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New York Elder Law Questions & Answers

1 Answer | Asked in Elder Law for New York on

Q: If disabled brother doesn't get $86k inheritance until age 65, is there a way to protect the money from Medicaid?

I am executor. Brother has cancer and turns 65 in 2 months. I understand a trust can be used before 65. After that, Medicaid is secondary insurance to Medicare. Brother is not in long term care. He gets retirement social security income. Does he potentially lose less to Medicaid once he is on... Read more »

Benjamin Z. Katz answered on Aug 24, 2019

It is better to be on Medicare to minimize expenses. Once he receives his inheritance, he may not qualify for Medicaid coverage, if he current qualifies, without spending down first. However, there are planning techniques to protect a portion of the money if he needs to spend down.

3 Answers | Asked in Estate Planning, Tax Law, Elder Law and Probate for New York on

Q: The IRS sent a notice of unclaimed 2017 refund + demand to file 2018 for a now dead person. Do I still need to file?

I'm the executor of Mother's estate + not in good shape to tackle this or pay to have it done. She died on Nov 4, 2018. I would say it's very unlikely she'd owed taxes, considering expenses from her long illness from Mar 2018 till her Nov 2018 death; all her MDW's were made on IRA's, etc. and she... Read more »

D. Mathew Blackburn answered on Aug 12, 2019

You should file 2018 and mark deceased and put the date of death. Without a deceased return the IRS can't know she died.

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1 Answer | Asked in Elder Law for New York on

Q: Is a POA and Health Care Proxy enough to make decisions for someone who has been diagnosed with Alzheimer's?

I have an Aunt that is 83 years old that lives in NY. I live in Georgia. In 2013, when she was of sound mind, she had a NY attorney prepare a POA regarding all her finances, etc. and a Health Care Proxy. She signed and I signed.

Now she has been diagnosed with Alzheimer's. As such she... Read more »

Benjamin Z. Katz answered on Aug 4, 2019

The short answer is yes. A durable POA gives you power over her finances and the Health Care Proxy over her medical decisions. However, if her condition is not apparent to a vendor or health care provider and she is expressing resistance to your decisions, you may have problems. You may have to... Read more »

1 Answer | Asked in Consumer Law and Elder Law for New York on

Q: Need some legal advice in how to handle a debt collector that has put a hold on a bank account medical bill

Michael David Siegel answered on Jun 20, 2019

Depends on the amount, the county, and whether you really owe it.

1 Answer | Asked in Family Law and Elder Law for New York on

Q: My sister won't let me have contact with senior dad despite him wanting so. What court should I go to?

My dad came to visit her about a year ago, she has been holding him since. she has cut off all communication, and won't let us see each other.

Benjamin Z. Katz answered on Jun 16, 2019

If you believe that your father is being held against his will and is in immediate danger, you should call the police. If not in danger but potentially being neglected or otherwise mistreated Adult Protective Services has offices in each county and may be contacted.

If you believe neither...
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2 Answers | Asked in Estate Planning, Real Estate Law, Elder Law and Municipal Law for New York on

Q: My husband's mother passed away and did not have a will. What will happen to her home? There is no mortgage owed.

The home is located in San Juan, PR. If there is no will, can my husband legally inherit the home? Or will it have to be sold? What happens then?

Elaine Shay answered on Jun 4, 2019

If your mother-in-law passed away while residing in New York State, your husband should be eligible to commence a proceeding to Surrogate's Court called an Administration. The share of the Estate your husband would be entitled to would depend upon whether his mother was married at the time that... Read more »

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1 Answer | Asked in Contracts, Estate Planning and Elder Law for New York on

Q: Can a daughter of a pastors wife obtain a church with a durable power of attorney in New York?

The pastor died which was her dad and her mom

Is blind. She is trying to get a power of attorney to get the church which was in her dad’s name.

Michael David Siegel answered on Mar 14, 2019

No. If the church was a duly formed religious corporation, the bylaws of the corporation govern what happens to its assets.

1 Answer | Asked in Estate Planning, Elder Law and Social Security for New York on

Q: I am a disabled man on SSI. I am on Medicaid. I'm in rehab for a stroke in 5/18 I received a small inheritance

The inheritance is $3636.00. I am due to get out of Northeast Center early 3/19 in a Medicaid program called TBI Waiver. Med resource is under $2,000, SSI would be problematic and I haven't called them, I received the check today. I want to do the right thing to do, I don't speak well on the... Read more »

Michael David Siegel answered on Feb 21, 2019

While technically this should be declared to Medicaid, it is too modest a sum for anyone to chase after you. Just deposit the check.

1 Answer | Asked in Family Law and Elder Law for New York on

Q: I have a court date soon regarding order of protection I filed against mygranddaughter. Can court appoint lawyer for me

Do i need to have a lawyer when i go to hearing for order of protection I filed against granddaughter. Can court provide a lawyer for me?

Ali Shahrestani, Esq. answered on Feb 4, 2019

Courts don't appoint family law attorneys in such cases. Some NY legal aid societies may be able to help you find a cost effective or pro bono lawyer in restraining order matters. You may consider hiring an attorney, and limited scope representation may be a good choice if you're on a budget. More... Read more »

2 Answers | Asked in Tax Law and Elder Law for New York on

Q: Hello. Does a person in a long term care inpatient facility in NY have to pay taxes? SS, 401K, pension?

Does the person admitted to long term care inpatient have to pay taxes on their pension, Social security, $401K can those taxes stop being withheld? She was admitted in June. Is she responsible for tax payment from Jan to June? Is she exempt from June to the present?

Chad Silver answered on Nov 16, 2018

The only legal tool to stop collection activity would be to have an Tax Attorney negotiate a hardship status with the IRS. Just because she was admitted to a long term inpatient care facility does not negate the legal duty to pay taxes. However, there are a number of avenues available to prevent... Read more »

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1 Answer | Asked in Elder Law, Consumer Law and Real Estate Law for New York on

Q: My elderly mother is threatened with an eviction from her Appartment while she is at a Nursing Home for 17 Months.

The landlord has not been commenting to my requests about getting 1 Shot Deal to collect the rent owed.

And suddenly he sends an eviction notice with a court date.

She needs the appartment very much,as ahe is intending to come back home to live.

Wish to postpone the Court... Read more »

Michael David Siegel answered on Aug 25, 2018

Just saw this now. This is a tough case. You are going to have to prove she is able to return.

1 Answer | Asked in Civil Litigation and Elder Law for New York on

Q: My mom inherited 1/2 of a house in 2008.

My mom, and her nephew inherited a house in 2008, mom died in 2015. Recently, I found out that my moms' nephew sold the home April 2018, without my dads knowledge. Isn't my dad still entitled to her half of the proceeds from the sale, even if my mom is deceased. As of today her nephew has moved on... Read more »

Michael David Siegel answered on Aug 25, 2018

It depends on how the deed was drawn. If it was with right of survivorship between the two then no. If tenants in common, then you are right. Look at the deed and see how it was done.

1 Answer | Asked in Elder Law for New York on

Q: My grandma has dementia but refuses to sign over power of attorney to me, her son. Can I petition a court to grant me

POA without her consent?

Stefan Dunkelgrun answered on Aug 7, 2018

Yes, you absolutely can petition the court. It would be a guardianship hearing, and you will be required to prove that she is not capable of making her own decisions.

Keep in mind that the legal standard for capacity varies from state to state, and can be quite difficult to prove. The...
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1 Answer | Asked in Family Law, Real Estate Law and Elder Law for New York on

Q: My mom lives with my sister and her finance. She is 86 years old still in her right mind. Her finance posted signs so I

cant go on his property because I turned him in a few months ago because he left his son's dog outside in 40 below weather. He's been mad ever since and my sister is not talking to me anymore. My mom calls me but I am not allowed to call there or go on his property. Do I have any rights? I really... Read more »

Michael David Siegel answered on Mar 29, 2018

Call your county adult protective services. They can get you in.

1 Answer | Asked in Estate Planning and Elder Law for New York on

Q: I thought a judge needs to sign off on selling personal property under a guardianship. Items also are part of a legacy.

Inquiry pertains to a PING. The items to be sold are to be left to family members in the will.

Inna Fershteyn answered on Feb 11, 2018

I think you already asked this question in different way. What type of guardianship is this? Of a minor or property?

I am not sure I understand what “part of a legacy” is

Sincerely,

Inna Fershteyn

Law Office of Inna Fershteyn and Associates, P.C.

1517...
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1 Answer | Asked in Elder Law for New York on

Q: relative has a guardian who is selling his real property in NY.Can the guardian sell his personal property w/o approval

I thought court approval for personal property was required

Inna Fershteyn answered on Feb 11, 2018

If he is a guardian of person and Property than the answer is yes.

Sincerely,

Inna Fershteyn

Law Office of Inna Fershteyn and Associates, P.C.

1517 Voorhies Ave, Suite 400

Brooklyn, NY 11235

tel: 718-333-2394

fax: 718-701-8859...
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2 Answers | Asked in Estate Planning and Elder Law for New York on

Q: My sister POA of my Mom's affairs. Mom is currently 95 and in assisted living. We need to get a loan on the house Mom

own's. So we can renovate and rent the two family and pay for assisted living. Mom is only one on deed. House is in trust of myself and sister. Sister has bad credit. I am one who needs to borrow on that property and get renovations done. Is it possible for me to do this?

Kenneth V Zichi answered on Feb 1, 2018

Hard to say for sure as you're using terms that have specific and contradictory legal meanings. Does your mom own the house or is it in a 'trust'?

Why should your PERSONAL credit ratings matter? If your mom owns the house and the loan is for her, HER credit rating matters. Getting a loan...
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1 Answer | Asked in Real Estate Law, Elder Law, Estate Planning and Probate for New York on

Q: I'm a FT caretaker of my ill parents. I have lived in house for 5 years. Do I have any claim on it?

I'm in NYS. I do own a vacation home as well, no mortgage on either.

Michael David Siegel answered on Jan 23, 2018

You have no claim as a result of being a caretaker.

1 Answer | Asked in Real Estate Law and Elder Law for New York on

Q: my mom had a stroke my sister is power of attorney my father wants to sell house half the house is in my mom's name

the other half my father's name can they do this without mom's permission she has a lot of unpaid medical bills

Michael David Siegel answered on Jan 22, 2018

Yes. That is point of POA. To act when person cannot.

1 Answer | Asked in Elder Law for New York on

Q: mom needs long term care only get $607 SSI owns half of a house with husband who has lived apart 27 yrs. Taxes will not

taxes on home won't be paid if the home is sold will mom be taken care of by Medicaid? or should we just let the rehab nursing home put a lien on home.House is paid just property tax just my sister is their for now has nowhere to go

Inna Fershteyn answered on Jan 22, 2018

How much is this house worth? WE can put it in Irrevocable trust and save it.

Sincerely,

Inna Fershteyn

Law Office of Inna Fershteyn and Associates, P.C.

1517 Voorhies Ave, Suite 400

Brooklyn, NY 1123

tel: 718-333-2394

fax: 718-701-8859...
Read more »

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