Op-Ed: Failing to Plan is Planning to Fail

Op-Ed: Failing to Plan is Planning to Fail

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By Julie Stoil Fernandez

Eagle Op-Ed Contributor

Examples of abuse and predation are prevalent in Queens. Every day scammers and schemers target senior citizens as well as younger people with impaired cognition.

Individuals who fail to plan for their own potential impairments diminished capabilities also face future consequences.

But the financial and emotional damage they incur are avoidable with the help of an attorney.

Consider these examples:

A 68-year-old unmarried professor suffers a stroke that affects her memory and cognition and makes her more vulnerable to exploitation.

One day, she allows a transient man who is 20 years younger to share her bed, accompany her to ATM machines until he drains her accounts and intimidate her home attendants until they refuse to return to the house. The professor will not appoint her only child to assist her in a Durable Power of Attorney because she fears that her boyfriend will leave her if her money and apartment are no longer available to him.

A 37-year-old mother has an aneurysm during childbirth and survives but remains in a persistent vegetative state. Because she never executed a Health Care Proxy or Living Will to determine her wishes and intentions, her parents and husband spend the next 18 years litigating in Court, arguing over whether the removal of life support is in her best interests.

An 86-year-old unmarried and childless man is transported to a hospital after he fell at home. He is next transferred to a nursing home 10 miles away. His impaired memory prevents him from making any rehabilitative gains and the treatment team at the nursing home determines that he can not supervise himself at home. They say he requires long-term care.

But because he never executed a Durable Power of Attorney or a Health Care Proxy, he has no one to direct the nursing home.

Instead of returning to his large, comfortable home and using his money to pay for home care, he languishes in the nursing home, an environment he never chose to live in. The long-term stay depletes his savings.

Those are just three examples gleaned from the hundreds of cases our firm has handled, and a tiny fraction of the thousands of cases litigated in guardianship proceedings each year in the county Supreme Courts around New York.

Many of the catastrophic circumstances that lead to guardianship proceedings would have been entirely avoidable if the subjects, prior to suffering from events or disease that influence cognitive changes, met with an attorney for estate planning, which would include the execution of advance directives such as a Durable Power of Attorney, a Health Care Proxy and a Living Will.

In a better-informed world, we would treat the execution of these documents as a rite of passage to enter adulthood, much like registering to vote or applying for a driver’s license.

Instead, most of us fail to address these matters at all, causing those who become disabled or mentally impaired to suffer from neglect, exploitation and abuse until someone alerts the authorities to their plight.

With no one authorized to act on their behalf, people who are at risk for or who suffer from various mental impediments usually become the subjects of guardianship proceedings, in which Adult Protective Services, nursing home administrators or warring family members face off. Each party seeks the appointment to access the funds of the “Alleged Incapacitated Person” and obtain authorization to act on the person’s behalf by the state Supreme Court.

By the time these cases surface, the disabled individuals have already suffered personal harm or financial exploitation and are no longer in a position to advocate for the conditions under which they wish to live. Their court-appointed guardians, who have little working knowledge of their wards, must apply substituted judgment to make life decisions on their behalf.

When a guardianship proceeding commences on behalf of an “Alleged Incapacitated Person,” that person’s money and assets generally pay the attorneys and the court appointees at the conclusion of the case because, the reasoning goes, the proceeding has been brought before the Court in “the best interests of the individual” who has failed to plan ahead.

These fees can amount to thousands of dollars and can deplete the individual of the funds needed they pay for their own care.

Yet, without an advance directives in place, there is no other payment choice.

Many people have an understandable aversion to thinking about and signing these documents.

It is difficult to commit decisions to paper and no one wants to imagine themselves unable to stand up and speak out for themselves.

But this avoidance only puts us at a higher risk of having unwanted, expensive and even exploitative decisions made for us.

We often interpret the term “estate planning” to mean the preparation of documents designed to control the distribution of property after a person dies — a “Last Will and Testament.”

However, proper estate planning also provides an opportunity to analyze and protect available assets for use during a person’s lifetime. It empowers people to devise strategies to ensure that they remains in their home and live as independently as possible. It also enables peopleto appoint trusted parties to serve as future advocates.

In my opinion, the most important advance directives are the Durable Power of Attorney, the Health Care Proxy and the Living Will.

A Durable Power of Attorney is a document with the Principal appointing one or more Agents to handle financial matters. The document becomes active once the Agent signs onto the document, and will remain in effect after the Principal (owner of the finances) becomes incapacitated.

Be aware that the Durable Power of Attorney is only as good as the Agent appointed. It is important to consider who, among family members and friends, can be trusted with money, is capable of following instructions, understands you, and will abide by your wishes. Your Agent should have these qualities over and above being the most loved or the closest of people to you. More than one Agent can serve at a time – with authority to act together or separately.

A Health Care Proxy is a document in which you may appoint a Proxy (Agent) to make substituted health care decisions for you, should you become unable to make them yourself temporarily or permanently. Only one agent may serve at a time. Absent a Health Care Proxy, in New York State, a relative can be authorized to make substituted health care decisions under the Family Health Care Decisions Act – but only in the following order: A Legal Guardian, a spouse, any children (equals to each other) 18 years or older, a parent, a brother or sister 18 years or older, a close friend.

A Living Will is usually drafted with the Health Care Proxy. The Living Will contains personalized instructions with respect to end-of-life care and treatment in a witnessed document. It establishes the Principal’s wishes regarding the administration, withholding, or withdrawal of treatment when the Principal’s medical condition is irreversible or terminal, and the Principal is no longer able to articulate his or her desires. It also address pain management and other procedures to which the Principal wishes to have administered or denied. The Living Will assuages the guilt and confusion that often accompanies the decision to withdraw or administer treatment, and insures that the Agent is acting based on the clearly expressed instructions of the Principal.

While it can be difficult to commit to these decisions about your future, failing to do so will likely result in losing the opportunity to both assert your wishes about how your care and finances should be managed, and to authorize proper people to act on your behalf. Remember that knowledge is power, and that a good estate planning attorney will help you wield that power effectively, and most importantly – in your best interest!

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“She had full knowledge of my selected legal case and completed the work and case to my satisfaction. Highly Recommend!”
Jane Smith
New York, NY
“She had full knowledge of my selected legal case and completed the work and case to my satisfaction. Highly Recommend!”
John Doe
John Doe, Westchester NY
“She had full knowledge of my selected legal case and completed the work and case to my satisfaction. Highly Recommend!”
Maria Feliby,
Merrick, NY
Abby C. Zampardi, Associate Attorney
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Abby C. Zampardi

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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.

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Here is what our clients are saying

“She had full knowledge of my selected legal case and completed the work and case to my satisfaction. Highly Recommend!”
Jane Smith
New York, NY
“She had full knowledge of my selected legal case and completed the work and case to my satisfaction. Highly Recommend!”
John Doe
John Doe, Westchester NY
“She had full knowledge of my selected legal case and completed the work and case to my satisfaction. Highly Recommend!”
Maria Feliby,
Merrick, NY
Fern J. Finkel, Esq., Partner
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Fern J. Finkel, Esq.

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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.

Testimonials

Here is what our clients are saying

“She had full knowledge of my selected legal case and completed the work and case to my satisfaction. Highly Recommend!”
Jane Smith
New York, NY
“She had full knowledge of my selected legal case and completed the work and case to my satisfaction. Highly Recommend!”
John Doe
John Doe, Westchester NY
“She had full knowledge of my selected legal case and completed the work and case to my satisfaction. Highly Recommend!”
Maria Feliby,
Merrick, NY
Julie Stoil Fernandez, Esq., Partner
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Julie Stoil Fernandez, Esq.

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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.

Testimonials about Julie Stoil Fernandez

Here is what our clients are saying

“Five stars for Julie Stoil Fernandez and Finkel & Fernandez. I hired Julie to help me get authority to remove a dangerous family member from my mother's home, when my mother, due to Dementia, was no longer able to say she wanted the family member removed. Julie worked diligently, and tirelessly during this very lengthy process. Julie was always encouraging and confident that we would prevail, and we did!!”
-Michele S.
“I first hired Julie in 2004, when my partner suffered a stroke and needed the appointment of a guardian in Queens County. It was a hotly contested matter with one of the parties even getting violent in the courthouse. Julie worked tirelessly with great patience to assist in resolving the legal and personal issues. Her dedication to her clients is extraordinary. She followed up on every detail until the Guardians were in place and we were enrolled in all the proper rehabilitation programs. Later, my partner regained his capacity and Julie assisted us in terminating the guardianship. Finkel & Fernandez then assisted us in preparing our advanced directives last year and making sure my partner’s funds were protected from predatory family members.”
-Eileen M.

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Op-Ed: Failing to Plan is Planning to Fail

Examples of abuse and predation are prevalent in Queens. Every day scammers and schemers target senior citizens as well as younger people with impaired cognition. Individuals who fail to plan for their own potential impairments diminished capabilities also face future consequences. But the financial and emotional damage they incur are avoidable with the help of an attorney.

Read More »