Special Needs Trusts Explained

estate planning lawyer in New YorkSpecial Needs Trusts are used to help family members, loved ones and friends who suffer from debilitating mental and physical problems. Special Needs Trusts are also referred to as Supplemental Needs Trusts. The purpose of these trusts is to set aside funds and other valuable assets to help mentally or physically disabled individuals live with comfort and dignity. The assets put into these trusts can be utilized by the disabled individuals while not creating any problem which jeopardizes them from receiving government benefits such as Medicaid and Social Security Disability. Some situations where these trusts are commonly utilized are where the beneficiary of the trust has received a large award from a medical malpractice case, a personal injury case, or through an inheritance. These trusts set up a procedure where a trustee is appointed. This trustee uses the funds in the trust to pay for expenses of the beneficiary of the trust. The beneficiary of the trust cannot have actual access to the trust funds.

Two Types of Special Needs Trusts

The first type of Special Needs Trust is called a First Party Supplemental Needs Trust. In this situation a family member, usually a parent, sets up the trust for a person who is mentally or physically handicapped and also under 65 years of age. After the death of the beneficiary, if the beneficiary had been receiving Medicaid, Medicaid has a right to recover the money paid to the beneficiary during the course of their lifetime for medical benefits from whatever funds still remain in the trust at the time of the beneficiary’s death.

Third Party Special Needs Trusts

A Third Party Special Needs Trust can be created for a special person at any age. This trust also protects the beneficiary’s rights to receive benefits such as Medicaid or Social Security Disability. With regard to this type of trust, when the beneficiary dies, the assets of the trust are distributed pursuant to the terms of the trust to the individual named as beneficiary in the trust. Medicaid cannot go after the assets in the trust to repay them for funds expended during the lifetime of the beneficiary of the trust.

Conclusion

The two types of Special Needs Trusts can help special individuals, disabled individuals and the chronically ill while allowing them to collect all applicable governmental benefits. These types of trusts have helped tens of thousands of Americans with medical or mental problems live happy, comfortable, fulfilling lives.trusts attorney on Long Island

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.

Revoking or Challenging a Will

Elder Law AttorneysA will is referred to as the last will and testament. Every will you write is your last will and testament. If you write a will when your children are infants, that will may not deal with the circumstances of your children 25 or 30 years later. You cannot assume the needs of your children or other loved ones are the same early in their lives as they will be later in their lives. Your assets also may change or vary significantly during the course of your life. You may get married, get divorced, have children, have children who die before you, have grandchildren and be responsible for taking care of parents or other loved ones. All of these issues should be addressed in a will.

If your will is not up to date, you should write a new will. There is a device called a codicil which is an amendment to the will. However, modern drafting of wills strongly suggests against writing codicils. Instead, a new will should be written and the old will should be revoked.

Revoking a Will

How do you revoke a will? A will can be revoked by writing a new will which supercedes the old will. A will can also be revoked by tearing it up and throwing it in the garbage. You can also write revoked across the front of a will, sign your name and date it.

Challenges to a Will

A will can be challenged for a variety of reasons. A will can be challenged based on the fact it was not executed with proper testamentary formalities. There are very specific and detailed requirements necessary to write a will in the State of New York. Certain things must be said, certain things must be done, and the will execution ceremony has very specific requirements. You should never try to write your own will. Always consult with an experienced estates attorney if you seek to draft a will.

Testamentary Capacity

Another reason for challenging a will is the individual did not have the mental capacity to write a will. This challenge basically states that said individual didn’t know what he or she was doing when the will was executed.

Undue Influence

A will can be challenged on the basis someone had taken over the individual who wrote the will’s ability to make independent decisions on their own. This is referred to as undue influence. Undue influence becomes a more significant issue when an individual grows old and is infirm and becomes dependent on another individual who ingratiates themself by pressing them to write a will leaving them all of their assets or a disproportionate amount of the assets.

Fraud or Duress

If an individual is tricked or coerced into writing a will, the will can also be challenged.

Avoiding Will Challenges

Under New York law, a spouse is entitled to a minimum of one-third of your estate or $50,000, whichever is larger. If you write a will leaving your spouse less than one-third, he or she can challenge the will. To avoid will challenges should you want to leave a spouse less than what he or she is entitled to under New York State law, a prenuptial agreement or a waiver of spousal inheritance rights document must be prepared and executed.

If you seek to disinherit a child from receiving assets in your estate, the best way to do this is not to leave the child absolutely nothing. The better technique is to leave the child a minimal amount of the assets in your estate and have a clause in the will indicating if that child challenges the will, they lose the specific amount you left them in the will.

Conclusion

If you have issues or problems, or seek to draft a will, contact an estate planning attorney who can help you meet your goals.estate litigation attorney on Long Island

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.

Guardianship Proceedings in Surrogate’s Court

Guardianship proceedings in the Surrogate’s Courts in New York State are regulated by Article 17A of the New York Surrogate’s Court Procedure Act. Pursuant to guardianships brought under Article 17A, parents who have a child who is either developmentally or intellectually disabled can maintain decision making authority for the child after the child is 18 years of age. The court takes into consideration in an Article 17A guardianship proceeding, whether the appointment of the guardian would be in the adult child’s best interest. Courts evaluate each case individually, taking into consideration what would be in the alleged incompetent’s best interest. Courts take into consideration the emotional needs of the incapacitated individual, physical needs, intellectual needs, and the limitations the individual has related to his or her disability.

Presumption of Appointing Parents

There is an initial presumption appointing the parents as guardians of their disabled child is usually in the child’s best interests. This is especially true if the child has resided with the parents since birth and the parents have taken care of the child and helped meet the child’s needs. Courts will generally only appoint a member of the family circle as the guardian of a disabled individual. Only in the event there is no family member available will the court generally look outside of the family to appoint a guardian under Article 17A.

Contested Guardianships

Although it is unusual, guardianships can be contested. If the two parents don’t get along, don’t see eye to eye, or one parent feels the other parent would be an improper guardian, litigation can ensue before the Surrogate’s Court to determine which of the parents would be the superior parent to act as guardian. In contested guardianship proceedings, it is usually in the disabled child’s best interest the parents work out an amicable settlement instead of litigating the matter.

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.assistance in guardianship proceedings

Alzheimer’s Disease: A Horror Faced by Some Seniors

elder care attorney on long islandAre you becoming forgetful? Are you having what is commonly referred to as senior moments? Are you wondering are these the first stages of Alzheimer’s disease? Although memory problems can be a sign of the onset of Alzheimer’s disease, that is not always the case. There are other symptoms to the onset of early Alzheimer’s disease.

What is Alzheimer’s Disease?

Alzheimer’s disease deals with an individual’s loss of the ability to recall things and engage in reasoning related to the recollection of ideas and facts stored in his or her memory. Alzheimer’s disease is a type of dementia. Dementia creates memory issues which interfere with many of life’s daily activities.

Alzheimer’s Disease Affects the Brain

Alzheimer’s disease affects the brain. It damages brain cells and over time has more and more significant effects on the individual’s ability to think, reason and remember things. Alzheimer’s disease is incurable.

Alzheimer’s disease is a disease of the aging. It generally affects senior citizens. In its early stages, Alzheimer’s disease simply causes memory loss. In its latter stages, Alzheimer’s disease can cause death.

Difficulties Functioning

Losing things and inability to manage simple tasks are some of the signs of Alzheimer’s disease. Individuals in the early stages of Alzheimer’s disease can be prone to mishandling their finances and/or being inattentive to their personal hygiene needs.

Confusion

Individuals with Alzheimer’s disease are often easily confused. They get lost easily. In some cases, it creates major personality changes and it causes the individual to become frustrated and violent.

What To Do If You Suspect You Have Alzheimer’s Disease

The easy answer to the question is to see a doctor. However, not all doctors deal with Alzheimer’s disease. You should speak to your family physician, or research which type of doctor has extensive experience in dealing with patients who have Alzheimer’s disease. Although Alzheimer’s disease is incurable, there are treatments to slow the onset of the disease. These treatments may help memory functions and allow the individual afflicted with the disease to live a normal life for years to come.

elder care planning assistance for seniorsElliot Schlissel is an elder care attorney. He is a member of the National Academy of Elder Law Attorneys. He helps his clients with regard to estate issues, probating of wills, drafting of wills, and dealing with Medicaid eligibility issues. He is available for free consultations.

Father Appointed Guardian of Child, Aunt’s Application Denied

Proceedings were brought by both a father and a maternal aunt in the Surrogate’s Court of Essex County. Both petitioned to be the successor guardian of a developmentally disabled child. These proceedings were initiated after the mother, who had previously been the guardian of the child, died. The court took into consideration the child had a close loving relationship with the aunt. But the court also found the child had a closer, more loving and affectionate relationship with the father. The court also found that there was a deep emotional bond between the child and the father that didn’t exist between the child and the aunt.

Aunt a Stranger Under New York Law

Judge Richard Meyer sitting in the Surrogate’s Court of Essex County found both the father and the aunt had both the character, stability and the ability to adequately perform all the necessary functions as a guardian for this child. However, the court stated the law in New York is clear, strangers will not be appointed as guardians of persons or property of an incompetent unless there was not an appropriate member of the family circle who was qualified to act as a guardian. The court found that under sections 17 and 17(a) of the New York Surrogate’s Procedure Act, the status of an aunt could be equated to that of a stranger rather than someone in the “family circle”.

Mother Requested Aunt Be Appointed Guardian

The aunt had claimed in her petition that the mother, prior to her death, had asked the aunt to serve as the child’s guardian. However, the court found there was no sufficient evidence to prove this claim. In addition, the court found the father had a superior right to that of the child’s aunt to be appointed the guardian of the child. The court found what was in the child’s best interest was the father be appointed the child’s guardian and not the aunt. Therefore the court granted the father’s petition naming him the successor guardian and dismissed the aunt’s petition.

Conclusion

Fathers are important in the lives of their children. Even in cases where a mother will make a recommendation that another person be appointed guardian of a child, this will not trump the father’s right to be appointed the guardian of a child where the father is qualified, loving and capable of performing these functions.

guardianship attorneyElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. He has been representing families in guardianship proceedings for more than 35 years. Elliot and his staff of attorneys protect father’s rights in guardianship proceedings. In addition, they represent fathers in custody and visitation cases in the Supreme Courts and Family Courts throughout the Metropolitan New York area.

Objections to the Probate of a Will for Undue Influence and Lack of Capacity Denied by the Surrogate

long island estate attorneysSurrogate Peter Kelly, sitting in Queens County, recently had a case before him wherein a son objected to his father’s will being probated. The son, by his attorney, filed objections to probate. The objections alleged his father lacked testamentary capacity at the time of the execution of the will, the will was not properly executed, and there was undue influence over his father at the time of the will execution.

The decedent’s daughter moved for summary judgment requesting the will be admitted to probate and that her brother’s objections to the probating of the will be dismissed by the Court. A summary judgment motion is a motion made on papers which requests the court find there is no questions of fact regarding the application and that a trial will not be necessary to determine these issues.

The Judge Orders a Hearing

Surrogate Peter Kelly ordered a hearing. After the hearing, Surrogate Kelly found the daughter had submitted prima facie evidence the will was properly executed. The court took into consideration the execution of the will was supervised by an attorney, and this gave rise to a presumption the will execution had complied with all statutory requirements. Justice Kelly went on in his decision to state the son, who was objecting to the will, did not establish an issue of fact with regard to his father’s testamentary capacity at the time of the execution of the will. The only medical evidence submitted by the son was that his father was overweight. No evidence was submitted by the son to show his father lacked testamentary capacity at the time of the execution of the will. The court also stated in its decision there was not a “scintilla of evidence” suggesting the petitioner had been involved in unduly influencing her father with regard to the execution of the subject will.

The son’s objections to the probate of the will were dismissed and Surrogate Kelly allowed the will to be probated.

surrogates court counselElliot S. Schlissel is an attorney who practices before the Surrogates’ Courts throughout the metropolitan New York area. He probates wills, files accountings, and litigates estate related matters.

Mother Can’t Receive Inheritance From The Estates of Her Three Children Whom She Killed!

wills and estates lawyerJudge McCarty sitting in the Surrogate’s Court in Nassau County recently had a unique case before him. A mother had drowned her three children. However, she was found not guilty due to mental illness. Judge McCarty ruled even though the mother was mentally ill and she did not know that her conduct was immoral and wrong, she could still not financially benefit from her actions.

Leatrice Brewer brought a proceeding to inherit $350,000 from the estates of her three dead children. She had killed them in February 2008. She admitted she killed them because she thought she was saving them from a voodoo curse.

Son of Sam Law

The case dealt with whether Ms. Brewer could inherit from her dead children. This is covered by the Son of Sam Law. The Son of Sam Law prevents criminals from financially benefitting from the crimes they have committed. Justice McCarty stated in his decision “the fact that the State cannot criminally punish an insane defendant is irrelevant to a determination of whether it is equitable for the killer to inherit from the victim.”

At the time of her trial, Ms. Brewer was found not guilty by reason of mental disease or illness. She has been maintained in an upstate criminal psychiatric facility since the trial. Justice McCarty stated, although Ms. Brewer is not a criminal “this court will not relieve Ms. Brewer of her moral responsibility.” “To ignore Ms. Brewer’s own admissions concerning her children’s deaths by allowing her to share in a fund which would not otherwise have existed but for her conduct disturbs the conscience of the court.”

Wrongful Death Lawsuits

Wrongful death lawsuits had been brought by the children’s father against Nassau County. These lawsuits claim social workers had not properly monitored Ms. Brewer and her three children. The cases were settled for $350,000. Ms. Brewer’s attorneys brought an application to the court to prevent the father from receiving the $350,000 in settlement money.

Issues have arisen as to whether the father had legally abandoned the children and Justice McCarty indicated he would hold a separate hearing to determine if the father should be disqualified from receiving the $350,000 paid in settlement of the children’s deaths by Nassau County.

estate planning and administrationElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. He probates wills and represents clients with regard to all matters before the Surrogate’s Courts in the State of New York.

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