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Westchester County Elder Law

Elder law is a specialized area of law that focuses on legal services for the aging population. Elder law and estate law are intricately related as both involve planning for your future well-being. While elder law focuses on issues related to people who are getting older, you can start planning when you are quite young. In fact, for several reasons it is a good idea not to wait until later on life to start to plan. Such planning should include financial planning for long-term care needs. It should also include planning for the possibility that one day you may be incapacitated and unable to make financial, personal or health care decisions for yourself. Of course, you should also plan for how you would like your property disposed of once you pass away, and you may want to plans for the personal and financial needs of your loved ones. To help you understand the intricacies of elder law and estate planning, contact an experienced Westchester County Elder Law Lawyer who can help you develop a comprehensive plan for the future.

There are several estate planning tools that are designed to contemplate personal and financial needs and issue that may arise as you age. An advanced health care directive (AHCD) allows you to let your family, friends, and medical professionals know your preferences for your medical treatment and personal care should you become mentally incapacitated. Your AHCD may include a power of attorney and a living will. In addition to preparing for your future healthcare needs, you should also consider plan to protect your finances and assets in the event you become incapacitated.

Living Will

A devastating illness can strike at any time. However, you are more likely to suffer a medical condition that will impact your mental capacity such as Alzheimer's, other types of dementia or a stroke. When creating a living will you plan for the possibility that at some point the future you may be mentally incapacitated.

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. Living wills detail the type of medical treatment and life-prolonging measures you want or do not want. For example, your living will might specify which if any life-sustaining treatment or measures you want such as CPR or artificial nutrition.

You can also give details as to what types of medications you would want to relieve pain. You can specify your preferences regarding organ donation, such as if you would like 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.

Durable Power of Attorney

A durable power of attorney is another document that can be part of your advanced health care directive. A power of attorney allow you to give another person, referred to as your attorney-in-fact or agent, to made decisions for you while you are incapacitated. You may give your attorney-in-fact the authority to make financial decisions for you, heath care decisions for your or both.

It is up to you to decide what authority to give your attorney-in-fact. For financial decisions, you can very specific as to what authority you chose to give your attorney-in-fact. For example, 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

With a power of attorney for healthcare, examples of the authority you can grant your attorney-in-fact 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

You can name the same person to be your agent for health care and for finances. However, it is important to make sure that person is qualified to fill both roles. Otherwise, it may be a good idea to name separate agents. In both cases, the person you name in the durable power of attorney must act in your best interest. Furthermore, that person or persons must keep your interests separate from his or her own. For example, your agent must not commingle your funds with his or her own in a single bank account.


New York policy requires that should a conservatorship be required, the court will look first to close family members to fill the role of conservator. This means that the court will first consider your spouse, adult children and adult siblings to fill the role as your conservator. After considering close relatives and other family members, if the court concludes that there are no relatives suitable to fill the role as conservator, the court will appoint a stranger such as a person who is public conservator or a professional conservator.

The conservator 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 conservatorship. NY MHY LAW § 81.36. Otherwise, the conservatorships remain in place until you pass away.

A conservator can be appointed to take care of your finances or to take care or your day-to-day well-being and personal needs. In many cases, particularly if you are mentally incapacitated, the court will appoint a conservator to handle both your finances and your well-being. Referred to as a "conservator of the person," a conservator who is appointed to make decisions about personal matters will make decisions about your housing, healthcare, and other aspects of your personal care. If necessary, the conservator may decide that it is in your best interest to live in an assisted living facility or a nursing home. On the other hand, if you have a living will or a durable power of attorney for healthcare, it would detail your instructions on your care in the event you become incapacitated, including who will serve as your conservator or guardian.

A "conservator of the estate" makes decisions about your finances. He or she will manage your assets, pay your bills, make investments, and collect income. The court will require the conservator of the estate to keep detailed financial records and regularly report to the court about the status of your finances. Using advanced planning you can execute a durable power of attorney to appoint someone you trust to handle your finances in the event you become incapacitated.

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. An elder law attorney 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 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 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.

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:

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