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Elder Planning Isn't Just For The Elderly

White Plains Long-Term Care Planning Law Blog

How can one avoid guardianship problems?

People who do not have children or other family members may be vulnerable to some of the pitfalls that may be associated with a guardianship. Proper planning, however, can help avoid problems with guardianships.

Most people would appreciate some assistance should they become incapacitated later in life. Normally, a family member seeking a guardianship or conservatorship must petition a court for appointment. Proof usually must be introduced that the potential ward is mentally or physically competent. Obviously, the person assuming the role of a guardian or conservator must be capable and trustworthy. The United States Senate Special Committee on Aging, however, issued a study on guardianship a few years ago. It found that that there were few safeguards against the abuse, neglect or exploitation of wards. Also, there is insufficient education on appropriate responsible guardianship behavior. Finally, there was no process for restoring the rights of wards if they regain full capacity and this restoration infrequently occurs.

Discussing guardianship of a parent with your siblings and family

Family members are the ones that are there for you when things are difficult. Unfortunately, being a loving and supportive family member can sometimes require making hard decisions to protect the people whom you care about the most.

Many people experience significant cognitive decline as they age. Sometimes, it is simply a gradual loss of mental faculties, and other times cognitive decline is the result of a serious medical condition like Alzheimer's disease. Many older adults prize their independence and push back anytime someone suggests a limit on their freedoms.

How does the Medicaid look-back period work?

Medicaid provides invaluable assistance for nursing home care. Dealing with the 5-year look-back rule is an important part of Medicaid planning and preserving assets for family members. Most asset transfers that are made within five years start a penalty period that disqualifies that person from coverage. This rule is intended to prevent an applicant from giving away their assets or selling them at discount prices to fall within Medicaid's asset limit. In New York, this rule applies only to nursing home coverage.

The penalty is calculated by dividing the value of the asset transfer by Medicaid's nursing home average cost for a specific time such as a day or month. The look-back period begins on the date of the Medicaid application. There are many examples of disqualifying asset transfers. These include money given to a grandchild for their graduation, a house transferred to a relative or a car donated to a charity. Violations even include payments to a personal care assistant without a formal agreement or assets that were transferred as gifts, transferred or sold below their fair market value.

Don't trust yourself to write a will

People who write their own wills may save some money, but their estate and relatives may ultimately pay much greater costs for this false economy. Improperly drafted and self-prepared estate documents may not comply with New York's laws governing wills & trusts and could jeopardize a person's intentions over the inheritance of their estate's assets.

Popular websites and commercially available publications may contain seemingly impressive boilerplate forms. However, these sources may not contain documents that comply with New York's specific requirements governing wills and estates. For example, New York and other states have laws governing how a will should be executed and a court may invalidate a will that does not meet these legal requirements. Heirs may face avoidable costs and complications during probate or property may be left to unintended heirs under state law.

An elder law attorney can help you as a caregiver to a loved one

Filling the role of caretaker to an older adult who you love, such as a parent, can sometimes be a difficult job. Needs vary, but you might find yourself driving to medical appointments, handing out medication or even providing mobility assistance and daily grooming care.

No matter how much you love the older adult in your life, the responsibility that comes with their care can be difficult to manage while also balancing your personal life and career. There are often unexpected issues that can arise, such as the cognitive deterioration of your loved one or an intense disagreement about treatment options for a medical condition. Partnering with an elder law attorney can help you provide the best care for your loved one.

What is the purpose of a special needs trust?

Trusts are effective estate planning tools because they help New York residents protect the value of their end of life assets all while legally transferring property and wealth to the beneficiaries of their choosing. Trusts can be used for many purposes, such as supporting charities and avoiding burdensome taxes. They can also be used to assist in the financial support of individuals who rely on government benefits to get by.

Trusts that accomplish this goal are known as special needs trusts. Generally they are created for individuals who receive support in the form of various government benefits. Often when a person is the beneficiary of a funded trust they may not qualify for government help; the structure of a special needs trust protects these individuals from disqualification and allows them to receive their benefits despite the status as trust beneficiaries.

How a decedent's will is managed during probate

Some readers of this New York estate and long-term care planning legal blog may perceive a contradiction in the world of wills and probate. On one hand, it is often advocated that individuals should create and execute wills so that their testamentary wishes are enacted. However, they are also advised to find ways of avoiding the probate process. Since a will is handled in probate, it seems as though it may be impossible to fulfill both of these important end-of-life planning goals.

To better understand this apparent legal conundrum, readers are asked to remember just what wills do. They offer information about the intentions of their creators as to how those individuals wanted their property distributed upon their deaths. Not all property can be probated since it is subject to its own distribution rules. Therefore, probate only handles the property is eligible and all other property may be rightfully kept out of its realm of authority.

Which personal items are best to take to a nursing home?

Deciding that it is time to move an aging loved one into a nursing home is never easy. There can be a lot of guilt that comes with the realization that you can no longer provide all the care your family member needs. You will likely also be concerned about their quality of life or standard of living when they live with strangers and not with your family.

However, with careful planning, you can make a nursing home living situation more positive for your family, including your loved one who will stay in the facility. Making sure that they have the right amenities and personal possessions with them at the facility can drastically improve their quality of life and help them retain their connection to their family back home.

How old must a New York resident be to draft a will?

Children can be incredibly precocious and capable of understanding complex themes and ideas. However, most children develop on a relatively regular schedule wherein their ability to manage their own needs and affairs is not possible until they are nearing adulthood. Since children cannot be trusted to take care of their own interests, they are generally not afforded the same rights as adults.

Generally, children cannot own property and cannot vote in elections for public officers. A child cannot be sued by an allegedly aggrieved party, and a child cannot enter into many types of contracts. Children cannot engage with many legal processes on their own, and in many jurisdictions that also means that they cannot draft and execute their own wills.

Situations when a guardian may be removed

Guardianship is an important legal relationship between a person in need of support and the person charged with their care. There are a variety of ways that guardians may be selected for appointment when a need arises; a New York resident may name a prospective guardian in their estate plan or a court may choose someone to serve as a guardian based on their relationship to the individual in need.

A guardian has many tasks that they must complete to fulfill their role. Many of their tasks revolve around the financial management of their ward's life. For an aging individual, a guardian may also manage their ward's medical care, day-to-day support, and investment portfolio.

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