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Burner Law Group

2015 Articles

Article 81 Guardianship

Question: My father is a widower and was recently diagnosed dementia.  I am worried he is becoming incapable of taking care of himself.  He never executed a health care proxy or a power of attorney. Can he sign them now? If not, what options do I have to get him the care that he needs?    Answer: Just because your father has a diagnosis of dementia, does not necessary mean he is unable to execute the advance directives he needs to designate you to take care of his...more »

Revocable Living Trusts

Question: My friend just created a Revocable Living Trust and I am not sure if I should be considering creating one as well.  I am in my sixties and have an estate worth approximately $800,000.00.  My current Last Will and Testament disinherits my estranged son.  Is a Revocable Trust something I should consider? Answer: A Revocable Living Trust is a trust that you create during your lifetime and is great tool for those who wish to avoid the probate process. A Revocable Trust...more »

Can I Use an Irrevocable Trust to Pay for Assisted Living Costs?

Question: I am Trustee of my mother’s Irrevocable Medicaid Trust. My mother has recently moved to an assisted living. May I pay her assisted living costs from the assets in the trust? Answer: The short answer is no; you may not. In order for a trust to be considered “exempt” for Medicaid purposes, it must provide that no principal distributions can be made to the grantor (your mother). This requirement ensures that if your mother did need Medicaid to cover the cost of her...more »

Probate Estate v. Gross Estate

Question:  Someone told me that assets with named beneficiaries are not subject to estate tax, is that correct? Answer: No, that is not correct.  Your “gross taxable estate”, meaning the assets that are subject to estate tax, consists of all of the assets which you have an interest in at death, even if those assets do not pass to your beneficiaries through the probate of your Will.  However, if your gross taxable estate is less than the state and federal...more »

Does Community Medicaid Cover Supplies?

Question: “I am considering applying for Community Medicaid for my mom in order to cover the cost of home health aides.  I heard that Community Medicaid might pay for certain supplies my mom could use in her home, is that true?” Answer: Yes.  The Community Based (Homecare) Medicaid program can assist families in paying for the cost of home health aides as well as other programs, supplies and equipment.  Once approved for Community Medicaid, the individual may be...more »

What Documents are Needed to Apply for Medicaid?

Q: I keep hearing that if I apply for Medicaid I will need five years' worth of financial documents.  Could you tell me what are the documents I should be keeping? A: In New York State, you do need to provide 5 years worth of financial documentation when you apply for chronic/nursing home Medicaid. The purpose of providing this documentation is to comply with the state's requirements regarding a look back period to determine eligibility based on current asset levels and past transfers...more »

Prepaid Funeral

QUESTION:  My father is in his eighties and although he is in good health, he would like to plan and pay for his funeral now.  Does it make sense for him to do this? ANSWER: Yes, it does make sense to make plans for your father to make and pay for his own funeral arrangements.  Many people pre-arrange and pre-fund their funerals as part of their estate plan. This arrangement can be done by either (1) going directly to the funeral home of your choice whereby the funeral is...more »

VA Benefits

Question: Does the Veterans Administration provide any benefits to receive assistance at home? Answer: There is a benefit referred to as the improved Pension through the Department of Veteran’s Affairs (VA), more commonly referred to as Aid and Attendance Pension.  Assuming you meet the eligibility requirements, the VA permits payments to care givers (including family members, but not spouses) for care provided to the veteran and/or the spouse.  There are three main...more »

Agent Responsibilities

Question: I was recently named as an agent on my mother’s Durable Power of Attorney which included a “statutory gifts rider.” What is this document and what responsibilities will I have? Answer: A Durable Power of Attorney is a document in which a principal, in this case your mother, can designate an agent to act on her behalf with respect to financial, business or legal matters.  In New York State, the agent is limited to the powers enumerated in the document and can...more »

Portability- It May Not Be Too Late

The concept informally known as “portability” is now permanent as a result of the enactment of the American Taxpayer Relief Act of 2012. Portability allows a surviving spouse to use a deceased spouse’s unused estate tax exclusion (up to $5.43 million in 2015). For those dying in 2011 and later, if a first-to-die spouse has not fully used the federal estate tax exclusion, the unused portion called the “Deceased Spousal Unused Exclusion Amount,” or “DSUE...more »

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