End of Life Planning

Tuesday, January 13, 2015

Over Medication of Elderly in Nursing Care Still an Issue of Concern

According to a report conducted by NPR in December 2014, nearly 300,000 nursing home residents are currently receiving antipsychotic drugs that are normally used to treat symptoms related to Alzheimer’s disease and other forms of dementia.

These drugs, however, are approved mainly to treat serious mental illnesses like schizophrenia and bipolar disorder. Furthermore, when it comes to dementia, many of these drugs can increase the risk for heart failure and infections. The drugs have also been noted to greatly raise the risk of falls leading to serious injuries such as a hip fracture.

Furthermore, many experts in the medical field note that such antipsychotic drugs are not necessary in the vast majority of dementia cases. Other experts note that antipsychotics should only be used as a last resort, and just for a month or so, before gradually being eliminated.

According to a 2011 government study, 88 percent of Medicare claims for antipsychotics prescribed in nursing homes were for treating symptoms of dementia, even though the drugs aren't approved for that. Following the publication of the government’s findings, federal efforts were taken to reduce the use of antipsychotics by 15 percent. While 15 percent reduction was supposed to take less than a year, it ended up taking nearly two, while still leaving nearly 300,000 nursing home residents on questionable antipsychotic medications.

There are a number of estate planning techniques available to help curb the risks that are associated with selecting long-term care and treatment options. Such techniques can help you and your loved ones choose when, where, and how your future care will be provided. A plan today helps mitigate the risks of tomorrow. To set up a consultation with the Long Island elder law attorneys at Maroney Associates, PLLC, please call us at (866) 994-2025.

Tuesday, August 12, 2014

Inherited Individual Retirement Accounts Are Not Exempt from Creditors

For many individuals, the assurance that their loved ones will be provided for without interference from outside entities is a key concern when developing a life planning strategy. Indeed some provisions in the law allow for certain assets to be protected from creditors depending on their classification.

Currently, the Internal Revenue Code (522) permits a debtor to exempt from property of the estate the following: "retirement funds to the extent that those funds are in a fund or account that is exempt from taxation under section 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code of 1986."

Recently, however, the United States Supreme Court held that inheritied Individual Retirement Accounts (IRAs) are not exempt from creditors when the person who inherits the account is anyone other than the spouse of the original IRA holder.

The case Clark v. Rameker Trustee presented the issue as to whether the debtor could protect her mother's IRA that she had inherited upon her mother's death.

Ultimately, the Court held that funds in an IRA inherited from anyone other than the bankrupt debtor's spouse are not "retirement funds" within the meaning of the United States Bankruptcy Code.

Therefore if you are a friend, sister, brother, or mother of the deceased, and you inherit their IRA upon their death, the inherited account is not exempt from creditors, should you be involved in bankruptcy proceedings. Basically, anyone other than the spouse of the deceased beneficiary is subject to this rule. But why?

  1. The Court reasoned, the Internal Revenue Code treats IRAs inherited from a non-spouse differently from IRAs inherited from a spouse, as only spouse can essentially combine their IRA (Roll over) with their deceased spouses account as well add funds to it
  2. The policy behind the code’s retirement fund exemption was enacted to "protect the debtor's essential needs." Because there is nothing stopping a non-spouse individual who inherits an IRA from using the funds for purposes not considered “essential,” the law would be effectively undermined.

While this ruling makes it clear that certain classifications of retirement plans will enjoy different protections, there are a variety of other strategies one can implement to make sure that their loved ones are financially protected after they are gone. To learn more and to protect your beneficiaries, contact a skilled trust and estates attorney

Wednesday, June 29, 2011

Five Reasons to have a Revocable Trust

In past blogs, we have discussed the reasons of including trusts as part of your estate planning program.  We also outlined the differences between revocable and irrevocable trusts.  Here is a quick summary of the advantages of establishing a revocable trust:

  1. Avoids probate.
  2. Maintains control of your assets until your death or incapacity.
  3. Establishes your beneficiaries to inherit your estate after death.
  4. Establishes who will act as the fiduciary to settle your estate after death.
  5. Establishes Credit Shelter and/or Special Needs Trust provisions to:
  • Mitigate or avoid estate taxes.
  •  Care for a special needs individual without jeopardizing his or her government benefits.
  •  Avoid a minor having access to an inheritance at 18 years of age.

Tuesday, June 28, 2011

Five Reasons to have a Last Will and Testament

In previous blogs, we have discussed a number of aspects of a last Will and Testament.  Below is a quick summary of those discussions and why, if you haven’t established a Last Will and Testament, you should do so without delay: 

  1. Establishes your beneficiaries to inherit your estate after death.
  2. Establishes who will act as the fiduciary to settle your estate after death.
  3. Establishes the guardian for your minor children in the event of an untimely death.
  4. Create Trusts in your Will so as to avoid estate taxes, care for a special needs individual without jeopardizing his or her government benefits, and to avoid a minor from having access to an inheritance at 18 years of age.

And the most important reason:

       5.  Avoid the government making decisions “1 through 4” above for you.


Saturday, May 28, 2011

Debts of the Decedent

Unfortunately, when a family member dies, his or her survivors must not only deal with grief, but often, with debt collectors seeking to collect from the estate of the decedent. This often leads to panic on the part of the surviving family members, especially a spouse, who may be concerned about having enough assets to survive.
In general, family members are not responsible for a decedent's debts, but this does not necessarily stop the collection agencies from trying to collect.
An estate should have a personal representative, known as an executor if there is a will and an administrator if there is no will. One of the main duties of the estate's personal representative is to marshal all of the assets of the estate, and pay any just debts of the decedent. However, if the estate does not have sufficient funds to pay creditors, the debt will go unpaid and without recourse against the survivors.
The exception to this rule relates to debts that were jointly held. For example, if a credit card was shared between the decedent and his or her spouse, or another family member, then even if the estate of the decedent does not have sufficient funds to pay the debt, the surviving spouse or family member who was “on the card” may be personally responsible.
To be clear, we used the example of a credit card, but the rule applies to any just debts that were jointly held between the decedent and the surviving family member; the surviving spouse or family member may be personally responsible for a jointly held debt.
It is critical that the personal representative make sure that just debts are paid, while other interests are protected.   Scammers are out there and will actively seek out surviving relatives of a recently deceased person, and then create debts where there are none, in an effort to get an unjust payment.  The executor/administrator must be sure to not provide personal information to debt collectors unless they are certain that the debt collector is legitimate.
If one of your loved ones has died, Maroney Associates invites you to contact us, so as to answer any and all questions you may have about winding up the estate, and taking care of any just debts owed by the decedent.

Tuesday, May 17, 2011

Duties of a Trustee

We have discussed in prior blogs various types of trusts. We have also discussed the necessity and importance of selecting the right trustee.  The purpose of this blog is to give our readers assistance in making that proper selection by advising them of the duties of a trustee.

For starters, a trust is a legal arrangement where one person, known as creator, grantor, settlor, or trustor, establishes a legal entity known as a trust, and selects a person or entity known as a trustee, who will hold legal title to property for another person, who is called a beneficiary. A trustee, therefore, should be someone in whom the grantor has great confidence, and whose qualities include using good sound judgment.  A trustee’s duties include, but are not limited to the following:
Fiduciary Duty
A trustee has a fiduciary duty to the initial beneficiary who is entitled to the income or principal of the trust, as well as the remainder beneficiaries, which are the people who will receive the trust assets upon the death of the initial beneficiary.  A fiduciary is held to a very high standard with respect to the prudence that he or she must show toward the trust assets.
Comprehensive Duty
A trustee has a duty to truly know and understand the terms of the trust. The terms of the trust are contained in the words that make up the trust, and act as instructions to the trustee with respect to what she/he can do with the asset, its income, and its remainder.  It may sound simple, but if you are a trustee, you must read and fully understand the trust, and/or hire a professional to help you.
Investor Duty
A trustee must be a prudent investor. This means that the trustee cannot be needlessly risky or speculative with respect to the assets for which she or he is responsible as trustee. It is not his or her money to invest but, in fact, is for the beneficiary.  The trustee must be careful to make sure that she or he protects the assets for the current beneficiary as well as the future remainder beneficiaries. Seeking high income may be a natural desire, but the trustee must be careful not to indulge in choices so risky that the assets could be lost.
Distribution Duty
Certain trusts allow the trustee discretion with respect to whether or not she or he should make distributions to the beneficiaries of the trust.   This discretion requires the trustee to evaluate the needs of the beneficiary and future beneficiaries, against the assets of the trust.

This may often require the trustee to tell the beneficiary that she or he cannot have any more money, which moves the trustee's role into the personal realm in addition to the legal.  This can be especially tricky when the beneficiary is a relative.
This duty should be taken very seriously when considering and/or selecting your trustee, as a professional trustee (such as a bank, trust company, attorney, a financial adviser, accountant, etc.), may have an easier time saying no to a loved one.
Monitoring the Trust Duty
The trustee must be organized and have some bookkeeping skills.  She or he need not become an expert in accounting, but must have some understanding of accounting/bookkeeping, so as to track income, distributions, and expenditures.
Certain trusts must file a tax return, and as with the above paragraph, the trustee need not become an accountant or professional tax preparer, but if a tax return is required to be filed, it is the trustee’s duty to insure that it gets done.  This may involve delegating the job to a professional, which is discussed immediately below.
Delegating Duties
The trustee will be responsible for delegating duties that she or he is not equipped to handle.  A good trustee does not have to be an accountant, skilled and able to prepare a tax return, or an attorney able to handle interpretation of the trust.  A good trustee must, however, be skilled at selecting the proper professionals to help him or her complete their role as trustee.
Trustee Fee
Both the creator of the trust and the selected trustee should know that a trustee is entitled to a reasonable fee for his or her services. This may be especially important for family members named as trustees as they often do not wish to accept the fees.  The job of a trustee may require a serious time commitment, so in order to insure the job is done well and without a “grudge,” it may be prudent to establish in writing that you, as the creator, direct the trustee to take his or her reasonable fee.
If a trusted professional such as a bank, trust company, or law firm, etc. is selected as trustee,  they are entitled to and will take a reasonable fee, whether it be an hourly fee, a percentage of the fees under which they are charged to oversee as a trustee, or something else.
Having the appropriate information on the duties of a trustee should help you better understand how to select a trustee and/or how to serve as a trustee.  As always, should you have further questions regarding the selection of Trustees, or any other legal matter, Maroney Associates invites you to call our offices.

Wednesday, April 20, 2011

Guardianship for Your Minor or Special Needs Child: The Human Factors

 In this Blog we will step outside of our legal counsel role and into the human aspects of selecting a Guardian for your minor child and/or special needs child.

It is critical that when you select a Guardian for your child, you have a very honest and open discussion with the person or persons that you are considering. Many people automatically believe that if something happened to them, a certain family member or friend would without hesitation or regret, take on this critical role in the life of their child. The fact is, however, sometimes those family members or friends may actually be reluctant or unable to take on such an important role.
Prior to selecting a Guardian and naming him or her in your legal documents, we suggest that you have an honest and open discussion about the fact that you would like them to accept this role.  Ask them to truthfully consider whether they would be ready, willing, and able to do this.  Also explain to them up front that it is okay to say they cannot, will not, and/or simply do not want to be selected for this awesome responsibility.  They may have great love and affection for you and your child, but simply cannot accept this responsibility, due to circumstances and/or challenges that they are facing in their own lives.
If you have a special needs child, the considerations are expanded exponentially.  In this case, we actually suggest that you prepare a lengthy written document setting forth anything and everything that you do on a daily basis with respect to your special needs child. We further suggest, if possible, you prepare a day in the life video.   You need to also think of everything that impacts your special needs child, such as certain music, books, songs, foods, and special places that benefit your child positively and/or that have a negative impact on your child.  This information will not only help the person whom you are asking to accept the role of Guardian to make the decision but will be critical if in fact something happens to you and your chosen Guardian suddenly finds themselves the full-time caretaker of your special needs child.
Here at Maroney Associates, we do not simply prepare elder, estate and special needs planning documents. We get to know our clients and raise these very critical issues, both legal and human, so as to assist our clients in making the best decisions possible.
Please contact us if you would like to further discuss decisions regarding Guardians for your minor and/or special needs child.

Tuesday, March 22, 2011

The Importance of a Living Will

Many of us can recall the heartbreaking story of the young woman in Florida who did not designate her end of life wishes, and a terribly drawn out and expensive battle resulted between her young husband and her parents.  He insisted that she would have wanted life support to be turned off whereas her mother and father insisted that she would not.  The result was seven years of agony for the family from the human standpoint, as well as a financially devastating situation for the surviving spouse.  All of this could have been avoided if the young woman had designated her wishes in a Living Will or Health Care Proxy, which would have given clear direction to the health care providers as to what her wishes were.

While not pleasant to discuss, end of life documents are most critical so as to make our transition from this world as easy as possible for our loved ones.
Many, if not most people, would prefer not to be kept alive on life support in the event an illness or an accident places them into a physical situation where they are in what is know as a brain dead or permanently irreversible vegetative state. When and if most people think of such things, they say that they would never want to be kept alive that way.  However, in the day and age in that we live, health care providers will generally refuse to turn off life support and/or will be obligated to perform heroic measures to keep a person alive no matter what their actual wishes may have been unless so stated in a properly written document. 
Many people are concerned that if they sign a Living Will, they will be left to die if they simply have a heart attack, stroke, or go into a coma while under medical care or in the ER.  That, in fact, is not the case.  The Living Will would apply only if a medical team determines that you have absolutely no brain activity and that in their learned and experienced opinion the situation is permanent and irreversible.  Then and only then, will a properly drafted “Living Will” (sometimes known as a “Do Not Resuscitate Order”) come into play in which case artificial nutrition, artificial hydration, and/or artificial breathing apparatus will be discontinued.  Thereafter, if your body goes into cardiac arrest or any other type of situation where death is imminent, the doctors will not perform CPR, heart massage, or any other heroic life saving measures.
As further protection, we recommend that our clients provide a copy of the Living Will and Health Care Proxy to their primary care physician, for she or he is going to surely be contacted when and if you become ill or in an accident.  The primary care physician can then affirm that the documents exist.
Aside from the human factor, there is another consideration and that is the cost of being kept alive on life support for what could be years, which can leave the family in a financially devastated situation.
Many of our clients, for religious or other reasons, do not wish to have a Living Will.  We do not insist that they have such a document. However, we think it critical to discuss these issues, so that if the client does not wish to be kept alive on life support, his or her wishes are clearly delineated in a legal document such as a Living Will.
End of life decisions will never be easy or comfortable, but the existence of a Living Will can ease the transition for you and your family.  We invite you to contact our office to discuss this, and other important end of life documents.  We can even help with the conversation with your loved ones.

Tuesday, March 8, 2011

Incapacitated Without a Plan; What happens now? (Part II)


In the previous blog, we spoke about the advisability of having a Health Care Proxy and Durable Power of Attorney in place.  Not having these documents in place begs the question, how does anything get done if a person becomes incapacitated?
The answer is a Guardianship Proceeding.  This is when some caring individual, or a health care facility when someone does not have anyone in the world available to them, brings a petition to the court seeking a Guardianship for the incapacitated person.  A Guardianship Proceeding is prolonged and time consuming and therefore very expensive from a legal fee standpoint.  Even when the Guardianship is unopposed, it is nevertheless a major court process which requires significant court intervention, and the fees to go with that intervention.
In a Guardianship Proceeding, the court will generally assign an Attorney for the Incapacitated Person (AIP).  This trained attorney will seek out the incapacitated person to see whether they object to, and/or even understand what is happening to them.  If the person says that they do not want a guardian, or do not want the person petitioning for guardian to be their guardian, the attorney has a duty to stand up and fight for the rights of the alleged incapacitated person.
The court will also assign what is called a Court Evaluator (CE), who will act as the eyes and ears of the court, spending time with the alleged incapacitated person as well as the petitioner for guardianship and any other interested persons.  The Court Evaluator will take a complete picture of the situation and report his or her recommendations back to the court. Neither the attorney for the alleged incapacitated person or the court appointed Court Evaluator is working for free. The court will award them attorney fees and those fees will come out of the alleged incapacitated person’s estate.
If the alleged incapacitated person objects to being appointed a guardian, and/or another loved one steps forward and says that they wish to be the guardian or at least oppose the petitioner being the guardian, the proceeding becomes an even more time consuming and expensive litigation type situation.
From an emotional standpoint, our firm has experienced that often times when someone suffers incapacity it is often at first not a total and complete incapacity.  They are often “in and out of capacity”.  When the alleged incapacitated person is brought to court for a Guardianship Proceeding, it is a very emotionally draining and difficult process if they happen to be with capacity when they are on the witness stand.  In this situation, they become very aware that someone is petitioning to become their guardian because they do not have capacity to manage their own affairs anymore.  This is a very emotionally charged and depressing situation for them because they realize that in essence their liberties are being taken away.
In short, the lesson here is that failing to plan is planning to fail.  To avoid a gut-wrenching, expensive, and time consuming guardianship application, all one needs to do is prepare a Durable Power of Attorney and a Health Care Proxy, and/or a Trust, wherein they appoint a trustee.
If you don’t have these very important estate planning documents, please contact us at Maroney Law.  We can walk you through the process and help you protect your estate and health care choices should you become incapacitated sometime in the future.

Monday, February 21, 2011

Incapacitated Without a Plan


What Happens Now? (Part I)

What happens if you become incapacitated without a proper plan and/or protective documents in place?  Your loved ones will be unable to make decisions, major, minor or critical, relative to your financial and personal health care needs/desires, unless or until a Guardian is appointed.
Doctors and other medical personnel may have listened to and acted upon comments from the spouse of the patient who has for years attended doctor visits, and even spoken for their spouse at those visits, because the more silent spouse could speak up for him or herself if they did not agree with the direction of his or her care.  All of that would stop, however, when and if one of the spouses became incapacitated.  If the incapacitated person is unable to speak for himself or herself, and does not have a Health Care Proxy in place, health care providers are precluded from doing anything except what they think is medically necessary for the ill person.  Even if the ill person would rather not have:
  • Surgery
  • A breathing tube
  • An infusion
  • A transplant
  • A diagnostic procedure;
The doctors will do whatever they think is medically necessary to treat the patient.  If a Health Care Proxy is in place, the well spouse or another trusted individual can step in and advise the medical personnel as to what he or she thinks best for the ill person and, even more importantly, what the ill person wants for himself or herself.
A Living Will is also a critical document for any incapacity plan.  The Living Will is often known as a Do Not Resuscitate (DNR) order.  It is a person’s written and explicit wishes to their health care providers as to whether they do or do not wish to remain on life support if they are in a permanently brain dead or vegetative state.
This document is similar to a Health Care Proxy and, in fact, most Health Care Proxies contain Living Will language as well.  The difference is that the Living Will can only take place if the person is in a permanently brain dead or vegetative state.  The Health Care Proxy, on the other hand, will trigger when the person is incapable of making their own decisions, but may be far from a permanently brain dead or vegetative state.
Likewise, with respect to financial or business matters, incapacity will bring your bank account, personal accounts, business accounts, property and other business transactions to a standstill, unless a Durable Power of Attorney is in place.  Even your spouse cannot act for you relative to business and financial matters, if the asset that is the subject of the intended action is in your own name and not jointly held with your spouse. Without the Durable Power of Attorney, your business and financial matters will be in limbo because no one can act for you.
All of this can be avoided, if while you have the capacity, you prepare a Health Care Proxy and a Durable Power of Attorney. These two forms will allow you, while of sound mind and body, to designate who you would like to be making your decisions for you when and if you become incapacitated.  Likewise, if your estate plan involves a Living Trust, the person you designate as your trustee will be able to immediately step in and take over the management of the assets held in the trust.  However, the Living Trust only applies to the assets held in the trust, so making a Health Care Proxy and Durable Power of Attorney are still very important in any estate plan.
If you don’t have these very important estate planning documents, please contact us at Maroney Associates.  We can walk you through the process and help you protect your estate and health care choices should you become incapacitated sometime in the future.
In our next blog, we will discuss the consequences of not having these documents which is a Guardianship Proceeding.

Based in Melville and Garden City, New York, the attorneys at the Law Offices of Maroney Associates, PLLC assist clients throughout Nassau County, Suffolk County, Queens, and the cities of Mineola, Hempstead, New Hyde Park, Franklin Square, Williston Park, Queens Village, Melville, Huntington, Farmingdale, Patchogue and Uniondale, NY.

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445 Broad Hollow Road, Suite 25, Melville, NY 11747
| Phone: 866-994-2025
1305 Franklin Avenue, Suite 160, Garden City, NY 11530
| Phone: 866-994-2025

Elder Law | Estate Planning for High Net Worth Individuals | Estate Planning | Business Succession Planning | Probate / Estate Administration | Planning for Children | Special Needs Planning | Guardianships | Real Estate | En Español

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