New York Elder Legal Questions

A court will grant a petition for grandparent visitation if the grandparent can prove there's a special relationship between the grandparent and child or that the grandparent has done everything possible to have a relationship, but the parents have thwarted this. The court will take the parent's objections and other factors into consideration, and may require a hearing. If you've tried everything reasonable under the circumstances and there's no good reason your daughter is keeping you away, it's likely that a court will grant your petition. ... Read More

Unfortunately it's late in the game to be asking how to protect your father's assets, as the judgment now gives the nursing home a claim against his assets.  The time to contact an elder law attorney would have been no later than when your father entered the nursing home, as asset protection planning would have been viable at that time. But to answer your primary question, it's unlikely your father can keep any of his assets, with the exception of any IRAs or retirement accounts, as the nursing home can now move to seize his non-exempt assets.  But you may be able to use some of his funds to purchase a burial account, although you run the risk of the nursing home cliaming some type of fraudulent conveyance in light of their judgment. You really need to call an elder law attorney in your area to see what options may be available; but I don't have much optimism you'll be able to save much of your father's estate.  ... Read More

If your brother is actually stealing your mother's money, and your mother is not capable of making her own decisions, you can file a petition in court to have a judge appoint you guardian and give you control of her money. You can also start a lawsuit on her behalf against your brother to recoup what he stole, if you are appointed. If your mother is capable of making her own decisions, you can still help her to put a stop to what's going on and take legal action to recoup what was stolen. However, you haven't indicated your mother's state of mind, or capacity to make her own decisions, or whether you and she have a relationship. You mention that she abandoned you when you were 6 months old, and yet here you are trying to help her- I'm not sure why you mentioned that. Definitely need more information.  ... Read More

From the description of your problem, it sounds as though your family members have harassed you and your mother's home health aides periodically over the years, most recently, last week, regarding your mother. You say your siblings "do not help", but have you prohibited them from seeing your mother? Does your mother not want to see them?  As your mother's POA/health proxy, you are entitled to contact or have a lawyer contact your mother's health care providers and instruct them not to release any information about your mother to anyone but you, and certainly not to take instruction from anyone with regard to your mother other than you. There is no reason that the health aides should be taking calls or emails from your family members- tell them not to respond. Finally, if your mother can no longer make decisions for herself or take care of herself, you may want to consider commencing a REAL Article 81 proceeding to be appointed as her guardian - which will put your other family members on notice that you- and no one else- make decisions on your mother's behalf, in all areas.  ... Read More

A health care proxy, not a power of attorney, gives a person the right to make medical decisions for someone else, and generally doctors and hospitals communicate with the person who holds the proxy. If you feel that the proxy, or the power of attorney, or your father's will was made under undue influence of your brothers- anything can be contested. You haven't mentioned if you're also being prevented from visiting your father- I'd be able to give a better answer with more information.    ... Read More

Has your mother previously designated you or another family member as a health care proxy? If so, you would want a medical determination that your mother is not competent, and then the agent would have legal authority to make medical decisions on her behalf. If there is no designated health care proxy, then your only option might be to file an Aritcle 81 Guardianship proceeding to have you or another family member appointed her legal Guardian by a judge.  ... Read More

The proceeding you need to initiate is a guardianship not and incomepetency proceeding. Your grandfather appears to be in need of help and the guardianship proceeding is the appropraite way to proceed. This office has handled many such proceedings on Long Island. The proceeding is filed in the Supreme Court in the County where your grandfather is presently located. You tell the Court in the petition what problems your grandfather has and waht needs to be done; once the papers are filed, the Court appoints an independent person called a Court Evaluator to investigate and report back to the Court as to the matter; then the Judge holds a  hearing and takes testimony - where your gradrfather is to appear; if he cannot appera the Judge generally travels to the location where he is located, unless his personal apperance at the hearing would not accomplish anyhting, ie, the person is comatose and cannot respond to questions, etc. The Judges usually prefer a family member to be the guardian of that individual. Another step is to have the local county Adult Portective Services Unit investigate the matter to make sure your grandafther is not being abused. If there is anything further required please contact this office. Good luck... Read More

It is not necessary to turn over all of your mother's assets or spend them on her care. After analyzing the composition of her assets, it is possible to preserve approximately 1/2 or more of her assets with proper Medicaid planning. This can be so e using various techniques and Tia such as trusts and Medicaid compliant promissory notes. Please contact our offices at 718-232-1250 and speak with Alfred Polizzotto for more information. ... Read More

Unfortunately, your only option may be to file for guardianship over the person who allegedly signed the new Power of Attorney.  Alternatively, an action can be filed in a court of appropriate jurisdiction to declare the new POA null and void on the basis that the principal did not have requisite capacity to sign the instrument.  In the meantime, the older POA can be filed in any New York county if desired.  Filing a POA, however, does not give the instrument any addtional legal authority, but does put any record searcher on notice that a POA is of record. Any legal action that might be brought should be done in the state and county where the principal maintains their domicile.  ... Read More

The sale is not treated as a gift.  There are long-term capital gains taxes to be paid on both the life tenant's portion of the proceeds as well as the remaindermen's portion of the proceeds provided that each person owned their interest property for more than 1 year.  If your mother lived in that house as her primary residence for 2 out of the past 5 years, then she is entitled to a $250,000.00 capital gains tax exclusion.  If there was less than the applicable capital gains tax exclusion on her portion of the sales proceeds, then she will not owe any capital gains taxes.  As far as the remaindermen interests are concerned, their portion is also taxable as a capital gain and since their interests were gifted from the life tenant, their capital gain is calculated by using the carry-over basis from the life tenant as to their portion of the proceeds.  The remainder portion would not qualify for the aforesaid capital gains exclusion unless the remaindermen also owned their interests for at least 2 out of the past five years and used the premises as their primary residence.  - Alfred Polizzotto, III... Read More

If someone unknowingly transfers a piece of real property, then there is potentially a cause of action to recover that property.  If there was fraud which took place at the onset of the signing of the papers, that is, the person signing the papers was lied to or tricked or duped into signing the property over to the other person, a cause of action may be able to be maintained to recover that property.  If the person who signed over the property did not have the ability to understand the nature of the transaction, i.e. a lack of capacity, then there may also be a basis to recover the property.  However, there are time limits for such an action to be brought and specific elements which must be analyzed before an action can be commenced.  It is essential that you consult with an attorney specializing in real estate litigation and constructive trusts to have you case evaluated. - Alfred Polizzotto, III... Read More

There are ever changing rules in the area of Elder Law and protection of assets.  Life Estates have been used in the past to provide protection for real property.  This was more common when there was a shorter period of a look back for transfers to individuals and a longer period of look back for trusts.  Now the rules have been modified such that the look back period is 60 months in New York for both transfers to individuals and to trusts. With these look back periods now being identical for trusts and individuals there is no real advantage in most cases to having a life estate rather than setting up a Medicaid Asset Protection Trust to protect those assets.  The trust can be structured to provide an "Stepped Up" basis on death of the individual currently owning the real property, provide for the capital gains exclusion amount if the property is sold, provide for the current owner to remain in the home during their lifetime and provide asset protection for the real property. Additionally, with the current laws in flux over potential recovery against life estates in NY over life estates, there is little reason to create a life estate now as opposed to creating a trust and transferring the property into the trust. A consultation should be had with an Elder Law attorney in your area before undertaking any transaction. - Alfred Polizzotto, III ... Read More

In response to your inquiry, the first step in your sales analysis is determining how much of the proceeds of sale belong to the life tenant and which portion belongs to the remaindermen.  This is determined by using the IRS tables and applicable 7520 interest rates and age of the life tenant to determine the portion of the proceeds which are apportioned to the life tenant.  The remaining portion of proceeds belong to the remaindermen. If the life tenant qualifies to have their portion of proceeds of sale excluded from capital gains due to the $250,000.00 exclusion, then capital gains may be avoided on that portion of the proceeds.  As far as the remaindermen are concerned, if the property is not their primary residence, the provided the rules on 1031 exchanges are followed, the remaindermen can defer the capital gains that are attributable to the sale in a tax deferred exchange. It may be possible to utilize the property you currently own jointly with him as his replacement property but consultation should be had with your tax professional and attorney who concentrates in this area so as not to violate any of the 1031 rules regarding tax deferred exchanges. - Alfred Polizzotto, III... Read More

There are screening tools called Patient Review Instrument (PRI) that determine whether someone needs nursing home level care.  You could possibly hire your own nurse to make the assessment. Nursing homes often do not want residents that require little care, because the patient mix determines their overall Medicaid reimbursement rate. New York does have some assisted living facilities that are covered by Medicaid. They are part of the Assisted Living Program (ALP). ... Read More