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White Plains Long-Term Care Planning Law Blog

Should you create a revocable living trust? The answer may be yes

From an estate planning perspective, there are many ways to ensure that your loved ones receive your assets upon your death.

While many people rely on a simple will, as it's often the easiest to create, you shouldn't assume this is your only option. For example, you may come to find that a revocable living trust is exactly what you've been searching for.

What is Medicaid planning?

This blog has previously discussed the various ways one can plan for his or her potential long-term care needs. Long-term care insurance, for example, may be a piece of the puzzle, but it likely won't be enough, and the claims process can be especially challenging. Medicare could also help alleviate the financial strain, but even this government program has its limits. In addition to creating estate planning accounts devoted to long-term care needs, New Yorkers can also pursue Medicaid, which can provide a lot of financial relief during your time of need.

However, this program has eligibility limits that are tied to assets and income. On its face, these requirements may seem cut-and-dry, but there are some legal maneuvers that can, from a legal aspect, reduce the income and assets an individual holds, thereby allowing him or her to qualify for Medicaid. Certain trust assets won't be counted for Medicaid eligibility purposes, and those assets that are counted may be able to be converted into non-countable assets. Medicaid planning is the process where you can better ensure that you recover these benefits while protecting the other assets in your estate plan.

Concerned about estate planning issues? Consult an attorney

Previously, this blog discussed undue influence and the effect it can have on estate planning and the execution of an estate. Although many New Yorkers think that their estate is safe from the influence of others, especially when trusted friends and family surround them, the truth of the matter is that those who are closest to an individual can sometimes be the most problematic.

This is one of the many reasons why sound estate planning is critical. By ensuring that wills and trusts are established in a way that is clear and leaves little doubt as to the testator's intentions, an individual can make it that much more obvious when undue influence is being exerted, as the changes may be far out of line with the initial plan. Also, a competent estate plan can ensure that protections are in place to allow a trusted individual to make sound health and financial decisions in the event that an individual becomes incapacitated.

Should cameras be allowed in nursing homes?

New Yorkers who place a loved one in a nursing home may be concerned about their elderly loved one's health and well-being. This is why many New Yorkers make extensive efforts to vet any potential placements for their loved ones. However, despite diligent efforts, many New Yorkers find that their loved ones are in the care of negligent and abusive nursing home professionals. Although compensation may be available to victims of abuse and neglect, succeeding on such a claim requires putting forth competent and compelling evidence.

This may be challenging to do when a loved one is unable of effectively communicate what is causing him or her harm. This has sparked a debate about individuals putting cameras in nursing homes. New York doesn't have a law that specifically addresses this matter, which has left it open to interpretation. The focus is often on the balance between privacy and safety. Should these cameras be turned off at any particular time? What if the camera also films a roommate? Also, some voice concern that cameras may not even catch abuse, as it can occur anywhere in a nursing home facility. This, in turn, could cause footage to be taken out of context.

Estate planning and undue influence

Drafting an estate plan is supposed to be a process blanketed in trust. Those engaging in estate planning often trust professionals to provide them with advice that is best for their set of circumstances, and those same individuals often trust that their heirs and beneficiaries will abide by the estate plan. Although thoughtful and thorough estate planning can ensure that trust is maintained and that asset distribution upon death occurs in accordance with a testator's wishes, there are circumstances where trust is betrayed and estate plans are threatened.

One way this can occur is when others exert undue influence on a testator. Influence exerted over a testator can be deemed "undue" when the testator was susceptible to influence, an individual had the access and ability to influence the testator, influence was indeed exerted in order to gain favor and the individual who exerted that influence held a position of authority or trust over the testator.

Nursing home abuse and vicarious liability

As we have discussed previously on this blog, nursing home abuse and nursing home neglect are much more common than many people realize. It only takes one rogue employee to seriously injure or even kill a vulnerable resident. The aftermath of such an incident can be devastating. Those victims who are fortunate enough to survive can be left facing extreme pain and suffering, a worsened medical condition with, perhaps, a decreased chance of survival and additional medical expenses. Surviving family members can be left with similar damages, and their emotional harm can be immeasurable.

While these victims can pursue a lawsuit against the individual nursing home employee who injured them, they may not be able to recover enough compensation from him or her to satisfy the damages imposed. Fortunately, these parties may be able to reach deeper pockets by pursuing a vicarious liability lawsuit against the nursing home that employed the party responsible for the victim's harm.

What are the chances I'll need long-term care?

Purchasing long-term care insurance is certainly a big investment that many Americans feel is out of their financial reach. There's also the chance that purchasing long-term care insurance will be a waste of money if the progression of your life determines that you never require such care.

However, a substantial portion of the American population will require long-term care in a nursing home or hospice facility at some future point. As such, if long-term care insurance is reasonably affordable for you and your family, you may want to consider it. At the very least, you may want to include some kind of arrangements in your estate plan that will make your transition to long-term care easier for you and your family should it ever become necessary.

Many gaps can be left in care planning

Care planning has been an integral part of individuals' lives for decades. However, 50 years ago, it was much easier to figure out how to pay for long-term care if the need arose. One reason why it has become more difficult is because people are living longer. Although Americans are, on average, living longer, the length of time that many individuals require for long-term care has not diminished, which can mean that they accumulate extensive expenses.

Many people think that Medicare will cover the costs associated with this care, but that just simply isn't the case. While it is estimated that more than 50 percent of individuals will need long-term care at a cost of approximately $140,000, only about 20 percent of Americans have some sort of coverage to help them alleviate these costs.

The duty of the estate administrator

Finding the time, energy and motivation to create an estate plan is small feat. Yet, successful creation of one of these plans is just the start of the asset distribution process. In fact, an estate administrator plays a significant role in this process, as he or she has a number of duties that must be carried out carefully to ensure that the estate's integrity is protected.

So what does an estate administrator do? Generally speaking, he or she is charged with dispersing an estate's assets upon an individual's passing and once all estate debts are paid. That may sound easy enough, but the truth of the matter is that these tasks can be enormously difficult. Assets may be difficult to find and value, family members may be challenging to locate and disputes may arise with regard to how assets should be distributed. This means that the administration process can take months or even years.

Nursing home abuse isn't just physical in nature

On various occasions, this blog has discussed nursing home abuse and how damaging it can be to those who are victimized. Oftentimes, discussions of nursing home abuse are couched in terms of physical harm. Although physical injuries are more common than many people think and can cause extensive pain and suffering, physical abuse is not the only type of abuse to which a nursing home resident can be subjected.

Emotional and psychological abuse is also common in the nursing home world. This type of abuse occurs when words and actions result in anguish, mental suffering or distress. Threats of harm, forcing decisions upon a resident, berating residents and isolation of a resident can result in this type of harm. It can be difficult to catch emotional abuse, but there are a number of symptoms. Victims of emotional abuse often withdraw from social situations, engage in behavior that is out of character and suffer from disrupted sleeping and eating patterns.

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Enea, Scanlan & Sirignano, LLP
245 Main Street
White Plains, NY 10601

Phone: 914-269-2367
Toll Free: 800-724-1327
Fax: 914-948-9316
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Additional office location
in Somers, New York

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