Doctor Assisted Suicide

Attorneys for a group of terminally ill individuals have taken legal action to prevent prosecution of physicians who provide assistance in dying to terminally ill, mentally competent individuals. The attorneys have sued 5 district attorneys and the attorney general for the State of New York to stop them from prosecution of physicians who provide assistance in dying to terminally ill patients. Kathryn Tucker, the Executive Director of the Disability Rights Legal Center, represents the plaintiffs. She recently stated “this case is about letting the patient, the individual, choose how they will cross the threshold to death when faced with the final ravages of terminal illness.”

Presently under New York law, terminally ill, mentally competent New York residents can opt to withdraw life prolonging medical procedures to hasten their death. Examples of medical assistance they can refuse to take involve the utilization of ventilators and feeding tubes. They can also ask for drugs to keep them in a deep sleep while they slowly die of hunger and thirst.

Doctor Assisted Suicide

New York has a statute which prevents doctor assisted suicide. It is an E felony to “promote a suicide attempt.” This is defined as intentionally causing or aiding another person to commit suicide. In addition, there is a second statute which classifies the act of intentionally causing or aiding another person to commit suicide as a C felony, also known as second degree manslaughter. A Class C felony can be punishable by a sentence of up to 15 years in prison, and a Class E felony can be punishable by a sentence of up to 4 years in prison. This lawsuit states there is no “valid statutory basis” to prosecute doctors who provide aid in dying because a mentally competent, terminally ill patient opting for a “peaceful death” does not constitute suicide. Ms. Tucker, when interviewed, stated the law in New York creates a “chill in the environment” which may make physicians fearful of assisting patients with suicide.

Aid in dying statutes make it legal to assist patients with suicide in the States of New Mexico, Oregon, Vermont, Washington and Montana. This lawsuit seeks to bring the State of New York into this group.

Elliot S. Schlissel is an elder law attorney. He helps clients with regard to wills and estate lawyer in New York

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Elliot S. Schlissel and his associates have been representing clients for more than 35 years in all aspects of estate planning.  Elliot and his associates draft wills and trusts, represent clients in guardianship proceedings, and estate litigation.  Elliot is a member of the National Academy of Elder Law Attorneys.  He can be reached for consultation at 516-561-6645, 718-350-2802 or by email to

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Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. Elliot and his associate lawyers maintain a sophisticated practice handling all aspects of elder law. He can be reached for a free consultation at 1-800-344-6431, 516-561-6645 or 718-350-2802.

Godmother Appointed Guardian of 40 Year Old With Down’s Syndrome

guardianship attorney on Long IslandA guardianship action was brought before Surrogate Rita Melia in the Surrogate’s Court of New York County. This guardianship was brought pursuant to Surrogate’s Court Procedure Act Article 17(a). The purpose of the proceeding was to determine who should be appointed the guardian of R.H., a 40 year old who suffered from Down’s Syndrome. Both of R.H.’s parents were deceased. R.H.’s brother had appeared during the course of the hearing via video conferencing. This was necessary because he was imprisoned at the time of the hearing. Justice Melia found due to the brother’s incarceration and conviction of a felony he was disqualified from serving as R.H.’s guardian. The brother had filed a cross-petition requesting the court appoint a designee on his behalf as the brother’s guardian.

Substantial Assets in the Parent’s Estate

The court took into consideration the fact R.H. needed a guardian because he had inherited a substantial estate from his deceased mother. The court found the brother who was incarcerated was going to inherit the other half. The brother had submitted arguments claiming the godmother was unfit to serve as the guardian. The court found these arguments unsupported by the evidence. The evidence presented showed the godmother and her spouse had provided R.H. with a nurturing place to live in and attended to his daily needs and care since the death of the mother. The court therefore concluded it was in R.H.’s best interest the godmother be appointed as the guardian. This was also supported by the guardian ad litem who had prepared a report for the court. The court therefore appointed the godmother as guardian of both the person and the property of R.H. upon her duly qualifying.

elder law attorney on Long IslandElliot S. Schlissel is an elder law attorney. His law firm has extensive experience in handling guardianship cases under both Article 81 of the New York Mental Hygiene Law as well as Article 17-a of the New York Surrogate’s Court Procedure Act. He represents individuals in all aspects of guardianship proceedings throughout the Metropolitan New York area.

Reclusive Heiress’ Estate Settled

wills and trusts lawyersHuguette Clark died in 2011. At the time of her death, she had more than $300,000,000 in assets. There has recently been a tentative settlement agreement worked out between a variety of parties litigating over the late Huguette Clark’s $300,000,000 estate.

Her Life Story

Ms. Clark was born in 1906. She died at the age of 104. She had been residing in a mansion on Fifth Avenue. She had been married once for a short period of time and never had children. Huguette lived most of her life as a recluse. Many of her family members involved in the estate litigation had never even met her.

Ms. Clark had lived for the last twenty years of her life at Beth Israel Hospital in Manhattan. She had entered the hospital in 1991 with a severe case of skin cancer. The skin cancer caused a disfigurement of her face. After extensive plastic surgery to rehabilitate her face, she refused to go back to her spacious apartment on Fifth Avenue. She continued to live in her hospital room until the day she died. She kept the shades closed and the door to her hospital room closed. She spent her time playing with dolls and watching cartoons.

Ms. Clark’s fortune was inherited. Her father, William Andrews Clark, made his fortune by owning copper mines.

Wills That She Left

Huguette Clark executed two different wills in 2005 during a period of six weeks. The first will left all but $5,000,000 of her estate to a variety of family members. The second Will left her family nothing. It left all of her assets to a foundation for the arts and various individuals she knew. These individuals included her lawyer, who was the draftsman of her will, her accountant, her doctor and one of her nurses.

Settlement Worked Out on Her Estate

A lawsuit had been filed by Ms. Clark’s twenty grandnieces and grandnephews. It was their position Ms.Clark was incompetent, there was undue influence and fraud with regard to the execution of the second Will and therefore it should be declared invalid.

A tentative settlement has been worked out on the estate. The New York State Attorney General’s office helped mediate the settlement. Under this agreement, her family would receive $34,500,000, after taxes. The late Ms. Clark’s lawyer, Wallace Bock, her accountant, Irving Kamsler, would receive no inheritance. Ms. Clark’s nurse, Hadassah Peri, would also not inherit any funds from her estate and in addition would have to return the $5,000,000 she was given during Ms. Clark’s life. Although Mrs. Peri received nothing from her estate, she was allowed to keep the more than $30,000,000 she received in gifts during Ms. Clark’s lifetime. Ms. Clark’s lawyer and accountant would also be entitled to keep the gifts they had received during her lifetime. The Corcoran Gallery of Art, where her father’s art collection is maintained, received $10,000,000 under the planning and wills and trusts

Elder Care Planning: Care giver Agreements And Medicaid Eligibility

elder care attorneysWhen elderly family members are taken care of by other members of their family the caregiver usually does not expect to be paid. However, entering into a caregiver agreement laying out the terms of payment to the caregiver can be an excellent way of protecting assets should the senior need to go into a nursing home and/or apply for Medicaid benefits.

Caregiver agreements can also be called personal service contracts. Pursuant to the terms of either the care giver agreement or personal service contract the elderly individual pays money to a family member. This agreement qualifies the payment as something other than a gift. It should be noted gifts are subject to the five year look back period for Medicaid eligibility whereas payments made under either care giver agreements or personal service contracts are not subject to the five year look back period for Medicaid eligibility.

Caregiver Agreement Example

The following is an example of how a caregiver agreement and a gift would be looked at in a Medicaid application. Suppose a parent gifts a child $100,000. Four years later the parent goes in to the nursing home and applies for Medicaid benefits. In this situation the gift would result in a twelve month penalty period in which the parent would have to self-pay before becoming eligible for Medicaid benefits. The child would have to return the $100,000 to the parent if the child hadn’t already spent the money.

However if there was a caregiver agreement, and pursuant to this agreement the child was paid $25,000 a year for a period of four years (totaling $100,000) and the parent goes into a nursing home during the next five years, the payments totaling $100,000 would be considered compensation for services and not a gift. The payment would therefore not be subject to the five year Medicaid look back and there would be no penalty related to the payment of the $100,000.

Caregiver Agreements

Caregiver agreements must be very specific and detailed. It is strongly suggested you consult with a qualified elder care attorney for the drafting of documents of this nature. It should also be noted that caregiver agreements are compensation for income tax purposes.caring for the elderly