Guardianship of a Child with Special Needs

Picture of a courthouse

In the State of New York children are considered adults when they reach the age of 18. All children are considered legally competent and capable of making decisions for themselves independently at 18 years of age. However, if you have a child with special needs you may be aware your child’s disability may never allow him or her to be a legally competent adult. In the State of New York no matter how severe your child’s disability is, you will need to take legal action to have a guardian appointed for your child after they turn 18. In addition to parents appointing themselves as guardians of their children, it is also recommended they appoint successor guardians in the event of the parents’ disability or death. Successor guardians are an important component of the guardianship process because children generally outlive their parents.

Guardianship Proceedings in New York Surrogate’s Court

In the State of New York guardianship proceedings for children who turn 18 are usually brought in the Surrogate’s Courts. The procedure is pursuant to New York Surrogate’s Court Procedure Act 17-A. The parents must produce documentation of the disability of their child. This can be done by submitting affidavits from the child’s physicians. The application to the court must also explain to the court the child would not be in a position to manage his or her own affairs. After the application is brought to the court, the court appoints an attorney to the represent the child. This attorney will usually investigate the child’s circumstances and ascertain the truthfulness contained in the parents’ petition. The guardianship proceeding should be part of the planning for the child’s long term care. The guardianship application should be brought long before the child turns 18 years of age. Guardianships are not simple proceedings. It is highly recommended that you retain a guardianship law firm familiar with the needs of special needs children to represent you in these proceedings.

Medicaid Planning – Long Term Care Issues

Gavel & A Law Book

Growing old has its benefits. You get to see your grown children, friends and family members for a long period of time. You tend to grow wiser and more sophisticated with regard to lifestyle matters and the future of your family. However, a significant portion of seniors at some point in their lives require long term care. They will either require the assistance of home healthcare aides in their home or assistance in a nursing home or other type of senior facility.

Issues concerning long term care are complicated. They also involve significant expenses. To stay in a nursing home in the State of New York cost approximately $200,000.00 per year. You should not ignore issues involving long term care.

Medicaid Eligibility

Medicaid is the only long term care program which is publicly funded. However there are very strict eligibility limits. In order to qualify for Medicaid an individual may need to spend down a portion of his or her assets to fall within the Medicaid eligibility limits. There are a variety of techniques that can be used to help you qualify for Medicaid long term care. These involve gifting programs, trusts, spousal refusal and a variety of other Medicaid planning techniques.

Becoming eligible for Medicaid is a complex process. This process also changes on a year to year basis. In addition to only having a certain amount of assets at the time you apply for Medicaid, Medicaid also has a “look back” period. During this 5 year look back period certain transfers of assets will be subject to a penalty under the Medicaid Law. It may be in your interest to consult with an elder law attorney to see if there is a manner in which you can avoid spending your assets and still qualifying for Medicaid.

Too Much Assets

If you have more assets than is allowed by Medicaid and you enter a nursing home you will be on a private pay basis. You will have to pay for the nursing home expenses until you meet the Medicaid eligibility level for Medicaid coverage. Medicaid does not include your home in its calculations. However, Medicaid can bill your estate for your medical care after you die.

Medicaid Eligibility

You don’t have to spend all of your assets to meet the “spend down” requirements of Medicaid. The appropriate estate planning techniques used by elder care attorneys can help you preserve your assets so they can be inherited by future generations as well as meet the Medicaid eligibility requirements.

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys representing seniors throughout the Metropolitan New York area.

Estate Planning Attorney – The Issues

Upon first contacting the estate attorney’s office it is suggested you make an inquiry as to whether there will be a free consultation or there will be a charge for the first office consultation. The purpose of the first estate planning meeting will be to obtain information and guidance with regard to your family’s situation. It is helpful if a specific plan can be outlined to deal with you and your family’s financial and legal issues.

Wills and Trusts

You may decide after your initial consultation you need a variety of estate planning documents. You should be aware of tax laws and other laws concerning estate matters periodically change and you should follow up with your attorney every few years to make sure your estate planning documents are accurate and up-to-date. Make sure the law firm you retain is in business for a considerable period of time and will be available in the future to help you and your family with your pressing legal needs.

Estate and Retirement Planning

As you move closer to retirement you should have your attorney review retirement related documents you are presented with that relate to financial issues. You should have discussions with your attorney with regard to seeing to it your assets are properly passed to your children or other loved ones. Different techniques can be used to avoid taxation of your assets when they pass from one generation to the next.

Conclusion

If you have accumulated assets during your lifetime you should be careful to see to it that they will be properly received by your heirs and loved ones in a simple non-complicated manner that does not place a burden on your family members after your death.

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys representing clients throughout the Metropolitan New York area.

VIDEO: Guardianships

On today’s video blog Elliot discusses the topic of Guardianships.

VIDEO: Is a Revocable Trust or an Irrevocable Trust Right For You

Do Your Debts Die With You?

Debts-Die

To start with your debts don’t die with you. They survive your death. If you have a Will the obligation to deal with your debts falls upon your executor after the Will is probated. If you have no Will an administration proceeding can be brought by the next of kin to appoint someone to handle your affairs.

Most Americans Die with Debts

If after you die your debts aren’t paid it will have a negative impact on your credit rating. But of course you won’t care about that because you will be dead! If you have assets your creditors can file a claim in your estate proceedings against the assets. In estate proceedings debts are paid before there is distribution of the assets to beneficiaries in a Will or next of kin in an administration proceeding.

Credit Card Debts

There is a statute called the Credit Card Act of 2009. This requires credit card companies to notify the estate quickly with regard to any debts of the deceased. The statute also prevents credit card companies from assessing additional fees of penalties while the estate proceedings are pending. There are situations where there are not enough liquid assets to pay the credit cards. In these cases the credit card companies may contact family members and request they pay the balance of the credit card debt. Be advised unless a family member has co-signed for the credit card, there is no obligation to pay these debts and family members will not be held liable by the credit card companies for these debts.

Unpaid Loans

If you have student loans which are pursuant to a federally backed student loan program these loans will be discharged upon your death. Private loans do not become discharged in the event of your death. Banks and other financial institutions will request payment from your estate. If there are no liquid assets to pay these debts from your estate and there is a co-signer on the loan they will go after the co-signer to pay the debt.

Mortgages and Car Loans

Mortgages and car loans are considered secured debts. The mortgage is secured by the home and the car loan is secured by the vehicle. In the event these types of loans are not paid the creditor can take legal action to repossess the car and foreclose on the house.

Doctors and Hospital Debts

Money owed to hospitals and/or medical providers are not discharged at the time of your death. These unpaid bills may become a lien against your estate. If there is a co-signer for these debts, the co-signer will be obligated to pay these debts upon your death.

Family Members Pressured to Pay Debts

Attorney Elliot Schlissel

Sometimes collection agencies and their telephone collectors seek to put pressure on family members to pay deceased relatives debts. Be advised, unless you co-sign for a loan you are not responsible to pay the debt of a deceased family member.,

Reverse Mortgage Problems

Mortgage-Problems

The purpose of a reverse mortgage is to allow a senior to pull out the equity in his or her home to meet his or her living expenses. In theory the senior does not have to ever pay back the loan. When he or she dies the home will be sold to pay back the mortgage, however, this is not always the case.

Foreclosure and Reverse Mortgages for Non-payment of Real Estate Taxes

A homeowner in a reverse mortgage must pay his or her real estate and school taxes. The non-payment of real estate taxes gives a financial institution the automatic right to bring a foreclosure lawsuit. Banks will bring these non-payments of real estate tax foreclosure proceedings to protect their mortgage interests in the house.

The mortgage creates a first lien on the property. However real estate taxes have a superior interest to the mortgage holder with regard to the property. Therefore if the homeowner fails to pay their real property taxes the municipality, city or town can bring a non-payment or tax foreclosure proceeding against the homeowner. In this case, the interests of the municipality to pay their taxes, is superior to that of the mortgage holder. Therefore when the taxes are not paid the institution holding the mortgage often is forced to bring a foreclosure case to protect their interests.

Attorney Elliot Schlissel

Elliot S. Schlissel, Esq. and his associates defend homeowners in tax foreclosure cases throughout the Metropolitan New York area.

Preparing a Will in New York

Preparing a Will in New York

A simple will can be a very basic estate planning document. However the preparation and execution of a simple will in the State of New York requires very specific execution formalities. These execution formalities are so specific and detailed that it is essentially never recommended for a person to prepare and execute a will without the help of an attorney. Our office’s experience with wills prepared by individuals without the supervision of a lawyer is that these attempts generally lead to litigation because the wills were not properly executed in conformity with New York Law.

Formal Requirements for Will Execution

To start with a will must be in writing. It needs to be executed at the end by the person making the will. In addition there must be a minimum of two (2) attesting witnesses. Neither of these witnesses should be an individual who receives any assets or benefits under the terms of the will. The individual executing the will must state and declare that this is his or her last will and testament. In addition, the individual executing the will must have testamentary capacity and be aware and understand the contents of the will.

These are just some of the specific requirements concerning drafting and the execution of a will. The deviation from any one of these requirements can render a will invalid. An individual having a will that he or she believes is valid that turns out to be invalid may be worse off than if there was no will at all.

Conclusion

It is important to consult with an experienced estates attorney with regard to the drafting of wills and trusts. The preparation drafting of a simple will is a relatively inexpensive document to have an attorney prepare.

Attorney Elliot Schlissel

Elliot S. Schlissel, Esq. has been preparing wills and representing clients throughout the Metropolitan New York area in probate and wills proceedings for almost 4 decades.

Can a Copy of a Lost Will be Probated

Person signing a legal document

Original wills should be carefully preserved and maintained. The attorney who drafts the will usually will maintain the will in either a safe or fire proof file cabinet. However there are occasions when wills are lost or accidentally destroyed. When a will is destroyed or lost it is presumed that this action was taken by the testator (person whose will it is) to revoke the will. The law takes this position to avoid fraud regarding these matters. There are occasions when wills are left with attorneys and for one reason or another they are either lost or destroyed. An example of this is Hurricane Sandy flooding a storage facility that lawyer maintains wills at and the salt water destroying the will. In these cases the attorneys’ office will make a presentation to the court and show the testator did not know that the will was destroyed and he or she had no intention of revoking the will by its destruction. In addition the attorney’s office would show the testator (person who made the will) believed the will still existed at the time of his or her death at the law office and was properly secured.

The Presumption of Revocation of a Will

Section 1407 of the New York Surrogate’s Court Procedure Act deals with issues concerning wills that have been destroyed, lost or rendered unreadable. The section states:

“That a lost or destroyed will will be admissible to probate if it is established that the will has not been revoked, the will has been executed in the procedure provided by law and all of the provisions of the will are clearly and distinctly proved by each of at least two (2) credible witnesses or by a copy of a draft of a will proved to be true and accurate.”

This is a difficult standard to meet. The presumption of the revocation of a will if it cannot be produced is strongly enforced by the courts in New York. In addition to probate a will the individual who seek to have the will probated must establish the will was duly executed. In order to accomplish this goal the witnesses to the will need to submit an affidavit or testify. They specifically must state that they witnessed the testator execute the will. In addition they must testify or swear to in an affidavit that the testator was competent, acknowledged the document was a will, understood the terms and conditions in the will and had testamentary capacity to execute the will.

Conclusion

Attorney Elliot Schlissel

Copies of lost wills can be probated but it is difficult to do this.

Mother Appointed Guardian of Developmentally Disabled Son

A person signing guardianship papers

In a proceeding before Surrogate Rita Mella in Manhattan Surrogate’s Court both a mother and a father had brought an Article 17A guardianship proceeding under the Surrogate Court Procedure Act (“SCPA”). Each of the parents sought to be appointed the guardian of Elijah J., a developmentally disabled individual. A guardian ad litem (temporary guardian during the court case) was appointed by the court to conduct an investigation as to who would be the more appropriate individual to be the Article 17A guardian for Elijah. The guardian ad litem concluded that the mother was the more appropriate person to be appointed guardian. She had acted as Elijah’s primary caretaker for his entire life.

Evidence Submitted

There was also uncontroverted testimony and documentary evidence submitted that Elijah was indeed a developmentally disabled individual who did not have the capacity to make health care and other decisions for himself. The court decided it would be in Elijah’s best interest for a guardian to be appointed for him.

Father Not Involved with Day to Day Care

The court also found that the father had failed to present evidence of his substantial involvement with Elijah. The father also failed to show that he was familiar with Elijah’s medical care and personal needs. He was also not sufficiently up to date with regard to Elijah’s educational progress. Judge Mella found the father’s failure to establish he had a plan for Elijah’s needs and the fact that he had not participated in raising Elijah or taking care of Elijah would make him an unsuitable person to become Elijah’s guardian. Justice Mella therefore granted the mother’s petition to become Elijah’s guardian. She also appointed the father as the standby guardian (guardian if mother is no longer available for Elijah.

Attorney Elliot Schlissel

The Law Office of Elliot S. Schlissel brings guardian cases throughout the Metropolitan New York area both under the Surrogate’s Court Procedure Act Article 17A and under Article 81 of the New York Mental Hygiene Law.