New York City Elder Law Lawyer

Elder law is a part of estate planning that focuses on the challenges that you will face as you age. Elder law includes planning for both your personal and financial needs in the future. This involves making sure that the estate that you worked hard to accumulate throughout your life is appropriately protected and preserved so that you will have resources for your needs throughout your lifetime. Planning for your future personal needs involves making sure that someone you trust will take over making personal and health care decisions for you should you be unable to do so one. Of course, elder law also involves planning for how you will transfer your estate to those you care about upon your death. It is important to keep in mind that you do not have to wait until you are older to make plans. It is also not necessary to wait until you have accumulated significant wealth to plan how to protect your assets. Planning for your later life and well being is a process that should begin while you are young. Your plans should then be revisited throughout your lifetime as your financial, personal and family situation evolves. If you are considering making plans for your future needs, it is important that you contact an experienced New York City Elder Law Lawyer who will work closely with you to tailor an estate plan to fit your personal and family needs.

What type of planning do I need to do?

There are several estate planning tools that will help you plan for your financial future and that will help you be prepared for some of the special challenges that you may face when you are older. 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. The type of planning you need depends on your long-term personal goals. Examples of issues and tools to consider include:

  • Medicaid Planning
  • Conservatorships
  • Durable Power of Attorney
  • Health care proxy
  • Living will
  • Last will and testament
  • Trusts
  • Disability planning
  • Estate tax and inheritance tax planning
  • Long term care facility planning
How do I plan for the possibility of having poor health in the future?

Regardless of how healthy you are right now it is possible that one day your health may fail. It is also possible that you may end up in an accident that leaves you seriously injured. Sadly, such illnesses and injuries happen. Many of us know a friend or family member who suffered a debilitating health crisis. The media is full of examples, such as 27-year-old Terri Schiavo who suffered cardiac arrest that left her with permanent brain damage. Such an illness or injury may leave you so incapacitated that you may not be able to care for your property, take care of your personal needs, or communicate decisions regarding your health care. While the thought of this happening may be painful, it is wise to plan for the possibility. Documents that will help ensure that your personal, financial and health care needs are cared for by someone you trust and according to your wishes include a durable power of attorney, a health care proxy and a living will.

Durable Power of Attorney. A power of attorney is a legal document in which you give another person the authority to act for you. That person is referred to as your agent or attorney-in-fact, while you are referred to as the principal. While you can use a power of attorney to delegate powers related to your finances or your health care, in New York a document called a power of attorney is typically related to financial matters while a document called a health care proxy is a special type of power of attorney related to health care matters. 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, while a non-durable or conventional power of attorney becomes invalid when the principal becomes 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 your power of attorney you will specify what powers you are delegating to your agent. The authority that you grant in the durable power of attorney may be broad and apply to all transactions related to your property and finances, or you can grant specific powers. 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.

Health Care Proxy. A health care proxy is a durable power of attorney that applies specifically to health care decisions. While some jurisdictions refer to such a document as a durable power of attorney for health care, in New York such a document is called a health care proxy. N.Y. PBH. Law § 2861. With a health care proxy you nominate another person, referred to as your health care agent, to make health care related decisions for you in the event you cannot communicate your preferences to your family or medical team.

In your health care proxy, in addition to appointing your health care agent, you can also specify your treatment preferences. In the event that there is a medical decision that is not specifically addressed in your health care proxy your health care agent is the person who will have the legal authority to make the decision related to that medical issue.

A health care proxy is also valuable in that it will help resolve disputes among loved ones over your health care. For example, in the case of Lee Kennedy, a dispute over her care developed between her children and her friend. In re Application of Balich, 2003 NY Slip Op 51080(U) (Sup. Ct. 2003). Kennedy suffered a paralyzing stroke that left her unable to swallow. A decision had to be made as to how she was to receive nutrition. Because Kennedy was incapacitated to the point she was not able to communicate her needs, her doctors turned to her friend, Lucas Balich, who Kennedy named as her health care agent in her health care proxy. Balich made the decision to have a stomach tube placed in Kennedy. Kennedy's children objected. The court found that Kennedy's decision to appoint Balich as her health care agent were made at a time when Kennedy was "fully possessed of her cognitive abilities." Thus, the court concluded that a health care agent's decisions on behalf of a principal pursuant to a valid health care proxy take precedent over any other person's decisions, including someone who is the principal's agent pursuant to a durable power of attorney.

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 will 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.

What are the consequences of not having a durable power of attorney, health care proxy or living will?

If you do not have a durable power of attorney, health care proxy or living will and you become mentally incapacitated, the consequences are significant. For example, if you do not have a durable power of attorney, there may be no one who can take care of your financial and personal responsibilities. While your spouse or child may be able to complete certain tasks such as pay some of your bills, there are other tasks that only you or your duly appointed agent would be able to do. Thus, it is possible that certain aspects of your financial life would fall behind or go into disarray.

If you do not have a health care proxy or living will, your wishes for your medical treatment may be unknown. Furthermore, decisions may be delayed if there is disagreement among your family members or between your family and your medical team.

Ultimately, the court will step in and appoint a conservator. A conservator is an adult guardian charged with handling your personal, financial and medical decisions. While the conservator appointed may be your spouse or child, the court may also appoint a pubic conservator. The legal proceedings related to a contested appointment of a conservator are expensive. In addition, a public conservator must be paid a fee for his or her services. These expenses will be paid from your assets.

How do I plan for long term care?

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.

Financing long-term care. 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.

The responsibility for paying for long-term care starts off with you. If you do not have adequate resources from your savings or long-term care insurance, then federal and state resources will be available such as Social Security, Medicare and Medicaid. Medicaid is the payor of last resort. This means that Medicaid pays the long-term care bills of those who have very little resources. If you have assets, even if they are not significant, under Medicaid rules you would have to first deplete them before Medicaid will pay for your long-term care. As a result, you would have little left in your estate for much else including leaving anything to your loved ones.

However, with careful, advanced planning you will be able both preserve some of your assets and also qualify for Medicaid. For example, transferring asses to a carefully constructed trust would exempt those assets from being considered part of your estate for Medicaid purposes. Also, certain assets are by nature exempt from Medicaid accounting such as the home where you and your spouse live. Medicaid rules are complicated. If you transfer assets improperly, you may not qualify for Medicaid. Thus, it is important to not attempt to transfer assets to a trust or individual without the guidance of an experienced elder law or estate planning practitioner.

Another resource for paying for long-term care is through veteran's benefits. 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 your assets are also a factor in determining eligibility.

How do I plan to transfer my assets upon my death?

You can arrange for the transfer of your assets upon your death through a last will and testament. A trust is another means to transfer assets and if designed correctly, may result in savings in income, estate and inheritance taxes.

Will. A last will and testament is a legal document that sets forth your wishes regarding the distribution of your estate's assets and the care of your minor children once you pass away. A will is an important document as it gives you sole discretion over the distribution of your assets. You can leave specific instructions as to which of your loved ones is to receive specific property. You can even leave property to institutions such as your alma mater, a religious organization, or a charity. In doing so you will have peace of mind that your property will end up exactly where you want it.

Trust. With a trust you can accomplish some of the same goals as with a will. For example, you can leave property to your loved ones. When you create a trust you transfer assets of your choosing into the trust. The trust will then hold the assets for the benefit of the beneficiaries you choose. You can transfer practically any type of property to a trust including cash, stocks bonds, other securities, insurance policies, real estate, antiques, and artwork. The type of property that you choose to transfer to a trust depends on your goals. 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. In addition, a trust can be crafted to help minimize various taxes.

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 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your estate plan. We serve individuals throughout the following locations:

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