Elder Care Attorney - Trust and Estate Planning Law Office

Why Should You Avoid Buying and Executing a Power of Attorney Form Online?

A Power of Attorney (POA) legal document is signed by an individual (principal) who grants authority to a trusted individual (agent) to carry out transactions on their behalf. The instances during which this may occur are specified within the content of the document, so it is important to pay attention to every detail. The principal may grant the agent power over medical decisions, asset/property transactions, and their bank account. Clearly, this is a matter that must be presided over with extreme care.

Most individuals hire an attorney to help understand the process and create clauses that are tailored to their wishes. However nowadays, many people also resort to purchasing an online POA form by finding downloadable templates and forms. Yet, these forms are generic and most times will not cater to your specific needs. They are filled out without a present attorney and witnesses. As a result, they are frequently liable to mistakes that can easily be challenged in court at a later time.

Reasons to Avoid Using a POA Template

No Customization

With a predetermined “one size fits all” online form, there is no interview process tailored towards your financial, medical, and legal needs. This information is crucial to determine which clauses are appropriate to add to your document, and which should be excluded. This often includes deciding whether the document executor should have the authority to distribute gifts to family members, and placing limitations on such transactions. In other instances, assets may need to be distributed accordingly one day. Lastly, perhaps the individual may need to be placed in the hands of a caregiver or nursing home. A clause may need to be added that determines who presides over this decision.

No Professional Counsel

It is crucial to have someone with legal experience assist in important documentation execution. You must have an attorney present to assist in naming an agent and their successor. An attorney will also decide when the document’s power goes into effect: is it effective immediately or do its clauses go into effect when the principal administrator is no longer mentally capable? Additionally, an attorney has the knowledge to determine the specific wording that tends to your needs.

No Legal Witnesses

It is important to have witnesses present when signing an important legal document. These witnesses may especially play a critical role in the future if the document’s validation is challenged in court. Witnesses can attest to the fact that the signee was in a capable state of mind to make decisions for themself.

No Quality Assurance

Most importantly, an online POA form does not guarantee a well thought out high quality document. It also does not provide access to a professional source that will guide you through every step and explain the importance of each clause. When writing a POA, it is important to approach the process with a thorough understanding of its importance, and accordingly, the necessity to craft every clause with extreme detail and attention. When put into effect, these documents have the power to transfer assets and/or property, transfer money out of your bank account, and make medical decisions for you. It is a process that is not to be taken lightly.

As of June 13, 2021, NY has adopted a new POA form. It is important to note that if you already have a POA form in effect, you don’t need to fill out a new one. You simply need to update the one you already have. The new POA form clarifies some confusions and, to some extent, makes the process more reassuring:

Substantial Conformance

The wording in the POA form does not have to be identical to the wording used in the statutory short form. The old form allowed for any mistake to be rendered as a reason for challenging a POA in court. The new form only needs to “Substantially conform” to the content of the statute . This makes it harder for a POA to be invalidated in court.

No Gifts Rider

The old form limited an agent’s gift authorization to $500 a year. Any gifts over the $500 limit had to be authorized by a gift rider. A gift rider modifies a POA to allow for such transactions and when notarized, must be witnessed by two witnesses. With the newly implemented change, the gift limit has been increased to $5000 a year and the gifts rider has been eliminated. Gifts that exceed the $5,000 maximum can be accounted for with a modification section on the POA form.

Signature at Direction of Principal

The new POA can be signed by someone, other than an agent, on behalf of the principal. However, the principal might be present at the time of signature.

Sanctions for Bank Refusal to Honor Power of Attorney

The new law protects principals from third parties, such as banks, from refusing to accept their POA without reason. Additionally, it protects third parties when proving a POA is valid. It also gives a third party ten business days to decide whether they will accept or refuse the POA they are presented with.

An Elder Care Attorney will help you with all of your POA drafting needs. An attorney will guide you through the process step by step, while emphasizing and explaining the importance of each clause. An elder care attorney is also most up to date on the recent changes the NY government has made to the POA form and will guide you through these changes whether you are updating an old form or writing a new one. For further information on how to draft a POA form, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to obtain aid in legal document drafting.

Five Legal Issues Caregivers Face

As your loved ones get older, they may become more physically and/or emotionally vulnerable. Unfortunately, this presents a situation in which they can easily be taken advantage of. To adequately prepare for this situation in the event that it occurs, legal planning is necessary. In many cases, families fail to consider these arrangements. In other cases, the plan they established does not have a durable legal foundation and thus, fails. With the correct knowledge, you have the opportunity to prepare early on to protect your legal interests when caring for a senior family member. As you begin to explore your legal options, there are some problems you may face as a caregiver.

1. Problems with Power of Attorney

It is extremely important to draft a power of attorney (POA) to establish someone you trust to make decisions as a healthcare or financial proxy. A POA document establishes an individual (the “principal”) to assign a trusted relative (the “agent”) to make healthcare, legal, and financial decisions on their behalf. This document can also specify how much power the principal allows or limits to the agent. A POA ensures that if you are unavailable/unable to make decisions for your senior family member, another person can step in and take your place. However, this decision often comes at the expense of family relationships when someone is chosen over another person. Additionally, it may be a complicated process when filing with your bank. Despite the challenges a POA may present, it is important to draft one as soon as possible even if your elderly family member is still mentally capable. In some cases, they may still want your help with minor responsibilities. It is also best to be well prepared for the future in case there is a sudden change in their mental or physical status.

2. Seeking Guardianship of an Elder

Oftentimes, family members do not prepare for possible deterioration in the senior’s medical status. Thus, the family fails to file a Power of Attorney document prior to the senior's sudden loss of competence. Alternatively, in some cases, the person that was assigned the role of caregiver abuses their power. To appoint a new caregiver, long and expensive guardianship proceedings are usually needed.

3. Preventing and Prosecuting Elder Abuse

The National Center on Elder Abuse (NCEA) defines elder abuse as “any knowing, intentional, or negligent act by a caregiver or any other person that causes harm or a serious risk of harm to an older adult.”Mentally vulnerable senior citizens are most likely to fall victim to abuse. Those with Alzheimer’s disease or dementia are unable to defend themselves and often unaware of what is taking place. Even senior citizens who are mentally capable can still fall victim to abuse such as a caregiver that steals from their home.

4. False Accusations of Abuse or Neglect

Senior family members with dementia may have a tendency to sabotage their caregivers and themselves. They may falsely accuse caregivers of elder abuse when they forget who the person is or don’t get what they want. Unfortunately, even if their abuse accusation has no real claim to it, caregivers may have to deal with APS investigations and/or legal action. To prepare for such possibilities, you should keep records of the activities you provide, when the senior’s doctor diagnosed them with dementia, what stage their dementia was initially diagnosed at and how it has progressed, and lastly, when they had to give up responsibilities such as cooking and driving.

5. Estate Administration

Estate administration involves the collection and distribution of assets to beneficiaries. To make this complicated process easier, a will should be drafted well in advance. A will is a legal document that details an individual’s financial and social wishes, and goes into effect after they pass away. Problems arise when family members fail to draft a will before their loved one passes away, fail to update it as more assets are discovered, or fail to share it with the appropriate family members. While a will simplifies the legal aspects of estate administration, it can cause divisiveness between competing family members.

How an Elder Care Attorney Can Help

If you are a new caregiver for an elderly loved one, it is important to seek advice from an attorney with abundant experience in elderly care. If you have been a caregiver for years, but have come across an unexpected legal issue, it is also important to consult an experienced professional. It is never too early to start looking into a well developed elder care plan. It is extremely important to be prepared in case a sudden event occurs causing a deterioration in health or a case of elder abuse arises. It is just as important to protect yourself from unfortunate false accusations on your loved one’s behalf when they are mentally disabled. For further information on how to start your Elder Care planning, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to obtain aid in the drafting of legal documents and help with any of your Elder Care needs.

3 Legal Documents Caregivers Need to Manage an Elder’s Healthcare

Laws tend to be very strict and there is not much flexibility when it pertains to a loved one’s healthcare. These laws involve who can make medical decisions, receive status updates, and be involved in conversations with medical professionals. Though these laws intend to keep confidential information private, they can be troublesome for those who are caregivers for their family. There are ways around this but the legal permissions must be established beforehand. If you wait until they are required, you will not be guaranteed the best outcome as they will be more effective if prepared in advance. Many families do not realize they require legal documents to take care of the ones they love, causing them a handful of stressful situations when they need to make medical decisions for a loved one but aren’t allowed to legally. This may lead to a situation where you are legally not allowed to make any medical decisions for them or even access their medical information. An option some individuals choose is going to court and petitioning for guardianship in order to allow them to be able to make these decisions. This all could be avoided if families work and prepare all the necessary documents in advance with an Elder Care attorney, so you aren’t stuck with the harder and more expensive option of petitioning for guardianship.

What Three Documents Are Needed?

HIPAA Authorization Form: This document which is short for the Health Information Portability and Accountability Act indicates the standards for keeping an individual’s medical information and all records private. This makes it illegal for any medical professional to release your medical information and records without it being at the request of the patient for which this form is used. This is a very important form, and all families should be in possession of it as HIPPA forms give authorization to doctors to keep specific family members informed of their loved one’s medical status. It is a simple form that is not hard to complete and a blank one should be available at most doctor’s offices for patients. Just let your loved one sign the form and this will provide you with access to all their healthcare information.
Power of Attorney: This document has many names, two of them being, medical power of attorney and health care proxy document. This document essentially allows an individual to designate a loved one or any one of their choosing to handle healthcare decisions on their behalf if they become unable to. With a HIPAA form, you are allowed to have access to an individual’s medical records and information, but with a power of attorney you are also designated to make medical and healthcare decisions on their behalf as well. When preparing this document though, the person granting this access must be in the right mind or this document can not be executed. This is to ensure the individual who needs the care is choosing a trusted individual that they believe will honor their wishes if they were to become incapacitated.
Advance Health Care Directive: This document is also known as a Living Will, and allows an individual to indicate their wishes for end-of-life care before any medical emergency. End-of-life decisions are extremely hard on families and a Living Will will help avoid the pain this brings to your loved ones and allows them to know what you would have wanted. This document can specify the treatments you want or do not want and other medical decisions. One of the most important parts of this document is for an individual to indicate if they want any form of resuscitation to occur if they stop breathing and if they agree to be put on a life support system if needed. These decisions are extremely difficult to make and should not be left for your family, as it will only make the situation harder when you can make it simple by preparing these documents in advance.

Preparation in Advance Is Necessary

It is extremely important for these documents to be prepared beforehand as they will be there if a medical crisis occurs in your loved one’s life. Once a healthcare emergency occurs, it will be too late to prepare these documents. Sitting down with your family and having a conversation about preparing these documents in case a situation may occur in the future, will spare you and your family from any unnecessary stress and uncertainty. Health is not guaranteed so all adults should discuss their wishes with their families while they still have their health.

How Can an Elder Attorney Help

Unfortunately, many families do not start to look into Elder Care planning until a medical crisis occurs. This is why this conversation should happen in advance in order to ensure this crucial step of Elder Care planning is in place and your loved ones are taken care of. Indicating your interests is the first step to take in your Elder Care planning journey. An Elder Care Attorney can help make this process easier and help you and your family stay informed of all your options to ensure your interests are met. An attorney will not only draft all these crucial documents but will help ensure these documents are accurate and legally binding. Having this conversation with your family is hard enough, so hiring an Elder Care attorney will allow you to create the best plan and guarantee you won’t have to worry if you or your family face a medical crisis. As a part of your Elder Care planning, an attorney will help with the HIPAA forms, drafting of the Power of Attorney, and drafting of the Living Will, so you and your family have the peace of mind that there is a plan in place in case of medical emergencies.

For further information on how to start your Elder Care planning please contact the Law Office of Inna Fershteyn at 718-333-2395 to obtain aid in the drafting of legal documents and help with any of your Elder Care needs.

How to Prepare a Loved One for the Possibility of Dementia?

Everything in life isn’t guaranteed and a life, where the best for you and your loved ones is not ensured, is scary. Having a plan for when those unexpected times arise in your life is the best way to ensure you and your loved ones are taken care of. Those approaching their elder years should be one of the first to ensure these plans are in place. Events such as an accident, stroke, heart attack, or something as serious as dementia can be extremely troublesome without the best plan in place. Not only should you consider making plans for your own well-being but encourage your loved ones to do so as well. This will ensure that a designated individual will be able to step in when times like this may occur in your life.

Discussing Legal, Financial, and Health Care Planning With Loved Ones

Though having such a difficult conversation with the people you love may be uncomfortable, the end goal is for you and your family to ensure everyone is taken care of, no matter what obstacles life throws at you. If you wait until your loved one is incapacitated or needs a caregiver it will be extremely hard, legally and emotionally, to be able to care for them when they need you the most. If this occurs you would need to endure the lengthy and complex process of guardianship in order to be able to control a loved one’s medical care and finances. Why put you and your family through this process when you can make a plan beforehand.

Timing Is Extremely Important

Getting your Elder Care planning done in advance is crucial, as in order to be able to sign all the legal documents in the process, one must be physically and mentally able to. In instances such as Dementia, early diagnosis can still hinder an individual’s ability to make decisions. In some cases, a senior may still be able to sign legal documents but this all depends on the progression of the disease and circumstances differ. This actively demonstrates why it is important to plan earlier rather than later. Though it can be difficult to bring up these matters with a loved one, you should try to make it clear that you intend to protect them and ensure that all their assets and life are put in the best scenario possible.

Crucial Documents Needed for Elder Care Planning

Last Will and Testament: A last will and testament is the first step in any Elder Care planning and indicates your wishes when you pass. This document indicates what is done with your assets and ensures your interests are met. We never know when we may pass and this document makes sure not only your interests are met but your loved ones are taken care of when this happens.
Durable Power of Attorney for Health Care: This is a document that will allow an individual to designate a person to make any medical decisions for them if they become incapacitated or unable to. Some decisions include choosing health care providers, nursing care, treatment, and end-of-life care. This document allows the individual to obtain medical records on your behalf as well. This is ideal for anyone as health can change, especially as you continue to get older, and this document will make sure you are taken care of if things don’t go as planned. Those with Dementia are not guaranteed a specific time frame for how fast the disease will progress so having a Health Care Power of Attorney will give them and their loved ones peace of mind when their loved one can no longer make decisions for themselves.
Durable Power of Attorney for Finances: This is a document similar to the Power of Attorney for Health Care, and allows you to designate an individual to make financial decisions for you when you become unable to do so for yourself. Some decisions that can be made on your behalf with this document include managing investments, selling property, taxes, and paying bills. This document is needed, as not only will your estate and assets be protected, but your interests will also be met if you ever become incapacitated. Why let a disease like Dementia or a medical condition stop your family from making sure your assets are taken care of when you can plan ahead.
Living Will: A living will is a healthcare directive that is drafted in advance to indicate an individual’s wish for end-of-life care or a serious medical crisis. This will be a clear indication of what you want to be done in regards to treatment if you are unable to and if the situation is life-ending. This document contains the instructions for the medical Power of Attorney and is important in the Elder Care planning process as leaving decisions like this to your loved ones will cause an immense amount of pain and regret. Your loved ones will not be left wondering what you would have wanted, but instead, know exactly what you want.

Hiring an Elder Care Attorney

Elder Care planning is hard on families and may not be the desired conversation, but it’s definitely a crucial step to ensuring your loved ones and you are taken care of at all times. Sitting down and creating a plan for what will happen in times of illness or losses is the start of your Elder Care planning. An Elder Care attorney can help make this process easier and ensure all your interests are met in a professional and legally binding manner. An attorney will inform you of all your options, and ensure all documents are legally binding and accurate. Discussing Elder Care options is hard enough for you and your family that’s why hiring an Elder Care attorney will allow you the peace of mind that your plans are in place in times of hardship. An attorney will help with the drafting of your Last will and testament, Power of Attorneys, and Living will, so you are ensured the best care.

5 Frequently Asked Questions About Senior Guardianship

When an individual begins to age, it may be time to consider taking action to obtain guardianship of the senior. With age, it may become difficult to make logical decisions that would reflect one’s best interest due to the onset of Alzheimers, Dementia, etc. If an individual becomes incapacitated or unable to make decisions on their own, it is a good time to consider filing the necessary paperwork for guardianship. This will allow you to guarantee that your loved one is in good hands, as you will be responsible for making medical and financial decisions on their behalf. Since obtaining guardianship of a senior is a lengthy and challenging process, here are five commonly asked questions regarding Senior Guardianship.

What is guardianship? Guardianship refers to individuals who have not yet had the opportunity to appoint a power of attorney for healthcare necessities or financial decisions. Typically, the individual in need of guardianship has become incapacitated and in need of a responsible person to make decisions according to the senior’s best interests. Guardianship allows the person to have a say in where the incapacitated individual lives, the type of healthcare they receive, and activities in their daily lives. On the contrary, a conservatorship grants a person the right to manage an individual’s financial assets and decisions. Oftentimes, it may be difficult to come to a consensus regarding the best time to file for guardianship and select which person should be the legal guardian.
What does court-appointed guardian mean? This person has a court-appointed order and right to handle the incapacitated individual’s affairs. It is their responsibility to act in the individual’s best interest to benefit the incompacitated individual. Some duties a court-appointed guardian may have pertains to selling property, managing finances, making healthcare decisions, nursing home admission decisions, etc. During the hearing, the court will make a decision regarding whether the person seeking to become a guardian is the right fit for the position. In the case that more than one individual seeks to become the guardian, then one will be selected for the purpose of medical and health related decisions, while the other will be selected for financial decisions. Typically, the court would give preferance to the incapacitated individual’s family members, such as the spouse or children because these individuals are most familiar with the needs and preferences of the incapacitated senior.
When is the proper time for a guardian to be appointed? A guardian will be appointed when the court finds it evident that the incapacitated individual is unable to make decisions for themselves. The individual is unable to make logical choices regarding their physical and mental health, as well as their financial assets. The incapacitated individual has the right to appoint an attorney in the case they feel that they do not need a guardian and can make decisions for themselves. If an individual’s health and financial assets are suffering immensely, then an emergency guardian may be selected.
What tasks is the guardian responsible for accomplishing? In regards to making decisions on behalf of the incapacitated individual, the guardian is responsible for paying bills, managing real estate and other financial prospects, as well as deciding how finances are handled. The guardian must determine where the individual will live and must monitor their residence. Additionally, the guardian must provide consent for medical treatments and monitor non-medical services. The guardian should attempt to maximize the incapacitated individual’s freedom to the greatest extent possible in order to give them some independence. Lastly, a guardian must report to the court at least annually regarding how the incapacitated individual is doing and how the financial, as well as medical decisions are being managed.
As a guardian, will I receive compensation for my role? Court-appointed guardians are actually subject to compensation for their work in addressing the incapacitated individual’s financial and medical needs. If the guardian is a family member, such as a spouse or a child, then the services will be free. They will most likely not charge their incapacitated loved one in regards to obtaining compensation for their work. If a private or public guardian is appointed, then they are paid directly from the incapacitated individual’s estate if they can afford the costs. The compensation amount is typically approved by the court.

For further Guardianship information please contact the Law Office of Inna Fershteyn at 718-333-2395 to effectively file for guardianship when your loved one becomes a senior.

What are assets you can have and still qualify for Medicaid in NY?

Applying for Medicaid is quite a complex process, as the questions being asked within the application have great depth and implications for your future. The foundation system responsible for asking the questions that define your eligibility for Medicaid purposely selects specific diction and word choice which may make it challenging for elderly individuals to effectively answer the questions. Considering that these questions are the main defining factor when it comes to obtaining Medicaid coverage, family members should seek guidance from an experienced Elder Law Attorney to guide them through this imperative process. Additionally, it may be difficult to understand the limit on your assets in order to still qualify for Medicaid in New York. The attorney is quite familiar with your state’s rules when it comes to long-term care planning and receiving government benefits when it comes to ensuring that you qualify for Medicaid. The Elder Care Attorney will use her experience in the field to devise the most effective plan in assisting the family by selecting strategies that align with the family’s personal and financial circumstances.

Is it possible to have assets and qualify for Medicaid?

Seniors often believe that they are not allowed to have any assets if they hope to qualify for Medicaid. However, this is quite a common misconception because there is a grand variety of assets seniors can own and still be eligible for Medicaid coverage. Many are curious to know if they can own a car, or a home, or a life insurance policy while still being eligible for Medicaid. All of these inquiries will be answered below in the 2021 Medicaid Asset Limits section. The important note to keep in mind is that all Medicaid applicants may keep up to $2,000 in countable assets while still qualifying and remaining eligible for coverage. All assets below this sum are considered non-countable assets in the eyes of the government, thus having such assets would not have a negative impact on your potential medicaid eligibility. However, any quantity of money that goes over this set limit of $2,000 becomes known as countable assets, which would have an impact on your eligibility and make it difficult for you to qualify for Medicaid in New York.

2021 Medicaid Asset Limits:

Countable Liquid Assets- as mentioned previously, Medicaid applicants who have over $2,000 in assets will no longer be able to qualify for medicaid coverage in New York according to the state’s rules.

A single applicant who is 65 years old or over may have up to a maximum of $2,000 in cash, bonds, stocks, certificates of deposits, and other assets in order to still qualify.
A single applicant in the state of New York is allowed to retain $15,750 in liquid assets.
The asset limits for married couples varies because it depends on state guidelines and whether only one spouse or both spouses are applying to qualify for Medicaid coverage.

An Elder Care Attorney can assist you in understanding where you stand in terms of qualifying for Medicaid and what actions you may participate in to increase your chances of qualifying for coverage.

Primary Residence Value- there is a way to ensure that the primary residence is exempt from consideration in regards to Medicaid qualifications, as long as it abides by the specified requirements.

Most importantly, the home must be in the same state that the applicant is applying for Medicaid in.
The equity value in the home, otherwise known as the fair market value minus debts if owned singly must have a value equivalent to $595,000 or less in order to still qualify for Medicaid.
The applicant must continue to reside in their residence or have a strong intent to return home in the case that they are currently living in a nursing home due to their physical health conditions. An important note to consider is that if an individual must inhabit a nursing home, the home may still be exempt if the individual’s spouse or children are still living in it at this point in time.

Funeral and Burial Funds- Medicaid will consider the value of any non-refundable, pre-paid funeral plan as exempt because you cannot obtain that money back and therefore it does not impact your potential qualification for coverage. This also pertains to irrevocable funeral trusts, however these funds are typically limited to a maximum of $15,000 or less per spouse.

Car- one car will be considered as a non-countable asset regardless of its brand, or price. This automobile, however, must be used for transportation of the applicant or any other members of the household in order for the car to be exempt from your assets when qualifying for Medicaid.

Life Insurance Policies- Medicaid will ignore all term life insurance policies. This is because only the cash value of a life insurance policy owned by the applicant will be counted. However, in order to remain exempt and qualify for Medicaid coverage, the combined cash value of any insurance policy cannot go over the limit of $1,500.

Property for Self Support- only the Medicaid applicant’s equity interest in any property that is considered essential to their self-support will be taken into account regarding qualifying for coverage.

Any real estate properties that generate income, such as farms, rental properties, real estate investments, etc will be considered.
A maximum of $6,000 of an applicant’s equity interest in the property may be exempt from their allowable assets. However, this only applies if the property is able to produce a net annual income of at least six percent of the equity value annually.
All values that exceed the $6,00 maximum will be taken into account as assets, which could harm your ability to qualify for Medicaid coverage.

An medicaid planning attorney can help you better understand these asset limits and can assist you in potentially qualifying for Medicaid even if you exceed some of these limits. Note that a senior may still be eligible for Medicaid even if their assets exceed the general limits stated above. An esteemed attorney is well aware of the rules and guidelines regarding qualifying for Medicaid coverage, thus you will attain all of the aid and guidance you need in answering all of your inquiries.

For further Elder Care inquiries and information please contact the Law Office of Inna Fershteyn at 718-333-2395 to qualify for Medicaid coverage given the 2021 Asset limitations.