Elder Law Overview

Elder Law provides an integrated approach to resolving the issues facing aging clients including: estate planning, advance directives, asset protection, special needs planning, disability planning, trusts, benefits, Medicaid, and long term care options.  We provide a comprehensive review of our clients’ finances, health care issues, planning currently in place, support systems available, entitlements, and objectives. With compassion and experience, we help guide our clients to create a plan that will maximize their independence and ability to age comfortably in the community. 

In order to plan for your future or address issues of concern, 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.

Supplemental Needs Trusts (SNTs)

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 who is receiving means-tested public benefits or entitlements such as Medicaid and Supplemental Security Income (SSI). It can be created by the beneficiary or another person during life, or can be created as part of a Last Will and Testament or Trust. Its purpose is to enhance the disabled beneficiary’s life. 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 is not considered available for 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.

The SNT Trustee can spend the Trust funds 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 cannot make gifts to anyone with Trust assets or income.

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).

First-Party SNT: 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, commonly an inheritance or a settlement. This type of 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.

Third-Party SNT: A third-party SNT is established by someone other than the beneficiary. It can be established by a Will or Trust for a disabled beneficiary of any age with funds belonging to third parties who are not legally responsible for the beneficiary’s support.  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.

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 ($1, 677.00 in 2023 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 assets and or 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 by the Pooled Trust for you. These funds are not considered available by Medicaid. As with the other SNTs, the funds placed into a Pooled Trust can be used to supplement the disbaled benefiary’s needs.  

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. New pending rules for Pooled Trusts will require funds to be spent within a prescribed period of time once implemented.

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.

Last Wills And Testaments

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 2023 is $12,920,000.00. This exemption is “portable” for a married couple if properly elected, therefore potentially qualifying a married couple for up to $25,840,000.00 in Federal estate tax exemptions in 2023. 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 2023. This figure assumes U.S. citizenship and does not account for previous taxable gifts.

The 2023 New York State estate tax exemption is, by contrast, $6,580,000.00, with a “cliff” for estates exceeding this amount by 5%, meaning that New York estates exceeding $6,909,000.00 in 2023 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 now “claws back” non-exempt gifts made within three years of death.  The interplay between estate taxes and capital gains taxes must be carefully 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.

Trusts

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.

Benefits of Establishing a Trust

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.

Types Of Trusts

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 ($,1677.00 in 2023 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

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 2023, Part A covers all approved inpatient hospitalization costs in any benefit period except for a per admission deductible ($1,600.00), a charge/ coinsurance for a stay beyond 60 days ($400.00 per day for in-hospital days 61-90 and $800.00 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 ($200.00 per day in 2023) 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 ($164.90 per month in 2023 for a single person earning $97,000 or less) and a yearly deductible ($226.00 in 2023). 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).

What Is The Part B and Part D Late Enrollment Penalty?

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.

Medigap (Medicare Supplement Insurance)

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. 

What To Consider Before Purchasing a Medigap Policy

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

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 2023, for an unmarried applicant, the New York State resource/asset limit is $30,182 and the income limit is $1,677.00 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 $1,033,000), 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 2023 income level for home care (Community) Medicaid is $2,268.00 per month and $40,821 in resources. To prevent spousal impoverishment when a spouse enters a nursing home for long term care, in 2023 the community spouse can keep a higher level than the home care allowance: up to $148,620 in resources (the minimum monthly maintenance needs allowance), plus $3,715.50 per month in income (the community spouse resource allowance).

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 [see Pooled Trust].

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 an income limit of $1,677.00 per month in 2023 for an individual. Unlike Medicaid for disabled, aged, and blind individuals, MAGI Medicaid 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 repeatedly delayed due to the pandemic, and is currently scheduled to take effect on April 1, 2024, unless repealed or further delayed.

If you may need Medicaid benefits in the future, you should consult an elder law attorney who is well versed in the fields of long term care, benefits and entitlements, preservation and transfer of assets, Medicaid, and disability planning, before making any transfers of your assets.

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.

Asset Protection

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 is a five-year lookback with strict penalties imposed for Medicaid eligibility if assets were transferred during the lookback period, if long term nursing home care is needed. Under the long term care nursing home transfer of resources and income rules, this means that the local 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.  Scheduled to take effect April 1, 2024, a thirty month lookback period is set to take effect 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. An experienced elder law attorney can assist you in evaluating and establishing a proper plan for your needs.

An exempt transfer of your home may be made to qualifying individuals without a penalty. However, this needs to be weighed against tax implications. 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, trusts to shelter your income and or assets to consider may include the “Irrevocable Trust” aka “Medicaid Income Only Trust” aka “Medicaid Asset Protection Trust”, and or a “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 as well.

Depending on the terms of the trust, the assets placed in a 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, and not to the principal 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 but may have a payback to Medicaid, if it is a first-party trust. 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.

Power of Attorney

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.

Important Changes to the Power of Attorney in New York

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:

• The Statutory Gifts Rider as required by the 2010 General Obligations Law was eliminated.  The Principal must now authorize the Agent to make gifts  by initialing Section (g), “Certain Gift Transactions”, on the Power of Attorney form.  Specific gifting provisions can be included in Section (h), “Modifications”.
• Exact wording is no longer required; the document must “substantially conform” with the language of the Statutory Short Form to be valid.
• The entire Power of Attorney document must be notarized and witnessed by two people who are not named as Agents or possible recipients of gifts. 
• Ability for a third person to sign on behalf of, and at the direction of, the Principal.
• The gifting threshold in the statutory powers (without specific gifting modifications) has been expanded, allowing gifts up to $5,000.00 in the aggregate (increased from $500.00 in the aggregate).
• Certain “optional” sections can be “intentionally omitted” from the executed form.
• For the first time, the law allows for Courts to award sanctions and damages (including attorney’s fees and costs) against third parties who have acted unreasonably in refusing to honor valid Powers of Attorney.

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.

Health Care Proxy

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.

What If You Change Your Mind And Want To Revoke Or Change Your Living Will Or Health Care Proxy?

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.

Living Will

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.

What If You Change Your Mind And Want To Revoke Or Change Your Living Will Or Health Care Proxy?

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.