Elder Law - Trust and Estate Planning Law Office

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.

7 Tips On Caring For Elderly Parents Long-Distance

If you have an aging parent who needs additional assistance, it can be a challenge. If you are caring for your parents from a long distance then there may be additional considerations. Read ahead for seven tips on how to take care of your elderly parents long-distance.

1.) Plan Ahead

Planning ahead and establishing a good system to check-in and care for your elderly parents as early as possible is a great first step, especially when you don’t live near your parents. When your parents are in good health, both physically and mentally, it will be the best time to draw up legal documents, find important papers, and get their home prepared for the challenges of aging. By planning early on, your worries will decrease later on as you have plans and protocols in place.

2.) Meet Your Parents’ Neighbors

Because you live far away from your parents, visiting them is always a nice idea. While on your trip, assessing their health and support system is also a good idea. You can make a note of your parent’s environment and neighbors. Meeting your parent’s neighbors is a great start to creating a support system. Usually, neighbors are only steps away and would hopefully be okay with dropping in for a quick check or hello.

Establishing good relationships with your parent’s neighbors, and having their phone numbers on hand, will decrease your worries as you know that help is close by. Sometimes, neighbors may be the first to notice any unusual behaviors or a decrease in activity. Also, if you are unable to reach your parents, you can call their neighbors who can reassure you that your parents are okay and possibly just out of reach from the phone.

3.) Make and Keep Copies of Important Documents

Make sure to make copies of any important documents regarding your parents that you may need. Some of these documents include: insurance cards, medical history, names and numbers of your parent’s doctors and pharmacy. Your parents may have important legal documents that you should have copies of, including copies of any estate planning documents like a will, health care proxy, and power of attorney. By having your own copies, it could even help your parents if they one day can’t find papers you know are in the house.

4.) Evaluate the Home

While visiting your parents’ home, doing a safety check is another great idea. You can help clean up clutter and unused items. As your parents age, the risk of falling and injury increases, so ensuring that their home is hazard free is important in order to prevent injuries. If your parents need further safety features, you can consider installing grab bars or any other installations recommended by doctors. If your parents live in a suburban area, hiring services like snow removal or yard maintenance companies can also help as they keep the land clear from ice or branches.

5.) Managing Their Medication

If your parents are taking numerous medications, you might worry that they can either forget their daily medication or mix up their medication. Nowadays there are services available that can package daily medication and send it in the mail. If your parents receive medication from multiple pharmacies, consider consolidating them into one nearby location so they can have an easier time picking up medication.

6.) Transportation Services

A transportation service can be extremely helpful if your parents do not drive, or if driving may no longer be possible in the future. Senior transportation services can also ensure that your parents remain active and can go out for leisure and to fulfill obligations.

7.) Legal Issues

A widely neglected aspect of caring for aging parents revolves around legal issues and estate planning. If your parents have already established an estate plan, make sure to have copies of it in case they cannot find it. If your parents have not yet established an estate plan, and are still in relatively good health, it is important to sit down and talk to them about their estate plan. By having such discussions, they can let you know their wishes should anything happen to them. Once decisions are made, you and your parents should consult an estate planning attorney who will let you know the best legal courses to take to make sure their wishes can be carried out.

If your parents would like to create an estate plan, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

What Documents Are Required for a Medicaid Application?

When applying for Medicaid, you must prove that you are within the income and assets threshold to be eligible for long-care services. Prior to applying, you must fully understand what is expected of you in proving your eligibility to submit a medicaid application.

Medicaid is a state-run program, so the criteria vary based on your location. It is required to prove that you are eligible for the benefits, placing the burden of proof on you rather than the state. It is your responsibility to provide standard identification of your birth certificate and proof of citizenship. However, when you apply for benefits there is far more to consider:

- Proof of Income
  - Copy of any pay stubs, Social Security statements, and/or pension checks. Income tax returns for the past five years. Verification of any other sources of income.
- Bank Records
  - Copies of bank statements for the past five years.
- Property
  - Copy of the deed to any property you owned in the past five years and a copy of the most recent property tax bill.
- Retirement Accounts
  - Statements for the past five years of your retirement savings.
- Insurance
  - Copies of all types of insurance you have.

Car Registration

- - Information for any cars you own.
- Burial Arrangements
  - Copies of pre-paid funeral contracts and/or deeds to burial plots.

Transferred Assets

- There are non-countable assets such as personal possessions, one vehicle, prepaid funeral plans, and principal residence. However, be prepared if the state requests information about these.

The state will verify the information. Intentionally providing falsified information is a serious legal offense.

When you start to receive benefits, you are not done, as to maintain your Medicaid you must continue to adhere to the eligibility requirements. Verification will be needed, making the Medicaid application process long and complicated. To be as prepared as possible, you will need the help of an estate attorney.

To compile the documents required for a Medicaid application, contact the Law Office of Inna Fershteyn at (718) 333-2395.

Here are The Top 5 Things to Look For

Planning your estate is an easy means to alleviate the burden on your loved ones following your death. It is important to make sure your wishes are carried out, but as with everything, pre-paid funeral plans have risks attached. When looking for a pre-paid funeral plan, you must exercise the utmost care.

To be considerate of your family, you should not place the entire financial burden of planning your funeral on them. In an effort to relieve your family of this expense, you have the option to pay for your funeral in advance with a pre-paid funeral plan purchased through a funeral home. To make things easier for your family during an already difficult time, pre-paid funeral plans have the potential to act as a good way to spend money to reach the Medicaid qualification threshold.

Nevertheless, every year when funeral homes go out of business before the need for a funeral arises, consumers lose money. There may be no way to recover your funds if the funeral home mismanages them. Customers are not necessarily entitled to refunds if they change their minds, and some funeral homes sell policies requiring additional payments.

There are five important things for you to consider if you decide to go ahead with a pre-paid funeral plan.

1. Shop Around

Prices among funeral homes can vastly range, so checking a few different ones before deciding the one you want is a good idea. To promote transparency, the Federal Trade Commission’s Funeral Rule requires all funeral homes to supply customers with a general price list that details prices for all possible goods or services. This clause also stipulates the items consumers cannot be required to purchase and the types of misrepresentations that are prohibited.

2. Make Sure You Have a Reputable Funeral Home

Unfortunately, there have been cases of funeral providers taking advantage of customers. Be sure to select a funeral home with an established positive reputation.

3. Carefully Read the Contract

Before signing you must understand what exactly it is that you are agreeing to. For example, if you move, is this plan transferable? Does it cover funeral services? Will your estate be responsible for covering additional costs if prices rise? Is the plan cancellable and refundable?

4. Find Out Where the Money Goes

The plan should provide information on what the funeral home will do with your money. While some states have protections in place to make sure the money is safeguarded, others do not.

5. Ensure the Plan Won’t Affect Medicaid Benefits

If you are buying the policy as part of Medicaid Planning, you have to purchase an irrevocable plan. This commitment indicates that you cannot cancel it once it is bought.

Once you have purchased a plan, inform your family about your decision and where the documents are filled. If your family is not updated that you have selected a plan, the plan is useless.

If you want to look for the pre-paid funeral plan that works best for you, contact the Trust and Estate Law Office at (718) 333-2395

3 Reasons to Create a NY Irrevocable Trust

Elder planning is an important and necessary step to take in order to make sure that your wishes for the future are carried out in the way you intended. In this process, a decision you will make is what type of trust is best for you. A trust allows a trustee to hold assets on behalf of beneficiaries.

One type of trust is an irrevocable trust, which cannot be changed or revoked after signing. Giving up control over your assets is a big commitment that must be carefully considered. Individuals who would benefit from an irrevocable trust typically fall into one of three categories.

3 Reasons to Create NY Irrevocable Trust

Minimize Estate Taxes

The primary benefit of an irrevocable trust is minimizing estate taxes. An irrevocable trust removes all incidents of ownership, meaning your assets are removed from your name. Assets in an irrevocable trust are no longer a part of your estate, which allows for tax efficiency.

Government Programs

Unfortunately, Medicare does not cover all costs that a senior citizen needs. Medicaid would pick up the tab for long-term care, but the program has strict need-based limitations. To qualify for the Medicaid income threshold, you could transfer your assets into an irrevocable trust. As long as you fund the trust at least five years before submitting your Medicaid application, the assets will not count in your qualification. After executing your irrevocable trust, a tax ID number is created which allows individuals qualifying for Medicaid to move their assets out of their name.

Protect Assets

To protect your assets from creditors, it usually requires your trust to be irrevocable. The Trustee and Beneficiary must be unrelated parties. For people who face lawsuits frequently, having “asset protection trusts” is important. An asset protection trust allows your hard earned money, property, etc. to be safe from creditors.

Living In a Property Transferred in an Irrevocable Trust

If you are living in a property transferred in an irrevocable trust, the creator of the trust will still play a role. For example, they are responsible for all household expenses but reserve the right to live in the house. This is known as a “life estate.” Your house becomes safe from creditors and estate taxes. However, if you change your mind about having an irrevocable trust, the grantor cannot make any changes without the permission of the beneficiary(ies). Moreover, having an irrevocable trust is a significant commitment that should not be taken lightly.

For more information on how to decide if an irrevocable trust is right for you, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

Why a Letter of Competency Should Be Part of Every Senior’s Legal File

With old age comes an inevitable decline in one’s cognitive and mental health, complicating the process for seniors in the midst of their legal planning. If you are a senior who is making arrangements for your future, you might consider adding a Letter of Competency to your file of legal documents. Obtaining a Letter of Competency is especially crucial if you believe there might be any contention regarding the validity of your documents. A Letter of Competency will prevent your documents—such as your will and Powers of Attorney—from being challenged by an incompetency claim. By eliminating any doubts or questions about your mental capacity at the time that your documents were being prepared, you can minimize the chances of familial discord arising.

Reasons for a Letter of Competency

While it is impossible to predict whether a sibling, grandchild, stepparent, or other family member will challenge the validity of an aging loved one's legal papers, it happens often. Some of these cases even end up in costly and time-consuming guardianship proceedings. Others lead to legal proceedings in which the will of a loved one is contested. These arguments can tear families apart and destroy relationships.

It seems superfluous to ask for more proof of mental capacity when revising or creating legal documents, but there is no harm in prevention and protection. The time and energy required to attend a doctor's appointment and receive a letter of competency is minimal compared to the emotional turmoil and legal costs associated with a trial or investigation by Adult Protective Services (APS).

How a Letter of Competency Works & Who Can Provide One

The certificate of competency is usually written by a primary care physician who is familiar with the patient’s initial physical and mental health changes. In some cases, it may be a good idea to obtain this letter from a doctor who specializes in cognitive or mental health, such as a neurologist or psychiatrist.

Obtaining a letter of competency at the time one’s will, Power of Attorney forms, advance directive, and any other legal documents are drafted and signed will help dispel any suspicions that these documents were produced while lacking the mental capacity to make sound medical, financial, and legal decisions.

Attorneys are prohibited from helping incompetent individuals change or create legal documents, but the legal definition of incompetence is slightly different from the medical definition of mental capacity. To ensure that a person can make legal and medical decisions about their health care, finances, and property, any doubts about the validity of their documents should be removed.

What a Letter of Competency Includes

A Letter of Competency should be printed on the physician’s letterhead and include the following pieces of information:

The patient’s name & date of birth
The date on which the patient-physician was first established
The physician’s statement affirming the patient’s ability to make independent decisions regarding finances, legal matters, and healthcare
Relevant medical diagnoses & each of their dates
The physician’s contact information

In addition to the information mentioned above, it is wise to work with an elder law attorney to determine if any other facts or supporting evidence should be included in the letter. The original letter should be filed with the corresponding legal documentation and kept in a secure location. Your attorney should also have all of your documents, including the letter, readily available. It is recommended that your physician keep a copy of the letter in your medical file as well.

How to Obtain a Letter of Competency

This letter may be requested from a primary care physician with whom the patient is familiar and has an established relationship. The physician should be able to recognize any changes in the patient’s baseline mental and physical health. In certain cases, it may make more sense to request the letter from a specialist in mental or cognitive health.

An attorney should be able to determine when it is necessary to obtain the letter from a specialist rather than a primary care physician.

The basic legal planning recommended for seniors can be a confusing and lengthy process to navigate on your own. Taking every precaution to ensure the legal validity of your documents will reduce the potential for dispute in the future. If you need a highly qualified and experienced attorney to guide you through this process, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to have all of your questions answered,

How to Determine a Senior Needs Help at Home

Ensuring that the needs of our loved ones are met is one of the biggest responsibilities we face as they age. Although we would like our elderly parents to remain independent for as long as possible, there may come a time when they can no longer take care of themselves. It is important to start proper legal/financial planning and research long-term care options ahead of time, before any significant changes in their physical and mental abilities occur. It is crucial that you are prepared to provide them with the necessary support when they start to show signs of needed assistance.

Signs a Senior Needs Help at Home

These are typical signs that an elderly person may require home assistance or a higher level of care:

Difficulty Performing Activities of Daily Living

1. 1. Bathing and grooming
  2. Dressing
  3. Toileting
  4. Continence
  5. Walking and transferring (e.g., moving from the bed to a chair)
  6. Eating

Changes in Physical Function & Appearance

1. 1. Significant weight loss due to poor diet, difficulty cooking, eating, shopping for food, etc.
  2. Difficulties with dressing appropriately (e.g. wearing soiled clothing, dressing for the wrong season)
  3. Poor personal hygiene and unpleasant body odor due to infrequent showering
  4. Noticeable decline in grooming habits and personal care
  5. Marks on the body indicating falls or changes in mobility (e.g. bruises, wounds, etc.)
  6. Burns on the skin which could indicate difficulties with cooking

Changes in Behavior & Mental Status

1. 1. Lack of motivation or drive
  2. Loss of enthusiasm for hobbies and pastimes
  3. Trouble with keeping track of time
  4. Failure to return calls to friends and family members
  5. Mood shifts or strong mood swings
  6. Increased agitation
  7. Abuse of power, whether verbally or physically
  8. Changes in sleeping habits (e.g., insomnia or sleeping all day)

Neglecting Household Responsibilities

1. 1. Inability to independently complete instrumental ADLs (activities of daily life)
  2. Changes in household cleanliness and organization
  3. Extreme clutter or hoarding
  4. Stacks of unopened mail, late payment notices, or bounced checks
  5. Unpaid bills, calls from collectors, or utilities being turned off
  6. Spoiled food that doesn’t get thrown away
  7. Little or no fresh, healthy food or overall low food supply
  8. Stained or wet furniture
  9. Urine odor in the house, which may indicate incontinence
  10. Cookware or appliances with noticeable burn marks could indicate food has been left unattended while cooking or reheating
  11. Failure to maintain outdoor areas, such as landscaping, snow removal or garbage collection
  12. Signs of unsafe driving (e.g., automobile dents and scratches)
  13. Unfilled prescriptions

Changes in Cognition, Memory, or Judgment

1. Forgetfulness (e.g., forgetting to take medications or taking incorrect dosages, missing appointments, misplacing items)
2. Increased confusion
3. Loss of reasoning skills
4. Consistent use of poor judgment (e.g., falling for scams or sales pitches, giving away money)
5. Difficulty performing familiar tasks
6. Frequently getting lost when walking or driving
7. Repetitive speech patterns
8. Inability to complete sentences
9. Impaired word-finding ability
10. Changes in personality or behavior
11. Poor personal hygiene
12. Inability to recall names of familiar people or objects

If you suspect your parents are displaying any of the warning symptoms listed above, the next step is to talk to them about their changing skills and care requirements. It may be a sensitive topic and lead to rising tension. However, it is extremely importantIt's ideal to talk about the future with elderly parents as soon as possible so that everyone is on the same page and no surprises arise.

Keep in mind that these warning signs do not always indicate that a relocation to assisted living or a nursing home is necessary. Their presence, on the other hand, indicates that daily supportive care is required. Hiring home care allows many families to keep their elderly loved ones in their homes for as long as they can safely do so.

If you need further legal assistance with elder care planning, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to best prepare your legal documents for the future.

How HIPAA Impacts Caring for Aging Patients

How HIPAA Impacts Caring for Aging Patients

It's critical to understand the implications of the Health Insurance Portability and Accountability Act (HIPAA) on caregiving if you have worries about an aging loved one's health and are active in their daily care.

What is HIPAA?

The Health Insurance Portability and Accountability Act, or commonly known “HIPAA,” has a significant impact on providing care for loved ones. This federal law was passed in 1996 to preserve the privacy of a patient’s medical information. It mandates that health care providers and insurers maintain medical information private and safe. Unless the patient gives explicit permission, this information cannot be shared. This gives people more control over their health information and the ability to regulate who has access to it.

Why Sign a HIPAA Authorization?

A senior can provide their caregiver access to essential information about their care by signing a HIPAA authorization form. A caregiver who has complete awareness of their loved one's medical and treatment history is in the best position to make quality care decisions in the future. There are two major factors to consider when allowing access to medical records. Caregivers should be able to communicate directly with a senior’s doctors to coordinate treatment and care between medical entities, and dispay medical bills on the senior’s behalf.

Without these clear approvals, a family caregiver's ability to properly act on behalf of a senior may be limited. Unless a family member has been nominated as a personal representative with a valid healthcare power of attorney (POA), the privacy rule prevents access to complete medical information.

If the person you are caring for has not already created and signed a POA form, it is a good idea to have them sign a HIPAA release and keep copies on hand. This will ensure that medical entities have no doubt that they are permitted to interact with you and any other family members to whom your loved one has provided permission.

Seniors should talk to their health-care providers about how to put it in writing that only certain persons are authorized to see their medical records. If this is a concern for you, you can also put it in writing that you do not want particular people to have access to your medical information.

For more information about providing high-quality care for senior loved ones or to discuss long-term care planning, please contact the Law Office of Inna Fershteyn at (718 ) 333-2395.

Understanding the Medicaid Look-Back Period and Penalty Period

If you need help with paying for healthcare costs and have low-income and limited resources, you might qualify for Medicaid. Medicaid is a federal and state program that offers medical and health coverage for people with low incomes and limited assets who otherwise cannot afford paying for health care. In order to be eligible you must meet strict financial eligibility requirements both during the application process and after you have qualified.

Financial Eligibility Requirements for Long-Term Care Medicaid

Many low-income seniors find that their countable assets and/or income exceed the Medicaid restrictions in their state. They must carefully reduce or "spend down" extra funds on things like medical expenditures, house improvements, a prepaid funeral plan, and so on in order to meet the financial requirements. Gifting—giving away money or assets for less than market value—is not permitted as part of a Medicaid spend-down strategy.

The Centers for Medicare and Medicaid Services (CMS) devised a system for analyzing all applicants' financial histories to prevent seniors from simply giving away all of their assets to family and friends and then depending on Medicaid to pay for their long-term care. The following sections review the ins and outs of the Medicaid look-back period, as well as what happens when a senior decides to transfer assets.

The Medicaid Look-Back Period

Medicaid only looks at applicants' previous financial information for a limited period of time. This is known as the Medicaid Look-Back Period. Each state's Medicaid program has slightly different eligibility standards, but most states look at all of a person's financial transactions five years back (60 months) from the date of their qualifying application for long-term care Medicaid benefits. (This timeframe is only 30 months in California.)

There is no difference between the number of gifts an applicant made and to whom the gifts were given during the Medicaid Look-Back Period—barring a few exceptions, which will be discussed later on. If a senior's money or assets changed hands for less than FMV in the five years leading up to their application date, they will incur a penalty period during which they are ineligible for Medicaid.

The Medicaid Penalty Period

If a senior files for Medicaid and is found to be otherwise eligible, but has gifted assets within the five-year look-back period, they will be prohibited from receiving benefits for a specified amount of months. This is known as the Medicaid Penalty Period and there is no limit to how long a penalty period can be.

For example, if you write a check to a family member for $14,000 and apply for Medicaid long-term care within five years of the date on the check, then Medicaid will delay covering the cost of your care because you could have used that money to pay for it yourself. The penalty period begins running on the date a senior applies for Medicaid coverage, not the date on which they gifted the money.

The length of the penalty period is determined by the total amount of assets gifted by the applicant and their state's specific "penalty divisor," which is the average monthly cost of a long-term care facility in that state. (The divisors may be the averaged daily expenses in some jurisdictions, and several states even employ divisors that are particular to nursing home costs in individual counties.) These figures are published annually by each state’s Medicaid program.

Who Pays During Medicaid Penalty Periods?

When a senior requires care but has spent down all of their assets (inadvertently) and is no longer covered, one might wonder who pays for their care. If a senior has gifted countable assets during the look-back period and needs nursing home care, they will have to pay for it out of pocket until the look-back period is over and the senior can apply for Medicaid without difficulty, or until the penalty period expires and they are eligible for coverage.

Exemptions and Exceptions to Medicaid Gifting Rules

Medicaid penalties do not apply to all gifts.

One exemption you may receive is a “child caregiver exemption” for transferring assets to a child who has taken care of you for at least two full years. For example, if your daughter's care allowed you to put off moving into a nursing home, then transferring your home into her name for less than fair market value would not be penalized. Even if a senior applies for Medicaid within five years after the transfer, the "child caregiver exemption" still applies.

Another exception to the rule is a gift (or the creation and funding of a trust) for a kid who is blind or disabled under the Social Security Administration's standards. No penalty will be imposed on such a gift, regardless of its size.

Finally, gifts between spouses are never subject to any penalties. There is no need to impose a penalty on such transactions because both spouses' entire assets are counted when one spouse applies for long-term care Medicaid.

Successfully applying for Medicaid is a complicated and difficult process, and is rarely something you do on your own. Mistakes can have long-term financial consequences for a family. If you or someone you know plans to apply for long-term care Medicaid, please contact the best elder lawyer who can guide you through the application process at the Law Office of Inna Fershteyn at (718) 333-2395.

When POA Isn’t Enough: Authorizations Needed to Act on A Loved One’s Behalf

Family caregivers are often given the responsibility to access private documents/information regarding their loved ones due to the large amount of paperwork that might arise pertaining to their personal care. Caregivers often feel bombarded with signing, filing, mailing, or faxing such documents, which is where Power of Attorney documents (POAs) come at hand, saving time and stress. In some cases, a few organizations require their own documentation to approve contributions in one's affairs. An individual should never take on this lengthy process by themself. To minimize the risk of making a mistake that may cause dire consequences down the road, the best approach is to hire an elder care attorney.

Hiring a Power of Attorney is Crucial for Seniors and their Caregivers

Elder law attorneys specialize in legal concerns that affect older individuals, their spouses, and their children—specifically the medical and financial aspects of them. A Power of Attorney document allows certain individuals who are identified as “the agent” to legally make decisions on behalf of another person who is identified as “the principal.” The individual is then granted power upon the principal’s personal matters. It is evident that such preparations cannot be legally processed without such documents being authorized.

However, POAs are not always apodictic. The actions an agent can or cannot take on behalf of a principal, as well as when their powers commence and stop, might differ depending on how these papers are written. Caregivers may run into issues when attempting to utilize POA forms for healthcare and money to oversee the care of seniors if they are not correctly prepared or interpreted. Long before incapacitation becomes a concern, families should prepare these legal documents. When a loved one is unexpectedly disabled due to an accident or sickness, POA paperwork can allow agents to step in and help handle the situation—provided those documents are prepared appropriately.

Some Entities Do Not Accept Power of Attorney

As useful as POA’s are, third parties such as banks are reluctant to approve such financial documents due to the possibility of fraud, in which case they may be held responsible for any harm that results.

Such banks take an extended period of time to verify the legitimacy of a financial Power of Attorney and may even want to speak with the attorney who finalized it. In addition, they might also require that the agent and/or future POA sign a written statement declaring that they are operating legally, therefore absolving the other party of all liability. Nonetheless, there should be no issues arising besides the time-consuming process of being approved as a POA.

Authorizations Needed to Manage a Senior’s Care

A SSA Authorized Representative

Helping a loved one or assigned “senior” with Social Security applications is possible with the correct documentations, one can apply to be their authorized representative by completing the SSA-1696 Appointment of Representative Form.

SSA Representative Payee

You must apply to become a representative payee if you want to actively help a Social Security recipient manage their retirement payments and/or Supplemental Security Income (SSI). All beneficiaries who are unable to manage their own payments must have a representative payee according to the Social Security Administration.

While this may be the authority you're searching for, it's important to note that it comes with a lot of responsibility. This work necessitates a thorough recording of all a beneficiary's benefits and how they are utilized, requiring attentive and responsible individuals. If there is no family member or acquaintance available to hold the “rep payee” title, the SSA will designate another qualified beneficiary to hold such recipient benefits.

VA Fiduciary Designation

Administering veteran benefits also requires its own process. Obtaining POA authority is not a satisfactory requirement for the U.S Department of Veterans Affairs (VA). The VA will request the appointment of a fiduciary if a physician or a court of law determines that a veteran (or surviving spouse) is incapable of handling his or her money. A close friend or relative is readily available to fulfill such a position as long as the VA successfully and thoroughly conducts a close investigation of such individuals’ competence. If there is no family member or acquaintance available to hold responsibility for the veteran, the VA will designate another qualified beneficiary to hold such recipient benefits.

Medicare Authorization

It is important to note that Medicare will not provide disclosed health information to an assigned caregiver regardless of relationship to the agent. There must be a written authorization already submitted and approved by the Centers for Medicare and Medicaid Services; verbal permission is also an accepted option. Medicare enrollees may be able to speak and answer simple questions over the phone, giving their caregivers permission to disclose coverage data. If you and your loved one are unable to speak on the phone together, consider attempting to “include them” using your cellphone or other three-way calling device to keep all parties on the same page.

The "1-800-MEDICARE Authorization" Form can be filled out and mailed in or done over the phone with the help of a customer service professional. Please note that certain private insurance companies frequently have their own processes for these documents, so make sure to ask about their unique permission needs.

Be Proactive About Caregiver Documentation

Keep in mind that many problems may be addressed with a combination of goodwill, clear explanations, and reasonable inquiries asked of the appropriate individuals when advocating for your loved one or assigned “agent.” If you're unsure, ask to talk with a supervisor. If no one is available, or if no amount of logical conversation appears to be working, you have the right to consult with legal counsel.

If you are in need of highly qualified and experienced help regarding a Power of Attorney issue, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to have all of your authorization questions answered.