Frequently Asked Questions on Eldercare and Estate Planning

What is Elder Law?

The practice of Elder Law encompasses a wide range of legal issues unique to seniors. It includes traditional estate planning services such as drafting Wills, Trusts, Health Care Proxies and Powers of Attorney. It also includes financial planning to protect one’s assets and to pay for the ever-rising cost of long-term health care. This latter type of asset protection planning may include drafting documents such as a Deed with Retained Life Use, Irrevocable Trusts, Personal Service Contracts, Promissory Notes and other documents depending on each person’s unique personal and financial situation.

Elder Law also includes advocating for seniors in hospital, nursing home and/or assisted living facility settings, completing applications for Medicaid and counseling on issues of financial abuse of the elderly. Kathleen also has experience in coordinating housing, medical and social issues with financial advisors, long-term care insurance professionals and geriatric care professionals for clients and their families.

What Happens If You Die Without a Will?

A Will is the most basic estate planning document.  It is a legally binding declaration of who will receive your property upon your death.  If you are a New York resident and you die without a Will, New York’s laws of descent and distribution will determine who receives your assets by default. This may not reflect your wishes.

 For example, if you are married and have children, you may assume that your surviving spouse will receive all of the assets in your estate if you die without a Will.   In New York that is not the case.  Your spouse would receive $50,000 and one-half of the balance of your assets.  Your children would receive the remaining one-half of your assets.

The above scenario most likely does not reflect your wishes (most people choose to have their surviving spouse inherit all of their assets).   Having a Will allows you to decide on the beneficiary of your property, whether family members, friends or charitable organizations.   It also allows you to select an Executor of your Estate and designate Guardians for your minor children.

A Will does not control the distribution of certain types of assets, called non-probate assets, such as life insurance and retirement plan assets.   Non-probate assets pass directly to the named beneficiaries according to the beneficiary designation in the life insurance contract or retirement plan.

What is a Revocable Living Trust?

There are many types of trusts for many different purposes. The Revocable Living Trust is a trust which:

  1. You create and fund during your lifetime
  2.  Allows you to amend or revoke during your lifetime; and
  3.  Allows you to act as both the Trustee and the beneficiary of the Trust.  

In the typical Revocable Living Trust, you have full use and enjoyment of the trust property during your lifetime. As the Trustee of the Trust, you will have complete control over the trust property, including the ability to perform the daily management of the Trust.

 The Revocable Living Trust owns the assets which you transfer to it. The Trustee (you) distributes the income earned by the Trust assets, and as much of the principal of the Trust as you need, to you in your complete discretion. Upon your death, your remaining Trust assets are distributed to the beneficiaries by the designated Successor Trustee.

 There are three advantages of the Revocable Living Trust over a Will. First, the assets in the Trust do not pass through the probate process. Probate is a judicial proceeding in which your Will is approved as valid and your assets are transferred to your heirs. This means that your estate is subject to probate filing fees, legal fees, public view and a potential Will contest. By using a Revocable Living Trust, the probate process can be avoided.

The second main advantage to using a Revocable Living Trust is the ability to avoid a Court appointed guardian of your assets if you become incapacitated.   The Successor Trustee of your Revocable Living Trust (whom you designate) can manage the Trust property for the benefit of you and your family without the need for a Court intervention to appoint a Guardian for you.

The third main advantage of using a Revocable Living Trust is privacy. Unlike a Will which is a public document once it is probated, a Revocable Living Trust is not filed with Surrogate’s Court and its terms remain private.

Why is it Important to Have a Power of Attorney?

The Power of Attorney is an important part of lifetime estate planning. In a Power of Attorney, you appoint one or more persons (known as your “agent”) to act on your behalf for property and financial matters. A Power of Attorney may be limited to a particular action (such as a real estate closing), or it may be general, empowering your agent to act on your behalf in a variety of situations.

The most important reason for having a Power of Attorney is to have someone who can manage your property and financial affairs if you become unable to manage your own affairs due to illness or injury. If you appoint an agent while you are competent, you can choose someone you trust to handle your financial affairs. If you become incapacitated and have not appointed an agent under a valid Power of Attorney, it will be necessary for a Court to appoint a guardian to make financial decisions for you. A guardianship proceeding is costly and you will have little or no control over the selection of the guardian.

Who should you appoint as your agent under a Power of Attorney? Your agent should be someone you trust and whom you believe will manage your financial matters in your best interests. Most people designate their spouse or one or more children as agent. Others may choose a close friend or a lawyer, accountant or other professional. You should also consider appointing an alternate agent to act if the primary agent is unable to act for any reason.

Your agent has a legal duty under New York law to act for your benefit and in your best interests in all transactions performed under the Power of Attorney. You may revoke a Power of Attorney at any time by notifying your agent in writing.

What are the Benefits of a Health Care Proxy/Living Will?

The purpose of a Health Care Proxy and Living Will is to allow you to express your wishes concerning medical treatment in end of life situations and to appoint an individual to express your wishes if you are unable to do so. By expressing your wishes in a written legal document, you will ensure that your family members and/or friends are made aware of your wishes.

 The Health Care Proxy and Living Will are sometimes combined into one document or may be two separate documents. In a Health Care Proxy, you appoint a person (known as your Health Care Agent) to whom you grant authority to make medical decisions on your behalf if you are unable to communicate your own wishes to health care providers because of illness or incapacity. In New York, you may appoint a single individual to act as your Health Care Agent. You may also appoint an alternate Health Care Agent to act on your behalf if your primary Health Care Agent is unable or unavailable to act.

If you wish to authorize your Health Care Agent to make decisions concerning the withdrawal of life support measures such as artificial nutrition and hydration, you must expressly authorize your Agent in writing to make these decisions in the Health Care Proxy document.

A Living Will is your written expression of how you wish to be treated in certain medical situations such as permanent unconsciousness or terminal illness. For example, you may express whether or not you wish to be given life-sustaining treatments such as food and water intravenously (tube feeding) if you are terminally ill or permanently unconscious. You may also include other specific instructions to your health care providers in your Living Will, such as medical treatments that you do or do not want in end of life situations or permanent unconsciousness.

Another important benefit to having a Health Care Proxy and Living Will, besides making your wishes known concerning medical treatment, is to provide peace of mind to your family members and avoid having them make difficult choices concerning your treatment during a very stressful time. In addition, by designating a Health Care Agent, your physician knows whose directions should be followed if your family members disagree as to what medical treatment you would choose if you were able


If you seek more information on Eldercare and Estate Planning, contact Kathleen Lynn.