Your Elder Law Lawyer in New York, NY

Experienced legal representation for matters pertaining to elder law including guardianships, wills, health care proxies and more throughout NY and NJ. Call 212-661-5858 today.

Guardianships (and how to avoid them)legal guardianship

When someone is unable to make his or her own decisions regarding his or her personal well-being or property, whether due to age, infirmity, physical or mental disability, or otherwise, a court may appoint a guardian over that person and/or his or her money and other property. The guardianship process involves having the court determine (1) that the appointment is necessary to provide for the personal needs or to manage the property and financial affairs of the person, or both, and (2) the person agrees to the appointment or that (more likely) the person is incapacitated and unable to consent to the appointment of a guardian. A determination of incapacity requires a showing that a person is likely to suffer harm because (a) the person is unable to provide for personal needs or is unable to manage property and financial affairs; and (b) the person cannot adequately understand and appreciate the nature and consequences of such inability.

Guardianships are not limited to the elderly. A guardian may be appointed for a minor (someone under the age of 18) or a person of any age who suffers from a disability. If you have a family member who may be in need of having a legal guardian appointed, you should contact us today.

How to Avoid Guardianships

Three words – Planning, Planning, Planning.

No one wants to have a court assign someone to handle his or her financial, personal and other affairs or make health care decisions for him or her. That is what can happen if it becomes necessary to appoint a guardian.

The best way to prevent this from happening is to prepare now. The two most important things you can do now to avoid having your life and finances put in the hands of someone else (possibly a stranger), are to name a health care agent in a health care proxy and to designate someone to manage your finances by signing a durable Power of Attorney. In the newest version of the New York State statutory short form Power of Attorney, there is a provision providing for the person signing the form, called the principal, to name the person whom he or she would want as guardian if such an appointment becomes necessary. To make the necessary preparations, contact us today at 212-661-5858.

protect your assetsAsset Protection

The costs of nursing home care or other types of care can be enormous.  In order to avoid having the assets you have accumulated over a lifetime taken to pay for nursing home or other care, it is critical to begin planning for protecting your assets as early as possible. With proper and timely planning, you may be able to transfer, gift or spend down your assets to qualify for government assistance, such as Medicaid.

We can help you develop a plan that will protect and preserve your assets and qualify for government assistance to pay for home health care or nursing home care.

Long-term Planning and Disability Planning

Persons with disabilities require significant legal planning for their long-term needs. Their family members also need guidance on how to effectively provide for the disabled person. To do this successfully, it is necessary to prepare a comprehensive plan that provides for the needs of the disabled person while preserving eligibility for government benefits, including Medicaid and Social Security benefits. In many cases, this can include preparing trusts, Powers of Attorney, or creating a guardianship.

We thoroughly understand the many legal issues that need to be addressed and the tools with which to do so and we can help you to prepare a comprehensive plan to meet your individual needs. We have successfully created many such plans for our disabled clients. Contact us now to find out how you can benefit from our disability planning services.

Health Care Proxies

A health care proxy is a document that enables you to select someone you trust to make health care decisions for you, in the event that you are unable to make those decisions yourself. The person can be a family member, a friend or anyone else. In New York, you can only name one person at a time; however, you may name alternates in the event that the first person cannot be reached. You can specifically outline your wishes in the document or leave it up to the person you designate to carry out your wishes. You should be certain that the person or people you name know your wishes and that he or she will make sure that your wishes are followed, even if the person(s) you name in the document disagree with them.

healthcare proxies and living wills

Call us today at 212-661-5858 to prepare a health care proxy that will ensure that your wishes for your care will be carried out if you become unable to make your own health care decisions.

Living Wills

A Living Will is a legal document that contains your instructions regarding the use of life-sustaining treatments and end-of-life decisions in the event that you are terminally ill, or suffering from an illness with little chance of recovery and are incapable of expressing your wishes.

A Living Will is different from a health care proxy in that it expresses your wishes, whereas a health care proxy designates a person to act on your behalf when you are unable to do so. A Living Will is a helpful document to have, particularly in the event that you have no one you wish to designate as your health care agent. Doctors, hospitals, and other medical providers will be able to discern your end of life decisions from this type of document when and if you can no longer make those wishes known.

We can prepare a Living Will that documents your wishes for your care if you become unable to make your own health care decisions.

binding power of attorneyPowers of Attorney

A Power of Attorney is a document in which you designate one or more persons to manage your finances or otherwise act for you if you are not able to do so. It can be limited to specific matters or it can be broadly drafted to give the designated person(s) authority to act for you in all matters. It can be limited in duration or it can be open-ended (in which case it remains in effect unless and until you revoke it). If prepared properly, it gives the person or persons designated the ability to deal directly on your behalf with banks, and other companies with which you have financial dealings – landlords, insurance companies, tax authorities and other governmental agencies.

The Power of Attorney form may be used to authorize the named agent to transfer funds or gift funds in order to promulgate an asset protection plan and/or for Medicaid planning purposes.

A Power of Attorney is a formal document that should be prepared by an attorney and signed under an attorney’s supervision. This is particularly true in New York, which has specific laws governing the requirements for a valid Power of Attorney.

For a legally binding Power of Attorney that will ensure that the person or persons whom you want to handle your finances will legally be able to do so contact us today.

Estate Planningestate planning

Everyone who owns anything has an estate. The estate may include your home, car, bank accounts, stocks, bonds, life insurance policies, retirement accounts, furniture, and collectibles. A Will is a legal document that specifies how your estate will be handled and distributed after your death.

Some people are under the false impression that if you die without a Will, your estate is paid over to the state. This is incorrect. In New York, if you die without a validly executed Will, your estate will be distributed to your spouse and/or blood relatives. You will have no control over the distribution of the estate assets without a Will. Therefore, your estate may be paid over to a relative you do not like or, possibly, to a relative you did not know existed.

People also believe that if they do not have a lot of money or property they do not need a Will. This is not wise. Every estate, no matter how small, must be submitted to the Surrogate’s Court of the state in which the person resided before he or she died so that the necessary legal authorizations are obtained for banks, brokerage companies, etc. to release the assets to the heirs of the estate. The process of doing this is called administration. It can be difficult and time-consuming for your heirs to go through the administration process if you die without a Will.

In New York, the Surrogate’s Court encourages the family of a person who dies with assets of $30,000 or less to apply for letters of administration (if there was no Will) or letters testamentary (in the event there was a Will signed by the decedent) without retaining an attorney. Estates with assets over $30,000 are generally more complex and the assistance of an experienced estate attorney is usually needed.

The way to ensure that your property passes to the persons you desire is to prepare and execute a valid Last Will and Testament. In order for a Will to be legally valid, it must be prepared and executed in strict compliance with state law. It is highly recommended that a Will be prepared by and executed under the supervision of a trained attorney.

There are a number of estate planning tools that can be utilized to minimize the expense of settling your estate and perhaps save taxes. A number of creative arrangements may be used to match your property with the needs of your heirs.

The lack of estate planning or inadequate estate planning can have serious adverse consequences on individuals and their families. Proper planning allows you to determine who benefits from your estate and who handles the details of administering your estate. Furthermore, proper planning may reduce the potential tax burden on your estate.

Estate planning tools may include tax saving strategies, various kinds of trusts, gift giving while you are alive, and methods of avoiding probate. When creating an estate plan consideration is also given to who should be appointed in the Will itself to handle the distribution of your assets, pay any taxes and to deal with any other issues that may arise after your death. This process is called probate.

If you do not have a Will or estate plan, you may not have the security you need to protect you or your family’s future. No matter how old or young you are, it is never too late or too early to start planning for the orderly disposition of your assets. Many of our clients derive a sense of satisfaction from knowing that after their death, their cherished property will be distributed to their heirs according to their wishes. We regularly guide our clients through the probate process, assuring that property passes to the intended beneficiaries with the goal of reducing estate, inheritance and income taxes. This is especially important in reducing probate costs and avoiding Will contests.

Willslast will and testament

A Will is a legal document that dictates what is to be done with your property after your death. Typically, a Will names one or more personal representatives (called an Executor, if male, or Executrix, if female) to collect the assets of your estate, pay your lawful debts and to distribute your property to your heirs.

A Will may be used in combination with life insurance, trust agreements, joint ownership arrangements and other financial management tools to create an overall estate plan.

If you have minor children, you can recommend who should be appointed as their guardian. You can name a person you believe is willing, qualified and able to raise your children with values similar to your own.

Children, grandchildren, and others may also be provided for using trusts and other financial planning in your Will. You can establish a plan to help pay tuition costs or delay an inheritance until a certain age or event in your child’s life.

Even if you believe that all of your assets are held jointly, Wills for both spouses tie up the loose ends and record the individual wishes of the maker of the Will.

In your Will, you can remember anyone, in any way you wish, whether he or she is a relative or not. You may also provide for a special gift to a qualified nonprofit institution or charitable organization. Many of our clients are devoted to their pets. Estate planning can also ensure that pets are well taken care of after you are gone.

Once your Will is initially prepared, you should review it regularly. It should be changed whenever your plans or circumstances change, or when tax laws change in ways that should be reflected in your plans.

If you need a Will contact us today at 212-661-5858. We will meet with you to discuss your intentions for the distribution of your estate. We can review any Will you may have in place and ensure that it meets with your current plans for the ultimate distribution of your assets, or if you do not have a Will, we can prepare a Will that ensures that your estate will be distributed in accordance with your wishes.

Trusts

Proper planning may require a careful preparation of one or more trusts. There are many types, including:

  • Revocable Trusts (trusts you can cancel)
  • Irrevocable Trusts (trusts you cannot cancel)
  • Living Trusts
  • Testamentary Trusts (trusts created in a Will)
  • Supplemental Needs Trusts
  • Charitable Trusts
  • Generation-Skipping Trusts
  • Insurance Trusts
  • Credit Shelter Bypass Trusts

As part of an estate plan, you may want to provide for distributions to minor children or grandchildren, or for their education or other needs. This type of trust can be established during your lifetime or in a Will. Trusts that are created within a Will are called testamentary trusts.

Trusts can also be created separately at any time while you are alive. There are many reasons to create a non-testamentary or living trust. Families with young children may want to create a trust for the care of the children in the event that both parents die. It is also common for an estate plan to leverage the marital deduction by using a credit shelter bypass trust. Other families, especially blended families, may wish to direct the ultimate beneficiaries of their assets by using a Qualified Terminable Interest Property Trust (also known as a QTIP trust).

These are just a few of the situations in which it is beneficial to create a trust. Contact us now to find out how you can benefit from the creation of one or more trusts.

medical benefit planningMedicaid and Medicare Planning

Medicaid has a complex set of eligibility rules, based on a person’s income and assets. If you do not plan properly, all of your assets and property could be used to pay for medical, home care and nursing home costs before Medicaid benefits begin. In order to prevent this from happening, it is critical to prepare a thorough Medicaid plan. We will meet with you and prepare a comprehensive evaluation of your family’s financial situation. The planning recommendations are designed to preserve the client’s assets for his or her spouse and other family members to the maximum extent possible. One should pre-plan for the possibility of long-term illness. However, in situations where this has not already been addressed, we will advise clients and their families after such illness occurs.

The rules of Medicaid eligibility are complicated and change constantly. New changes have gone into effect for 2013 and additional changes are anticipated as both Congress and New York State address deficit reduction and other economic issues. As Medicaid becomes increasingly complex, there are many pitfalls for the unwary and for people who may put off developing and executing a plan.

The Law Office of Emily Ann Klotz is well versed in the numerous requirements of Medicaid and can help you to prepare a comprehensive plan to maximize your assets. We can also assist with completing the necessary documentation to successfully apply for Medicaid benefits. Call us today at 212-661-5858 to learn more.

Probate and Estate Administration

Probate is the process of administering the provisions of a Will. It requires the filing of the Will in Surrogate’s Court, the appointment of the Executor named in the Will to act on behalf of the decedent’s estate, and all other steps necessary to carry out the provisions of the Will. Assets need to be collected, and debts need to be paid before assets can be distributed to the heirs. The Surrogate’s Court supervises this process by authorizing the Executor to pay taxes, write checks, handle remaining business affairs, sell property, and eventually distribute assets. This can be a long, complicated process and a bureaucratic nightmare for many families.

If the deceased person had a Will, his or her estate is disposed of according to the Will, once the Will is accepted by the Court. If there is no Will, someone, usually a relative, can petition the Court to be appointed to handle to deceased’s estate administration.

estate administration and litigation

The slow progress of an estate through probate or administration can be very frustrating. Although this complex process usually takes at least six months to complete, some estates can take years. Most people assume that their estate is simple and will move swiftly through the system. Regardless of how simple an estate appears, a full probate claim period is required by law to be at least six months long. Delays caused by an inexperienced lawyer can add weeks, months or years to the process.

We assist and counsel the personal representative of an estate with probate and trust administration matters, including: filing the Will, petitioning the court for appointment, obtaining Letters Testamentary or Letters of Administration (in the event of no Will), setting up testamentary trusts, preparing accountings, preparing inventories, and liquidating and distributing assets. Post-death issues sometimes include assisting personal representatives and potential heirs in Will contests, valuation or accounting disputes or in actions against trustees and personal representatives for breach of fiduciary duty. If you have been named as the Executor or Executrix of a Will, or if a family member has recently died, contact us now to determine what action you can and should take.

Estate Litigation

It is not uncommon for there to be issues or disputes regarding the provisions of a Will or administration of an estate. Perhaps assets cannot be accounted for, or the true intentions of the deceased are difficult to determine, or a Will may be suspected of having been prepared under questionable circumstances. Someone named as a beneficiary may feel that he or she has not received the amounts to which he or she was entitled, or that the executor of the Will has not acted properly. When these types of disagreements arise, it is critical that you are represented by experienced estate litigation counsel.

We have extensive experience representing clients in Will contests and other types of estate litigation. We are well versed in the requirements of the New York Surrogate’s Courts, which oversee all such litigation, and we have the knowledge and experience needed to enable our clients to successfully prosecute or defend such actions.

elder abuse helpSpousal or Elder Abuse

Have you been the victim of spousal or elder abuse, or do you suspect that a relative has been such a victim? In such cases, it is critical to act quickly in order to protect the victim. Documenting the claim with the authorities and obtaining an Order of Protection are essential to stopping the violence and protecting the endangered person.

The Law Office of Emily Ann Klotz has extensive experience taking the legal steps needed to protect abused spouses or the elderly. Whether the abuse is physical or emotional, we can take the legal action necessary to keep you or a loved one safe. Call us today at 212-661-5858.

 

Serving New York State and New Jersey.