We work with a variety of legal tools and techniques to meet the goals and objectives of the older client. We handle general estate planning issues and counsel clients about planning for incapacity with alternative decision making documents, such as powers of attorney and health care proxies. Some estate planning tools are straightforward and basic, and do not require a lawyer, such as a health care proxy forms, which are available on-line for free (see below). Other estate planning tools are more complex and obtaining legal assistance is advisable in order to help the older client learn his or her options, and to properly draft the necessary documents.
A “Living Trust” is a trust that takes effect during the lifetime of its creator (known as the “Settlor” or “Grantor”). A Testamentary Trust is a trust that is created under the terms of a Will and does not take effect until death. Trusts allow great flexibility in carrying out your wishes.
A will, also called a “Last Will and Testament” can help you protect your family and your property after you are gone. You can use a will to:
a) Leave your property to people or organizations;
b) Name a personal guardian to care for your minor children;
c) Name a trusted person to manage property you leave to minor children, and
d) Name an executor, the person who makes sure that the terms of your Will are carried out.
When You Leave A Will, the Court Becomes Involved
After a person dies if they leave a Will, somebody acting on behalf of that person must come forward with the original Will. Typically, this person who comes forward is named in the Will as the executor, and has been chosen by the deceased person in the Will as the one in charge of affairs of the deceased person, such as paying the debts and distributing the property left to beneficiaries in the Will. (For obvious reasons it’s important to to let the named executor or a loved-one know where your Will is located.) The Will has to be administered through a court supervised process, called probate. In New York, the Will is probated at the Surrogate Court in the county where the deceased person lived. The person named in the Will as executor or executrix has to obtain the court’s authorization to carry out the wishes of the deceased person. This authorization allows the executor to settle person’s final debts and transfer legal title to property from the deceased to his or her beneficiaries and heirs.
Property Passing to Beneficiaries and Heirs Does Not Need to Go Through a Will
With correct planning, many of your assets can go directly to your beneficiaries and heirs without going through a Will or the probate process. This takes correct planning. Here are some examples of property that you can arrange to pass outside of the probate process:
- property you’ve transferred to a living trust
- life insurance proceeds
- funds in an IRA, 401(k), or other retirement account
- securities held in a transfer-on-death account
- payable-on-death bank accounts, or
- property you own with someone else in joint tenancy or tenancy by the entirety.
- bank accounts with named beneficiaries
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a Will.
However, you still need a Will for any property not passing outside of the Will, or not included in a Living Trust.
What Happens If you Have No Will and No Plan Outside of Probate?
What if you do not leave a Will, or the Will isn’t valid (because it wasn’t drafted properly or wasn’t signed properly) and there is property you own that will not pass to your beneficiaries outside of the probate process? In these circumstances, the court will take charge of your estate without the Will, and appoint someone to make distributions of your assets, and pay expenses. Your assets will go to your closest living relatives, under New York’s “intestacy” laws.
Other Estate Planning Tools
A properly drafted New York State power of attorney, health care proxy and living will allows you to choose to manage your financial affairs and to make the health care decisions you would want in case you are unable to do so. Without these essential documents in place, your loved ones may be required to petition the court for guardianship, and have the court appoint an individual to make financial and health care decisions.
Health Care Proxy:
Under New York law, you may appoint someone you trust, for example, a family member or close friend, to decide about medical treatment if you lose the ability to decide for yourself. You can do this by using a health care proxy in which a health care agent is appointed to make sure that health care providers follow your wishes. The agent can also decide how your wishes apply as your medical condition changes. Hospitals, nursing homes, doctors and other health care professionals must follow the agents’ decisions. You can give your health care agent as little or as much authority as you want. You can allow the agent to decide about all health care or only certain treatments. You can also give your agent instructions that he or she has to follow.
You do not need a lawyer for a health care proxy. To obtain a New York health care proxy form, see the following link:
What is the difference between a living will and health care proxy?
Unlike a living will, a Health Care Proxy does not require that you know in advance all the decisions that may arise. Instead, your health care agent can interpret your wishes as medical circumstances change and can make decisions you could not have known would have to be made. Sometimes the living will and health care proxy is combined in a single written document.
A living will is a written statement of an individual’s wishes regarding medical treatment. The statement is to be followed if the individual is unable to provide instructions at the time medical decisions need to be made. The health care proxy is significantly different from the living will in that it empowers another person (the agent) to make health care decisions if the patient cannot do so herself. The living will, on the other hand, has no such provision for an agent but enables a person to express his or her own choices regarding medical treatment. It makes sense to utilize both a living will and a health care proxy.
To obtain a New York health care proxy and living will, go to the following link:
PREVENT ELDER ABUSE
Is your family member being financially exploited by a person misusing power-of-attorney control over your finances?
Is a guardian making decisions or taking actions not in your family member’s best interest?
Learn how to protect the health and well being of those individuals you care for.
For example: did you know that you can appoint someone to monitor the agent acting as Power of Attorney for your loved one? But first, what is a Power of Attorney and why is it important to have a monitor?
A Power of Attorney (POA) is a legal document giving someone (an agent) the power over a person’s finances and/or property. AARP Public Policy Institute warns that while a POA is often recommended by elder lawyers as a tool for planning for a person’s incapacity, it has a major drawback because of the potential opportunity for the agent to financially exploit the incapacitated person. The agent who is committing the financial abuse can be a family member or a non-family member or professional.
In 2009, New York made significant revisions to Power of Attorney forms in order to increase protections for incapacitated people with POAs. Under the new law, you can appoint someone to monitor the agent’s actions. [Amendments to Article 5, Title 15 of The General Obligations Law were made by 2008 N.Y. Laws Ch. 644, §19, 5-1509]. The monitor can request a copy of the power of attorney and documents that record the transactions of the agent.
We offer monitoring services for Powers of Attorneys.
Our firm also provides legal representation to obtain orders of protection if necessary and assist older persons to recover property in cases of fraud and financial abuse.
Our firm also provides counseling and legal representation on Will and estate matters.