New York Estate Planning & Elder Law Blog

May is Older Americans Month

Published on: April 29, 2018 | by Ettinger Law Firm

For 55-years, Older Americans Month has been observed to recognize older Americans and their contributions to our communities. Led by the Administration for Community Living’s Administration on Aging, every May offers opportunity to hear from, support, and celebrate our nation’s elders. Ways to show your support for Older Americans Month include taking selfies and group shots while participating in activities that improve your mental and physical well-being then posting the image to social media using the hashtag #OAM18.

The 2018 theme for Older Americans Month is “Engage at Any Age” and emphasizes that that you are never too old (or young) to take part in activities that can enrich your physical, mental, and emotional well-being and celebrates the many ways in which older adults make a difference in our communities. Older Americans can get involved in the celebration by participating in activities promoting mental and physical wellness and offering their wisdom and experience to the next generation.

President Kennedy first declared May to be Senior Citizens Month in 1963 as a way to honor citizens 65-years and older and since then, every president has proclaimed May to be a month to show support for older Americans. In 1980, President Jimmy Carter changed the name to Older Americans Month and as a show of support, the National Academy of Elder Law Attorneys declares the month of May to be National Elder Law Month.

How the Uniform Disposition of Community Property Rights at Death Act Affects Spousal Maintenance

Published on: April 23, 2018 | by Ettinger Law Firm

In New York, a court will decide if spousal maintenance (“alimony”) should be extended to a former spouse’s estate. Marital property part of a decedent’s estate is only considered an asset of the former spouse if no other heir or beneficiary is designated in a written will. Division of marital property and major assets are a considerable decision in the distribution of resources during a divorce proceeding. Court award of finance and other property assets during a divorce is the result of judicial review. A range of factors are considered before a court issues an order for spousal maintenance. Rules to Special controlling conditions to division of property and spousal maintenance stipulated in New York Consolidated Statutes, Art. 13 §236. The same rule applies to award of estate assets.

New York Estate Laws and Marital Property

The adoption of the Uniform Disposition of Community Property Rights at Death Act of 1971 in New York legislation, recognizes community property rules to addressing equitable distribution at time of one ex-spouses death (Estates, Powers and Trusts Laws §§6-6.1, et seq.). The Act preserves community property ownership rights of spouses that have moved from a community property state to New York, a non-community property state.

Estate Planning to Protect Partnership Assets from Taxation

Published on: April 20, 2018 | by Ettinger Law Firm

Partnerships, or “limited partnerships” LP, established with individual member capital contributions of money and property in the interest of forming a business are potentially asset that can be a substantial factor in estate planning. The transfer of business and personal capital to legacy capital establishes a trust for grandchildren or other beneficiaries who will benefit from a decedent’s wealth long-term. One of the main challenges is protecting those former business assets from taxation.

“Pass-through” Partnership Tax Rules

The legal treatment of a LP is one of discretionary liability where partners are concerned. This bodes well for estate planning, as there is little worry of another general partner influencing the actions of an estate. All U.S. states have adopted the Revised Uniform Partnership Act (RUPA) so that all laws are consistent with federal rules to partnership. Partnerships (IRC §761) comprised of two or more members are not considered taxable entities as result.

State Regulators Take Over Dozens of Nursing Home Facilities Owned by New Jersey Company

Published on: April 18, 2018 | by Ettinger Law Firm

State regulators recently took control over dozens of nursing homes owned and operated by a New Jersey-based company that is responsible for over 100 facilities in eight states across the country, including three in New Jersey. In addition to operating homes in the Garden State, Skyline Health Care, LLC, owned by Joseph Schwartz, is the parent company for nursing homes and other facilities in Arkansas, South Dakota, Tennessee, Pennsylvania, Massachusetts, Nebraska, Kansas, and Florida.

According to reports, the company has failed to make its payroll in both Nebraska and Kansas, prompting state health department officials to take receivership of a combined 36 nursing homes, adult day cares, and assisted living facilities serving thousands of patients in those states. New Jersey Health Department officials acknowledged they are aware of the issues with Skyline Health Care facilities in Nebraska but has not received any reports of problems in New Jersey.

Nebraska health authorities placed 21-nursing homes and 10-assisted living facilities owned by Skyline in receivership in late March after determining that Skyline became unable to pay staff and ensure the future care of residents. Around the same time, Kansas state courts authorized a temporary receivership and are seeking a permanent one for 15-skilled nursing facilities with 845 patients, making it the largest takeover ever by that state’s Department for Aging and Disability Services.

“No Will” Probate Intestate Succession in New York

Published on: April 17, 2018 | by Ettinger Law Firm

When a person dies without a will in New York, probate rules to intestate succession guide the distribution of asset to relative survivors. New York rules of intestate succession provide that the closest living family member surviving the deceased is entitled to transfer of assets from an estate. The law of intestate succession limits asset transfer to property that would customarily be assigned to beneficiaries by an estate during probate. This default provision allows for persons identified as family members such as spouses, followed by children, parents, and siblings to be justly enriched should no beneficiaries be named in a will.

What is the Law of Intestacy?

In New York, the Law of Intestacy states that asset transfer from “the Decedent’s estate when there is no will” is accorded to “distributees” who are or surviving relatives. When surviving relatives include a spouse and children, New York Consolidated Laws, Estates, Powers, and Trusts Law mandates “the spouse inherits the first $50,000 plus half of the balance,” and “the children* inherit everything else” (EPTL § 4-1.1). If parents exist and no spouse or children, the parents retain 100% of the estate. Where siblings survive the deceased, and there are no spouse, children, or parents, probate law allocates the entire estate to the former.

Consequences of Decedent Debt in a Probate Matter

Published on: April 15, 2018 | by Ettinger Law Firm

Probate law demands that an executor must pay the debts and other financial obligations of an estate prior to distribution of assets to a Decedent’s beneficiaries. Although heirs and beneficiaries are not legally responsible for paying off estate debt, the total value of the estate can be greatly reduced as result of debt obligations.

Priority debt obligations.

Living trusts have little protection from creditors while a Decedent is alive. Revocable trusts enable an executor to coordinate debt payments in advance. Claims made against irrevocable trusts can also provide a creditor access to additional funds during the probate process after a Decedent has died. Insolvent estates without adequate liquidity to pay debts and obligations may still be subject to debt obligations after court filing fees, attorney’s fees, and executor costs to administer the estate have been paid. Other priority debt obligations include funeral and burial costs; federal and state taxes; medical bills; child support claims; dependent family support claims; judgments; followed by all other debt.

New York Assembly Holds Hearings on Medical Aid in Dying

Published on: April 15, 2018 | by Ettinger Law Firm

The New York Assembly health committee recently held the first of two meetings on a proposed legislation that would allow some terminally-ill individuals with less than six-months to live the option to use medication to die in their sleep in cases where their suffering is unbearable. The committee members heard testimony from a variety of individuals including patients and their families, health care providers, legal experts, medical ethicists and religious leaders.

The committee’s exploration comes in the wake of a ruling by the New York Court of Appeals last year that ruled against three terminally-ill patients asserting they had a Constitutional right to die under their own conditions. The petitioners asked the Court of Appeals to shield their doctors from criminal charges in cases where physicians prescribe patients a lethal medication to end their lives.

New York’s Medical Aid in Dying Act, sponsored by Assemblywoman Amy Paulin and Sen. Diane Savino, would permit terminally-ill patients deemed mentally fit to end their lives by using medication provided to them by a physician. Proponents of the law assert that doctor-assisted dying is oftentimes the only alternative to a long and agonizing death, during which the patient may experience complete loss of their bodily functions and mental faculties.

Changes to National Labor Laws May Change Home Health Care for Those Who Need it the Most

Published on: April 9, 2018 | by Ettinger Law Firm

If you have a beloved elder who currently needs or will eventually need long term, in-home health care, you need to know about new changes to federal labor laws that may not only raise the cost of these services but potentially alter quality aspects. In addition to federal labor and wage laws, state and even local laws may impact what you pay for in home health care and who provides it.

When a person suffers from dementia, alzheimer’s, or or another cognitive health condition, he or she will likely need the aid of a home health care aide to provide even the most basic of care needs. For many years, home health care providers who also lived in the patient’s home were subject to different portions of the federal Fair Labor Standards Act (FLSA) which made them exempt from overtime and would essentially earn less than minimum wage because the individual was expected to be on call even during the evening.

However, a recent legal decision determined these in-home health care workers were not overtime exempt and must be paid one and a half times their average hourly wage when working more than 40-hours per week. This meant that it became economically feasible for many families to maintain constant care to their loved one from a familiar person that could be counted on to provide attentive, individualized service to the patient.

Immigration Policy Could Affect Home Healthcare Market Providers

Published on: April 6, 2018 | by Ettinger Law Firm

The Trump administration recently issued a directive to revoke the Temporary Protected Status (TPS) for tens of thousands of immigrants from poverty stricken countries living in the country, many of whom who have found roles in the home healthcare market. With the cost of in-home and assisted living facility growing every year, the change could potentially add to those costs and put seniors and the disabled in a more difficult financial situation.

Approximately 59,000 Haitians came to live in the United States after the 2010 earthquake which devastated the country. Nursing homes and in-home care providers are already reporting staffing shortfalls as immigrants who found employment in their sectors have returned home for fear of forced deportation after losing their legal status. Even despite the threat of deportation, many immigrants working in nursing homes and as in-home health aides do not stay long in these jobs as they find professions in much higher paying sectors of the economy.

In Boston, Massachusetts for example, some elder care providers are speaking out about the selfless, hard work that their immigrant employees living on TPS status perform for long hours and modest pay. With many coming from nations where the witnessed humanitarian crises and seek to give back as part of the aid they themselves received in their times of need.

Government Accountability Office Report Says Evaluations on CMS Experiments are Incomplete

Published on: April 2, 2018 | by Ettinger Law Firm

A recent report by the Government Accountability Office (GAO) claims state and federal agencies tasked with evaluating experimental programs from the Centers for Medicare and Medicaid Studies (CMS) fail to properly evaluate the initiatives. According to the report, some states can take years to finish evaluations and complete reports on programs implemented to help save taxpayers money and improve patient care.

Furthermore, when reports do become available CMS often fails to give the public access in order for ordinary people to see for themselves what works and what does not for the working poor of America. While many experts studying the issue found the shortcomings to be troubling, many were not surprised at the way states and federal agencies go about evaluating what incremental changes to CMS programs could be worthwhile.

Some states do not even finish their evaluations and complete reports until after the federal government approves the experiments for a second time. Such moves often leave observers scratching their heads as to how states can continue to receive funding for experiments on CMS programs without even taking into account whether they have a positive impact on the health and wellness of state residents or the programs fiscal soundness.