New York Estate Planning & Elder Law Blog

Does Dementia Affect the Validity of a Will?

Published on: November 14, 2013 | by Ettinger Law Firm

If a family is dragged into a drawn-out court battle over an estate planning issue, chances are it is a “will contest.” This phrase refers colloquially to cases where one party claims that something is wrong with a will and that the legal document should be thrown out. It goes without saying that preventing this very scenario is exactly why you should talk with planning professionals as early as possible. An attorney can explain how alternative tools–like trusts–can be used to almost eliminate the risk of a will contest entirely. Alternatively, the lawyer can explain the common challenges to a will and the way to guard against them.

Guarding Against A Will Contest

Essentially, there are four main ways that a will may be rejected by a court following a challenge:

Many Same-Sex Couples Still Need to Update Plans Post-DOMA

Published on: November 7, 2013 | by Ettinger Law Firm

As we have mentioned many times before, in June of 2013, the Supreme Court’s decision regarding the Defense of Marriage Act (“DOMA”) allowed same sex married couples to receive the same federal benefits as their heterosexual counterparts. This landmark decision will have a significant impact on estate planning for same sex couples who possess significant assets. Luckily, these impacts are extremely positive and will finally provide for the equal treatment that same sex couples deserve. The Supreme Court’s decision in DOMA will have a variety of impacts, including greatly lowering the taxation rate for asset transfers between same sex spouses.

Even though the ruling came down months ago, many New York couples have yet to ensure their estate planning reflects the changes in the law. As a result, it it worth re-visiting the basics and remind same-sex couples to take time to update previous work.

DOMA Law

Ineligible Patients Enrolled in Medicaid Program by Agency in NY

Published on: November 6, 2013 | by Ettinger Law Firm

The New York Medicaid system is the largest in the nation. As most know, Medicaid is a joint federal-state program, paid for by both entities. While federal parameters must be met, each state is free to decide upon various details of the program, including eligibility and extensiveness of support provided. New York has elected to open Medicaid to many residents with comparatively generous support.

Of course, the more expansive system comes with a high price tag. In order to ensure every dollar spent on the program is used efficiently, the state has engaged in a recent push to crack down on Medicaid fraud.

NY Visiting Nurse Service Problem

Financial Problems at NY Nursing Home, Says Comptroller’s Audit

Published on: November 5, 2013 | by Ettinger Law Firm

A common theme in recent years regarding long-term care in New York is the shuttering of county-owned public nursing homes. Historically, facilities to provide specialized care to seniors were built in different communities, with operation and ownership in the hands of local policymakers. But with financial pressures mounting, that format is changing quickly.

In the latest news on the same topic, WAMC reported earlier last month on the state audit which found that many county homes were in poor financial health. For example, the story point to the fiscal challenges faced by the facility in Saratoga County. The report notes that the county’s entire budget was in trouble because of the cost of subsidizing the home.

According to the New York State Comptroller’s audit, the county’s general fund balance was more than halved in the period from the beginning of 2010 to the end for 2012 (from nearly $25 million to just over $10 million). This massive loss of reserves was caused almost exclusively by the increased fiscal burden of the local nursing home–Maplewood Manor. In order to keep the long-term care facility in operation, the county was forced to put $13 million into the facility from reserves.

Inherited Property & First Time Homebuyer Credit

Published on: November 4, 2013 | by Ettinger Law Firm

Estate planning can seem like a simple process–but usually only when it works as intended. A well-designed plan can make the passing on of assets and handling of various end-of-life matters occur seamlessly. Alternatively, when there is no planning or only partial steps are taken, then the true complexity of the situation becomes clear. In other words, it is only when things do not go correctly that many appreciate the value of this work. But by then it is usually too late.

For one thing, many steps have unintended consequences. Consider inheriting a home. This seems like a straightforward task that is relevant for many families. The home is the largest single asset for many New Yorkers. Determining what happens to the property upon the owners death is an obviously critical step. But tangential effects of the step must be understood.

For example, what are the tax consequences for the one who inherits the home?

What Matters When Choosing an Executor?

Published on: November 1, 2013 | by Ettinger Law Firm

Understanding the specifics of the law is just one aspect of successful estate planning. Obviously it is critical that a will is created in a such a way that it will be upheld or that a trust will have legal effect (or that you take advantage of all available trust options to begin with).

But that legal knowledge is not enough to best prepare for the future. In addition, it is critical to understand the social, emotional, and practical considerations that affect these issues. Are certain family members more likely to feel jilted by a specific arrangement? Is there a financial danger that should be guarded against? These and hundreds of other questions must be considered when planning. Memorizing statutes and legal books will only provide so much guidance–experience on these issues fills in the gaps.

Advice for Executor Selection

Back to the Basics: Trusts Are Not Only For the Wealthy

Published on: October 31, 2013 | by Ettinger Law Firm

One of the biggest misconceptions about general estate planning is that a “trust” is something that only rich families need to consider. This perception likely arises from colloquial use of “trust funds” to signify wealthy individuals who are living off substantial earnings preserved for them in a trust.

A better understanding of the legal tool takes away much of the mystique. The bottom line is that trusts are for everyone, serving as an incredibly useful option for middle class New Yorkers to protect assets accumulated over a lifetime for themselves and their loved ones.

The Basics

Elder Abuse Fact Sheet

Published on: October 25, 2013 | by Ettinger Law Firm

As noted several weeks ago, October is officially known as “Residents’ Rights Month” — a time to share information about the rights of seniors living in all forms of senior housing facilities. Many New York residents have heard horror stories from friends, family members, and acquaintances about inadequate care at nursing homes. This is actually a spur that leads many to take matters into their own hands, crafting an elder law estate plan to protect themselves and their loved ones.

Regardless, we can all agree that abuse of seniors is never acceptable, no matter what the setting. In the spirit of raising awareness of this problem, it is worth taking a look at an Elder Abuse Fact Sheet that was released as part of Resident’s Rights Month. With even a cursory glance it is clear that this abuse affects millions of seniors and the problem is only due to rise in the coming years.

Widespread Mistreatment

Deathbed Planning: In the Face of Serious Illness

Published on: October 25, 2013 | by Ettinger Law Firm

Most estate planning advice stories include one theme over and over–plan early and update consistently. Because no one know what the future holds and life changes occur frequently, it is critical to ensure your legal planning will work as you want it to when you need it.

However, that does not mean that there is ever a point when it is too late and not worth crafting a plan. Taking the time to put affairs in order even in the midst of serious illness or terminal conditions can make a world of difference for a family. A recent article provides a helpful discussion that touches on some of the key issues with regard to “deathbed planning.”

Late Estate Planning

Guardianship over Personal Affairs and Property: Not Just for the Incapacitated

Published on: October 23, 2013 | by Ettinger Law Firm

Many of us can relate to growing concerns over loved ones as they continue to age and require more assistance. It can be challenging to meet these changing needs while still recognizing that our elderly loved ones are capable of performing some tasks on their own. It may seem obvious that legal remedies exist for those addressing extreme issues brought up by dementia and other forms of degenerative disease in elderly family members, who may entirely depend on a third party for assistance with daily life activities. What may not be as obvious is that those solutions are legally available to help address our elderly loved one’s needs without necessarily having them declared incompetent, while also enabling them to utilize a proper degree of autonomy.

New York Law

New York Mental Hygiene Law Article 81 was enacted to provide those seeking guardianship, and the Courts, the opportunity of using the least restrictive means of intervention in order to meet the specific personal or property management needs of the elderly individual while still maintaining an appropriate level of independence based on their capabilities. Specifically, Section 81.02(a)(2) of the Article provides that the Court may appoint a guardian to provide for the personal or financial needs of a person without having them declared incompetent, so long as that person agrees to the appointment. This becomes especially relevant in those situations where an individual is just starting to exhibit the first signs or symptoms of a degenerative disease affecting their mental capacity.