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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.

Voluntary Administration Proceedings for Small Estates

When a parent dies without a Will and leaves behind money (example $10,000) in a sole checking account, a proceeding would be governed by the small estate process. Not all estates require a full probate or an administration proceeding. If the deceased passed away after January 1, 2009 and has $30,000 or less in personal property, they are entitled to a voluntary administration proceeding, which is a simplified Surrogate’s Court procedure.

The small estates procedure cannot be used if the individual who passed away owned real property when he or she died. The process can be utilized if the deceased died with or without a Will or if they conveyed their property into a trust.  To start the small estates process, an Affidavit of Voluntary Administration must be filed. By filing the Affidavit of Voluntary Administration, a person is asking to be appointed as a voluntary administrator of the estate.

This individual may be nominated in the deceased’s Last Will and Testament, if one was created, or, if a Will is not available, the deceased’s closest living relative would be chosen. The individual who files the Affidavit is asking the court to allow them to collect the deceased’s assets, pay any debts, and distribute their personal property to those who have a legal right to inherit them, either in accordance with a Last Will and Testament or under the laws of intestacy if the individual died without a Will.

A Voluntary Administration proceeding is less complex than a full probate of the Will or an administration proceeding. In a Voluntary Administration proceeding, consent does not have to be given by the beneficiaries of the deceased’s estate. This helps to avoid Last Will and Testament contest, which can be a long and expensive process. Additionally, a Voluntary Administration proceeding helps to avoid litigation over the appointment of a fiduciary in a full probate or administration proceeding.

Even though a Voluntary Administration proceeding may be less complex than a full probate or administration proceeding, it is important to consult an experienced attorney to assist you in the process. The experienced attorneys at Hobson-Williams, P.C. are available to assist you with any concerns relating to Elder Law, Trusts and Estates. For more information or to schedule a consultation, contact our knowledgeable New York Elder Law attorneys at (718) 210-4744.

How Joint Accounts and Gifting Affect Medicaid Eligibility

As individuals begin to age, long-term care services and how to finance them become major concerns. Many turn to Medicaid to pay for their long-term care needs. Medicaid is a joint Federal and State funded program that provides medical insurance and long-term care payments on behalf of middle- to low-income individuals, including those who are elderly and disabled. However, since Medicaid eligibility is determined by the combined value of income and assets, gifting money and joint accounts may impede a person’s ability to secure Medicaid benefits.

 

Whether a penalty period results from the transfer or gifting of money to another person depends upon whether the individual is applying for Chronic Care Medicaid or Community Medicaid. For Chronic Care Medicaid, which provides coverage for long-term care services in a nursing home facility, there is a five-year look-back period. This means that, if an individual transfers or gifts money within five years of applying for Chronic Care Medicaid, he or she will face a penalty period. For Community Medicaid, which provides support for long-term care in the home, there is no look-back period when applying for coverage and the applicant will not face a penalty period for transferring or gifting money.

 

Joint accounts may also hinder an individual’s ability to secure Medicaid benefits. When an individual applies for Medicaid coverage for long-term care services, the state will assess the person’s income and assets to see if they qualify for public benefits. Even though the bank account has two names on it, the state presumes that the content of the joint account belongs to the Medicaid applicant, regardless of who contributed money into the account. The state will presume that the account belongs to the Medicaid applicant unless it is proven that the individual did not contribute money into the account. If the Medicaid applicant is unable to overcome the presumption, then 100 percent of the account’s contents are considered to belong to the Medicaid applicant.

 

Whether the state presumes that all contents of a joint account belong to the Medicaid applicant depends upon what type of joint account it is. If the account is a convenience account, the entire account will be presumed to belong to the applicant. However, if the funds are placed in a joint stock or brokerage account, then there is no presumption that the account belongs solely to the Medicaid applicant. In this instance, each individual is presumed to own half of the joint stock or brokerage account.

 

Individuals who are applying for Community Medicaid may be able to eliminate income over the state income limit by placing the excess income into a Pooled Income Trust.  When applying for Community Medicaid, an applicant’s resources may be “spend down” by placing them into a trust or by making transfers. Under current Medicaid regulations, there are certain asset transfers into trusts that may be identified as exempt income when determining Medicaid eligibility.  Transferring assets should never be done without first consulting a qualified Elder Law attorney familiar with transfer of assets rules.

 

As you or your loved ones reach retirement age, it is important to determine what long-term services you will need and how you will pay for them. The New York Elder lawyers at Hobson-Williams, P.C. are experienced in assisting elderly and disabled individuals meet Medicaid income eligibility standards and will help establish trusts and assist with exempt transfers to protect their assets. For more information or to schedule a consultation, call our New York elder law and estate planning office at (718) 210-4744 or fill out our contact form.

 

Nursing Home Contracts

Before a senior gets admitted to a nursing home, he or she will need to sign a contract or other admission’s agreement. A contract is a legally binding document that defines the conditions under which the senior is admitted. It is important for seniors and caregivers alike to review and understand the contract in its entirety to ensure optimal care, protection and provisions. Some of the most important terms of a nursing home contract define the circumstances under which a resident can be admitted, transferred or discharged and how they will pay for the services provided.

 

Under federal regulation, 42 CFR 483.12(a)(2), a nursing home facility must allow a resident to stay in the facility under the following conditions: 1. his or her needs cannot be met, 2. the individual’s health improved, 3. the facility services are not necessary, 4. the resident is unsafe in the facility, 5. the individual is a danger to other residents if he or she continues to stay, 6. the resident has failed to pay or apply for benefits to pay after “reasonable and appropriate notice,” and or 7. the facility goes out of business. These are the sole grounds for a nursing home facility to be able to discharge a resident.

 

A facility may not discharge residents when the resident entered for the purpose of rehabilitation, which has now concluded or the resident or family, etc. refuse to sign an admissions contract. Even though the facility can’t force the individual out, the resident is still responsible to pay privately for the care or apply for public benefits to cover the cost of services.

 

According to the National Association of Consumer Advocates (NACA), a nonprofit association of attorneys and consumer advocates committed to representing consumers’ interests, there are problems with recent trends in nursing home contracts.  Some nursing home facilities are requiring third parties to apply for Medicaid, recertification of Medicaid, and pay any legal fees incurred by the nursing home because of failure to apply for or maintain Medicaid, as well as expanding the definition of “representative” and/or “sponsor” to include legal liability beyond that required by federal and state laws .

 

In New York State, under 10 NYCRR §415.3(b)(1) & (6), there is no third party liability in these situations. As a condition of admission, expedited admission, or continued stay, there is no third party liability or guarantees. However, nursing homes may seek a third party to sign an agreement on behalf of a resident if that third party has access to the resident’s funds, such as an agent under power of attorney, joint account holder, or court-appointed guardian. Third parties are never personally liable. Their liability on extends to their access and use of a nursing home resident’s funds.

 

Furthermore, according to 10 NYCRR §415.3(b)(3) – (4), there is no waiver of federal rights. A nursing home may not require a resident to waive the right to Medicare or Medicaid. Also, they may not require a resident to guarantee that he or she will not apply for public benefits to pay for care.  This means they cannot require a resident to be a private payer.

 

For further information on nursing home care, contact a New York elder law attorney.  The goal of an elder law attorney is to help secure appropriate medical treatment and advise on a plan to secure payment of nursing home care.  Further, they will help protect your loved ones and preserve assets to the greatest extent possible under the law. Their tasks in this situation include, but are not limited to, providing an opinion letter for a nursing home, assisting in review of all nursing home contracts, and advising family on proper signing of a contract. i.e.“Resident Representative” vs. “Responsible Party” and protect a client’s right to privacy.

 

The lawyers at Tanya Hobson-Williams, PC are skilled in all aspects of elder law and are dedicated to representing its clients with diligence and compassion during emotional times. Contact the experienced New York elder law attorneys at Tanya Hobson-Williams, PC for a consultation by calling (718) 210-4744 or by filling out our contact form.

 

Nursing Home Discharges: Can You Appeal?

There are many reasons why elderly persons wind up in nursing homes, including voluntary admittance to obtain assistance with rehabilitation after a hospital stay or problematic behaviors associated with various mental conditions such as dementia. In order to afford nursing home costs, many of these adults rely on Medicaid and Medicare. A nursing home may choose to discharge a person for various reasons, including their coverage is running out or they feel the patient is ready for release.  However, if a resident is being discharged, the discharge can be challenged.

There are only five reasons in which a resident can be discharged: (1) the resident’s health has improved, (2) the resident’s needs cannot be met by the facility, (3) the health and safety of other residents is endangered, (4) the resident has not paid after receiving notice, or (5) the facility has stopped operating.

Sometimes, to get around the policy, the nursing home may transfer the patient to a hospital and then refuse to let them back in. In this case, state law requires that the hospital must hold their bed for a certain number of days. (A resident should check their policy to see the amount of time allotted for the hold.)

Without proper notice and planning, a nursing home is unable to discharge a resident at all. The discharge plan must ensure that the resident has a safe place to go and outline the care that they will receive. In general, written notice must be given to the resident 30 days before discharge. In emergency situations, the amount of time may be decreased.

Even if the above notices are given to the resident, they can still appeal a decision to discharge. For residents receiving government-funded healthcare assistance, there is a fast appeal if they are receiving care at a Medicare-covered facility, home health agency, rehabilitation facility, or hospice. The fast appeal is filed through the Beneficiary and Family Centered Care Quality Improvement Organization. During this appeal, the nursing home will be required to provide you with a “detailed explanation of non-coverage,” which will lay out when and why your services will no longer be continued. The Beneficiary and Family Centered Care Quality Improvement Organization will then ask why you believe the services should continue, review your records, and issue a decision by the close of business that day. The appeal process of a nursing home discharge can be overwhelming, so contacting an attorney immediately is recommended.

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.

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.

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 Required to Hand Over Records on Disabled Patients

On March 18, 2016, U.S. District Court Judge Gary Sharpe ruled that the Cuomo administration and New York’s Justice Center must disclose records related to the abuse of disabled and mentally ill patients in the State’s care. Disability Rights New York (DRNY) has requested records involving disabled youths and adults who were allegedly abused, on multiple occasions but all of the requests were denied.

The plaintiff, DRNY, is an organization that advocates for the protection of the civil and legal rights of people in New York with disabilities. They have the obligation to investigate the abuse of individuals with mental illness and developmental disabilities. To fulfil that obligation, DRNY wanted to see the full investigative reports that New York Justice Center completed, including the names of staff accused of committing abuse or neglect, names of those who filed complaints, and clinical records. The Justice Center is a New York State run state agency established to protect people with special needs from mistreatment, and often investigates abuse allegations throughout the state.

During the trial, the Justice Center argued that it should be allowed to redact information such as names and details in clinical records before handing over records. The Judge disagreed, and stated that if the Justice Center did not turn over the records or provided records that were redacted information, DRNY’s mandate to advocate for disabled New Yorkers would be impeded.

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.

The Musical Icon Prince May Have Died Without a Will

According to documents obtained by People Magazine, Prince did not have a Last Will and Testament. Prince’s sister Tyka Nelson filed an Emergency Petition in a Minnesota Court seeking the appointmeprincent of a Special Administrator.

Sources report Prince’s sister as stating, “I do not know of the existence of a Will and have no reason to believe that the Decedent executed testamentary documents in any form,” states the document, which was filed in Carver County Minnesota.

An Administrator is appointed to settle an estate after a person has died.  A petition must be filed with the court and a personal representative must be appointed.  The personal representative is responsible for the following:

  • Collection, inventory, and appraisal of assets of the person who has died.
  • Protection of the estate’s assets.
  • Payment of decedent’s debts.
  • Distribution of the remaining assets to the proper parties as provided by law.

According to a survey conducted by FindLaw.com, 35% of those surveyed had a Will but individuals over the age of 65 did execute a Will. Without a Will, property passes according to the State’s intestacy laws.

Some sources believe that Prince’s current estate is valued at over $300 million dollars. The failure to execute a Will may result in his property being distributed in a manner contrary to what he may have wanted during his life.

If you or a loved one needs a Last Will and Testament or other Advanced Directives, contact the experienced attorneys at Hobson-Williams, P.C. at (718) 210-4744 to ensure that your property passes to those you choose and not according to the laws of intestacy.