Revocable Living Trust

AARP agrees that utilizing a revocable living trust is the new thing! Revocable living trusts provide savings opportunities, save probate expenses, and provide other advantages over a will.

What is a revocable living trust?

It is a relationship established between three parties:

    1. The creator of the trust;
    2. The trustee who manages the property within the trust and distributes proceeds to beneficiaries; and
    3. The beneficiaries who receive the property according to the terms of the trust.

A revocable living trust allows assets within the trust as well as income generated by those assets to be managed and distributed by the trustee. The trust income and property are then distributed in accordance with the terms and conditions of the trust. This type of trust is referred to as a living trust because it is established during the life of the creator.

How does one benefit from a revocable living trust?

A revocable living trust provides numerous benefits to the creator. If the creator becomes incapacitated, the trustee is typically authorized to manage all of the assets within the trust as well as any obligations in accordance with the terms of the trust without court intervention. A revocable living trust will also provide financial assistance to family members if the creator becomes incapacitated. Upon the death of the creator, the trust transfers assets outside of the estate and outside of probating a Will. A living revocable trust can also be structured to minimize federal or state tax consequences. A revocable living trust also allows the creator to act as trustee, either with their spouse or without their spouse, or even revoke or modify the trust prior to death.

How does a revocable living trust compare to a will?

Both a revocable living trust and a will are tools that provide a method of passing property and other assets to family members and loved ones. However, a revocable living trust avoids the probate process, whereas a will does not. Unlike a will, a revocable living trust does not need to be administered by a probate court. By avoiding probate, an estate can essentially save numerous costs and assets will be distributed faster to family members and loved ones. In addition, a revocable living trust protects the privacy of the decedent as well as their finances. While court documents and the probate process are a matter of public record, a revocable living trust is handled outside of probate and is therefore kept private.

The attorneys at Hobson-Williams, P.C. are skilled in all aspects of elder law and are dedicated to representing clients with diligence and compassion during emotional times. Contact the experienced New York elder law attorneys at Hobson-Williams, P.C. for a consultation by calling them at 866-825-1LAW or vising them at www.thobsonwilliamslaw.com.

Keeping Your Will Updated and Naming Beneficiaries on Assets

A Last Will and Testament is an important estate planning document that contains provisions for assets and the distribution of property upon death. Unfortunately, many individuals fail to account for assets that do not pass directly under a Will. These assets may include life insurance policies, pensions, IRAs, and 401(k) or 403 plans. After the policyholder of these assets dies, the policies may distribute the benefits to their heirs at law if there is no beneficiary designation and no Last Will and Testament. Following major life events, such as marriage, divorce, change of employment, disability or death of a spouse, individuals should create or update their Last Will and Testament and their beneficiary designation forms on retirement benefits or other assets.

 

A life insurance policy is a financial instrument that pays out a sum of money either on the death of the policyholder or after a set time. A policyholder must designate a beneficiary of the policy proceeds when he or she passes away. If the individual fails to update their policy, especially following a major life event, an unintended party, such as a former spouse, may end up being the sole beneficiary. For this reason, it is best for policyholders to consistently amend and update polices to align with their wishes for the future. A policyholder may be able to name their estate as a beneficiary, to have the policy’s proceeds pass under a Last Will and Testament and divided amongst the individual’s designated beneficiaries. However, if the proceeds become part of the insured’s estate, they are not exempt from the estate’s creditors and are subject to probate.

 

Generally, if the deceased names a beneficiary for a pension, IRA or a qualified retirement plan such as a 401(k) or 403 plan, it will not be subject to probate and thus the terms of a Will do not control. Once an individual dies, the beneficiary named on the policy or IRA will be entitled to the funds remaining in the account. To access the funds, the beneficiary makes a claim and the IRA/Pension/Insurance policy makes a payment or a series of payments to that person.

 

However, complications arise when individuals fail to keep beneficiary designations up to date or fail to name a beneficiary at all. If an individual does not name a beneficiary, the funds will be payable to the estate and subject to probate for distribution. The probate process could result in delays, reducing the amount of funds received by the beneficiaries and limiting payout options. It is important that, if the individual gets married, has children, or gets divorced, he or she updates their beneficiary designations. If an individual dies without changing a plan’s designation from a former spouse, his or her ex-spouse will be entitled to its contents, even if the ex-spouses haven’t spoken in years or if the ex-spouse remarried. It is important to also update the retirement accounts if a beneficiary passes away. If a beneficiary dies before the account holder, it would be construed as if there were no beneficiary named and the account’s funds would most likely be payable to the estate and subject to probate.

 

Neglecting to update a Will, life insurance policy, and retirement accounts when major life events occur may lead to unwanted outcomes. It is important that individuals review these documents regularly to ensure that it reflects their current situation and wishes for the future. If you or a loved one needs assistance with reviewing a Will or another estate planning matter, look to the experienced New York estate planning lawyers at Hobson-Williams, P.C. The firm’s attorneys will help you establish an estate plan that is reflective of your current wishes and will help ensure your assets will pass as intended. For more information or to schedule a consultation, call contact our New York estate planning law firm at (718) 210-4744.

Judge Decides Not to Dismiss Case Against Nursing Home

Eladia Ciprian, an 80-year-old patient at St. Barnabas Rehabilitation and Continuing Care Center, will not have her case dismissed for the center’s failure to correctly diagnose and treat a hematoma in her right bicep. A Bronx County Supreme Court judge decided not to dismiss the case after the center claimed she made no proof of the nursing home’s neglect or deprivation of her rights.

Rather than bringing a medical malpractice suit against the center, Ms. Ciprian filed a claim under Public Health Law § 2801-d. The law allows a private right of action based on the willful deprivation of certain rights of patients by nursing homes and other residential facilities. The rights of the statute protect a patient’s right to appropriate medical care, to be informed of their medical condition, and to have private communications with physicians or lawyers. Under the statute, the burden of proof is placed on the defendant to show that they did not deprive the patient of any of the previously stated rights. The shift of the burden provides a greater advantage to a patient under the statute than a medical malpractice suit, which places the burden on the plaintiff.

Ms. Ciprian states that, after having an amputation in her right leg, phlebotomists drew blood from her right arm for 12 straight days to see how the amputation was progressing. The staff of the center stated that Ms. Ciprian’s records did not show that multiple blood draws were ordered during the time. The complaint alleges that the neglect of the staff in providing adequate records led to the development of the hematoma. Furthermore, the staff’s records following the blood draws fail to show any documentation of the hematoma’s emergence. While remaining in the center’s care, Ms. Ciprian was admitted to the emergency room to evacuate the 800-milliliter hematoma to avoid amputation of her arm.

In reviewing the motion to dismiss, the court disagreed with the center’s argument and stated that there are triable issues as to whether Ms. Ciprian was properly treated. The court noted that the trial will go forward to answer the question of whether the center deprived Ms. Ciprian of any private right or benefit. If Ms. Ciprian is successful in proving her claim at trial, the statute allows for compensatory damages of no less than 25 percent of the daily rate the patient was paying to be in the facility, in addition to legal fees.

Taking proper care of the disabled and elderly in our society who depend on us is of the utmost importance. If you have questions about the care of a disabled or elderly loved one, contact an experienced New York elder law attorney who can help. For more information, contact Hobson-Williams, P.C. at (718) 210-4744 for the quality representation that you deserve.

Changes to the ABLE Act

The federal government passed the Achieving a Better Life Experience (ABLE) Act in December 2014. The ABLE Act allows the family of a disabled person to create a federal income-tax-free account to be used for the medical expenses of the disabled individual. This law was created under the same provisions of the tax code as 529 plans for college savings. According to Autism Speaks, the National Disability Institute estimates that there are 58 million individuals in the United States who have a qualified disability.

The ABLE Act account beneficiary must be deemed to be disabled before the age of 26. A person with a disability can save up to $100,000 without affecting their Social Security or other government benefits they may receive. Additionally, an individual’s Medicaid eligibility will not be affected by the funds in the account.

According to Disability Scoop, dozens of disability advocacy groups are in opposition to legislation to expand the ABLE Act. These groups believe that the changes to the act would not go far enough. In September 2016, the United States Senate Committee on Finance approved two bills, which provide additional flexibility to those with a qualifying ABLE account.

The ABLE to Work Act allows a disabled person who is employed to save more money in their account each year, and the ABLE Financial Planning Act allows money saved in a 529 college savings plan to be rolled over into an ABLE account for a person with a disability. In the original legislation, a limitation due to the age of onset did not exist. According to Chris Rodriguez at the National Disability Institute, the addition of the age restriction left out a lot of people who advocated for the ABLE Act for many years.

Many advocacy groups were under the assumption that the age concern would be addressed before already eligible individuals received additional benefits. According to Autism Speaks, organizations such as the Autism Society, United Cerebral Palsy, and National Down Syndrome Congress, among others, are pledging to oppose some ABLE bills.

Currently, there are four states offering programs where ABLE accounts are available. According to Autism Speaks, “accounts created through programs in Nebraska, Ohio and Tennessee are available to individuals nationwide and Florida’s program offers accounts to residents of the state.” By the end of this year, 15 more states are expected to offer ABLE accounts.

The experienced attorneys at Hobson-Williams, P.C. are available to assist you with your concerns relating to the professional care of disabled or elderly loved ones. For more information, contact our knowledgeable New York Elder Law attorneys at (718) 210-4744 to schedule an appointment.

Will the State Enforce Mandatory Arbitration Clauses in New York Nursing Homes?

The use of arbitration clauses by companies in all aspects of daily living has spread immensely across the country. The United States Supreme Court has recently held that the use of arbitration clauses is fully enforceable, and nearly impossible to overturn. With that being said, the Centers for Medicare and Medicaid Services (CMS) has limited the use of these clauses by implementing a new rule that restricts any nursing home receiving federal funding from requiring residents to resolve disputes in arbitration rather than in court. While the rule does not forbid arbitration completely, it does restrict the use of pre-dispute binding arbitration agreements. The rule will take effect over all nursing home admissions agreements signed after November 28, 2016.

The new rule ensures that a patient is no longer required to settle their dispute in arbitration, which can be costly. Instead, the patient can take their disputes to court which can be a more cost effective route of bringing a claim. A claim brought in arbitration can cost a patient upwards of tree-times as much as bringing an action within the court system due to the increased cost of fees for the arbitrators.

On the other side, nursing homes argue that the Centers for Medicare and Medicaid Services (CMS) stepped outside of their statutory authority as the rule does nothing to protect the residents’ health and safety. The nursing homes also argue that the additional cost to them of fighting these claims in court will force some nursing homes to close.

The New York Times reports that this new rule will not only save patients money in filing a claim, but it will restrict nursing homes from keeping embarrassing practices hidden in arbitration. The switch from arbitration to the court system means that all claims will become public rather than privately adjudicated. It is believed by patients that this transparency will ensure that the nursing homes will provide adequate services.

While the rule only applies to nursing homes receiving federal funding, New York State Public Health Law provides a statutory cause of action for nursing home residents as a result of injuries in any nursing home in New York State. Currently, a case is seeking review from the New York State Court of Appeals to determine whether the New York Statute makes an arbitration clause invalid. In this case, the trial court ruled that the statute invalidated the arbitration clause signed by an elderly woman who sued a nursing home after falling and breaking her hip. The NYS Court of Appeals overturned this decision by stating that the Federal Arbitration Act of preempts the state law because the nursing home engages in interstate commerce. A decision is expected in January 2017 as to whether the NYS Court of Appeals will grant a hearing on the decision.

Taking proper care of the disabled and elderly in our society who depend on us is of the utmost importance. If you have questions about the care of a disabled or elderly loved one, contact the experienced New York elder law attorneys at Hobson-Williams, P.C. at (718) 210-4744 for the quality representation that you deserve.

Attorney General Files Suit After Investigation into Tenant Harassment

In partnership with Governor Andrew Cuomo’s Tenant Protection Unit, a subpoena was issued in 2014 to investigate Marolda Properties and different landlord companies concerning allegations of tenant harassment and business practices.

On November 1, a lawsuit was filed by New York State Attorney General Eric Schneiderman, against landlords and property management companies alleging that they harassed residents in Chinatown and the Lower East Side. The harassed tenants occupied rent regulated apartments. According to Crain’s New York Business, the landlords and management companies wanted these residents out of the building to bring in higher paying tenants to increase profits.

Marolda Properties, a party listed in the complaint, owns and manages upwards of 70 buildings with approximately 1,700 apartments throughout Westchester County and the five boroughs.

According to the complaint, Marolda Properties and landlords of different limited liability companies intimidated residents “by accusing them of not living in their unit.” They threatened the tenants with an eviction proceeding if they did not leave voluntarily. According to Crain’s, the property manager and landlords filed suit in housing court against tenants without any evidence to their claims in many cases.

According to the Attorney General, Marolda, who is a stakeholder in many of the buildings, turned off the gas to some units at a building in the Lower East Side and failed to make basic repairs in an attempt to make the tenants leave. Marolda has not turned the gas back on according to Schneiderman.

One example cited by Crain’s is that when Marolda “ripped out the toilet used by elderly residents in August and never replaced it.” The elderly tenants “had to climb three flights of stairs to use a different restroom.”

Marolda Properties has not yet commented on the allegations.

If you believe your rights as a tenant have been violated, contact Tanya Hobson-Williams, P.C. to learn about the protections available to you under New York State Law.

What is Medicaid Fraud?

Today, there are over 5.3 million New York residents enrolled in the Medicaid program, according to the New York State Department of Health. As one of the largest state and federally funded programs, both New York State and the federal government have devoted millions of dollars to investigate, penalize and prosecute individuals and entities engaging in Medicaid fraud.

There are several types of Medicaid fraud, such as those who receive Medicaid fraudulently. Medicaid recipient fraud may include an applicant falsifying information on the application and certification failure to disclose information about income and assets owned, and the failure to disclose income earned by a spouse or other household member. Other activities that can be deemed as Medicaid fraud are loaning another person their Medicaid identification card, changing or creating a falsified order or prescription, using more than one Medicaid identification card, deliberately receiving excess, duplicative or conflicting medical service and/or supplies, and selling Medicaid-provided supplies to others.

However, there are some instances that may trigger an investigation into Medicaid fraud, even if the individual has not acted outside the scope of the law. These instances may include an unusually high frequency of Medicaid claims, an anonymous call to the Medicaid fraud hotline, and a computer-generated analysis of Medicaid claims and billing codes. Medicaid can also perform an investigation if Medicaid benefits were paid incorrectly, even if you are not at fault.

On the federal level, Medicaid fraud is investigated by the Inspector General, the Federal Bureau of Investigation or other federal entities. On the state level, it is investigated by The Medicaid Control Unit of the New York Attorney General’s Office, the Office of Medicaid Inspector General, and local district attorneys. On the local level, it is investigated by the NYC Human Resources Administration or County Department of Social Services. Medicaid fraud can result in a variety of penalties and consequences, from repayment of Medicaid benefits to lengthy prison sentences. Due to the potentially severe consequences an individual can face, it is important that anyone under investigation for Medicaid fraud contact an experienced New York Medicaid fraud lawyer who can advise you of your legal rights and course of action.

The experienced New York Medicaid fraud defense attorneys at the Law Offices of Tanya Hobson-Williams have successfully defended clients who were accused of Medicaid fraud. Our lawyers are knowledgeable in the laws of Medicaid eligibility and usage and will vigorously defend your rights. To schedule a consultation, call 1-866-825-1LAW.

SCOTUS Declines Review of Debt Collection Case

On June 27, the Supreme Court declined to review a ruling by the United States Court of Appeals for the Second Circuit, allowing the decision in the class-action lawsuit against the debt collection company Encore Capital Group Inc., Midland Funding and Midland Credit Management to stand.

As is typically done in the debt collection industry, Midland had purchased millions of dollars of debt from Bank of America for pennies on the dollar, hoping to collect repayment at a higher rate from the borrowers. Midland rendered a 27 percent annual interest rate on New York resident Saliha Madden’s credit card debt she incurred years earlier through the Bank of America.

In May 2015, Ms. Madden commenced a class-action lawsuit against Midland and argued that the company could not charge her the 27 percent interest rate on her credit card debt because it exceeded the interest limits in her home state. The Second Circuit ruled in favor of Ms. Madden, stating that debt collection companies are not protected under the National Bank Act and must abide by the interest rate cap set under a state’s “usury” laws. The Appeals Court’s ruling extends to borrowers in New York, Connecticut and Vermont.

According to the New York Times, the Appeals Court’s decision is limited. In the Madden case, the borrower no longer had a relationship established with the bank after it sold off the debt to the loan collection company. However, the original interest rate a financial institution charges on credit card debt may still be applicable even after the debt has been sold.

At some point, a business owner may need to collect on debt owed under loan agreements, contracts, services, transactions, promissory notes, and goods that were sold and delivered. Hobson-Williams, P.C. is a full-service debt collections department that is available to advise you of your rights when it comes to debt collection. The firm’s debt collection attorneys practice in accordance with all federal and state debt collection laws when dealing with debtors. For more information, call 1 (866) 825-1529.

Antibiotic Usage in Nursing Homes Linked to Serious Health Problems

According to the Center for Disease Control (CDC), up to 70% of nursing home residents are prescribed antibiotics during the course of any given year, ranging in cost between $38 million to $137 million per year. Recently, the Journal of American Medical Association (JAMA) released the results of a study that linked the high usage of antibiotics in nursing homes to many health problems such as gastroenteritis, clostridium difficile, and resistance to superbugs, drug-resistant germs.

The study, which concentrated on a sample of 110,656 patients in 607 nursing homes in Ontario, Canada, found that the residents had a high percentage of antibiotic use. The most commonly prescribed antibiotics were penicillin and second-generation fluoroquinolones. Despite the fact that some elderly residents did not take the antibiotics, they were still at an increased risk of antibiotic-related harm.

As noted by the CDC, the over-prescription of antibiotics contributes to the development and sustainability of superbugs, one of the world’s leading health threats. Physicians are advised to only prescribe antibiotics if, based on evaluation, their patient has a bacterial infection. According to the JAMA study, it is estimated that 56% of inappropriately prescribed antibiotics are to treat suspected urinary tract infections, and up to one-third of these are for nursing home residents with asymptomatic bacteriuria, bacteria in the urinary tract. However, this bacteria is usually safe and does not require antibiotic treatment.

According to the CDC, nursing home residents are highly susceptible to to drug-resistant germs due to the possibility of the bacteria “colonizing,” residing without producing symptoms, on their skin.

If you or your loved one is in a nursing home and has been subjected to misuse or overuse of antibiotics, contact an experienced elder law attorney at the New York Elder Law Firm Hobson-Williams, P.C. at (718) 210-4744.

New York State Assembly Passes Paid Family Leave Act

The Family and Medical Leave Act (FMLA) is a federal law which allows eligible employees who work at businesses with 50 or more employees, and select employees who work at governmental organizations or certain schools with less than 50 employees, to take 12 unpaid weeks from work for specific family issues, such as when a new baby is born or when a family member is ill. However, due to gaps in the federal program, only about 20 percent of new mothers are eligible under FMLA. The New York State Assembly has expanded the parameters of FMLA by passing the Paid Family Leave Act on March 17, 2015, which mandates pay for employees taking leave. The bill is pending in the State Senate.

According to Spotlight News, under the Paid Family Leave Act, a worker is entitled to two-thirds of their average weekly wage, up to a certain amount. The program will be funded out of New York’s Temporary Disability Insurance program, which is supported by funds from employee payroll deductions.

Some critics of the Paid Family Leave Act argue that this mandate will have huge ramifications for employers, workers, and taxpayers. Frank Castella Jr., for the Poughkeepsie Journal, stated that New York State businesses may resort to layoffs or reduced hours for employees. Castella cites that with the burden of both the proposed minimum wage increase and the Paid Family Leave Act, businesses may have to close unless they raise prices of products and services. The new law will increase taxes and fees associated with payroll, and result in a loss of productivity. Castella calculates that the 12 weeks of leave will equate to 25 percent of a business’ productivity.

If you own a business and are concerned over the Paid Family Leave Act or other business law issues, contact an experienced attorney who can protect and advise you of your legal rights. The Law Offices of Tanya Hobson-Williams is dedicated to advising businesses in all legal matters. For more information, call the Hobson-Williams, P.C. toll free at (866) 825-1529 or (718) 210-4744.