New York Elder Legal Questions

An individual can make their own medical decisions including treatment and nursing home placement.  If the person lacked the capacity to understand the nature of their illness and the consequences of refusing treatment (including placement), those decisions could be made by a designated health care proxy or under NY Family Health Care Decisions Act, by a family member.  However, as a practical matter it would be difficult to place a person in a nursing home against their wishes. And you would have to deal with control over the persons finances in order to pay for the placement.   A guardianship proceeding could be brought, and it would require a decision by the judge in order to place a person in a nursing home. Even then as a practical matter, it is difficult to keep someone who is mobile in a placement they do not want.... Read More

You would need to apply to the Court to end the guardianship. Does your mother have the capacity to understand and agree to a power of attorney?  The court may be reluctant, because a POA is revocable and the court does not monitor an agent under a POA.  By the cost of your bond, there must be a substantial estate. The bond protects your mother and other beneficiaries.  You could also try to have the guardianship order modified to allow for regularly recurring professional expenses such an an accountant for the taxes.  And you could talk to the clerk of the court about finding a more cooperative bank. ... Read More

Pursuant to the applicable provisions of the Federal Deficit Reduction Act of 2005 (DRA 2005), the look back period for Medicaid is five years (60 months).  That federal statute requires that any uncompensated transfer that occurred during the relevant look back period will cause a penalty period with regard to the receipt of Medicaid benefits. The penalty period is the amount of the uncompensated transfer divided by the state's reimbursement rate. The result is the number of months that will constitute the penalty period.  The penalty period begins in the month in which the person applying for Medicaid would have been approved to receive Medicaid nursing home benefits if the uncompensated transfer had not occurred. For example, in New York the reimbursement rate varies depending on the county from $7,264 to $11,227.  If the uncompensated transfers over the five year look back period totalled $140,000, to determine the penalty period you would divide the $140,000 by the reimbursement rate.  If we use the smallest reimbursement rate from New York, the calculation is $140,000/7,264 = 19.74 months.  DRA 05 requires that the number be rounded up to a penalty period of 20 months.  Accordingly, for 20 months after the applicant otherwise qualifies for Medicaid nursing home benefits, the applicant cannot receive Medicaid benefits, and the nursing home cost would be required to paid by someone other than Medicaid. There are options available other than making uncompensated transfers of assets to your children that will allow you to remain eligible for Medicaid nursing home benefits.  I encourage you to locate an experienced elder law attorney close to your home who can advise you on those options, and who can help you determine the most beneficial course of action for you and your family. The following websites may assist you with identifying an experienced elder law attorney in your locale:  The National Association of Elder Law Attorneys (www.naela.org), ElderCounsel (www.eldercounsel.com), and Elder Law Answers (www.elderlawanswers.com).  Good Luck. Randy Coleman... Read More

A 1031 tax-deferred exchange is a method by which a property owner trades one property for another without having to pay any federal income taxes on the transaction. In an ordinary sale transaction, the property owner is taxed on any gain realized by the sale of the property. But in an exchange, the tax on the transaction is deferred until some time in the future, usually when the newly acquired property is sold. These exchanges are sometimes called "tax free exchanges", because the exchange transaction itself is not taxed. Tax deferred exchanges are authorized by Section 1031 of. The requirements of Section 1031 and other sections must the Internal Revenue Code be carefully met, but when an exchange  is done properly, the tax on the transaction may be deferred. A replacement property does not need to be identical to that sold and can be other investment property.  The rules on a 1031 exchange is that replacement property must be identified within 45 days from the date of closing and such property must be closed on within 6 months from closing. Before entering into any such transaction, an experienced attorney who practices in  deferred exchanges should be contacted. - Alfred Polizzotto, III... Read More

You have posed an excellent question and one in which the answer has recently changed.  Until this year, there were two different tables used for determining the value of a life estate - Table S - SIngle Life Factor for the IRS and an older table from HCFA for Medicaid.  This year, the law has been changed such that the IRS table is now used for both agencies.  Based on a sale in November 2011, the IRS 7520 interest rate used to calculate a life estate is 1.4%.  A 78 year old woman would have a 12.005% interest in the real property translating into a $42,017.50 interest.  This figure may change in December if the 7520 interest rate for the IRS changes. Whether or not she can protect her interest from Medicaid depends on a number of factors, but it would appear that you may be able to shelter these funds from Medicaid provided that your mother will not need nursing home care within the next 5 years.  A very experienced elder law attorney should be contacted to detail all of the alternatives for you before undertaking any actions. - Alfred Polizzotto III, JD, CFP... Read More

IRA's are generally protected from judgements. However a nursing home can try to evict a resident for non-payment. The person may be Medicaid eligible if the IRA is the only asset. IRA's are considered exempt for purposes of Medicaid if they are in "pay-out" status. In that case only the income is counted. ... Read More

     Title 42 of the Code of Federal Regulations, section 483.25 states that "Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being." Additionally, section 483.13(b)makes clear that "The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion." Certainly, if the the allegations you assert are true, the facility is in direct violation of these provisions of the Code. The Code guarantees the rights of residents of nursing homes and assisted living facilities. Incidents such as the one documented above, while unfortunate, reinforce the necessity of maintaining the highest levels of staffing at such homes, in order to prevent future episodes from arising.      You may utilize a "nanny cam" to uncover future evidence but it will do little to document to most recent instances.  A formal written complaint should be made to the facility documenting the incident, merely telling the daytime nurses will not be enough.  You should consult with an experienced nursing home abuse/negligence attorney in your area. - Alfred Polizzotto, III  ... Read More

Eventually your aunt may need Medicaid coverage.  You need to distinguish Medicare from Medicaid.  Medicare generally comes with Social Security. It covers 100 days of skilled nursing home care per spell of illness.  It has no resource or income test.  Medicaid is a poverty program for people with few assets and low income. Some assets, such as a car, are exempt. Your aunt could keep her car.  For nursing home coverage, the Medicaid agency looks back at any transfers in the last 5 years.  You could claim that since a car is exempt, the transfer was exclusively for reasons other than to qualify for Medicaid.  Before any transfer is done you should contact an elder law attorney in the area where your aunt resides. This response is general in nature and not legal advice. No attorney client relationship is formed by it. ... Read More

New York does impose a transfer of asset penalty for Medicaid coverage of nursing home care.; There are some exceptions. You can return a gift and show the money has been spent down by the applicant. Also you can show the money was transferred exclusively for purposes other than to qualify for Medicaid. This is difficult to prove, but perhaps something like the funeral expense would qualify.; Also there are hardship provisions, when the funds were taken and the applicant cannot get them back.; As an agent under a power of attorney you did have a duty to your grandmother and the nursing home could possibly sue you regarding the bill. They would have to show you exactly what is owed.; These are all complex issues and you should consult an elder law attorney in your area. ... Read More