O’Connell & Aronowitz Attorneys at Law
Trusts, Estates, and Elder Law Update Second Quarter 2012
Pictured above are the attorneys of our Trusts, Estates, and Elder Law Department, left to right: Matthew J. Dorsey, Esq. William A. Favreau, Esq. Heidi Dennis, Esq. Fred B. Wander, Esq. Gilbert L. Carey, Esq., CPA Jami Durante Rogowski, Esq. Not pictured: Brittnay McMahon, Esq.
In This Issue:
• An Introduction To Elder Law • What To Do If A Power of Attorney Acts Improperly • Meet Heidi Dennis, Esq. • Our New Shareholder, David Ross, Esq. • Ask the Lawyer: Do I Need A Will? • O&A Events • General Information about O’Connell & Aronowitz
An Introduction To Elder Law
Learn the Basics of Elder Law Planning Many people hear the phrase “elder law” and may not know exactly what it means. The field of elder law addresses myriad issues such as financial planning, estate planning, and health care decision making.
law attorneys can assist in the preparation of Medicaid applications and provide advice regarding the eligibility standards for Medicaid.
Elder law planning also includes many other estate planning techniques, such In terms of health care decision as the use of powers of attorney, wills, making, you should consider planning and trusts. A power of attorney allows for your own incapacity, by deciding you to appoint someone to act in your what decisions you place with regard he field of elder law to financial matwould want made and who you would want to addresses issues such ters. A will is a make them. Your wishes document which as financial planning, can be given effect allows you to through a health care estate planning and health decide how your proxy and living will. In care decision making. property will be a health care proxy, you divided after your choose someone to stand in your shoes death. Trusts are used for many different to make decisions for you if you are not planning purposes such as avoidance of able to do so yourself. The proxy’s role is probate, avoidance of estate tax, to make health care decisions consistent Medicaid eligibility, or general estate with your personal beliefs. A living will planning. sets forth the types of decisions you The experienced attorneys at O’Connell would want your health care proxy to & Aronowitz can assist you in developing make, and can provide guidance an elder law plan tailored to your regarding your desires and beliefs for particular needs. Some techniques are your proxy or others providing care for highly sophisticated and others are you. relatively simple. Either way, we can
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Payments for health care by Medicare and Medicaid are also considered in elder law planning. Medicare is a government program of health coverage for those 65 and older. Medicaid is government program of need-based health coverage based upon strict financial criteria with income and resource limits. Our elder Saratoga Office: 1 Court Street Saratoga Springs, NY 12866 518.584.5205 Fax: 518.584.5441
help you with elder law issues as they arise, and develop a plan that works best for you and your loved ones. Please give us a call at the O’Connell & Aronowitz office closest to you.
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Albany Office: 54 State Street Albany, NY 12207 518.462.5601 Fax: 518.462.2670
Plattsburgh Office: 206 West Bay Plaza Plattsburgh, NY 12901 518.562.0600 Fax: 518.562.0657
New Developments in Trusts, Estates, and Elder Law Estate Planning Strategies to Minimize Tax Exposure Should a Disclaimer Trust be part of your estate plan?
Currently, the federal estate tax exemption is $5,120,000 and the state estate tax exemption is $1,000,000. This means that if someone passes away in 2012 and has an estate in excess of $5,120,000, then his or her estate would have to pay federal estate tax. Similarly, if someone passes away in 2012 and has an estate in excess of $1,000,000, then his or her estate would have to pay state estate tax. While estates in excess of $5,120,000 are somewhat uncommon, estates at or near $1,000,000 are less so.
all of your assets to each other outright, your assets can pass to your surviving spouse, but with the provision that the surviving spouse may disclaim the right to receive some or all of the assets outright.
If a disclaimer trust is used, it is important that the assets destined for the trust be owned in one spouse’s name or the other, because the only assets which can be available to pass into a disclaimer trust are assets in the The portion of the assets disclaimed decedent’s name alone and not assets will then pass into a trust known as a jointly owned by the decedent with disclaimer trust. From the disclaimer another or owned by the decedent trust, the surviving spouse can receive with a named person as a beneficiary. income and potentially some principal Further consultation is needed to at the discretion of the Trustee. The determine the appropriate titling or assets in the disclaimer trust will not beneficiary designations of assets such be included in the estate of the as life insurance policies, retirement If you are married and you and your surviving spouse – therefore avoiding plans, IRAs, or other assets. spouse’s combined estates exceed potential state estate taxes payable by Please contact the estate planning $1,000,000, a special provision should the surviving spouse’s estate. This attorneys at O’Connell & Aronowitz to be considered in your Wills or strategy increases the amount of see if a disclaimer trust should be part Revocable Trusts to reduce your state assets that can transfer within a family, of your estate plan. estate tax liability. Instead of leaving without being reduced by estate taxes.
What To Do If A Power Of Attorney Acts Improperly Practical steps to take to protect yourself and your loved ones
The Power of Attorney relationship involves two parties: a principal who appoints an agent to act on his or her behalf. The decision of whom to choose as an agent is a serious matter and should not be taken lightly. The agent has the ability to handle your financial affairs as if he or she were you – taking money from your bank account, cashing your checks, and even potentially changing beneficiaries on your IRAs or life insurance policies. In the event that you believe your agent or the agent of someone close to you has acted improperly, you should consider contacting one of the following individuals: 1) the monitor, if one was named in the power of attorney; or 2) the co-agent or successor agent named in the power of attorney; or 3) a representative of the local county office of adult protective services. All of these individuals have the legal authority to request from the agent a copy of the power of attorney and records
of the financial transactions undertaken by the agent. In the event the agent fails to produce the power of attorney and/or financial records, any of the individuals named above may take legal action to compel the agent to produce the information. If a review of the power of attorney and financial records reveals that the agent has acted improperly, then a proceeding may be brought by any of the individuals above to revoke the power of attorney. Once revoked, additional legal action may be taken by the principal, or others on his or her behalf, to recover any funds that were misappropriated by the agent. In addition, if the principal is still competent, he or she may revoke the power of attorney at any time. In addition to action by the monitor, co-agent, successor agent, or adult protective services, a guardianship proceeding may also be brought on behalf of an incapacitated principal. This proceeding may seek the revocation of the power of attorney if it is being misused. In our next issue of the newsletter, we’ll cover what is involved in a guardianship proceeding and when it makes sense to file one.
O’Connell & Aronowitz • Attorneys at Law Since 1925 • www.oalaw.com
Meet Heidi Dennis, Esq. Heidi Dennis is a partner in the Plattsburgh office of O’Connell & Aronowitz. She is originally from the Syracuse area, but relocated almost 15 years ago when she began working with the firm. Heidi is a cum laude graduate of Albany Law School, where she was named a member of the Justinian Society for excellence in legal scholarship. She completed her undergraduate degree at Syracuse University at Utica College, earning the Paul F. Brown Award for Outstanding Senior in Political Science. A large part of Heidi’s practice involves handling estate matters, estate planning, Medicaid planning, preparation of wills and trusts, as well as health care proxies, living wills, and powers of attorney. She is also active in the family court and matrimonial practice, representing clients in divorce, custody, child support, and adoption matters. Heidi has also been instrumental in developing the firm’s immigration practice in Plattsburgh. Located less than an hour from the Canadian border makes Plattsburgh an ideal location to assist individuals with immigration issues. Additionally, she routinely handles real estate closings, bankruptcy matters, and civil litigation. One of the aspects of Heidi’s practice that she enjoys is being able to work one on one with clients through various phases of their lives, whether purchasing a home, adopting a child,
planning for the future, or assisting with aging parents. It gives clients continuity in the handling of their important legal matters, and forges a lasting bond of trust, which enhances the attorney client relationship. Community involvement is also important to Heidi. She serves on the Board of Trustees for the Clinton County Historical Association, as well as the Board of Trustees for the Child Care Coordinating Council of the North Country. Heidi serves as a panel member of the New York State Surrogate Decision Making Committee, where she sits with other panel members and hears cases for individuals needing health care determinations, but who lack mental capacity or an agent to make the decisions for them. She also volunteers to speak to local senior citizens at various events throughout the year. Heidi is a member of the Business and Professional Women’s Association, the Clinton County Bar Association, the Women’s Bar Association of the State of New York, the American Immigration Lawyers Association, and the State Bar Association, including the Elder Law and the Trusts and Estates Law sections. She is a past President of the Clinton County Bar Association. Heidi also handles pro bono matters for the local Legal Aid Society. Heidi resides in Chazy, NY with her husband Roger and two children, Caden and Kennedy. She enjoys spending time with her family, traveling, and boating.
O&A Events April 23, 2012: O’Connell & Aronowitz sponsored the Taste of the Capital Region event to benefit the Schenectady Boys & Girls Clubs. Jami Durante Rogowski, Esq. chaired the successful event which raised $28,000. Congratulations to Matthew Dorsey, Esq. who competed as an amateur chef and won best appetizer! May 12, 2012: O’Connell & Aronowitz participated in the American Heart Walk at The Crossings in Albany. The walk was a terrific success. Thank you to David Nardolillo, Esq. for organizing our firm team for this event! April, 2012: Distracted Driving Awareness Month has come and gone, but the presentations were extended through the end of May to continue bringing this important message to our community. O’Connell & Aronowitz attorneys visited schools throughout upstate New York to discuss this dangerous habit, reaching over 1,000 students in our communities. For the latest information regarding our upcoming events, please visit our website, www.oalaw.com, or our Facebook page, www.facebook.com/oalaw
Congratulations... O’Connell & Aronowitz is pleased to announce our newest shareholder, David Ross. A graduate of Albany Law School and a cum laude graduate of the State University of New York at Albany, Mr. Ross practices in the firm’s Health Law and Healthcare Fraud & Abuse practice areas. In his elevated role as Shareholder, Mr. Ross will lead the firm’s newly launched Governmental Investigations Unit focusing on representation of clients facing governmental and law enforcement investigations and prosecutions. He has served as Of Counsel to the firm since 2007.
O’Connell & Aronowitz has been providing a broad range of legal services since 1925, with offices now in Albany, Saratoga Springs, and Plattsburgh. This newsletter is intended to provide general information about our firm and its services in the area of trusts, estates, and elder law. This newsletter is not legal advice and does not create an attorney client relationship with the reader or any other person. Legal advice may be rendered by the attorneys of O’Connell & Aronowitz after consultation and the retaining of our firm. Prior results do not guarantee a similar outcome.
Trusts, Estates, and Elder Law Update
Inside This Issue: • An Introduction to Elder Law • What to do if a Power of Attorney acts improperly Saratoga Office: 1 Court Street Saratoga Springs, NY 12866 518.584.5205 Fax: 518.584.5441
Albany Office: 54 State Street Albany, NY 12207 518.462.5601 Fax: 518.462.2670
Attorney Advertising Plattsburgh Office: 206 West Bay Plaza Plattsburgh, NY 12901 518.562.0600 Fax: 518.562.0657
www.oalaw.com
Ask the Lawyer: Do I Need A Will? A will is a legal document in which a person directs the disposition of his or her property upon his or her death. Do I need a will? If you don’t have a will, the New York laws of descent and distribution determine who will be left your property. These default provisions may leave your property to family members who you may not want to benefit from your estate. Having a will puts you in charge and allows you to determine who receives what from your estate. Can I choose a Guardian for my children in my will? Yes. In fact, if you have minor children, it is very important that you have a will so you can provide who will act as Guardian if you’re not around to take care of your children. Having a will also allows you to set up a trust for their education and other important needs. How does a will become valid? A will must be signed before two witnesses and you must declare the document as your will before those witnesses. After you request them to do so, the witnesses must also sign the will. It is highly recommended that a qualified attorney supervise the signing of your will to ensure it is done properly and the will is therefore valid.
Do I need to keep my will in a safe? At O’Connell & Aronowitz, once your will is signed, we keep the original in our will safe. You will receive a copy of your will, which is marked with the location of the original. What does the Executor do? The Executor sees to the administration of your estate, by hiring an attorney to seek the probate of your will in Surrogate’s Court. Once the Court grants the Executor authority, he or she can work with the estate attorney to ensure your wishes are fully carried out. Can I change my will? Yes. As with the original signing of your will, it is highly recommended that you work with a qualified attorney to ensure the modification of your will is properly done and therefore valid. What if I need a will prepared? If you haven’t executed a will, O’Connell & Aronowitz would be happy to offer you a thirty minute will consultation at no charge. Please contact us at our office nearest to you.