What is Elder Law?

Are you currently a caregiver?  If yes, you know how much time and energy goes into caring for a sick or disabled person.  Elder Law is the knowledge (or set of laws) our firm implements to help primarily seniors who are sick or disabled to obtain long term care services at home or in a nursing home, paid for by the government so these do not need to burden their family.  More specifically, we utilize these laws to devise a plan to preserve your assets with the use of such documents as Irrevocable Trusts and life estates and enable you to obtain such benefits as Community (home care) and Chronic Care (nursing home) Medicaid, Medicare, and Veteran’s Benefits. Our firm will discuss your individual long term needs and devise a plan based upon your unique situation. 

What is Estate Planning?

Often times people believe that the term “estate planning” refers to the management of affairs for those who are wealthy. However, estate planning is really just the process of obtaining certain legal documents to be sure that your assets and property are distributed directly to those who you intend them to go to upon your passing, and to protect yourself in the event that you become incompetent or ill and cannot direct your own care or your own finances. Estate planning is crucial for peace of mind because it allows you to minimize disputes between your beneficiaries, minimize applicable taxes for your heirs, and choose the right people to help you make financial and medical decisions in the event you cannot.
While everyone’s estate planning needs will differ, Estate Planning can help families prepare for both the present and the future through the use of basic documents such as Last Wills and Testaments, Living Trusts, Powers of Attorney, Living Wills, Health Care Proxies, and more advanced documents such as Irrevocable and Revocable Trusts. Our firm will discuss your individual estate planning goals and devise a plan based upon your unique situation.

Asset Preservation

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For more information on Asset Preservation:

Medicaid and Medicare Planning

Medicaid has a complex set of eligibility rules that are based on a person’s income and assets. Improper planning can jeopardize your property and hard earned assets. Medicaid can use these funds to pay for costs associated with medical care, home care and/or nursing home costs before benefits begin. In order to prevent this from happening, it is critical to prepare a thorough Medicaid plan.

The rules of Medicaid eligibility are complicated and change constantly.  As Medicaid becomes increasingly complex, there are many risks for people who may put off developing/ executing a plan. Our staff is well versed in the numerous requirements associated with Medicaid. We will meet with you and prepare a comprehensive evaluation of your family’s financial situation. Planning recommendations can be designed to preserve our client’s assets for family members to the maximum extent possible. We can also assist with completing the required documents to successfully apply for Medicaid benefits.

For more information on Medicaid and Medicare Planning:

Power Of Attorney

A Power of Attorney is a document in which you designate one or more persons to manage your finances or act for you if you are unable to do so. It can be limited to specific matters or drafted to give the appointed person(s) authority to act on your behalf. The duration of the authorization can be limited or open-ended. Power of Attorney gives the person designated the ability to act on your behalf with financial institutions, insurance companies, tax authorities and other governmental agencies.

The assigned agent can also be given the authority to transfer or gift funds to implement an asset protection plan and/or for Medicaid planning purposes.

A Power of Attorney is a formal document that should be prepared by an attorney and signed under an attorney’s supervision. This is particularly true in New York, which has specific laws governing the requirements.

For more information on Powers Of Attorney:

Long-Term Care Coordination

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For more information on Long Term Care Coordination:

Health Care Proxies

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For more information on Health Care Proxies:

Revocable Trust

Much has been written regarding the use of “living trusts” (also known as a “revocable trust,” “inter vivos trust,” or “loving trust”) as a solution for a wide variety of problems associated with estate planning that wills cannot address. Some attorneys regularly recommend the use of such trusts, while others believe that their value has been somewhat overstated. The choice of a living trust should be made after consideration of a number of factors.

The term “living trust” is generally used to describe a trust that you create during your lifetime.  A living trust can help you manage your assets or protect you should you become ill, disabled or simply challenged by the symptoms of aging. Most living trusts are written to permit you to revoke or amend them whenever you wish to do so.  These trusts do not help you avoid estate tax because your power to revoke or amend them causes them to continue to be includable in your estate.  These trusts do help you avoid probate, which may not always be necessary depending on the cost and complexity of probate in your estate.

For more information on Wills and Trusts:

Irrevocable Trust

An irrevocable trust is a type of trust where its terms cannot be modified, amended or terminated without the permission of the grantor’s named beneficiary or beneficiaries. The grantor, having effectively transferred all ownership of assets into the trust, legally removes all of their rights of ownership to the assets and the trust.

For more information on Wills and Trusts:

Pooled Trust

A pooled trust is a trust established and administered by a non-profit organization. A separate account is established for each beneficiary of the trust, but for the purposes of investment and management of funds, the trust pools these accounts. For self-settled, or (d)(4)(C) pooled trusts, each subaccount is established by the person with a disability, a parent, grandparent, guardian, or a court, and the trust is funded with the assets of the person with a disability. The trust provides that, upon the death of the disabled beneficiary, if there are funds remaining in the beneficiary’s subaccount, the trust must pay to the state an amount up to the total amount of Medicaid assistance provided to the beneficiary, to the extent that the funds are not retained by the trust. The pooled trust should be irrevocable to avoid being treated as a resource.

Third-party pooled trust subaccounts can also be established by family members who want to leave inheritances for persons with disabilities. Because these accounts are not funded with the assets of the person with a disability, they do not include a Medicaid payback provision. The remainder of this article will discuss the self-settled (d)(4)(C) pooled trust.

For more information on Wills and Trusts:

Spousal Refusal

Spousal refusal is a legally valid Medicaid planning option in just two states: New York and Florida. By way of background, certain income and assets are exempt from Medicaid if there is a spouse. Generally, the spouse at home, known as the “community spouse” may keep about $3,000 per month of the couple’s combined income and about $100,000 of the assets or “resources”. Not included in those figures are any other exempt assets, such as a home and one automobile. The spouse who is being cared for in a facility is known as the “institutionalized spouse”.

Many a spouse has advised us that they simply cannot afford to live on the allowances that Medicaid provides. This is where spousal refusal comes in.

For more information on Spousal Refusal:

Gift Tax and Medicaid

The annual gift tax exclusion is an amount you can give away per person, per year, tax-free. Gifts given as either lump sum amounts or as a series of amounts to the same person over the course of one year aren’t taxed if the total doesn’t exceed $15,000 as of 2019.

If you (or your spouse) go into a long-term care facility or nursing home and apply for Medicaid, there is a penalty imposed on recent gifts. Specifically, gifts made within the last 60 months, or five years, prior to applying for Medicaid.

The IRS annual gift exclusion does not provide any exemption from the Medicaid look back period. If you (or your spouse) made a gift within the prior five years, the result will be a penalty period from Medicaid coverage.

For more information on Gift Tax and Medicaid: