Elder Law provides an integrated approach to resolving the issues facing aging clients including: estate planning, guardianship, preservation and transfer of assets, Medicaid, Medicare, Social Security, SSI, benefits and entitlements, long term care, elder abuse, nursing home issues, mental health issues, disability planning, planning for financial management during life, wills, trusts, powers of attorney, living wills, living trusts and health care proxies. The elder law attorney performs a comprehensive review of the client’s finances, health care issues, mental health issues, planning in place, support systems available, entitlements, objectives and planning for various scenarios. Recent legislation has created many complex issues which the elderly now face, including restrictions on transfers of assets, Medicaid and Medicare benefits. Actions taken by seniors with regard to a single matter may have unintended legal effects in other areas.
A typical example of a problem facing seniors is the well spouse who needs to write a Last Will and Testament to protect the ill spouse’s inheritance. There may be a strong likelihood of long term care placement in a nursing home for the ill spouse. The elder law attorney will guide the well spouse to plan in such a way that will protect the income and assets for both spouses in the event of nursing home placement while planning for Medicaid eligibility and the preservation of assets for the heirs, if possible. Another common scenario is when an elderly person is in a nursing home and cannot return home. The assets are dwindling and the home is in his name alone. The elder law attorney will consider whether there are options available to transfer the home without incurring a penalty, as well as options available to preserve the assets through the use of promissory notes, annuities, exempt transfers, and gifting. If the patient does not have capacity, evaluation of the planning documents in place will be made, and commencement of a guardianship proceeding will be considered. The elder law attorney has knowledge of the myriad of issues facing the elderly and will consider and integrate all legal aspects involved.
In order to plan for your future and resolve any of these issues, contact Fern J. Finkel at Fern Finkel & Associates, PLLC., 26 Court Street, Suite 2500, Brooklyn, New York 11242, 347-296-8200 (telephone), 718-965-3185 (fax), ffinkel@ffelderlaw.com.
*Disclaimer: The information contained on this website is provided only as general information and is not intended as legal advice, nor should it be used as a substitute for a complete review of your case by an experienced elder law attorney. All situations differ. By visiting this website, there is no attorney-client relationship established between you and Fern J. Finkel, or Fern Finkel & Associates, PLLC.
In the United States, people are presumed to have legal capacity to make decisions for themselves both personally and financially and to make decisions for their own legal dependents (minors or incapacitated persons), as long as they have reached legal maturity, which in New York is when a person turns 18 years of age.
Guardianship proceedings are hearings that are brought before courts for the appointment of a qualified person to make personal and/or financial decisions for a person who has demonstrated by diagnosis or by actions and behavior to be unable to make those decisions independently, once they have become legal adults.
For parents of developmentally disabled children, you are your child(ren)’s natural guardian until age 18. There is no date at which you will be alerted to bring a guardianship proceeding. But without the appointment of a parent or another person by a court, no one will have legal authority to make substituted decisions for that child financially, once the child turns 18.
Historically all guardianships were called Conservatorships and were governed by the Surrogates Court in each county. Since 1969, Surrogates Courts in New York have heard the petitions for guardianship of persons born with a disability that was diagnosable and able to be identified.
Over time, the concept of incapacity has broadened to incorporate many different bases for incapacity such as illness and injury, which can affect each person differently and require individually tailored supervision from a guardian.
In 1993, New York State enacted Article 81 of the Mental Hygiene Law – a statute intended to create more flexibility both in determining incapacity and in protecting a person’s ability to make certain independent decisions for themselves in areas not affected by incapacity.
Today, most guardianships are brought in Supreme Court in Article 81 Guardianship hearings including proceedings for the developmentally disabled. These hearings allow for a more individually tailored appointment of a guardian with powers limited to the established areas in which an alleged incapacitated person cannot manage independently. This approach allows the “incapacitated person” the dignity of participating in decisions that they are still able to effect independently, while protecting them against forced institutionalization, lack of benefits and lack of social support.
The legal standard to show incapacity under Article 81 is that the alleged incapacitated person (also referred to as “The AIP”), suffers from functional limitations which impair his/her ability to make decisions for him/herself and lacks an appreciation of such limitations. Proof of this has be made based on a standard of “clear and convincing” evidence and is usually presented in a narrative style by the Petitioner through testimony at a hearing
To meet this legal standard, a Petitioner in a guardianship would not be required to provide medical proof of functional limitations but must have sufficient evidence to show that the alleged incapacitated person is unable to manage important elements of his/her life and does not have the ability to appoint anyone to serve as a fiduciary, or, the alleged incapacitated person lacks an appreciation that s/he requires someone to be appointed to act on his/her behalf.
Persons alleged to be incapacitated are entitled to counsel to represent them and the Court usually appoints counsel for the AIP, unless or until they request to hire their own counsel. The attorney representing an alleged incapacitated person is responsible for representing the position of that incapacitated person, whatever that position may be.
In addition to Counsel for the AIP, a Court Evaluator is usually appointed during the proceeding. This is a person chosen by the Court from a list of qualified persons who have received training, whose task is to determine whether the pleadings are factually correct, whether a guardian is required in the case and if so, who and what powers are needed. Court Evaluators typically interview all parties and can request authority from the court to subpoena medical and other records for good cause shown. They are required to produce a report to the Court, of their investigation and recommendations. The Court can elect to share the report with the parties’ counsel or withhold it. But the Court Evaluator does testify as to their investigation and recommendations at the hearing, as the Court’s witness. All parties are entitled to cross examine a Court Evaluator and the Court can accept or ignore the recommendations of the Court Evaluator in the final decision.
There are also temporary and emergency powers that can be obtained in particular situations to address urgent problems being faced by an alleged incapacitated person before the hearing is even held. An example is a stay against an eviction or an unsafe discharge from a hospital or rehab center, or a stay on a bank account in which suspect transactions are reported or stays on sales of real properties or visitation by a predatory person, or the exercise of authority by a power of attorney or health care proxy suspected of fraud or misconduct.
At Fern Finkel & Associates, PLLC., we have represented petitioners in guardianships in both Surrogates and in Supreme Court in many counties in New York including all counties in New York City. We have been working with Article 81 of the Mental Hygiene Law since its enactment and are adept at understanding circumstances that will be favorably received in court and crafting the necessary powers and determining the scope of powers necessary to protect alleged incapacitated persons. Having been appointed multiple times as Counsel to the AIP, Court Evaluator and as Guardians ourselves, Julie Stoil Fernandez and Fern J. Finkel are experienced in caring for persons under a guardianship order and we can guide our clients through the qualification process and advise our clients on their management of fiduciary responsibilities.
Since the Spring/Summer of 2020, guardianship proceedings in NYC are scheduled and held virtually and will continue this way until further notice. There is no delay in filing or in being heard by the Courts due to Covid-19 in Article 81 proceedings.
*Disclaimer: The information contained on this website is provided only as general information and is not intended as legal advice, nor should it be used as a substitute for a complete review of your case by an experienced elder law attorney. All situations differ. By visiting this website, there is no attorney-client relationship established between you and Fern J. Finkel, or Fern Finkel & Associates, PLLC.
Supplemental Needs Trust: A Supplemental Needs Trust (SNT), also known as a Special Needs Trust, is a type of Trust commonly used to “supplement” care and needs for a beneficiary while receiving means-tested public benefits or entitlements such as Medicaid and Supplemental Security Income (SSI). It can be created by the donor during life or be created as part of a Last Will and Testament or trust. Its purpose is to supplement, not supplant, benefits and entitlements that the beneficiary may be entitled to receive. As long as the statutory requirements to establish an SNT are satisfied, the assets transferred to an SNT will not be treated as an available resource for most public benefit eligibility purposes. Essentially, the money in the SNT becomes invisible to most government benefit programs. The SNT is commonly used in New York for both Medicaid and SSI recipients to pay for extras that Medicaid and SSI do not cover.
There are three common types of SNTs: self-settled or first-party (using the beneficiary’s own funds); third- party (using other people’s funds); and pooled trusts (using the beneficiary’s monthly surplus income and or other assets).
A self-settled or first-party SNT is established for a disabled individual/beneficiary under 65 years of age. The Trust is funded with the beneficiary’s own funds or entitlements. This type of Trust previously required that it be established (settled) only by a parent, grandparent, legal Guardian, or Court. As of December 13, 2016, a person who is mentally capable is now entitled to establish his/her own self-settled SNT under the Special Needs Trust Fairness Act. This is a huge victory and step forward for mentally capable individuals, and is the result of years of lobbying efforts by special interest groups on behalf of disabled persons. This Trust requires a pay-back provision to Medicaid at the death of the beneficiary from any funds remaining in the SNT upon the death of the beneficiary for all Medicaid benefits paid during the beneficiary’s lifetime.
A third-party SNT is established by a Will or Trust for a disabled individual/beneficiary of any age with funds belonging to third parties not legally responsible for the support of the beneficiary. This type of Trust is established by someone other than the beneficiary. There is no pay-back provision to Medicaid at the death of the beneficiary, provided the estate of the beneficiary is not the recipient of the remaining funds. The Trust document can direct the disposition of any remaining funds upon the beneficiary’s death. The Trust document may allow the beneficiary or another person to direct the disposition of the funds remaining in the Trust upon the beneficiary’s death. The beneficiary’s Last Will and Testament, or a Power of Appointment, may alternatively direct the manner in which the remaining funds are distributed.
The SNT can spend the Trust money on anything not covered by the Medicaid or SSI programs to enhance and supplement the beneficiary’s life. Common uses may include a home, rent, taxes, utilities, repairs, common charges, apartment maintenance, clothing, food, additional home care services not provided by Medicaid, entertainment, travel, technology, furnishings, an automobile, automobile expenses, insurance, tutoring, companionship, transportation, and other supplemental items. If the SNT beneficiary is on SSI, payment for shelter and most related utilities will reduce the SSI benefit by up to one third. There is no reduction for Medicaid benefits for shelter costs. All payments from the Trust must be for the beneficiary’s sole use and benefit; the Trustee can not make gifts with Trust assets or income to anyone.
Pooled Trust: The Pooled Trust is a first-party SNT available to disabled persons of any age. It is often the best way for elderly recipients of public benefits to avoid losing their “surplus income”, the amount earned by the Medicaid recipient above the Medicaid income limit ($934.00 in 2022 with a $20.00 disregard in New York City), to Medicaid.
There are numerous nonprofit organizations in New York State which have Pooled Trusts. By establishing a Pooled Trust, you create a vehicle for sheltering your surplus income for your use and benefit, often enabling you to remain in the community. The Pooled Trust, once established, allows you to deposit your surplus income into a separate Trust account maintained for you and not have those funds considered available by Medicaid. Your surplus income placed into a Pooled Trust can be used for your needs rather than going to Medicaid as a spend down. Common uses of allowable expenditures include rent, taxes, utilities, repairs, common charges, apartment maintenance, clothing, food, additional home care services not provided by Medicaid, entertainment, travel, technology, furnishings, an automobile, automobile expenses, insurance, tutoring, companionship, transportation, and other supplemental items. If the Pooled Trust beneficiary is on SSI, payment for shelter and most related utilities will reduce the SSI benefit by up to one third. There is no reduction for Medicaid benefits for shelter costs.
There are several aspects to the Pooled Trust you must consider before seeking to establish one. At your death, any remaining funds in your account will most likely go to the nonprofit charity running the Pooled Trust and not to your beneficiaries. There are strict requirements and rules in the setup and approval of the Trust as well as in the payment of the bills. All payments from the Trust must be for your sole use and benefit; you can not make gifts with Trust assets or income. You must submit bills to the Pooled Trust to be paid which must be approved; there can be no request for cash. There are monthly and or annual fees incurred. Use of the Pooled Trust may lengthen the Medicaid approval process as a separate review of the Trust is done by Medicaid. Penalties for transfers to a Pooled Trust for persons over 65 years of age receiving SSI apply.
If you have questions regarding Supplemental Needs Trusts or Pooled Trusts, contact Fern J. Finkel at Fern Finkel & Associates, PLLC., 26 Court Street, Suite 2500, Brooklyn, New York 11242, 347-296-8200 (telephone), 718-965-3185 (fax), ffinkel@ffelderlaw.com.
*Disclaimer: The information contained on this website is provided only as general information and is not intended as legal advice, nor should it be used as a substitute for a complete review of your case by an experienced elder law attorney. All situations differ. By visiting this website, there is no attorney-client relationship established between you and Fern J. Finkel, or Fern Finkel & Associates, PLLC.
Any individual 18 years of age or older who is of sound mind may make a Last Will and Testament, also known as a Will. Your Will is a legal document that directs how you wish to dispose of your property after your death. The Will generally includes directions regarding what will happen to your real property [ie: condominium, house, land, etc.], your personal property [ie: your personal effects, clothing, jewelry, furniture, furnishings, household goods, collections, photographs, memorabilia, automobiles, etc.], and your digital assets, after your death. The primary reason for making a Will is to leave your property to those you care about, in the proportions you choose.
If you do not have a Will, those assets which would otherwise pass under your Will instead will be distributed according to New York State’s Laws of Intestacy. These laws determine how the property in your name, but without a joint owner, beneficiary or other designation, will be distributed among your family members, which often is not in the way you would prefer if given the choice. If you are survived by a spouse and descendants, your spouse would take the first $50,000 plus one-half of the balance of your intestate property, and your descendants would share the rest. If you are survived by a spouse but no descendants, your spouse would take all. If you are survived by descendants but no spouse, your descendants would take all. A Will is essential if you want to leave assets in any manner not consistent with the Laws of Intestacy. If you have a partner but are not legally married, your partner may inherit nothing without a properly drafted Will, and may even be forced from your shared home if proper protections have not been established in a carefully drawn Will or by testamentary substitutes.
A Will is tailored to your own particular needs and preferences. You will nominate as your Executor(s) the person(s) you want to direct and close out your affairs after your death. An Executor can be a relative, a friend, your lawyer, a bank, or a trust company that specializes in the handling of estates. If your estate includes a Trust, a testamentary Trustee(s) will also be designated in the Will. As the person directing the creation of the Will, the choice of Executor and testamentary Trustee is yours to make, and will not be left to the courts or others to decide. Successor Executors and Trustees can be named as well.
If you die without a Will and leave a minor child(ren), the Court may appoint a Guardian to manage any property your child(ren) inherits from you. The Court often appoints the child(ren)’s surviving parent as Property Guardian. Depending on the amount inherited, a bond may have to be posted, and if the surviving parent has credit issues, he/she may not be appointed. If any money would best be used to pay for your child(ren)’s education, clothing or living costs, the Property Guardian may need to obtain prior approval of the Court. The Court requires that the Guardian prepare Annual Accountings and will also require annual examinations of income and expenses. Investments of the guardianship funds may be limited or directed by the Court. The requirements and limitations imposed under guardianship law can be avoided by executing a properly drafted and well thought out Will. If your child(ren) does not have a surviving parent upon your death, or if the surviving parent is absent, incapacitated, alienated from the child, or otherwise unavailable, your child(ren)’s welfare will be protected if your Will identifies and nominates a trusted relative or friend to act as Guardian of your minor child(ren)’s property and personal needs. The person(s) designated in your Will as Guardian(s) for your child(ren) would not automatically have legal authority to act as Guardian upon your death; they will have to petition the Court for approval. While a Will cannot fully implement your future plans for your child(ren), it is strong evidence of your wishes regarding this important decision and is generally given great weight by the Courts.
You should have a clear picture of the assets you own, how they are titled and if there are beneficiaries designated when reviewing your current Will or planning to make a new Will.
Property held jointly (with right of survivorship) with another [“JTWROS”], held in trust for another [“ITF”], for the benefit of another [“FBO”], payable on death to another [“POD”], transfer on death to another [“TOD”], or which names a beneficiary [“BEN’Y”], will not be distributed through your Will but according to the designation(s) stated. Life insurance will be distributed to the policy holder’s beneficiary(ies), which may or may not be the estate. If the beneficiary is the policy holder’s estate, the policy will be distributed through the Will. The same process will apply to the distribution of individual retirement accounts, pension plans, jointly held accounts and other designated assets. It is important to understand that the Will is only part of the total plan for the distribution of your property, and is secondary to the designation(s) on your account(s) and holdings.
When you make a Will, you should also consider how estate taxes might affect you. The Federal estate tax exemption for persons dying in 2022 is $12.06 million. This exemption is “portable” for a married couple if properly elected, therefore potentially qualifying a married couple for up to $24.12 million in Federal estate tax exemptions in 2022. The Federal estate tax and Federal gift tax exemptions are “unified”; the tax rate for taxes on estates and gifts above the unified exemption amount is 40% in 2022. This figure assumes U.S. citizenship and does not account for previous taxable gifts.
The 2022 New York State estate tax exemption is, by contrast, $6.11 million, with a “cliff” for estates exceeding this amount by 5%, meaning that New York estates exceeding $6,415,500 in 2022 will be taxed from the first dollar. Unlike the Federal estate tax exemption, the New York State estate tax exemption is not portable. New York State’s estate tax rate is a maximum of 16%. Recent changes to the New York State estate taxes significantly limited the testator’s ability to make unlimited gifts in New York prior to death. Non-exempt gifts made in the three years prior to death will be added back [“clawback”] to the date of death value of the estate. The interplay between estate taxes and capital gains taxes should be evaluated before gifts are made.
Estate planning requires the knowledge and advice of an experienced professional. To create the best plan for yourself and for your beneficiaries, discuss your particular needs and planning objectives with an elder law attorney. By doing so, you will have peace of mind that the proper documents for your living and after death planning are in place. You should never hesitate to discuss the attorney’s fees in advance of your meeting.
If you have questions or wish to prepare or change your Last Will and Testament contact Fern J. Finkel at Fern Finkel & Associates, PLLC., 26 Court Street, Suite 2500, Brooklyn, New York 11242, 347-296-8200 (telephone), 718-965-3185 (fax), ffinkel@ffelderlaw.com.
*Disclaimer: The information contained on this website is provided only as general information and is not intended as legal advice, nor should it be used as a substitute for a complete review of your case by an experienced elder law attorney. All situations differ. By visiting this website, there is no attorney-client relationship established between you and Fern J. Finkel, or Fern Finkel & Associates, PLLC.
A trust is a separate legal entity for holding and investing property. One or more persons (the “trustee or trustees”) holds property for the benefit of another person (the “beneficiary”) or persons (“beneficiaries”). The “grantor” establishes the trust. The “grantor” or “donor” is the person who funds the trust. The “trustee” is responsible for managing the trust, and must use due diligence in protecting, investing and distributing the trust’s assets.
Depending on your personal financial situation, there may be advantages to establishing a trust. The most common reason is to avoid probate or to protect you or your loved one(s)’ assets if government benefits are needed. If the trust that you establish terminates upon the death of the grantor, property that is in the trust at the time of the grantor’s death will pass to the beneficiary(ies) by the terms of the trust without requiring probate. This generally saves time and money for the beneficiaries. A probate proceeding might result in a will contest by a disgruntled heir, and the statutory requirements of probate mandate that all interested parties be cited. Certain trusts can also result in tax advantages both for the donor and the beneficiary. Trusts may be used to protect property from creditors, to help the grantor qualify for Medicaid, or simply to provide for someone else to manage and invest the trust property for the grantor and or the named beneficiaries. Contrasted with wills, trusts are private documents and only those with a direct interest in the trust are required to know of the trust terms, assets and distributions. However, trusts are not for everyone, and there are costs involved in setting them up. Together with an elder law attorney, you should evaluate if the costs outweigh the benefits for your specific planning needs. Don’t be pushed into establishing a trust without knowing all of the costs that are involved, as well as the tax implications and the alternatives.
Revocable Trust: A revocable trust, often referred to as a “living” or “inter vivos” trust, is created during the grantor’s life. The grantor may maintain control over the trust and may amend, revoke, or terminate the trust at any time prior to death, depending upon the terms of the trust. The assets in a revocable trust are countable to the grantor for purposes of determining Medicaid eligibility.
Irrevocable Inter Vivos Trust: An irrevocable trust is created during the life of the grantor. The grantor does not retain the right to amend, revoke or terminate the trust after it is established. Any property placed into the trust may only be distributed by the trustee as provided for in the trust instrument itself. The donor can provide that he or she will or will not receive principal distributions and or income earned on the trust property. Depending on the terms of the trust, the assets placed in the irrevocable trust may or may not be considered available for Medicaid purposes. Irrevocable trusts, where the donor retains the right to income only, also known as a “Medicaid Income Only Trust” is a popular tool for Medicaid planning.
Testamentary Trust: A testamentary trust is a trust created by a will. This trust has no power or effect until the will of the grantor/donor is probated after his/ her death. A testamentary trust will not avoid the need for probate and will become a public document. Common uses for establishing a testamentary trust are for tax planning purposes, to provide a portion of the funds for the surviving spouse in a form that will not be considered available should he/she seek Medicaid eligibility to pay for long-term care, to provide for a child or other beneficiary upon your death in a controlled manner without leaving the assets outright, to provide for minors, to provide for persons with special needs, and to protect your beneficiaries and shelter them from spousal and creditor claims.
Supplemental Needs Trust: A supplemental needs trust (SNT), also known as a special needs trust, is a type of trust used to “supplement” care and needs while on a government benefit program. It can be created by the donor during life or be created as part of a will. Its purpose is to supplement, not supplant, benefits that the beneficiary may receive. As long as the statutory requirements to establish an SNT are satisfied, the assets transferred to an SNT will not be treated as an available resource for public benefit eligibility purposes. Basically, the money in the SNT becomes invisible to government benefit programs. The SNT is commonly used in NY for both Medicaid and SSI program recipients to provide funds to pay for the things that Medicaid and SSI do not cover.
There are three common types of SNT’s: self settled using the beneficiary’s own money; third party using other people’s money; and pooled income, using the beneficiary’s monthly surplus income.
For a self-settled SNT, the person must be under 65 years, the trust must be established by a parent, grandparent, legal guardian, or court, the person must be disabled, and there must be a pay-back provision to Medicaid at the death of the beneficiary from any funds remaining in the SNT at the termination of the trust for Medicaid benefits paid.
A third party SNT has no age limit for the beneficiary, no pay-back provision to Medicaid, and at death, the funds remaining in the SNT can be directed to another person.
The SNT can spend the trust money on anything not covered by the Medicaid program. Common uses include additional home care services not provided by Medicaid, entertainment, travel, technology, utilities, furnishings, an automobile, a home, or other luxury items. No cash can be given to the SNT beneficiary at any time. If the SNT beneficiary is on SSI, payment for shelter will reduce the SSI Benefit by up to one third. There is no reduction for Medicaid benefits.
Pooled Income Trust: The Pooled Income Trust is a first party special needs trust available to disabled persons over age 65. It is often the best way for elderly recipients receiving public benefits to avoid losing their “surplus income”, the amount earned by the Medicaid recipient above the Medicaid limit ($934.00 in 2022 with a $20.00 disregard in New York City), to Medicaid.
There are numerous nonprofit organizations in New York State which have pooled income trusts. By establishing a pooled income trust, you create a vehicle for sheltering your surplus income for your use and benefit, often enabling you to remain in the community. The pooled income trust, once established, allows you to deposit your surplus income into a separate trust account maintained for you and not have those funds considered available to you by Medicaid. Money comes out to cover anything not covered by Medicaid, thus, your surplus income can be used for your needs rather than going to Medicaid as a spend down.
There are several aspects to the pooled trust you must consider before seeking to establish one. At the time of your death, any remaining funds in your account will go to the nonprofit charity running the trust and not to your beneficiaries. There are strict requirements and rules in the set up and approval of the trust as well as in the payment of the bills you present. All payments from the trust must be for your sole use and benefit; you can not gift with trust assets and income. You must submit bills to the pooled trust to be paid which must be approved; there can be no request for cash. There are monthly and or annual fees incurred. Also, use of the pooled trust lengthens the Medicaid approval process as a separate review of the trust is done by Medicaid.
If you have questions or want to review or establish a trust contact Fern J. Finkel at Fern Finkel & Associates, PLLC., 26 Court Street, Suite 2500, Brooklyn, New York 11242, 347-296-8200 (telephone), 718-965-3185 (fax), ffinkel@ffelderlaw.com.
*Disclaimer: The information contained on this website is provided only as general information and is not intended as legal advice, nor should it be used as a substitute for a complete review of your case by an experienced elder law attorney. All situations differ. By visiting this website, there is no attorney-client relationship established between you and Fern J. Finkel, or Fern Finkel & Associates, PLLC.
Medicare is a federal health insurance program for eligible individuals over age 65, individuals under 65 who have been receiving Social Security Disability Insurance for over two years, and those who have end stage renal disease or amyotropic lateral sclerosis. Certain disabled persons under 65 are eligible for Medicare after receiving Social Security disability for 24 months. Medicare entitlement requires that the beneficiary worked at least 40 quarters (10 years) in Medicare-covered employment and is a citizen or permanent resident of the United States. There are no resources and income limits for receiving Medicare benefits, however, the Part B premiums are based upon income. Medicare pays some, but not all, health-care costs.
Part A, the hospital insurance component, is free for persons who worked 40 qualified quarters and covers hospital stays, limited days in a skilled nursing facility and limited home care and hospice services. Anyone 65 or over who is eligible to receive Social Security or Railroad Retirement benefits is automatically eligible for Part A, with no premium payment. Others may purchase this insurance for a monthly premium. In 2022, Part A covers all approved inpatient hospitalization costs in any benefit period except for a per admission deductible ($1,556.00), a charge/ coinsurance for a stay beyond 60 days ($389.00 per day for in-hospital days 61-90 and $778.00 per day for in-hospital days 91-150. Skilled care in a nursing facility is covered for up to 20 days without a coinsurance payment following a 3-day hospitalization in any benefit period (this requirement had been relaxed given the Covid crisis), with a coinsurance payment for days 21-100 ($194.50 per day in 2022) and no coverage beyond the 100th day. Home care is available on a very limited basis if it is medically necessary and ordered by a physician for skilled care. Hospice services are also available.
Part B covers medically necessary services including doctors’ services, emergency room services, outpatient care, laboratory services, certain mental health care charges, and other medical and preventive services. Part B has a monthly premium ($170.10 per month in 2022 for a single person earning $91,000 or less) and a yearly deductible ($233.00 in 2022). Part A and Part B do not pay for prescription medication, custodial care, long term nursing home care, hearing aids, eye exams, most dental services or dentures, routine foot care (unless the patient is diabetic), private duty nursing, cosmetic surgery, most treatment outside of the United States, and other services which upon review it does not consider as medically necessary.
Part C is the Medicare Advantage Plan health care option, similar to an HMO or PPO. Restrictions of the Part C enrollment include limiting enrollees to medical providers in the plan unless in an emergency, subject to approval. Medicare Part C may have a monthly premium which is dependent upon the plan selected.
Part D is the Medicare prescription drug coverage plan which provides financial assistance toward prescription drug costs. Part D costs a monthly premium depending on the plan you enroll in, and covers only part of your prescription drug costs with a yearly deductible and a copayment. After the initial coverage limit, you enter a coverage gap or “donut hole” where you pay out of pocket for all prescription drug costs up to the annual cap, after which you become eligible for catastrophic coverage.
Numerous plans are available, and a comparative review of the plans offered can be made at www.Medicare.org. Depending on your income, you may qualify for help with the Part B premium through the Medicare Savings Program (MSP) and or for help with the Part D premium through the Low Income Subsidy (LIS).
Penalties of 10% per year may be assessed against persons who wait to apply for Medicare Parts B and or D. To avoid penalties, it is important that you apply for Medicare when you first become eligible. You can apply 3 months before your 65th birthday. You can also apply at the same time you apply for Social Security benefits. If you do not apply for Medicare benefits within three months after your 65th birthday, you will have to wait for the next enrollment period (January 1 – March 31) and your Medicare benefit will not be effective until the following July 1st. It is important that you apply timely to avoid this harsh and permanent penalty. You can apply for benefits at your local Social Security Administration Office, online at www.Medicare.gov. or by calling 1-800-772-1213.
Medicare pays for many, but not all, hospital and health care services and supplies. A “Medicare Supplement” policy, or “Medigap” policy, sold by private insurance companies, can help pay some of the health care costs (gaps) that Medicare does not cover, including copayments and deductibles. Medigap insurance companies currently offer 10 standardized Medigap policies identified in most states by letters “A” through “N” [there are no plans offered for letters “E”, “H”, “I”, and “J”]. All of the private insurance companies provide the same benefits under their offered standardized plans, allowing you to compare the insurance premiums between them. Not all insurance companies offer all of the ten plans. A Medicare recipient may purchase a Medigap policy at any time without penalty for pre-existing health conditions; however, there may be a six-month period of non-coverage. Open enrollment to change plans runs from October 15th through December 7th of each year, with coverage beginning January 1st of the following year.
You must have Medicare parts A and B to be approved for a Medigap policy. You pay a monthly or quarterly premium for your Medigap policy to the private insurer, and you pay your monthly Part B premium as well. A Medigap policy only covers one person. If you and your spouse both want Medigap coverage, you must each purchase separate Medigap policies. It is important to compare Medigap policies since the costs vary and may increase as you get older.
The length of Medicare coverage for inpatient stays in a hospital is determined by the “benefit period” rules. Beneficiaries have 90 days of coverage in a benefit period. You have to pay the Medicare Part A deductible for the first 60 days of coverage and copayments as stated above. After exhausting 90 days of coverage, beneficiaries have 60 “lifetime reserve days” which are available once in a lifetime and for which you pay additional copayments.
A benefit period starts when the beneficiary enters a hospital or skilled nursing facility (SNF) and ends when the beneficiary has been out of the hospital or SNF for 60 consecutive days. There is no limit on the number of benefit periods that Medicare will cover in a general (non-psychiatric) hospital.
For questions about applying for Medicare, Medigap or other senior health-insurance questions, you can contact the Medicare Rights Center, (800) 333-4114; (212) 869-3850 (NYC), the NYC Department for the Aging Helpline, (212) 333-5511, or the Social Security Administration (800) 772-1213.
*Disclaimer: The information contained on this website is provided only as general information and is not intended as legal advice, nor should it be used as a substitute for a complete review of your case by an experienced elder law attorney. All situations differ. By visiting this website, there is no attorney-client relationship established between you and Fern J. Finkel, or Fern Finkel & Associates, PLLC.
Medicaid is a government health insurance program which may provide eligible individuals with medical care, services, and prescription drugs. Medicaid benefits include a full range of health care services, home care and institutional care services, medications, and medical supplies, many of which are not provided by Medicare or other coverage. Home care, long term nursing home care, physicians, dentists, inpatient services, outpatient services, physical therapy, occupational therapy, prescription drugs, dentistry, eye glasses, hearing aids, medical supplies, and a myriad of services may be covered by Medicaid if the services are medically necessary and the recipient is eligible.
An individual applying for Medicaid must prove that he/she meets certain requirements, including citizenship or legal United States resident status. The applicant must apply in the state and county where he/she resides, defined as physical presence and the intent to remain permanently or indefinitely. Medicaid eligiblity for disabled, aged and blind individuals is based on the income and resources of the person and responsible family members (spouse, or parent of a minor child). In 2022, for an unmarried applicant, the New York State resource/asset limit is $16,800 and the income limit is $934.00 per month (plus a $20.00 per month disregard in New York City). Some resources are not counted in determining your eligibility for benefits, including your primary residence (subject to an equity cap of $893,000), one car, burial allowance of $1,500, burial space, prepaid irrevocable funeral trust, personal belongings, furnishings, jewelry, and qualified retirement accounts and annuities in payout status.
For married couples, the 2022 income level for home care (Community) Medicaid is $1,367.00 per month and $24,600 in resources. To prevent spousal impoverishment when a spouse enters a nursing home for long term care, in 2022 the community spouse can keep a higher level than the home care allowance: up to $137,400 in resources, plus $3,259.00 per month in income.
The Medicaid Spend-Down program is available for those who do not meet the income requirements for Medicaid and are aged, blind, or disabled, under 21, pregnant or ADC (Aid to Dependent Children) related. If your income exceeds the limits, you may qualify for the Medicaid home-health-care program if you incur or pay medical charges equal to your excess countable income or use a Pooled Income Trust for the excess (surplus) income.
MAGI Medicaid is a program available under the Affordable Care Act for individuals under 65, children, pregnant women, and parents and caretaker relatives. MAGI Medicaid eligibility is based on a higher income limit ($1,563.00 per month in 2022 for an unmarried applicant) than traditional Medicaid (disabled, aged, and blind individuals), and does not have a resource/asset limit.
There are strict penalties imposed for traditional Medicaid for the transfer of assets if long-term nursing home (institutional) care is needed. Under the nursing home transfer of resources and income rules, the Medicaid office will look at uncompensated transfers or gifts made five years prior to the month of the application and will penalize the applicant as of the date of the nursing home application going forward based on their regional divisor and the amount of the transfers/gifts.
There is currently no penalty period for the transfer of assets when applying for Community Medicaid (home-care services), some adult day-care programs, prescription drug coverage, medical care, and other Medicaid benefits and programs. However, for the first time in New York, Community Medicaid applicants will soon be subject to a lookback period of 30 months with a resultant penalty period for benefits, for transfers made after October 1, 2020. The start date for the new rules was delayed due to the pandemic, and remains unknown at this time.
Other Medicaid changes that had been scheduled to take effect on October 1, 2020 include increasing the threshold to qualify for personal care services, including CDPAP. New applicants will soon have to require assistance with more than two activities of daily living, or be diagnosed with Dementia or Alzheimer’s Disease and require at least supervision or assistance with more than one activity of daily living. Housekeeping and other level 1 services will not be counted as care categories. An independent physician selected or approved by the New York State Department of Health, and not the applicant’s treating physician will soon be required to prescribe personal care services.
It is crucial that you do not transfer any of your assets before consulting an elder law attorney who is well versed in the fields of long term care, benefits and entitlements, preservation and transfer of assets, Medicaid, Medicare, and disability planning.
If Medicaid Home Care or Nursing Home services are on you or your loved one’s horizon, you will be required to provide all financial statements (each and every page for each and statement for each and every account) throughout the lookback period(s). Be proactive, save all financial statements, and do your planning ahead of time.
In order to plan for your future or if you have any questions contact Fern J. Finkel at Fern Finkel & Associates, PLLC., 26 Court Street, Suite 2500, Brooklyn, New York 11242, 347-296-8200 (telephone), 718-965-3185 (fax), ffinkel@ffelderlaw.com.
*Disclaimer: The information contained on this website is provided only as general information and is not intended as legal advice, nor should it be used as a substitute for a complete review of your case by an experienced elder law attorney. All situations differ. By visiting this website, there is no attorney-client relationship established between you and Fern J. Finkel, or Fern Finkel & Associates, PLLC.
One of the most common reasons clients seek the advice of an elder law attorney is for guidance in protecting their assets in the event long term care is needed, either immediate or at some time in the future. Under the Deficit Reduction Act, there are now stricter penalties imposed by Medicaid and SSI for the transfer of assets if long term nursing home care is needed. Under the long term care nursing home transfer of resources and income rules, the Medicaid office will look at all transfers made up to five years back and will penalize you for transfers made during this period of time beginning on the date you apply for long term care benefits [nursing home], going forward. The Medicaid office will soon begin to look at all transfers made after October 1, 2020, up to thirty months back, and apply a transfer penalty when you apply for Community [at home] Medicaid.
These transfer penalty rules apply to non-exempt transfers only. Caution must be taken before transferring assets and applying for any of these benefits, in case future long-term care will be needed. Your elder law attorney can assist you in establishing a proper plan for your needs.
An exempt transfer of your home may be made to qualifying individuals without a penalty. Transfers of assets to one’s spouse, or to other specific qualifying individuals, may likewise be made without a penalty. Where future long term nursing home services are anticipated, common trusts being utilized for income and or asset protection include the “Irrevocable Trust”, “Medicaid Income Only Trust”, and or “Supplemental Needs Trust”. Where community services are needed for a disabled individual, the “Pooled Income Trust” should also be considered. Strategies including the use of annuities, gifts, loans, promissory notes and long term care insurance should be discussed with a knowledgeable elder law attorney.
Depending on the terms of the trust, the assets placed in an irrevocable trust may or may not be considered available for Medicaid and public benefits purposes. Irrevocable trusts, where the donor retains the right to income only, also known as a “Medicaid Income Only Trust”, is a popular tool for Medicaid planning. Funds placed in a properly drafted Supplemental Needs Trust will not disqualify disabled beneficiaries for most governmental benefits. Disabled individuals over the age of 65 who wish to remain at home and are in need of Medicaid benefits, but need an income stream above the Medicaid income allowance, may be able to shelter their excess income in a properly established Pooled Income Trust, an invaluable and underutilized tool to help seniors remain in the community. Your elder care attorney will review your circumstances and help you decide upon what planning options are available based upon the particular financial circumstances to qualify you or your loved one for future or immediate long term care.
It is crucial that you do not transfer any of your assets before consulting an elder law attorney who is well versed in the fields of long term care, benefits and entitlements, preservation and transfer of assets, Medicaid, Medicare, disability planning and asset protection. The Deficit Reduction Act of 2005 imposed harsh penalties for transfers and extreme caution must be taken before any transfers are made.
In order to plan for your future or if you have any questions contact Fern J. Finkel at Fern Finkel & Associates, PLLC., 26 Court Street, Suite 2500, Brooklyn, New York 11242, 347-296-8200 (telephone), 718-965-3185 (fax), ffinkel@ffelderlaw.com.
*Disclaimer: The information contained on this website is provided only as general information and is not intended as legal advice, nor should it be used as a substitute for a complete review of your case by an experienced elder law attorney. All situations differ. By visiting this website, there is no attorney-client relationship established between you and Fern J. Finkel, or Fern Finkel & Associates, PLLC.
A Power of Attorney is an important legal document that allows you to designate an agent to handle your property, financial and legal affairs during your lifetime. The Power of Attorney enables you to delegate legal authority over your property, financial and legal affairs to another person of your choosing. The person who executes (signs) the Power of Attorney is called the Principal. The person who is given the legal authority to act on the Principal’s behalf is called the Agent or Attorney-in-Fact.
A principal can give an agent broad legal authority, or very limited authority. Powers delegated typically include the power to pay bills, handle insurance claims, bring or defend a lawsuit on your behalf, pay taxes, and may include much further and far reaching powers such as the ability to mortgage, sell or dispose of your real or personal property, make loans, borrow money, negotiate business transactions and sign leases as well as handle other important financial matters. The power of attorney should only be given with great caution, and only to an agent you trust completely. The power of attorney is frequently used to help in the event of a principal’s illness or disability, or in legal transactions where the principal cannot be present to sign necessary legal documents.
There are “nondurable,” “durable,” and “springing” Powers of Attorney. The “nondurable” power of attorney takes effect immediately or at a specified time and remains in effect until it is revoked by the principal, or until the principal becomes mentally incompetent or dies. It is most often used for a specific transaction, such as the closing on the sale of property, the handling of the principal’s finances while the principal is traveling or otherwise unavailable, or where the principal cannot be present to sign necessary legal documents. The “durable” power of attorney allows the agent to begin or continue to act for the principal after the principal becomes mentally incompetent or physically unable to make decisions or act. Both the nondurable and the durable power of attorney become ineffective if revoked by the principal or upon the principal’s death. Durable powers of attorney are frequently used to plan for a principal’s future incapacity or disability and loss of competence resulting, for example, from dementia, disease or a catastrophic accident. By appointing an agent under a “durable” power of attorney, the principal is setting up a procedure for the management of his or her financial affairs in the event of incompetency or disability. Durable powers of attorney enable a principal to decide in advance who will make important financial and business decisions in the future. They are also helpful in avoiding the expense of having a court appoint a guardian to handle the principal’s affairs in the event of incompetency or disability.
A power of attorney does not authorize your agent to make medical decisions for you. Those decisions have to be made by your health care agent designated in a health care proxy.
Effective June 13, 2021, Chapter 323 of the Laws of 2020 and Chapter 84 of the Laws of 2021 amended the provisions of the General Obligations Law relating to the use of powers of attorney in New York and created a new statutory short form incorporating the following changes:
Powers of Attorney in effect prior to these changes continue to be valid provided they were valid under the laws in effect at the time of their creation.
For further information, contact Fern J. Finkel at Fern Finkel & Associates, PLLC., 26 Court Street, Suite 2500, Brooklyn, New York 11242, 347-296-8200 (telephone), 718-965-3185 (fax), ffinkel@ffelderlaw.com.
*Disclaimer: The information contained on this website is provided only as general information and is not intended as legal advice, nor should it be used as a substitute for a complete review of your case by an experienced elder law attorney. All situations differ. By visiting this website, there is no attorney-client relationship established between you and Fern J. Finkel, or Fern Finkel & Associates, PLLC.
The New York Health Care Proxy Law allows you, as a competent adult, to appoint another person as your “agent” or “attorney in fact” to make decisions for you regarding your health care in the event you lose your decision-making capacity at some point in the future. You may also appoint a successor agent in the event your appointed agent is or becomes unable to act on your behalf. This document comes into effect at some time in the future, if and only if you become incapacitated and unable to effectively state your wishes. The health care proxy can be general and apply to all medical decisions, or it can impose limitations and contain specific instructions. It is crucial that you appoint a person you know you can trust to make health care decisions for you in accordance to your stated wishes. It is also important that you tell your agent what your wishes are.
A Health Care Proxy is far broader than a Do Not Resuscitate Order. The Health Care Proxy authorizes your appointed agent in case of your incapacity to direct all your treatment and health care decisions as he or she knows your wishes to be.
The New York State statute allows for the appointment of only one agent, with an alternate agent if the person you have appointed is unable, unwilling, or unavailable to act as your health care agent when needed. Two agents should not be named jointly. You as principal should sign the health care proxy in the presence of two adult, non-family witnesses who must also sign and date the form.
Your agent’s authority to make health care decisions under the health care proxy law is activated only upon your incapacity to make your own health care decisions and your inability to effectively communicate your wishes. As long as you have capacity to make your own health care decisions and the ability to communicate these wishes, the decision making as to your health care remains with you and your health care agent will not be able to act on your behalf. The health care proxy can be revoked by you at any time as long as you are competent.
Your agent can make decisions in accordance with your wishes, including your religious and moral beliefs, if known to your agent, or, if your agent does not know your views, in accordance with your best interests. It is crucial that your agent know your wishes regarding artificial nutrition and hydration. Decisions regarding artificial nutrition or hydration require your agent to have specific knowledge as to what your wishes are, without which, your agent will have no authority to make these decisions on your behalf.
Originals or photocopies should be given to your physicians, your health care agent, your alternate agent, your attorney and/or other advisor, and close family members. You should maintain the original in your “important papers file” and have extra copies on hand to provide to any new health care providers or in the event of a hospital visit. It is also recommended that you carry either a wallet card giving information about the existence and location of your health care proxy and living will or a copy of the health care proxy itself. A copy on your and your agent(s)’ cell phone or computer are also recommended for easy access in case of an emergency.
In New York, if a Health Care Proxy or similar document executed in another state complies with the laws of that state at the time it was drafted, the out of state health care proxy will be given full faith and credit (be honored) in New York. Correspondingly, most states generally consider valid and accept documents properly executed in another state.
Periodic reviews are important to ensure that the documents you have signed still state what your wishes now are. You can modify or revoke your living will or health care proxy or appoint a different agent at any time by destroying the document or by executing a new one. You should notify your agent, your attorney, your physician and any other health care provider and anyone who has a copy, verbally and in writing, of any change or revocation you make.
To download a New York State Health Care Proxy, please click here.
*Disclaimer: The information contained on this website is provided only as general information and is not intended as legal advice, nor should it be used as a substitute for a complete review of your case by an experienced elder law attorney. All situations differ. By visiting this website, there is no attorney-client relationship established between you and Fern J. Finkel, or Fern Finkel & Associates, PLLC.
A living will is a legal document in which a competent adult can state his/her wishes with respect to future medical care decisions. It comes into use when you can no longer make and communicate decisions regarding the medical care you wish to receive. It is used by persons who want to express their feelings about treatment that prolongs the process of dying and end of life decision making. The living will is intended to anticipate the situation wherein you might be in an incurable or an irreversible mental or physical condition, with no reasonable expectation of a meaningful recovery. Your instructions are usually intended to apply if you are in a terminal condition with no reasonale chance of a meaningful recovery, are permanently unconsciousness or in a persistent vegetative state, or are conscious but with irreversible brain damage and will never regain the ability to make decisions and/or express your wishes. You can specify under which circumstances the living will should come into use.
The living will allows you to make clear your desire not to have heroic measures made on your behalf if you are incapacitated as stated above. Stated objections to unwanted medical procedures and treatment can and should be specified within this document. Conversely, your decision to have administered all available life-sustaining treatment can also be stated, if those are your wishes. Some examples of specific matters that you should cover are your wishes concerning artificial nutrition and hydration, cardiac resuscitation, mechanical respiration, antibiotics, pain management, surgery, etc. It is especially important to be specific about artificial nutrition and hydration (tube feeding) since many statutes differ significantly with respect to this issue. You may also want to authorize the issuance of a DNR (Do Not Resuscitate) Order by your agent or physician.
The highest Court in New York has held that patient’s right to decline treatment is guaranteed by the common law. Although New York does not have a specific statute recognizing living wills as do most other states and the District of Columbia, the courts in New York have upheld those expressions of intent where the patients’ wishes have been established by clear and convincing proof—where it was proven that the person who has become incompetent had previously given clear and unequivocal instructions that he or she wanted life-sustaining measures to be terminated. Although your wishes may be stated orally, and might be proven by testimony of conversations, those wishes which are expressed in writing are preferable and much more convincing. The living will is the ideal document in which to express these wishes.
A living will should not be used as a substitute for a health care proxy, which is the preferred method for expressing your medical wishes in New York State. The health care proxy allows your agent to make decisions on your behalf as the situation unfolds. If you do not have anyone to appoint as a health care agent, then you should complete a living will. Along with the health care proxy, a properly drafted and executed living will also provides written proof of your wishes in the event your health care agent’s decisions as to end of life care on your behalf are challenged.
Periodic reviews are important to ensure that the documents you have signed still state what your wishes now are. You can modify or revoke your living will or health care proxy or appoint a different agent at any time by destroying the document or by executing a new one. You should notify your agent, your attorney, your physician and any other health care provider and anyone who has a copy, verbally and in writing, of any change or revocation you make.
For further information contact Fern J. Finkel at Fern Finkel & Associates, PLLC., 26 Court Street, Suite 2500, Brooklyn, New York 11242, 347-296-8200 (telephone), 718-965-3185 (fax), ffinkel@ffelderlaw.com.
*Disclaimer: The information contained on this website is provided only as general information and is not intended as legal advice, nor should it be used as a substitute for a complete review of your case by an experienced elder law attorney. All situations differ. By visiting this website, there is no attorney-client relationship established between you and Fern J. Finkel, or Fern Finkel & Associates, PLLC.
Fern Finkel & Associates, PLLC
Elder Law, Estate Planning and Special Needs
*Disclaimer: The information contained on this website is provided only as general information and is not intended as legal advice, nor should it be used as a substitute for a complete review of your case by an experienced elder law attorney. All situations differ. By visiting this website, there is no attorney-client relationship established between you and Fern J. Finkel, or Fern Finkel & Associates, PLLC.
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The New Yorker staff writer reads a poem written for the holiday season.
This chart will serve as a valuable reference tool for attorneys to use in cross-border Medicaid planning for their clients with interests in multiple states.
Abby C. Zampardi has been with Finkel & Fernandez, LLP since 2015, assisting clients in the drafting of all advance directives and drafting petitions and motions for guardianship litigation.
Prior to becoming the associate attorney at Finkel & Fernandez, Abby worked in the Foreclosure Part of the Nassau County Supreme Court, specializing in preparing orders and other documentation to assist with the adjudication of foreclosure cases.
Abby received her Juris Doctor degree from The George Washington University School of Law in 2014 and is admitted to practice law in New York and New Jersey. She received her Bachelor of Arts and Bachelor of Science, summa cum laude, from Binghamton University in 2011.
Abby was a Notes Editor and the Technology Editor of the Public Contract Law Journal, a publication of The George Washington University Law School in conjunction with the Public Contract Law section of the American Bar Association.
Abby is a member of the New York State Bar Association and the Brooklyn Women’s Bar Association.
Fern J. Finkel, Esq. is a co-founding partner at Finkel & Fernandez, LLP, concentrating in elder law, estate planning, asset protection, benefits and guardianships. She has been in private practice since 1990. Fern brings a wealth of experience and compassion to her clients. She is known for her skillful analysis of financial and personal circumstances and for providing practical planning to enable seniors and disabled clients to remain independent through advance directives, asset protection, benefits planning and trusts.
Fern graduated with honors from New York University College of Business and Public Administration in 1981. She received her Juris Doctor Degree from Boston University School of Law in 1984. She has been recognized as a New York Super Lawyers selectee in the field of Elder Law in 2014, 2015, 2016, 2017, 2018 and 2019.
Fern has been selected by the Courts, as well as by family members, to serve as the appointed Guardian and/or Trustee for many individuals in need of personal needs and property management. She represents clients in all aspects of guardianship proceedings and has been appointed as Counsel and as Court Evaluator by the New York State Supreme Court in countless cases. She has helped thousands of seniors through her extensive community outreach and pro bono services on behalf of the indigent elderly of New York City. Fern spearheaded the Legal Education and Assistance Project, known as LEAP, at the Brooklyn Bar Association Volunteer Lawyers Project. LEAP’s mission is to train and support pro bono attorneys in providing community outreach and education on all aspects of advance planning to seniors, with the goal of maximizing their independence and ability to remain at home long term.
Fern is the Treasurer of the New York State Bar Association Elder Law and Special Needs Section, Vice President of the National Academy of Elder Law Attorneys (NAELA) New York Chapter, Chair of the Brooklyn Bar Association Foundation Law Committee, Co-Facilitator of the Working Model of Guardianship – WINGS (Working Interdisciplinary Network of Guardianship Stakeholders), a Founder of the Touro Center Aging and Longevity Institute Guardianship Certificate Program, a Special Master of the Appellate Division Second Department Mandatory Civil Appeals Mediation Program, and Vice Chair of the Brooklyn Bar Association Elder Law Committee. She served for years as a volunteer certified mediator with Safe Horizons for community disputes, PINS cases and custody matters, as well as with the United States District Court, Eastern District.
Fern lectures for various Bar Associations and Continuing Legal Education providers on topics including the Role of the Guardian, Role of the Court Evaluator, Role of the Attorney for the AIP, Advance Directives, Medicaid and Asset Protection, Aging in Place, Supplemental Needs Trusts and Guardianships. She is a mentor attorney at the Brooklyn Law School HELP (Helping Elders Through Litigation and Policy) Clinic, the Touro Law School Externship Program, and the New York Law School Elder Law Clinic. Fern serves on the Committees on Character and Fitness for the Second Judicial Department.
Fern has received numerous awards for her pro bono service including: Selection as a 2019 “Champions of Justice: Women in Leadership in Law and Administration of Justice” Honoree by the Brooklyn Daily Eagle the 2013 Brooklyn Bar Association Volunteer Lawyers Project Building Bridges Award, the 2013 Brooklyn Bar Association Distinguished Service Award, the 2009 Brooklyn Bar Association Distinguished Service Award, the 2004 Women’s Bar Association of the State of New York Hanna S. Cohn Pro Bono Award, the 2003 New York State Bar Association Pro Bono Award for the Second Judicial District, the 1999 Brooklyn Bar Association Volunteer Lawyers Project Pro Bono Award, the 1996 Brooklyn Bar Association Frieda S. Nisnewitz Award for Pro Bono Service, and an Award of Merit from the National Center for Missing and Exploited Children 1997.
Fern was previously an Associate Attorney at the law firm of Damashek, Godosky and Gentile, where she litigated medical malpractice and personal injury cases.The New Yorker staff writer reads a poem written for the holiday season.
This chart will serve as a valuable reference tool for attorneys to use in cross-border Medicaid planning for their clients with interests in multiple states.
Julie Stoil Fernandez, Esq. a co-founding partner of Finkel & Fernandez, LLP is a highly experienced attorney who has been fighting for the safety and welfare of seniors and persons with disabilities since 1993.
Before beginning her legal career, Julie worked as a counselor for homeless men and women and, later, ran a 500-bed emergency overnight shelter for homeless men, forging close bonds with those in need of protection. Seeking to have greater impact, Julie attended law school at Northeastern University and graduated in 1992.
Immediately following law school, Julie worked at Manhattan Psychiatric Center on Ward’s Island in New York City for Mental Hygiene Legal Service, Appellate Division First Judicial Department, representing psychiatric patients in mental hygiene law retention hearings and treatment over objection proceedings in state and private psychiatric hospitals. Her representation included children institutionalized on Ward’s Island, and insanity acquittees at Kirby Forensic Psychiatric Center.
Julie Stoil Fernandez, Esq., Partner and ShirleyNext, Ms. Stoil started a solo elder law practice in Park Slope, Brooklyn which she continued for 15 years, providing guardianship representation, mental health advocacy and estate probate and administration. She also has since 1993, been appointed by judges in the New York State Supreme Court in all counties in New York City as Court Evaluator in Guardianship proceedings and as a Guardian and Trustee for persons adjudicated incapacitated. In 2015, she co-founded Finkel and Fernandez with Fern J. Finkel.
Julie is skilled at analyzing issues which arise when a person’s legal capacity is in question. She is quick to grasp complex fact patterns and excels at predicting the likelihood of success of a case. She creatively addresses emergencies which often arise while litigants are waiting to be heard on a guardianship matter and effectively negotiates agreements between oppositional family members in contested cases. She is a fierce advocate for her clients and, when litigation is necessary, Julie brings her extensive experience and passion to the cause.
Julie has assisted thousands of clients – protecting housing benefits; individual liberties and patients’ rights in institutional settings and the community; and through litigation, advocacy and special needs planning. Julie also is certified as an Elder Law, Family and Divorce Mediator and offers mediation services to parties who seek workable solutions to conflicts without litigation – an often-preferred method when addressing issues of mental illness and treatment compliance.
Julie is Co-Chair of the New York State Bar Association’s Elder Law and Special Needs Section’s Mental Health Committee, the National Academy of Elder Law Attorneys (NAELA) and the Brooklyn Bar Association where she is a member of the Elder Law Committee. She has been selected as a Super Lawyer in both 2019 and 2020.
Both Fern and Julie serve as mentor attorneys to students from New York Law School’s Elder Law Clinic, Touro Law School’s Elder Law Externship Program and the Brooklyn Law School’s Helping Elders Through Litigation and Policy (HELP) Clinic.
Julie has written several elder law articles and she lectures in continuing legal education programs and in the community, providing guidance on using advance directives to help seniors age in place and retain independence.
Julie received her Bachelor of Arts degree from Hampshire College in Amherst, Massachusetts in 1985 and received her Juris Doctor degree in 1992 from Northeastern University School of Law. She was admitted to the New York State Bar in 1993.
The Brooklyn Bar Association hosted a Mental Hygiene Law Article 81 Training session in Brooklyn Heights.
The Brooklyn Bar Association held its final continuing legal education seminar before it takes a break for the summer on guardianship cases.
The Brooklyn Bar Association’s Elder Law Committee hosted a Continuing Legal Education (CLE) seminar titled “Article 81 Skills Workshop: Motions for Interim Relief” in Brooklyn Heights.
