Frequently Asked Questions:
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Loved One Going Into A Nursing Home
One of my parents is currently hospitalized and cannot go back home. What should I be doing and how do I prepare for this transition?
By visiting Dutcher and Zatkowsky at this critical time, we can provide you with the necessary steps you can take immediately in order to make the proper decisions. We will need a full picture of that person’s finances and will give you advice accordingly on what your options are to pay for care, protect assets if possible , apply for benefits and plan for the transition. We can also provide you with recommendations for care managers to help with choosing a facility. We will advise you on which benefits your loved one has, what those benefits will pay for now and for how long, as well as which benefits they may be eligible to apply for.
The hospital is asking me to tour nursing homes/facilities for the placement of my family member. Where do I begin?
Dutcher & Zatkowsky can guide you through the process.
My parents are older and own their own home. Should they transfer it to the children?
The transfer of assets should not be done without consideration by an experienced Elder Law firm such as Dutcher & Zatkowsky. The transfer of assets, joint accounts, gifting of assets to children or grandchildren, will impact benefits they may apply for now or in the future. A consultation will answer these questions.
I have heard I will need to “spend down” my loved one’s assets in order for them to be eligible for Medicaid benefits.
In many cases we can protect those assets. Before acting on any information or advice such as this, make a consultation with us to discuss and understand all your options.
The nursing home has offered to apply for Medicaid Benefits for us.
We strongly recommend a consultation to determine whether your needs will be properly served or whether there are more options to explore and possibly protect before you have them apply for you.
How can my family afford the aides necessary to care for our loved one at home?
Your loved one may be eligible to apply for Community Medicaid which our office can do for you.
What happens if my spouse goes into a nursing home but I am living in the community?
We can take steps to protect you and your assets in the event your spouse will be institutionalized.
My loved one is hospitalized and will be transferred to a rehab facility. What will Medicare cover?
We can provide the specific information of what they cover and for how long. We will also be able to provide an overview of what to expect if your loved one needs a higher level of care and perhaps, additional benefits.
Death of a Loved One
Who should be notified when a person dies?
Once relatives and friends have been notified of the death, and after the funeral, the family member, Executor or Executrix should contact us to seek advice on the next steps to begin probate of the Estate or to determine if probate is necessary at all. You will need a certified, original, death certificate and current statements of all assets at that first appointment.
What happens when a person dies who is currently receiving benefits?
If the decedent is receiving a pension, or any other monthly benefits such as Social Security, Medicaid, or Disability, etc. those companies and/or agencies should be notified of the death. Once a bank or brokerage is notified, all funds are frozen until you can show that you have authority from the Court that you are entitled to marshal those assets as part of the estate.
Probating an Estate
How can I avoid probate?
Based upon your specific situation, Dutcher & Zatkowsky can advise and guide you on how to avoid having to probate your Estate, if possible.
As a war time Veteran, am I eligible for any additional benefits, should I need Medicaid in the future?
At Dutcher and Zatkowsky, all our attorneys are accredited by the Veterans Administration and we work with Veterans to help them preserve assets when qualifying for Medicaid. We can also direct them to Aid and Attendance benefits they may be entitled to.
Protecting Benefits My Loved One Receives
My family member receives benefits but has just settled a law suit or has a large inheritance coming. Can they keep their benefits and the sum of money?
Yes, you should schedule a consultation to discuss the options available to you.
I have a difficult situation with a loved one who needs someone to make decisions for them. What are my options?
A Guardianship is necessary when a loved one does not have a Power of Attorney in place, or that Power of Attorney refuses to act, or is acting inappropriately. Our firm is very experienced in complex guardianships and can help you determine if it is necessary though a consultation, review the process in detail and expedite the proceeding.
Can A Guardian Be Given The Authority To Pay The Bills For An Incapacitated Person?
This is the most common reason that guardianship proceedings are brought. Too frequently, an elderly person living in the community becomes forgetful or suffers from some mental incapacity, whatever the cause, and fails to pay essential bills such as utilities or real property taxes. The result can be devastating and even life-threatening. A court-appointed guardian can remedy this situation by obtaining the authority to collect assets, pay bills, make investments or exercise any financial right that the incapacitated person would be able to exercise if that incapacitated person had the capacity to do so.
Can A Court Appoint A Guardian to Stop Financial Abuse?
It is imperative that family and friends remain vigilant when a third-party is assisting an older adult with financial matters. Unfortunately, unscrupulous individuals take advantage of incapacitated people by fraudulently inducing them to give away their money. Occasionally, this includes close relatives who may believe that the senior citizen will be cared for in a nursing home, and no longer needs his or her life savings. An unjustified belief of “entitlement” leads some people to financially abuse the senior citizen. One common sign to be aware of is preventing the older adult from reviewing his or her own bank statements. Isolation from family and friends is also a behavior that should signal concern for the elder adult.
As part of a guardianship proceeding, a court can freeze bank accounts. A court can appoint a temporary guardian during the pendency of a guardianship proceeding to make sure that no one but the court appointee has access to the assets of the incapacitated person. A court can also authorize a guardian to commence an expedited proceeding to recover stolen assets.
How About Self-Neglect?
Sometimes incapacitated people do not provide themselves with proper medical care, creating unnecessary risk to health or life. They become incapable of taking care of their basic activities of daily living such as grooming, dressing, bathing, toileting and obtaining food. A visit to one’s house and a peak into the refrigerator may reveal spoiled food or inadequate nutrition available. Sometimes large amounts of debris accumulate in the homes of incapacitated people, either through years of collecting or failure to discard. A guardian can be given the authority to remedy these kinds of situations. The authority that can be granted by the court includes the authority to put home care in place, the authority to perform a heavy duty cleaning on the residence and, if necessary, the authority to place the incapacitated person in an appropriate residential care facility.
Can I Commence A Guardianship Proceeding To Stop Physical Abuse?
Sometimes family members or acquaintances will physically abuse an incapacitated person. Signs may include frequent bruises or other physical evidence of aggression. Seeking help from a local agency, including Adult Protective Service fo the local County Department of Social Services (for Monroe County, click here http://www.monroecounty.gov/aging-psa.php) may serve as a helpful resource and its intervention may solve the problem. You may also want to consider the appointment of a guardian who can be given the authority to take measures to stop physical abuse. These measures can include injunctions which require the abuser to refrain from certain activity, implementation of a home care plan, residential placement, the granting of an order of protection, or the granting of authority to apply to the family court for an order of protection.
Can A Guardian Can Be Authorized To Engage In Medicaid Planning?
The care of an incapacitated person can be very expensive. Significant amounts of home care or a residential placement can cost many thousands of dollars per month. It is often possible to obtain Medicaid eligibility for home care or residential facility benefits if the assets of an incapacitated person can be transferred or placed into a trust pursuant to qualified Asset Protection techniques. Under appropriate circumstances, a court can authorize a guardian to take the steps that are necessary to obtain Medicaid eligibility for an incapacitated person. Many people prefer to leave an “inheritance” for family members rather than spend it all on nursing home care. For those people, Medicaid Planning and Asset Protection is a serious consideration. But where the AIP now lacks the capacity to make those decisions, a guardian may be necessary. Some are under the mistaken belief that a power- of-attorney is enough to accomplish this goal, but the power-of-attorney may limit or even prohibit the gifting powers of the agent.
What About Tax Planning?
For incapacitated people who have significant wealth it may be advantageous for estate tax reasons to give gifts to family members while the incapacitated person is alive. A guardian can be authorized by a court to make gifts in order to reduce estate taxes.
How Long Does It Take For A Guardian To Be Appointed?
While each case is unique and tailor-made, generally, the court is required to conduct a hearing within 28 days of the start of the proceeding. In some cases, an ongoing investigation by court-appointed Court Evaluator (to be the eyes and ears of the court) may lengthen the process based upon a variety of medical and cognitive assessments. It is the job of the Court Evaluator to conduct an investigation and provide the court with a report with regard to the facts and circumstances of the case. In our vast experience, most guardianship cases are completed within 2 months of commencement. We believe that no attorney in Monroe County has brought more Article 81 guardianships than Dutcher & Zatkowsky.
To start the proceeding, a person or entity, called a petitioner, must ask the court to appoint a guardian. Almost anyone can be the petitioner. Upon the filing of the petition, the court may appoint a Court Evaluator or an attorney to represent the AIP, or both. The Court Evaluator normally expresses an opinion as to whether or not the appointment of a guardian is necessary.
When the petition is filed the court also sets a hearing date and orders that notice of the filing of the petition be given to close family members.
At the hearing it is necessary for the petitioner to present the court with clear and convincing evidence that the incapacitated person is incapable of managing certain aspects of his or her personal and/or financial affairs. The Court Evaluator presents his or her report at the hearing. Anyone who has filed opposition papers, or otherwise wishes to be heard, will also be given an opportunity to be heard. After the hearing the court will normally render a decision.
Who Can Be Appointed As Guardian?
New York State law creates a list of eligible guardian. Generally, any individual over eighteen years of age who is found by the court to be suitable to exercise the powers necessary to assist the incapacitated person may be appointed as guardian, including but not limited to a spouse, adult child, parent, or sibling. Additionally, social service agencies and certain other legal entities may be considered by the court pursuant to Mental Hygiene Law §81.19.
While family members are given preference when the court determines who should be the guardian, the circumstance of the case will guide the court in its decision. If there is a difference of opinion among family members as to who should serve as guardian, the court will frequently appoint an independent guardian, whose name would be taken from a list maintained by the court, including social service agencies active in the area.
The court may impose certain conditions to the appointment of a guardian, including the purchase of a bond in an amount set by the court. A bond is an insurance policy which is paid for out of the assets of the AIP which insures the incapacitated person against theft or other malfeasance by the guardian.
What Are The Duties And Responsibilities Of A Guardian?
A guardian must visit the incapacitated person at least four times per year.
Within 90 days of appointment as guardian, the guardian must file what is called an initial report. The initial report typically contains a brief summary of the status of the incapacitated person and a list of the assets of the incapacitated person.
By May 31 of each year the guardian must file an annual report with the court which explains in detail all income and disbursements from the previous calendar year.
These are documents you create while you are competent informing others of your wishes to be honored when you can no longer express yourself.
Power of Attorney
What is a Durable Power of Attorney?
Just as it is important to appoint someone to make health care decisions, you should also appoint someone you trust to handle your financial matters on your behalf. A durable power of attorney is important to have in advance because a sudden medical event may render you unable to sign this important document in the future.
A power of attorney cannot be used to make health care decisions and a health care proxy cannot be used to make financial decisions in New York. You need both documents.
Who needs a Power of Attorney?
Everyone over the age of 18 should have a Power of Attorney (POA). It is the single most important document to avoid a guardianship if you are temporarily or permanently incapacitated and unable to make decisions as a result of a catastrophic injury or event. It allows someone you choose and trust the ability to manage your financial affairs, to pay bills, apply for benefits on your behalf, protect your assets, handle real estate property, and many other powers, depending on how it is drafted.
One key myth is, because you are married, you have authority to access financial accounts for your spouse. Without the proper written authorization, such as a properly drafted power of attorney, one spouse cannot get information on accounts or access resources in the sole name of the other spouse.
Are all Powers of Attorney the same?
No. The laws regarding powers of attorney changed in 2009 and again in 2010. If the power of attorney is older, then it should be updated. Even if it is still valid, it may not accomplish your needs since you last updated the document. Any Power of Attorney should be reviewed. With our years of experience at Dutcher & Zatkowsky, we create a document so that it is more comprehensive than most and therefore able to cover a number of planning issues that may unexpectedly arise.
What if my spouse has a stroke and needs a nursing home?
A stroke can cause devastating results. Stay healthy, eat right and exercise. But some things are completely out of our control. If a loved one has a sudden life-changing medical event, you may need to redo your estate plan or even engage in Medicaid planning to protect your assets.
What is Medicaid Planning?
Needing a nursing home can cause a family to lose their life savings. Medicaid planning is a proven way the law allows you to protect assets. Every case is different, so a consultation is the only way to better understand what you are entitled to keep.
Health Care Proxy
What is a Health Care Proxy?
A Health Care Proxy is a document you sign appointing a surrogate to make a decision for you at a time in the future when your doctor determines that you cannot give your own informed consent about a medical procedure.
The health care proxy can simply appoint a surrogate for health care decisions, or go a step further and spell out your wishes, including end-of-life decisions.
Who should have a health care proxy?
Everyone over the age of 18 should have one. You should select someone you trust with whome you are certain will honor and abide by your wishes. If you neglect to sign a health care proxy, then the law decides the order in which others involved in your life can decide on your behalf.
What happens if I don’t sign a health care proxy?
New York has a Family Health Care Decisions Act (FHCDA) which identifies the person or entity that can make a medical decision on your behalf if you are unconscious or incapacitated in any way. Rather than relying on the government to make the selection for you, it is wise to designate the person you choose to make those decisions for you, including end-of-life decisions. You should not only have a health care proxy, but you should be comfortable having a conversation about your health care wishes with the agent you choose.
Last Will and Testament
What is a Will?
A Will is a document carefully drafted and executed which specifies how and to whom you want your assets distributed at death.
Do I need a Will?
If you die without a Last Will & Testament, the Public Administrator will decide what happens to your possessions and assets instead of you. Even if you do not have a great deal of assets, a Last Will and Testament will protect your wishes.
Do I have to go to Court?
Even with a proper Will, the bank will not turn over the decedent’s bank account to you. You must go to Court to get the proper permission and documentation to collect the assets of an estate. In most cases, we can avoid you ever having to step foot into Court.
What is a Trust?
A trust can become complex. It can be created by your Will or separately during your lifetime. A trust can be revocable or irrevocable. One key benefit of a trust is that it can help you avoid having to go to Court to probate a Will. It can also be a vehicle to protect significant assets in the event you need a nursing home in the future.
Do I need a Trust?
We can review your finances and determine whether a Trust will help protect your assets both during your life and/or after death and possibly avoid the need to probate an Estate. Here at Dutcher & Zatkowsky, we specialize in the many types of Trusts that can be utilized, depending upon your specific situation.
Supplemental Needs Trust
What is a Supplemental Needs Trust?
This is a unique trust which allows a disabled person to be a beneficiary of a trust yet still qualify for government benefits based upon income or assets.
Dutcher & Zatkowsky has the experience with Supplemental Needs Trusts and government benefits and can draft the necessary documents and provide you with the information needed to provide lifetime assistance to your loved one.
What is a Pooled Trust?
A supplemental needs trust cannot be created for someone over the age of 65, unless it is a Pooled Supplemental Needs Trust. A pooled trust is a trust through a charity where the assets of each disabled person is pooled into one main account. Through a sub-trust for each beneficiary, the trust accounts separately to each beneficiary. This tool allows the beneficiary to qualify for government benefits such as Medicaid while also enjoying the benefits of the assets or income in the pooled trust.
Attorney Zatkowsky is a trustee of the Future Care Planning Pooled Supplemental Needs Trust.
What is a Living Will?
A living will is a document whereby you identify and express your health care wishes, particularly end-of-life decisions. We generally recommend that you make this expression in your health care proxy and discuss your wishes with your designated agent.