas adjust their infrastructures to these changing needs of our citizens as they age?

Increasing Accessible and Affordable Housing

One key element in creating senior-friendly cities is to increase accessible and affordable housing. Many people choose to move into smaller homes as they age. After retirement, some must adjust their budget as income decreases and medical expenses increase. Stairs may become challenging, as can property maintenance. City living has the potential to provide one-level apartments with few or no stairs, little upkeep, and easy access to medical services. In certain areas, zoning laws are being re-evaluated to allow families more flexible options for adding additional living quarters. Urban planners are exploring various forms of housing for the elderly.

Transportation and Mobility

As driving becomes more hazardous and difficult with age, public transportation may be vital to an elderly person’s well-being. Going to medical appointments and maintaining a healthy social life are crucial for seniors. Many cities already offer free or reduced price car and taxi services specialized for handicapped citizens. As more elder-based social services are offered, specialized senior bus transportation is explored as well. Discounted metro-cards are offered in many cities already. Organizations are beginning to look to other countries for ideas. For example, Lisbon, Portugal has instilled a public awareness campaign for elderly safety on city sidewalks. To accommodate their needs, walkways must be no less than five feet wide.

Cost Effective Social Services

During a time when the number of seniors is increasing rapidly, many city budgets are unfortunately being cut. The OECD has to deal with this issue in their effort to find affordable resources for growing needs. Examples of free or low cost social services include Nutrition Centers, Recreation Centers, and Meals on Wheels. The OECD’s goal is to keep up with the changing demographic while continuing the search for innovative and effective ways to engage the elderly with each other and the community.

Long Island Premier Elder Law Attorney

If you are a senior thinking about relocating, or you have an elderly loved one living on their own, you may have legal questions about Medicaid, special needs or elder law. Serving New York City, Nassau and Suffolk Counties, Andrew M. Lamkin and his team will work with you to ensure your assets are protected and that your benefits will be there when you need them. Contact the Law Offices of Andrew M. Lamkin today.

Important Facts to Know About Nursing Homes and Guardianship

It is less than common knowledge that nursing homes can file for guardianship of their residents to collect debts. However, this practice has increased ten-fold in recent years. In fact, studies show that up to two thirds of all guardianship proceedings nationwide are brought forth by a government entity or institution. Elderly and disabled nursing home residents with unpaid debts are at the core of this seemingly untoward practice. A report by the Brookdale Center of Healthy Aging and Longevity has shown between 2000 and 2012, over twelve percent of Manhattan’s guardianship cases were initiated by nursing homes. A study of the entire state resulted in a similar outcome.

Why Would Nursing Homes Want Guardianship of Residents?

Guardianship transfers an incapacitated individual’s right to make decisions regarding themselves to another party. Once the appointment is complete, the guardian (a person or entity) will make all financial and personal decisions for the individual. Guardianship effectively trumps a healthcare proxy or power of attorney. In situations where unpaid debts are accumulating against the nursing home, the facility may petition for guardianship to avoid family feuds, prevent embezzlement by family members, or to obtain Medicaid coverage. However, many people argue that the real reason for this practice is to force the resident’s family members to pay unpaid debts and settle bill disputes. In these situations, the guardian (nursing home) is usually paid with the incapacitated resident’s money. In fact, a nursing home with guardianship can directly take unpaid debts out of the resident’s bank account.

Although the primary reason for nursing home guardianship is typically financial, the granting of guardianship also gives the facility the last say in the resident’s care. In doing so, the nursing home is able to continue collecting payments by keeping the incapacitated person in their facility. It goes without saying that this type of arrangement creates a scenario in which nursing homes could take advantage of residents.

Can Guardianship Be Avoided?

A guardian has access to an incapacitated individual’s bank account and other readily accessible funds; however, guardianship does not supersede the trustee of a trust. By placing all of your loved one’s assets in a trust before they go into a nursing home, you can protect their assets from guardianship.

Andrew M. Lamkin – Elder Care Attorney

When an individual no longer has the capacity to make financial and healthcare decisions on his or her own, a guardianship proceeding may be required. If you need to help a loved one during this difficult time, you may consider filing a petition for guardianship. This is a complex legal process that requires the help of a skilled elder care attorney. As discussed above, guardianship can also be petitioned for by an institution or government entity. If you are looking for ways to protect your loved one’s assets from this type of guardianship arrangement, an elder care attorney can help you in this situation as well. At the Law Office of Andrew M. Lamkin, we have been representing older New Yorkers and their loved ones for many years. We understand the complexities and emotional challenges surrounding elder care law and estate planning. It is our goal to make this process as painless as possible, and to protect the assets and wishes of you and your loved ones. Contact the Law Office of Andrew M. Lamkin for a free consultation.