February 17, 2020










Medicaid Redesign team Proposes Changes to Medicaid Eligibility in New York

November 10, 2011 by

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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Estate Planning for those in 2nd Marriages in New York

November 10, 2011 by

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

November 10, 2011 by Leave a Comment

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.

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New ‘Power of Attorney’ Law – Frequently Asked Questions

November 10, 2011 by

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

November 10, 2011 by

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.

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