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New York Elder Law Attorney Blog

The varied aspects of estate planning for New York seniors

As residents of New York grow older, they develop a different set of concerns and issues than they may have when they were younger. Some of those issues involve subjects like planning for Medicaid and advanced health care matters, like durable powers of attorney and living wills. However, even estate planning takes on whole new aspects for the elderly.

There are actually attorneys who specialize in assisting seniors with the many various tools that can be used in effective estate planning. Estate plans can be customized to each individual's needs, for example, to ensure assets stay within the family and are not inherited by an adult child's spouse. In cases involving beneficiaries who have special needs, credit problems or other issues, a trust can be utilized to ensure asset protection while still providing for them.

Is a revocable living trust right for you?

Are you like other New York residents who think that only the rich and famous benefit from trusts? If so, you need to know that just about anyone can benefit from a trust. As you ponder how you want to structure your estate plan, don't discount using a trust.

You could derive numerous benefits from using a trust. Many people decide to use a revocable living trust, which can serve them during life, in the event of incapacitation, and after death.

Why Medicaid planning is almost a necessity in New York

Even though no one likes to think about it, aging is an inevitable part of life. Along with it typically comes a gradual – or sometimes sudden – decrease in functionality and independence and increased health care needs. In fact, the Urban Institute and U.S. Department of Health & Human Services estimates a 52 percent chance that the average 65-year-old, whether living in New York or elsewhere, will need some type of long-term care services. Such care is expensive, and without proper Medicaid planning, qualifying to receive benefits can be difficult.

Needs vary a great deal on an individual basis, and the same findings indicate that nearly 15 percent of such individuals will require nursing home or long-term health care services for longer than five years. Some aging individuals expect to be able to rely on Medicare or Medicaid when the time comes, while others hope to have their family in charge of caregiving support. The problems with these approaches are manifold, though.

Without proper Medicaid planning, assets are often lost

Many aging residents of New York may already be familiar with (or even dreading) the complex preparations often required to receive Medicaid benefits for nursing homes. Unfortunately, one aspect some may not be aware of is that some preparation for eligibility only effectively protects assets during their lifetime. They are allowed to receive Medicaid benefits, but after their death, without careful Medicaid planning with a knowledgeable attorney, certain previously-excluded assets are claimed by the state.

Medicaid eligibility rules stipulate that some assets – such a primary residence and a single automobile – are excluded from being applied to the income threshold. However, without specific and careful arrangements otherwise, these excluded assets can become part of the deceased individual's estate upon his or her death. This means that, through a probate process called estate recovery, the state has a claim against the deceased's estate and remaining assets until they have recovered the value of all Medicaid benefits paid on the deceased's behalf.

Basic elements of estate planning for elderly New Yorkers

Unsurprisingly, over 30 percent of Americans polled would prefer to do almost anything else if doing so means avoiding a conversation about their wills or estate plans. While some older residents of New York may already have the legal documentation in order, others may have been putting off this important preparation for any variety of reasons. Regardless of which category elderly parents fall into, the estate planning conversation is an important one for their children or loved ones to have with them.

Even if an older parent has already completed all of his or her estate planning, a discussion with loved ones can still be crucial. Adult children or loved ones should be aware of where the relevant paperwork is located. If the aging individual has not completed any estate planning, however, a simple offer to help may be all that is needed to get the important process underway. The planning does not need to be overly complicated, and even in more complex situations involving past divorces or large amounts of money, an estate planning attorney can help make the process smoother and easier.

Executing powers of attorney for later means peace of mind now

No caring New York family wants to entertain the thought of a time when their elderly loved ones may become unable to make communicate their wishes for the health care they wish to receive or, in some cases, forego. Additionally, few individuals wish to consider the fact that they may eventually be unable to make sound financial decisions for themselves. However, without planning for such eventualities, these important issues are often put off until it is already too late for the elderly individuals to make their desires known. Advance planning includes a variety of legal decisions, but some of the most important to both the individual and his or her family include an advance medical directive and powers of attorney.

Unfortunately, a very real aspect of aging is the possibility of eventual incapacity. It can be crucial for individuals to plan well in advance, while they still have all their mental faculties, for a time when they will be unable to make or communicate health care or financial wishes. Executing a durable power of attorney allows the individual to choose a trusted family member or friend to act on his or her behalf if the need arises.

Plan ahead with an advance directive

At some point in your life, you may have found yourself in a predicament that resulted in your having to make difficult health-related decisions for someone else, or perhaps you witnessed the toll such a situation took on someone else. As a result, you may have decided to avoid placing your loved ones in such a difficult situation in the event that you cannot make health-related decisions for yourself.

Luckily, through estate planning, you can create an advance health care directive, or living will, that details how you would like your care handled in the event of your incapacitation. Before the directive can go into effect, your circumstances must meet certain stipulations.

The importance of timely asset protection planning in New York

Far too often, aging New York residents reach what are supposed to be the golden years only to find themselves instead facing the need for long-term care that is prohibitively expensive. Since few have the necessary cash readily available to pay the high cost of this care, they are then expected to sell off the assets for which they have worked their entire lives to earn. While there are various methods of asset protection, they all require planning years in advance, so it may be wise to begin exploring these options with an attorney now, rather than waiting until it's too late.

Long-term care for the elderly continues to increase at an alarming rate, with an estimated cost in 2015 of up to $265,000. Few individuals have such funds easily accessible. Yet a study found that an estimated 50 percent of individuals over the age of 65 will need health care assistance as they age.

Don't put off Medicaid planning in New York until it's too late

A substantial portion of the elderly population in the U.S. ends up relying on nursing homes for care in their later years. For this considerable expense, aging residents of New York may be counting on Medicaid to help with the cost of necessary healthcare and nursing home stay. Unfortunately, what many individuals may not realize is that Medicaid is a complex system of regulations and requirements, and, without the proper Medicaid planning, many individuals find themselves ineligible to receive benefits when the time comes.

One of the most notable requirements is that an individual's net worth must be below a certain threshold. The Medicaid program does not merely look at bank accounts, but it takes into consideration essentially every asset a person owns. On top of this is the stipulation that the individual must not have given away anything of value over the course of the previous five years, including birthday and Christmas presents. If the total value of gifts given over the last five years exceeds a certain amount, the individual will be ineligible for Medicaid.

Guidance from a Long Island New York Medicaid planning attorney

While Medicare and Medicaid may sound similar, the two government programs are very different. For elderly residents of New York, Medicaid is a needs-based program intended to act as a safety net when they cannot afford to pay for their necessary health care or nursing home stays. However, the program is very complex, which is why many individuals find it beneficial to turn to a Long Island New York Medicaid planning attorney for guidance.

Even though Medicare is supposed to be an assistance program primarily aimed at individuals aged 65 and over, it covers only a small portion of the cost of nursing home stays and has many stipulations that must be met before a patient will receive even that coverage. Because of these requirements, elderly patients and their families often end up forced to pay for health care expenses out of pocket. At this point, many turn to Medicaid.

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