and Your Family
Brooklyn Elder Law
Elder law and estate planning are closely related. Part of estate planning is all about planning for your personal and financial well-being for when you are older. It is not just a matter of saving money. It is a matter of planning in such a way so that you protect your assets so that you can use your hard earned money in the manner of your choosing, or so that you can pass it on to the loved ones of your choosing. In addition, both estate planning and elder law focus on planning for a time in your life when you may no longer be able to make financial and personal decisions for yourself because you have become mentally incapacitated. Planning in advance will help give both you and your family members peace of mind that your affair are in order so that you can meet the financial and personal challenges that often come with age. To help you understand the intricacies of elder law and estate planning, contact an experienced Brooklyn Elder Law Lawyer who can help you develop a comprehensive plan for the future.
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There are several estate planning tools that are designed to contemplate personal and financial needs and issues that may arise as you age. Some tools will help you plan for incapacity, while others will help you preserve your assets and plan for long-term care. Still other tools will help you plan for transferring your assets to loved ones upon your death.Living Will
A living will is a legal document in which you state your preferences regarding your medical care in the event you become incapacitated and are unable to speak for yourself. Typically, a living addresses end of life medical issues and treatment such as the type of life-sustaining measures you want or do not want. For example, your living will might specify whether or not you want cardiac resuscitation, mechanical respiration, artificial nutrition or hydration, or antibiotics.
You can also give details as to what types of medications or treatment you would want to relieve pain. A living will is also a good place to state your preferences regarding organ donation. You can specify that you do not want your organs, tissue, or other body parts donated for any reason, or that you do want them donated. Or you can be more specific and state that you want them donated for purposes of transplant, research, education or therapy.
In order to be properly executed and valid, you must sign and date your living will and have two witnesses sign it as well. Once you have executed your living will it is a good idea to give a copy of it to close family and friends, the person who you have named as your attorney-in-fact, your doctor, and anyone else who might be involved in your medical care. In addition, it is also a good idea to discuss with them your preferences. You can change your living will at any time by executing a new one.Health Care Proxy
A health care proxy is legal document in which you nominate another person, referred to as your health care agent, to make health care related decisions for you or act for you in the event you cannot. In other words, a health care proxy is a power of attorney specifically for health care decisions.
Your agent will be required to follow the instructions that you left in your living will or in the health care proxy itself as to which treatments you would or would not prefer to receive. In the event that there is a medical decision that is not specifically addressed in your health care proxy or living will, your health care agent is the person who will have the legal authority to make the decision related to that medical issue.
Like a living will, a durable power of attorney is part of an AHCD. The difference is that a health care proxy allows you to name someone to make decisions about your health care if you can no longer speak for yourself. On the other hand a living will allows you to state your wishes about health care in the event that you can no longer speak for yourself.Durable Power of Attorney
A power of attorney is a legal document in which you give another person the authority to act for you in matters relating to your property. When you execute a power of attorney, you are referred to as the principal and the person to whom you delegate authority is referred to as your agent or attorney-in-fact. What makes a power of attorney "durable" is that fact that the power of attorney will be effective even if you should become mentally incapacitated. Under New York law a power of attorney is durable unless it specifically states that it becomes invalid upon the incapacity of the principal. N.Y. GOB. Law § 5-1501A
In the power of attorney you will specify what powers you are delegating to your agent. For example, you can give your agent the authority to sell your house. This means that your agent has to the power to bind you to a contract to sell your house as if you signed the sale contract yourself. The authority that you grant in the power of attorney can be specific, such as buying or selling real estate, or it can be broad and apply to all financial transactions related to your property.
Examples of specific powers that you can grant include authority related to: real estate transactions, chattel and good transactions, bond, share and commodity transactions, banking transactions, business operating transactions, insurance transactions, estate transactions, claims and litigation, benefits from military service, retirement benefits transactions, and tax matters.Long Term Care Plan
Another significant issue that you should consider as you plan is your long term care needs. Even if you never become so mentally incapacitated that you require another person to take care of your finances or make health care decisions for you, your health may fail to the extent that you are no longer able to live on your own. It may become difficult for you to walk around or navigate the stairs. You may not be able to drive a car. You may tire easily so that you are unable to manage your household. As a result you may need to have a home health care worker help you manage at home. Or you may need to move into an independent living facility, assisted living facility, a memory care facility, or a skilled nursing facility.
Long term care is quite expensive, with fees that can be several thousands of dollars each month. Even if you carefully saved a substantial amount of money over the years, you may find that your savings are completely depleted fairly quickly if you have to pay the expenses of long term care out of your savings. You could end up with little extra money to do things that you enjoy and you may not have anything left in your estate to leave your loved ones.
However, even if your assets are substantial, with careful planning you will be able to receive the care that you need without spending all of your assets. To qualify for Medicaid benefits you must have minimal assets. Thus, in order to ensure that you qualify in the future, you may need to transfer assets to a specific type of trust to so that it is not considered for Medicaid qualification purposes. If you or your spouse is a veteran, you may qualify for certain veteran's benefits that will help you pay for long term health care costs. Similar to qualifying for Medicaid benefits, even if you are a veteran you assets are also a factor in determining eligibility.Will and Trust
Of course your will is an important part of planning for the future. Along with your will, a trust is a important means for you to leave assets to you family, friends, and charities. An important difference between a will and a trust is that a will must go through probate before assets are distributed to your beneficiaries. A trust does not go through probate. This means that your beneficiaries will receive the assets a lot quicker.
To learn more about the how to protect your assets, how to plan for your long term care, how to plan for possible future mental incapacity and how to plan for the future of your family members, contact the attorneys at Stephen Bilkis & Associates, PLLC. We will help you develop an overall estate plan that reflects your individual goals. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan. We serve individuals throughout the following locations: