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Questions to Ask an Elder Law Attorney

  1. What age should I be to see an elder law attorney?
  There is no minimum age to seek the advice of an elder law attorney.  Elder law attorneys often address issues concerning medical conditions, disability, capacity and medical expenses, as well as traditional estate planning.  These issues concern clients of all ages.  
  1. My neighbor said she did her Will and Power of Attorney on the internet.  Should I do that?
  Legal documents should always be prepared by a qualified attorney admitted to practice in New York.  Although a document obtained on the internet might be valid and perhaps even well written, it was probably prepared by an attorney who does not practice in New York.  The document might not accurately reflect your wishes and might not address issues, such as taxes, that a client would not know themselves.  
  1. Do I really need any planning documents?
  Everyone should have a valid, comprehensively written durable power of attorney and health care proxy.  Most people also need a Last Will & Testament.  
  1. When do I need a Will? 
  Not everyone does need a Will, but a consultation with a qualified attorney is warranted to confirm whether or not that is the case.  If you have young children, a Will is necessary to nominate the proposed guardians of your children.  A Will is necessary if, for example, your children are minors or perhaps lack capacity or judgment.  The Will could establish a trust for the benefit of that child.  
  1. If I am married or my parents are still alive, do I need a Power of Attorney or a Health Care Proxy?
  Often even a parent or a spouse does not have the authority to make medical decisions and/or access the finances of their child or spouse without a power of attorney and health care proxy.      
  1. I have a Power of Attorney and/or a Will that I got 15 years ago – are they still good?
  Everyone should have their estate planning documents reviewed periodically and certainly when they have a change in their lives/circumstances or if there has been a change to the laws.  A Will appropriate when written 15 years ago may no longer be appropriate.  For example, a Will that leaves everything in trust to minor children should be changed if the children are now grown.  If a child is going through a divorce, thought should be given to leaving that child his share in a trust.  Bequests to children with disabilities should be to a special needs trust for their benefit.  
  1. When I bought my house my real estate attorney prepared a Power of Attorney for me, is that sufficient?
  Many people think of powers of attorney as very simple documents—they are not simple and they can be essential.  Accordingly, they should be prepared by a qualified elder law attorney.  
  1. Since my family knows my wishes about artificial life support, do I need anything else?
  Decisions about refusing and/or discontinuing artificial life support can be made for another person, including a spouse, only if that person has a Health Care Proxy and obtains an Order from the Court.  
  1. I have a DNR (Do Not Resuscitate) Order, do I need a Health Care Proxy?
  Do not resuscitate orders expire after       days.  If you are no longer capable to request such an order, there is a statute that allows certain people, in order of priority, to make that decision.  That is not so in regard to any other medical decisions.  A Health Care Proxy is needed.  
  1. My child is disabled.  Do Elder Law attorneys help plan for disabled children?
  A large part of an Elder Law attorney’s practice consists of planning for disabled children…establishing Trusts for them, protecting and/or obtaining government benefits for them and/or seeking a Court Order appointing a Guardian for them.  
  1. I have a disabled child, should I leave him out of my Will?
  A parent can provide for a disabled child without disinheriting him/her by establishing a Special Needs Trust for that child.  Such a Trust provides for the child while still protecting his/her government benefits.  
  1. My husband had a stroke and is in a nursing home, will I be responsible to pay for his care?  Should I get a divorce?
  A spouse is legally obligated to pay for the support of the other.  As such, if one spouse requires nursing home care, the healthy spouse is responsible for that bill.   One way to protect the health spouse is to obtain Medicaid benefits for the spouse in the nursing home.  Divorce is never the only option and is actually rarely used.  
  1. I heard I am allowed to give away $13,000 per person per year.  Will that be a problem if I go to a nursing home?
  Although the IRS allows each of us to gift $13,000 per person, each year, Medicaid does not allow gifting of any amount if you seek Medicaid to pay the costs of a nursing home, unless the gift is to certain exempt people.  
  1. I want to be sure my children get my house but I want to be sure I won’t be thrown out.  How do I do that?  Will I keep my STAR and VA exemptions?
  Title to the home can be to the children or to an Irrevocable Trust for the benefit of the children, with the parent retaining a life estate interest in the home.  Keeping the life estate protects the parents and preserves all exemptions.  
  1. My wife is going into a nursing home.  Will I lose everything?
  If one spouse needs nursing home care, there are many options available to protect the assets of the spouse remaining in the community.  
  1. My wife is going into a nursing home and they told me I have to sell my house.  Is that true?
  No, the house does not have to be sold.  Be careful to follow legal advice only from an experience attorney and not from a neighbor, friend or other professional.  
  1. Dad is about to go to a nursing home.  I am joint on all of his accounts.  Is that okay?
  There is a presumption in New York that each joint tenant is the lawful owner of one-half of his/her share of the account.  At any time, he/she can withdraw the entire amount.  This presumption can be rebutted by evidence that the asset was really contributed solely by one of the joint tenants.  Medicaid is now looking at joint accounts with more scrutiny in terms of who contributed to the account.  Medicaid treats a withdrawal by either joint account holder as a transfer by the Medicaid applicant.  
  1. My daughter is disabled, how do I ensure that she is taken care of?
  Gifts and inheritances for a disabled child should always be do a Special Needs Trust.  
  1. Mom and dad have done no planning and both have Alzheimer’s Disease, how do I pay their bills?
  Mom and Dad are still presumed to be competent even with a diagnosis of Alzheimer’s disease.  As such, they should meet with an elder law attorney who will make a determination as to their mental capacity.  If the attorney feels that they have sufficient capacity to sign a legal document, a Power of Attorney should be prepared and signed immediately.  If the attorney finds them to lack capacity, the recourse would be to petition the Court to appoint a Guardian who can act on their behalves.  
  1. If I die without a Will, will the state get everything?
  If someone dies without a Will, they have died intestate.  The laws of intestacy determine who inherits from the decedent.  For example, if someone dies with a spouse and children, the estate is distributed fifty percent (50%) to the surviving spouse and fifty percent (50%) to the children.  
  1. My wife is in a nursing home. We both have Wills that leave everything to each other.  Is that okay?
  This is an example of a change in one’s life where the Will should be reviewed and in all likelihood be changed to take this situation into consideration.  You might prefer to leave everything to the children under these circumstances.  
  1. My accountant said I should have a Living Trust.  Should I?
  That depends.  Everyone’s situation is different and, although I have a preference for Trusts and feel they offer many benefits, they are not for everyone.  
  1. I heard there is no estate taxes anymore.  Does that mean I don’t gave to do any planning?
  The tax laws are changing and although there is no federal estate tax who those who die in 2010, this is expected to change.  
  1. If I only have a house and some bank accounts, do I need to do any planning?
  A house is most people’s single largest assets and for those who live in the Metropolitan area, a house can be a very valuable asset.  This should not be ignored and should be a part of someone’s estate plan.  
  1. Can I do my mother’s Medicaid application myself?
  Preparing and submitting a Medicaid application is extremely complicated a lot of finances are always at stake.  If an application is denied, the applicant will be personally responsible to pay the nursing home, which often costs more than $12,000 per month. Professional help should be sought for this process.  
  1. I have been paying all my mother’s bills from my account.  Can she repay me?
  Although you and your mother may consider your payments to have been loans, if your mother repays you, Medicaid will view this as a gift unless you and she signed a bona fide loan agreement prior to the payments.  
  1. If I have money and I give it away and then go on Medicaid, am I defrauding the government?
  You are not defrauding the government as long as all assets and transactions are fully and accurately disclosed with the Medicaid application.  Gifting is permitted in certain circumstances.  This is something that should be reviewed by a qualified elder law attorney.