Elder Planning - Trust and Estate Planning Law Office

Essential Estate Planning Guide for Veterans: Strategies, Tips & Benefits

When we picture veterans, we often think of the courageous acts and heroic sacrifices made to protect our country. These brave individuals have defended our freedom while facing countless challenges while serving our country. Unfortunately, oftentimes their selfless acts lead them to forget about themselves. In our case, veterans often forget to create a well thought out estate plan and inform themselves of veteran benefits they may have access to. Anyone, including active military personnel, should consider estate planning in order to ensure their loved ones are well taken care of in the event of their passing. In this article, the trust and estate planning office will cover some crucial estate planning strategies for veterans as well as the benefits veterans may be entitled to unknowingly.

A Guide to Estate Planning For Veterans

Write a will- A will is a legal document which outlines the desires of the testator, or the individual writing the will, and ensures that their assets are distributed accordingly after death. A will is an essential aspect of your estate plan to ensure that your assets will be distributed to the proper beneficiaries. In addition to outlining your asset distribution plan, a will also allows you to name guardians for minors in the event of your death as well as designate an executor, who will ensure that your will is carried out. A will only takes effect after your death.

Establish power of attorney- Your power of attorney is a legal document which designates an individual to make decisions on your behalf in the event that you are incapable of doing so. Unlike a will, your power of attorney is effective during your lifetime. If at any point you are incapable of making decisions or managing your affairs on your own, your power of attorney will do it for you. With the risks of military service, establishing a power of attorney can be extremely beneficial in the event that you become incapacitated.

Create trusts- Creating a trust is a beneficial way to protect and manage your assets. A trust is an entity that specifies who will receive your assets and how you want them handled in the event of incapacitation. Unlike a will, a trust takes effect while you are alive. A trust also skips probate court, a process intended to settle a deceased individual's estate plan, and minimizes taxes, which makes it an efficient way to protect your assets.

Purchase life insurance- As a veteran, you may be eligible for life insurance benefits. Programs including SGLI, a program providing life insurance coverage for active military, and TSGLI, a program providing coverage for family members of active military, provide life insurance for veterans and their families.

Healthcare directives- An advanced healthcare directive is a legal document which outlines your medical wishes in the event that you become incapacitated. Writing a healthcare directive can designate an individual to make medical decisions on your behalf if you are incapable of doing so. Additionally, it is beneficial to state your medical preferences such as your preferences on pain relief, resuscitation, life sustaining treatment, organ donation, mechanical ventilation, etc. to guide your family and medical professionals in making healthcare decisions.

Understanding Benefits For Veterans

Social Security Survivors Benefit- You may be eligible for payments from social security if your spouse dies. If your spouse was of retirement age, you may receive 100% of their benefits, however the amount is less if the late spouse is under the retirement age.
Improved Pension through the Department of Veterans Affairs- This benefit is a way for caregivers of veterans to receive payments from the Department of Veterans Affairs (VA) for looking after them. These caregivers can be friends or family, however spouses are not eligible for payment.
PACT Act- The Promise to Address Comprehensive Toxins Act was created to extend VA healthcare eligibility to veterans with toxic exposure. It also requires the VA to provide toxic exposure screenings for all veterans.
Healthcare benefits- Multiple healthcare programs are in place to assist with healthcare expenses for veterans and their families. For example, TRICARE offers several types of coverage including health insurance for active duty families, National Guardsmen and their families as well as retired military personnel. Other programs include CHAMPVA, which shares the cost of medical care with the VA and eligible individuals, as well as PCAFC, a program which allows family or friends to receive payment for providing care to an eligible veteran. These programs are in place to assist former or current military members and their families with finances.
Life insurance programs- Multiple life insurance policies exist for veterans which cover not only active military, but their family members as well. SGLI is a low cost life insurance policy for service members, including active military personnel. FSGLI is a similar program but covers family members of active service members.
Burial benefits- In the event of the death of a veteran, free of charge burial services and grave markers are provided in a national cemetery. If family members decide on an alternative location of burial, there are limitations on financial assistance from the government.

Estate planning for veterans is not only necessary, but is also a powerful way to honor their service and protect their loved ones. By creating an adequate estate plan, veterans can ensure that their assets are protected and their family is provided for in the event of their passing. From creating trusts to learning about the unique benefits offered to veterans, there are numerous strategies to help veterans plan their estate. The process may be overwhelming, which is why hiring an experienced estate planning attorney can provide you with peace of mind during this process. For all your estate planning needs, contact the Trust and Estate Planning Office at (718) 333–2395.

Navigating the New Retirement Landscape: Social Security, Medicaid, and Financial Planning for a Secure Future

With prices and inflation rising as a result of the COVID-19 pandemic, disruptions in global supply chains, and the war in Ukraine, more retirees than ever before are returning to work. Some might find their retired life unappealing, while others feel their expertise can still be shared. The majority of retirees, however, are returning because they simply cannot make ends meet. As the cost of healthcare, housing, and basic necessities rise, many find that their savings or monthly income are insufficient to support their daily costs. This does, however, raise questions about Social Security and Medicaid. Those of full retirement age might be eligible for Social Security and Medicaid benefits, depending on a variety of financial and health-related factors, but those who return to work do run the risk of having their benefits reduced or taken away depending on their income and any private coverage they receive from a place of employment. Planning for Social Security and Medicaid are important factors to consider when drawing up a retirement plan, as qualification for benefits can be tricky to determine and acceptance into either program is not guaranteed. Financial planning, including asset protection and estate planning, are also important when considering retirement, as planning ahead with realistic goals in mind will help avoid future financial hardship or the feeling that one is a burden to their family. Consulting with an experienced elder planning attorney will help inform one’s planning, such as an appropriate retirement age or monthly saving’s goals.

Social Security and Medicaid

Upon reaching full retirement age, currently calculated as between 65 and 67, qualified retirees are eligible for Social Security retirement benefits without any deductions based on current earnings. Similarly, qualified retirees of full retirement age are eligible for Medicaid benefits based on income methodologies employed by the supplemental security income program of the Social Security Administration. Qualified individuals may begin collecting social security and Medicaid benefits before full retirement age, although coverage will likely be reduced unless their qualification is not dependent on age. Social security and Medicaid provide, among other things, health coverage, disability insurance, and assistance with the cost of prescription drugs. One can begin receiving partial social security benefits before their full retirement age, but their partial benefits will be reduced based on the Social Security annual earnings limit, currently set at $21,240. These reductions continue until the month before a person reaches full retirement age.

Returning to work after retiring is a tricky prospect because this may affect one’s qualification for partial or full social security and Medicaid benefits. Income is a key factor when determining the coverage and benefits a retiree is eligible for from both Social Security and Medicaid. While social security benefits are not deducted for current income about full retirement age, the benefits are aimed at those of lower income or without any stable income stream. In the case of Medicaid, yearly household income is a key factor in determining one’s eligibility, so any income above thresholds for eligibility set by Medicaid may result in one having some or all of their coverage taken away. Going back to work after retirement, especially for those above their calculated full retirement receiving social security or Medicaid benefits, is not a prudent financial plan, even if a job provides better health coverage.

Financial and Estate Planning for Later Life

Medical emergencies, long-term treatment costs, and prescription drug costs are, among other physical considerations, a reality for most retirees. There is also the simple fact that retirees will, for the most part, still be paying their bills for housing, groceries, and electronics, among other things. Even with help from family, and the benefits and coverage provided by social security and Medicaid, retirees will increasingly find themselves with bills they cannot afford to pay. Planning for retirement, therefore, is a key aspect of ensuring that one’s later years are spent comfortably and without the stresses of potentially having to return to work or becoming a burden on family.

Planning for things such as Medicaid coverage are best done before one reaches their full retirement age. Protecting one's assets and creating an estate plan will also be of great help when determining a plan for retirement, as an experienced estate planning and asset protection lawyer will help one to ensure they have a steady income for retirement and still qualify for Medicaid coverage. Social security and Medicaid are tools to help you in your later life, but comprehensive estate plans are important to ensure that you have a plan for emergencies.

You have worked your entire life to ensure that your later years are spent enjoyably and that you can leave a financial legacy to your family, so ensure that you engage in retirement planning as soon as possible. To speak with New York’s most experienced elder planning attorney, please call the Trust and Estate Planning Law Office at (718) 333-2395.

Estate Planning Secrets for a Blissful Retirement Under the Older Americans Act

Old age is a daunting prospect for most, as leaving work and living a retired lifestyle simply is not compatible with most people’s lifetime of hard work and sacrifice. Old age, however, should not be seen simply as a transition to the end of one’s life, but rather the opportunity for fulfillment and expansion of one’s horizons. In 1965, the Congress passed the Older Americans Act to provide community social services for older people. This act, which has been renewed through the 2024 fiscal year, provides for, among other things, nutrition and social services to the aged and their caregivers, organizes opportunities for civic engagement, and community service employment for lower-income aged Americans. As life expectancy has increased, so has the commitment of the United States to provide for its elderly communities. The reality of estate planning when entering later life should also be as smooth a process as possible, and consulting with an experienced elder planning lawyer will help you to understand the potential benefits retirees and older citizens can receive and the programs they can partake in, such as those provided by the Older Americans Act.

The Older Americans Act

The Administration for Community Living, an organization dedicated to the health and independence of older Americans, is currently seeking recommendations for proposed updates to the regulations of most of its Older Americans Act programs, the most significant set of updates in nearly 30 years. The government of the United States has long sought ways to improve the lives of older Americans, and one of the most significant pieces of legislation it has passed is the Older Americans Act. First passed by Congress in 1965, the act was initially targeted at a lack of community-based social services for aging Americans. The original legislation established grant authority to states for community planning and social projects, research and development projects focused on older Americans, and training for personnel in the field of aging. The act also established the “Administration on Aging” to administer grants and serve as a nucleus for matters concerning older Americans.

Since 1965, technological and medical advances have increased the life expectancy in the United States, which means that more people are able to enjoy their retirements in later years. In response, the Older Americans Act has undergone several reauthorizations and amendments. The most recent reauthorizations, in 2016 and 2020, which will last through the 2024 fiscal year, have provided for a year-long extension for the Supporting Grandparents Raising Grandchildren Act, more autonomy for state and local governments regarding the allocation of National Family Caregiver Services to keep older people in their homes, and required the assistant secretary for aging to issues guidance to states on serving Holocaust survivors. These reauthorizations also have provisions for strengthening elder abuse prevention, screening efforts, fall-prevention, and chronic disease self-management programs.

Estate Planning for Older Age

Although old age and retired life have been made easier since the introduction of the Older Americans Act and the expansion of benefits programs, estate planning and asset protection must be a priority for your golden years. An important aspect to consider in planning for later life is Medicaid. As most older adults in the United States are at least partially insured by Medicaid, it is important to understand that eligibility is dependent on, among other things, one’s income and assets. Although estate planning might have the stigma of making one seem old or aging, it is responsible financial practice to plan ahead and ensure that you receive the health coverage you need. To this end, an experienced Medicaid planning lawyer will help you to create the best estate plan that protects your hard-earned assets while also ensuring that you receive the coverage you deserve.

It is important to understand that there are no entitlements with the Older Americans Act because Title III of the act does not create a legal requirement to finance services for individuals. Older Americans eligible for Medicaid benefits and over the age of 60 may receive services under the Older Americans Act, however, Medicaid-funded services often take precedence. Services that cannot be rendered by the Older Americans Act may still be available for Medicaid eligible persons. The intricacy of the social services provided under the Older Americans Act and other federal welfare programs such as Medicaid make having an elder planning attorney ever more important. An experienced attorney will help to determine which benefits and services one can receive and assist one in qualifying for the programs they need.

Conclusion

Old age and retirement should not be seen as an anxiety-inducing or burdensome time, but rather as an opportunity for enjoyment. The older years of Americans have been made easier with the Older Americans Act and Medicaid coverage, but this should not prevent you from engaging in financial planning as soon as possible. Creating a comprehensive estate plan and planning for Medicaid will give you flexibility in planning your finances for your later years and give you the peace of mind to enjoy your retirement and the opportunities for engagement it provides. To speak with New York’s most experienced elder planning attorney, call the Trust and Estate Planning Law Office at (718) 333-2395.

The Difference Between a Living Will And Last Will And Testament

Estate planning is an essential process in which individuals make decisions regarding their asset distribution and future health care arrangements. Within the area of estate planning, there are two crucial legal documents to understand: the living will and the last will and testament. By understanding these documents, you will be better equipped to create an estate plan which accurately represents your financial desires after passing away. Below, the trust and estate planning office will explore the intricacies of a living will and a last will and testament and elaborate on the key points of each document as well as their differences.

Understanding a Living Will

A living will refers to a legal document which establishes an individual’s medical preferences in the event that they are incapable of communication or incapacitated. A living will is effective during an individual's lifetime, and is only effective in the event that you are unable to make medical decisions for yourself. This document also includes a healthcare proxy, or someone who will make medical decisions on your behalf aside from those included in your living will if you are unable to do so. A living will specifically focuses on predetermined medical directives in order to guide loved ones and medical personnel during treatment.

Key Points of a Living Will

One of the key aspects of your living will be your preference for certain medical treatments. These medical treatments may include life sustaining treatment, organ donation, resuscitation, pain management or mechanical ventilation. Your living will outlines your desires for how medical professionals will go about your treatment plan. Another essential aspect of a living will is the designation of your healthcare proxy. As stated above, your healthcare proxy will step in to make medical decisions on your behalf that you do not previously specify. Unlike a last will and testament, a living will takes effect when you are incapacitated or you are not in the state to make medical decisions. This includes neurological conditions in which an individual has a functioning brain stem but lacks cognitive function, otherwise known as a vegetative state. It also takes effect in the event of a coma and, in some states, terminal illness.

Understanding Last Will and Testament

A last will and testament is a legal document in which a testator, or the individual writing the will, outlines how they would like their assets to be distributed after their passing. Unlike a living will, a last will is only effective after death. There are multiple important decisions outlined in a last will, including the appointment of an executor, who will ensure your will is carried out and your assets are distributed accordingly. A last will is also how you can designate guardians for any minor children as well as the assets you would like to distribute and the beneficiaries who will inherit them. Asset distribution is one of the key components of a last will and testament. By writing one, you ensure that after your death, your assets are given to people of your choosing.

The Difference Between The Two

Although similar in name, these documents are drastically different, and it is important to understand the unique functions of each before planning your estate. While a living will outlines the healthcare directives and medical preferences in the event that you are incapacitated and unable to make medical decisions for yourself, a last will and testament outlines what you would like to do with your assets after your death. Another key difference between these two documents is when they take effect. A living will takes effect while you are alive and is only effective in the event that you are incapable of making your own medical decisions. A last will and testament is only effective after your death.

Understanding the distinction between a living will and last will and testament is essential to make informed decisions regarding the protection of your assets and loved ones. While a living will addresses your healthcare preferences and ensures that your choices are respected regardless of your condition, a last will and testament protects your assets and allows you to designate beneficiaries for your estate. Learning about the unique functions of these documents will provide you with the opportunity to plan your estate with clarity. Consulting with a knowledgeable estate planning attorney will provide you with peace of mind during this decision-making process. For all your estate planning needs, contact the Trust and Estate Planning Office at (718) 333–2395.

Defending Our Elders: Unmasking Nursing Home Exploitation and Ensuring a Secure Future

Nursing homes, in their ideal form, are meant to be sanctuaries of care, compassion, and respect for our loved ones. These facilities are entrusted with the responsibility of providing a safe and nurturing environment for elderly individuals who may require assistance with daily activities, medical care, and emotional support. However, reality often falls short of this noble ideal. Unfortunately, we often hear horror stories about what can occur behind closed doors, where only the vulnerable elderly bear witness. Every so often, stories of physical neglect, emotional isolation, abuse, medication mismanagement, financial exploitation, and more creep into mainstream media. Most recently, following an investigation by the Office of the Attorney General’s Medicaid Fraud control unit, a lawsuit was filed in the State Supreme Court of Manhattan against the owners of four nursing homes throughout New York State.

What happened?

Kenneth Rozenberg and Daryl Hagler have been accused of defrauding taxpayers of $83 million dollars, according to the lawsuit. The two men illegally used taxpayer money for personal benefit, even purchasing an airline, while neglecting their duties as nursing home managers. Due to severe underfunding and understaffing, the homes deteriorated and became health hazards. Without necessary funding, patients could not get their medication. Without necessary oversight, cases of elder abuse skyrocketed within these facilities. According to testimonies by family members, they were unable to reach their parents who resided in the facilities. In addition, they were not notified of severe injuries they had faced, such as brain bleeding. Another woman said that her father had been so severely neglected that he passed away from sepsis before she was able to pull him out of the home.

According to the Attorney General’s office, Rozenberg and Hagler created LLCs that they used to receive payments from the government and then spent these funds at their personal discretion. Investigations revealed that throughout the COVID-19 pandemic, Rozenberg and Hagler understaffed their facilities to earn more profit. They have also been accused of paying themselves exorbitant salaries for nonexistent work, charging steep amounts for rent which they did not report, and paying their family members $10 million dollar salaries while underpaying their actual staff. It is tragically common to see our most vulnerable population being exploited. There have been many stories throughout the years regarding the nursing home industry being a for-profit scheme that does not have regard for those who rely on the homes. Seeing stories like this one is shocking and it instills in us fear for our aging loved ones. While justice is being pursued in this case, it is important to be informed of steps that you can take to protect not only your loved ones but their assets as well if they end up in a nursing home.

The Benefits of Long-Term Planning

While not much could have been done to prevent these incidents from the perspective of the victims, there are still helpful conversations that you can have with your aging loved ones, or as you yourself age. Nursing homes are known to exhaust all residents’ individually owned assets before turning to government aid. This strategy, while legal, can leave families grappling with financial burdens and undermine one’s ability to pass down valuable assets to future generations.

One effective way to safeguard your valuable assets is by creating an irrevocable trust. An irrevocable trust allows you to continue the use of your assets during your lifetime while ensuring that they will be passed down to the beneficiary of your choosing. This type of trust establishes a distinct barrier between the ownership and control of assets. Since you are no longer the legal owner of property held in the irrevocable trust, nursing homes cannot target those assets, whether it be residences, liquid assets, or other valuable holdings. These trusts also have tax benefits because the assets held in the trust are often excused from estate taxes. It is important to note that Medicaid has a “look back” period to determine eligibility based on assets, typically spanning five years, so it is necessary to transfer assets well before you anticipate requiring long-term care. Creating an irrevocable trust to become eligible for Medicaid later in life is referred to as “Medicaid planning” and is a very common method of avoiding exorbitant nursing home costs.

Designating your healthcare power of attorney is another critical step in setting up your estate plan. This document empowers someone that you trust to make your medical decisions for you in the event that you are incapacitated or unable to make those decisions due to medical conditions. Within the realm of medical care, decisions ranging from treatment options to end-of-life choices can be intricate, sensitive, and emotionally charged. Entrusting someone with your healthcare power of attorney is akin to selecting a guardian for your health-related interests, someone who comprehends your values, beliefs, and healthcare preferences. This chosen individual, known as your agent or proxy, is armed with the legal authority to consult with medical professionals, review medical records, and ultimately make decisions aligned with your wishes when you are unable to articulate them yourself.

In addition to safeguarding assets through irrevocable trusts and appointing healthcare proxies, comprehensive long-term planning encompasses a spectrum of critical measures. Advance healthcare directives, financial power of attorney, and guardianship arrangements ensure holistic protection in times of incapacity. Estate tax planning and probate avoidance strategies optimize the legacy you leave behind, while asset protection methods and special needs planning address unique financial considerations. Beyond the financial aspects, the peace of mind derived from knowing that your loved ones are cared for and your values are upheld is an invaluable benefit of robust estate planning. This comprehensive approach not only safeguards assets but also reflects the commitment to providing a secure and dignified future.

As you craft your estate plan, it is necessary to have an experienced, knowledgeable attorney by your side. If you have any further questions concerning nursing home fraud, Medicaid fraud, or estate planning, please call the Trust and Estate Planning Law Office at (718) 333-2395 to take your next steps.

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.

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.