Suffolk County Elder Law

Estate planning is more than writing a last will and testament or a trust. A large part of estate planning is preparing for the legal issues that are likely to develop as we age. As we age issue may develop related to our ability to care for both our financial affairs and our personal affairs. Thus, it is important to take steps to ensure that your have estate documents in place such as advance health care directives and a durable power of attorney in case there comes a point when you are unable to care for your own affairs—personal or financial. To help you understand the intricacies of elder law and estate planning, contact an experienced Suffolk County elder law lawyer at the Law Offices of Stephen Bilkis & Associates who can help you develop a comprehensive plan for the future.

There are several estate documents that contemplate personal and financial needs and issues that may arise as you age. Advance health care directives (AHCD) allow you to let your family, friends, and medical professionals know your preferences for your medical treatment and personal care should you become mentally incapacitated. The three most common advance directives include a living will, health care proxy, and do not resuscitate order.

A devastating illness or a terrible accident that leaves you mentally incapacitated can happen at any time. For example, a slip and fall on ice, a head-on car accident, or a bicycle accident can leave victims with serious traumatic brain injuries. As you age, the likelihood of suffering an illness that impacts cognitive ability such as Alzheimer’s or a stroke increases significantly. It is also most likely that you will suffer a fall that leaves you mentally incapacitated. If you do end up mentally capacitated for any reason and are not likely to recover, there may be a variety of treatment options for you. Will anyone know which treatments you would agree to if you could speak for yourself? With a living will you document the treatments you would want to receive.

As an experienced Suffolk County elder law lawyer will explain, a living will is a legal document in which you document your choices regarding your medical treatment and care should you become incapacitated and are unable to express your wishes. Typically living wills give detils related to end of life treatment. For example, if you end up in a vegetative state and your doctor states that with medical certain you will not recover, you may state that you would not want any life-prolonging measures taken. Or, you might state that you only want palliative car. On the other hand, you may choose to have the maximum treatment to keep you alive. Examples of treatment that you can choose to have or not have includes:

• Cardiac resuscitation
• Mechanical respiration
• Artificial nutrition and hydration
• Antibiotics and other medication
• Palliative care, including relief from pain
• Organ transplant
• Organ donation including the specific reason or reasons you would be willing or not willing to donate your organs

A health care proxy is a legal document that grants power to another person, known as your health care agent or health care proxy, to make health care decisions on your behalf should you become so ill or injured that you cannot make decisions for yourself. Situations that may require the use for a health care proxy including:

• You suffered from an illness that left you unable to communicate.
• You are in a coma from an accident or illness, even if the coma is not expected to be long-term.
• You are terminally ill and not expected to recover.
• You have Alzheimer's, dementia with Lewy bodies, vascular dementia, dementia from Parkinson's disease and similar disorders, or another form of dementia.
• You are under general anesthesia, when something unexpected occurs.
• You are in a persistent vegetative state.

In addition to a living will a health care proxy would be part of your AHCD. With a health care proxy you would give another person, known as your agent, the authority to make decisions for you in the event you ever become mentally incapacitated and are unable to speak for yourself. Examples of the authority you can grant your health care agent include:

• The power to select or discharge care providers and institutions
• The power to refuse or consent to treatment
• The power to access medical records
• The power to withdraw or withhold life-sustaining treatment
• The power to decide about organ donation

Make sure your health care agent is someone you trust to advocate for you, to be available for what could be a significant amount of time, and to remain steady during a highly emotional time. Your living will and your health care proxy should work together. Your health care proxy’s decisions must be consistent with your living will. For situations not provided for in your living will, your health care proxy should make decisions based on your beliefs and not on his or her.

Like a health care proxy, a durable power attorney is used to give another person the authority to make decision for you. However, in New York a durable power of attorney is used for financial matters while a health care proxy is used for health care matters. With a power of attorney for financial matters you can grant someone the authority to:

• Buy or sell real estate
• Manage your brokerage account
• Manage your bank account
• Run your small business
• Buy insurance for you
• Manage your retirement benefits or military benefits
• Provide financial support to your spouse and children
• Pay taxes

If you are no longer able to make decision for yourself, then you may be placed in an adult guardianship. With a health care proxy and a durable power of attorney, you would have stated who should manage your health care and financial affairs. In the absence of such documents, the state will step in and appoint a conservator. New York policy requires that should a guardianship be required, the court will look first to close family members to fill the role of guardian. This means that the court will first consider your spouse, adult children and adult siblings to fill the role as your guardian. After considering close relatives and other family members, if the court concludes that there are no relatives suitable to fill the role as guardian, the court will appoint a stranger such as a person who is public guardian or a professional guardian.

The guardian will remain in place as long as the court determines that you need someone to handle your affairs. If your medical condition improves enough so that you are able to resume taking care of your affairs, the court will end the guardianship. NY MHY LAW § 81.36. Otherwise, the guardianship will remain in place until you pass away.

A long term care is 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. An experienced elder law attorney in Suffolk County will be able to help you will long term care planning.

Long term care is quite expensive. Assisted living, memory care living or nursing home fees are thousands and thousands of dollars each month. Even if your assets are substantial, with careful planning you will be able to receive the care that you need without spending all of the money that you worked so hard to save over the years.

Understanding the requirements for Medicaid and planning to avoid the financially devastating Medicaid “spend-down” is an important strategy for long-term care planning. Because Medicaid is a health insurance program for the poor, to qualify for Medicaid benefits you must have minimal assets. 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 are 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. To learn more about strategies related to the Medicaid “spend-down” contact an experienced Suffolk County elder law lawyer.

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 an experienced elder law attorney serving Suffolk County at the Law Offices of Stephen Bilkis & Associates. We will help you develop an overall estate plan customized for your needs. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Suffolk County, Nassau County, Bronx, Staten Island, Brooklyn, Long Island, Manhattan, Queens, and Westchester County.