Guardianship Proceedings

Please click on the link below to watch today’s video blog:

https://youtu.be/adD-G285k9M

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  Elliot and his attorneys have more than 100 years of combined legal experience handling all aspects of guardianship proceedings, estate planning and estate litigation.  Please call to schedule a consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.

Fighting Dementia

elder care attorneyThere is a growing prevalence of dementia and Alzheimer’s disease among seniors in America. Many seniors develop either dementia or Alzheimer’s which virtually fries their brain, and it can have a devastating impact upon their family.

Cost of Treating Dementia

The treating of dementia related illnesses is very costly. There is a study which claims that by 2050, $1 out of every $3 spent on Medicare will go to the treatment of dementia related illnesses. It is estimated by the year 2050, this will cost over $1 trillion dollars.

Curing Dementia

Both Alzheimer’s disease and other types of dementia are not curable. The treatment today simply slows onset of the disease. As Americans’ life expectancies increase, more and more Americans are expected to develop these illnesses.

Medical science does not know what causes dementia. However, there is some indication that people can reduce their risk of cognitive impairments by adopting certain life long habits which promote good overall health. It is recommended to people as they get older to exercise on a regular basis, eat appropriately, try to reduce stress and stay socially active and engaged. It is also extremely important to try to continue to learn throughout your lifetime.

Long Island Wills and Estates attorneyElliot S. Schlissel is an elder care attorney. He represents clients in all aspects of estate planning, drafting of wills and trusts, drafting healthcare proxies and powers of attorney.

Advanced Directives

lawyer who handles estate planningLiving Will

Living wills should not be confused with last wills and testament. Living wills do not provide for the disposition of assets after death. Living wills are designed to state an individual’s preference with regard to medical treatment should they be unable to communicate or direct their doctors or family members concerning their wishes. This prevents loved ones from being in a difficult position with regard to making decisions concerning someone else’s health and welfare without any input from them. A living will can state that in the event the individual is declared brain dead, no artificial respiration or mechanical life supporting machines should be used to keep them alive. It is thought that if an individual is brain dead, medical measures to keep the body functioning do not prolong life, but rather prolongs death. In addition, living wills spell out the types of medical care an individual wants if they are unconscious, develop mental issues, or are simply unable to communicate their desires concerning their medical treatment.

The Living Will and the Terry Schiavo Case

A number of years ago there was a case which received a lot of national attention involving a 26 year old woman, Terry Schiavo. Terry had a heart attack. She lapsed into a coma and spent 15 years in what doctors described as an irreversible, persistent vegetative state. Terry could not communicate in any way, form or manner concerning her wishes regarding her medical care. Terry’s husband felt she would not want to continue living in a vegetative state. He requested the feeding tube attached to her body be removed and she be allowed to die a natural death. Terry’s parents strongly disagreed with this decision. They brought a legal proceeding to stop the feeding tube from being removed. There was extensive legal proceedings involving significant amounts of money through lower courts and appeals courts regarding the Terry Schiavo case. In the end, the husband was successful. The feeding tube was removed and Terry died a natural death.

Conclusion

An individual never knows when something catastrophic is going to happen to him or her. Using the advanced directive of a living will can avoid the type of problems that existed in the Terry Schiavo case.

estate planning attorneyElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.

Guardianship Proceedings

guardianship attorneys on Long IslandEveryone who lives will eventually grow old. Sometimes elderly individuals lose their mental and physical strength related to their aging. In these situations, they can be subject to undue influence concerning the money they have in the bank, other financial assets and real estate they own. The undue pressure can come from a variety of sources. Sometimes caregivers, relatives, friends and other loved ones take advantage of seniors who are in a reduced mental state. A senior who is in a weakened mental or physical state may be induced to make bad decisions. In addition, seniors may also become incapable of tending to their financial affairs, their medical treatment and caring for themselves. In these situations, the legal proceedings that are required to help the seniors are called guardianship proceedings.

Guardianship proceedings deal with helping seniors make medical and financial decisions. In addition, it stops other individuals from taking advantage of seniors who are in a reduced psychological or physical state. Seniors in reduced mental and physical states can be taken advantage of with regard to their assets and other financial matters. This can cause the value of the senior’s estate which was intended to be paid to loved ones or other beneficiaries to be significantly reduced.

Expeditious Legal Action

If someone is being taken advantage of to his or her financial detriment, it is important legal action be taken quickly and efficiently. If your rights as a loved one or other beneficiaries have been compromised or are in the process of being compromised, bringing a guardianship case not only helps the affected senior, but protects inheritance rights as well. Sometimes family members sit back and take no legal action to deal with the dissipation of assets of a loved senior by an unscrupulous or inappropriate person. The longer you wait to straighten out this type of improper situation, the more difficult it becomes to retrieve the assets.

Immediate Legal Action Regarding Misappropriated Assets

Legal action should be taken immediately when you become aware of the misappropriation of a senior’s assets by a third party. This will protect the senior from losing all of his or her assets and protect the potential beneficiaries with regard to inheriting from the estate.estate planning lawyer

Guardianship Litigation

Please click on the link below to watch today’s video blog:

https://youtu.be/GqsiyKMPw-4

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  He has been representing clients in all aspects of guardianship proceedings for nearly 40 years.  He and his associates are available for consultation by calling 516-561-6645 or 718-350-2802 or by sending an email to schlissel.law@att.net.

Guardianship Proceedings

To watch today’s video blog, please click on the link below:

https://youtu.be/8iE4A-E457A

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  He and his associates have been handling guardianship proceedings for more than 35 years.  Elliot can be reached for consultation by calling 516-561-6645 or 718-350-2802, or by sending an email to schlissel.law@att.net.

Guardian Allowed to Transfer New York Guardianship to Florida

guardianship attorneys New YorkSurrogate Edward McCarty, III, sitting in Nassau County Surrogate’s Court, was recently presented with a case where a guardian sought to transfer a guardianship from New York to Florida. Francis P. was the guardian of both the person and property of his sister Louise D. In addition, he was the trustee under a supplemental needs trust for his sister. He wanted to terminate the New York guardianship and/or have it transferred to the State of Florida. In his petition he alleged his sister Louise had resided with him in New York until mid-2006. They thereafter moved to Florida. She has been living in Florida for approximately eight years. Francis wanted to be able to administrate the trust and deal with the guardianship in the State of Florida.

Surrogate McCarty’s Decision

Surrogate McCarty found that Francis had complied with the New York Mental Hygiene Law section 83.31. He noted in his decision he had given notice to all persons entitled to receive notice in New York. There was no hearing requested. He also took into consideration Louise had been physically present in Florida for a considerable period of time. No one presented objections to the transfer of either the guardianship or the trust. The plans presented by Francis for Louise’s care were reasonable and met her needs. The judge felt the proper arrangements were being made for the management of Louise’s property. Judge McCarty therefore approved the application by Francis. He agreed to issue a final order confirming the transfer of the guardianship and the termination of the guardianship within the State of New York.

estates attorney on Long IslandElliot S. Schlissel is an attorney who has been representing clients in guardianship cases throughout the Metropolitan New York area for more than 35 years.

Will Requirements

There are a number of requirements necessary to write what is referred to as a self proving will.

I.   You must be of sound mind to write a will.

  • You must understand what you are putting into the will. You must know you are writing a will.
  • You must understand who your next of kin are and what your assets are.
  • You must be 18 years old, in the State of New York, to write a will.

II.   When executing a will, you must state that this is your will. You must acknowledge to the individuals witnessing your will the document in front of you is your will.

III.   You must sign the will at the end and date the will.

IV.   In the State of New York, the will must be attested to by a minimum of two witnesses. Good drafting requirements suggest you use three witnesses, should one of the witnesses become unavailable at a later date. It is important the witnesses be independent, neutral parties and not beneficiaries under your will.

  • The witnesses must see you execute the will and hear you state the document is your will.
  • The witnesses must sign the will after you sign the will, and sign the will in front of each other witness at the same time.

V.   If you have children, the will should:

  • appoint a guardian for your minor children in the event of your death.

VI.   Concerning your assets, the will should identify what your assets are and state who should inherit them.

VII.   Assets not specifically referred to in the will should also be distributed by the will.

VIII.   The appointment of an executor:

  • The executor is responsible for supervising the burial, the payment of your debts, and the distribution of your assets.

Conclusion

The question is, should I have a will or do I not really need a will? The answer is, you do need a will. If you have any type of assets, you should have a will to distribute them. If you have children, your will should name the guardians of your children in the event of your death. If you don’t have a will, the State of New York will determine who receives your assets and who raises your children. For peace of mind and doing what is in the best interest of your children and other family members, hire an experienced, qualified attorney and write a will. You will find it is not that painful and not very expensive.wills attorney in New York

Guardianship Hearing in a Bedroom

guardianship lawyer on Long IslandBronx Supreme Court Justice Sharon Aarons started a hearing on a guardianship situation in her courtroom. The hearing was cut short and Judge Aarons and all of the other interested parties proceeded to travel to the home of Valerie L. to conduct an in home evaluation to determine whether her attorney was “chosen freely and independently by the alleged incapacitated person.”

Judge Aarons had initially set a hearing for November 25 and she had “explicitly directed that Valerie L. appear for the hearing.” When the alleged incapacitated person, Valerie L., did not appear at the hearing the judge moved the hearing to the bedroom of her home in Riverdale, NY.

Interview of Valerie

The judge had previously requested a court examiner interview Valerie. The court examiner, Mark Goldstein, had appeared at Valerie’s home on November 21. A home care nurse advised him that Valerie’s son had told her that the court examiner could not get into the home. The court examiner called the police to try to get entrance into the home to meet with Valerie. Valerie refused to meet with him.

Valerie’s Affidavit

Valerie had executed an affidavit several days later indicating she did not want to have a guardian appointed for her. The affidavit also stated she was satisfied with regard to her son’s management of her finances and she had been humiliated by the police coming to her house concerning the interview by the court examiner.

Judge Aarons stated in her opinion, “a person reading the affidavit would incorrectly receive the impression that the person making these recitations had a thorough comprehension of the facts and legal issues presented. This is far from the case.”

The Hearing

The hearing in Valerie’s bedroom was attended by 11 persons. Some were forced to sit on Valerie’s bed because there was not enough chairs. During the course of the hearing, the evidence indicated Valerie did not know who her daughter’s attorney was. She also did not have an understanding of the nature of the proceeding. She had no recollection of signing the affidavit, even though it had been executed only two days earlier. Valerie stated her son had hired the attorney to represent her.

Judge Aarons wrote in her decision, “while it may not be unusual for an attorney to be contacted or selected by a relative, it is unusual when the relative is the person charged with exerting undue influence, and with using his agency powers improperly for his own gain.”

Judge Aarons disqualified the attorney who had been retained on behalf of the son for his mother and the attorney for the woman’s daughter who had sought the appointment of a guardian. An independent guardian was appointed by the court.guardianship attorney in New York

Guardian Appointed For Alleged Incapacitated Person’s Financial Exploitation of a 94 Year Old Woman

Estate planning attorneysA guardianship proceeding was brought before Justice Alexander Hunter Jr., who sits in the Supreme Court of Bronx County. After a hearing, a guardian was appointed for a 94 year old woman, FG. FG had lived in the Hebrew Home for the Aged. A social worker testified at the time of the hearing FG had undergone a variety of tests and evaluations by a psychiatrist. The psychiatrist’s findings were FG had no capacity to make financial decisions. At the hearing, the Controller from the Hebrew Home for the Aged testified FG had an overdue balance of nearly $280,000. Evidence was submitted FG had signed a $50,000 check to the Hebrew Home for the Aged two months after the tests had indicated FG had no capacity to make financial decisions. The $50,000 had been applied to the unpaid balance.

Taking Advantage of An Incapacitated Person

Judge Hunter Jr., appointed a guardian. He stated in his decision he was “outraged by the behavior exhibited by the interested parties.” This included FG’s attorney, the individuals who had power of attorney, and healthcare proxies for FG. Judge Hunter found they all were more interested in getting paid than fulfilling their fiduciary responsibilities to FG. The court ordered the guardian to investigate the facts and circumstances surrounding the $50,000 payment to the Hebrew Home for the Aged. He also ordered the guardian to look into the issue as to whether there was financial exploitation of FG.

Elliot Schlissel is an elder care attorney. He represents seniors with regard to all aspects of guardianship cases.Guardianship attorney on Long Island

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