Inna Fershteyn - Trust and Estate Planning Law Office

Looking Ahead: Estate Planning for Early Onset Alzheimer’s and Dementia

Alzheimer’s and dementia are two of the most common fears that come with age, especially if you have a genetic predisposition to these diseases. The tragedy of these conditions is that there is truly nothing you can do to stop yourself from losing your memory. However, as you face this stark reality, it is important to be aware that there are steps that you can take, from a legal perspective, to set up your descendants for success before it is too late. When creating an estate plan, you must legally be of sound mind. If the attorney has any doubt that you have the capacity to make your own decisions, they are obligated by law to consult with a doctor. If you are at risk for developing early-onset Alzheimers, it is important to avoid delaying your estate planning journey.

Appointing a Power of Attorney

One of the most integral steps to take if you are at risk of developing Alzheimer’s or dementia is appointing a power of attorney. This allows you to communicate your healthcare preferences through legal documents. This also ensures that your medical and personal care decisions are aligned with your values and preferences, even when you are no longer able to make decisions due to cognitive decline.

A power of attorney should be bestowed on the person that you trust most to make medical decisions on your behalf when you are no longer able to do so. Your healthcare proxy will be the person advocating for you and reflecting your wishes. A durable power of attorney is equally as important. The person that you chose for this role will handle your financial affairs, pay bills, manage investments, and make any decisions regarding property or the law on your behalf.

The Living Will

The fear with Alzheimers is that you will one day no longer be able to take care of yourself, and that you must rely on others to make decisions on your behalf. Perhaps the single most essential document in estate planning for early-onset Alzheimer’s and dementia is your living will. This document is crafted while you are in a sound state of mind, able to think critically about your future. A living will can contain any and all of your wishes for how you hope to live out the rest of your life. It gives you power over your future and gives advance directives to the people responsible for taking care of you. Your living will should include preferences for medical treatment and end-of-life care as well as your desires for life-sustaining treatment, organ donation, and other critical decisions.

Other Estate Planning Considerations

Just as you would with an ordinary estate plan, it is important to think about all of your assets and what you want their journey to be. There are various types of trusts that can be used to pass down different types of assets in a wide range of formats. While you can still make decisions, it is up to you to secure both your own financial future and the future of those you care about. You will need to designate guardianship for minors if you have children you will not be able to care for in the event of an early-onset of the disease. You should also consider your long-term care options and how they will affect your assets.

If you plan to go to a long-term care facility or receive government-subsidized at-home care, there are important considerations. Nursing homes and other long-term care facilities will drain all of your assets, even liquidating properties, before turning to state-subsidies. In order to protect the financial futures of your beneficiaries, it is important that you set up an irrevocable trust. An irrevocable trust separates the ownership and control of the assets it holds. This means that you can continue living in your house, but since the asset is no longer legally owned by you, it cannot be targeted by nursing homes or other creditors. After you pass away, the house will safely go to your beneficiary.

Navigating this process is extremely difficult, and likely impossible, without an experienced attorney by your side. A good attorney will set you up for success to the best of their ability in your personal, financial, and medical future. If you have any further questions about when it is the ideal time to begin your estate planning journey, please call the Trust and Estate Planning Law Office at (718) 333-2395 to take your next steps.

Shielding Seniors from Online Romance Scams

Life hits you fast when the online partner that you are in a romantic relationship with runs off with not only your dreams of marriage, but also $39,000 and your pension. This happened to Kate Kleinert, a 69 year old widow who found herself lonely during COVID. Her encounter on Facebook with an alleged Norwegian doctor dispatched to Iraq resulted in her losing not only her hopes for love, but also a large sum of money. Unfortunately, Kate's story is just one of many in a growing trend of romance scams that have cost elderly individuals a staggering $304 million, a number significantly higher than it was five years ago. Let's delve into the reasons behind this surge in scams and the serious repercussions they bring.

What do romance scams look like?

While young people can also fall victim to online scams, older individuals, particularly those over the age of 40, are more susceptible to romance schemes. The elderly, including widows, widowers, and recent divorcees, are especially vulnerable to emotional manipulation due to isolated living circumstances. Scammers prey on this vulnerability, knowing that older adults usually have more financial resources, such as retirement funds, investments, and savings, making them attractive targets. These online romancers will say anything to exploit their victims' emotions and financial situation, even luring them with the promise of marriage to lower their defenses.

Typically, the victims of romance scams meet their phony lovers on dating websites or apps. The scammers use pictures of random people they find online to create fake identities and initiate conversations. They engage in intimate chats and exchange photos, leading the victims to believe they are in a genuine relationship. Once they have gained the victim's trust and affection, the scammers create a story about a supposed problem that requires a certain amount of money to be solved. Out of love and a desire to help their supposed partner, the victim sends money. However, this is rarely a one-time occurrence. The scammers continuously create new problems that require more money, draining their victims emotionally and financially until there is nothing left. Some victims find themselves endlessly manipulated, even after they have exhausted their funds. This is exactly what happened to Kate Kleinert.

The European Lover

In Kate's case, she met a person posing as a Norwegian doctor named Tony in 2020. Kate, a 69-year-old widow, made a fateful decision when she accepted a Facebook friend request from an attractive stranger. After a few months of daily messaging, Tony asked her for money. Although it should have been a red flag, Kate obliged, and over time, she sent nearly $39,000 in gift cards to Tony. He depleted her savings, her deceased husband’s life insurance, her pension, and money from Social Security. The financial loss was heartbreaking, but what hurt her even more was the loss of the love and family she thought she was going to have with Tony.

Unfortunately, this deception doesn't stop with Kate; many older adults have fallen victim to these scams. In a recent NYT article, Michael Delaney, an elder law attorney in Chicago, recounts stories of adults taking out mortgages on their homes, borrowing money from neighbors, and emptying their retirement accounts to maintain fraudulent connections. The harm persists until a concerned loved one intervenes. However, when victims report the incidents to authorities, they often receive little help as the scammers frequently use foreign IP addresses, making it difficult for law enforcement to track them down. The aftermath leaves victims emotionally devastated and financially devastated, seeking alternative sources of support, like GoFundMe campaigns, to make ends meet. Even after Kate changed her online privacy settings, months later Tony managed to reach back out to badger her for money. He told her, “I know you have money. I saw your GoFundMe page”.

Tips to Avoid a “Tony” Mishap

So, how can we protect ourselves and our loved ones from falling into a "Tony" mishap? First, we should spend quality time with our older loved ones, especially those who might feel isolated or are grieving the loss of a partner. By offering companionship, we can help reduce their vulnerability to romance scams. We should also educate them about the risks of online relationships with strangers and help them spot potential red flags.

Additionally, research should be done to verify the identity of potential online partners. Video calls are a great way to confirm someone's identity, but if that's not possible, checking for consistent online profiles and reverse image searches on Google can help identify fake accounts. If a personal social media account has a lot of information posted within a short timespan, chances are that the profile is a ruse.

Above all, trusting our instincts is vital. If something feels off or too good to be true, it probably is. Being cautious, especially when asked to send money to someone you haven't met in person, is essential. Seeking a second opinion from a trusted friend or family member can help avoid falling victim to these scams.

Taking everything into account, online romance scams pose a significant threat, particularly to vulnerable individuals like Kate Kleinert. The emotional and financial toll inflicted by these heartless fraudsters highlights the need for increased awareness and caution. To protect our loved ones, especially older adults, spending quality time with them and promoting digital literacy can help reduce the risk of falling prey to these manipulations. By fostering open conversations and trust, we can create a safer online environment where genuine connections flourish, shielding hearts from the deceptive tactics of romance scammers. If you and your loved one find yourselves in the midst of a romance scheme, please call the Trust and Estate Planning Law Office at (718) 333-2395 to take your next steps.

Article 81 Guardianship of an Incapacitated Adult in New York

As people age, they gradually lose the ability to care for themselves. There are also occurrences when a person becomes physically incapacitated and is unable to function without supervision as a result of physical impairment. Although these can be unpleasant situations for families, New York has provisions to provide care for those who can no longer care for themselves. One of these provisions is Article 81 of New York’s Mental Hygiene law, otherwise known as Article 81 Guardianship, which authorizes a court to appoint a guardian to manage the personal needs and/or finances of a person that cannot handle them on their own. The process of petitioning for guardianship is relatively swift and the powers of a guardian depend on the condition of the incapacitated person. However, all decisions must be rendered by a judge and approved by the court. During the petition process for guardianship, having an experienced guardianship attorney will help alleviate the burden placed on any family and ensure that guardianship hearings end favorably for the petitioning parties and all necessary powers are placed in the hands of a trusted guardian.

When Does Article 81 Go Into Effect?

Article 81 Guardianship is an authorization given by a court to a guardian to manage the personal and/or financial matters for a person that has been deemed by the court as incapacitated. Capacity refers to the ability for an individual to make decisions for themselves Each Article 81 Guardianship case is different because they involve different levels of incapacity and different powers allocated to each guardian. In an article 81 case, incapacity refers to common mental disabilities such as dementia, Alzheimer's, and physical impairments. The moment that an individual is proven to be mentally disabled, they are no longer legally eligible to sign any estate planning documents. Therefore, it is crucial that a healthcare proxy and power of attorney are signed beforehand in a right state of mind.

Some guardians might be given the authority to pay bills for an incapacitated person while others are given the authority to prevent self-neglect since the individual is unable to provide adequate medical and hygienic care for themselves. Other guardians might be given the authority to prevent financial abuse because elderly financial exploitation is an ever-present and fast-growing danger, or physical abuse, whether by family members, acquaintances, or those providing care. Guardians might also be authorized to engage in Medicaid and estate tax planning. In any case, having an experienced elder planning lawyer is important so that all powers can be assigned to trusted guardians and then enforced properly.

The Process of Petitioning for Article 81 Guardianship

Petitioning for Article 81 Guardianship is a serious matter and thereby has a dedicated and intricate process. In order to obtain Article 81 guardianship, a petitioner must file a case with the Supreme Court or county court where the incapacitated person lives. At the beginning of each Article 81 case, the person on whom’s behalf the petition is being filed is referred to as an “alleged incapacitated person” because their inability to care for themselves is, at the point, only an allegation. To begin an Article 81 case, the petitioner must complete four steps:

1. Fill out the following forms:

A petition: A written order asking the court to start a case.
An order to show cause: A written request asking the court to rapidly open a case which will also be used to inform the alleged incapacitated person that an Article 81 application has been filed in court and lists the powers the petitioner believes the guardian should have over alleged incapacitated person, among other things.
A request for judicial intervention: A request for a judge to be assigned to the case.

2. File a guardianship petition.

3. Pay a filing and index number fee.

4. Serve legal papers to all people involved in the guardianship case, including the alleged incapacitated person, within a time frame set by the court.

Once the Article 81 case is filed by the petitioner, a hearing presided over by a judge will occur within 28 days after they sign the order to show cause. The court will appoint an evaluator to speak to the alleged incapacitated person, evaluate evidence, and present a written report. After the written report is presented, a formal hearing takes place where a petitioner presents their case stating why the alleged incapacitated person needs a guardian, testimony is heard, and evidence is considered. At the end of the hearing, the judge will determine whether the alleged incapacitated person is indeed unable to handle their personal or financial matters and whether they appreciate the consequences therein of not being able to handle such matters. They then will attempt to find the least-restrictive remedy to protect the alleged incapacitated person’s independence as much as possible. If the incapacity is sufficient enough that the judge deems guardianship necessary, they will determine the powers allocated to the guardian, whether more than one guardian will be appointed, and the duration of the guardianship. After a guardian is appointed, the petitioner must have an order and judgment form signed by the presiding judge, and then send it, along with a notice of entry, to all those who received a copy of the verified petition. All guardians must complete a six-hour course where the duties of the guardian are explained.

The Implications of Article 81 Guardianship

As outlined above, petitioning for Article 81 Guardianship is an intricate process which should not be taken lightly. In the event that an alleged incapacitated person has not pursued a health care proxy or power of attorney prior to being diagnosed with a cognitive disability, an Article 81 proceeding is one of the few ways where an individual can obtain agent status over them. It is also important to note that courts can appoint temporary guardians or neutral guardians in the event that petitioners cannot agree on a guardian between themselves. Accordingly, it is crucial to find unanimity on an appropriate guardian and plan for all eventualities, no matter how unpleasant they might be to contemplate. Having frank discussions with aging relatives about the possibility of medical emergencies and incapacities can help to ease tension and ensure that the aged person understands there is a plan in place for their care. Having an experienced elder planning attorney will help in creating the best possible long-term health plan and ensure that guardianship hearings end favorably for the petitioner. To ensure appropriate care for a loved one and begin planning their estate, call the Trust and Estate Planning Law Office at (718) 333-2395.

“I Care A Lot” reveals the unfortunate reality of POA and Health Care Proxy

In 2021, Netflix released the movie “I Care A Lot.” In this film, a rich Marla Grayson repeatedly convinces the court that elderly individuals are not mentally stable and need to be taken care of. After the court grants her guardianship, she moves her victims into an assisted living facility, sedates them, and takes their phones to ensure zero contact with the outside world. During this period, Marla sells her client’s properties, cars, and assets and banks the profit. However to her surprise, her next victim Jennifer Peterson is a lot harder to manage. Peterson’s son is a dangerous mafia boss who makes it his mission to make Marla’s life miserable and release Jennifer from the assisted living facility. While the film is intended to be a satirical and dark comedy, it references many financial and healthcare issues that could have been prevented with a definitive estate plan that included a Power of Attorney and Healthcare Proxy.

“I Care A Lot” Teaches Valuable Estate Planning Lessons

One day, Marla knocks on Jennifer's door and randomly presents herself as a newly appointed guardian. This could have been prevented if Jennifer, an extremely wealthy elderly woman, had appointed a power of attorney and healthcare proxy. While many often believe the two tackle the same problems, that is incorrect. A power of attorney appoints someone to take care of financial decisions for you. On the other hand, a healthcare proxy appoints someone to make medical decisions for you when you are no longer mentally or physically capable to do so.

Real-World Implications

Although the film is clearly intended to be satirical and dramatizes the life of a fraudster, elder financial exploitation is no laughing matter and has been on the rise. According to a 2018 article from the Securities and Exchange Commision, a study in New York state found that financial fraud cost elderly victims $109 million, though that number is likely much higher due to underreporting and the higher occurrence of healthcare fraud since the beginning of the COVID-19 pandemic. An article from the American Bankers Association reports that financial crimes cost elderly victims $2.9 billion in 2022. Elder financial abuse is among the most frequent forms of elder abuse, and elderly people are more likely on average to be targeted for financial fraud. Two factors in the prevalence of elderly financial exploitation are social isolation and mental impairment. Those older persons without close family or friends and those with physical or mental impairments such as Alzhemeir’s are more likely to be victims of financial crimes and are the preferred targets of fraudsters.

Elder financial exploitation takes many forms. In some cases, it may involve a caregiver convincing the victim to sign over to them their power of attorney. In other cases, it might involve a caregiver stealing a victim’s cash, cashing their social security checks, or using their credit cards. In more extreme cases, it might involve the victim signing over inheritance rights to real estate or savings accounts to “new best friends” or previously uninvolved relatives. Because there are no physical signs of abuse, elder financial exploitation can be extremely difficult to catch and can continue for years before irregularities are finally realized.

How To Protect Your Loved Ones

To protect your loved ones from potential exploitation, it is important to look for warning signs and report them immediately. It is also important to familiarize yourself with the wide-range of warning signs and the organizations dedicated to investigating and preventing elder financial exploitation. Some warning signs include fraudulent signatures on financial documents, unpaid bills that had previously been recurring automatic charges, sudden changes in a person’s will, trusts, or insurance coverage, and an unexplained transfer of assets to a caregiver or unknown third-party. This list is not exclusive, as fraud can occur through investments and annuities, telephone “sweepstakes” scam, and phony home-repair charges.

Some of the many helpful organizations at your disposal include the Adult Protective Service, National Elder Fraud hotline, and Long-Term Care Ombudsman programs. An experienced elder planning and Medicaid fraud attorney will also help in perceiving cases of fraud and contacting the proper authorities. In addition to these resources, it is important to be open and honest when discussing finances with your loved ones. Never sign a financial document without a second opinion, and never feel pressured to engage in a business dealing or investment. Report anything you feel uncomfortable about to your loved ones or the proper authorities. Above all, do not remain silent!

Conclusion

The satirical “I Care A Lot” is a worthy watch and certainly has its humorous moments, however it is most important to heed its lessons. Elderly people are at particular risk for financial crimes, and they are often the preferred target for fraudsters because of their perceived vulnerability and fragile health. Although the signs of exploitation and fraud are varied and sometimes hard to spot, remaining vigilant and engaging in frank financial discussions with your loved ones will help protect you from becoming a victim. Having an experienced estate planning and asset protection lawyer in your corner will also help you to prevent any potential damaging financial occurrences. For all your asset protection needs, call the Trust and Estate Planning Law Office at (718) 333-2395.

Why is it important for Black families to write a will?

Writing a will is not just an administrative task—it is a critical step that ensures your loved ones are provided for even after you are gone. Surprisingly, many individuals, including celebrities, neglect this essential aspect of estate planning. A-listers such as Chadwick Boseman, John Singleton, and PnB Rock tragically passed away without a will in place, leaving their hard-earned legacies to be tangled in lengthy and costly probate battles. However, it is Singleton and PnB Rock’s estate that draws our attention, serving as recent and instructive case studies from which we can learn valuable lessons.

Estate Planning Within the Black Community

Startling statistics from a recent 2021 survey on wills and estate planning reveal a stark reality: while 33% of Americans have taken the crucial step of creating a will, only 27.5% of Black Americans have done the same. It is estimated that over the next 25 years, $68 trillion will be transferred from American households to inheritors and charity. However, due to the underrepresentation in estate planning, the Black community stands at risk of missing out on a substantial portion of this transformative wealth transfer.

The confusing reality of wealthy individuals, including Black celebrities, who fail to establish a will after their passing raises a fundamental question: How could individuals with significant wealth find themselves in such a vulnerable position? The answer lies in a larger issue: the lack of emphasis or education surrounding the importance of wills and estate planning, not only for these individuals but also within the broader Black community.

This can be attributed to various complex reasons such as redlining, a discriminatory practice that emerged in the 1930s and refused financial services to individuals on the basis of race and ethnicity. Through this practice, segregation was reinforced as limited housing opportunities forced Black individuals into concentrated pockets for poverty thus limiting the ability to move into more prosperous neighborhoods. Concentrated pockets of poverty translates to restricted access to quality education, healthcare, and job opportunities. All of these factors have an impact on knowledge of wealth building opportunities such as estate planning to this day.

The Case of John Singleton

John Singleton is a Black film director, screenwriter, and producer who passed away in April 2019. He’s best known for his film debut “Boyz n the Hood”, and most recently his work as co-writer for the Hulu Original “Snowfall”. At the time of his death, his estate was valued at $6.8 million. The contents of his estate include a Los Angeles home, a 1999 Lexus, a 2003 Mercedes Benz, a 2012 sailboat, ownership of 70% interest in Crunk Pictures, LLC, and was the owner of the New Deal Productions that was valued at $3.2 million.

However, at the time of his death, Singleton had no trust and an outdated will that was created in 1993. He was a father to several children, but only his eldest daughter was included in the outdated will. As one can imagine, when it came time to settle the distribution of his estate, his children were in a battle to acquire their portion of the foregone estate. This battle began after the Singleton’s passing in 2019 and recently ended in February 2023. This is a testament to the extensive process of probating. Aside from the tragic passing of Singleton, another tragedy is the effect probating has had on his family. For the past 4 years, the Singleton family have slandered each other on social media amid discourse about various subjects, but specifically about the distribution of the estate. This not only tarnishes the household name, but also the grieving process. This could have been avoided had the will been updated.

PnB Rock and the Importance of a Will When You’re Young

The rapper and singer PnB Rock is another example of a celebrity who made the mistake of not writing a will. PnB Rock passed away in September of 2022, and left behind Stephanie Sibounheuang, his girlfriend and the mother of his daughter. On Instagram LIVE, she shared that her boyfriend had no life insurance or a will. “We didn’t have nothing set up. We’re so young, we didn’t plan on death. I don’t get no death benefits. I don’t get nothing.” Furthermore, the mother of his child, due to the absence of a will, has been faced with the task of providing for herself as well as her child on her own.

Writing a will is essential to making sure your loved ones are taken care of. No matter how young or old you are, having a will should be a priority. Life is unexpected and as Sibounheuang stated, they were so young that they didn’t plan on death. Death is not something that can be planned but an estate is. Writing a will seems intimidating to many, but with help from a credible attorney, the process will be made simpler.

The trust and estate planning office specializes in wills and trusts while also understanding the unique challenges faced by Black Americans when it comes to estate planning. In addition to Inna's impressive credentials, our clients have consistently praised her compassionate approach to addressing their concerns during what can be a stressful process. One client expressed, “First she made you feel at ease with [the] entire process and spoke to my family very frankly and openly giving them episodes from her experience [of] how something could go wrong so they had a good idea of what type of trust they need to set up.” When seeking will and trust services, Inna Fershteyn is the professional to trust. To begin drafting your will today, please contact our dedicated Trust and Estate Planning Office at 718-333-2395.

How do Non-marital Children Inherit Wealth Under NY State law if their Parents Die Without a Will?

Loved ones are not always family by blood, especially as the traditional, “nuclear family” structure is fading in frequency. In the eyes of the law, a legal family may differ from what society typically defines as a family unit. While this distinction may seem unfair, it is important to understand that there are specific measures one must take to align legal status with emotional and familial bonds. When you die without a will, or die intestate, your assets go through the probate process and then are distributed according to the law. Not only do legal beneficiaries often lose money to probate fees, but New York State law only takes into account legally named children as beneficiaries. By creating a strong estate plan, you will ensure that those you love, no matter your relationship, will inherit the assets you believe they deserve.

New York State Intestate Law and Nonmarital Children

Intestate laws, which govern the distribution of assets when someone passes away without a valid will, vary depending on your state. New York State intestate laws are intricate and often difficult to understand. These laws may not align with your desired outcomes or yield ideal results for you and your family structure. To briefly outline basic New York intestate law:

If the deceased has a spouse, the spouse inherits everything
If they have a spouse and children, then the first $50,000 plus half of the balance goes to the spouse while the children inherit the remaining half of the balance
If children die prior to the deceased, then grandchildren step into the role and inherit instead of the children

It is important to note that while adopted children inherit assets like a biological child, foster children and stepchildren are only allowed to inherit if they are legally adopted. Non-marital children, or children born to an unmarried couple, will inherit from their mother automatically without any further requirements. However, non-marital children will only inherit from their father when paternity is established. Paternity can be established through legal acknowledgment by the father, court determination, or genetic testing. If a non-marital child dies, their spouse, mother, and maternal family are automatically entitled to their estate. The father and paternal family are also included, provided that paternity has been established. There are more layers to New York State intestate law, but in summary, it is very complex and does not often act in your favor if you have a non-traditional family structure.

In the event that a father figure dies prior to establishing legal paternity or an estate plan, a nonmarital child can still inherit wealth if they file a paternity petition with a family court and win their case. If it is possible to show DNA results, legal documents, or any other proof that would be accepted in a court of law, they can obtain a share of their father’s wealth. However, this is a lengthy process and it is often difficult to establish paternity after the father has passed, especially with no DNA test. After paternity has been established, the nonmarital child can assert their inheritance rights as a legal heir and file a petition with the probate court to make a claim against their parent’s estate. This process is filled with unpredictability and it can be months or even years before the case is resolved. As nonmarital parents, it is wise to consult with a knowledgeable estate planning attorney in order to explore your options to ensure that your child and assets are protected in the event of your passing.

Avoiding Probate

Creating an estate plan is a proactive and prudent step that can help you avoid the headache that comes with the probate process. By meticulously crafting an estate plan, you can ensure that your assets are distributed according to your wishes. Life flies by quickly, and you never know what might happen tomorrow, so it is never too early to make an initial plan. You must also acknowledge that estate planning is not a one-time endeavor. It is important to routinely update your estate plan when important milestones occur such as getting married, accumulating new wealth, and welcoming children. A well-thought-out and comprehensive estate plan goes beyond asset distribution, encompassing many different elements such as the establishment of trusts, designation of beneficiaries, appointment of guardians for minor children, and planning for tax implications. By considering all of these aspects, you will maximize your personal benefit and the benefit for your inheritors. This is especially important for parents of nonmarital children, specifically fathers, because New York Intestate law will not be on your side. By taking the time to create and regularly update your estate plan, you inevitably gain control over your financial legacy and ensure that your hard-earned assets fall into the desired hands.

Estate planning can be a daunting task, and most people do not want to engage in such a process because it forces them to face their mortality. However, no matter how old you are, if you have any assets that you see as valuable, it is essential that you set up an estate plan. Estate planning gives you autonomy over who your assets go to and it helps descendants avoid dealing with the taxing probate process after you pass. In non-traditional family situations, estate planning is essential because New York State intestate law does not often work in your favor. It is important to have an experienced attorney by your side throughout your estate planning journey to help maximize the benefits and minimize the long-term costs. If you have any further questions or are ready to begin your estate planning journey, please contact the Trust and Estate Planning Law Office at (718) 333–2395.

How Can I Increase My Home Attendant Hours?

The process of applying for a home attendant requires many documents and a lot of patience when waiting for a response. Medicare typically provides home attendant assistance for a maximum of 28 hours per week, and in some cases, up to 35 hours per week. However, for many elderly individuals who are incapable of walking, cooking, and showering by themselves, around the clock attention is crucial. Oftentimes, the process of increasing home attendant hours is even more gruesome. Medicare will justify any reason against extending current hours and make the vulnerable individual’s life easier. In this article, the Trust and Estate planning office will explore ways to maximize the amount of home attendant hours so that you or a loved one can receive the care that suits your needs.

Understanding The Current Home Attendant System

To receive at-home medical care, the applicant needs to fit multiple criteria. Primarily, you will receive a physical assessment to determine whether or not you are eligible for the program as well as assess the amount of hours you will receive each week with a home attendant. A physician's recommendation is often required to support the need for a home attendant. In many cases, patients may receive less hours than they feel is necessary. In these cases, there are various ways to obtain additional home attendant hours. It is important to assess each option to determine which one works best for you.

What You Can do to Receive Additional Home Attendant Hours

Medicare advantage plans- A Medicare advantage plan, or Medicare part C, is an alternative way to obtain additional home attendant hours. These plans are offered by private insurance companies that are approved by Medicare. Depending on the plan that you chose, they will provide the benefits of Medicare as well as additional services and coverage. For example, if Medicare provided you with a limited number of home attendant hours, a Medicare advantage plan can cover the costs of additional hours if needed.
Medicaid waiver programs- Some states have implemented Medicaid waiver programs in which Medicaid and Medicare can work together to fulfill the needs of those who require additional support. This program will allow you to receive additional home attendant hours if eligible and allows individuals who require constant care to reside at home rather than a nursing facility. However, these programs have many eligibility requirements, including proof that you need an equivalent amount of care that you would receive in a nursing home. If you believe that you qualify for additional care, consulting with a knowledgeable and experienced attorney will assist you in applying to these programs.
Appeal the decision- If you disagree with the amount of home attendant hours Medicare has provided, it is in your best interest to file an appeal as soon as possible. Attorney Inna Fershteyn is an experienced and proficient attorney who will help you appeal a Medicare decision pertaining to your home attendant hours and provide you with additional care if you feel it is necessary. Consulting with an attorney regarding your appeal can relieve stress and increase your chances of approval. Additionally, if your home attendant hours were reduced by Medicare, appealing the decision can help restore your initial amount of hours.

In 2020, Attorney Inna Fershteyn was introduced to a case in which a client’s home

attendant hours were reduced substantially although the client required round-the-clock care. Attorney Inna Fershteyn helped this client win a fair hearing and ensured that their amount of care would be restored to the original amount of hours.

CDPAP- The Consumer Directed Personal Assistance Program is a Medicaid program which allows an individual to designate a family member to be a home attendant and get paid hourly in the process. Although Medicaid pays for up to sixty hours of care based on eligibility, home attendants may apply to get paid overtime which will compensate for additional services.
Request a physical reassessment- Before receiving a home attendant, a patient must undergo a physical examination to establish their eligibility and the extent of care necessary. A physical reassessment can reevaluate your necessity for additional care and can grant you extra home attendant hours.

How can I benefit from an attorney in this process?

If you or a relative feel that you need to increase your home attendant hours for any amount, but your claim has been unfairly denied, a Medicaid attorney will help. In fact, consulting with a knowledgeable attorney is the best approach to take in preparation for a fair hearing or challenging Medicare’s response. Inna Fershteyn has over 20 years of experience helping clients extend their home attendant hours. She will assist you by preparing a strong application for CDPAP, Medicaid waiver programs, or Medicare advantage plans. Most importantly, she will attend to your emotional needs through this long winded process. If you believe that you require additional home attendant hours and fit all of the requirements, yet your request has been unjustly denied, please contact the Trust and Estate Planning Office at (718) 333–2395.

Is it Worse to Die Without a Will in New York or New Jersey?

There comes a time in everyone’s lives when they ask the question –– do I need a will? The answer is indubitably yes, everyone needs a will. When someone dies without a will, all of their assets, with the exception of assets that are held jointly or that require a named beneficiary upon creation, are distributed based on a state’s intestacy laws. A will is a document that lists the individuals your assets will be allocated to in the event of death, and having such a document can save your loved ones a lot of time, angst, money, and even legal fees. To get a basic sense of state intestacy laws, we can compare New York and New Jersey.

Dying Without a Will in the State of New York

If you die without a will in the State of New York, your surviving spouse inherits the entire probate estate if there are no children or other descendants. In the case that there are children, the surviving spouse inherits the first $50,000, and the remaining balance is divided in half between the spouse and children.

If there is no surviving spouse but there are children, the entire probate estate will be passed to those descendants. The children will take their share of the probate estate “by representation”, meaning that the assets will be divided equally among the members of each surviving generation, or the generation nearest to the deceased ancestor. If the individual does not have a surviving child or spouse, the probate estate is allocated to the deceased's parents and divided equally.

In the absence of any direct surviving family, the probate estate will be divided in half between the deceased person’s maternal and paternal relatives. The specified order in which the probate estate is passed down begins with the grandparents on either side and subsequently moves to the first cousins once removed. If the surviving relative closest to the deceased is a second cousin or more removed, the probate estate passes to the State of New York.

Dying Without a Will in the State of New Jersey

In contrast, New Jersey law distributes assets through a “branch system”, where priority is strictly given to the deceased’s surviving spouse if there is no written will. In this case, the spouse inherits the entire probate estate. From there, the situation becomes increasingly complex if children from different spouses and partners are involved. For example, if the current living spouse has children with the deceased, but also with someone else, the spouse will inherit 25% of the deceased’s estate – no more than $200,000 and no less than $50,000 – then the spouse will get half of the remaining estate while the deceased’s children split the other half. In the event of no surviving children or grandchildren, then parents, siblings, and siblings’ descendants are next in line. If no one in the second branch is alive, the last branch consists of grandparents, aunts and uncles, and descendants of aunts and uncles. If no one in the last branch is alive, and there is no living spouse, then unadopted stepchildren get the last chance to inherit before the deceased’s probate estate is seized by the state.

Which is Worse?

Compared to New York, New Jersey’s intestacy laws are much more intricate, and, many times, your money may not be passed down in a direction that seems appropriate to you.

The best way to prevent these headaches is by having a written will. A will gives you autonomy, and is a safe way to ensure that your assets are allocated to the people that you believe truly deserve to benefit from your life’s work. No matter how big or small of an impact you believe your assets will make, it is important to have a plan and give you and family peace of mind. If you have any further questions or are ready to begin your estate planning journey, please contact the Trust and Estate Planning Law office at (718) 333–2395.

Why Are Trusts Needed to Protect Your Assets From Being Seized?

In New York since the 1980s Businessmen have found legal ways to target homes in Black and Latino Neighborhoods. New York City today is filled with opportunities to make a profit off long-time homeowners, many of whom do not leave wills. Even if the homeowners do leave a will, they are written in a manner that can be questioned and taken through litigation which is timely and costly. Under New York City Law anyone who has a percentage of interest in a property has the right to go to court and demand a judge to order the sale of said property. Which would split the proportional proceeds among the recognized shareholders.

This is what happened to several families in NYC for years now, with Business men like Eddie Doran targeting families, such as Deborah Thomas for their properties. Aston Smith bought his home in 1995, which was co-owned by his wife Deborah Thomas and his mother who passed away. After his mothers passing his estranged brother Raymond Smith inherited half of the real estate which included a little over 16% of Aston Smiths home. Doran and his co-investors found Raymond and bought his share, therefore, becoming co-owners of Aston Smith’s home. To avoid the costly nature of litigation and the risk of losing their home they paid the co-investors and Doran $235,000 even though they only bought the share for $65,000. This has happened to several communities that are on the verge of gentrification in New York City.

To protect your home and your assets so you don’t fall victim to this target in New York City consult with a well versed Estate Planning Attorney, Inna Fershteyn. The Law Office of Inna Fershteyn, will assist you with your will or trust, review documents to ensure if they should be signed or not in terms of your estate, and assisting you in setting up a detailed will or trust to ensure your loved ones or you do not become targets of these NYC businessmen.

For further Estate Planning inquiries please contact the Law Office of Inna Fershteyn at 718-333-2395 to best prepare for your future through will drafting, trusts, power of attorney, health care proxy, and living will documentation.

Steps to Creating An Asset Protection Plan To Safeguard Against Creditors

An asset protection trust is a legal arrangement in which an individual transfers ownership of assets to a trust, with the intention of protecting those assets from future creditors or legal action. The trust is managed by a trustee, who is responsible for managing the assets in accordance with the trust's provisions.

As mentioned previously, the primary purpose of an asset protection trust is to shield assets from potential creditors or legal action. By transferring ownership of assets to the trust, the individual can protect those assets from future claims. However, it's important to note that asset protection trusts are not foolproof, and there are limits to their effectiveness.

Creating an asset protection plan can be a complex process, and it's recommended that you consult with a legal and financial professional who specializes in this area. However, here are some general steps you can take to begin creating an asset protection plan:

Identify your assets: Make a list of all your assets, including real estate, investments, and personal property.
Assess your risks: Consider the potential risks that could threaten your assets, such as lawsuits, bankruptcy, or divorce.
Review your insurance coverage: Make sure your insurance coverage is sufficient to protect your assets in case of any risks.
Separate personal and business assets: Keep your personal assets separate from your business assets to avoid liability issues.
Consider forming a legal entity: Consider forming a legal entity, such as a limited liability company (LLC) or a trust, to protect your assets from lawsuits and other legal actions.
Transfer ownership of assets: Transfer ownership of your assets to the legal entity you created. This can provide an additional layer of protection.
Create a succession plan: Create a succession plan for your assets in case of unforeseen events such as disability, death, or divorce.
Keep your plan updated: Regularly review and update your asset protection plan to ensure it continues to meet your needs and to stay up-to-date with changing laws and regulations.

Don’t Wait to Create A Plan:

One of the biggest mistakes an individual can make is to wait until a lawsuit has been filed or is about to be filed to begin protecting their assets. If you wait until this happens, your asset protection strategies may be exposed to creditors and used against you by a judge or a jury. Unfortunately, many people wait until something bad happens to begin asset protection planning, but for your plan to be effective, you need to create it before creditors come for your assets. Creating an asset protection plan is not something that should be done quickly and or serve as a temporary fix.

If you or a loved one are looking to draft a comprehensive asset protection plan that is unique to your circumstances, contact the Law Office of Inna Fershteyn at (718) 333-2395

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