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New York Elder Law Questions & Answers
1 Answer | Asked in Real Estate Law, Elder Law, Estate Planning and Probate for New York on
Q: Daughter has POA for mom, brother has letter of administration for same property. How do we sell home in NYC?

If we do find a buyer, are 2 different checks cut...one in my decease dad’s name and one in my living mother’s name? Please reply only if you are familiar with NY state laws. My POA is for my mom who is still living. The letter of administration is for my deceased father.

Vincent Gallo
Vincent Gallo answered on Oct 17, 2020

A power of attorney ceases to have any effect upon the death of the person granting the power of attorney.

2 Answers | Asked in Elder Law and Probate for New York on
Q: In NY state is a durable power of attorney that has been signed by two witnesses but not notarized valid?

The Principal is currently incapacitated. Principal and agent signed and 2 witnesses signed.

Michael David Siegel
Michael David Siegel answered on Sep 30, 2020

No. The form must be completed as required.

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1 Answer | Asked in Elder Law, Health Care Law and Landlord - Tenant for New York on
Q: When an adult relative moves into my rent-stabilized unit, what do I say if the landlord asks how long they'll be here?

I'm an age 72 disabled senior who has lived in my rent-stabilized apartment In NYC for over 30 years. Before Covid, I rented my second bedroom to college students from Japan to defray my monthly expenses. I have built up rent arrears this year because I've not been able to rent to foreign... Read more »

Elaine Shay
Elaine Shay answered on Sep 15, 2020

The landlord appears to have no basis to ask you how long your new housemate may be staying with you. In NYC you are entitled to have a roommate even without your landlord's permission. Although the landlord may have inquired because of the Covid-19 crisis, it is perhaps even more likely you... Read more »

1 Answer | Asked in Elder Law for New York on
Q: My father is in a long term rehabilitation center and we have applied for medicaid for only him and not my mom.

How do we protect their house? Do we put the house under my moms name only? Thank you.

Benjamin Z. Katz
Benjamin Z. Katz answered on Aug 8, 2020

Now that you have applied for Medicaid your options are limited. You should speak with a Medicaid Planning attorney as soon as possible.

2 Answers | Asked in Divorce and Elder Law for New York on
Q: Need assistance on Filing A Nullity of Marriage. How do I start?

I was Married 05/20/2000

My Husband didn't divorce

His first wife until 2008. This was 8 years after we are together. He left me in February 2007. My Marriage is not valid, and I need it nullified.

He had a stroke last year, and I went back to assist him, because no... Read more »

Benjamin Z. Katz
Benjamin Z. Katz answered on Aug 7, 2020

As long as you have all the documentation to support that he was still married when you entered into the marriage contract, you will be able to get it annulled. You must start an action in court and should have an attorney assist you. Matrimonial/Divorce attorneys and Estate Planning attorneys,... Read more »

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1 Answer | Asked in Elder Law for New York on
Q: How does NY State intestate laws if only asset is a home and spouse and children are living?

Dad has been dead many years. 3 kids, mom still living. Only asset is one house in NYC. How much does mom get if we sell home after intestate is completed by the court?

Benjamin Z. Katz
Benjamin Z. Katz answered on Aug 2, 2020

The laws of the state where Dad was last a resident will apply. If he was a resident of New York and died without a Will, assets are split 50% to surviving spouse and the other 50% to surviving children.

3 Answers | Asked in Estate Planning, Elder Law and Probate for New York on
Q: My deceased aunt left a Will. If I submit a Petition to Surrogate Court will I be able to access her banking info?

I live in Georgia and she lived in New York. I am the Executor of the will if appointed voluntary administrator is that all I need to carry out duties as Executor and will I be able to access banking info and have access to her apartment.

Michael David Siegel
Michael David Siegel answered on Jul 16, 2020

Yes, you will.

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1 Answer | Asked in Elder Law for New York on
Q: Can a nursing home in NYS take a medicaid patient's stimulus check?

The check is made out to the nursing home, for the patient's care. The check came to us (power of attorney). Can we insist it be applied to her personal account, or can the nursing home take it just as they take most of her Social Security to pay for her care?

Sharon M. Siegel
Sharon M. Siegel answered on Jun 5, 2020

If you want to apply it to the patient's care, this is allowed. However, a facility cannot just take the check without your permission.

1 Answer | Asked in Elder Law and Landlord - Tenant for New York on
Q: I lost my place of residence as well as all my possessions in a fire. I was renting from my employer.

Am I entitled to any compensation ? I cannot work at this time.

Tim Akpinar
Tim Akpinar answered on Mar 11, 2020

I'm sorry for your difficult situation. A landlord-tenant attorney could advise best here, but your post remains open for three weeks. At this point, you have probably already explored whether there was an insurance policy in effect to cover for the fire loss. If not, that is something to do... Read more »

1 Answer | Asked in Arbitration / Mediation Law, Elder Law and Probate for New York on
Q: My mother lives in Florida, my brother in Virginia and I live in NY. When mom lived in NY I was herPOA and co executor

Long story short she moved to Fl to be closer to my brother ( he lived there at the time) and for the weather. Moms health isn’t always the best. He took a job and moved to VA about 2 years later. He handed he major investments, he did some foolish things with her money, “ he “bailed”her... Read more »

Nina Whitehurst
Nina Whitehurst answered on Mar 4, 2020

Start by reporting the suspected financial abuse of an elder to the Adult Protective Services agency closest to your mother.

Beyond that, you will need to find a fiduciary litigation attorney to sue your brother to have him removed as your mother's attorney in fact and to return the...
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1 Answer | Asked in Elder Law for New York on
Q: My adult son is intellectually disabled.Can I continue to get him medical treatment in NY without becoming his guardian?

From my understanding he is presumed to be capable of providing informed consent. It also looks like if it was ever determined that he can't provide informed consent, I would still be able to take him to doctor visits as per FHCDA or OPWDD law. Also, he lives with me and is 29.

Benjamin Z. Katz
Benjamin Z. Katz answered on Feb 1, 2020

It will depend upon the type and extent of his disability. If he is capable, he should sign a health care proxy. If he is incapable of making decisions for himself you should apply for Guardianship.

1 Answer | Asked in Elder Law and Health Care Law for New York on
Q: CDPAP, if PA's are independent contractors, why do FI's withhold taxes? CDPAPvs. Zucker,10/11/19, what was decided?

In the matter of CDPAPvs. Zucker,10/11/19

in layman's terms, what was decided?

Does this decision affect the status of the PA as an independent contractor vs. an employee?

Benjamin Z. Katz
Benjamin Z. Katz answered on Jan 14, 2020

The court found that the Department of Health did not follow proper procedure in changing the way FIs are paid for services provided under CDPAP. Because they didn’t, the change was voided and they had to go back to the reimbursement method prior to 7/1/19.

This had nothing to do with...
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4 Answers | Asked in Estate Planning, Elder Law and Probate for New York on
Q: What can I do (or my Mom) to regain control over family’s estate, after my brother used my mom’s power of attorney to

change all legal documentation, making himself a sole owner of all the houses, trusts, insurance policies, LLC’s, etc. He stole over $15 mil while my mom is still alive.

Benjamin Z. Katz
Benjamin Z. Katz answered on Jan 6, 2020

Your mom can sue him for breach of fiduciary duty, self dealing and fraud and void the transactions. However, I would need to know more to properly advise you. In any case, you and your mom should speak with an attorney.

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1 Answer | Asked in Divorce and Elder Law for New York on
Q: I Live in NY and I am going through a divorce. I am totally handicapped and have no financial help from my spouse.

My lawyer states he cannot grasp the idea of my being handicapped because I am not in a wheelchair. He has not help me get any financial support thru the courts in one year. I am 66 years old. What can I do to be correctly represented as a handicapped person in my divorce?

Lawrence Allen Weinreich
Lawrence Allen Weinreich answered on Nov 24, 2019

It sounds as if you need to consult another attorney to see what they say about the facts of your case and depending on those facts you may need to switch attorneys.

1 Answer | Asked in Elder Law for New York on
Q: Is it legal for a son to acquire a Reverse mortgage while mom in a nursing home? Two names on deed.

Two sisters on deed. Both with dementia. One placed in nursing home after stroke now deceased. Other sister in nursing home when other got sick. Son of deceased had her sign a reverse mortgage and received a large sum of money. Does the other sister still have rights to home as tenants in common? I... Read more »

Benjamin Z. Katz
Benjamin Z. Katz answered on Oct 21, 2019

You should consult an attorney to determine the surviving sister’s rights. Your instincts may be right. But all the facts should be reviewed before a legal conclusion can be made and the proper action taken.

2 Answers | Asked in Elder Law and Consumer Law for New York on
Q: Nursing Home is suing for Medicaid sanction, plus more.

I’m POA and we are both named in a summons Of over $110,000 that we need to reply to on Monday or receive a default judgement against us.

Michael David Siegel
Michael David Siegel answered on Oct 19, 2019

You need an attorney for this. This could be a big problem. I cannot tell you how it will turn out without seeing documents. Show up and ask for more time to get a lawyer.

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1 Answer | Asked in Elder Law, Health Care Law and Nursing Home Abuse for New York on
Q: My 85 year old Grandmother is in a nursing home do to mental illness. She is now refusing any and all care. Need advice

My grandmother has been diagnosed with dementia. For the last 6 months she has been refusing to take her medication, which then brings out the very worst in her. Paranoia takes over she picks at her skin to remove probes that control her. It's now to the point where her legs are swollen,... Read more »

Benjamin Z. Katz
Benjamin Z. Katz answered on Sep 12, 2019

If you believe she is incapable of making decisions for herself you can use the health care proxy. If the medical facility refuses to recognize it or believe she is still competent to make these decisions you will need to have the courts intervene. Generally, it is done by seeking Guardianship of... Read more »

2 Answers | Asked in Estate Planning, Real Estate Law and Elder Law for New York on
Q: My elderly father owns a property with my brother as joint tenants but he would like to leave my sister and I his share.

Could he sever the joint tenancy without my brother’s permission and change it to tenants in common? Also would he need a living trust to avoid probate and to designate my sister and I as his beneficiaries? Would that avoid due on sale clause since its a living trust? He and my brother are on... Read more »

Nina Whitehurst
Nina Whitehurst answered on Sep 5, 2019

I do not speak Cantonese but the answers to your other questions are yes, these things can be done. However, they are not do it yourself projects. You are well advised to hire an attorney to assist you with this

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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
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... Read more »

D. Mathew Blackburn
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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