Stephen Buckley, an attorney specializing in Estate Planning and Elder Law in New York, gives a general presentation on things you need to know.

1. Rotary Club of Albany
April 11, 2018
Elder Law 101: The Last Will and Testament, Healthcare Proxy/Living Will,
Power of Attorney, and Nursing Home Trust

2. Topic Overview
• Last Will and Testament
• What you can and can’t gift using a Last Will and Testament. Estate assets v. joint accounts.
• Before meeting with your estate planning attorney have a general idea of 1) Who will get my
stuff? 2) Who will be responsible for collecting my stuff and gifting it to my beneficiaries?
• Tip: How to pick an executor.
• Healthcare Proxy
• Healthcare Proxy vs. Living Will
• End of life decision making options. You have a choice!
• Family Health Care Decision Act (NY presumption of
who can make decisions on your behalf)
• Power of Attorney
• The most important estate planning document. Do you have one?
• Nursing Home Trusts in 2 minutes!
• When you need to see an estate planning attorney.

3. Last Will and Testament
Your Last Will and Testament does essentially TWO things:
1. Directs who you gift your estate assets to.
2. Appoints the executor of your estate.
• You should think about two things:
• Who will get my stuff?
• Who will be the person responsible for
distributing my stuff?

4. What is an estate asset?
• Any property you own individually at the time of your death.
• Does not include joint bank accounts.
• Does not include accounts with beneficiary designations (i.e. life insurance,
retirement accounts, bank accounts, real estate that is owned jointly with “rights
of survivorship).
• One of your estate planning goals should be to avoid probate.
• You need a Last Will and Testament even if all of your accounts are
owned jointly or have a beneficiary designation.
• Ex. I have personally handled two cases where banks have lost original
beneficiary designation paperwork meaning the Last Will and Testament
controlled these accounts.
• Ex. Wrongful death case.

5. How to choose your executor?
• Most of my clients pick their oldest child.
• Tip: Pick someone who can balance a checkbook, who is responsible
(i.e. financially responsible), and preferably local!
• Executor must sign legal documents prepared by an attorney, secure the
house of the deceased, and make an effort to discover all accounts
owned by the deceased (i.e. go through their mail). This is easier when
the executor is local.

6. Healthcare Proxy/Living Will
• Healthcare Proxy—Appoints an individual to make health care decisions
on your behalf.
• Living will—you give specific instructions to your health care proxy on
how to make end of life decisions on your behalf.
End of life decision making comes into play when you are suffering from
an incurable disease that will reasonably cause your death in the near future
as determined by two physicians.
Living will essentials: You have two options. 1. Tell the doctors to keep
you alive at all costs (artificial hydration, nutrition, respirator, ect.), 2. Tell
the doctors to withhold end of life care, and you will pass naturally.

8. Family Health Care Decision Act (FHCDA)
• Family Health Care Decision Act (FHCDA)—If you do not sign a healthcare
proxy New York presumes the following people have authority to make
decisions on your behalf:
1. Spouse,
2. Adult child,
3. Parent,
4. Brother or sister.
• Caveat—make sure you family knows your wishes. Tell them expressly what
your wishes are, or better yet, sign a health care proxy and living will to avoid
confusion.
• Your end of life decision making wishes and who will make them needs to be
clear. This is a stressful and difficult time for your family. Ambiguity makes a
hard situation even harder.

9. Power of Attorney
• You appoint an individual to make financial decisions on your behalf in case
you are unable to make decisions for yourself in the future (i.e. dementia or
physical limitations).
• Most common—mom and/or dad live independently at their house, but they
need help keeping track of expenses and ask a child to write checks for certain
bills on a monthly basis.
• Unlike the healthcare proxy, there is no presumption in New York that a
family member can act as your power of attorney UNLESS you sign a power
of attorney.
• If you do not sign one, and you lose the ability to make decision for yourself
your family must go through a guardianship proceeding. This is very
expensive and stressful for everyone involved!

10. Nursing Home Trusts
• You should purchase long term care insurance. If you did not, or
cannot, (uninsurable, unaffordable) you should consider a nursing home
trust. LTCI advantage—usually pays for in home care, rights to
payments are defined by a contract, and not complicated Medicaid rules.
• If you cannot purchase LTCI a nursing home
trust will hedge against the chance you have to
pay for an extended stay in a skilled nursing
facility.

11. Medicaid Eligibility
• Asset limitation: $15,150, automobile, $1,500 in life insurance.
• Income limitations: $50 per month.
• 5 year look-back period. Albany County requires an explanation of any
deposits or withdrawals over $1,000. They reserve the right to demand
an explanation of withdrawals under $1,000.

12. Nursing Home Trusts
• You execute a trust agreement.
• You transfer assets to the trust agreement (i.e. your house).
• After five years from the date of the transfer the asset is no longer
consider yours for the purposes of qualifying for Medicaid.
• You are still entitled to the STAR exemption.
• You are still entitled to live in your house.
• You are still responsible for all taxes, maintenance, and ordinary upkeep
of the house.

13. See an estate planning attorney if:
• Long term relationships without an official marriage.
• Children with drug and alcohol issues or spending challenged—estate planning
strategies to make sure your children do not receive a large sum of money in a lump
sum in favor of receiving money over time (monthly, quarterly, ect.)
• Blended families—marriage to your spouse who has children from a previous
relationship.
• Cats, and dogs, and parrots that live for 80 years.
• Disinheriting children—it is okay to disinherit children.
• Contested estates—representation if you are a beneficiary receiving $100,000+
• $100,000 rule.
• First baby, motorcycle, fifty+ rule—when you should see your estate planning
attorney for the first time.
• Presidential election rule—see your estate planning attorney every four years

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