POWER OF ATTORNEY: This document enables you to name agent(s) or attorney(s)-in-fact to make financial decisions for you should you be unable to do so or simply do not wish to do so. A Power of Attorney document may be limited to bank accounts, transferring of assets, real estate transactions, gifting, or whatever the person creating the power of attorney specifies. It may also be very broad.
There are Springing and Durable Power of Attorney documents. A Springing Power of Attorney only comes into effect at the time a condition is met, such as the creator becoming incapacitated. To determine incapacity, a condition may be two (2) doctors must declare the individual to be incapacitated, which may be time consuming, difficult and expensive. A Durable Power of Attorney is in effect the moment it is properly executed, as well as if/when the creator becomes incapacitated.
HEALTH CARE PROXY (NY) • MEDICAL POWER OF ATTORNEY (NJ): A Health Care Proxy document names agent(s) to step into your shoes and make health care decisions for you when you lack the capacity to do so. Choose your health care agent(s) wisely and make sure you have made your wishes known to that individual before making him/her/them your health care proxy. It is a good idea to have successor agents named in this document.
LIVING WILL: This document enables you to set forth your medical wishes while you have the capacity to do so. These wishes are to be adhered to by medical facilities. It enables you to choose to decline certain or all treatments or insist on trying all possible treatments or anything in between. The most important aspect of the Living Will is that your wishes will be known.
1) Main Goal - The goal of Elder Law is to maintain quality of life with dignity and security.
2) Long Term Care - Long term care typically includes Nursing Homes, Assisted Living Facilities, Home Care, Independent Care and Adult Day Care.
3) How to Pay for Long Term Care - Long term care can be quite expensive. You may always pay out of pocket, but you may also consider long term care insurance, a reverse mortgage, the VA, Medicaid, etc.
4) How to Qualify for Medicaid - Although it may seem straightforward, the Medicaid process is a labyrinth of detail which our office has successfully handled for the last quarter of a century in both New York and New Jersey. Not only do we file the applications, but we can assist with asset preservation, as well as gathering of documents which can seem like an overwhelming task. It's never too late to try to protect your resources.
5) Medicaid Renewals - The Board of Social Services (NJ) and Department of Social Services (NY) require annual filings with which our office has had decades of experience.
6) Long Term Care Insurance - We can help you review long term care insurance policies before purchasing this insurance so you may spend your dollars wisely.
7) Reverse Mortgage - Some people plan to live at home and never enter a long term care facility but the cost of home care may be prohibitive so a reverse mortgage may be a consideration. Our office can assist with this analysis to determine if it’s a good fit.
8) Documents - The most common documents include, but are not limited to, a Power of Attorney, Living Will, Health Care Proxy/Medical Power of Attorney, HIPAA Release, Last Will and Testament and Trust. Capacity is a requirement to execute documents.
9) Capacity - If there is no capacity, a Guardianship/Conservatorship may be required.
10) Deed Transfers - We prepare Deeds and the accompanying transfer documents along with applicable court filings in an effort to protect your home(s) as that is typically one of an individual’s largest resources.
Estate Planning is more than directing what happens to your assets when you pass away. A good estate plan includes instructions for your care if you become ill or disabled. It includes proper documents such as a Last Will and Testament, possible Trusts (Revocable and/or Irrevocable) and Advance Directives such as Health Care Proxy/Medical Power of Attorney, Living Will and Power of Attorney documents. Tax issues are discussed as New Jersey still has an inheritance tax based upon the classes of individuals who inherit. There may be issues among family members who do not get along and there may be unequal distributions or a Will contest. If real property of a decedent is located in more than one State, there will be ancillary probate. A knowledgeable attorney may assist in making your Estate planning run smoothly
One of the main components of a good Estate plan is a Last Will and Testament. A Will has a Testator/Testatrix who is the creator of the Will, Executor/Executrix who is the manager of the Will, and Beneficiary(ies) who are individual(s) who inherit the assets which pass through the Will. A Will enables your Estate to be distributed to your loved one(s) and/or charity(ies) after your passing. A Will is proven in the Surrogate’s Court through a process called probate. A Will is a revocable document that takes effect upon death and becomes irrevocable at that time. Wills have been with us since the first days of recorded history. Archaeologists have found 4,500-year-oldhieroglyphics leaving property to others in Egyptian tombs.
A Trust is a document that helps you control your assets during life and after your passing. A Trust has a Settlor/Grantor who is the creator of the Trust, Trustee(s) who manage the Trust, and Beneficiary(ies) who are entitled to the assets which pass through the Trust. It may be Revocable or Irrevocable. A Trust is a private document that does not typically go through probate. A Trust may be as simple or creative as you like and may be used to pass property at the time of death, as well as during life. The main benefits of a Trust are privacy, quick transfers of wealth and avoidance of probate. Some trusts may protect assets from taxes or assist with perservation of assets. Tax returns may need to be filed for a Trust which may have a separate tax identification number (TIN).
A Health Care Proxy (NY)/Medical Power of Attorney (NJ) is a document which names agent(s) to step into your shoes and make your health care decisions for you when you lack the capacity to do so. Choose your health care proxy wisely and make sure you have made your wishes known to those individual(s) before naming them in your document. It is a good idea to have successor agent(s) named in this document.
A Living Will is a document that enables you to set forth your medical wishes while you have the capacity to do so. These wishes are to be adhered to by medical facilities. It enables you to choose to decline certain or all treatments or insist on trying all possible treatments or anything in between. The most important aspect of the Living Will is that your wishes will be known.
A Power of Attorney is a document which enables “agent(s)” or “attorney(s)-in-fact” to have the powers listed in the Power of Attorney document. This document enables the agent or attorney in fact to make financial decisions for you should you be unable to do so or simply do not wish to do so. A Power of Attorney document may be limited to bank accounts, transferring of assets, real estate transactions, gifting, or whatever the person creating the power of attorney specifies. It may also be very broad.
Medicaid and Medicare are both federal health insurance programs enacted in 1965, but there are important differences. While Medicare typically provides health insurance for people 65 years or older, it does not pay for extended care in a skilled nursing facility or other long term care like home care, assisted living and/or adult day care. These costs may be covered by Medicaid, but in order to qualify, an individual must undergo a resource and income test, as well as be medically needy.
If resources are too high, an individual may have to pay privately for long term care and “spend down” to the Medicaid eligibility level before receiving coverage. The individual’s home may be in jeopardy as Medicaid can lien the estate for care after an individual passes away. Medicaid has a “look-back” period, during which certain gifts affect eligibility which may prevent a person from simply giving away resources before qualifying for Medicaid. The rules are complicated and even though Medicaid is a federal program, each State has its own rules.
Below are just a few examples of some of the rules that are in effect in 2020 and these rules typically change annually:
- The resource allowance for an individual is $15,750 (NY) and $2,000 (NJ);
- A community spouse may keep up to a maximum of $128,640 in NY and NJ;
- NJ has a strict income cap of $2,349 and a Qualified Income Trust (QIT) will be required if income is greater than the state income cap; and
- NY may allow for the use of a pooled trust for excess income.
Since these are just a smattering of the rules, fortunately, you don’t need to figure all of them out on your own. The Law Offices of Carolyn J. Strassberg, LLC are fully versed in the Medicaid labyrinth in NY and NJ. Our offices may employ various strategies to try to protect your assets and prepare and file Medicaid applications and future Renewals.
The Law Offices of Carolyn J. Strassberg, LLC can create Medicaid related documents, including Advance Directives (like a Power of Attorney, Living Will and Health Care Proxy/Medical Power of Attorney), Medicaid Compliant Trusts and Wills so that your estate does not pass to a Medicaid recipient spouse and/or name agent(s) to assist you with asset preservation. We are here to help you create a complete plan for your future and the future of your loved ones.
We have decades of experience in protecting your assets, creating your documents, and advising you as you plan for your future and your particular situation so you can approach the application process confidently, knowing that you have the best available information, preparation and support from our team.
Probate is the process of proving your Last Will and Testament before the Surrogate's Court so your Estate transfers to your loved one(s) and/or charity(ies). If there is no Will, then Administration is the process of having your estate pass by the Law of Intestacy which varies by State. Sometimes Administration requires bonds to be issued at a fairly high cost.
If you are the Executor/trix of a loved one’s Last Will and Testament, the Law Offices of Carolyn J. Strassberg, LLC can assist with the preparation and filing of the probate petition, obtaining the Employer Identification Number (EIN) for the Estate, opening Estate account(s), marshaling assets, preparing documents for the Surrogate’s Court and for the distributees, and closing the Estate. This process may be quite overwhelming and time consuming so it is important to work with a law firm who handles these delicate issues with expertise, knowledge and compassion.
New Jersey still has an inheritance tax based upon classes of persons who inherit like siblings, nieces/nephew, etc., so it is important to plan ahead. New York does not currently have an inheritance tax. There is still a Federal Estate tax which is a tax for estates currently above $11,580,000.
Q-TIPS: This type of Trust is typically used to protect the children from a first marriage. This Trust enables the second spouse to utilize the interest on the principal without wasting the principal so when the second spouse passes away, the children from the first marriage still have the benefit of remaining principal. The second spouse may use the principal if the trustee believes it is necessary. The theory is to protect the children from the first marriage so that they have access to as much of the full principal as possible at the time of the second spouse’s death.
Offshore Asset Protection Trusts: This type of Trust protects the client from potential lawsuits because the assets held in offshore accounts are under the protection of the laws of that country and not the U.S. Hence, recovery by creditors becomes much more impractical. This type of trust can protect spendthrift beneficiaries, avoid forced heirship rules, provide for the non-enforcement of foreign judgments, avoid the rule against perpetuities and restrictions on accumulation, be used as a premarital planning vehicle which can complement or substitute a prenuptial agreement, and allows for more privacy and confidentiality than domestically held trusts.
Special or Supplemental Needs Trusts (SNT): This Trust protects your loved ones from being disqualified from government benefits like Medicaid simply because they have received an inheritance. The primary beneficiaries of these types of trusts are individual(s) receiving welfare and other government benefits. This trust enables the individual(s) to continue receiving the government benefit while also inheriting funds from you. Typically, the money in these trusts provides for expenses like recreation.
Wills vs. Trusts
A Last Will and Testament passes your assets to those you have indicated in your Will at the time of your death. A Will is proven in the Surrogate’s Court through a process called probate. A Will is a revocable document that takes effect upon death and then becomes irrevocable at that time. Wills have been with us since the first days of recorded history. Archaeologists have found 4,500-year-old hieroglyphics leaving property to others in Egyptian tombs.
- public record (you may get a copy of Jackie Onassis's Will during regular business hours)
- potential Will contest
- ancillary probate if real property is owned by the decedent in more than one State
- probate – process whereby your Will is proved in Court
- surrogate decides
- costs involved
- time consuming
- quick transfers of wealth
- some trusts may protect assets from death/estate/inheritance taxes and/or assist with Medicaid qualification
- avoidance of probate
- tax returns may need to be filed for trusts which may have separate tax identification numbers
How experienced is this law firm?
We are a knowledgeable, boutique law firm that only handles Elder Law, Estate Planning, Probate/Administration and Medicaid in New York and New Jersey and have been doing this successfully for the past quarter of a century. The vast majority of our clients have been referred to us by former clients, colleagues and long term care facilities. Our knowledge and experience will put you at ease.
How do I start?
The first step is to call 201-746-9004 or email firstname.lastname@example.org to schedule your consultation. Roz or Deanna will discuss your goals and schedule your meeting. They will make sure you know what to bring so that your consultation runs smoothly. We charge a flat rate for the consultation which takes approximately one hour. This fee may be applied toward your work done if you choose to hire the office within two weeks of the date of your Engagement Agreement.
What should I expect during my initial consultation?
Most initial consultations are one hour. During this meeting you will meet with Attorney Strassberg and together you will develop a plan that fits your needs. Each case is unique. Within approximately one week after your initial consultation, you will receive a written Engagement Agreement with the items to be completed along with a quote.
What is an Engagement Agreement?
An Engagement Agreement is a written document which delineates the work to be done along with the affiliated costs. It may be accompanied by a Dual Representation Letter if two or more individuals are hiring our office together.
What is a Dual Representation Letter?
A Dual Representation Letter is a documednt if two or more individuals hire our office. The document informs the individuals signing the document that if a client tells the attorney information, the attorney client privilege does not relate to the other client(s) named in the Dual Representation document.
How do I hire the office?
Once you receive the Engagement Agreement and/or Dual Representation Letter and have reviewed it/them, you may sign and date these documents and return them to our office with the applicable fee.
What will it cost?
Each case is unique so it really depends upon your goals. We often are able to provide a flat rate except when dealing with cases involving a Will Contest or a Medicaid Appeal or other court-related matters. Invariably the services we provide save our clients more than the price paid as we help and preserve assets and make for smooth transitions whether it is dealing with long term care issues, probate/administration matters, etc. Money spent here is money saved later. It costs money but it saves money because you are dealing with a knowledgeable professional. Hiring this office also saves you time and aggravation.
Who should hire the Law Offices of Carolyn J. Strassberg, LLC?
We generally work with the following individuals:
Elders with or without family to help organize their resources and ensure proper documentation to maintain quality of life and preservation of assets;
Couples or singles with young children to ensure proper documents are in place, inclusive of Guardians and Trustees, if necessary;
Couples or singles with adult children to ensure proper documents are in place in case of unexpected emergencies;
People with disabilities so that those they may inherit AND maintain government benefits;
Widow/ers to make sure their documents and beneficiary designations are updated properly;
Divorcees to ensure their estate is not left to their ex-spouse(s);
Blended families to ensure assets are distributed correctly and the correct individuals may assist during life in case of unexpected emergencies;
Same gender couples to avoid litigation when handling control over burial, medical decision making and resources;
Individuals without children to ensure assets are inherited by the correct individual(s) and/or charity(ies) and to determine the issues surrounding potential inheritance tax;
Retired individuals to update beneficiary designations properly and ensure correct documents are in order;
Individuals who have lost loved one(s) to ensure loved ones' assets are inherited correctly and timely.