Archive for the ‘Guardianships’ Category

Raskin & Makofsky | Experts in Elder Law, Estate Planning, Medicaid and More

Here at Raskin & Makofsky we are experts in the field of elder law. Serving the Long Island area we care about helping you with Medicaid, estate planning, wills, trust, asset protection and more. Whether you are helping an elderly loved one or getting your own affairs in order at Raskin & Makofsky we have the expertise and experience you need.

HEALTH CARE AGENTS, NOT AMBULANCE DRIVERS, SHOULD DECIDE PATIENTS’ HOSPITAL CHOICE

Many New Yorkers have signed health care proxy statements that designate a relative or friend as an agent to make medical decisions for them if they are unable to communicate. Surprisingly, due to a recent court ruling, their agent may be prohibited from directing an ambulance driver to their preferred hospital.
A federal court decision (Stein v. County of Nassau, et al.) concerning an incident that occurred on Long Island held that – when outside of a hospital or other medical institution- a health care agent does not have the authority to direct where a patient is transported. In fact, the court said that state law requires that the agent must first consult a medical professional to confirm that the patient lacks capacity.
Shortly following the filing of the lawsuit, the plaintiff contacted Ellen Makofsky, who has authored numerous articles about health care proxies. Ellen was very sympathetic to plaintiff Stein who was denied the right to direct her husband’s ambulance driver to the hospital where her husband was previously treated and where the doctors were familiar with his medical history, because no doctor had opined that her unconscious husband patient lacked capacity. It was an outrageous situation.
Ellen Makofsky urged the Elder Law Section of the New York Bar Association to take action so that the wishes of an unconscious patient could be respected. With the help of others, Ellen drafted a proposed amendment to the health care proxy law. The proposed amendment permits an individual designated as a health care agent to make decisions about transporting a patient to a particular hospital, mental hygiene facility or residential health care facility when the patient is unconscious or unresponsive without a certification of incapacity. The proposed amendment does not apply in cases involving major medical trauma when a patient requires immediate medical treatment.
The New York State Bar and other legal groups urged passage of the proposed amendment and in June 2012 the bill passed in both the New York State Assembly and Senate (A-8389 and S-5014-A). The bill currently awaits Governor Cuomo’s signature and then officially becomes the new law. It is a wonderful outcome derived from a difficult situation.

Does Your Power of Attorney Provide for Creation of Pooled Trusts?

There may come a time when you are seeking to apply to the Medicaid program to provide an aide at home. If you are eligible and have income over the Medicaid income allowance ($787 in 2010) Medicaid will direct that you pay your excess income to the agency providing the aide.  However, you have a there may come a time when you are seeking to apply to the Medicaid program to provide an aide at home. You have a much better alternative: to open a pooled trust account with a non-profit trust company. The pooled trust will receive your excess income, charge a reasonable fee, and pay your bills with the excess income.

The problem we have seen occurs when the person needing the home care services is no longer capable of entering into legal transactions and cannot set up the pooled trust. In that case the agent under the Power of Attorney can do so if the document specifically gives the agent the authority to create and fund trusts. If the authority has not been given, the next option would be to start a guardianship proceeding to allow for the trust to be set up. This is a costly and time consuming effort.

If your agent does not have the authority specifically stated to create and fund trusts you may want to consider revising your Power of Attorney, a much better alternative: to open a pooled trust account with a non-profit trust company. The pooled trust will receive your excess income, charge a reasonable fee, and pay your bills with the excess income.

The problem we have seen occurs when the person needing the home care services is no longer capable of entering into legal transactions and cannot set up the pooled trust. In that case the agent under the Power of Attorney can do so if the document specifically gives the agent the authority to create and fund trusts. If the authority has not been given, the next option would be to start a guardianship proceeding to allow for the trust to be set up. This is a costly and time consuming effort.

If your agent does not have the authority specifically stated to create and fund trusts you may want to consider revising your Power of Attorney.

NY SUPERLAWYER

I am honored to have been selected as a 2010 New York Superlawyer in the area of elder law.  There are only 28 other elder law attorneys designated as New York Superlawyers this year.  Ellen Makofsky has also been named as a New York Superlawyer. It is satisfying to know that our time and effort and commitment to our work and our clients is recognized.

Mediation

At a recent networking event I met a woman who is an attorney and licensed social worker. She currently provides mediation services for couples seeking a divorce. She is considering using the benefits of mediation in elder law matters. I think that such a service might be very valuable in matters such as contested guardianships, family issues in estate planning matters, disagreements over medicaid planning strategies, conflicts when 2 agents under a power of attorney, executors under a will or trustees of a trust must act together and cannot agree.

Family Health Care Decisions Act

Legislation was recently enacted to expand the possibilities for surrogate health care decision-making in New York State. The Family Health Care Decisions Act (FHCDA) allows family members or other persons close to a patient (health care surrogates) to make medical decisions for a loved one even if that person has not signed a Health Care Proxy.  While the Health Care Proxy has been available since 1991, allowing for appointment of a health care agent to make medical decisions for us, many residents have failed to execute Health Care Proxies. The FHCDA is helpful because it provides for the appointment of an agent to make medical decisions in the event someone is unable to make these decisions and has not executed a Health Care Proxy.