DETAILS OF NEW GUARDIANSHIP LAW

Silhouette of a child and parent

On July 21, 2016 the New York State Legislature enacted a new guardianship law entitled “Peter Falk’s Law.” This new statute requires the court in issuing a guardianship order to consider the persons entitled to visitation with the incapacitated individual. It also takes into consideration those individuals who should be entitled to receive notice of hospitalization, death, funeral arrangements and burial arrangements with regard to the incapacitated individual. Prior to the enactment of this statute, the guardian had no obligation to provide children or other family members of the information concerning the health and general welfare of the incapacitated person. The reasons for this new statute relate to guardianship lawsuits that were started by adult children of celebrities Glenn Campbell, Casey Kasem and Peter Falk.

DETAILS OF NEW GUARDIANSHIP LAW

These changes to the New York Guardianship Statute now require the judge issuing the guardianship order to put specific powers in the order regarding the guardian. The guardian now must provide information of the incapacitated person’s death, funeral arrangements, final resting place and other issues concerning the burial of this individual.

VISITATION WITH FAMILY MEMBERS

Under the prior guardianship statute, the guardian was in the position to control who and when family members and friends could visit the incapacitated person. Now the court order appointing the guardian has to identify those individuals who are entitled to visit with the impaired individual.

In the Peter Falk case, Casey Kasem case and Glenn Campbell case, adult children of these celebrities were kept from seeing their dying parent by a second wife who was not their mother. This caused litigation between the children and the second wives.

CONCLUSION

Attorney Elliot Schlissel

The divorce rates in the United States continue to climb. In the future there will be many more situations involving second, third wives and children from earlier relationships. This creates considerable potential for problems between children of prior marriages and their step parents. This new statute takes into consideration not only the interest of the alleged incapacitated person but the desires of other family members to continue to maintain relationships with him or her and visit with their family members should he or she become ill or hospitalized.

Guardianship Lawyers

A family holding hands

The constitution of the United States provide that all citizens shall be entitled to health, wealth, and happiness, To enjoy health wealth and happiness, individuals must have independence. If an individual loses his or her capacity to make financial and/or medical decisions a guardianship proceeding can be brought to help this individual. However, guardianship proceedings deal with removing an individuals ability to make independent decisions regarding their finances and healthcare. Courts take the loss of these rights very seriously. The importance of these constitutional rights tend to make guardianship proceedings in the state of New York complicated matters.

Types of Guardianships

There are two statutes in the state of New York that deal with guardianship proceedings.

17A Guardianships Under the New York Surrogate’s Court Procedure Act

These guardianships are brought by parents of children with special needs. The special needs can be related to developmental problems, accidents, injuries that cause disabilities and other issues that prevent children after they reach the age of eighteen (majority of the state of New York) who are unable to take care of their personal and financial matters. Under New York state law when an individual becomes eighteen years of age they become an adult. Parents no longer have the ability to make decisions for a child. If the child has mental or psychological issues the parent needs to bring a guardianship proceeding under article 17A of the Surrogate’s Court procedure act to continue to be legally responsible for making decisions for their adult developmentally disabled child. This is a relatively complicated matter that is brought before the Surrogate’s Court in the state of New York.

Article 17 Guardianships for Minors

In cases where minors inherit assets worth more than $10,000.00 courts have an obligation to oversee that these assets are properly maintained and managed. This usually occurs when a minor receives funds through an inheritance, accident case, or medical malpractice case. The purpose of this type of guardianship is to make sure the minors assets are protected until he or she becomes an adult. The age of majority when the minor becomes an adult in the state of New York is 18 years of age. In these cases a guardian is appointed to make financial decisions on behalf of the minor child until he or she turns 18 years of age.

Article 81 Guardianships

Article 81 Guardianships are brought pursuant to article 81 of the New York Mental Hygiene Law. These guardianship proceedings are brought in the Supreme Court in the state of New York. These cases generally are about, seniors who were competent at one time but now suffer from either a mental or a physiological disability that prevents them from making financial and personal care decisions. These individuals can suffer from Alzheimer’s disease, dementia, accidents involving brain injuries and or other injuries related to aging. The process for article 81 guardianships under New York Mental Hygiene Law is completely different than the 17A guardianship proceedings.

Guardianship Attorneys

NY Attorney Elliot Schlissel

Guardianship lawyers at the Law Offices of Schlissel DeCorpo have been representing individuals bringing guardianship proceedings, challenging guardianship proceedings and protecting the rights of the alleged incompetent in the state of New York, for more than 35 years, Elliot S. Schlissel and his associates have helped individuals throughout the Metropolitan New York area have their rights protected in guardianship lawsuits in both under article 17 of Surrogate’s Court Procedure Act and Article 81 of the New York Mental Hygiene Law.

Surviving Spouse’s Right of Election

Scales of justice

New York has a special statute which protects spouses from being disinherited. The name of this statute is called “The Right of Election”. Under this statute a spouse is entitled to a minimum “elective share” of the assets of his or her spouse. If a spouse is disinherited in a will or trust and or the spouse receives less of the decedent’s estate than he or she is entitled to, they can ask for their “elective share” under the right of election.

Elective share in New York

The right of election allows a spouse to challenge what she receives in a will. The right of election entitles the spouse to receive the greater of 50,000.00 or 1/3rd of the estate. In New York this only applies to individuals who are legally married. New York does not accept the existence of a common law marriage for estate purposes.

The request for an elective share includes both assets in the parties names and “testamentary substitutes”. Testamentary substitutes can be bank accounts, real estate and other types of assets that are designed to prevent the spouse from receiving his or her just share in an estate.

Exercising the Spousal Right of Election

When a spouse does not receive the value of $50,000.00 or one third of the estate, he or she can take action to file for their right of election against the estate. This right of election is exercised by the surviving spouse who has either been disinherited or has not inherited as much as he or she would receive in the elective share. An individual who seeks to exercise his or her elective share must take this action within six months after an executor or an administrator has been appointed to handle the estate. The six month period acts as a statute of limitations. Failure to take the appropriate action to claim one’s elective share during the six month period will bar them from claiming the elective share in the future.

The exercising of one’s rights to an elective share is not something that an individual should do on his or her own. Should you feel you have not received an adequate amount of inheritance from your spouse you should contact an estates attorney and meet with him or her to discuss your options and how to protect your interests.

NY Attorney Elliot Schlissel

Elliot S. Schlissel is an estates lawyer representing individuals in estate planning matters, will contests, accounting proceedings and all other estate related litigation issues throughout the metropolitan New York area.

Accounting’s in Estates

A calculator and document

The executor in a will or the administrator, in an intestate proceeding, has to fiduciary responsibilities. These responsibilities involve fairly and accurately handling all financial matters regarding the estate. In situations where a beneficiary of the estate has questions concerning the accumulation of assets and the distribution of the assets of the estate, they can bring an accounting proceeding.

Documentation in Accounting Proceedings

When an accounting proceeding is brought the executor must provide a detailed breakdown of all assets received by the estate. In addition, the executor and/or administrator must provide documentation of all income received by the estate. This can include a return on an investment and or losses on investments. In addition all estate expenses and distributions to beneficiaries and or creditors must be documented. In situations where the accounting does not list all of the assets and/or income, expenses, profits and losses, a detailed investigation during the course of this accounting proceeding can be undertaken to look into these issues. In the event where there is mismanagement, improper dealings, failure to act properly and or the estate has losses, the executor and or administrator can be held liable to reimburse the estate with regard to these items.

Fiduciary Responsibilities in Estates

The executor in a will or the administrator of an intestate estate is held to an extremely high standard of conduct. He or she is a fiduciary and fiduciaries must properly handle the estate. In certain situations a lawsuit can be undertaken with regard to fiduciaries mismanagement or mishandling of the estate. These situations involve:

  • The improper handling of estate property;
  • Improper transfer of assets to the fiduciary (self dealing);
  • Failure to the keep beneficiaries informed with regard to the handling of the estate;
  • Failure to follow the terms of the will or intestate distribution scheme.

NY Wills & Trusts Lawyer Elliot Schlissel

Elliot S. Schlissel and his associates represent clients throughout the metropolitan New York area in all aspects of estate litigation.

Estate Litigation In New York

Signing a document

The purpose of estate planning is to develop a plan that minimizes or avoids estate litigation. However, if you are an heir, a creditor, a family member, a child, or a spouse of someone who died and you feel that you have been treated unfairly and/or there has been undue influence fraud or duress, a will proceeding, administration proceeding or trusts proceeding may be necessary to protect your rights and interests.

Contesting the Will in New York

The most common estate proceedings are a will contests. There are a variety of grounds that can be used to challenge the validity of the will, children who have been left out of the will, family members who promises were made to and or individuals who were disinherited from the will who believe that the will should not be accepted by the court as a valid document can retain legal counsel to litigate the validity of the will. The following are issues that can be brought up to the Surrogate’s Court in New York regarding the challenging of the validity of the will.

  • The decedent has been the subject of fraud or duress with regard to the preparation of this will.
  • Was the will properly prepared and properly executed?
  • Has the will been amended, modified or changed?
  • Is there a subsequent will or prior will?
  • Is the will clear as to the beneficiary scheme?
  • Did the decedent, on the day he or she executed the will, have competent mental capacity?

NY Attorney Elliot Schlissel

For more than 35 years, Elliot S. Schlissel and his associates have been representing clients with regard to the preparation of wills and litigating wills and litigating all types of issues concerning wills, trusts and estates. The office can be contacted at either 516-561-6645 or 718-350-2802 for a free consultation regarding all types of estate issues.

Medicaid Explained

Medicaid Explained

Medicaid is a program maintained jointly by states and the federal government. It is designed to pay for home healthcare aids and/or nursing home care for individuals who qualify. How does one qualify for medicaid? Although medicaid is basically a welfare program, estate planning can allow even families with significant assets to qualify for medicaid benefits.

Medicaid Qualifications

In New York State, the department of social services is the government organization an individual must apply to in order to qualify for medicaid benefits. The department of Social Services considers 3 important factors when determining medicaid eligibility;

  • Does the individual applying for medicaid benefits need nursing home care and/or a home health care aid?
  • What is the income of the applicant and his or her spouse? This includes pension benefits, retirement accounts, investment income, rental income, Social Security and all other income received by the individual and or his or her spouse.
  • Both the individual and his or her spouse have assets that can be utilized to pay for home healthcare aids and or nursing home expenses. These assets include, investments, residence, savings and all other assets.
  • Two Medicaid Programs

    There are two types of medicaid programs available to individuals. First is called community based medicaid. This involves having a healthcare aid provide services in the applicant’s home to help the applicant with their daily needs.

    The second type of medicaid benefits is referred to as institutional medicaid. This involves medicaid covering the cost of the individual residing in a nursing home facility.

    Individuals applying for institutional medicaid will have to submit documentation of their finances for the past five years.

    Medicaid Eligibility and Elder Care Planning

    Proper estate planning can help families protect their assets and allow them to be inherited by future generations and still have the state to pick up the cost of community based medicaid and for institutional medicaid (nursing home expenses). Speaking to an experienced elder law attorney is the first step in planning for one’s future and the possibility of needing institutional healthcare services or community based healthcare services.

    Elliot S. Schlissel is an attorney practicing Elder Law for more than 35 years. He has helped numerous clients qualify for both community medicaid as well as institutional medicaid.

    Fighting for Special Needs Children

    Picture of a young child

    Parents who have special needs children besides from making standard elder care and estate planning decisions, must take into consideration how a child with a disability who may never be able to support themself will be taken care of after the parents die or become disabled.  Failure to make advanced planning arrangements for a special needs child can lead to a disastrous situation for that child.

    Special Needs Trusts

    Special needs planning takes in consideration government funded programs as well as the families ability to provide for this child in the long run. Special needs trusts are created to deal with financial issues to help support a special child after the parents are no longer capable of taking care of him or her. Special needs trusts are created to maintain the quality of life of the special child. These trusts can be designed to take care of personal care issues, housing and other services for this child. Another name for special needs trusts is supplemental needs trusts.

    Elder law attorneys help families make long term plans to maintain their special needs children after they pass. These plans provide for the financial security of special needs children who will unable to support themselves or take care of themselves. In the italics replace the word care with the word law.

    NY Attorney Elliot Schlissel

    Elliot Schlissel is an elder care attorney with more than 35 years of experience practicing law throughout the Metropolitan New York area.

    Elder Law Explained

    An elderly person being cared for

    Elder Law deals with the concerns families and seniors have with regard to long term care issues. The population base on Long Island is growing older.  Issues concerning disability, asset protection, estate planning, medicare and qualifying for medicaid are issues that seniors face in their future.

    Guardianship

    Sometimes when seniors age they develop problems in managing their medical
    and financial needs. In these situations it may be necessary for family members or other loved ones to bring a guardianship proceeding to help the senior.

    Advanced Directives

    Elder law planning deals with establishing a long term plan for the distribution of assets and the potential that you’ll be unable to make medical decisions for yourself.

    There are a variety of advanced directives that are utilized by elder care attorneys to help their clients develop long term plans.  These documents are called advanced directives. Advanced directives include power of attorneys, healthcare proxies, and living wills.  These advanced directives are in addition to basic estate planning devices such as wills and trusts.

    Special Needs Planning

    NY Attorney Elliot Schlissel

    Seniors who have children or other loved ones who are not in the position to take care of themselves or handle their own finances should be protected from losing state sponsored benefits. Special needs trusts are designed to help these individuals maintain benefits such as social security disability, and medicaid while having an additional stream of income to provide them with necessities and other personal money to enable them to live a comfortable life.

    Revocable Trust or Irrevocable Trust: Which Is The Right One For Me?

    Elderly woman in deep thought

    Revocable trusts are primarily used for the purpose of avoiding probate. These trusts are private documents which are not filed in courts. The beneficiaries inherit through the trust.

    IRREVOCABLE TRUSTS

    Irrevocable trusts are usually set up to protect assets related to the cost of long term care. Whether it is for home or health care aids or for living in a nursing home. If an irrevocable trust is set up more than 5 years before an individual requires care in a nursing home it can be set up in a manner that would cause Medicaid to pay the nursing home expenses. Nursing home expenses can cost as much as $12-$14,000 per month. These expenses can eat up a large portion, if not all, the assets in most estates.

    ESTATE TAXES

    Both irrevocable trusts and revocable living trusts can be set up for the purpose of minimizing estate taxes. In New York, estates are subject to both federal and New York State estate taxation.

    COST FACTORS OF TRUSTS VS. WILLS

    Generally speaking, it is less expensive to have an attorney draft a will than it is to have the attorney draw up either a revocable or irrevocable trust. Wills require no administration while trusts can require some annual administration. Although wills go through the probate process, trusts avoid probate. There are many different factors to be considered when deciding with regard to your estate plan as to go with a revocable trust, an irrevocable trust, or simply a will. It should be pointed out that trusts can also be included within wills.

    The best way to deal with these issues is to meet with an estate planning attorney and discuss this with him or her.

    NY Attorney Elliot Schlissel

    Elliot S. Schlissel is an attorney with more than 35 years of experience drafting wills and trusts and representing clients throughout the metropolitan area regarding the probate of wills.

    ALZHEIMER’S DEMENTIA AND GUARDIANSHIPS: WHEN IS A GUARDIANSHIP NECESSARY?

    wills-site

    If a family member comes down with Alzheimer’s disease or dementia, should you bring a guardianship proceeding on their behalf? In many situations, individuals who develop Alzheimer’s disease or dementia have sufficient mental capabilities to take care of themselves. Alzheimer’s disease and dementia in the early stages may only result in problems of short-term forgetfulness. These individuals may still be capable of handling a large majority of their personal and financial affairs. They may not require a guardianship to help them. However, in the second and third stages of Alzheimer’s and dementia, individuals lose a significant amount of their ability to take care of their financial issues and maintain themselves. They may forget about taking medication related to pending illness and problems. They may forget to pay their electric and heating bills, which can result in their home being in dark or without heal.

    GUARDIANSHIP PROCEEDING

    Guardianship proceedings can be expensive. A properly drafted power of attorney in many situations can be used to help the senior to deal with personal as well as financial issues. This may eliminate the need for the appointment of a guardian. The senior should also have a will and health care proxy.

    NURSING HOMES

    Individuals who develop Alzheimer’s and dementia ill eventually require nursing home care. Nursing homes can cost between twelve and fourteen thousand dollars a month. Estate planning can accomplish preserving an individual’s assets and not having them eaten up by the nursing home when he or she finds it necessary to be cared for in a nursing home.

    WHO CAN BRING A GUARDIANSHIP PROCEEDING?

    NY Attorney Elliot Schlissel

    The following is a list of individuals who can bring a guardianship proceeding:

    1. A loved one of the individual such as a spouse or child;
    2. The executor or administrator of the estate unless the individual is the beneficiary;
    3. The individual himself or herself;
    4. The trustee of a trust, unless the individual has an interest in it;
    5. A person representing the nursing home in which the individual is staying at;
    6. A welfare agency or Department of Social Services agency.
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