October 21, 2019










When Does Medicare Cover Nursing Home Costs?

When and how long Medicare covers nursing home costs will vary, but understanding how your benefits work and when they kick in is critical when you require nursing home care.

Most seniors will reach a point where they need nursing home or long-term care. Sometimes, it is only after an illness or accident, while other times the situation is permanent. If you are receiving Medicare or you are eligible to apply, you may assume that your costs are 100 percent covered with Medicare benefits.

This assumption, unfortunately, is incorrect.

Medicare does not cover a lot of traditional healthcare costs, and nursing homes are one of the costs.

However, when your nursing home or skilled nursing facility care is medically necessary, then you may receive some coverage.

When Does Medicare Cover Nursing Home Stays for Plainview Residents?

Medicare’s coverage of a long-term nursing facility is incredibly limited. Under the traditional Medicare plan, you will only receive limited care coverage for skilled nursing home facilities. The care only applies while it is a medical necessity. And to prove it is medically necessary, your physician would need to fill out the appropriate forms indicating such.

Up to 100 Days of Skilled Nursing Care with Medicare

Medicare Part A provides up to 100 days of skilled nursing care after an illness or injury. However, the requirements for utilizing this coverage are incredibly strict, including:

  1. Enter a Nursing Home within 30 Days of a Hospital Admission – For Medicare coverage, you must have recently been in the hospital and your admission into the nursing home cannot be more than 30 days after the admission. Likewise, your hospitalization must last a minimum of three days.
  2. Similar Care as the Hospital – The care you receive at the nursing home must be identical to the care you would have received if you were staying in the hospital; therefore, it must be required to treat a medical condition.
  3. Skilled Nursing Care Is Required – You must need an experienced level of nursing care, and the facility must have skilled registered nurses that treat you in-house. A physician must have placed orders, and a physician must supervise you during your treatment period. Likewise, a licensed practical nurse or registered nurse must carry out those orders and do so daily to qualify. Not many nursing homes have this level of skilled nursing care.

Once the nursing home reports to Medicare that you no longer need the skilled nursing home level of care, Medicare will stop payments.

What Other Options Do You Have to Pay for Nursing Home Coverage?

Nursing home costs are on the rise, and while you might not have Medicare to pay for your nursing home stay, you are not without options either.

Long-term care insurance is another option, but it does have a hefty premium. That being said, it will make up for the costs of nursing home stays, which will exceed the premium for 24-7 nursing home care.

Medicaid Is Another Option

One option that you might not have thought about is Medicaid. Medicaid works as long as you do not have many assets, and your income is relatively low (to none, if you are retired). Your Social Security income and pension income does fall under consideration when applying for Medicaid coverage.

Under a Medicaid plan, you can receive coverage for a long-term nursing home care or assisted living, but the rules depend on multiple factors. Federal law requires that all states carry a Medicaid program, but each state has rules that they use to govern who qualifies and what they pay for using these Medicaid benefits.

Medicaid in New York will pay for nursing homes and assisted living care, which is a relief for those facing the outrageous costs of nursing homes today. However, you must meet the income limits and be either 65 years and older, disabled, or blind to receive Medicaid coverage for your nursing home.

Also, your income cannot exceed the state threshold, which was $842 or less for singles and $1,233 per month for couples as of 2018.

How an Estate Planning Attorney Can Help

Medicaid is a joint run program by the federal government and the state of New York. To qualify for nursing home care, you first must qualify for Medicaid coverage.

Certain items that the Department of Social Services considers when qualifying applicants for Medicaid coverage in New York include:

  • Need of Care: Do you have a financial need and medical necessity that qualifies you for the level of care you are seeking?
  • Your Income: Naturally, your income, as well as your spouse’s income (when applicable) is considered. You cannot exceed the state’s maximum threshold. All income sources are considered in New York, including your distributions from retirement funds, pension payments, investments, rental properties, and Social Security benefits.
  • Your Resources: You might not have a large amount of money as income, but you may have considerable assets. When your assets are high enough, the state will deny your Medicaid application. Assets include everything from the value of your home to investments to insurance plans.

While the process of qualifying for Medicaid is complicated, an estate planning attorney in the state can help you by going over your options, assessing your eligibility, and working to determine how to protect your assets so that you can qualify for the care you need without having to liquidate your family’s estate in the process.

Speak with an Estate Planning Attorney Today

If you are worried about paying for nursing home expenses in the future, or if you would like to have a professional help you draft an estate plan that protects you when the time for nursing home care comes around, speak with Andrew M. Lamkin, P.C., today.

He can assist you with protecting your assets, looking over your long-term care options, and ensuring you qualify for Medicaid later.

Schedule a free case consultation now by calling us or requesting more information online.

A Guide to Picking Nursing Homes and How to Pay for Them

Whether you are looking for nursing homes for yourself, a spouse, or an aging loved one, it is imperative that you do your research first.

Nursing homes are plentiful, but not all of them offer the same care that you would expect. By understanding the basics to include in your search, you can narrow down the list of choices and walk away with the peace of mind knowing you picked the right nursing home for your loved one.

How to Pick a Nursing Home in Plainview, NY

For starters, you should always tour a nursing home. After your initial tour, go back and do a second one to see if anything has changed. During both visits, bring along this checklist and consider the following:

Smells

A nursing home should not have any unusual smells present, especially stale smells or that of urine. You want a nursing home that is clean, sanitary, and takes their resident’s comforts and health seriously.

However, nursing homes will have different smells. There are patients on medications and diet restrictions that can lead to gas. Also, as people age, they do lose control of their bladder and bowels. Therefore, it is important to realize that you might have a faint odor on one visit, but not on another. If the room you are considering for your loved one is overbearing with a smell, then you should be concerned.

Listen for Sounds

You should walk the halls during your tour and just listen. Do you hear anyone moaning or crying? Do you hear residents calling for help? Also, see how staff members address residents, their tone used when they speak to them, and how residents react to staff members.

How Is the Staff

The staff at the nursing home is integral in a nursing home resident’s care; therefore, you should give them the most scrutiny. A few things to watch with the staff during your visit:

  • How helpful they are with other residents. Do staff members seem attentive to residents? Are they assisting them with food, requests, and making them comfortable?
  • The attitude of the staff toward residents and you as a visitor. See how the staff react to your questions, how they talk to residents and other team members, and get an impression of their personality. Are they warm, friendly, and willing to help you? Do they seem overworked, tired, and unprofessional? When staff members are annoyed at answering your questions, that should be a red flag. If they are annoyed at answering questions about their job and the care they provide, how will they be when a client needs assistance?
  • How many staff members do you see on duty? While you are there, both times, count how many staff members you see and then ask about how many residents are in the nursing home currently. You want a good ratio of staff to residents because, otherwise, residents will not get the care and attention that they deserve.

Ask About Activities, Day-to-Day Routines, and Social Gatherings

One of the most important aspects of a nursing home is to provide a resident with social activities, exercise to keep them healthy, and a routine that ensures they receive the care they need. Ask about how nursing home residents will spend their days, if there are daily activities or social hours, and any special activities that happen throughout the month to encourage socialization. You should see a daily calendar where a resident has something to participate in, and it should be published where it is easily viewed.

Ask How the Home Handles Falls and Other Injuries

Falls can happen in nursing homes because, as residents age, they may lose their ability to hold their balance, they can trip and fall more easily, and these can lead to severe injuries. You want to know the nursing home’s policy and procedure for resident accidents and what they do to ensure that the resident receives proper care and that the accident is prevented in the future.

Paying for Nursing Home Care

Paying for a nursing home is one of the biggest concerns on residents’ minds. You know that you need the nursing home care, but what if your savings are too low? Perhaps you do not have a trust, or you have no income stream. Luckily, there are ways to pay for a nursing home.

One of the most popular methods is Medicare. Medicare is a federal insurance benefit that pays for a number of days in a nursing home. You also have Medicare Advantage Plans that do not require hospitalization before entering a skilled nursing home facility. Also, you may be able to choose a nursing home that is close by, as long as it is within the network.

Medicaid is another option for nursing home care. When you do not have the assets or income to pay for the nursing home care you need, you can use this federal benefit. Medicaid is a federal government assistance program that is run by each state.

Planning for Long-Term Care? Meet with an Estate Planning Attorney

One of the best ways to plan for long-term care in the future is to do so with a well-drafted estate plan. You can work out a plan to cover the costs of a potential nursing home stay or in-home nursing home care. Also, you can explore your options for Medicaid and go through a Medicaid plan, which ensures that your assets are adequately distributed so that you qualify for federal assistance.

In New York, you would need Institutional Medicaid. To plan for this, you must ensure your assets are protected and that you reduce any penalty periods that would prevent you from getting Medicaid benefits.

To get started on your long-term care plan or to learn more about Medicaid planning, contact the Law Office of Andrew M. Lamkin, P.C. We can meet with you for a free consultation and discuss your long-term care concerns along with helping devise an estate plan.

Call 516-605-0625 to schedule an appointment or contact us online with your questions.

Common Mistakes Made by Executors and How to Avoid Them

The job of being an estate’s executor is not an easy one. This is why, when you designate someone, you do so with extra care. You pick someone organized, efficient, and mentally ready for the job ahead.

Whether you are working to pick an executor or you were named the executor of an estate, there is much to still be done. One of the most critical tasks is finalizing the will and distributing the assets. While this sounds relatively simple, it is a highly complicated process where numerous opportunities for mistakes occur.

With the honor and privilege of being named comes great responsibility, family disputes, deadlines, and the risk of finding yourself named in a lawsuit.

Many of these hassles of the job can be avoided just by understanding your role and the common mistakes others made before you. Knowing the issues to avoid can prevent hiccups in the estate’s administration and let you get back to your life and work as quickly as possible.

What Mistakes Do Executors of Plainview Estates Make the Most?

To err is human.

Only, in the case of an estate, you are dealing with high emotions, family members who may not have good relationships, and money. Those three issues combined to create a cesspool of contention. To not stir the pot, be sure you avoid these common executor mistakes:

Paying Estate Expenses Immediately

You are practicing your due diligence and assuming you are doing the job right by paying every outstanding bill immediately. However, not all bills are due, and in some cases, these expenses do not come from estate funds. Before you start writing checks and making payments, consult with an attorney.

Furthermore, if the deceased had an illness, more medical costs are likely to come through. And if you spend too much on expenses early on, it may offset the liquid assets.

Not Identifying All Assets of the Estate Correctly

One of the first tasks an executor does is locate and catalog all assets of the estate. When filing for probate, the executor will explain the assets found, their estimated value, and then identify which party receives them based on the will.

Some executors rush this process because the courts only allow so much time to issue a report to them. Doing so quickly means they overlook assets, and those assets then later must be disclosed to the court again. Missing assets the first time costs the estate and increases the wait time for beneficiaries. Furthermore, it may create liability issues with creditors, especially those who are affected by the oversight.

Distributing Assets Too Early

As an executor, you must distribute assets quickly and resolve the estate. But doing so before knowing the true scope of expenses only hurts you and the estate more.

You must administer timely, but also aim to pay all debts and liabilities first before distributing assets. Typically, an estate is administered within one year of the date of death. However, taxes, expenses, and other liabilities come first. If you were to distribute too early, and you did not hold onto sufficient estate funds to cover those liabilities, you would have to recoup funds from beneficiaries – which is almost impossible, in some instances. Often beneficiaries move, spend their inheritance, or become uncooperative.

Therefore, wait for all bills to apply. And if there are any outstanding medical costs still pending with insurers, wait for those to process so that you understand the full scope of expenses and know how much funds you need to reserve for them. You may be able to distribute certain assets while holding on to a reserve for any pending costs, but speak with an estate administration attorney first before doing so.

Waiting Too Long to Distribute

While you must be diligent and ensure you have the funds to pay for estate taxes and other debts, waiting too long is an issue as well. Not only will creditors and beneficiaries become anxious and possibly threaten lawsuits, but it can cost the estate unnecessary expense as you battle these claims in court.

Also, not administering an estate promptly could constitute a breach of your fiduciary duty, because you would not be acting in the best interest of the estate anymore. Beneficiaries can file a lawsuit against you, and you may pay from personal finances for any unnecessary costs inflicted on the estate due to your refusal to administer the estate.

Misinterpreting Terms of the Will

Unfortunately, a poorly written will leaves too much room for interpretation. It is the executor’s role to interpret the wishes of the deceased and carry out those wishes as they distribute the estate’s assets. If you misinterpret terms or blatantly ignore terms you disagree with, you may find a petition to remove you from your role and you could be personally liable for any costs associated with doing so.

Not Seeking Legal Counsel

One of the biggest mistakes executors make is not hiring an attorney at a reasonable time.

An attorney can help with the administration of the estate and with any tax filings or disputes, and ensure that the will is executed properly. Furthermore, an attorney helps protect the executor from the frivolous creditor and bitter beneficiary claims and can help protect them from being held personally liable for estate matters.

Need Assistance with Your Role as an Executor? Contact an Attorney in New York

New York probate courts are complicated, and your role as an executor can be overwhelming – especially if you have a life of your own.

Do not let the task of administering an estate affect your life. Instead, get the assistance you need and the guidance for navigating estate laws for New York. Speak with attorney Andrew M. Lamkin, P.C., today to explore your options.

You can schedule your free case evaluation now at 516-605-0625 or request more information online.

If you are currently writing a will and you would like assistance with your estate plan and designating an executor, the Law Office of Andrew M. Lamkin, P.C., can assist you as well. We are a full-service estate planning law firm that can help with everything from wills to trusts to Medicaid planning and estate litigation.

5 Trending Topics in Elder Law to Know Today

More baby boomers are hitting 65 each day and will continue to do so into 2030. Therefore, the issues surrounding elder law are becoming more mainstream, especially as more enter or head toward retirement and start looking at the facts.

From Medicare to long-term care coverage to Social Security, there is a lot to know about elder law. Naturally, it is best to speak with an attorney any time you have a question or concern in these areas. This is because an elder law lawyer focuses specifically in this area, is apprised of the latest legislature changes, and can help prepare you for the road ahead.

5 Important, Trending Topics That Elder Law Attorneys Want You to Know

The more prepared you are for the later years, the easier it will be when it comes to securing benefits, finding long-term care, and protecting your loved ones. Here are a few trending topics attorneys are seeing – and that you should be aware of, too.

Topic 1: Alzheimer’s Disease and Estate Planning

Dementia, including Alzheimer’s Disease, is not just a loss of memory. As it progresses, most patients with dementia lose their ability to function from day-to-day. They can forget to take medications, not remember their name, or confuse the current time with one year ago.

In 2018, an estimated 5.7 million Americans were living with Alzheimer’s, according to the Alzheimer’s Association. Every 65 seconds in the US, someone develops the disease whether it is diagnosed or not. While it typically affects people later in life, there is a type known as early on-set that can strike much earlier without warning.

Once the disease is diagnosed, estate planning becomes incredibly complicated. No longer is the individual considered legally capacitated, which means they do not have the authority to make decisions themselves.

Elder law attorneys understand the complications that arise when a person is diagnosed or suffering from severe dementia but needs to create a plan to protect themselves and their loved ones – including assigning a guardian to oversee their best interests.

Topic 2: Medicaid and Nursing Home Costs

If you have limited assets and no or minimal income but you need nursing home care, you may wonder how you can pay for it. Medicaid might help in this situation, but you need to plan it properly and apply correctly to avoid unnecessary delays.

Nursing homes fall under long-term care, and Medicare rules are different regarding long-term care over short-term care needs.

It is not just qualifying for Medicare that poses an issue. Other issues come into play like state regulations and whether the nursing home you have selected even accepts Medicare or Medicaid benefits.

An attorney helps with Medicaid planning, but can also assist with long-term care planning long before you need nursing home services so that you do not scramble last minute to cover for your nursing home needs.

Topic 3: Veteran’s Benefits

Those who served in the military are eligible for benefits through Veterans’ Affairs. Veterans receive monthly compensation checks, but may also receive VA health care and nursing care through the Veteran’s pension.

Furthermore, the veteran’s pension may pass to the spouse in eligible situations after the death of the person who qualified for the benefits initially.

However, there are asset limitations to these benefits. And if you are a veteran or spouse of a veteran, it is important you understand the rules for VA benefits, including health services. Furthermore, having a long-term care plan in place ensures that you allocate assets appropriately to avoid disqualifying for veterans and other federal benefits available.

Topic 4: Social Security

Social security is available between the age of 62 and full retirement, but most people will not start taking the benefit until they have retired. Some might even delay until they reach 70 – depending on their financial situation.

While you might qualify for social security, you cannot rely on it solely to support you in retirement. Regardless of your plans with social security, you need to plan for Medicare and plan at age 65 to avoid an increased premium later.

Furthermore, if you work closely with an elder law attorney, you can create a long-term plan that focuses on your social security options, prepares your assets for Medicare, and still provides for your family.

Topic 5: Estate Plans

One of the most important services offered by an elder law attorney is estate plans. These plans dictate where your assets go upon your death, and they provide for your loved ones. If you are nearing retirement but have not yet created an estate plan, now is the time to start.

Estate plans are complex and more than just a binder of paperwork. A comprehensive, well-drafted estate plan focuses on:

  • Last Will and Testament
  • Power of Attorney
  • Living Trust
  • Medical Directives
  • Designations for Beneficiaries

Together, these components not only identify beneficiaries and what they will receive from your estate, but it also outlines what medical care you want to receive if you become incapacitated. Additionally, it appoints a person to manage the estate and your financial affairs when you cannot and looks out for your best interests.

With a trust, you might save your family the hassles of probate court as well.

Meet with an Estate Planning Attorney Today

Whether you are worried about qualifying for Medicare or you want to get started on your estate plan, speak with an attorney that has experience in elder law.

The Law Office of Andrew M. Lamkin, P.C., has extensive knowledge of the trending topics in elder law and hot issues on the horizon. We can create an estate plan that is futureproofed and considers the long-term care you need, including when you cannot make decisions yourself.

Meet with attorney Lamkin today for a free, no-obligation consultation by calling 516-605-0625. You can also request more information about elder law online.

3 Big Issues an Elder Law Attorney Can Help Resolve

An elder law attorney serves as your advocate and also your family’s guide.

This area of the law specializes in the unique range of financial and legal matters older adults face, including everything from health care planning to long-term care to guardianship and estate planning.

An elder law attorney is a specialist because they focus specifically on the issues afflicting those in retirement or venturing close to it.

When you go to an elder law attorney, they have a vast array of services they provide you. But there are three critical legal issues they can resolve.

Most importantly, elder law attorneys are better equipped to handle issues like Medicare or Medicaid planning and the sensitive needs of elderly individuals and their families. They are well versed in the latest laws and legislature. They can help you, not only today, but they can also anticipate your future needs as well.

What 3 Important Legal Issues an Elder Law Attorney Can Help You With

The services an elder law attorney can provide are extensive, but there are three critical issues that they can help resolve before they turn into more significant problems.

Whether you have an elder attorney already or you are considering hiring one, here are three critical issues that you want to make sure you get resolved now rather than later.

Long-Term Care Planning

Long-term care planning involves considering your care requirements at a later date. This includes healthcare teams, nursing homes, and assisted living options. You might also want to prepare for in-home nursing care.

Most families are ill-prepared to pay for such services. And even with insurance coverage, you might find that you do not have the benefits available to cover care for several years.

You have options to pay for your long-term care, and an attorney will help you unlock those options. Elder law attorneys counsel their clients regarding eligibility and look for programs like Veterans’ Affairs that might help pay for these services. Even if you do not qualify for VA benefits, you may have Medicaid or Medicare, which pays for long-term care.

Your attorney not only helps you prepare for applying for these benefits, but they help with asset management so that you will qualify financially.

Creating an Advance Directive (Living Will)

Elder law attorneys create estate plans, but they also can create vital documents like a living will. A living will, also known as an advanced directive, is your advocate designation if you become ill or incapacitated and cannot make medical decisions yourself.

Your living will discusses all your medical wishes. It is a legal, written document that outlines how you wish to receive emergency care. You can discuss topics like resuscitation, life-saving measures, surgeries, and any end-of-life treatments you want to receive or do not want to receive.

You should discuss these options with your primary care physician and your family. When you select a party as your healthcare advocate, it is their job to carry out all wishes listed in your living will.

One common use of an advanced directive is to determine the use of life-saving measures like being placed on a ventilator.

The Importance of Thinking Ahead – and Using Specifics

One error made with an advanced directive is that most people cannot address their mortality. They do not want to think ahead about what might happen or what the future holds. Furthermore, they may forget situations where medical decisions might be required.

It is vital that you work with your attorney to be as specific as you can in your document. While you cannot account for every possible situation, the more information you have in that document, the easier it will be for your healthcare advocate to comply with your wishes.

Durable Financial Power of Attorney

Another common issue that your attorney helps with is the durable financial power of attorney. This document provides access to one individual to manage your financial needs in the event you are incapacitated and cannot do so yourself.

The document grants power to one person, which might be a family member. They have the legal authority to access your accounts, pay bills on your behalf, sell or acquire assets, and even pay taxes.

You are in complete control of the authority they have over your financial decisions. In your durable power of attorney, you can decide the following tasks they may or may not do:

  • Pay bills
  • Pay and file taxes
  • Pay for medical costs
  • Manage real estate
  • Access your bank accounts
  • Invest
  • Collect retirement benefits for your use
  • Transfer or sell assets
  • Hire an attorney for your estate
  • Operate your business
  • Buy insurance

Realize that an agent does not have unlimited power. Instead, you dictate the power they have in your document.

Other Problems an Elder Law Attorney Can Resolve

While these three are the primary problems elder law attorneys are hired to handle, they have much more to their services than that. An attorney can also help you with:

  • Counseling you on insurance and avoiding gaps in coverage
  • Assessing your needs for legal capacity counseling
  • Protecting you or representing you in elder abuse
  • Advising you on housing options after retirement
  • Discussing the best route for your retirement
  • Helping with guardians, conservators, and trustees to handle your estate
  • Creating an estate plan
  • Helping plan for disabilities

Explore the Options Available – Meet with an Elder Law Attorney in Your Area Today

If you are ready to explore your options and see what an attorney can do for you, schedule a consultation with an elder law attorney.

Get started today by scheduling a free case evaluation with the Law Office of Andrew M. Lamkin, P.C., by calling 516-605-0625 or request more information online.

What Is a Certified Elder Law Attorney – and What Can They Do for Me?

Description: An elder law attorney can help you long before retirement with everything from long-term care to Medicare and even the creation of an estate plan.

You know that you need an elder law attorney. But as you ponder over your options, you might have noticed some attorneys have called themselves “certified,” while others do not. The certification they have received may come from organizations like AARP’s Legal Services Network while others are members of the National Academy of Elder Law Attorneys (NAELA). Some attorneys go further and receive an official certification through an ABA-approved program.

While certification means they are proficient, that does not mean they are the right attorney for you. Instead, you should consider the pros and cons of certification, memberships or affiliations the attorney has, and their overall experience before solely choosing based on certification status.

Does an Attorney Require Certification in Plainview?

No, an attorney offering estate planning or elder law services in Plainview, NY, does not have to be certified in elder law. They do, however, require registration with the state bar association.

You can verify that your attorney is a member of the New York State Bar Association, and you can contact the Bar to see if there are any complaints or pending actions against an attorney you are considering.

What Does a Certification Mean?

Some attorneys will receive a certification in their legal specialty. This may require continuing education, testing, peer reviews, and passing exams to obtain that certification. Certification is an additional peace of mind. And while it does prove an attorney is capable in the area of elder law, you still want to consider the other items that go into an attorney’s qualifications.

Memberships Matter Too

Most attorneys will be members of organizations specific to their specialty. If an attorney practices elder law, they should be a member of the National Academy of Elder Law Attorneys (NAELA).

NAELA is a professional organization that provides continuing education to its members, peer networking, and helps local clients more easily find qualified attorneys.

To be part of the Academy, attorneys must be practicing members of the bar and offer legal services that address the needs of the elderly. They must represent a high code of ethics, exhibit knowledge in their field, and show commitment to their clients as well as remain active in the Academy.

These memberships are paid, but that payment helps fund continuing education and advocacy programs offered by the organization. Attorneys who are members of NAELA also have access to comprehensive libraries, knowledge databases, and other resources.

Another membership you should look for from an attorney is in the AARP Legal Services Network. This means that the attorney you are considering offers you a free consultation if you are an AARP member. Because elder law attorneys deal with local seniors, you would expect one to be part of this network and honor the discounted consultation fee. If an attorney is not a member of the local legal services network, you lose out on the free consultation opportunity.

Do Not Forget about Local Advocacy Groups

You are working with a local attorney, so you should expect to see a local advocacy group or organization affiliation. In Nassau County, an attorney practicing in elder law should be a member of SUN (Senior Umbrella Network), Nassau Chapter.

This group offers local professionals networking and continuing education opportunities specific to elder law and planning.

Looking at Core Services

Once you have looked over certifications, memberships, and affiliations, the next step is the services offered by the prospective attorney.

Remember, certifications are only a minor piece of the puzzle. If your prospective attorney is a full-service firm, how much time can they dedicate to elder law continuing education? How often do they address elder law plans, Medicare planning, and other long-term care planning needs?

An attorney may offer elder law services, but your goal should be to find one that specifically works in the estate and elder law field. This attorney will be up-to-date on the latest changes, including proposed changes in legislature. They work consistently in the area of elder law; therefore, they are well-versed in their field, know what local probate court judges expect, and how Medicare representatives review applications.

An attorney working exclusively in this field will also help plan for the unexpected – like the need for guardianship, creating advanced directives, or taking care of loved ones later in life.

Here are just some of the services an elder law attorney can help you with:

  • Living Will
  • Healthcare Proxy and Advanced Directives
  • Durable Power of Attorney
  • Medicaid Planning
  • Estate Planning and Estate Tax Planning
  • Asset Protection
  • Estate Administration and Probate Litigation

Do You Need an Attorney for Long-Term Planning?

If you are ready to create your estate plan, need to adjust one you already have, or you need the services of an elder law attorney in your area, contact attorney Andrew M. Lamkin, P.C. He is a member of the AARP Legal Services Network through Allstate and part of the NAELA group of professionals.

You can schedule your free, no-obligation consultation with the Law Office of Andrew M. Lamkin, P.C., now at 516-605-0625 or request more information online.

10 Essential Questions to Ask before Hiring Your Elder Care Attorney

When you are looking for an elder law attorney, ask these questions before hiring him or her to make sure they are the right fit.

As you age, concerns about your living situation, care needs, and finances start to arise. You might wonder how you will pay for long-term care, what will happen to your assets, or who will take care of you and make decisions on your behalf.

All of these are legitimate questions and concerns and ones you should bring to an elder law attorney. Elder law lawyers focus on the unique legal matters of seniors, and they can help you manage your circumstances today and well into the future.

Regardless of what questions bring you to an attorney, you need to meet with one earlier rather than later. The sooner you get an attorney involved, the easier it will be to put your concerns at ease and get you on the right path.

10 Critical Questions to Ask a Potential Elder Law Attorney

You have an attorney in mind, and you have scheduled the consultation. The next step is to create a list of questions. These questions help gauge whether the attorney is a good fit for your needs and addresses any initial concerns you may have. You want to address these questions in the consultation so that the attorney better understands what services you need.

1. Are You a Certified Elder Law Attorney?

An attorney can prove their prowess in elder law by being certified through the National Elder Law Foundation (NELF). NELF helps attorneys understand the requirements regarding their clients better. To remain certified, your attorney must continue their practice focusing on elder law and do specific amounts of continuing education.

To certify, your attorney also must have a license in your state, maintain good standing with the New York State Bar Association, practice law for a minimum of five years, complete 45 hours of continuing education in elder law in the past three years, have references from five attorneys, and pass an examination.

2. How Many Years Have You Practiced Elder Law?

Some attorneys branch out into elder law because they see the growing demand. However, they do not practice exclusively in this area, or they recently opened their practice to that area of the law. Preferably, you want an attorney who has several years of experience. This is because the regulations regarding senior care, estate plans, and long-term care planning change continuously – and you need someone experienced with the case law and changes.

3. Is There a Niche in Elder Law on Which You Focus?

Some attorneys only focus on specialized areas of elder law such as elder abuse, long-term care, Medicare or Medicaid planning, and Social Security. Inquire about what areas of elder law your attorney practices in to make sure they cover not only the services you need, but also the services you may require in the future.

4. Do You Have Experience with Cases like Mine?

Every client and every case is unique. You want an attorney that has experience working on similar issues like yours because they are faster at creating a solution than an attorney venturing into unknown waters.

5. Who Will Handle My Case?

When you meet with an attorney, you should always ask who will be handling the case. The attorney you meet with might represent your case in court, but the back-end work involves a team of professionals such as an accountant, paralegal, secretary, and possibly other attorneys. Therefore, you’ll want to know who exactly you will encounter and who does the work on your case.

6. How Familiar Are You with the State Laws?

Your attorney is a guide through the legal system. You want to know the laws and how they affect you when it comes to areas like Medicaid, Medicare, long-term care planning, nursing home rights, estate planning, asset management, and more.

Your attorney should be well versed in all laws that affect your estate plan and long-term care planning.

7. What Relevant Organizations Do You Participate In?

Your attorney should participate in organizations that influence elder laws and planning. Examples would be: the Special Needs Alliance, local or state agencies involving elder law, and the National Academy of Elder Law Attorneys, Inc.

8. How Familiar Are You with Medicare and Medicaid?

One of the most important services you receive from an elder attorney is Medicare or Medicaid planning. Therefore, you need an attorney that is well versed in these government systems and knows how to plan for long-term care properly.

Medicare is for individuals 65 years and older or those with a qualifying disability. These programs are highly complicated and have strict requirements. Your attorney must understand all of the requirements for Medicare or Medicaid, including assets, custodial care, and the needs-based entitlements from Medicaid.

9. What Happens to My File If You Stop Practicing?

One crucial question clients forget to ask is what happens to their files if their attorneys stop practicing. What if a severe illness strikes your attorney or the attorney retires? Who takes over their cases? Ask about your potential attorney’s contingency plan, and what they have in place in the event they retire or an emergency occurs.

10. What Suggestions Do You Have for Me?

You can get an idea of what your potential attorney has planned for you just by asking for suggestions. What do they suggest you do so that you can qualify for Medicare in the future? How do they suspect they will handle your assets in your estate plan?

Meet with an Elder Law Attorney in Your Area Today

The questions you have about your future should not go unanswered. If you need an elder law or estate planning attorney, meet with attorney Andrew M. Lamkin, P.C., at the Law Office of Andrew M. Lamkin.

He can meet with you and discuss your questions, find solutions to your pressing concerns, and help you navigate through the complexities of long-term care planning – including estates, assets, and Medicaid planning.

Schedule a free consultation today at 516-605-0625 or request your appointment online.

How to Help Your Widowed Elderly Parent with Legal and Financial Issues

After losing one parent, you may see that your surviving parent is struggling with the legal and financial tasks that come afterward. After all, they are grieving and the last thing they should have to deal with is the paperwork, phone calls, and endless to-do items.

As an adult child, there are things you can do to help your parent. While some of these tasks can wait, others may need to be addressed immediately. Therefore, consider this list of tasks that must be done and see what you can tackle first.

10 Steps to Take after a Parent Dies in Plainview, NY

You are going through an emotional time, but there are legal and financial tasks that you must complete so that you can truly put your loved one to rest. To help your surviving parent, we have compiled a list of ten must-do tasks. Some of these you can do alone, while others you should consult an attorney for to ensure that you are following New York’s laws.

1. Locate All Assets

Even if your surviving parent is named as the executor, you can help by finding all the assets. Ask your parent what assets they have, and where they might be located. Make a master spreadsheet that has all bank and brokerage account information, retirement accounts, insurance plans, real estate, safe deposit boxes, and significant assets that are vital to the estate.

2. List All Debts

See if you can create a list of debts the estate owes, such as mortgages, car payments, credit cards, private loans, and student loans. Review that list with your surviving parent and ask to see any bank records or financial statements so that you can get account numbers, balances, and the contact information for each creditor in order.

3. Apply for Social Security

Help your loved one apply for Social Security benefits (if they are eligible). You can find information for your local SSA office online and pay attention to survivor’s benefits. You can also ask about other benefits your surviving parent may be entitled to, such as veterans pay, pension accounts, or any employer-related payments.

4. Review the Will

Your parents most likely had a will drafted. Therefore, you need to get a copy of that will and review it. See what wishes your parent laid out in that will, including who was named the executor. If the executor is not yourself or your surviving parent, contact the executor right away so that they may begin their task of settling the estate.

5. Meet with an Attorney

Whether the estate goes to probate or not, it is best that you meet with an attorney to review your options. An attorney can help ensure that all assets are accounted for and distributed in accordance with the will, but also that any minor steps required by the state are addressed so that your family’s estate completes the process as quickly as possible.

6. Update Wills and Trusts

If your surviving parent has a will or trust, now is the time to have those documents updated. Most likely they would have named their primary beneficiary as the spouse that has passed away; therefore, they will need to designate new beneficiaries.

Also, your surviving parent may need to update their healthcare directive and executor roles.

7. Create a Financial Power of Attorney

Have your surviving parent make a financial power of attorney. This document will name someone that handles their financial matters if they become incapacitated. The party can handle everything from managing investments to paying bills and it is a critical document for a widowed spouse to have.

8. Start Organizing

Once the documents are created, your parent’s estate probated, and the turmoil has settled, the next step is to help your surviving parent organize the documents. A good estate plan will not help if the documents are not organized and prepared in case the unthinkable were to happen.

Create a filing system that includes all power of attorney documentation, bank and brokerage account information, retirement accounts, insurance policies, and the updated will and trust.

9. Update Insurance Policies

One overlooked step is updating insurance policies. Make sure that your surviving parent picks a new insurance beneficiary. Insurance designations are not the same as an estate plan. The beneficiary named on an insurance policy will trump any name in an estate plan; therefore, you want to ensure your surviving parent updates this as quickly as possible.

10. Find a Support Group

One of the best ways to help a grieving loved one is a support group. There are many support groups offered by local churches, hospitals, and community centers. They offer support to those who have lost a spouse, including specialty groups for spouses that have lost loved ones to illnesses like cancer.

Need Assistance with Administering a Loved One’s Estate?

After losing a parent, the last thing you need to worry about is the tedious steps involved with settling an estate. Meet with an estate planning attorney who can help you with probate and estate administration. An attorney is a neutral third-party that can help provide you with advice, insight, and even update documents so that your surviving parent is taken care of.

To explore your options or to get assistance with probate, speak with the Law Office of Andrew M. Lamkin, P.C.

Schedule a free case evaluation at 516-605-0625 or request more information online.

A Quick Primer on Elder Law

As you age, you face critical decisions that not only impact your quality of life but the life of your loved ones. Some decisions you might make include how you receive medical care, where you live, and what you want when you pass away.

Many decisions you make have legal considerations too, which is why elder law attorneys are there to help. Elder law attorneys are advocates. They help you make plans, offer advice, and draft legal documents you might need to protect yourself, your assets, and your loved ones.

What is Elder Law and How Does It Work in Plainview, NY?

The laws of New York have specialized fields – such as family law, tax law, and corporate law. While you have heard of most of these areas, one you may not have heard about is elder law. Elder law handles the legal issues affecting the elderly.

Some areas that elder law covers include:

  • Guardianship and Financial Administration – If you became incapable of caring for yourself or you were unable to make decisions due to an illness or incapacitation, how would your estate and personal matters be handled. In these instances, the court is called in to appoint a guardian. While in some cases the court might appoint someone you would have picked yourself, in most cases, you may not receive the guardian you intended. Using your rights, you could select a guardian yourself – thus, ensuring the person who handles your healthcare, personal, and financial decisions are one you trust.
  • Advance Directives, Power of Attorney, Living Wills – You have numerous documents that you can draft to help prepare you in case you are incapacitated. An Advance Health Care Directive lets you create wishes for medical treatments if you become incapacitated. This document outlines all care you wish to receive and at what point you want medical professionals to withdraw attention.
  • Health Care or Social Security – Another critical area of elder law is Medicare. With an attorney’s help, you can handle disputes over medical care, learn about your patient rights, and apply for Medicare coverage. Also, most elderly individuals rely on Social Security benefits during retirement. If you have issues with Social Security, your attorney may be able to transfer benefits to spouses and dependents to lessen your estate’s value.
  • Estate Planning One of the more commonly used areas of elder law is estate planning and estate administration. Estate planning involves transferring your property to intended beneficiaries upon your death. Estate planning also comes in many forms, including the traditional Will to the trust. When you meet with an elder law attorney, you will discuss which options are best for your estate based on your wishes, estate value, and New York laws.

What Does an Elder Law Attorney Do?

An elder law attorney is an advocate for the elderly. He or she works to protect your rights, but they also handle a variety of legal matters that affect you as you age or become disabled. Your elder law attorney can help with everything from long-term care planning to retirement to Social Security to Medicare and estate planning.

An elder law attorney is more capable of handling sensitive issues as well, including the physical and emotional needs of older adults and even those who are disabled.

Some Ways an Elder Law Attorney Can Help

  • Discussing wills and other estate planning documents, including preparation for minors, adults with special needs, probate, and other estate planning issues that can arise
  • Creating a durable power of attorney
  • Creating a plan for financial planning, housing, and estate or gift tax issues
  • Explaining all nursing home options, resident rights, and filing nursing home claims if necessary
  • Drafting a living will or creating an advance directive, including the Power of Attorney or long-term planning documents
  • Helping locate long-term care facilities or managing assisted living costs
  • Helping apply for government benefits, including Medicare or Social Security
  • Providing help with financial planning and health care planning

What to Consider When Hiring an Elder Law Attorney

An elder law attorney does not always specialize in all areas that affect the elderly. Therefore, you want an attorney that handles the specific area of elder law you need, but also consider what long-term services they may be able to offer you. It is easier if you have established a long-term relationship with an elder law attorney – in case new issues arise.

Find an Elder Law Attorney in New York Today

If you need an elder law attorney or you want to explore your options for elder law services, contact an attorney in New York that has years of experience handling everything from advance directives to real estate, Medicaid, and estate planning.

The Law Office of Andrew M. Lamkin, P.C. can help you with your long-term planning needs. We help with legal and non-legal issues, including nursing home planning, retirement planning, and long-term care insurance.

Schedule your free, no-obligation consultation today at 516-605-0625 or request more information online.

Primary Goals of Small Business Tax Planning

As any experienced small business owner already knows, the primary goal of small business tax planning is to make the most the money the business is already generating. How an accountant achieves that goal depends on the type of business, the source of its income, and a myriad of other factors.

Staying Out of Trouble

Generally speaking, effective tax planning aims to eliminate or considerably reduce the amount of federal, state, or local taxes your business owes by planning when and how to conduct day to day business activities. Unfortunately, while it is perfectly legal to plan business activities in an effort to avoid certain taxes, it isn’t legal to carry out business in a way that evades taxes.

The number one goal in small business tax planning, therefore, becomes staying out of trouble. That’s where tax professionals such as accountants and attorneys come in. Doing your own tax planning without the benefit of an experienced professional is like skating on thin ice; a wrong move could prove dangerous.

Avoiding Common Mistakes

While many small business owners completely disregard taxes until the time comes to file a return, even those who participate in tax planning are prone to making mistakes that cost them in the long run.

One of the biggest mistakes small business owners make is missing out on available tax credits, loopholes, and deductions that could lower their tax burden and keep more money in their pocket. Another common mistake is waiting until the last minute to consult with a tax professional. Good small business tax advice can help steer an entrepreneur in the right direction before taxes come due, giving them more time to take steps that will lower their tax burden in the first place.

Putting Business Income to Better Use

Money that otherwise might have been paid in taxes could be put to better use in the form of valuable business-related deductions. For example, a small trucking company could significantly lower its taxable income by investing in a new truck or a better communications system and writing it off at the end of the quarter. In turn, that new piece of equipment could be used to generate more income, which could then be applied to more equipment. Using tax planning in this way could substantially contribute to your company’s growth.

Sources:
http://www.sba.gov/community/blogs/mid-year-tax-planning-do-it-now-save-later
http://smallbusiness.foxbusiness.com/finance-accounting/2013/10/25/end-year-tax-planning-for-your-small-business/
http://www.forbes.com/sites/thesba/2012/01/10/5-tax-planning-tips-for-small-business-owners/

How Spousal Rights Affect Legal Property Ownership

Various laws concerning a person’s property rights during marriage are normally based on the state that the marriage took place in. Marriage and property ownership laws in different states are divided into two different categories. There are states with community property laws and states that do not have community property laws. These different laws govern how spouses can dispose of their property or use their property during marriage. They also govern how property will be divided in the event that the spouses have a divorce or in the event that one of the spouses dies. Most states give spouses the chance to change a state’s law a little regarding marital properties through the use of spousal agreements.

Community Property States and Common Law States

The property that two people own during a marriage is divided into two different categories. Property can be either non-marital property or community property. Community property is property that a married couple own together. Non-marital property is a type of property that a spouse owns alone or owned before he or she got married. However, this type of property can become marital property if it becomes mixed in with property that the couple owns together. For example, if a spouse uses money that was obtained before the marriage to pay towards a down payment for a home with his or her spouse and both people make payments with money that is earned after the marriage, the complete equity in the home becomes marital property.

Common law states pay more attention to the name that is on the title of the property when it comes to a spouse’s property ownership rights. For example, if each spouse has a car in his or her name, it will belong to only him or her. However, if the house is in both names, they each own half of the value of the house.

Postnuptial and Prenuptial Agreements

All states regardless of their laws concerning marriage and property will let married couples create reserved agreements about property and the division of property. However, there will be various specifications regarding what is allowed in these agreements. The specifications are different with each state. An agreement can never put a limit to how much child support will be paid if a divorce does happen. Depending on the state, this might also apply to spousal support as well. Most of the time prenuptial agreements and postnuptial agreements are geared towards the spouse’s property ownership rights. Your state’s courts are probably going to pay more attention to enforcing prenuptial agreements than postnuptial agreements. However, both types of agreements will only be enforced if each spouse has equal negotiating power. There must also be full financial disclosure between both parties.

SOURCES:
http://www.nolo.com/legal-encyclopedia/marriage-property-ownership-who-owns-what-29841.html
http://www.prenuptialagreements.org/postnuptial-agreements/
http://www.bankrate.com/brm/news/pf/20060322a1.asp

The Advantages and Disadvantages of an Adult Guardianship

Adult guardianships are sometimes necessary when an adult becomes incapacitated and the adult can no longer handle his or her financial or medical business. If there is no durable power of attorney in place, the guardianship becomes necessary. The court is the institution that is in charge of appointing a representative to handle the matters of the adult. Generally, an interested family member or friend is considered to be a suitable representative. The court will take several things in consideration before naming the person as guardian.

Initiating a Guardianship Petition

The process is initiated by an interested party filing a petition for guardianship. The petition is required to be accompanied by a physician’s report that indicates the need for guardianship. According to law, the “disabled adult” is entitled to due process under law, so he or she must be served with the petition at least 14 days prior to the court proceedings.

Legal and Social Advantages of a Guardianship

A guardianship offers legal advantages for the representative and the disabled adult. The disabled adult can have his or her important financial and health decisions made by someone that has the person’s best interests in mind. An appointed guardian has a responsibility to report the ward’s activity to the court, so there is a checks-and-balances mechanism in place. Court oversight provides some protection for the representative, especially when others might make accusations that the representative is abusing his or her power. A guardian is required to have a bond issued to offer some protection of the disabled person’s assets.

Legal and Social Disadvantages of a Guardianship

A guardianship has several disadvantages as well. The costs of a guardianship can be fairly prohibitive. These costs include fees for court proceedings, legal representation, and posting a bond. The representative is required to pay a premium for the bond that protects the assets of the disabled adult. The annual reporting that is required by the guardian can be tedious. In addition, privacy is reduced considerably with this type of proceeding. A guardianship hearing is considered a public proceeding, and the public can sit in on the hearing, although not all of the information is public. For instance, the court will seal all medical and physician reports, and these reports can only be retrieved in circumstances where the judge deems it appropriate for the release of these records.

Is a Guardianship the Right Choice for Your Loved One?

There are several alternatives to guardianship, so it would be wise to discuss each of them with an elder law lawyer before deciding on the best option for your loved one. Attorney Andrew Lamkin focuses exclusively on elder law and related legal issues and offers free consultations. Call the Law Office of Andrew Lamkin, P.C., at 516-605-0625 to discuss your situation and your options.

What is Elderly Guardianship and When is it Necessary

The number of people with elderly parents has exploded in recent years, and taking care of an elderly parent, or even two, may be difficult. Sometimes, the health of an elderly person will depend on his or her caretakers. Often, assigning a guardian is required to keep a person safe in old age.

The guardian is often a child or close family friend of the elderly person. The guardian must be over the age of 18 and must not have a criminal record. In cases where an elderly person does not have a close family member for care, the court may assign a different individual, such as a lawyer or a private company to serve as Guardian.

A guardian is assigned when the court decides a person cannot look after himself and may be in danger if someone is not assigned to ensure proper care. Each state has a different set of rules guiding the guardianship process, and an elderly person must be labeled “legally incompetent” or “incapacitated” by the court. This means that person cannot make important decisions on his or her own due to age.

In most cases, a person will bring a case to the court through a document called a “petition,” which is an official request that an elderly person has a guardian assigned for legal rights and care. The process may take some time, and the court may require an evaluation that takes a few months to figure out if someone is competent or not.

It may be necessary for the child or relative of an elderly person to seek guardianship to keep that person safe and to make sure that a person with reduced mental health has proper care so that they do not make bad decisions about important financial or legal items. It would be unfortunate if an elderly person lost the family home because they were scammed out of property or savings.

In addition, a person who is unable to make good financial decisions might also have problems remembering to take medication or attend doctor’s appointments. It is essential that family members remain aware of a parent or relative’s mental state so that elderly guardianship options may be considered. It may be difficult for an elderly person to accept that he or she can no longer make decisions on his or her own, but it is important for guardianship to happen if it will keep that person and his or her personal assets safe.

Resources:
http://www.caring.com/articles/adult-guardianship
http://www.guardianship.org/reports/Guardianship_of_the_Elderly.pdf
http://www.agingcare.com/Articles/how-to-get-guardianship-of-elderly-parents-140693.htm

5 Things You Might Not Know about a Will

Most people know that a will is a written document providing the last wishes of a person. It will detail how the person’s property will be given to his or her heirs. However, there are things many do not know about how a will is created or how it is used.

1. If a Person Dies Without a Will, Property Does Not Go to the State

Every state has laws detailing where property goes if a person dies without a will. These are called laws of intestate succession. Normally, property will first go to the spouse or children. If none exists, it will go to grandchildren, then parents, brothers and sisters, aunts or uncles and cousins.

If none of these relatives are alive, it is only then that property will go to the state. However, a will is still important because a person can identify exactly to whom he or she wants personal property to be transferred. It is also important if the person has minor children because the will names who the person wishes to be guardians.

2. Persons should not write Their Own Wills

some People think they can write their own Will. This may or may not be a good idea because if the language is wrong, their wishes may not be carried out. Anyone signing a will normally needs two witnesses to declare that they have witnessed the person signing the will and that the person was mentally sound when it was signed. This is referred to as attestation of a will. A person writing their own will may not be versed in the legal terms necessary to properly carry out their wishes or the procedural formalities needed to ensure proper execution.

3. Handwritten Changes to a Will are not Allowed

Many people who have a will will experience changes in their lives or change their minds over whom to give their property. Simply crossing out one name in a will and writing in another is generally not valid. Usually, an amendment to the will, called a codicil, is needed. Like the original will, a codicil requires the signature of two witnesses, as well as an attestation of witnesses.

4. A Will does not Automatically Transfer Property

When a person dies leaving a will, it must be presented to a special court for approval. This process is called probate. A probate court judge will review the will to ensure it is valid and will appoint a person to carry out the instructions in it.

The probate process can take months or sometimes years to complete. Only when the court approves of the will can the property itself be transferred.

5. Not all Property is Transferred by a Will

Some property, such as life insurance proceeds or some real estate may be transferred differently than is stated in the will. If a person has a life insurance policy that directs the proceeds to go to A, but the will states that “all of my property goes to B”, the life insurance will go to A.

In fact, if life insurance names a specific person to pay the proceeds, it does not matter if a will exists. Likewise, if real estate is owned with another person, the real estate may automatically transfer to the other person.

The laws for creating and carrying out the wishes of a will can be complex. If there are questions or confusion of how to do so, a person should meet with a qualified estate planning attorney.

Read more here:
http://www.goodwillsmidlands.co.uk/our_services/some_interesting_facts_about_wills
http://burke.patch.com/blog_posts/top-5-myths-and-facts-about-wills-trusts-5e99b4f8
http://lawprofessors.typepad.com/trusts_estates_prof/2012/05/ten-fun-facts-about-estate-planning.html
http://www.law.cornell.edu/wex/attestation_clause
http://www.investopedia.com/terms/p/probate.asp
http://legal-dictionary.thefreedictionary.com/Codicils

Medicaid Redesign team Proposes Changes to Medicaid Eligibility in New York

Governor Cuomo recently accepted proposals from New York’s newly created Medicaid Redesign Team (“MRT”). While it is early in the process, and the proposals may not be implemented in their present form or at all, budgeting pressures at all levels of government make it likely that some changes in the Medicaid program will occur. Here are a few of the particularly troubling features of the MRT’s proposals:

Elimination of Spousal/Parental Refusal

Currently, a spouse may refuse to support their spouse who is an applicant for Community Medicaid or Medicaid Home Care. When this occurs, Medicaid is obligated to provide care or services to the applicant, assuming he is eligible (under $13,800 in resources), even if the spouse can afford to pay. The MRT is proposing that the resources and income of the spouse should be considered in determining whether the applicant is eligible for Medicaid. This means that spouses, and parents of disabled children, will be required to spend down virtually all of the household’s assets, and contribute a share of their income, before their ill spouse or disabled child will be eligible to receive care.

5-year “Look Back” for Community Medicaid and Home Care

Currently, the 5-year look back and transfer penalties apply only to applicants for Institutional Medicaid (for Nursing Home Care). Currently, applicants for Community Medicaid or Home Care are able to transfer their assets to family members, friends, or trusts, and thereby become eligible for Community Medicaid benefits. The MRT’s proposal would extend the 5-year look back to Community Medicaid and Home Care, which means that many potential applicants will find that they are ineligible for Medicaid, or subject to a lengthy penalty period before benefits can be obtained.

Estate Recovery

Currently, it is difficult for Medicaid to recover from the estates of medicaid recipients where the recipient has effectively transferred their assets during life to a family member or trust. The proposed law would allow medicaid the ability to seek recovery in these cases.

Impact of these proposals

If these proposals become law, many Medicaid applicants and their families will be severely affected. Some will find their financial situation and lifestyle significantly diminished, and others may find it difficult to pay for even basic living expenses. Many may to apply for food stamps, another program funded by the government.

What to do? Now, more than ever, people who need, or may need (even if they think they will never need it), long-term care should make it a top priority to consult an Elder Law attorney. Planning may need to be taken earlier than previously seemed necessary. As always, with proper planning, t will still be possible to improve your situation, even if these new measures find their way into law.

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Community Medicaid in New York State

How to Stay at home and protect your assets and income

In New York, the Community Based Medicaid program will pay for the cost of a home health aide. When applying, the local department of social services considered the applicant’s income and assets and whether the Medicaid applicant requires the assistance with the activities of daily living. The following is a breakdown of how DSS evaluates each for a New York Community Medicaid application.

Activities of Daily Living

An individual over the age of 65 is considered “disabled” and therefore entitled to Community Medicaid benefits if they need assistance with the activities of daily living, These include bathing, dressing, toileting and feeding. For most that are interested in Community Medicaid, this is not a difficult a difficult threshold to reach. Any applicant with the onset of dementia or Alzheimer’s or with physical disabilities that limit their ability to live on their own, is sufficiently “disabled” enough to receive Community Medicaid benefits.

Income

Income is calculated by adding the following: Social Security, Pensions, income from rental properties or other investments, and require minimum distributions from retirement accounts. Under Community Medicaid rules in New York, the Medicaid recipient is entitled to keep $787 per month of their income. The remainder of the recipients income is called a “spenddown”. The Medicaid recipient is required spend the remainder on the cost of the aide. Medicaid will pay the difference.

Most of those who can stay at home will have expenses far exceeding the $787 limit. Medicaid understands this and allows for an exception. The often used exception is called a “Pooled Income Trust”.

Clearly, for many recipients of Community Based Medicaid, loss of income would prevent them from remaining in their homes. Enter the Pooled Income Trust. A Pooled Income Trust is similar to a bank account, however it administered by a Non-profit Trust Company, such as NYSARC Trust Services or AHRC.

If Mr. Smith has a monthly income of $2,787 in Social Security and pension income, and he is receiving Medicaid benefits for home care in her Long Island home, he has $2,000 in “excess income” under the current Medicaid rules. As a result, Mr. Smith is required to send a check each month in the amount of $2,000 to his home care agency as a contribution to the cost of his care.

However, when Mr. Smith joins a qualified pooled income trust, his $2,000 check will be sent to the trust instead of his home care agency. The trust will then be able to pay any of Mr. Smith’s expenses, such as his utilities, his food, or his clothing, from his own funds or even the taxes on his Long Island home. Mr. Smith will continue to receive his Medicaid home care, as well.

The pooled income trust contains the funds of many disabled persons and is managed by a non-profit organization that maintains separate accounts for each individual. In order to participate in the trust, the disabled person (or his representative acting under durable power of attorney) signs an agreement with the trust. Under this agreement, upon the beneficiary’s death, if there are any remaining funds they are kept by the trust.

Those who wish to participate in a pooled income trust will have to establish that they are disabled, but findings of disability by the Social Security Administration or by Medicaid are valid for this purpose.

Assets

For Medicaid purposes in New York, assets include any real property owned by the applicant or savings in the form of money markets, CD’s, stocks, bonds, cash values in insurance policies, and other non-retirement investments. When applying for Community Medicaid in New York, the applicant’s total assets must be under $13,800. Clearly, most individuals in New York City, Queens, Brooklyn, and Long Island, are worth more than $13,800.

Many have heard of a five-year look-back period on asset transfers when applying for Medicaid. It is true that a five-year look back period exists – but only for Institutional Medicaid application where the applicant is residing in a nursing home. When applying for Community Based Medicaid applications in New York, there is no five-year look back. Therefore, an applicant can transfer their assets in month and apply for benefits the following month. The best way to transfer assets can only be determined on a case by case scenario. While in some cases it may be appropriate to transfer assets to other family members, including adult children, in other cases it would more advisable to transfer the assets to an Irrevocable Trust.

Most people are not aware of the eligibility requirements for Community Based Medicaid in New York. This is unfortunate because many individuals who could be eligible are spending down their savings on the cost of a home health aide. Whether an individual requires an aide for the first time (perhaps they are leaving a rehab facility) or have had an aide with them and are paying privately, many can eligible for Community Medicaid benefits with the proper planning.

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How to Pay for Nursing Home Care on Long Island

The cost of a Nursing Home in Long Island is generally $12,000 – $15,000 per month. This cost can deplete savings very quickly. As a result, proper planning is extremely important.

There are three ways to pay for a Nursing Home. First, one can use their savings. Clearly not a great plan – especially if your spouse must rely on that money to live. Second, one can purchase Long Term Care Insurance. Unfortunately, not many people can afford the premiums and the policies do not always cover the entire cost of care.

The third way to pay for Nursing Home Care on Long Island is Medicaid. Medicaid is a federal program which is administered by the States. In 2006, the Deficit Reduction Act of 2005 (DRA) was passed, making it more difficult – NOT IMPOSSIBLE – to qualify for Medicaid benefits. There are two ways in which the DRA made qualifying for Medicaid more difficult.

First, it extended a look back period on assets transfers from 3 years to five years. This means that when applying for Institutional Medicaid to pay for the Nursing Home, the local Department of Social Services will review your bank statements for the previous five years. If you have transferred any assets to a non spouse, they will impose a penalty period, during which the resident of the Nursing Home is responsible for payment. At the conclusion of the penalty period, Medicaid will “pick up” the cost of care.

The second way that the DRA affected eligibility is that he penalty period now begins when who enter the nursing home and apply for medicaid. Under the old law, the penalty period began when the asset was transferred. Therefore, under the old law, even if you made a large transfer within the 3 year look back, there is a possibility that the penalty period is over when you enter the nursing home. Under the DRA, the penalty period does not begin until one applies for Medicaid. Therefore, if there was a transfer of assets within the 5 years, there will always be a penalty period.

This does not mean that you cannot apply for Medicaid when you enter a Nursing Home. To the contrary it means that YOU MUST APPLY IMMEDIATELY because you want the penalty period to begin as soon as possible. Additionally there is a planning strategy that can cut the penalty period almost in half.

The above only applies to those who do not have spouses. If a Medicaid Applicant has a spouse, they can transfer their assets to the spouse and that transfer is not considered in the look back period – hence there would be no penalty period. The spouse simply signs a form called a “Spousal Refusal” and Medicaid will not impoverish the well spouse. There are certain limits to this, however. if the Community spouse has over $100,000 in assets, Medicaid can seek a contribution from them. Fortunately, the contribution is often minimal.

Proper planning can alleviate many concerns and protect assets against the high cost of care at Nursing Homes on Long Island. However, even if planning has not occurred, it it possible to protect some assets should you require Nursing Home Care. It is advisable to seek the advice of an Elder Law Attorney in Long Island as soon as your spouse or family member enters a nursing home. Getting a jump on the application process can save you a month or two of nursing home costs.

With questions about how to apply for Nursing Home Medicaid benefits, please call this office for a free consultation at 516-605-0625.

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The Irrevocable Income Only Trust

A Case Study in protecting your assets against the cost of long term care

Mr. and Mrs. Watson are in their mid-seventies. Mr. Watson recently fell and injured his hip. He is home from re-hab and is doing better, but may require assistance in the coming years. Additionally, Mrs. Watson has just been diagnosed with the onset on Alzheimers. They own their house (valued at $550,000) on Long Island and have a nice nest egg of about $400,000 in investments and savings. They also receive a combined $3,700 per month in income from social security, Mr. Watson’s pension and income from their investments. They can comfortably live off of their income and do not need to touch the principal of their savings. Their children are concerned with how they can protect their assets while receiving the care they will require in the future.

Their situation is common to many seniors on Long Island. The solution – The Irrevocable Income Only Trust (IIOT). In simplest terms, a Trust is private agreement used to achieve various estate planning goals. There are many kinds of Trusts – the most common being Revocable and Irrevocable. The Irrevocable Trust, as it’s name implies, cannot be altered, modified, amended or revoked. Then why do it?

Simple – if your situation is similar to the Watson’s, the Irrevocable Trust is most often the best way to protect assets against the cost of long term care (cost of home health aide or nursing home).

Here’s how the IIOT would work for the Watson’s. Mr. and Mrs. Watson would create the Trust (they are called the Settlor’s) and appoint one of their two children as Trustees. The Trust would have a name, just as any company has a name. It may be called the “Watson Family 2010 Irrevocable Trust”. Then they would transfer the deed to their house to the Trust. Although they technically do not own the house, the Watson’s would still receive all tax breaks associated with property ownership, such as a property tax deduction or veteran’s deduction. The Trust terms would also stipulate that the Watson’s can live in the house for the remainder of their lives.

The Watsons are considering selling their house in 1 year to buy a condo. The good news is that the Trustee can sell the house for them and buy the condo with the proceeds. The remaining proceeds as well as any of their other investments can also be owned by the trust. The principal remains in the Trust and the income generated (dividends from stock, interest from CD’s, etc..) will continue to go to the Watsons. This is important because they need currently rely on that income. By creating the Irrevocable Trust and transferring assets to the Trust, the assets are protected from Medicaid because the Trust is Irrevocable. By giving control of the assets to one of your children, you are protecting the assets.

If you require the assistance of a home health aide in New York, the assets are protected immediately. This means that, assuming you have protected all of your assets, you would qualify for Medicaid benefits. To be eligible for Institutional Medicaid (Nursing home), you have to do this planning 5 years before applying for Medicaid (The Deficit Reduction Act of 2006 (DRA) imposed a five year look back period on asset transfers).

Typically, I would not advise my clients to transfer all of their assets to the Trust. That would be a big step for most. Fortunately, you can continue to transfer assets down the road.

Protecting assets against the cost of care is important. Most of my clients are like the Watson’s. They want to ensure that their assets are protected and would rather their children inherit than the money go to a nursing home. Though important, this planning must also be done with the counsel of trusted advisors.

With questions about how the Irrevocable Trust can be used to protect your assets, please call this office for a free consultation at 516-605-0625, or contact us online.

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Probate: What it is and why to avoid it

Probate is the process by which a Last Will & Testament is declared valid. When an individual passes away the named executor of the Will must file a Petition, along with the original Will, with Surrogates Court in the county where the decedent resided. Included with the Petition, the Executor must satisfy certain requirements. One such requirement is to serve notice upon all lawful heirs of the decedent.

The heirs are asked to sign a Waiver of Process and Consent to Probate. By signing this form, the heir is consenting to the appointment of the Petitioning Executor – but is not forfeiting any rights to their inheritance. The lawful heirs are the closest relatives – starting with the spouse, children and grandchildren and if there are not any surviving then parents, siblings and nieces and nephews.

At the conclusion of the proceeding – after the Petition has been filed with the necessary Waiver and Consent forms – the Judge will appoint the Petitioning Executor as Executor. At this time, the Executor can collect the assets of the estate and distribute them according to the terms of the Will. Typically the process is not too difficult. However, there are situations where it may be important.

Disinheriting a child:

During the probate process in New York, a disinherited child will still be asked to sign a waiver and consent form. Because the child is disinherited, it is unlikely they would sign the form. The attorney for the estate will be required to ask the Judge to serve that individual with a Citation. The citation would put the individual on notice that he has the right to appear in Court at a predetermined time. If the individual does not show up, they forfeit their rights to contest the estate. Because of these requirements, the entire process is extended and can last for over 6-12 months. Avoiding probate for New York residents is important if they are disinheriting a child. It will reduce the likelihood that the disinherited child will contest the Will. It will also make life much easier for the other heirs, saving them months of aggravation and thousands of dollars in legal fees.

Property in Multiple States:

Sometimes probate only occurs when the decedent owned property in New York and in another state. In fact, many of my clients own their home in Long Island and a winter home on Florida. When this occurs, the heirs are required to probate the estate in New York and Florida. The entire process will easily last for over 1 year. Further, because two probate proceedings are required, two attorneys would have to be hired, one on New York and the other in Florida. The time and costs associated with two probate proceedings are great reasons to speak with an Estate Planning Attorney in New York to discuss ways to avoid probate.

Second Marriages:

Previously, I mentioned that New York probate proceedings require the inclusion of all lawful heirs. When passing away with a spouse and children, they are all considered lawful heirs. If you are in a second marriage and your will distributes your assets in a way that may upset either your spouse or children from a previous marriage, there is a very good chance that the probate process can be turned into a battleground between the survivors. With proper planning it is possible to avoid probate in these circumstances and make sure that your assets are distributed in accordance with your wishes.

New York probate proceedings are not always difficult. However, in certain situations, it is advisable to seek the advice of counsel and learn how you can make life easier for your heirs. Though it is not a great commentary on our society, unfortunately, money changes people. Most family feuds occur when one family member has passed away and their estate needs to be administered. The probate process in New York is important because it requires all family members to be involved. However, this very requirement also makes the process difficult and expensive. If one of your estate planning goals is to ensure a smooth and inexpensive transition of assets upon your demise, it is advisable to avoid probate – especially in the situations described above.

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Estate Planning for New Parents

New parents have many things to think about. Is it a boy or a girl? How do we decorate the nursery? Day care or a nanny? Some of the most important questions, however, are put on the back burner because most new parents either choose not to discuss them or can’t come to any conclusions with their spouse.

Guardian

Perhaps the most important decision for a new parent is that of choosing a guardian for their children. His brother or her sister? My parents or yours? For some, choosing a guardian simple. Perhaps they only have 1 sibling (and they get along) or a close cousin or best friend. For others, however, the choose of a guardian can be agonizing. Whether it is because they do not know who to ask, don’t have anyone they trust or can’t agree with their spouse, often times, the inability to make a decision on a guardian is the #1 reason why new parents do not do wills.

This is a mistake. The reason it is a mistake is because of what will happen if they do nothing. In the absence of Last Will & Testament appointing a guardian for minor children, family members can fight for custody and/or visitation rights. They can fight for control of the child’s inheritance. If you thought that Thanksgiving with the entire family was awkward, wait to see what happens when everyone thinks they are the best choice to raise your children.

The best tip I can give to new parents is to make a decision. You need to sit down with your spouse and talk about what is best for your children. Many young parents will want to choose their parents as guardians. This may be your only choice, but consider the age of your parents and the physical demands of raising young children. Are your parents able to do it? If you must appoint your parents, be sure to also name a back up guardian – just in case something happens to your parents or they are unable to do it.

Minors Trust

A minors Trust is a provision in a will that allows parents to determine how their children will inherit. In the absence of a Minors Trust, a minor child will assume control of their inheritance at the age of 18. A minors trust allows a parent to set age milestones for when their children will have control.

Lets say that parents have two young children. The Wills can state that each child’s portion will be placed into a trust until the child reaches the age of 21. At that point 1/3 of the child’s inheritance will be given to him. The next third at 25 and the final 3rd at 30. These are only examples. A parent is free to choose the ages and percentages that they deem appropriate.

The money in the Trust, though not in the control of the child, can be used for their Health, Maintenance, Education and Support prior to the stipulated ages. Additionally, the parents name the Trustees of the money. The Trustee can be the same as the guardian, but there is no such requirement.

When choosing to include a Minors trust in your Will, be sure to organize your beneficiary designations properly. Keep in mind that if your children are named as a beneficiary of an investment account or life insurance policy, the proceeds of such will pass to them directly, outside the terms of the will and thus outside the terms of the Minors Trust.

Insurance

Life Insurance is a very important aspect the estate plan of new parents. Most young parents will buy Term Life Insurance. A term policy is a policy in effect for a term of years (15, 20, 30). The premiums are affordable because no cash value accumulates in the policy. The only purpose is to provide protection against the loss of income that would occur when a parent passes.

Policies should be purchased on the life of each parent, but perhaps not in equal amounts. If one spouse stays at home with the kids, a small policy is advisable because there is no income to replace. The only cost that would arise would be that of childcare. A larger policy should be purchased on the life of the income earner. When thinking of amounts, consider how much your spouse and children would need if they lost your income. Such factors include college, weddings, Bar and Bat Mitzvahs, mortgage on the house, cost of living and security.

If you are a soon to be new parent seek the advice of an Estate Attorney and/or financial advisor to discuss these important issues. Inaction can only harm your surviving spouse and children.

Estate Planning for those in 2nd Marriages in New York

For those in second marriages, Estate Planning can pose many different issues. This is because spouses may have to provide for their new spouse, their new spouse’s children, and their own children from the previous marriage. If you are marrying later in life and already have substantial assets, this can make the situation even more difficult and complex. One of the challenges will be to use those assets to ensure that a surviving spouse is financially secure during his or her lifetime, while preserving a sizable sum for the children from your first marriage.

With a second marriage, spouses may need to consider how long the second marriage has lasted and the financial situation of each spouse. In addition, a great deal of thought should go into what the children from the first marriage will receive if their parent is the first spouse from the new marriage to pass away. If there is no prenuptial agreement in the second marriage, it is likely that the surviving spouse will get half of the deceased spouse’s assets, and this may not be what the deceased spouse would have wanted for his or her children from a previous marriage.

While second marriages can present challenges for estate planning, these issues can be resolved if clients are thoughtful and seek the advice of an experienced estate planning attorney.

A couple of Tips:

  1. New Spouses should discuss their planning together. Avoiding the discussion will only lead to heartache later.
  2. Prior to Marriage, discuss a Prenuptial agreement. If you have not done so, their are other options, such as a QTIP Trust that can achieve the desired outcome.
  3. Be fair and reasonable. Often, children and new spouses do not get along. Remember the everyone of feelings.
  4. Consider discussing your planning with your children. Depending on the family, doing so can make things that much easier. However, on the flip side, there are some situations where discussing these issues with your children will cause more problems.
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Pooled Income Trusts

How to protect your excess income when receiving community Medicaid

A Pooled Income Trust is an option for a disabled individual who has excess income while receiving Community Medicaid Benefits.

Here is how it works:

Recipients of Community Medicaid – those who receive the assistance of a home health aide – are allowed to keep $787 per month of their income. Any additional income, called a “Spendown”, is supposed to be spent down on the individuals care. Therefore, if a Medicaid recipient has income of $1,500 per month, they would be allowed to keep $787 and the remainder would go to the home health aide – with Medicaid paying for any additional costs of the care.

However, for many recipients of Community Based Medicaid, loss of income would prevent them from remaining in their homes. Enter the Pooled Income Trust. A Pooled Income Trust is similar to a bank account, however it administered by a Non-profit Trust Company, such as NYSARC Trust Services or AHRC.

If Mr. Smith has a monthly income of $2,787 in Social Security and pension income, and he is receiving Medicaid benefits for home care in his Long Island home, he has $2,000 in “excess income” under the current Medicaid rules. As a result, Mr. Smith is required to send a check each month in the amount of $2,000 to his home care agency as a contribution to the cost of his care.

However, when Mr. Smith joins a qualified pooled income trust, his $2,000 check will be sent to the trust instead of his home care agency. The trust will then be able to pay any of Mr. Smith’s expenses, such as his utilities, his food, or his clothing, from his own funds or even the taxes on his Long Island home. Mr. Smith will continue to receive his Medicaid home care, as well.

The pooled income trust contains the funds of many disabled persons and is managed by a non-profit organization that maintains separate accounts for each individual. In order to participate in the trust, the disabled person (or his representative acting under durable power of attorney) signs an agreement with the trust. Under this agreement, upon the beneficiary’s death, if there are any remaining funds they are kept by the trust.

Those who wish to participate in a pooled income trust will have to establish that they are disabled, but findings of disability by the Social Security Administration or by Medicaid are valid for this purpose.

New ‘Power of Attorney’ Law – Frequently Asked Questions

By Andrew M. Lamkin, Esq.

On January 27, 2009, Governor Patterson signed into law revisions to the New York laws which powers of attorney. The news laws became effective on September 1, 2009. Many of the changes substantially affect the power of attorney. It is not surprising that, during the execution ceremony, my clients have had many questions regarding some of the changes. The following is a sample of some of the questions I have been posed with.

  1. Is the old Power of Attorney still valid?If the old power of attorney was signed prior to September 1, 2009, it is still valid. However, the new form should be used going forward. Therefore, if you have an unsigned power of attorney, drafted under the old law, you should not sign that form and ask your attorney to prepare a new form for execution.
  2. What is the reason for using the new Power of Attorney form?The purpose of the law is to ensure that the principle is aware of the powers he/she is granting to the agent. The new form also describes the consequences of granting such powers, particularly as it relates to the ability of the agent to make gifts or asset transfers on behalf of the principle.
  3. Is it true that the agents I appoint also need to sign the Power of Attorney? If so, why?Yes, the agent must accept the responsibility and fiduciary duties of serving as an agent. The new form contains instructions to the agent, such as to act in accordance with previous instructions from the principle or in the best interest of the principle, to avoid conflicts that would impair the agents ability to act in the best interest of the principle, keep receipts and a record of all transaction made and keep their property separate from the principles property. While the agent does not need to sign at the same time as the principle, the document is not effective until the date is signed by the agent before a notary public.
  4. Why would I also sign the Statutory Major Gifts Rider?Quite often a Power of Attorney is used to transfer assets out of the name of the principal. The transfer is considered a gift – whether it be given to the agent making the transfer to a 3rd party. In the older version of the POA, the principal could initial next in a box next to the “gifting Power” and thus their agent would have the authority to “gift” on their behalf. The form has additional rider whereby the principal can authorize the agent(s) to gift on his/her behalf. Without using this additional rider (SMGR), the agent will not be allowed to transfer assets on behalf of the principal – thus defeating the purpose of Power of Attorney.
  5. I’ve heard that banks and other financial institutions have in the past refused to accept the Power of Attorney. Are they allowed to do that?It is true that many have previously encountered difficulties with their financial institutions when attempting to use the power of attorney. The new law addresses this issue by making it unlawful to refuse to accept an original (or certified copy of the original) power of attorney. Specifically, the law provides that financial institutions may refuse a power of attorney for “reasonable cause.” The financial institution has reasonable cause if the agent refuses to provide an original or certified copy of the power of attorney, if it has actual knowledge of the death of the principle, if it has actual knowledge of the revocation of the power of attorney, if it has actual knowledge of a report or investigation by the local adult protective services concerning the principle or if it has actual knowledge of the principle incapacity if the power of attorney presented is “Non-Durable.” The new law also goes to the extent to allow a special proceeding to be brought to compel a financial institution to accept the power of attorney.
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Veteran’s Aide and Attendance Program

An additional pension for qualifying veterans

Recently I have had many clients come to my office with a similar problem. They have had to hire a home health aide for their parents or place them into an assisted living facility. The problem that my clients, typically the adult children of a disabled senior, have is that their parent’s income does not cover their living expenses with an aide or the monthly cost of the assisted living facility. When I am confronted with this problem, I have been asking my clients whether one of their parents was a veteran. If one of the parents was in fact a veteran and require the assistance of a home health aide or reside in an assisted living facility, they may be entitled to an additional pension via the Veterans Administration’s (VA) Aid and Attendance Program.

The Aid & Attendance pension provides benefits for veterans and surviving spouses who require the assistance with the activities of daily living (ADL’s). This includes regular attendance of another person to assist in eating, bathing, dressing and undressing. Assisted care in an assisting living facility also qualifies.

The requirements to qualify are as follows. First, it must be established by your physician that you require assistance with the above mentioned activities. Importantly, you do not need to show that you require assistance with all of these activities – only that you cannot function completely on your own.

Second, you must provide the VA with proof of your net worth, net income (including social security, other pension and IRA distributions) and complete breakdown of your monthly expenses, including the cost of the aide, assisted living and other medical expenses.

Qualifying applicants may be entitled to receive up to $1,632 per month to a veteran, $1,055 per month to a surviving spouse, or $1,949 per month to a couple. It should be noted that not every applicant will receive the same pension. The VA will compute the actual needs of the applicant in determining the pension amount. The pension is not contingent on a “service related” injury or condition.

The VA has made it illegal to hire someone to file the application on your behalf, but you can hire an Aid and Attendant Consultant to offer you advice on how to file the claim. You can also contact this office for questions about the program and advice on how to file a claim.

Planning for Families with Disabled Children: Supplemental Needs Trusts

By Andrew M. Lamkin, Esq.

Clients came to my office for advice on how to make arrangements for their 5-year-old son. Their son is autistic and their situation is common to parents who have children with disabilities. Two major problems exist. First, when a disabled child turns 18, the parent loses the ability to make medical and financial decisions for the disabled child. Second, parents, such as my clients, are never sure of the proper way to leave assets to their disabled child and plan for their disabled child’s care when they pass away. Do they leave money to a family member to take care of the disabled child? Do they leave money to the disabled child directly? What happens to government benefits such as Medicaid and SSI? This article will address the second issue.

Autistic children, like most children with any developmental or emotional disability, are entitled to receive government benefits such as Medicaid or SSI. To be eligible for these benefits, the recipient must have less than $13,050 in assets ($2,000 for SSI). Therefore, if a disabled child inherits or received money from a lawsuit, the child will lose his benefits because he will be over the asset threshold.

One option for a parent is to leave money to another person, with instructions to support the disabled child. A common example would be to leave money to another child, with instructions to support their disabled sibling. However, there are problems with this strategy. First, while the disabled child would still receive Medicaid and SSI, there is no legal obligation for the sibling to support the disabled child. The money becomes the property of the sibling and he can do with it what he chooses. Second, the sibling may go through a divorce or be sued for something unrelated to the disabled sibling, such as a car accident where the siblings assets become part of a personal injury suit. Unfortunately, even the assets the sibling is holding for his disabled sibling would be vulnerable to a personal injury lawsuit. If either occurs, the money left for the benefit of the disabled child could be lost.

While the first option of leaving money outright to the disabled child will result in a loss of benefits, the second option carries with it the risk that the assets are not truly protected for the disabled child. The goal is to find a way to protect your child’s benefits, while at the same time, leaving money for his support.

Fortunately, a parent can create a Supplemental Needs Trust (SNT), to solve both issues. An SNT enables a person with a disability to maintain eligibility for government benefits. A parent can establish an SNT during the life of the disabled child (Third Party Intervivos SNT) or pursuant to a Last Will and Testament, which is not funded until the death of the parent (Testamentary SNT).

The logistics are as follows. A parent can leave assets to the SNT, whether through the Will or as a beneficiary of a bank account or insurance policy. A Trustee, presumably the person caring for the disabled child when the parent passes away, is appointed by the parent to manage the money for the disabled child. The Trustee is authorized to use the funds in the Trust for the benefit of the disabled child. The funds can be used by the Trustee to pay rent, credit cards, or other expenditures, such as medical costs (which may not be covered by Medicaid) for the disabled child.

The benefit of creating an SNT is simple. It is the only way to ensure both, that funds will be available to provide for the disabled child and that he will continue to receive SSI and/or Medicaid. Supplemental Needs Trusts should be a consideration for every parent, grandparent and sibling of an individual who receives SSI and/or Medicaid. Everyone has varying circumstances and therefore the proper way to set up an SNT should only be determined after consultation with an attorney experienced with the rules regarding Supplemental Needs Trusts.

Call 516-605-0625 or contact me online to schedule an appointment. I am available to meet with you at your home or my office.

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Deficit Reduction Act of 2005 – Impact on Medicaid

By Andrew M. Lamkin, Esq.

On February 8, 2006, President Bush signed into law the Deficit Reduction Act of 2005 (DRA). The Act reduces federal entitlement spending for Medicaid, among other federal programs. The Medicaid program pays for services for disabled seniors who meet the eligibility requirements. Most commonly, Medicaid pays for the cost of home health aides and nursing home care.

The effects of the Deficit Reduction Act on Medicaid are significant, especially when applying for nursing home benefits. First, the look back period on asset transfers has been increased from three to five years. When an uncompensated transfer, or gift, is made during this look back period, Medicaid will impose a “penalty period.” The “penalty period” is the length of time during which Medicaid will not pay for the cost of nursing care, during which time the family of the applicant is responsible. At the end of the penalty period, Medicaid will pick up the cost of care. Due to this change in the law, the goal when establishing an estate plan is to protect assets five years before having to apply for Medicaid. Unfortunately, it is difficult to anticipate when a family member may be forced to enter a nursing home. To ensure you are eligible for Medicaid should the need arise; it is advisable to plan well ahead of time.

The second major change as a result of the DRA, is in regard to the start of the penalty period. Under the old law, the penalty period began on the date when the assets were transferred. Depending on the fair market value of the transfer, the penalty period may have expired by the time the application was filed. Therefore, an applicant who transferred assets within the three year look back may have qualified for Medicaid before the time they apply.

Under DRA, however, the penalty period begins when the applicant applies for nursing home benefits. Therefore, any transfer made within the 5 year look-back period will certainly result in a penalty period. This is a drastic change and many applicants will be ineligible for a longer period of time. This will require applicants to pay for the cost of the nursing home with their savings, and perhaps require the sale of the family home.

A common misconception is that if proper planning has not occurred by the time a person enters a nursing home; there is no option other than to exhaust his savings. In reality, this is not the case. The opportunity to protect all of the assets may be lost, but by utilizing a strategy known as “Reverse Rule of Halves,” it is possible to protect up to one-half of the applicant’s assets. In order for this strategy to work, it is vital to transfer assets as soon as the person enters the nursing home.

It is also important to note that there are a few exceptions to transfers made during the look-back period. Transfers made within the look back period to a spouse or disabled child do not result in a penalty period. Furthermore, an applicant can transfer his home to a “caretaker” child. This exception applies only in a situation where a child of the applicant has been residing with the applicant in the applicant’s home for at least two years. In this situation, the applicant can transfer the home to the “caretaker” child while, retaining a life estate.

Fortunately, the eligibility requirements for Community-based Medicaid, where a home health aide is provided, are more lenient than nursing home based applications. Most importantly, there is not a look-back period on assets transfers. Hence, an applicant for Community Medicaid may transfer assets for the purposes of qualifying without the imposition of a penalty period. Therefore, an applicant can transfer assets to anyone in March and be eligible for Community Medicaid in April.

A big concern with community based applications is the “spenddown” requirement imposed on income over $767.00 per month. Any income over this amount must be “spent down” on the cost of care and Medicaid will pay for the remaining cost. For example, if an applicant receives Social Security benefits and a pension totaling $2,500 per month, he is allowed to keep only $767.00 per month. He is required to contribute the difference of $1,733 per month to the cost of the home care aide. If the aide costs more than $1,733 per month, Medicaid will pick up the difference. However, with proper planning and the use of a Pooled Income Trust, it is possible to protect 100% of the applicant’s income and he will not have to contribute to the cost of the home care aide. Therefore, by utilizing a Pooled Income Trust, Medicaid will pay for the entire cost of the home care aide.

Overall, the Deficit Reduction Act makes it more difficult for those in need to qualify for Medicaid benefits. The new provisions are complex and can be difficult to navigate. With these changes, it is even more important for the protection of your family to have a plan in place.

Taking time to speak with an Elder Law attorney can help to devise a plan that will insure that your loved ones receive the necessary care they need, while at the same time protecting their income and assets for their use.

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World Elder Abuse Day

The International Network for the Prevention of Elder Abuse (INPEA) has announced that World Elder Abuse Day 2010 is June 15. According to INPEA somewhere between 4% and 6% of the elder population suffer some form of abuse in the home and even more at risk of abuse in institutions such hospitals and nursing home.

Risk factors for elder abuse include the following: Conflict arising from financial dependence of seniors, frailty and weakness of older people, erosion of bonds between the generations, tensions arising from possible inheritance issues, the growing trend of adult children not living near their aging parents thus creating the need for others to help care for the elderly.

Symptoms of elder abuse include frequent injuries or illnesses that require medical attention, implausible explanations for injuries from caregivers and inconsistent stories from patient and caregiver.

The purpose of World Elder Abuse Awareness Day is to raise awareness of the growing problem of elder abuse. If you think that an elderly person is being abused you should contact the Police, the Local Department of Health or an attorney.

Trusts and Taxes

Grantor Trusts

Any Trust which is created by an individual and where the individual transfers assets to the trust and the assets remain in the trust for the lifetime enjoyment of that individual. The Individual is referred to as the Grantor.

Examples of Grantor Trusts and the various Tax implications of each

Revocable Trust – Trust whereby the Grantor reserves the right to revoke any term of the trust during their lifetime. The grantor transfers assets such as property, investments and savings to the trust. The grantor typically names himself and his spouse as Trustee.

  1. Income Taxes– The grantor typically reserves the right to the income that the Trust generates. This includes rental income from property and dividends and interest from investments. As a result any income generated from the Trust is attributed to the grantor. The Tax ID for the Trust can be the social security number of the grantor or they can obtain an EIN from the IRS.It is possible to create a Revocable were the grantor assigns the income of the trust to another individual, such as a child. In this instance, the income is taxed to that beneficiary.
  2. Gift Taxes – Because a revocable trust can be revoked by the Grantor, it is considered an incomplete gift. As such there is no gift tax implications.
  3. Estate Taxes– Assets transferred to a revocable trust are considered to be part of the Grantors estate. Therefore, the value is added to the Grantor’s total estate and used in any estate tax calculation.A revocable trust can include a Credit Shelter provision or QTIP language. In either scenario, the grantor’s assets will pass to a testamentary trust (Credit Shelter Trusts are also disclaimer trusts – meaning that the surviving spouse has to disclaim the assets for them to pass to the trust). The purpose of establishing these trusts is to limit the estate tax liability.

    An example of how it works: Married individuals are worth $5,000,000. If they did not do anything, and one spouse passed away, the surviving spouse would be worth the entire $5,000,000. Upon their passing, the heirs would be responsible for a potentially large estate tax bill.

    By placing assets into a Credit Shelter or QTIP Trust, the assets of the spouse who passes first remain in their estate for tax purpose. The surviving spouse has limited access to those assets, however, the assets do not pass to children until the passing of the second spouse. Because the “disclaimed” assets remain in the estate of the first spouse, the children benefit from the exemptions of each parent. As a result, in the example above, each estate would be values at $2,500,000. Assuming the Federal Estate Tax exemption is $2,500,000, the children would not be responsible for a federal estate tax (there would still be a NY State Estate Tax). However, if they did not plan, assuming the same numbers, the children would be responsible for approximately $1,000,000 in federal estate taxes upon the death of the second parent.

Irrevocable Income Only Trust (IIOT)– Trust whereby the Grantor does not reserve the right to revoke any term of the trust during their lifetime. It is typically done to protect assets against the cost of long term care (home health aide or nursing home)

  1. Income Taxes – The grantor typically reserves the right to the income that the Trust generates. This includes rental income from property and dividends and interest from investments. Often spouses who create a Irrevocable Income Only Trust would create a joint trust. Therefore, an EIN should be requested from the IRS. However, if it is a sole individual, their SSN can be used.
  2. Gift Taxes – An IIOT is also an incomplete gift when the grantor retains an interest income and a limited power of appointment to change the beneficiaries in their Will. No Gift taxes owed.
  3. Estate Taxes – Cannot include Credit Shelter or QTIP language. All assets included in Taxable estate.

Supplemental Needs Trust – Trust whereby the Grantor places assets into a trust for the benefit of a disabled individual.

  1. Income Taxes – New EIN for the Trust is recommended. A tax return will be done for the Trust because the income does not go to the grantor or beneficiary but remains in the trust.
  2. Gift Taxes – When an individual transfers assets to an SNT for the benefit of another individual, they should file a gift tax return if the yearly transfer exceeds $13,000.
  3. Estate Taxes – Included in the estate of the disabled individual.
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Client Case Study: Be Organized, or else

A few months ago, I met with a client who wished to update his Last Will and Testament and learn how to protect his assets against the cost of Long Term Care. He was widowed, had a partner of 10 years and two children from his previous marriage. He was 85 years old. His assets included his primary residence and modest savings, mostly in the form of CD’s.

He wished to leave his assets to his partner and one of his daughters – disinheriting the other daughter. Because of this – and because he wanted to protect his assets – I suggested that he create an Irrevocable Trust. This would help protect his assets in case he had to be placed in a nursing home or require the assistance of a home health aide. More importantly, perhaps, it would allow his estate to avoid the probate process – especially important when disinheriting a child.

Probate is the process of proving the validity of the will and administering the estate. During this process, all children are asked to be involved by consenting to the appointment of the named Executor – including those who are disinherited. Because he wanted to disinherit a child, I thought that the probate process could be difficult for his partner and other daughter.

He decided to take my advise and create a Trust and then transfer his assets to the trust, including the deed to the house. We began the process by drafting and executing the Trust agreement. Unfortunately, he could not find the deed to his house. He took more time to try and locate the deed, but to no avail could not locate it. We eventually found the deed with the assistance of a Title company.

Unfortunately, before we had time to draft and sign the deed, my client passed away. The house, therefore, was not owned by the Trust. Accordingly, the house would pass through the Will, forcing probate. Because the Will states that one of his daughter is not to inherit, we expect there to be a contested proceeding.

It is all too common for individuals not to know exactly where their important documents are located. Whether they be Wills and Trusts, Powers of Attorney and Health Care Proxies, Deeds and Health Insurance information, or a list of bank accounts, it is important that you be organized and know where everything is located so that when the time, comes there are not unnecessary delays that cause unnecessary problems.

Estate Sale Tips

by Rosemarie Davidson

One of the challenges people face when moving to a smaller space is trying to figure out the best way to downsize their homes. Today, there are more options than ever, including online auction sites, charitable donations, traditional garage sales and estate sales.

“The way individuals choose to get rid of their possessions can be a very personal choice,” said Rosemarie Davidson, Owner/Partner of Long Island. “It usually depends on how attached you are to your things, how much time you have to invest, and how much your items are worth.”

Traditional garage sales often require a lot of work and result in very low return, while online auctions and estate sales are typically more profitable and efficient. Online auctions will garner your items both local and national exposure, while estate sales will draw loyal followers.

“These days, most of our clients opt for an estate sale,” Davidson said. “In the long run, an estate sale has all the benefits of the other methods and usually produces a better return on the effort.”

Enlist the Services of a Specialist

For people who do not have a lot of time to invest, an estate sale can be a very positive experience. Estate Sales are managed by professionals, such as Caring Transitions, that coordinate everything for an administrative fee and/or a percent of total sales. This includes doing a home inventory, pricing, advertising and marketing, set up and clean up, donations, heavy lifting, transportation and shipping of items.

The estate sale specialist advertises to a target audience of regular shoppers in addition to broad marketing. The audience that comes to your sale understands the process and is usually ready to buy.

Estate sale specialists know the market and will review your property and determine the approximate value of the sale. Their goal is to ensure you can sustain a profit after the sale is complete. No matter what you have to sell, it is always worth calling a specialist; however, a low-volume sale may not be in your best interest. The specialist will assess the situation and make recommendations based on your unique situation.

Choose Your Service Providers Wisely

It is rare that you will have a “bad” sale experience, but as with any residential service, it is always best to know how to evaluate your providers in order to avoid pitfalls.

Ask for references from any company you employ. You may even want to attend another sale they are managing to see how smoothly it runs. Always use a professional company that specializes in estate sales.

DO follow these guidelines:

  • Hire the specialist you feel you can trust and discuss payment methods before the contract is signed. Some specialists charge an administrative fee or “minimum” to prepare the sale and others include the fees in their commissions.
  • Discuss the specialist’s process for turning over hidden valuables or personal items found in the sorting process.
  • Understand it can take days or even a couple weeks to prepare for a sale. Preparation includes sorting, cleaning, tagging, merchandising the sale, advertising and selling.
  • Be sure you receive an itemized list of the items prior to the sale, as well as a list of the items sold.
  • Allow the specialist to clean the items. Some items are delicate and cleaning may result in damage to valuables.
  • Understand that age does not always equal value in an item. Authenticity is the true guide to value and the item also has to hold its value in today’s market. Your specialist has many resources to help them determine the value of special items.
  • Be sure to reserve the items your family wishes to keep and make sure everyone has a list of those items so they are not included in the sale or sales contract.

DO NOT allow inexperienced friends or family to run your sale. Despite good intentions and best efforts, this rarely produces optimal results and may cost more in the long run as they will have to purchase materials and displays, buy extra advertising, purchase signing and research items. The result is usually something like a failed garage sale, leaving you with a lot of unsold items and very little to show for the items that did sell.

DO NOT throw things away as you get ready for the specialist’s visit. As the saying goes, “One man’s trash is another man’s treasure.” The specialist will sort though all the proposed sale items and help you decide what should be included in the sale. Does that include the oversized pea green vase? Yes! You never know who is going to love that green vase, even if you never have.

A skilled specialist understands the local buyer’s market and knows how to merchandise each and every item in the sale to optimize the return. They have display tables, blankets and quilts, jewelry trees, cases, dish displays and more to help create appeal for the buyer.

“Our sales are about honoring a lifetime of possessions and the history behind the home,” said Davidson. “Many of our shoppers find just as much joy sharing in the story of someone else’s life as they do finding the perfect bargain.”

After the sale, your specialists will remove the unsold items, arrange for donation, clean up the area and prepare the home for sale. Companies such as Caring Transitions will manage other facets of the process as well, including arranging for painting and repairs. Each service is slightly different, but true estate sale professionals work to serve you and help determine what is necessary to help you move ahead.

Rosemarie Davidson is Owner/Partner of Caring Transitions, 16 Park Drive Old Bethpage, NY
Phone 516-586-6567 www.caringtransitions.net/plainviewny