Fall 2012 Edition
SPECIAL ELDER LAW ISSUE
Vol.17 – No. 1
NY Medicaid/ Elder Law Seminar
“FOURTEEN WAYS TO PRESERVE YOUR ASSETS WITH THE NY MEDICAID LAWS” was presented at the Lockport Holiday Inn, 515 S. Transit Rd, Lockport, NY on, September 19, 2012. Attorney Robert Friedman of Friedman & Ranzenhofer, P.C. discussed how to preserve your assets and plan for incapacity with powers of attorney, health care proxies, living wills, wills, trusts, transferring your home to family members, reverse mortgages, long term care insurance, prepaid funeral accounts, IRAs, pensions, properly documented gifts, spousal allowances and transfers, caregiver agreements, annuities and promissory notes. To obtain a copy of the “2017 Medicaid Guide”, click here.
Why NY Joint Wills Are Not Used
We are often asked to prepare joint wills. A joint will, also known as a mutual will, is a single will signed by both spouses which continues to be a valid document, controlling on the surviving spouse after the other spouse dies. Joint wills are authorized by New York state law. The joint will contains instructions which both spouses declare to be their mutual intent. The problem with joint wills is the lasting, binding effect upon the surviving spouse. Consider a scenario in which two spouses properly make a joint will. One spouse later passes away and the surviving spouse remarries. The surviving spouse cannot thereafter execute a new will. This situation occurred in the case of was Glass v. Battista, 43 N.Y.2d 620, 374 N.E.2d 116 (1978). After the first spouse died, the surviving spouse remarried, and thereafter executed a new will which disinherited his daughters, in contradiction to the joint will. The New York Court of Appeals held that the new will was in violation of a valid agreement to dispose of the property and refused to honor the new will.
Many people who choose to execute a will are happily married and do not believe that such a situation would affect them. However, it is important to remember a will is intended to make provisions for unseen future events. Executing a joint will is not recommended because it limits the options available to clients in the future.
NY Medicaid Estate Recovery Law Repealed
Over the past year, you may have heard about Medicaid recovery against a deceased nursing home patient’s jointly held property, retained life estates and interests in trusts. 2011 state legislation, administrative directives and emergency regulations expanded the definition of the “estate” that was subject to recovery by Medicaid to non-probate assets. That law was recently repealed by the New York 2012-2013 budget bill .Now non-probate assets may not be considered as part of the decedent’s estate for recovery purposes. There may be recovery only against the probate estate of a decedent who received Medicaid benefits during his or her lifetime. The probate estate is comprised of assets that are in the name of the decedent alone with no named beneficiary. Non-probate assets are those that have a named beneficiary or pass by operation of law, such as joint bank accounts, in trust for (ITF) accounts, payable upon death (POD) accounts, transfer upon death (TOD) accounts, life estates in real property, trust accounts, or life insurance.
When Should An Elder Law Attorney Be Contacted?
Most clients wait to look for an Elder Law Attorney until an emergency healthcare situation or when a loved one needs nursing home care. However, the best time to find an Elder Law Attorney is before a crisis. Elder Law Attorneys use a multidisciplinary approach, addressing medical, financial, legal, social and family issues, centered on the needs of seniors and people with disabilities. As Elder Law Attorneys for over 57 years, Friedman & Ranzenhofer, PC has helped families find appropriate ways to finance long-term care while preserving their dignity and avoid total impoverishment. Legal problems that affect the elderly are rapidly growing. State and federal laws and regulations are becoming more complex. Actions taken by the elderly with regard to a single matter may have unintended legal effects. Elder Law encompasses many different fields of law. Including:
- Preservation/transfer of assets;
- Avoidance of spousal impoverishment when a spouse enters a nursing home;
- Medicare claims and appeals;
- Social Security and disability claims and appeals;
- Supplemental and long term health insurance issues;
- Disability planning,( including use of durable powers of attorney, living trusts, health care proxies and living wills), for financial management and health care decisions, and other means of delegating management and decision-making to another in case of incompetency or incapacity;
- Estate planning, including planning for the management of one’s estate during life and its disposition on death through the use of trusts, wills and other planning documents;
- Administration and management of trusts and estates;
- Long-term care placements in nursing home and life care communities;
- Nursing home issues, including patients’ rights and nursing home quality;
- Elder abuse and fraud recovery cases ;
- Housing issues;
- Age discrimination in employment;
- Retirement, including public and private retirement benefits, survivor benefits and pension benefits;
- Health law; and
- Mental health law.
As Elder Law Attorneys, we have a broad understanding of the laws that may have an impact on your situation, to avoid future problems. We take into account and empathize with some of the true physical and mental difficulties that often accompany the aging process. Our understanding of the afflictions of the aged allows us to determine more easily the differences between the physical and mental disability of our clients. We are more aware of real life problems, health and otherwise, as persons age. All of these things will hopefully make you more comfortable when dealing with us and ease your way as you try to resolve your legal problems.
The 18 Most Common Estate & Medicaid Planning Mistakes
These are the eighteen most common estate and Medicaid planning mistakes that we have observed our clients make over the past 57 years of practicing law in Western New York. Have you made any of these mistakes?
- Believing that you are too young to need a health care proxy or power of attorney. The two famous right-to-die cases involved women in their 20s. At only 21, Karen Quinlan lapsed into a persistent
- vegetative state after consuming diazepam, dextropropoxyphene and alcohol at a party. Terri Schiavo was only 26 when she went into a coma when her heart stopped temporarily which cut off oxygen to her brain.
- Not safekeeping your will, power of attorney, living will, health care proxy and living trust documents where they are accessible when needed.
- Believing that you are too poor to need a will. Even if you have no assets now, your estate could be very substantial if you were involved in an accident.
- Not updating your will, power of attorney, health care proxy and life insurance beneficiaries after a divorce.
- Buying real estate with a domestic partner or child without a co-tenancy agreement.
- Selling your home in which you have a life estate while you are in a nursing home.
- Appointing the wrong person as your power of attorney, executor, children’s guardian or trustee.
- Owning a business or rental property without forming a limited liability company or corporation for business succession and asset preservation.
- Not pre-planning your funeral.
- Not signing a prenuptial agreement or living trust before a second marriage.
- Not providing for your pets with testamentary trusts.
- Adding one child to your bank account as a joint owner if you do not intend for that child to receive the entire account upon death.
- Not having gift-giving authority in your power of attorney.
- Not taking advantage of the Medicaid exemptions.
- Creating a living (inter vivos) trust, but not funding it.
- Preparing wills, powers of attorney, health care proxies, living trusts living wills and Medicaid applications yourself without an elder law or estate planning attorney.
- Not utilizing life insurance correctly by not having enough coverage, not updating beneficiaries, not using life insurance trusts; not realizing that it is subject to estate taxes; and not realizing that it is not governed by provisions in your will.
- Not making gifts to avoid estate tax and Medicaid.
Contact Robert Friedman at 716.542.5444 for a further explanation of the above.
Power of Attorney Revoked By NY Court
Attorneys Robert Friedman and Michael Ranzenhofer were successful in having a power of attorney revoked. Our client’s mother, while competent, had designated her adult daughter to serve as her power of attorney and health care proxy. The daughter used her mother’s credit cards, automobile and bank accounts for her own personal use. A Mental Hygiene Law Article 81 petition was filed by our client to have a guardian appointed for his mother and to revoke the power of attorney and health care proxy. The Erie County Supreme Court revoked the power of attorney due to the daughter’s self-dealing and breach of her fiduciary duty. However, it did not revoke the Health Care Proxy because it was not proven that the daughter was unavailable or unwilling to act, or that her actions or inactions rose to the level of incompetence or bad faith. However, due to the fighting among the children, the Court appointed an independent third-party to serve as full guardian of the mother’s property and limited guardian of her person.
Rotary Porsche Raffle
Robert Friedman, Past President of the Clarence Rotary Club and legal counsel to the club’s foundation, organized and chaired the largest fundraiser in its 52-year history. 3,595 Porsche Raffle tickets were sold for the club’s second auto raffle. Tickets for the next raffle will be available on February 7, 2013 at ClarenceRotaryRaffle.com. The grand prize is the choice of a Porsche Boxster or Cayenne or $40,000 cash. Ten $500 cash prizes are also awarded. The proceeds of the raffle will be used to fulfill the Clarence Rotary Club Foundation’s mission of benefiting healthcare, youth activities, scholarships and community projects. Rotary is the most prominent non-religious, non-sectarian organization in the world dedicated to world understanding, peace and service to those less fortunate than us regardless of race, religion or political beliefs.
Ranzenhofer’s Injury Recoveries
A testimonial from a personal injury client:
“I’d like to express my deepest thank you to Mr. Ranzenhofer and his staff. I retained Mr. Ranzenhofer as a lawyer for a personal injury due to my daughter being on a cheerleading team. Before Mr. Ranzenhofer, no one would even consider the case. All I had heard, was the term- ‘You assume the risk’. Mr. Ranzenhofer had listened to what I had to say, and agreed to take my case for my daughter. He was very courteous, and on top of everything. I was very much at ease to have him for a lawyer. Everything was explained to us every step of the way beginning to end. I felt like he gave us the personal attention we needed. His secretary, Kristin, was prompt in returning all calls and relaying messages to Mr. Ranzenhofer. I wish your firm much continuing success. And I would recommend your firm to anyone. It was a long road, but through it all, you had my daughter’s best interest at heart. Again, My Deepest Thank You – Mrs. P”
Veteran Trial Attorney, Michael H. Ranzenhofer, of Friedman & Ranzenhofer, P.C. recently won the following personal injury awards and settlements:
$342,500 settlement for an Alden High School senior who sustained a knee injury requiring surgery. She was injured when one of two boys who were engaged in horseplay knocked her to the ground (August 2012).
$150,000 arbitration award, after a full hearing, for an 18-year- old Akron High School student who was burned when another student poured gasoline on a camp fire, creating flames which flared -up. She sustained first and second degree burns to her foot and leg (July 2012).
$100,000 settlement for an 18-year- old Batavia, NY boy who was a passenger in a car driven by his friend who drove off the road and struck a tree. He sustained a broken finger and facial lacerations which required surgery (August 2012).
$60,000 for a 20- year -old Akron, NY college student who sustained a concussion and lacerations to her eye when she went off a road under construction. The award was paid by Liberty Mutual Insurance Company and the County of Erie (June 2012).
$50,000 for a 51- year- old Genesee County man who sustained a neck injury requiring surgery in a motor vehicle accident (March 2012).
$90,000 for a 42- year- old Wyoming County woman who was injured when a snow plow operator, backing out of a driveway, struck her car propelling her into a bridge abutment. She sustained a nonsurgical back injury (March 2012).
$325,000 for a 23 -year -old Buffalo, NY woman who was injured when, at age 14, she was performing a “flying Russian” maneuver during a cheerleading practice. She landed between two old mats which became separated and injured her knee which required multiple surgeries (November 2011).
$130,000 for a 24- year -old Town of Amherst, NY woman who was injured when she and another vehicle collided while backing up at a shopping center parking lot. She sustained a neck injury (August 2011).
$100,000 settlement for a 39 -year -old New York State Corrections Officer who was returning home to the City of Buffalo from an out-of-town assignment. Another motorist traveling in the opposite direction crossed the center line and hit the car in front of her head-on which caused debris on the roadway which led to the accident. She sustained a knee injury (August 2011).
$34,287.50 for a 61 -year -old Town of Clarence, NY woman who sustained a foot injury where she was rear ended by another motorist (May 2011).
$47,500, after a full arbitration, for a 23-year -old Batavia, NY woman who was a passenger in her friend’s car. Another car crossed the solid yellow line and struck them head-on. She sustained a lower back injury (May 2011).
$50,000 for a 53- year- old Genesee County man who sustained a back injury in a motor vehicle accident (December 2010).
$75,000 for a 52 -year -old City of Buffalo Police Officer who was injured in the line of duty when a motorist struck her from behind. She sustained a lower back injury and was off work for six months (July 2010).
For answers to commonly asked personal injury law questions, see Michael Ranzenhofer’s blog: www.buffalo-injury-answers.com or call him personally anytime at 716.542.5444 or 585.343.0746.
While a great deal of care has been taken to provide accurate and current information, the ideas, suggestions, general principles and conclusions presented in this newsletter are subject to local, state and federal laws and regulations, court cases and any revisions of same. The reader is thus urged to consult legal counsel regarding any points of law – this newsletter should not be used as a substitute for competent legal advice. The purpose of this newsletter is to give the reader a general understanding of the law – not to provide specific advice. Every effort has been made to achieve accuracy. The law constantly changes and is subject to differing interpretations. Always consult with your attorney and act only on his or her advice. Friedman & Ranzenhofer, P.C. shall not be responsible for any damages resulting from any inaccuracy or omission. This newsletter is designed to provide accurate and authoritative information in regard to the subject matter covered. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Certain portions of this newsletter may be applicable only to New York State law.