Frequently Asked Questions

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What is Elder Law? Elder Law is an area of the law that deals primarily with planning for incapacity. Many documents used in Estate Planning overlap with Elder Law planning such as Powers of Attorney, Health Care Proxies and Living wills. Do I need a power of attorney and a …

Definition of “Homebound” Clarified

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Many are covered by Medicare for home health services. To receive such services, each beneficiary must: 1. Require skilled nursing care on a periodic basis, physical or speech therapy or need to maintain occupational services after skilled nursing or therapy has stopped; 2. Be under the care plan of a …

Durable Powers of Attorney – Part 1

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Let’s start with the basics. A durable power of attorney is a document in which you can delegate certain powers over your financial life to another person or persons. While it takes effect immediately upon signing, it is most useful at a time when, for a variety of reasons, you …

Durable Powers of Attorney – Part 2

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Although this document starts with a bold faced warning, few read it, and those who do fail to understand its inherent legalese. In fact, it has been reported that many older principals sign their documents based only upon the limited information given to them by their “abuser agent”. It’s just …

Durable Powers of Attorney – Part 3

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A common example in an Elder Law attorney’s office might go something like this…A son may come into the office and say that his Mom is bedridden and has been diagnosed with the beginnings of Alzheimer’s disease. Immediately we are concerned with the capacity of the client, at least down …

Advance Planning in Second Marriages

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Second marriages, particularly those later in life, can pose issues and challenges which require careful consideration. Prenuptial Agreement – a written agreement or contract drafted by lawyers and signed by the prospective husband and wife before the marriage – are designed to cover each spouse’s rights in the event of …

Per Stirpes

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An essential part of drafting a will or a living trust involves collecting information about personal and financial objectives of a client. Most clients are very clear as to whom they wish to leave their personal and financial property – a surviving spouse, children, and grandchildren are the most common …

What Happens When “Per Stirpes” is not used?

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We began our discussion last week on the importance of proper designation of beneficiaries in estate planning documents, such as Wills and Living Trusts, and on beneficiary designation forms for life insurance, IRA’s, 401K’s and certain bank accounts. The most common planning phrase used is per stirpes. Here, the issue …

The Elder Suite

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The vast majority of caregiving for the senior population is not provided in nursing homes or assisted living facilities. Most seniors are able to receive care at home with the help of their family. In some cases, this is an alternative. However, in many cases this is simply not an …

Divorce and Beneficiary Designations

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Generally, we look to state inheritance law (i.e., NYS Estates Powers and Trust Law) to know who are the “distributees” of an estate. Distributees are those individuals who are entitled to inherit estate assets which do not contain beneficiary designations or are not disposed by will. A recent case* addressed …

Gift Splitting

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It is a common practice for financial advisors, accountants and attorneys to recommend that their clients gift the “annual exemption” each year as part of the clients’ estate, gift and income tax planning. The following is a summary of the rules regarding “gift-splitting” which is an important part of utilizing …

Proper Beneficiary Designations

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We have been discussing the importance of proper beneficiary designations in wills and living trusts. Generally, the most frequent type of designation seen is, assuming no surviving spouse, “to my children, in equal shares, per stirpes.” This means that a distribution will be made to the surviving family members when …

New York State Disability Law Passed

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Recently, a law (Executive Law, Article 25) was passed in New York State which requires that persons with disabilities reside in the most integrated setting possible regardless of their age. New York State must now develop and put into place a plan which allows persons of all ages to be …

Updating the Health Care Proxy

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Last year legislation was enacted to allow for organ donation provisions to be included on Health Care Proxies. The Department of Health has now revised the standard Health Care Proxy form in order to accommodate for organ donation provisions. Furthermore, the standard form itself has been altered to allow for …

Medicaid and Joint Accounts

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Often seniors who may be potential Medicaid applicants are under the mistaken impression that if they add their children’s names on the title to their financial accounts (banking or brokerage) that this is considered giving up control of some or all of their money and that at some point, it …