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Nancy Burner Esq.

By Nancy Burner, Esq.

Nancy Burner, Esq.

Community Medicaid is the program that covers care at home, such as a personal care aide. Chronic Medicaid is the program that covers nursing home care.

The requirements and application process for Community and Chronic Medicaid are very different. An applicant’s marital status implicates a different set of rules. It is important to know the differences and make sure you have the correct Medicaid in effect.

For 2023, an individual applying for Community Medicaid can have no more than $30,182 in assets, excluding the home if the equity is less than $1,033,000. Qualified funds such as IRAs or 401(K)s are exempt, so long as the applicant is taking minimum distributions, and which are counted towards the monthly income allowance. The applicant’s income cannot exceed $1,677 per month — but there are ways to capture the income using a Pooled Income Trust. 

While these limitations may seem daunting, the good news about Community Medicaid is that there currently is no look-back period. No look-back means someone looking to get care at home can transfer assets out of their name and be eligible the following month.

It is important to keep in mind, however, that in April of 2020 New York State passed a law introducing a 30-month look-back period for Community Medicaid. The look-back period was originally set to take effect in October 2020, but was delayed. The New York State Department of Health recently announced that the earliest the 30-month look-back period will be implemented, if ever, is mid to late 2025.

To qualify for Chronic Medicaid in 2023 an individual applicant can have no more than $30,182 in assets, and no more than $50.00 per month in income. There is no pooled trust option to protect excess income, so any income exceeding $50 per month will go towards the cost of the nursing home care. Like Community Medicaid, qualified funds such as IRAs or 401(K)s are exempt if the applicant is required to take minimum distributions. The home is not an exempt resource unless a spouse, disabled or minor child is living there.

Chronic Medicaid has a five-year look-back period. This refers to the period of time that the Department of Social Services will review your financials to determine if you made any transfers. To the extent that the applicant has made transfers or has too many assets in their name to qualify, they will be ineligible for Medicaid. However, there are exempt transfers that the applicant can make which will not render them ineligible:

— A spouse;

— A child under the age of 21;

— A blind or disabled child;

— A sibling who has an “equity interest” in the home and who has lived in the home for at least a year before the Medicaid application is filed; or

— A “caretaker” child who has lived in the parent’s home for at least two years before the Medicaid application is filed.

Due to the complexities of eligibility for Community and Chronic Medicaid, it is imperative to consult with an expert attorney in the field.

Nancy Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

Matthew Kiernan, Esq.

Burner Prudenti Law, P.C. has announced that Matthew Kiernan, Esq., former Public Administrator of Suffolk County as appointed by the Surrogates Court, has joined the firm as Counsel. Kiernan brings decades of legal experience that includes time in private practice, public service, the court system, and academia. The hiring adds to the firm’s recent expansion of its Trust & Estates and Elder Law practices.

“We are very excited to welcome Matthew Kiernan to the firm,” said Nancy Burner, Founding Partner. “His distinguished and longstanding commitment to serving Suffolk County and New York state along with his exceptional trust & estate and guardianship work is a significant boon for the firm and for our clients.”

“I’m so pleased to be working with Matthew again. He is an outstanding lawyer and problem solver who will work tirelessly for our clients,” said Judge Gail Prudenti, Partner. For more information, visit www.burnerlaw.com.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

A Descendants Trust (commonly referred to as an Inheritor’s Trust) is a trust that is created under a person’s living trust or last will and testament that only comes into effect upon the death of the creator (“Grantor” in the case of a trust or “Testator” if a will). When a person leaves an inheritance for a beneficiary, he/she can choose to leave the share to the beneficiary outright or in a further Descendants Trust. 

If left in a Descendants Trust, the inheritance: (1) can be protected from the beneficiary’s creditors, (2) will avoid becoming marital property subject to equitable distribution upon the beneficiary’s divorce, and (3) will be better preserved for future generations.

One advantage of a Descendants Trust is that if it is drafted correctly it can offer creditor protection for the beneficiary. Typically, the terms of the Descendants Trust will provide that income generated by the trust (e.g. interest, dividends) is distributed to the beneficiary annually/quarter-annually and trust principal can be distributed for the beneficiary’s health, education, maintenance, or support (“HEMS”) if the beneficiary is acting as his/her own trustee. 

Otherwise, an independent trustee (a person not related by blood or marriage to the beneficiary and is not subordinate to the beneficiary i.e. does not work for the beneficiary) can distribute trust principal for any purpose. By limiting distributions in this way, the trust property will be beyond the reach of the beneficiary’s creditors and protected from any potential judgments.

A second advantage of Descendants Trusts is that they are an effective tool of protecting the beneficiary’s inheritance in the event of divorce. Generally speaking, when people get divorced they each retain their “separate property” while “marital property” is equitably divided by the court. Separate property includes property received as an inheritance, but if that inherited property is comingled with other marital property during the marriage, it can be subject to equitable distribution upon divorce. 

However, if the inheritance is left in a Descendants Trust and the beneficiary keeps the inheritance in the trust and avoids comingling it, the property will be protected from the beneficiary’s spouse should they get divorced.

Another benefit of a Descendants Trust is that it is a good vehicle for preserving wealth for future generations. When property is left to a beneficiary outright, it simply becomes a part of the beneficiary’s own estate, and thus will pass according to his/her own estate planning documents upon his/her death. However, the terms of a Descendants Trust can stipulate the contingent/remainder beneficiaries so, for example, one can provide that upon a child’s death their share is to pass to his/her children in further trust. 

Additionally, for high net-worth individuals with taxable estates, by limiting distributions of trust principal for HEMS, as discussed above, property passing into the Descendants Trust will remain outside of the beneficiary’s taxable estate, saving the beneficiary potential estate taxes upon his/her own death.

A Descendants Trust can be a great option for those who want to leave property to beneficiaries with creditor issues, beneficiaries going through a divorce, high net-worth individuals, or simply for beneficiaries lacking fiscal responsibility where it would be best for their inheritance to be managed by another person as trustee. An experienced elder law attorney can advise you as to whether a Descendants Trust makes sense for your particular situation and estate planning goals.

Nancy Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

In addition to traditional healthcare advance directives, such as a Healthcare Proxy and Living Will, the MOLST form is another advanced directive one can execute to ensure their end-of-life wishes are followed.

MOLST stands for “Medical Orders for Life-Sustaining Treatment.” It was originally tested in Onondaga and Monroe Counties in May 2006. In July 2008, after a successful pilot program, the MOLST program was implemented on a permanent, statewide basis. The Department of Health updated the form in June of 2010 to make it more user-friendly and to make it compliant with the Family Health Care Decisions Act. Despite the fact that the MOLST form has been around for several years, many people are unaware of its existence. In fact, even many physicians and social workers are not familiar with it.

Unlike a Living Will which can be prepared well before the end of your life, the MOLST form is a medical document traditionally executed when the patient wants to avoid or receive any or all life-sustaining treatment, is in a long-term care facility or requires long-term care services and/or may die within the next year. It is intended to assist health care professionals in discussing and developing treatment plans that reflect the patient’s wishes. The program is based on the idea that communication between you as a patient (or your legal surrogate) and your health care providers will result in informed medical decision-making. 

A licensed physician must verify that the treatment plan accurately represents the patient’s wishes in light of their prognosis and sign the form. Once executed, all health care professionals must follow the orders designated by the patient from one location to another, unless a physician examines the patient, reviews the orders and changes them.

The MOLST form itself is bright pink to ensure that it can be found easily in an emergency. It documents medical orders regarding life-sustaining treatments such as Cardiopulmonary Resuscitation (CPR), intubation, mechanical ventilation, artificial hydration and nutrition. The form can be used to limit medical interventions like cardiopulmonary resuscitation (CPR) or to clarify a request for specific treatments. Through this document, you can include directions about other types of medical procedures that you may or may not want to receive. Moreover, because the form is intended to follow the patient, it is used and recognized in a variety of health care settings.

The benefit of the MOLST form is that it forces a constructive dialogue between the patient and their medical providers that will aid physicians, nurses, health care facilities and emergency personnel in fulfilling patient wishes regarding life-sustaining treatments.

Nancy Burner, Esq. is a Partner at Burner Prudenti Law, P.C. with offices in East Setauket, Westhampton Beach, Manhattan and East Hampton.

From left, Britt Burner, Esq., Hon. Gail Prudenti and Nancy Burner, Esq.

On Aug. 16, Burner Law Group, P.C. announced that it changed its name to Burner Prudenti Law, P.C. and welcomed new Partner Hon. Gail Prudenti, former Chief Administrative Judge for the State of New York. 

The hiring and new name reflects the firm’s three partners — Nancy Burner, Britt Burner and Gail Prudenti — and the firm’s continued expansion of its Trust & Estates and Elder Law practices.

“Gail Prudenti is one of New York’s preeminent trust & estates attorneys with decades of experience as a distinguished judge, an outstanding law school dean, and as a trusted attorney,” said Nancy Burner, Founding Partner. “Adding Gail positions Burner Prudenti Law to uniquely serve our clients’ growing needs for elder law and trust & estates expertise.”

Founded in 1995, as Nancy Burner & Associates and later, Burner Law Group, the firm is a wholly women-owned full-service boutique law firm specializing in elder law, estate planning, trusts & estates and real estate with offices in East Setauket, East Hampton, Westhampton Beach and NYC.

Over the years, the firm has developed a reputation for excellence, compassion and integrity, helping clients with matters involving wills and trusts, wealth management, guardianship, and long-term care.

“In thinking about the next chapter in my career, I wanted an opportunity where I could continue to make a difference in the community and help families solve their legal issues — Burner Prudenti Law provides me with both opportunities,” said Hon. Gail Prudenti, Partner. “I am delighted to be joining such an outstanding team of attorneys and a firm that shares a commitment to providing exceptional legal services, bettering the Long Island and New York community, and putting clients’ needs first.”

“This is an exciting time for the law firm, and we look forward to continuing our mission to help clients plan for their future through valuable and trusted legal services,” added Britt Burner, Partner. “Judge Prudenti’s wealth of legal and administrative knowledge will be invaluable to the firm’s work and the client experience.”

For more information, call 631-941-3434.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

In December 2017, Congress passed the Tax Cuts and Jobs Act (“TCJA”).  This tax bill was an overhaul of the tax law affecting individuals and businesses in many ways. One of these changes substantially increased the Federal estate tax exemption.  

At the time the law was inked, the Federal Basic Exclusion Amount for an estate was $5.49 million ($5 million, indexed for inflation).  This meant that no taxes would be owed on the estate of a person dying in that year with a taxable estate less than that.  For estates over that amount, the overage was taxed at 40%.

The TCJA stated that for deaths in 2018, the exemption increased to $10 million, indexed for inflation.  Currently, in 2023, the estate tax exemption is $12.92 million.  This is an individual exemption, so a married couple enjoys $25.84 million between them.  

While this increased exemption is helpful for many families, it is not a long-term solution.  The law expanded the exemption but only for a limited period of time.  Barring any action by Congress to extend this further, this and other provisions of the TCJA sunset at the end of 2025.  As a result, where an individual dies on or after January 1, 2026, the exemption will return to the pre-2018 scheme of $5 million, indexed for inflation (likely to be just under $7 million).  For single persons with less than $7 million in assets, and couples with less than $14 million between them, there is no cause for concern when it comes to Federal estate taxes, even after the sunset.

With this looming sunset of the exemption amount, couples and single individuals may be able to take advantage now of the higher exemption amount with proper planning.  An alphabet soup of tools are available including SLATs, GRATs, IDGTS, etc.  The general idea being to remove assets from your taxable estate while you are alive, utilizing your expanded exemption, thus reducing the taxable assets at the time of death and passing more along to your beneficiaries.  There are also planning mechanisms for the charitably inclined that will serve to further reduce one’s taxable estate.

For New Yorkers, the State estate tax, currently $6.58 million, has been the larger concern.  Unlike the Federal, the New York exemption is not “portable” between spouses, meaning that the exemption of the first spouse to die cannot be saved to be used when the second spouse dies. Planning must be done to utilize each spouse’s exemption at the time of their respective deaths. 

Not all planning opportunities will suit your individual circumstances.  Determining the proper estate planning tools will depend upon your family structure, asset structure, and intended beneficiaries.  You should speak with your estate planning attorney today to better plan for tomorrow. 

Nancy Burner, Esq. is the founder and managing partner at Burner Prudenti Law, P.C. with offices located in East Setauket, Westhampton Beach, New York City and East Hampton.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

As a part of Medicaid eligibility, existing members must recertify with the local Department of Social Services (“DSS”). This is a mini application wherein your will have to provide current financial statements, monthly income verification and pooled income trust deposits if using one. This has always been the case for recipients of Community Medicaid and Chronic Medicaid; however, this may be a new concept for those that started with the program post-March 2020.

Due to the COVID pandemic, DSS was extending benefits without the requirement of submitting the necessary documents. You may have even received a notice from your local department stating that “we will extend Medicaid coverage” and “based on the federal legislation signed into law on Wednesday, March 18, 2020, no person who currently has Medicaid coverage will lose their coverage during this time of the COVID-19 pandemic.” For some people, this meant no recertification for three years. But that time is over and as the new notices from DSS say it is time to “ACT NOW.”

Since this is the first time in three years that benefits have been adjusted, you could see a dramatic change in the income budgeting for the Medicaid recipient. One of the main reasons for recertification (other than confirming continued eligibility) would be to assess the monthly income budgeting. This would be the net available monthly income (“NAMI”) for Chronic Medicaid recipients which needs to be the amount paid over the nursing home each month. For Community Medicaid recipients it would mean adjustments to the funding of the pooled income trust. This is usually adjusted annually, and the change is barely noticeable. 

But now, after three years, the adjustment may seem dramatic, especially if there has been a major change with the Medicaid recipient, including the death of a spouse, change in value of a retirement account, or an increase in social security benefits. All of these circumstances can impact the monthly benefits.

Retaining an attorney to prepare and submit the recertification is typically advisable. If the application is not filled out correctly, or documentation is missing, the recertification could be denied for failure to provide information. This would result in a loss of benefits for the Medicaid recipient and the possibility of a gap in coverage.

Nancy Burner, Esq. is the founder and managing partner at Burner Law Group, P.C. with offices located in East Setauket, Westhampton Beach, New York City and East Hampton.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

When a couple gets divorced, the court attempts to divide the marital property as fairly and equally as possible. 

This doctrine of Equitable Distribution considers factors such as the length of the marriage, age and health of each party, and the earning power of each spouse. Under New York State law, “marital property” is broadly defined as property acquired by one or both spouses during the marriage. “Separate property” is defined as property acquired by an individual prior to marriage. Separate property is not subject to Equitable Distribution.

However, certain types of assets acquired during marriage are not subject to Equitable Distribution. Inheritance, gifts received from individuals other than one’s spouse, and personal injury compensation are considered separate property.

At first glance, it may appear that your child’s inheritance does not need protecting, but this is not the end of the story. Separate property can become marital property if “commingled” with marital property. 

For example, if your child were to deposit their inheritance into a joint account with their spouse, use inherited assets to purchase a home titled jointly, or your child’s spouse contributes to the maintenance and capital improvements of inherited property, the assets would become commingled and thus subject to Equitable Distribution upon divorce.

The best action you can take to prevent this from occurring is to leave your child’s inheritance in a trust. You could name your child as trustee or appoint someone else, and you would be able to limit distributions from the trust as you see fit. Importantly, the trust adds a layer of separation, better protecting the inheritance from a divorcing spouse and creditors by maintaining its status as separate property.

Moreover, with a trust you can control the remainder beneficiaries of the property you leave your child after his death. If you were to leave them their inheritance outright, your child’s own will would dictate how their estate were to pass. But with a trust you could stipulate that upon your child’s death any remaining assets pass to whomever you wish. This could be your grandchildren, your other children, or your favorite charity.

Nancy Burner, Esq. is the founder and managing partner at Burner Law Group, P.C with offices located in East Setauket, Westhampton Beach, New York City and East Hampton.

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By Nancy Burner Esq.

Nancy Burner, Esq.

Revocable trusts have become increasingly popular estate planning tools to avoid probate. A  trust allows for the orderly and private administration of your assets at death without court  involvement. 

A revocable trust is a trust that you create during your lifetime designed to give you flexibility and control over your assets. You may act as your own trustee, thereby  maintaining complete control over your assets. Assets can be transferred in and out of the  trust at your discretion and you may change or revoke your trust at any time. 

A revocable trust can hold any asset. Common assets include real property, non-qualified  investment accounts, bank accounts, certificates of deposit, and life insurance policies. Qualified retirement accounts should never be transferred to a revocable trust as it would  cause a taxable event.  

Assets titled in the name of your revocable trust pass to the beneficiaries automatically,  thereby avoiding probate. Likewise, any assets with designated beneficiaries pass directly to  beneficiaries. Assets in your sole name that do not have designated beneficiaries must go  through probate.  

Why do people want to avoid probate? Probate is time consuming and can be expensive. When a person dies with a will, the nominated executor must file a probate petition with  the Surrogate’s Court before having the authority to act. First, the Executor will file the  original will, certified copy of the death certificate and the probate petition in Surrogate’s  Court. Then, notice is given to the decedent’s next-of-kin who would have inherited had  there been no will. The next-of-kin will either sign waivers and consents or be issued a  citation to appear in court to have the opportunity to object to the Executor. 

After  jurisdiction is complete and issues with the will, if any, are addressed, the Surrogate’s Court  will issue a decree granting probate and Letters Testamentary. Only then can the Executor  gather the assets and distribute them according the directives in the will.  

When a person dies without a will (intestate), the process is similar. It is necessary to file an  Administration Petition with the Surrogate’s Court. Here, a close relative of the decedent  applies to become the decedent’s Administrator. As with a probate proceeding, all interested  parties must be given notice and must either sign a waiver or be served with a citation issued by the court. The Court will then issue Letters of Administration appointing them as Administrator.  

By creating and funding a revocable trust, your beneficiaries will avoid having to go through  this probate process. This avoids the attendant costs and delay, which can be substantial if  there is a will contest or hard to find relatives. Additionally, because of the backlog created  by the pandemic and the recent ransomware attack on the Suffolk County government this  past fall, the courts are extremely behind.

Even “straightforward” probate matters take months, even years, to make their way through the court system. This explains why more and more people  are deciding to create revocable trusts so that their spouses and children can inherit their  estate seamlessly, free from court interference. 

Nancy Burner, Esq. is the founder and managing partner at Burner Law Group, P.C with offices located in East Setauket, Westhampton Beach, New York City and East Hampton.

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By Nancy Burner Esq.

Nancy Burner, Esq.

The Medicare program is administered jointly by the state and federal government. Medicare is available to adults 65 years of age and older, or to anyone under the age of 65 who is entitled to Social Security Disability. 

Medicare provides varying levels of medical coverage, depending on the plan you have. Medicare Part A and Part B, two of the more basic plans, provide coverage for hospitalization stays, rehabilitation, physical therapy, routine doctor visits, and medical equipment. Medicare Part A will also cover the cost of hospice care with a terminal diagnosis of less than 6 months. 

It is important to note that Medicare will not pay for long term services in a facility or services received at home on a long term basis. For example, if you fall and require surgery, you may need rehabilitation in a facility before able to safely return home. In this case, as long as all requirements are met following the hospital stay, Medicare Part A will cover the full cost of the first 20 days in a rehabilitation facility. For days 21-100, there is a co-pay per day if the patient continues to need rehabilitation services. 

If you have a supplemental insurance policy or commonly referred to as a “gap” policy, this may help ease the cost of the daily out of pocket co-pays. After Medicare stops paying, the full cost of the nursing home falls on the patient. This can cost can be upwards of $600 per day.

As you can see, coverage for rehabilitation under Medicare Part A is intended to be short-term. The goal is improvement of acute conditions through rehabilitation and skilled nursing care. While given up to 100 days, patients rarely qualify for this full amount. After admittance to a facility, the patient is evaluated periodically. Once the facility determines that the patient no longer needs skilled care, coverage under the Medicare program ends.

The most important piece to understand is the difference between skilled care and custodial care. Medicare does not cover custodial care. There are many circumstances where the patient does not fall into the category of needing rehabilitative or skilled care, but the family cannot bring their loved one home safely. Medicare does not pay for time to set up a discharge plan. Once Medicare terminates coverage, the patient needs to return to the community or start privately paying for care.

As you enter the arena of Medicare and with unpredictable times, education is key. It is important to meet with your Elder Law attorney to discuss future care plans and options for aging in place successfully.

Nancy Burner, Esq. is the founder and managing partner at Burner Law Group, P.C with offices located in East Setauket, Westhampton Beach, New York City and East Hampton.