Attorney At Law

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By Nancy Burner, Esq.

Nancy Burner, Esq.

We live in a modern world where blended families are becoming more and more common.  

A blended family is one made up of two spouses where at least one spouse has children from a previous marriage or relationship. Blended families can also include two spouses, their children and grandchildren from multiple relationships. Because of the complexity involved in a blended family, proper estate planning is essential to ensure a client’s goals are met.

Spouses used to create what we refer to as the “sweetheart will,” which distributes assets from the first deceased spouse to the surviving spouse, and then to their children upon the death of the surviving spouse. A sweetheart will does not adequately provide for individuals who have been married multiple times and have children from previous relationships for whom they want to provide.  

For example, Joe and Molly get married and have three children together. Molly dies and Joe gets remarried to Cindy. Cindy has two children from a prior relationship. If Joe and Cindy were to create sweetheart wills, upon the death of the first spouse, assets would be transferred to the second spouse, and upon his or her death, assets will only go to the children of the second spouse.  

If Joe were to be the first to die, his children would effectively be disinherited. Joe and Cindy may instead want to provide for all five children in both of their wills, or in the alternative, ensure that each spouse’s assets go to their children from their prior relationship.  

To make matters even more complicated, under New York State law, a surviving spouse has an automatic right to take a one-third share of their deceased spouse’s estate. This is something to consider when deciding what type of plan to have and for whom you want to provide. Additional considerations should be given to the likelihood of an estate plan being contested, since members from different families may be involved and may not be happy with the new relationship.  

As elder law attorneys, we are always thinking ahead and how to protect assets down the road from Medicaid. If there is a good chance a spouse will need long-term care in the near future, we will want to protect any funds that may affect eligibility. Therefore, a transfer of all assets to a surviving spouse may not be the appropriate plan under these certain circumstances. 

Beyond the blended family, similar issues may arise in nontraditional family situations, such as partners who decide not to get married; spouses with no children, but instead have close friends for whom they want to provide; and those who have a desire to leave assets to pets, charities or the like.

A family can come in all different shapes and sizes. It is therefore important to meet with an estate planning and elder law attorney to discuss your specific goals and come up with a creative way to accomplish the best estate plan for you.   

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

By Nancy Burner, Esq.

Nancy Burner, Esq.

The best way to manage your own affairs while you are alive and to provide properly for your beneficiaries at your death is to have an estate plan. There is a distinction between having a “plan” and having documents. The close attention to detail, knowledge of the law and past experiences of the attorney you are dealing with should help you create the plan that fits your own circumstances.

The first step of the process is to gather a comprehensive list of your assets. Since everything in the plan is different depending on the personal circumstances, it is important for the attorney advising you to know what type of assets you have and in what quantity. An individual with a home worth $400,000 may require a very different plan than an individual with the same amount of assets that are held in cash or retirement accounts. 

Once you have your list of assets together, you can review it with the attorney and discuss the goals of the representation. For many clients, the primary goal is to make sure they are taken care of during their own lifetime with the maximum amount of control over their assets without concern for what happens upon their death, while others may have concern for those they wish to benefit at their death.  

Take the single mother with a disabled child; while she is concerned about her own well-being, she would likely consider the well-being of her child to be equally as important. By contrast, a single person with no children will have different concerns and, therefore, a different estate plan. 

Discussing your goals with an attorney is the greatest value the attorney can provide. Estate planning attorneys are more than just document drafters. They are advisers. With your attorney, you should be running through the different scenarios that may occur at the time of your death and making sure that you are satisfied with the outcome of each based on the plan you decide to create. 

The estate planning attorney can flag for you other issues that may be of concern. Depending on your age, income and assets, it may be prudent to discuss long-term care insurance or asset protection planning for Medicaid purposes. You can discuss whether or not your beneficiaries will need a trust for any reason, including creditor protection, protection of government benefits or protection from themselves if they overspend and undersave. 

After you have discussed your assets and goals with the attorney, they can recommend options for you. Often, there is more than one option available. A description of the pros and cons of each plan and the cost to you should help you determine what is best in your circumstance. This is the point at which the documents can be created in draft form. If you are satisfied with the documents as written, they will then be signed with the attorney. Each document will have its own signing requirements for validity that will include the presence of witnesses and/or a notary public.  

If you have never created an estate plan or have not reviewed it in the last five years, you should reach out to an attorney to start the process.  

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

By Nancy Burner, Esq.

Nancy Burner, Esq.

For many clients the idea of creating and funding an irrevocable trust with an end goal of protecting assets should the need for long-term care arise raises questions and concerns about the potential tax implications.

Specifically, questions surrounding taxation of the assets that are transferred to the trust and concerns about losing property tax exemptions such as STAR and Enhanced STAR are common in our practice.

Although there is some truth to the idea that there could be negative higher taxation when income is earned on assets held in a trust, the grantor trust rules of the Internal Revenue Code provide that where a trust is created as a grantor trust, following the rules set forth under the IRC Sections 671 through 678, the income earned and assets held within will be treated for tax purposes as if they are still owned by the grantor. As a result, any income earned by the trust will be taxed at the (presumably) lower rate of the grantor and all tax abatements can be retained as the grantor will typically retain beneficial ownership of the property.

Although grantor trusts are subject to the same general rule for tax reporting as other trusts, specifically trusts with gross income that exceeds $600 are required to report, the method of reporting is far less complicated than you may expect. The trust may file a form 1041, U.S. Income Tax for Estates and Trusts form. In this case we refer to the 1041 as an “information only” return, listing the name of the trust, the tax identification number and the address used for notices on the trust.

By doing this the IRS is placed on notice that the trust exists, and that all income and any other relevant information will be reported on the grantor’s personal return. This provides that the grantor will be treated as the owner of the assets held in the trust; and, accordingly, all income earned from the trust is reportable on the grantor’s personal tax return. Although there are alternate reporting methods available, we have found this method to be the most convenient for most of our clients.

With respect to the transfer of real property to an irrevocable grantor trust, because the grantor is considered the beneficial owner of the trust all tax benefits that flow to individual owners of real property will continue on uninterrupted. Where the homeowner benefits from tax reductions through the STAR or Enhanced STAR program, veteran’s benefits or any other tax rebate, transfers into a properly drafted irrevocable grantor trust will allow those benefits to continue.

Finally, because the assets are still considered part of the grantor’s estate for tax purposes, upon the death of the grantor, the beneficiaries will benefit from a full step-up in basis on the value of the home or any other appreciated asset, eliminating any concerns about capital gains implications.   

By creating and funding an irrevocable grantor trust, the grantor is able to protect assets if the need for long-term care arises while preserving grantor tax status and tax advantages and exemptions.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

New York offers two types of guardianship proceedings for adults.

By Nancy Burner, Esq.

Nancy Burner, Esq.

In New York State, when a person turns 18, they are presumed to be legally competent to make decision for themselves. However, if a person is intellectually disabled or developmentally disabled, as defined by Article 17-A of the Surrogate’s Court Procedure Act, a parent or concerned relative can ask the Surrogate’s Court to appoint a guardian to assume the decision-making functions for that person. 

If a young adult has issues with mental illness or other functional limitations, a parent or concerned relative can ask the Supreme Court to appoint a guardian for that person under Article 81 of the Mental Hygiene Law. There are differences in the application and procedure with these two statutory schemes which are described below. 

Article 17-A was originally enacted in 1969 to provide a means for parents of disabled children to continue to make decisions once their children reached adulthood. The belief was that the condition was permanent with no likelihood of improvement. Hence, the same powers that parents held over minors were appropriately continued for the rest of the person’s life.

Article 81 was enacted in 1993 and is directed toward adults who have lost or have diminished capacity. It presumes that all adults have full capacity and requires proof of specific incapacity before a guardian can be appointed to remedy the proven incapacity. Article 81 anticipates closely tailored guardianships, granting the guardian no more power than is necessary under the circumstances, and aims to preserve autonomy to the greatest degree possible.

Article 17-A is almost purely diagnosis driven, while Article 81 requires a more refined determination linking functional incapacity, appreciation of danger and danger itself. Unlike Article 81, Article 17-A provides no gradations and no described or circumscribed powers. Article 17-A is considered a plenary guardianship, meaning that the guardian has full power to make any and all decisions. 

The two statutes differ dramatically in the reporting requirements following the appointment of a guardian. Article 81 guardians have to file a report 90 days after appointment and thereafter on a yearly basis, while Article 17-A guardians have no duty to file any report. 

Procedurally there are significant differences between the two types of guardianships: 

• A hearing must be held for the appointment of an Article 81 guardian, with the subject of the proceeding right to cross-examination and the right to counsel. No hearing is required under Article 17-A where the petition is made by or on consent of both parents or the survivor. 

• When an Article 17-A hearing is held, the presence of the subject of the proceeding may be dispensed with in circumstances where the court finds the individual’s attendance would not be in their best interest; presence of the subject is presumptively required in Article 81.  

• Article 81 requires the appointment of an independent court evaluator to investigate and make recommendations to the court; the appointment of a guardian ad litem to perform a similar function is discretionary in Article 17-A.

• Almost all Article 17-A proceedings are determined by reference to medical certifications by treating physicians; The professionals making the certifications are not subject to cross-examination.

• Article 81 requires proof by clear and convincing evidence, while Article 17-A is silent as to the burden.

Even when young adults meet the medical criteria for an Article 17-A guardian, courts are taking a more wholistic view and looking at that person’s functional capacity and assessing if an Article 17-A guardian is the least restrictive alternative or if an Article 81 guardianship is appropriate to address a certain deficit. For instance, take the young adult with a diagnosis of autism where he or she is considered “high functioning” by the medical experts and they may have other mental health issues that impair decision-making. In this case an Article 17-A guardian may not be the least restrictive alternative, an Article 81 guardianship may be more appropriate.   

Courts are also looking to see if the young person can execute advance directives such as a health care proxy and power of attorney so their parent or concerned relative can assist in making medical or financial decisions for that person without court intervention to preserve their rights and autonomy. 

The lesson to be learned is that while that statute is clear about the medical diagnoses needed for an Article 17-A guardianship, not just anyone with a diagnosis is the proper subject of an Article 17-A proceeding. You may find that the needs of the disabled individual are better met through a limited Article 81 guardianship or that they are able to execute advance directives. The differences in the statutory schemes can be nuanced and if you have a child or relative in this situation, before any court proceedings are commenced, you should consult with counsel experienced with these issues. 

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office. 

Your spouse receives his/her elective share from your estate at the time of your death. Stock photo

By Nancy Burner, Esq.

Nancy Burner, Esq.

We are frequently asked whether it is a good idea to disinherit your spouse due to the possibility of nursing home care in the future. While updating your estate planning documents is a good idea, simply disinheriting your spouse may not protect your estate in the event she or he needs to go to a nursing facility. 

If your spouse requires care in a nursing facility and wants to rely on Chronic Medicaid to pay for it, the Department of Social Services will conduct a five-year lookback. 

During the examination, the Department of Social Services will inquire whether your spouse received his or her “elective share” from your estate at the time of your death. If your spouse did not receive his/her elective share, the Department of Social Services will issue a dollar for dollar penalty that will delay Chronic Medicaid benefits.

An elective share ensures that surviving spouses in New York receive the first $50,000 or one-third of an estate, whichever is greater. The surviving spouse has a time limit when he or she must demand the elective share. If the elective share is not demanded within the time frame, the surviving spouse forfeits his/her right to receive the share.  

For example, if you pass away with $300,000 in your estate, your spouse would be entitled to $100,000 even though your last will and testament specifically excluded your spouse. If the elective share of $100,000 is not paid from your estate, the Department of Social Services will issue a penalty of about seven months. In other words, Medicaid will not pay for the first seven months of care in the nursing facility.  

There are options available to you now in order to preserve your estate even if your spouse requires care in a nursing facility. One option is to set up a supplemental needs trust through your last will and testament that benefits your spouse but protects the estate. You would appoint a trustee to manage the assets in the trust on behalf of your spouse. 

The supplemental needs trust is a vehicle to supplement and not supplant government benefits. This would allow the money to be used for your spouse’s benefit but not interfere with an application for Medicaid benefits. Another option would be to provide that your spouse receives one-third of your estate and the reminder goes to your children.

Finally, in New York State, we have a program called Community Medicaid, which will pay for a home health aide to come into your home and assist your spouse with activities of daily living. If your spouse received this assistance in the home, there would not be a five-year lookback and he or she would not be required to elect against your estate. This may be a viable option now, so you are not the sole caregiver.    

It is important to review your estate planning documents with an elder law attorney in your area to ensure you and your spouse are protected and have the appropriate documents in place for your specific situation.  

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

CDPAP gives Medicaid recipients an alternative way to receive home-care services. Stock photo

By Nancy Burner, Esq.

Nancy Burner, Esq.

The Consumer Directed Personal Assistance Program (CDPAP) is a Medicaid program that allows a Medicaid applicant, or their representative, to choose the individual (or individuals) to provide care at home rather than using an aide from a home health agency. 

Under the Medicaid process, once an applicant is approved for Medicaid, they will undergo at least one assessment to help determine how many hours of care the applicant will receive with a managed long-term care (MLTC) plan. The applicant then signs up with a home-care agency that contracts with the MLTC, and aides are sent to the home to provide the hours of care.

If the applicant is unhappy with the current aide, he or she can request that the agency replace the aide; however, the agency has full discretion on choosing a substitute. The agency only needs to make sure that they are providing the care set up by the predetermined hours.  

There are also limits as to what the aide can do in terms of the care they provide. An aide can assist with most tasks, such as walking, bathing, grooming, light cleaning and cooking, but they cannot perform “skilled tasks,” such as administering medication. 

For example, if an applicant is diabetic and requires daily insulin injections, the aide is not allowed to administer the injection. An aide, however, can give certain cues, such as placing medication in front of the patient, letting them know it is time to take said medication.

Many applicants are satisfied with the care provided by the home health aides, but there are some that may require an aide that can perform skilled tasks, or others already have an established relationship with a specific aide and do not want to switch to a different caregiver.

Under CDPAP, any individual can be hired as the caregiver so long as said individual is not a legally responsible relative, such as the applicant’s spouse or guardian.

The applicant, or their representative, will determine who the aide will be, their work schedule, and what kind of assistance the aide will provide. There is no prerequisite to be certified as a home health aide or registered nurse. Training the aide occurs at the home and the aide gets paid through Medicaid. The aide can perform skilled tasks that are not otherwise allowed under the standard Medicaid program.  

It is important to note that under CDPAP, the aide is considered an independent contractor, not an employee of the agency.  The applicant is therefore fully responsible for finding and setting up the care. The applicant will also not be able to take advantage of some of the benefits an agency provides, such as sending in backup care if the current aide is sick or cannot work for whatever reason.   

To discuss your options, you should contact an elder law attorney who has extensive experience in this field and can navigate the Medicaid system to help provide you with the best care for your specific needs.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office

A bypass trust was designed to prevent the estate of the surviving spouse from having to pay estate tax. Stock photo

By Nancy Burner, Esq.

Nancy Burner, Esq.

For a traditional married couple, the estate planning has become simpler in many ways. Before the estate tax was increased on both the state and federal level, we were fixated on saving estate taxes. Simple techniques like bypass and marital trusts and insurance trusts called ILITs were the gold standard in estate planning. Today many of those types of plans are irrelevant and maybe even harmful in an estate plan.

Bypass trusts are trusts created in the estate of the first spouse to die. So, for example, if a husband died when the exemption was $1.0, his will left $1.0 million in his bypass trust to protect his exemption (the amount he could pass to a nonspouse tax free) and then the balance would be distributed to his surviving spouse tax free. The idea was that when the second spouse died, she would have her own exemption and the monies in the bypass trust would pass tax free to the next generation.

If the exemption was $1.0 (or more) when the survivor died, then both the bypass trust amount and the exemption amount when the second spouse died would escape estate taxation. This is the most common type of estate plan that was utilized in the last 25 years and many clients still have these documents in place. In instances where the first spouse has died, there still exists a bypass trust for the benefit of the surviving spouse. For those couples with these types of estate plan but with assets under $5.25 million, it’s not too late to change them.

But, what if one spouse has died and the surviving spouse is still alive with assets in a bypass trust. Is there more planning to be done?   

Assume a couple in 2000 with $1.8 million worth of assets. Husband died and $1.0 million was payable to the bypass trust under his will for the benefit of his wife. According to the terms of the trust: (1) she can have all the income, (2) she is entitled to distributions for her health, education and support, and (3) a trustee can distribution all the trust assets to her for any purpose, even if the trust is depleted. The purpose of this trust was clearly to shield the first million of the estate from estate taxes when the surviving spouse later died but gave the trustee the power to make unlimited distributions to the spouse.

Now also assume the wife has, in the intervening years, protected her own $800,000 from the cost of long-term care by placing those assets into an irrevocable trust. In the meantime, the bypass trust has grown to $1.6 million dollars. There are two glaring problems: Capital gains tax and cost of long-term care.

When the surviving spouse dies, the assets in her irrevocable trust will be counted as part of her taxable estate. If she dies this year, she will have a New York state estate tax exemption of $5.25 million (increasing to $5.49 million in 2019) and her federal exemption is $11.18 million. Clearly, she does not have a taxable estate. Her assets will pass tax free to the next generation. However, the assets in the bypass trust will have a capital gains tax for any growth in principal.

Assuming the capital gain of $600,000 and a capital gain rate of 33 percent, there could be a capital gains tax of just under $200,000. If the bypass trust assets were not in the trust, but in the surviving spouse’s estate, there would be no estate tax and no capital gains tax. In this case, assuming no other facts, it would be best to distribute the assets to the surviving spouse and allow the assets to obtain a “step-up in basis at her death.”

The second problem with the bypass trust is that the broad distribution rights under the trust makes those trust assets available to pay for the spouse’s long-term care. She has protected her own assets, but likely the $1.6 million is available to be spent down. In this case, if the trustee were to distribute the trust assets to the surviving spouse, she could add those assets to her irrevocable grantor trust. She would enjoy the income in the trust, her estate (i.e., her heirs) would get a step-up in basis on her death, and the assets could be shielded for the cost of nursing home care or catastrophic illness after five years.

This same scenario applies in the case of insurance trusts that were created during the life of the first spouse to die. The trust was likely intended to shield the surviving spouse’s estate from estate taxes, but the increased exemptions make the insurance trust unnecessary. There is an income tax return due each year that is a burden in both time and money. There is no step-up in basis at the death of the surviving spouse, and the assets are probably not protected from the cost of long-term care.

While the trusts in this example give the trustee wide latitude in distributing trust assets to spouses, not all trusts are the same. If the trustee does not have the power to distribute outright to the spouse, there may be an alternative way to accomplish these objectives. New York state has a very generous decanting statute that may be utilized to “fix” the trust. It may not be too late.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

There are planning tools an individual can employ to potentially safeguard wishes after death. Stock photo

By Nancy Burner, Esq.

Nancy Burner, Esq.

Inheritance is the practice of passing on property upon someone’s death. The rules of inheritance differ from state to state.  

In New York, a decedent generally cannot disinherit his spouse. This principle is governed by Estates, Powers and Trusts Law Section 5-1.1-A (Right of Election by Surviving Spouse) and requires that the surviving spouse receive a portion, or share, of the decedent’s estate. The surviving spouse’s share will be equal to the greater of $50,000 or one-third of the decedent’s estate.

The right to elect to take your spousal right of election is governed by time frames. An election under this section must be made within six months from the date letters testamentary are issued but no later than two years after the date of the decedent`s death. A written notice of the election is required to be served upon the executor, or upon the person named as executor in the will if the will has not yet been admitted to probate. The written notice must then be filed and recorded with the Surrogate`s Court.  

Conversely, a decedent can disinherit a child. However, it is important to note that a child falls into a certain class of individuals who have the right to contest your will even if they are specifically disinherited, whether or not they are named as a beneficiary under your will or if they were left with a disproportionate share of your estate. A disinherited child has the right to challenge or contest your will because, had you died without a will, your child would receive a share of your estate through the laws of intestacy.  

However, there are planning tools an individual can employ to potentially safeguard wishes after death. An in terrorem provision in a decedent’s will “threatens” that if a beneficiary challenges the will then the challenging beneficiary will be disinherited instead of inheriting the full gift provided for in the will. An in terrorem clause is intended to discourage beneficiaries from contesting the will after the testator’s death. New York law recognizes in terrorem clauses, however, they are strictly construed.   

Keep in mind that simply having an in terrorem clause in your will may not be enough to dissuade beneficiaries from potentially challenging your will. Theoretically, however, for an in terrorem clause to have any weight at all, a beneficiary under a will must be left a substantial amount to incentivize their compliance with the will. 

An in terrorem clause may have no effect on a beneficiary who was not left anything under a will as they risk losing nothing by challenging the will. While in terrorem clauses may be effective in minimizing a will contest, for some it holds no power.  

As with many things in life, one size does not fit all. A successful estate plan takes all personal and unique factors to an individual into consideration. The documents are only part of the problem and solution. The fact is, there is no substitute for competent legal advice.   

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

Concerns about accessing long-term care in the community is something we often discuss with our clients. How will they access the care? Who will pay for it? Is the care reliable? Can I safely and affordably age in place? 

The positive news is that there are many options for care in the community. We are fortunate to live in an area where care is accessible, reliable and affordable. Many of our clients are surprised to learn that Community Medicaid is a way to access care in the community. 

Unlike Chronic Medicaid, which requires a five-year financial look back as a prerequisite for eligibility, Community Medicaid does not have any look back. This means that with some relatively simple planning (in most cases) the financial eligibility requirements can be met with little to no waiting time.

It is important to note there are strict asset and income limitations for applicants for Community Medicaid. An applicant is permitted to have $15,150 in liquid nonretirement assets in his or her name (in New York for 2018). They can have an unlimited amount of qualified (retirement) accounts in their names so long as they are taking the required distribution as set out by the local Medicaid program. 

The primary residence is also an exempt resource, provided the Medicaid recipient remains in the home. It is advisable for all Medicaid recipients to do some estate planning with their home to ensure that it will remain protected should a need arise for care in a facility. Additionally, such planning can ensure that the home is protected from potential estate recovery after the death of the applicant. The applicant is also permitted to have an irrevocable prepaid prearranged funeral account.

With respect to income a single Medicaid applicant is permitted to retain $862 in monthly income. Any income amount over this allowance is considered “excess income.” The good news is that all of the Medicaid applicant’s excess income can be redirected into a pooled income trust, which is a type of special needs trust established and managed by nonprofit organizations for the benefit of disabled beneficiaries. The excess income transferred into a pooled trust can be used to pay the Medicaid applicant’s monthly household and personal expenses.

As you can see, with some relatively straightforward planning most people can qualify for Community Medicaid benefits. Once you have applied and been accepted under the Community Medicaid program, you can access a variety of services that will help you to remain in the community. 

For most of our clients the greatest benefit is the availability of a care provider who can come into their home and provide assistance with activities of daily living such as dressing, bathing, light housekeeping and meal preparation. 

Community Medicaid will also cover the cost of certain approved assisted living facilities and some adult day care programs. The availability and accessibility of care in the community is oftentimes far more available than most of our clients think. 

The community-based Medicaid program is invaluable for many seniors who wish to age at home but are unable to do so without some level of care and certain supplies the cost of which would be otherwise too expensive to sustain on their own. With some careful planning aging in place is certainly a viable option for most clients we meet.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

The first question that must be answered is whether you are determined a resident of New York. Stock photo

By Nancy Burner, Esq.

Nancy Burner, Esq.

We have seen many clients considered “snowbirds,” those who maintain a residence in New York but travel down south during our harsh winters. For our snowbird clients who want to create estate planning documents and plan for possible care needed in the future, it is important to determine if you should see an attorney in New York or elsewhere. 

The first question that must be answered is whether you are determined a resident of New York or of the other state you are visiting. Some factors to determine residency include the amount of time spent in each state, your mailing address, which state your driver’s license is held, where your car is registered, where you are registered to vote and where you file your income taxes.

Once you determine which state is your primary residence, there are other considerations to be examined regarding your estate plan. Snowbirds should consider where they plan on living in the future and where they think they will likely receive care. There may be a possibility that you move down south upon retirement but you plan to move back to New York to be with family members when you are in need of assistance. Since most clients do not have a plan set in stone, they should have estate planning documents, which may include Medicaid asset protection, that would cover them in either state.

Because the laws governing estate planning and Medicaid benefits differ from state to state, it is advisable that you have your documents reviewed by an attorney in both states to ensure that they comply with the laws in both places. For example, there is an additional signature required on a last will and testament in Florida that is not required in New York. Complying with Florida law when executing a last will and testament will not invalidate the document if it is probated in New York. This will avoid any issues or delay in administration if your will is probated in Florida. 

Additional examples of differences in the law are for powers of attorney and advance directives, including health care proxy and living will documents. Since these are state-specific laws, they often have different terminology that can be confusing when moving between locations. 

For a health care proxy in New York the person named to make your medical decisions is called your “agent.” In Florida the term for the agent acting as your health care proxy is a “surrogate.” In Florida the term used under the law to name the default agent appointed is “proxy.” This could cause unnecessary confusion and should be addressed by your estate planning attorney. 

The language and powers listed in your power of attorney will also differ by state. This becomes especially important when your agent is assisting in long-term care planning. You should make sure that your power of attorney includes all of the possible powers your agent may need should you need long-term care whether it is by privately paying or applying for Medicaid to cover your care costs. This may include: the power to prepare, sign and amend a trust agreement; allow for transfers of assets to your agent; and enter into contracts for caregivers or home health care services. 

For our snowbird clients it is important to consider where you are likely to receive care in the future. We recommend that you have your estate planning documents reviewed by an elder law and estate planning attorney in New York and your warm winter destination. 

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

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