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New York Elder Law Questions & Answers
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...
Read more »

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, inflamed... 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 on IRA's, etc. and she... 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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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
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
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
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
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
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
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.
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
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
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
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.

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