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Syracuse Elder Law Blog

What you need to know about testamentary capacity

In order to be valid, a New York will must meet certain legal requirements. One of the most important issues is the testator's mental capacity.

The basic principle is that a person disposing of his or her property must understand what he or she is doing. Defining what type of mental capacity is necessary for this and determining whether a particular person possessed this capacity can form grounds for exactly the sort of lengthy and expensive probate litigation most people would like to avoid.

Custodial care could mean large expenses

While Medicare may provide many services to New York residents, it will generally not pay for care in a nursing facility. This is important because as many as 70 percent of people aged 65 and older may eventually need such care. Whether or not Medicare will pay for a service depends on if the needs are considered to be custodial care.

Custodial care means that a person needs help getting out of bed, making food or eating. As a general rule, this assistance could be provided by anyone who does not have specialized training in the medical field. Most people need custodial care as opposed to treatment that only a specially trained professional can provide. In the event that a person does need more than custodial care, Medicare will usually cover the first 20 days with no coinsurance required.

Long-term care benefits for veterans

Older veterans and the surviving spouses in New York and the rest of the country may be entitled to certain long-term care benefits to which they may not be aware. These Veterans Administration benefits could help to alleviate some the financial burden brought on by long-term care expenses.

The Veterans Aid and Attendance Pensions Benefit is a program that pays up to $1,794, $1,153 and $2,217 each month to a veteran, surviving spouse and couple, respectively, to be applied to costs associated with long-term care. It can be used for board and care, assisted living, private-pay nursing home or in-home care.

How to keep Fluffy from the pound if you go into a nursing home

During your later years, your pets have been a great source of love and comfort. The last thing you would want for your beloved dog or cat is to have to surrender it to an animal shelter if you are unexpectedly unable to care for it.

For many senior residents in New York, this is a valid fear. You may still enjoy good health for years to come, but it is not possible to predict if or when a disabling illness or injury will occur that may require you to enter nursing care.

Legal documents for end-of-life issues

Having a will that is properly drafted and addresses end-of-life preferences is the first step in having a sufficient estate plan. However, there are other legal documents that can help ensure that an individual's wishes will be followed if they become incapacitated.

A living will is a legal document that details the type of medical treatments that an individual does or does not want to take place in certain circumstances. It can be beneficial to loved ones who will not have to assume what an incapacitated loved one would prefer have done in specific situations. A copy of the document should be easily accessible, and loved ones should be advised of its location.

Avoid probate with these simple tips

Probate is something many people try to avoid as they make their estate plans. While it might not be easy for someone with a large estate to bypass probate, New Yorkers without a lot of assets may be able to do this much more easily. There are simple ways to transfer most assets upon death without giving the beneficiary control over them sooner.

Financial accounts, including a 401(k), IRA, checking, savings and even pension can be transferred to a beneficiary without probate. The account owner merely needs to have a current beneficiary designation form on file upon their death. It's important to keep these forms up-to-date to avoid passing money to an ex-spouse or deceased loved one. A beneficiary designation form takes precedence over anything written in a will so it's essential to update these forms as needed to be sure they accurately reflect the account owner's wishes.

Planning for aging or incapacitated parents

From the day you entered the world, you probably began relying on your parents for food, love, shelter and care, but at some point in your life, you can expect your roles to reverse. No one likes to think about parents getting older and nearing the ends of their lives, but the better you and they prepare for the change, the more smoothly the transition will likely go.

When it comes to planning for your parents as they get older, one of the biggest mistakes you can make is to wait until their health deteriorates considerably, or until they otherwise become incapacitated. Instead, it is wise to give yourself a five-year head start on getting your parents’ affairs in order so that you may:

When divorce means a change in the estate plan

People in New York who are going through a divorce may also want to make sure that they change their estate plan if necessary. If they do not, ex-spouses may inherit assets they were not intended to have.

For example, one man had a significant amount of money he received in a settlement from an accident. He and his wife signed a prenuptial agreement that stated the money would remain his. However, the man later added his wife as an 80 percent beneficiary on the trust where he had placed the money. His family was a 20 percent beneficiary. His wife later filed for divorce. The man needed to inform his lawyer and sign an amendment to the trust to change it, but he did not do so. He died two days before the finalized divorce decree, so his ex-wife got more than $14 million while his family only received around $3.6 million.

Should your talk with heirs emphasize legacy over money?

When you sit down with your kids for a serious discussion about inheritance matters, you may be tempted to focus on the money aspect. After all, that is probably the important thing in their minds, especially if you have a sizable estate.

However, it might be worthwhile to consider steering the discussion in another direction, and talk to your children about legacy.

Choosing the right executor for your will

Selecting an executor is an important part of planning your estate. If your plan includes a will, it is important to understand the executor's responsibilities and make sure the individual you select will be able to handle them well.

You can put a lot of thought and care into your will's provisions and still end up with problems if the probate process is not handled properly. In addition to choosing a competent and willing executor, involving an experienced estate attorney can help things go smoothly.