Top 10 Things to Ask your Elder Law Attorney

Speaking with an Elder Law attorney in New York is often nerve- racking, as it’s hard to know what questions you should ask during your initial consultation. To make sure that your best interests are taken care of, you should be asking the following 10 questions during your initial consultation with a New York Elder Law Attorney. 

Questions To Ask An Elder Law Attorney

1. Do I need a Trust or a Will?

Many people have the question of what route best fits them, a trust or a will. A will is a legal document in which the donor (you) allocates where he/she wants their assets placed after their death. A great benefit of a will is that you have the ability to appoint a guardian for your minor children in the case that you pass away at the time that your children have not reached the age of majority. The downside is that when it is time for the will to come into fruition, it must pass through a court proceeding known as probate, that proves the validity of the will. Unfortunately,  probate can take up to 2 years and is very costly as you must hire probate attorneys to file appropriate documents to the Surrogate’s Court.

On the other hand you can also choose to draft a trust. A trust is a document which grants all of your assets to be managed by a trustee. In this document you allocate all of your assets to specific beneficiaries, who receive their share of the trust at the time of your passing. Trusts can help save your loved ones money on taxes, as well as allow them to bypass the probate process, unlike a will. Make sure to consult with your attorney as to which path is right for you.

2. What is better for me, a Revocable or Irrevocable Trust?

When drafting a trust there are numerous different Trusts that each serve their own purpose. A revocable trust is a legal document in which all of your assets are allocated to specific beneficiaries who then receive them at the time of your passing. Drafting a revocable trust in New York gives the trustee of a trust the ability to make amendments. Amendments can be made when the trustee needs to add or replace specific individuals in the trust document.  This means you can reallocate assets, add beneficiaries,etc. In an Irrevocable Trust, you are allocating assets to beneficiaries for them to be received upon your death, but you can not alter this legal document. The benefit of an Irrevocable trust is that with an irrevocable trust, your assets are given their own “social security” number. This allows for your assets to no longer be considered yours and is a legal way of hiding your assets which may grant you eligibility for government assistance programs like Medicaid, protect your assets from creditors, save you money on taxes along with many other great benefits. When drafting a trust make sure to consult your attorney for their advice as to which trust is right for you.

3. My mother has Dementia, can she sign estate planning documents?

In short, the answer to this question depends on the degree to which her dementia progressed. If the person in question is competent and in the right state of mind when signing the documents, then it is allowed by the courts and deemed a valid signing and agreement. By asking your attorney this question they will be able to discuss the level of capacity, as well as the other requirements needed in order for the signature of your loved one to be valid. 

4. What is a NY Durable Power of Attorney and do I need to sign it now?

A Durable Power of Attorney is a document that allows you or a loved one to appoint a representative (agent) on your behalf to make any decisions regarding your finances. A Durable Power of Attorney must be signed in the presence of a Notary Public and two witnesses to be properly executed. It’s important to execute this document now rather than later because your agent can execute documents such as a trust for you in the future if you don’t have the capacity to sign documents for yourself. 

5. What documents are included in my estate plan? 

When meeting with your elder law attorney it is important to know which legal documents you need. This is even more important in the case of your loved one having dementia in order to assure that the best interests of your loved one are ensured. 

The first document that is essential is a client specific, Durable Power of Attorney with long term care planning provisions

Next, you will need to ensure that you have health care directives, which refers to the Health Care Proxy/Living Will document.. Appointing a health care designation will allow an individual of your choosing to make medical decisions on your behalf in the case that you become incapacitated or are to make these decisions for yourself. A health care proxy does not state all your healthcare wishes, but instead states the powers the agent has, so it’s important to discuss what your long-term health care wishes are with the person you appoint as your proxy.

A Last Will and Testament will be one of your core estate planning documents which states the detailed and finalized last wishes of the client.

You may also need a trust agreement as it can serve your best interests, and take the place of a will. 

When speaking to an attorney make sure to ask them about each of these documents for a  more in depth description in order to see which path best suits you when going about your estate plan.

6. What does a successor or co-agent mean?

A successor in regards to estate planning is an individual who can rightfully inherit or manage the estate in the case that the initial beneficiary, executor, trustee, etc. is not alive or is unable to act. A beneficiary is an individual who has the right to inherit the estate. The executor of a will or a trustee of a trust are tasked with distributing all the assets to the beneficiaries upon the death of the individual who created the said documents. If an individual appoints a successor beneficiary or successor trustee/executor, those people can only act if the initial people listed can not act. 

A co-agent concerns Power of Attorney and Health Care Proxy documents. An agent is someone who is appointed by the creator of these documents (principal) to represent their best interests in regards to the health or finances if they are unable to do so for themselves. However, when two agents are appointed to represent the best interest of the principal, the co-agents must work together and cannot make decisions on their own.

Although many of these documents have a plan in place for such circumstances, meaning if option A can not act then there is an option B,C,D so on and so forth, the outcome of such a plan is often confusing and hectic for all. This is due to the fact that before option B can act and make decisions on the behalf of the estate it must be proved that option A is incompetent or deceased. This delays all decisions that must be made and in the case of a medical decision, such decisions must be made in a timely fashion. 

There are ways to use Co-Agents more effectively through the use of Co-Trustees,Co-Power of Attorney, etc. Discuss such options with your attorney. 

7. Do I need an Irrevocable Trust?

An Irrevocable Trust is a legal document which provides for a swift transfer of property from you to your heirs after a person's passing, while avoiding the normal proceeding of probate which can take up to two years. Also, an Irrevocable Trust can act as a great asset protection tool as a separate Tax ID is created for your trust. This action allows your assets to stay protected against creditors. Ask your attorney if an Irrevocable trust is right for you. 

8. Do I need Asset Protection?

The cost of long term care is often the greatest threat to the financial security of people who are 50 years or older. Most people do not think about their, sometimes inevitable, need for long-term care but, the costs associated with long term care often is the demise of any accumulated financial security people may have. There are legal alternatives to protect your assets from being used in paying for your care, and by consulting your attorney and weighing your options you can save yourself the difficulties of planning your health care once it is already too late. 

9. What should I do with my original legal documents? 

In order to ensure the safety of the original documents, it is recommended for them to be kept in a water and fire resistant safe. The safe should also be accessible to your children and or other trusted agents. Although copies are usually valid and accepted, it is best to make sure the original documents are safe as some parties may not accept copies. 

10. How can I protect myself from nursing home costs? 

A major benefit to creating an estate plan is that it allows you to legally “hide” your assets. The document that provides for this is called an “Irrevocable Trust.” Essentially, an irrevocable trust moves your assets into the possession of a trustee who takes care of your assets and is responsible for distributing them to your allocated beneficiaries after your passing. By drafting an irrevocable trust, your assets can not be taken by creditors which essentially allows for your assets to be protected from the costs associated with nursing homes, as well as other long-term care facilities. 

Hire An Attorney:

If you or a loved one need help creating an estate plan, contact the Law Office Of Inna Fershteyn. Attorney Inna Fershteyn is a great estate planning attorney with over 22 years of experience. For many years, Inna has helped clients draft, and sign all types of trusts without ever putting anyone’s safety at risk. If you need help executing a revocable or irrevocable trust, call (718) 333-2394 to set up an estate planning consultation.