New York Estate Planning & Elder Law Blog

Adult Guardianship in New York – The Basics

Published on: April 23, 2014 | by Ettinger Law Firm

Adult guardianship concerns the laws governing a person’s capacity to manage their own affairs and their own estate. The law presumes that a person possesses this capacity. Therefore, satisfying the legal criteria sufficient for a finding of incapacity is prerequisite to the formation of a guardianship.

Capacity

There is no single, universal definition of capacity. Often, the term “competency” is used interchangeably with capacity, though the modern trend is to prefer the latter. The meaning of the word derives from the context in which it is considered; it cannot be determined in the abstract. An individual’s capacity or incapacity generally must be determined in relation to his or her ability or inability to perform a specific function or act. Because an individual is capable of performing an astonishing number of different functions and acts, a person may have the capacity to do A, B, and C, but not X, Y, and Z. Further illustrating the complexity of the concept is the fact that capacity may be defined differently, depending on whether the context is legal, social, or medical. In terms of legal standards, a determination of incapacity requires clear and convincing evidence that a person is likely to suffer harm because:

What is “Donor Intent” & How Does It Affect a NY Estate Plan

Published on: April 22, 2014 | by Ettinger Law Firm

Charity is an important part of an estate plan for New York families. Many residents have important causes that symbolize their own values and morals, including social, political, economic and religious non-profit groups. Donating funds via a will or trust is common for estates of all sizes–this is not just for the wealthy. Even relatively small donations can have a significant impact. In addition, giving funds to valued causes is a key way to pass on a final lesson to future generations.

There are many different ways to give assets to a charity at death. In the simplest form, funds can be given for the charity to use in any way it chooses. However, many donors have more specific wishes, often wanting to direct funds for very specific uses.

Understanding Donor Intent

Undue Influence in NY & Pressuring Vulnerable Seniors

Published on: April 21, 2014 | by Ettinger Law Firm

Family feuding is all too common, and finances are often at the root. One argument often made in legal cases involves these matters is that an adult child or other close relative is abusing a position of trust and confidence with a parent to take advantage of them financially. Proving such an abuse is the challenge of an undue influence lawsuit.

Undue influence is usually defined the use of confidence for the purpose of taking unfair advantage of one with a weakness of mind (or other vulnerability). In other words, undue influence is about pressure. The question is when does pressure become excessive, and thereby amount to undue influence. In a legal case where undue influence is an issue, a court may consider a number of factors:

1. Unusual or inappropriate time of discussion of the transaction;

Good News for NY Medicaid System – Agreement Reached with Federal Government

Published on: April 18, 2014 | by Ettinger Law Firm

Uncertainty reigned over the last few months regarding the budget situation for the New York Medicaid system. Fortunately, an agreement has been reached which should provide more long-term stability and the ease the minds of both policymakers and NY residents alike.

The underlying problem was claims by the federal government that over a period of years New York engaged in improper billing practices. The mistakes led to billions of dollars being paid to the state that should not have been paid. After discovering the problem, federal officials initially claimed that the money needed to be re-paid. All told, this would amount to nearly $15 billion being drained from state coffers that otherwise would provide support to local residents. No matter which way you slice it, losing those funds would hurt New York Medicaid participants, including seniors.

Settlement Agreement

Back to the Basics: First vs. Third Party Special Needs Trusts in NY

Published on: April 18, 2014 | by Ettinger Law Firm

Families throughout New York who have children with disabilities are frequently questioning how to best provide for their children’s needs–both now and in the future. It can be a complex issue, because relatives must balance their ability to provide help via their own private resources with available support through Medicaid and Supplemental Security Income (SSI). SSI is designed to help those with certain disabilities with basic needs and is funded through general tax revenues, not Social Security taxes.

The government programs hinge on the specific income available to those with disabilities, and so relatives who provide support may unintentionally lead to disqualification of their loved one from Medicaid or lower SSI payments.

Special Needs Trusts in New York

The Mickey Rooney Example: Be Clear About Funeral & Burial Plans

Published on: April 16, 2014 | by Ettinger Law Firm

Legendary actor Mickey Rooney died earlier this month at the age of 93. Over the later course of his life, Rooney offered many important lessons related to elder law estate planning. For one thing, he was a vocal advocate against senior financial exploitation. In 2011 he testified before a U.S. Senate committee that was analyzing the various aspects of elder abuse. Rooney told the committee that he was emotionally and financially abused at the hand of his step-children (the biological children of his estranged wife).

At that hearing, Rooney echoed the thoughts of many New York seniors who were in the same situation, explaining, “For years I suffered silently. I didn’t want to tell anybody […] Even when I tried to speak up, I was told to shut up and be quiet.”

Fighting Continued After Death

Estate Fights for Music Royalties in the Digital Age

Published on: April 14, 2014 | by Ettinger Law Firm

Estate planning can have ramifications decades (or even centuries!) after an individual passes away. On one hand, this is true because how one leaves assets and guidance to others can influence their long-term personal legacy. More specifically, however, planning can dictate legal matters far into the future. Whoever is in control of administering an estate has significant control over how some of those legal issues are handled.

Sudden Celebrity Death

Consider a dispute that recently arose between the estate of Rick Nelson and Capitol Records. Nelson was a popular musician an actor in the 50s, 60s, and 70s, best known for his role in the TV series “The Adventures of Ozzie and Harriet.” Unfortunately, Nelson died unexpectedly in a 1985 plane crash at the age of 45.

The Power of Legacy – Could a Will have Prevented WWII?

Published on: April 11, 2014 | by Ettinger Law Firm

Life is about far more than the accumulation of material wealth. Working hard and collecting valuables to enjoy and pass on to others at death is nothing to spurn. But there are many other things that are accumulated over a life and can be passed on at death: morals, lessons, memories, stories of hope, words of kindness, inspiration, and countless other values.

When thinking about life transitions and estate planning, it is important to consider those intangibles just as much as those items that have a monetary value. This is why, in addition to creating legal wills and trusts, we work with New York families on “ethical wills” to pass on all of those moral and spiritual items that solidify a legacy.

Advice for the Future — Preventing a War

New Report Explores State of Medicaid Following Affordable Care Act

Published on: April 10, 2014 | by Ettinger Law Firm

As the first wave of healthcare insurance enrollment ends as part of the Affordable Care Act, observers are quick to comment on the changes enacted by the law. In addition to millions who took advantage of insurance sold in private marketplace exchanges, there has also been a significant increase in Medicaid participants–both in New York and nationwide.

According to a New York Times report last week, across the country there are now over 62 million Americans receiving some Medicaid support. The increase is more targeted in states like New York that specifically took advantage of options in the Affordable Care Act that allow for expansion of the program.

Importantly, much of the discussion about healthcare exchanges and Medicaid expansion refer to general health insurance coverage–not necessarily care that includes long-term support for the elderly.

Developments with the New York Estate Tax

Published on: April 9, 2014 | by Ettinger Law Firm

We often discuss the importance for local families to account for the New York estate tax. Far more media coverage is given to the federal tax, and some local residents are under the mistaken assumption that the state law mirrors the federal. It currently does not. Even families who do not have asset to trigger the federal tax may still need to plan appropriately for the New York tax on estates.

However, if current plans are carried out, in a few years .there may be much more congruence between the state and federal rules. That is because earlier this month New York changed exemption levels for the estate tax. Previously, assets over $1 million were exposed to the tax at a 16% top rate. Now, however, the exemption level is raised to slightly more than $2 million ($2,062,500). Not only that, but that level is set to steadily increase or five years until, in 2019, the exemption level matches the federal exemption amount at that time (projected to be $5.9 million).

Important Provisions in the Estate Tax Law