Posts Tagged ‘new york estate planning’

Chronic Illness and the Estate Plan

Monday, May 16th, 2011

Martin M. Shenkman, Esq., ( focuses on the estate and business planning needs of high-net-worth individuals, closely held business  owners, and real estate owners/developers. We recently spoke to him about estate planning when a loved one has a chronic disease.

Q: What’s different about estate planning for someone with a chronic illness?

A: You need to focus on the specific disease, the individual’s experience with it, and its likely future course. There’s lots of variability.  Generic approaches don’t work; I can’t think of a worse candidate for online estate planning. The standard disability clauses that appear in most legal documents, even lawyer-prepared documents such as a shareholder’s agreement, should be examined. People make lots of dangerous assumptions—even professionals.

Q: Can you give me an example?

A: For instance, they may automatically structure an estate as if the person will be or has been unable to work.  Take MS–you can be diagnosed with it as a child but the average age is in the thirties. Someone with MS may be able to work for 10-20 years, some until retirement. Or look at Parkinson’s.  Most people experience its onset in their mid-sixties or later, but some begin to have symptoms in their thirties.  The older individual diagnosed with chronic illness may have had a full career during which to acquire assets. Planning is not only for the elderly and not only about special needs issues. Each situation requires a different approach.

Q:  What about advance directives?

A:  That’s another area that requires careful consideration.  Consider diseases such as MS and Crohn’s that involve uncontrolled attacks. A good way to approach power of attorney (POA)  in such cases might be to structure an immediate limited POA that would authorize someone to handle routine matters—bill paying—for a couple weeks.  But they wouldn’t be able to handle anything major, such as selling someone’s home.  The comprehensive POA would “spring” when the illness became incapacitating.

Q: You’ve said that estate planning tools should empower, not disempower.  What do you mean?

A: Disease disempowers. If you are living with a chronic illness or disability it limits what you can do. It disempowers you on some level or in some manner. There’s a big emotional component to planning for a loved one with a chronic illness, and there are creative means of preserving someone’s independence as much as possible. Take a situation in which an individual has bipolar disorder.  The person may be exceptionally bright and capable, but a manic episode could pose serious problems. The bulk of this person’s estate could be protected by establishing a fully funded living trust having family and institutional trustees.  But the trustees could be directed to establish a small account –say, $5,000–outside the trust that’s accessible to the individual by checkbook, credit and debit card. This would empower the person to do anything anyone else can do.  It could be replenished, as necessary, while the bulk of the estate would remain protected.

Estate planning tools should be used to ensure quality of life.  They shouldn’t be used as blunt instruments.

Thanks, Marty, these are thoughtful approaches to complex situations.  I hope they prompt readers whose loved ones have chronic illnesses to think creatively about their own estate planning.

Federal Courts Rule Medicare Standards Too Strict

Monday, January 10th, 2011

Elderly Americans are facing overly strict standards when they apply for skilled nursing home care and home health care through Medicare, two federal courts recently decided.

The two courts, one in Pennsylvania and one in Vermont, ruled that the Obama administration’s standards were too strict and that some seniors have been unfairly denied home care.

The courts ruled against the government position that seniors are only entitled to home care if they can verify that their condition will improve because of it. They said that these rulings were a “failure to apply the correct legal standard”, and determined that seniors are entitled to Medicare coverage of home care if it will keep their condition from deteriorating or allow them to live life as they had been.

Before this ruling, elderly Americans with deteriorating conditions such as Alzheimer’s and Parkinson’s may have had trouble receiving Medicare for home care, as their conditions often do not allow them to improve.

The court cited past rulings that decided Medicare law should be interpreted to best favor beneficiaries. In response, 17 Democrats from the House of Representatives sent the Obama administration a letter arguing against its Medicare policies.

The government has not yet responded to the case.

If you or a loved one has been denied Medicare coverage of home care, contact an experienced elder law attorney for assistance.

To learn more about New York elder law, New York estate planning, visit

The Importance of Appointing a “Digital Executor” in Today’s High Tech World

Wednesday, December 15th, 2010

With the ever growing popularity of the Internet, important documents are no longer stored solely in safety deposit boxes. Increasingly, financial management is performed online and records are stored on a computer hard drive. In addition to online bank accounts, your digital assets could include business documents, online profiles and auctions, and family photos.

This means that things can become tricky for family members when someone becomes mentally incapacitated or passes away. How would one access those online bank accounts?  What should be done about those social networking site profiles?

Consider appointing a ”digital executor” to handle such needs. The digital executor should be someone who is both trustworthy and digitally savvy. It’s a good idea to provide such a person with a list of usernames and passwords to all important accounts. This list could be printed out or burned onto a CD and given to an attorney or stored in a location to which only the digital executor has access. It is also beneficial to provide this person with instructions about whether certain accounts should be deleted, altered in some way, or passed on to heirs.

While the courts offer centuries of legal precedent concerning real property and paper documents, there are many gray areas when it comes to online recordkeeping. Although existing family members may be able to gain access to online accounts after the owner passes on, the situation can be trickier from a legal perspective if the person is mentally incapacitated. To help avoid any potential problems, it is best to consult your attorney about handling these important details.

To learn more about New York
elder law
, New York
estate planning
, visit

Trusts Are Not Just for the Wealthy

Monday, December 6th, 2010

Think trust funds are only for the wealthy, for those with second homes and extravagant yachts? Think again.

There are several types of trusts available, and they can save thousands of dollars in estate and gift taxes, even if you just own a modest home. Not only that, they are a secure way to manage assets long after you have passed on.

If you have a life insurance policy, for instance, you may wish to consider an irrevocable life insurance trust. Life insurance proceeds are included in your gross estate and, therefore, are subject to federal and state estate taxes. But a life insurance policy owned by an irrevocable life insurance trust is excluded from your gross estate and can save your beneficiaries a huge chunk of money when you pass on.

Another type of trust is the revocable trust, which transfers ownership of one’s assets to a trust during one’s lifetime but also offers details on the distribution of property and assets upon death. The advantage over a standard will is that revocable trusts bypass the probate process. While you can be your own trustee for a revocable trust, you may prefer to name a professional trustee to manage the trust assets, keep good records, pay you a regular income and—should you become incapacitated—pay your household and medical bills.

There are many more options for trusts. To discuss your particular needs, speak to an experienced attorney.

To learn more about New York
elder law
, New York
estate planning
, visit

Difference Between Power of Attorney and Guardianship

Sunday, November 21st, 2010

A power of attorney and guardianship both give an individual or entity the ability to make decisions for another person. But what are the differences?

The power of attorney is a valuable estate planning tool that enables another individual to make financial decisions in your stead at any time, for example, if you become incapacitated or, for some other reason (such as traveling out of the country), are not able to sign necessary documents. The individual, referred to as the “agent” or “attorney-in-fact,” can be a friend, spouse, relative or any other trusted person and may, for instance, be called upon to sell real estate, withdraw money from a bank account, or pay bills. Although you must have capacity at the time you execute your power of attorney, it remains valid in the event that you become incapacitated.

How is guardianship different? Guardianship, which requires court authorization, is only granted when incapacity exists. It encompasses much broader powers than a power of attorney, extending beyond financial decisions to health care and personal affairs, such as routine medical treatment and living arrangements.

With a guardianship, the court will appoint a court evaluator, an impartial person who investigates the issues and reports his findings to the court. The court also conducts a hearing, with witnesses in attendance, during which the court determines whether or not the individual in question needs a guardian and who that guardian should be. Although a friend or family member may petition a court to become someone’s guardian, sometimes the court chooses a financial institution or guardianship agency instead.

To learn more about New York elder law, New York estate planning, visit

When to Hire a Trust Protector

Tuesday, November 16th, 2010

A trust protector is an individual who is responsible for overseeing a trust and its trustees. The concept of the trust protector originated among settlors (individuals who create or establish trusts) who had trusts in offshore jurisdictions. However, trust protectors are becoming more popular as a means of safeguarding trusts established in the United States.

Trust protectors are appointed and granted powers in the trust document. There is no “one-size-fits-all” list of powers a trust protector should be given. A settlor must determine an appropriate level of authority given the settlor’s unique needs. Some examples of duties that a trust protector may perform include:

• removing or replacing a trustee,
• handling disputes between trustees and/or beneficiaries,
• amending the trust,
• adjusting disbursements according to changes in beneficiaries’ circumstances, and
• oversight of investment of the trust’s assets.

There are a variety of reasons for appointing a trust protector. A settlor may have concerns about a trustee’s ability to execute the settlor’s wishes. Or a settlor may want to split administration duties between a trustee and a trust protector. Appointing a trust protector also makes a long-term trust more flexible and able to adjust to unexpected events.

Although anyone may serve as a trust protector, it is generally a good idea to hire an independent third party or professional as your trust protector. An experienced elder law and estate planning attorney can help ensure that a trust protector is given the right balance of power to oversee your trust effectively.

Make Sure Your Will Is Airtight

Monday, November 15th, 2010

People often think that because they have executed a Will, their wishes will be 100 percent honored when they pass on. Unfortunately, that is not always the case.

A Will that is not properly drafted and is not sufficiently specific can result in lengthy court battles. This can lead to disgruntled family members and grudges that last for generations.

A Will that is drafted from an Internet sample may be inadequate for your specific needs. It is best to hire an experienced estate planning attorney who can help you craft a document that is tailored to your situation, meets the statutory requirements for a valid Will, and protects beneficiaries and fiduciaries.

Here are some suggestions for making sure your wishes are honored:

-Keep copies of all correspondence and conversations with the drafting attorney.

-Be sure to update your Will on a regular basis.

-If you have previously executed a Will, destroy it, along with any drafts.

To learn more about New York elder law, New York estate planning, visit

Seniors More Susceptible to Scams

Friday, October 29th, 2010

Some estimate that up to five million seniors are scammed each year in the United States. Financial scams against the elderly are no doubt a big problem and are on the rise.

Why Are Seniors Prone to Scams?

Experts say that seniors are susceptible because they’re usually home when scammers pounce – either in person or over the telephone. The elderly may also be vulnerable because they’re isolated or lonely, are more likely to assume someone is being honest, or may be unfamiliar with their rights.

What Can Seniors Do to Protect Themselves?

-If something sounds too good to be true, it probably is. Many times scammers claim that a victim is eligible for a huge prize but must act quickly and provide important personal information before he “loses it.” Think twice.

-Pay no attention to telemarketers. Many scams are perpetrated over the phone and it may be difficult for seniors to understand fully what they’re getting into. Try placing your number on the “Do Not Call” Registry.

-Never disclose important financial and personal information to a telemarketer or any stranger.

To learn more about New York elder law, New York estate planning, visit

How to Choose an Executor

Friday, October 1st, 2010

Serving as someone’s executor, or personal representative, is a big job that comes with many responsibilities. While being chosen is often considered an honor, there is a lot of work involved, and an executor must be organized, pay strong attention to detail, and capable of meeting deadlines. You may be tempted to name someone in your family as your executor in order to avoid hurt feelings, but your family and heirs will not be well served if you choose your executor based on anything other than ability.

You should consider the following:

  • Choose someone who is trustworthy. Your executor will have knowledge of all your finances. He will be reviewing estate assets, determining your liabilities and paying off creditors, settling outstanding debts, and making distributions to your named heirs. That’s not the kind of information you want spread around, so you’ll need to choose a person who will be discreet.
  • Choose someone who is organized. The person you select will be responsible for a large number of detailed tasks. He will need to make lists of assets, meet court deadlines, and make timely distributions for estate taxes. Not completing these actions in a timely and organized manner can draw out the entire process, costing your heirs time and money.
  • Choose someone who is financially knowledgeable.

If you cannot think of a person you can entrust with all of these responsibilities, you should not lose faith. There are other options for you to consider, such as choosing a bank or a financial institution as your executor. Also, you have the option of asking your estate planning attorney to partner with the person you choose as executor to help with the difficult tasks and ensure a smooth probate for all involved.

To learn more about New York elder law, New York estate planning, visit

Finding the Right Living Arrangement for Your Loved One

Friday, October 1st, 2010

When it comes to living arrangements, senior citizens have many options. They can choose independent retirement communities, assisted independent communities, at-home assisted living, at-home care, live-in nursing homes, and more. While having so many choices to consider can be beneficial, it can also make the search more confusing.

Identifying the right living arrangement for your loved one can be much easier if you know ahead of time the things to look for and the important questions to ask. Here are a number of considerations when evaluating a living arrangement:

  • Make sure the facility you are evaluating is licensed.
  • Ensure that the facility is financially stable.
  • Get referrals from people who have previously conducted such a search.
  • Visit the facility to assess the accommodations and the staff.
  • Ask for the opinions of current residents.
  • Consider whether or not it can meet your loved one’s current and future needs.
  • Ask about payment options (including Medicaid).

Asking these questions will help you find the right living arrangement for your loved one. It is, however, important for you to discuss your choice with your elder law attorney, since nursing home and assisted living contracts can contain unwelcome surprises.

To learn more about New York
elder law
, New York
estate planning
, visit