power of attorney - Trust and Estate Planning Law Office

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

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

Appointing a Power of Attorney

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

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

The Living Will

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

Other Estate Planning Considerations

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

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

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

Why You Should Review Your Estate Plan Before A Second Marriage

It is becoming increasingly common for people to remarry and create blended families. When blended families are created, estate planning becomes a little more complicated. Estate planning for a blended family can be complicated because each spouse may want to provide for each other, their biological children, and maybe even their step-children/adopted children after their death. If this sounds like your family, you should proceed cautiously and read ahead for some guidance on estate planning.

Estate Planning Considerations Before a Second Marriage

A remarriage may create a unique set of legal questions. People assume that their adult children will automatically inherit their assets when they pass away. People make this assumption because most of their property and assets have been spent with their previous spouse, who was possibly a co-parent to the children, and the one who may have helped to build or sustain the family assets.

However, a new marriage means that the family property is governed by the laws of the new marriage. If there is no prenuptial agreement with the new spouse and they survive you, then they would inherit at least one-third of the estate according to New York laws. This means that your adult children from a previous marriage might be in for a rude awakening. A large part of the children’s inheritance might be gone due to the new spouse’s right to inherit one-third of their spouse’s estate.

In order to avoid confusion and possible heartache in the future, have these discussions with your family now. Consulting an experienced estate planning attorney will help with deciding the best ways to make sure your wishes are carried out.

Elective Shares

As stated earlier, if a spouse dies, then the surviving spouse has a right to inherit a one-third share of the deceased’s estate. This is what’s known as an elective share. By law, a spouse cannot be disinherited unless they willingly choose to be. The only way that a surviving spouse can be disinherited completely is through a prenuptial agreement, where each spouse can agree to waive any claims to an elective share of one another’s estates.

Your elective estate includes not just property in your name alone, but also most assets with beneficiary designations such as bank accounts, securities, IRA accounts, the cash value of life insurance, etc. Essentially, you would not be able to easily ignore your spouse’s rights to their elective share. One may assume that if assets are left in a trust for a child then it would be difficult for the surviving to claim their shares. However, the surviving spouse can still file a probate proceeding and possibly force the child to return the assets to satisfy the elective share law.

Prenuptial Agreement Before The Next Marriage

It’s important to recognize that a prenuptial agreement does not mean that a couple will be planning to get a divorce, or that spouses do not trust one another. Rather, couples are recognizing the importance of their upcoming legal commitment to marriage. Older clients who remarry often have important financial obligations from previous relationships such as alimony or child support payments. They may also have hard-earned estates they wish to leave to children from previous relations. In order to provide a solid foundation for their future marriage, people should consider sorting through their finances. By signing a prenup, couples are communicating their concerns for the future financial security of their other relatives and are expressing their respect for the hard-earned assets and accomplishments of their future spouse.

Review Your Estate Plan Before Remarrying

Before getting remarried it is important to focus on redoing your estate plan. During your first marriage, you may have created an estate plan, however this time it might be more complicated, especially if you have children from your first marriage and/or you have since then acquired more valuable assets. Here are some of the best methods we recommend to ensure that your interests are met when you remarry:

Take Stock. You and your soon to be spouse should take an inventory of your individual and/or shared assets and debts. Make sure to include life insurance policies and retirement plans in your stockpile. And be sure to disclose to each other all of this. It is best to be open and honest about money with your spouse.

Financial Management Decision. Once you know what both of you are worth financially, then you two need to decide if you want to combine (or not combine) assets when you are married. For example, if one spouse has significant debt (ie. student debts) you may not want to combine finances or make any joint purchases. These decisions need to be made upfront so everyone is clear on what to expect.

Discuss Who Will Receive What. You and your future spouse need to figure out who will receive your estate when you die. This can be complicated discussion if you have children from a previous marriage. By law, if you leave all your assets to your new spouse, there are no guarantees that your new spouse will be required to provide for your children. If you would like to ensure your children are provided for, there are numerous options available. Some of these options include: creating a trust for your children, naming your children as beneficiaries on life insurance policies, or explicitly giving your children joint ownership of a property. If any of these options sound appealing for your case, consult an estate planning attorney for which option is best.

Double Check Beneficiaries. If you have a previous estate plan created, you should double check who you named as the beneficiaries on your life insurance policy, and/or retirement plan. Upon reviewing, you may want to change who you previously named. However, if you are divorced, you may not be able to change some of the beneficiaries. When you return to your estate planning attorney, be sure to bring your divorce decree so they can make sure you do not violate the decree. If it is the case that you can not change your beneficiaries, you can buy additional life insurance or retirement plans where you can include your new spouse or future children.

Consult An Estate Planning Attorney. Before you remarry and if you have an existing estate plan, you should definitely consider updating your last will. You might also need to update or even create other estate planning documents like a durable power of attorney and a health care proxy.

Before or maybe after consulting an attorney, be sure to be open and honest to your family members and loved ones about your wishes so there are no surprises. If you would like to review and create a new estate plan before remarrying, please contact the Law Office of Inna Fershteyn 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.

How to Avoid Conflict Between Your Power of Attorney and Health Care Proxy

When assigning people to be your power of attorney agent or health care proxy, you are bound to choose the people who you deem to be the most fit for the role. A health care proxy is someone who you assign in advance to carry out your medical decisions when you are deemed unable to. A power of attorney agent is someone who is also assigned to make financial decisions for you in the situation that you’re unable to. In some cases, they can be the same person for both positions but in other cases, they can be different people. Although a power of attorney agent has different responsibilities from those of a health care proxy, it is not uncommon for the two to occasionally have some overlapping decisions. When this happens, the possibility that there will be conflicts between the two is not surprising. So what are some ways to prevent these conflicts?

1.) Choosing One Person For Both Roles.

This is the simplest and most popular choice when deciding on who will be responsible for both roles. It allows for just one person to make your decisions for you (both medical and financial) in your best interest without having to go through the trouble of talking- and possibly arguing with another person.

2.) Pick Two People Who Can Get Along With Each Other.

Sometimes, it’s not reasonable to choose just one person for both roles. Not everybody is good at everything. For example, you may have an ideal person in mind for being your health care proxy but that same individual may not be a good choice to represent your finances. In this case, you would have to get another person to be your power of attorney agent. Although “getting along” may seem self-explanatory, people tend to choose others who are simply suited for the role while overlooking clashing personalities. This can lead to arguments down the line so it is best to ensure that the two representatives can get along and sort out issues in a calm manner.

3.) Assign a Third Person With The Power To Settle Disputes.

If necessary, adding a third person to be a mediator of the two can decrease the number of conflicts that may arise. Additionally, this person’s name should also be included in the documents indicating what their role is. It is best to discuss with all parties involved about your wishes and what you would want to happen in the case you become incapacitated.

It is never ideal to have people bicker over what you might have wanted. Hopefully, with these tips, disagreements will not occur between your health care proxy and power of attorney agent. If you or a loved on is having trouble figuring out estate planning, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

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.

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.

What Are a Senior Guardian’s Responsibilities?

Coming to terms with a loved one’s deteriorating mental health is never easy. However, if their mental health reaches a point where they are unable to make decisions, it may be necessary to look into obtaining guardianship of their care. A senior guardian is granted legal authority by a court to make decisions for their loved one who is no longer capable to do so themselves. An individual that a court decides is no longer able to care for themselves is called a ward. A senior guardian oversees a ward’s daily care or financial transactions, and sometimes both. If you are considering obtaining guardianship, it is important to become informed of both the required time commitment and emotional demands. It is crucial that you also understand the constraints this may place on your newly evolved relationship due to the necessary limitations placed on the ward’s independence.

Types of Guardianship and Guardian Responsibilities

When an individual is deemed mentally incompetent in a legal setting, they are named a ward of the state. A senior guardian, often a loved one, is then granted the power to oversee their care. Guardianship is divided into two categories that deal with different aspects of the individual's needs. The first category allows the guardian to oversee the ward’s daily care. On the other hand, the second category grants the guardian power to oversee the ward’s personal and home property. There are also instances in which the guardian is granted full oversight over both; this type of guardianship is known as full or plenary guardianship. This oversight may be granted to one guardian or split amongst two individuals according to daily care and property management. They then must work together closely when making important decisions concerning an overlap of the two.

Guardianship of the Person

Guardianship of the person administers oversight of the ward’s daily life: medical, residential, and social decisions. If appointed as a guardian that presides over these decisions, the responsibilities may include:

Release of confidential information
Oversight of residence
Determination of residence location
Applying for government/medical benefits
Providing consent for medical treatments
Making end–of–life care decisions
Making sure their care is managed in the the least restrictive way possible
Reporting to court at least once a year

Guardianship of Property

This guardian is also known as a guardian of the estate: someone who manages the ward’s finances and property. First, an appraisal of the ward’s income, assets, and debts, must be assessed. Then, the estimate must be filed with the court once a legal guardian is appointed. The guardian must always keep the ward’s funds in a separate account from their own and cannot allocate these assets/income toward their own needs.

A guardian of the property may have the following responsibilities for a ward:

Deciding how finances are handled;
Applying for and managing government benefits
Making investment decisions;
Paying bills, rent, and taxes
Keeping detailed records of all income and expenditures;
Requesting prior court approval for the sale, donation, transfer or mortgage of their property
Reporting to court at least once a year with a complete account of finances

** Sometimes, when a guardian applies for and manages government benefits on behalf of another individual, a power of attorney is required. An elder law attorney can professionally and adequately prepare a power of attorney that proves a guardian has the legal right to act on behalf of another individual. A POA guarantees an agent the right to act on behalf of the principal.

Accepting the Role of Guardian

There is no denying that accepting guardianship of a loved one is an extremely demanding emotional process and is time consuming. When a guardian obtains oversight of a ward, they are agreeing to surrender an individual’s independence to their care. This is difficult to come to terms with and often a rigorous process determining when to allow independence and when to place constraints on it. It is also important to understand that every case is unique and what may work for one ward/guardian relationship, may not work for another. A guardian agrees to take on the role of protecting their ward from abuse, exploitation, and neglect both from themselves and their environment. Before accepting this decisive role, it is important to voice your concerns with other family members. It is crucial that you are confident in your answers to two questions: Do I have the time and emotional strength to qualify for guardianship of this individual? Is there someone else I know that would be a better fit? Once you have the answers to these questions, it is important to obtain professional legal advice and elder law administration.

For all of your elder law planning needs, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to receive help in obtaining guardianship.

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.