New York Estate Planning & Elder Law Blog

Bill of Rights for New Jersey Seniors in Continuing Care Communities – Should We Follow Suit?

Published on: October 22, 2013 | by Ettinger Law Firm

Seniors in Continuing Care Communities in neighboring New Jersey are about to have many new ways to protect their rights and obtain better care. On Thursday, October 17, 2013, New Jersey Governor Chris Christie signed the “Bill of Rights for Continuing Care Retirement Community Residents in Independent Living (CCRC).” The bill covers a wide range of issues facing residents in CCRCs, including a resident’s entry into a facility, communication between the facility and the resident, financial issues, and termination of services. The bill also provides for penalties ranging from $250 to $50,000 for violations of the provisions of the bill.

The bill includes the following rights:

· Each resident will be treated with respect, courtesy, consideration, and dignity;

Estate and Financial Planning Difficulties with Same-Sex Divorce

Published on: October 18, 2013 | by Ettinger Law Firm

Earlier this year, the Supreme Court’s Decision in Windsor v. U.S. allowed same-sex couples to receive the same federal benefits as other married couples. This has had enormous implications for estate planning for same-sex couples, as was previously covered generally here, and more specifically here for retirement issues, and here for recent IRS guidance. However, there are still many challenges and uncertainties facing same-sex couples since the ruling.

One area providing significant confusion is how divorce will affect same-sex couples. Although same-sex marriage is available in 13 states and the District of Columbia, couples that establish residences outside of those states may not be able to obtain a divorce. In states like Virginia that do not recognize same-sex marriage, gay couples cannot get a divorce (In essence, because the state does not recognize the that the couple’s marriage ever happened, it has no power to grant them a divorce). Moreover, if the couple does not have a legal residence in a state that does allow for same-sex divorce, they may not be able to obtain a divorce there either.

Even if the couple can obtain a same-sex divorce in their state, courts are often unsure how to handle a same-sex divorce. Take the case of Margaret Weing, a New York rabbi who got divorced earlier this year. Although she had only been married to her partner since 2008, she had lived with her partner in a registered domestic partnership since 1996. Weing and her partner had raised children together, merged their finances, and made each other beneficiaries of each other’s pensions and life insurance policies. They had also made each other executors and health insurance proxies, and had given each other power of attorney. Yet, when the New York court heard their case, the court would only divide assets accumulated starting from when the couple married in 2008.

Criminal Charges for New York Estate Executor

Published on: October 16, 2013 | by Ettinger Law Firm

You have probably heard the term “Executor.” Under New York law, this is the name given to the person (or trust company or bank) that is named in a Will and instructed to carry out the decedent’s wishes as outlined in a Will. Executors are entitled to a fee for their work, and it is usually paid out of the estate itself.

While friends and family members are often named as executors, the required duties can be complex. They include collecting assets and paying debts, expenses, and taxes. The process usually takes months (if not longer) and involves tricky procedural chores. Making mistakes can result in significant personal liability to the Executor, and so it is important that no party is surprised by their duties or uncomfortable with the work.

Make a Careful Choice

AARP to Hold Forum on “Modernizing Medicaid”

Published on: October 15, 2013 | by Ettinger Law Firm

Debate and discussion around the ideal setting to care for older individuals has raged for decades. The trends are somewhat cyclical.

In the distant past, virtually all aging took place at homes. “Traditional,” nuclear families were more common, and so seniors who could no longer live on their own almost always moved in with family members. Long-term care facilities were virtually non-existent.

However, seniors who did not have available family caregivers or who needed more support than caregivers could provide were left in dire straits. The growth of various senior housing locations filled the gap. These separate spaces catered exclusively to senior needs, ideally providing better, more efficient care without overburdened family support networks.

Planning for Posthumous Children in New York

Published on: October 11, 2013 | by Ettinger Law Firm

One of the more unique estate planning issues arising in recent years relates to “posthumous births.” This refers to a child who is born after one of their parents has already died.

This was always a possibility, as a parent could pass away in the months after a child was conceived by before the actual birth.

Yet, the issue has grown more acute with reproductive technology advances, including tools that allow the extraction and storage of genetic material, combined with in vitro fertilization. Children are now able to be conceived years after one of their parents has died. While the option is available to anyone, families in certain situations are currently more likely to take advantage of the technology, including those deployed in the military and when a partner has a serious medical ailment, like cancer.

Continuing Trend: Private Investor Buys New York Public Nursing Home

Published on: October 10, 2013 | by Ettinger Law Firm

The face of long-term care in New York continues to change. In the past, when seniors were in need of close, around-the-clock care their main option was to move into a skilled nursing home in their community, usually owned by the county itself. These public facilities long acted as the main source of institutional support for ailing seniors.

But things are changing. For one thing, many more seniors are being proactive about their long-term care, creating elder law estate plans that ensure they have more options, including at-home care that allows them to age in place.

On top of that, more and more county owned and operated nursing homes are being sold off to private investors. Finances are at the center of the switch, as tight local budgets are making it very difficult for local policymakers to justify losing significant funds year over year on this care. Recent reports have underscored the situation, noting that virtually all of the county-run nursing homes in New York are operating in the red.

Tragic New York Murder Case, Inheritance, & “Son of Sam” Laws

Published on: October 9, 2013 | by Ettinger Law Firm

What happens if someone who intentionally causes a death is due to inherit from the person who died? Is the wrongdoer still able to profit from his or her actions?

In general, the answer would be negative. New York passed a statute known as the “Son of Sam” Law which essentially prevents a criminal from profiting from their crimes. This state law overlaps with a long-ago established common law principle known as the “slayer rule” which more directly affects inheritance issues, preventing someone convicted of causing a death to then profit by inheriting from the deceased person.

These rules are not new. But sometimes unique cases pop up which are hard to fit perfectly into the older rules, usually sparking legal challenges.

Family Dispute: Kasey Casem’s Children Fighting with Stepmother Over Senior Care

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

Family arrangements are diverse. Some New Yorkers still have a “traditional” nuclear family with parents who remain married. However, the standard model of husband, wife, kids, in-laws, and grandkids no longer represents the majority. Instead, most families have some complexities. There are divorces, new marriages, stepchildren, adopted children, grandparents raising their grandchildren, nephews moving in with aunts, and countless other scenarios.

One of the key reasons to be prudent about selecting an elder law estate planning lawyer with significant experience is so that the professional can provide insight into common issues that affect your specific situation. The longer the legal team has been around, the more likely they are to have worked on plans similar to yours, able to craft the package that best protects you and you loved ones. Over the years, many trends become clear.

For example, one of the most common causes of family strife are disagreements between adult children and step-parents. It is quite common for parents to re-marry after a divorce, setting up potential conflicts between a subsequent spouse and children from the first marriage.

Can You “Self Insure” For Your Long-Term Care Needs?

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

In helping families throughout New York plan for potential care needs down the road, we frequently explain that the ideal solution is long-term care insurance (LTCI). As the name implies, these policies require community members to pay premiums now with assurances that certain financial support will be available if you need care down the road. One key benefit of long-term care insurance is that it often allows for more flexibility in caregiving options, like paying for at-home caregiver to avoid the need to move into a new location.

But is this insurance good for everyone?

A recent story from Financial Planning suggests that, in some cases it may be worthwhile for retired individuals to “self insure” for long-term care. The basic idea is that it could be more prudent to not pay high premiums for care that may not be needed and instead invest the money that would have been spent on premiums. You may have heard something similar and are wondering if self insurance is the right fit for you.

Will The Government Shutdown Affect Your Estate Planning?

Published on: October 3, 2013 | by Ettinger Law Firm

News this week is dominated by one topic: the federal government shutdown. Like most others, you may be wondering how (or if) the developments out of D.C. will affect you.

The Background

The shutdown itself is caused by Congress’s failure to pass an appropriations bill allowing for the spending of money to fund day-to-day government operations. More specifically, Republicans in the House of Representatives are refusing to pass a bill that includes funding for the Affordable Care Act. Usually disagreements about these issues are handled separately from daily government funding, but the House GOP has combined the issues and refused to budge, leading to the shutdown.