FAQ | 3RD TAKE | WHAT DO ELDER LAW ATTORNEYS DO?
VIDEO SUMMARY
Q: What is the role of an elder law attorney?
An elder law attorney is the primary legal resource for families who want to protect their loved ones and their assets. They handle a wide range of issues related to aging, healthcare, and family support.
Q: How do elder law attorneys protect assets?
They help families plan and implement strategies to safeguard assets, including:
- Estate planning
- Trust creation
- Medicaid and long-term care planning
- Protection from creditors and lawsuits
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Q: How do elder law attorneys assist with healthcare planning?
They ensure that clients have proper legal protections for healthcare, such as:
- Healthcare proxies
- Advanced directives
- Coordination of care with family and medical professionals
Q: What other support do elder law attorneys provide?
Elder law attorneys also:
- Help families navigate complex legal and financial decisions
- Coordinate services that require family support and protection
- Serve as a point of contact for multiple legal and care issues, ensuring peace of mind for clients
Q: Why do families work with elder law attorneys?
Families rely on elder law attorneys to protect their loved ones, safeguard assets, and guide them through complex legal and healthcare matters, providing comprehensive support and security.
We I know we’ve done this now for a long period of time and what other law attorneys do Anthony really we’re the point people where the people that families come to and they have all these potential issues that they have concerned how to protect their assets the elder law attorney is literally at the juncture of all these different areas and elder law attorney is there to protect asset cases making sure covering we’re here to protect all these different components and make sure the families assets are protected make sure the health care is safe going we do it basically everything that requires family support and protection so we do a lot after me and sure you know that you said it in the million meetings at the point and you know how grateful clients are helping.
Advanced Healthcare Directives
VIDEO SUMMARY
Q: What is a healthcare proxy?
A healthcare proxy is a legal document that allows you to appoint an agent to make healthcare decisions on your behalf if you ever become unable to do so yourself.
Q: Can I appoint more than one person as my healthcare agent?
Yes. You can appoint multiple agents in order of priority—for example:
- A primary agent
- A backup (secondary) agent
- A third agent, if desired
Only one person acts at a time, and the next agent steps in if the prior one is unable or unwilling to serve.
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Q: When does a healthcare proxy go into effect?
It becomes effective only when you are unable to make your own healthcare decisions, such as in a medical emergency or due to incapacity.
Q: Who should receive copies of my healthcare proxy?
You should make multiple copies and provide them to:
- Your primary care physician
- Any specialists or doctors you see regularly
- Hospital admission staff
- Your medical chart at any healthcare facility you use
Having the document readily available ensures your agent can make decisions quickly when needed.
Q: Is a healthcare proxy still necessary in New York if there’s a default decision-maker law?
Yes. Even though New York State law allows certain people to make medical decisions for you without formal documentation, healthcare providers strongly prefer to rely on an official healthcare proxy. Having the document removes ambiguity and makes the decision-making process clearer and faster.
Applying for Community-Based Medicaid in New York
VIDEO SUMMARY
Q: What is the first step in applying for community-based Medicaid?
The process typically begins by establishing an irrevocable trust. Our team helps you create the trust, customize how assets should be distributed, and transfer your assets into it. This protects your resources and positions you for Medicaid eligibility.
Q: Is there a 5-year look-back period for community-based Medicaid?
No. Unlike nursing home Medicaid, community-based Medicaid has no 5-year look-back. You may apply as soon as your assets fall below Medicaid’s financial limits.
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Q: When can I apply for community-based Medicaid services?
Once assets are below the Medicaid threshold, a Medicaid coordinator can submit the application. Approval and services are typically provided quickly.
Q: What if I’m married—can assets be transferred to my spouse?
Yes. Assets can be transferred to a community spouse, which may eliminate the need for an irrevocable trust. If no spouse is available, the irrevocable trust is the primary method to protect assets and qualify for Medicaid.
Q: How is excess income handled for community Medicaid applicants?
New York allows applicants to use a Supplemental Needs Pooled Income Trust, administered by nonprofit organizations. This helps individuals who are deemed disabled protect their excess monthly income.
Q: How much income am I allowed to keep each month?
Medicaid allows you to retain $1,800 per month. Any income above this amount is considered excess income.
Q: What can a pooled trust be used for?
- Rent or mortgage payments
- Utilities and household bills
- Groceries and personal expenses
- Everyday cost-of-living needs
Without a pooled trust, excess income must be paid toward medical costs—meaning you lose access to it each month.
Q: Why is a pooled trust important?
A pooled trust helps preserve income—especially for those with pensions, Social Security benefits, or other substantial income sources—so you can maintain your quality of life while receiving Medicaid-covered care.
How Do I Qualify for Medicaid Keep My Assets?
VIDEO SUMMARY
Q: Can someone qualify for Medicaid and still keep their assets?
Yes. With careful Medicaid planning, it’s possible to protect certain assets while still becoming eligible for Medicaid services.
Q: How does your firm help with Medicaid planning?
Our firm has a dedicated Medicaid coordinator who assists families in:
- Achieving Medicaid eligibility
- Protecting assets
- Coordinating estate planning strategies
The goal is to transfer assets to protected individuals like a spouse or a disabled child while meeting Medicaid requirements.
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Q: What are spousal exemptions?
Spousal exemptions allow a spouse to retain certain assets and income while the other spouse applies for Medicaid. This ensures that the healthy spouse is financially protected.
Q: What is spousal refusal in New York?
Spousal refusal lets an applicant transfer assets to a spouse and still qualify for Medicaid. This strategy is specific to New York and helps protect the family’s wealth.
Q: What is a caregiver child exemption?
If an aging parent lives with an adult child for at least 2 years, the parent may transfer their interest in the home to that child without losing Medicaid eligibility. This is called a caregiver child exemption and is a major asset protection tool.
Q: How can an irrevocable trust help with Medicaid planning?
If there are no protected individuals (no spouse or disabled child), an irrevocable trust can be used to shield assets from Medicaid.
- Assets moved into the trust are protected for home care immediately.
- For nursing home care, the assets are protected after a 5-year look-back period.
Q: Why is asset protection important in Medicaid planning?
Proper planning ensures you can receive the care you need without losing your home, savings, or other valuable assets. Using trusts, spousal exemptions, or caregiver child exemptions allows families to maintain financial security while qualifying for Medicaid.
When is Guardianship Necessary in New York?
VIDEO SUMMARY
Q: When is guardianship necessary in New York?
Guardianship is necessary when an individual cannot manage their own affairs due to incapacity or disability. It ensures someone is legally authorized to make financial and healthcare decisions on their behalf.
Q: What are the two major types of guardianship in New York?
- Article 81 Guardianship
- Applies to adults (18+) who have lost capacity but have no prior disability.
- Court-appointed guardian handles finances and healthcare.
- Managed through the Supreme Court of New York.
- Necessary when power of attorney or healthcare proxy is not possible due to incapacity.
- Article 17A Guardianship
- Applies to individuals with developmental disabilities who turn 18.
- Court-appointed guardian manages finances and healthcare.
- Managed through Surrogate’s Court.
- Often, parents become the guardians of their adult child with disabilities.
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Q: When should parents start the Article 17A guardianship process?
Parents should begin the process just before the child turns 18. This allows paperwork to be submitted promptly and ensures the child is protected as soon as they reach adulthood, avoiding delays or gaps in care.
Q: Why is guardianship important?
Guardianship provides legal authority to manage finances and healthcare for individuals who cannot make these decisions themselves. It protects their well-being and ensures their assets and care are properly managed.
Irrevocable Trusts Explained: Benefits, Risks, and When to Use One
VIDEO SUMMARY
Q: What is an irrevocable trust?
An irrevocable trust is a legal arrangement where you transfer assets to a trustee, who manages the assets on your behalf. Once assets are in the trust, you no longer own them directly.
Q: How does an irrevocable trust protect assets?
Because you no longer own the assets personally:
- Creditors cannot access them
- They are protected from lawsuits
- They are shielded from Medicaid liens and estate recovery actions, which could otherwise take significant portions of your estate
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Q: What types of assets can be placed in an irrevocable trust?
Assets such as:
- Property/real estate
- Cash accounts
- Investment accounts
Once transferred, the trust’s tax ID number becomes the official owner, further protecting the assets.
Q: Why is an irrevocable trust important?
It provides strong asset protection, shields your estate from potential claims, and helps ensure your wealth is preserved for your intended beneficiaries.
Supplemental Needs Trusts (SNT) in New York
VIDEO SUMMARY
Q: What is a Supplemental Needs Trust (SNT)?
A Supplemental Needs Trust (SNT) is a legal tool designed to protect assets for a person with a disability while allowing them to remain eligible for government benefits, such as Medicaid or SSI.
Q: What types of Supplemental Needs Trusts are there?
There are two main types:
First-Party Supplemental Needs Trust
- Funded with the disabled person’s own assets (e.g., inheritance, lawsuit award, personal savings).
- The state is the primary beneficiary, meaning Medicaid or other government programs can recover remaining funds after the person’s death.
- Helps the individual keep assets while receiving benefits.
Third-Party Supplemental Needs Trust
- Funded by family members or loved ones.
- Can be customized to benefit the disabled person without the state claiming leftover funds.
- Provides greater flexibility in how assets are used and distributed.
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Q: Who is eligible for a Supplemental Needs Trust?
- Individuals with a disability
- Must be under age 65 to fund a first-party SNT
- Designed to maintain eligibility for means-tested government benefits like Medicaid or SSI
Q: What can the funds in a Supplemental Needs Trust be used for?
Funds must be used to directly benefit the individual, such as:
- Rent or mortgage payments
- Utilities and household expenses
- Daily living expenses
- Property ownership for the individual’s use
- Any expense that improves their quality of life
Funds cannot be used to benefit someone else, such as paying life insurance for a third party.
Q: Why are Supplemental Needs Trusts important?
SNTs protect assets for individuals with disabilities while allowing them to:
- Stay eligible for government benefits
- Cover expenses that improve their daily life
- Ensure long-term financial security and independence
What is Probate?
VIDEO SUMMARY
Q: What is probate?
Probate is the legal process of validating a will through the Surrogate’s Court. It ensures that the deceased person’s assets are properly collected, managed, and distributed according to their will.
Q: How does the probate process work?
1. File a petition with the Surrogate’s Court and submit a copy of the will. 2. The court reviews and approves the will. 3. The executor is officially named and can begin:
- Collecting assets
- Placing them into an estate account
- Eventually distributing assets to the beneficiaries
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Q: Are there fees for probate?
Yes, the court charges filing fees, which are generally based on the size of the estate. Larger estates incur higher fees.
Q: How long does probate take?
- Average timeline: 8–9 months
- The process includes a 7-month creditor period, during which the executor should not distribute assets. This protects the executor from liability if any creditors come forward.
Q: What can affect the probate timeline?
- Family cooperation: If all parties are cooperative and sign paperwork, the process is smoother.
- Disputes or missing heirs: Conflicts or difficulty locating beneficiaries can delay probate.
Q: Why is it important to follow the creditor period?
Distributing assets before the 7-month creditor period ends could make the executor liable for debts if a creditor claims money is owed. Waiting ensures proper legal protection.
Medicaid at Home vs. Nursing Home in New York
VIDEO SUMMARY
Q: What are the main types of Medicaid for long-term care in New York?
There are two major types:
- Community-Based (Home Care) Medicaid – Provides services so individuals can remain at home while receiving personal care, including help with bathing, eating, and daily activities.
- Institutional (Nursing Home) Medicaid – Covers care in a nursing facility for those who cannot remain at home.
Q: What are the eligibility rules for home care Medicaid?
- Assets can be transferred freely
- No 5-year look-back period
- You can become eligible immediately for services
- Includes assisted living (Help Level 3) as an alternative if home care isn’t practical
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Q: What are the eligibility rules for nursing home Medicaid?
- Subject to a 5-year look-back for asset transfers and gifts
- Planning ahead is essential to avoid penalties
- Emergency planning is possible, but prior transfers may affect eligibility
Q: Can Medicaid pay for assisted living instead of a nursing home?
Yes. Community-based Medicaid can cover assisted living at Help Level 3, providing a protected, comfortable environment without requiring nursing home placement.
Q: Why is it important to plan ahead?
For nursing home care, planning is critical because the state reviews asset transfers over the past five years. Proper planning ensures eligibility while protecting your assets.