Supplemental Security Income, or SSI, provides monthly payments for children with disabilities who are under 18 who meet the government’s definition of disability, and who have little or no income and resources.  The amount of SSI that the child will receive varies by state.  To qualify, the household’s total income and resources must be below a certain amount, and the child cannot earn more than a certain dollar amount each month.

Social Security Disability Insurance, also known as SSDI, provides benefits to disabled or blind persons who are “insured” by workers contributions to the Social Security trust fund. These contributions are based on the individual’s earnings or the earnings of the spouse or parent according to the Federal Insurance Contributions Act (FICA). Title II of the Social Security Act authorizes SSDI benefits. Dependents of those insured under SSDI may also be eligible for these benefits.

Medicaid can provide access to health care to children with disabilities. Some states will approve a child for Medicaid if he or she is already receiving SSI. Other states require a separate application process. However, SSI is not a prerequisite for Medicaid.

Families with slightly higher incomes may qualify for State Children’s Health Insurance Program (S-CHIP), which covers a wide variety of health care needs. S-CHIP is a good alternative for families who do not meet the requirements for Medicaid, but who cannot afford to pay for private insurance.

There may be other financial and health care assistance options available depending on your state. If you are a parent who would like more information about financial and health care options, contact an experienced special needs planning attorney.

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Although there is a relationship between the two statutes, they have different objectives. Section 504 is intended to eliminate barriers that exclude persons with disabilities or, in other words, to create a level playing field. This federal law is designed to protect the rights of individuals with disabilities in programs and activities that receive federal funds from the U.S. Department of Education. Section 504, in part, reads: “No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination.”

Section 504 is meant to eliminate hurdles, whereas IDEA is meant to give children with special needs the services they require to succeed in school. Some describe its motives as being similar to affirmative action. It goes beyond granting equal access to students with disabilities by also providing additional special education services and procedural safeguards.

IDEA entitles a child suspected of having a disability to a comprehensive evaluation by a multi-disciplinary team provided at no cost to parents. If the child is determined to need special education and related services, an Individual Education Plan (IEP) will be implemented, based on the specific needs of the child as decided by the team, including parents.

If you are a parent who suspects that your child is not being treated in accordance with Section 504 and/or IDEA, contact an attorney with experience in special needs issues.

To learn more about New York special education advocacy, New York special needs planning, or New York estate planning, visit http://www.littmankrooks.com.

On July 26, President Barack Obama signed an executive order entitled “Increasing Federal Employment of Individuals with Disabilities.” The order directs the Office of Personnel Management to develop hiring and retention strategies aimed at increasing federal employment of individuals with disabilities. Specifically, the order identifies the objective of hiring 100,000 persons with disabilities over the next five years.

The executive order states that the “Federal Government has an important interest in reducing discrimination against Americans living with a disability.” Currently, individuals with disabilities are underrepresented in the federal work force, constituting only five percent of all federal employees. In addition to increasing employment, the order states the goal of eliminating stigmas associated with disability. In addition to focusing on new hiring, the order requires federal agencies to boost efforts to accommodate workers who have suffered an on-the-job injury. It also encourages the expansion of programs aimed at bringing injured workers back into the federal workforce.

To learn more about New York elder law, New York estate planning, or New York Special Needs visit http://www.littmankrooks.com.

Continuing care retirement communities (CCRCs) consolidate a range of services, from housing to full nursing care, into one facility. Generally, CCRCs offer a guarantee of lifetime care, which is an attractive option for many seniors. The facilities often require sizable entry fees, however, in addition to monthly rent. Many seniors must sell their homes in order to afford the entry fees, making them dependent on the financial stability of the community for their long-term care. If a community is forced into bankruptcy, residents could lose their deposits to the community’s creditors, leaving them few options for continued care.

While the report acknowledges that few communities have failed, it also notes the strain a challenging real estate market and low occupancy rates have placed on some communities. CCRCs are not federally regulated, and states have varying degrees of financial oversight and consumer protection. The report looked closely at regulations in eight states, including New York.

The report, entitled “Continuing Care Retirement Communities Can Provide Benefits, but Not Without Some Risk,” can be read and downloaded at the GAO website: http://www.gao.gov/products/GAO-10-611.

1.      Know ADHD laws. Children who have special needs, including ADHD, are entitled to an education that is appropriate for their particular needs. Under Section 504 of the Rehabilitation Act of 1973, as well as the Individuals with Disabilities Education Act of 2004, your child may be entitled to additional services at school. Be sure to familiarize yourself with these laws and regulations, and understand what they do and do not protect.

2.      Constantly monitor your child’s academic performance. Remain in close contact with school officials and teachers. Make sure that your child sits in close proximity to his instructor and is shielded from potential distractions.

3.      Request that your child and teacher meet one-on-one on a regular basis. It is a good idea for your child’s instructor to look for, and reward, positive behavior.

4.      At-home tutoring. It may be prudent to consider one-on-one tutoring for your child outside of regular school hours to complement in-school instruction.

5.      Get a copy of your child’s curriculum. Follow the assignment schedule and pay attention to whether your child is keeping up with his coursework.

Parents can give their child with special needs the best chance of receiving the help and education he needs by becoming engaged in their child’s learning experience. If you suspect your child’s needs are not being properly accommodated at school, contact an attorney who is experienced in special needs and education issues.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York.

To learn more, visit Littmankrooks.com.

Education is one of the most important things in a child’s life, so it pays to be prepared. What specifically should parents do to prepare?

-Familiarize yourself with the parents’ rights handbook that is provided by the school. Understand the protections under federal law available to you and your child.

-Look over your child’s school records ahead of time. Take note of how he is doing and where his strengths and weaknesses lie.

-Visit the classroom setting if possible.

-Talk with disability associations and other parents for more information and tips.

-Speak with your child ahead of time to learn about any special challenges or concerns.

-Write down any questions you have for school officials so you don’t forget during the give and take of the meeting.

-Review the previous IEP. What is working? What is not? Are there new goals that need to be set or adjusted for the upcoming year?

-If you have concerns, gather evidence to support them. Explain why you want changes.

-Have a positive attitude. An IEP meeting is part of a collaborative process between parents and the school district. Try to work with school officials as much as possible.

-Most of all, organize your thoughts and related documents. Make sure you are prepared when the day of the meeting arrives.

To learn more about New York elder law, New York estate planning, or New York Special Needs visit http://www.littmankrooks.com.

With the daily demands of caring for your child, you may sometimes forget about his later years when you are no longer around. But it’s imperative to think about how he will be cared for in the future.

One of the most important steps is to make sure your life insurance will offer your child the maximum benefits. But what about the beneficiary? Who should it be?

Many people name a sibling the beneficiary of the special needs insurance policy, but that can cause a problem if the sibling predeceases the child with special needs or is not willing or able to take on the role of a caregiver. It is also unwise to make the child with special needs the beneficiary because that can disqualify him for government assistance.

The best approach is to create a trust, and name the trust as the beneficiary of the life insurance policy. Upon your death, the trustee will administer the trust according to its terms and provide benefits to your child with special needs without making him ineligible for government assistance.

To discuss your particular scenario and to learn more about trusts, it is wise to contact an experienced attorney.

To learn more about New York
elder law, New York estate
planning, or New York
Special Needs visit www.littmankrooks.com.

Although most parents will continue to support their child during the college years, parents of children 18 years and older are surprised to learn that they have no legal rights to make medical or financial decisions for their children. Once a child reaches adulthood, parents cannot make the medical decisions they once did, nor can they make decisions regarding their child’s bank account. There is, however, a way around this. Your child can give you written permission to make these choices and decisions by executing a durable power of attorney and/or a health care proxy. By creating these documents, your child will be giving you the power to keep making important decisions during formative years.

To learn more about New York elder law, New York estate
planning, or New York Special Needs visit http://www.littmankrooks.com.

• A free appropriate public education from ages 3 through 21
• Education provided as close to home as possible, with children who do not have disabilities
• Additional educational services, such as speech therapy, occupational therapy, or a classroom aide, which are designed to meet the child’s unique needs and prepare him for employment and independent living
• An assessment to determine the child’s needs

The law provides two guarantees for children with special needs. The child is entitled to an Individualized Education Plan (IEP), which is a written statement of the child’s abilities and impairments. This important document is drafted by a team that includes the parents, school district officials, and educational professionals who have evaluated the child; the IEP must be reviewed annually.  Parents have rights and responsibilities in relation to their child’s IEP. The law also guarantees due process, which provides a mechanism for resolving any disagreements regarding a child’s IEP.

A special needs planning attorney can also serve as an advocate for you and your child as he pursues an education.

To learn more about New York elder law, New York estate planning, or New York Special Needs visit http://www.littmankrooks.com.

• Investigate your child’s and family’s eligibility for government benefits. You should keep in mind that government services or funding received today may not be available in the future.
• Review your health plan to make sure that it is adequate for your child’s present and future needs. If you believe your coverage is inadequate or anticipate that your child’s needs may change, you may wish to secure additional coverage.
• Consider the financial needs of your child’s guardian in the event of your death. Would the guardian need additional income to care for your child? Would funding be required for home renovations, specially equipped vehicles, or in-home health aides? Will funds be required for childcare services if, for example, your nominated guardian works full-time?
• Think about where your child will live when he is older. An assisted living facility can be costly, so you’ll need to prepare for this. Also, if your child wants to live independently, he will need the financial resources and money management skills to do so.
• Make sure that your estate plan is adequately set up to provide for your child’s needs. You should construct a plan that will allow your child to maintain the public benefits to which he is entitled.

Following these steps will help ensure that your child is well taken care of in the event of your death. A special needs planning attorney can help you set up the right plan to provide for your child financially.

To learn more about New York
elder law, New York estate
planning, or New York
Special Needs visit http://www.elderlawnewyork.com

Ms. Arkontaky will speak about “Lifetime Planning for People with Disabilities” from 2:15 p.m. to 3:00 p.m. Parents of children with disabilities often admit that their greatest fear is what will happen to their child once they are gone, and providing for financial security is a major step towards ensuring quality of life for a loved one with special needs. This involves understanding the relationship between personal assets and eligibility for government benefits, which often play a critically important role. Monetary gifts from well-meaning friends and relatives may actually do harm to a person’s overall financial status if not carefully planned.

Ms. Arkontaky’s practice focuses exclusively on special needs planning, special education advocacy, and guardianship for families of children with disabilities. She has a child with special needs and was a service coordinator for Family Connection – an agency providing case management for families of children with disabilities – prior to attending law school. Her personal and professional experiences enable her to bring added insight to the work she does on behalf of others.

Harriet P. Schleifer, Esq., will speak regarding “Teens, Young Adults and Epilepsy: Transition Planning” from 2:15 p.m. to 3:00 p.m. Transitioning into adulthood is challenging enough for most young people. Students with disabilities may require additional support to successfully transition from high school to the next phase of their lives. What must schools do to help students prepare for adulthood?

Ms. Schleifer has over 20 years of experience in special education advocacy and is the mother of a young man with disabilities. She is also an authority on disciplinary issues relating to both typically developing children and students with special needs.

Littman Krooks LLP, which celebrates its 20th anniversary this year, offers legal services in several areas of law, including special needs planning, special education advocacy, elder law, estate planning, veterans’ benefits, and corporate and securities. The firm’s offices are located at 655 Third Avenue, New York, New York; 399 Knollwood Road, White Plains, New York; and 300 Westage Business Center Drive, Suite 400, Fishkill, New York. For more information about Littman Krooks LLP, visit www.littmankrooks.com.

Long-term care insurance plans usually pay a daily benefit for a pre-determined period of time. When determining how much long-term care insurance to purchase, consider what daily benefit will be necessary to cover one’s care costs and how long the policy will need to pay the benefits. Policies generally cover a minimum period of two years. Longer periods of coverage and plans that cover the policyholder’s full lifetime are also available. Five-year plans are popular, since they can be used to cover costs during the five-year Medicaid look-back period for transfers of assets.

Long-term care insurance policies that pay a high daily benefit or cover an extended period of time can be costly. An estate planning professional can help you tailor a plan to fit your long term care needs and budget.

To learn more about New York
elder law, New York
estate planning, visit http://www.elderlawnewyork.com

Parents of a child with special needs child often struggle with how to treat all their children equitably. This can be difficult, since a child with special needs child generally requires a great deal of financial support. As such, parents must also consider how to make sure there are sufficient funds available at their death to care for the child with special needs.

Finally, parents of a child with special needs must also consider the best way to provide for the proper management and distribution of an inheritance for that child, through a testamentary or inter-vivos third-party supplemental needs trust. A testamentary trust is one created under the terms of the parent’s will, while an inter-vivos trust is created by the parents during their lifetime.

Parents do not have to face these challenges alone. An experienced special needs attorney can help parents work through each of these issues.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more, visit Littmankrooks.com.

Family members should be made aware of the rules that govern the assets of a child with special needs, and they should make their estate planning decisions accordingly. Referring them to a special needs attorney can help your family members do the right thing in the right way.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more, visit Littmankrooks.com.

Your letter of intent should be updated annually, so that it always contains the most accurate information. The needs of your child are sure to change over time. Once your letter of intent has been completed, a copy should be kept with your attorney or in a clearly marked, safe place at home. Although a letter of intent is not a legal document, a special needs attorney can guide you through the process of creating this important document.

To learn more about New York elder law, New York estate planning, or New York Special Needs visit http://www.littmankrooks.com.

• Are there any social activities that are important to your child that you would want continued after your death? You may, for instance, wish to provide funds for your child to take annual vacations to see relatives or to attend sporting events.
• Does your child like to go out to dinner with friends or to the movies?
• Are there any specialty items, such as computers, DVDs, or video games that improve your child’s quality of life?

After you have considered all of the things you want your child to continue to enjoy, you need to determine how much this is going to cost. To calculate how much is needed in order to properly fund the trust, you may want to keep track of everything you spend on your child over the course of one month. After you have calculated these expenses, you may wish to add periodic expenses that might come up quarterly or annually. These quality of life considerations could make the difference between providing your child with a basic existence and a lifestyle closer to that which you would have sought to provide yourself.

To learn more about New York elder law, New York estate planning, or New York
Special Needs visit http://www.littmankrooks.com.

(1) A last will and testament.

(2) A general durable power of attorney (“GDPA”). This document designates an agent to act on an individual’s (here, a parent’s) behalf with regard to financial affairs. Parents’ GDPA should allow their agent (designated in the GDPA) to make discretionary non-support distributions to, or for the benefit of, the child with special needs and to establish a special needs trust (SNT) for the child.

(3) A revocable living trust. During a parent’s period of incapacity, the parent’s revocable living trust should contain language that permits the trustee to make discretionary non-support distributions to, or for the benefit of, the child with special needs. Upon the parent’s death, the child’s inheritance should be distributed to a third-party SNT previously established by the parent for the child’s benefit.

Having all of these documents in order will make the transition of care easier for the child and a new caretaker and/or guardian.

To learn more about New York
elder law, New York estate
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Parents planning to divorce should also consider whether or not they are going to establish separate trusts for their child. Each spouse could do so, using the same trustees and beneficiaries or different ones. Although it may be difficult, the parents of the child with special needs should make great efforts to coordinate the funding of the trusts so that they can be sure that adequate resources will be available to their child.

A common issue that occurs with divorce is that the parents fail to consider which one of them will become the guardian once the child reaches age 18. Parents should decide if one or both of them will retain guardianship. In addition, parents should decide who will be responsible for educational decisions with respect to their child. Both of these issues should be carefully addressed when drafting a divorce agreement so that disputes following the divorce will be minimized.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more, visit Littmankrooks.com.

In order to help families deal with these financial burdens, Congress is considering a change to the current tax code that would provide up to a $5,000 tax credit for legal fees associated with establishing legal guardianship. This proposed tax credit would also be available for legal fees paid in connection with establishing a trust for a person with disabilities. Only the person who actually paid for the legal fees would be eligible to apply for the tax credit.

A non-profit organization, The Special Needs Tax Credit Alliance, raises awareness about the issue and is working to gain support for this important tax credit. Establishing such a tax credit would provide much needed relief for families that have loved ones with disabilities.

Additional information regarding this tax credit can be found at http://specialneedstaxcredit.com.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more, visit Littmankrooks.com.

This repeal has the potential to affect the estate plans of millions of Americans, as wills and trusts that were once properly prepared may no longer provide protection for spouses or other beneficiaries upon the death of a family member. The lawyers at Littman Krooks LLP have carefully studied the potential impact of the repeal of the Federal Estate Tax and encourage attendance for those who want to ensure that their estate plan is not obsolete.

The seminar will be offered in two sessions on Wednesday May 12, 2010, at the Duchess County Regional Chamber of Commerce in Poughkeepsie, NY. Registration for the morning session begins at 9:30 a.m. in Room 400. The morning session will be held from 10:00 a.m. to 11:00 a.m. Registration for the afternoon session begins at 3:30 in Room 400. The afternoon session will be held from 4:00 p.m. to 5:00 p.m.

For families whose loved ones die in 2010, the repercussions of the Federal Estate Tax repeal could only add to their grief at the passing of their loved one. The seminar will cover the challenges facing estate planning in 2010 and the consequences of this unusual appeal. This appeal has created unprecedented uncertainty in the world of estate planning, and the lawyers at Littman Krooks LLP wish to offer their guidance in these uncertain times.

Attendance to this event is limited, so those interested in attending must reserve a place by phoning Melissa Hayn at 845-896-1106 or emailing mhayn@littmankrooks.com.

For more information on the firm, visit www.littmankrooks.com. Littman Krooks LLP offers legal services in several areas of law, including elder law, estate planning, veterans’ benefits, special needs planning, special education advocacy, and corporate and securities.

Parents’ intentions regarding gifts to children should be made clear in their estate planning documents. A document could state, for example, that you are not making any adjustments based on gifts you have made. Doing so will make it clear that none of the children should receive a reduced share of the estate based on past gifts. On the other hand, you could list past gifts that have been made and carefully explain why one child is receiving a reduced share of the estate.

Loans made to your children should also be addressed in your estate planning documents. Verbal loans can be particularly tricky. You might, in this case, make a provision in your documents that classifies all verbal loans as gifts. If, however, there are verbal loans that you do not wish to have considered as gifts, you should state this in writing. If you wish to consider loans made to your children as advances on their inheritance, then this should also be specified in your estate planning documents.

Carefully considering and planning how you would like to deal with gifts and loans to your children will help avoid conflict among them in the future. You should consult an estate planning attorney to ensure that your legal documents provide guidance regarding your intentions.

Learn more at Littmankrooks.com.

There are three major types of pooled trusts:

• Third party: This type of trust is established with the assets of parents or others who wish to give to a loved one with disabilities. Importantly, state Medicaid does not have to be reimbursed. Upon the death of the beneficiary, 50% of the remaining trust assets may go to pre-designated beneficiaries, and 50% must remain with the trust for the benefit of other persons with disabilities.

• Self-settled: In this type of trust, the money comes directly from the beneficiary. After the beneficiary passes away, there is no payback to Medicaid. Instead, any remaining assets are kept by the trust for the benefit of other persons with disabilities.

• Income only: This type of pooled trust allows the Medicaid applicant who earns more than the allowable income to put the excess income in a pooled supplemental needs trust so that he may qualify for Medicaid.

If you are considering a pooled trust account as a planning option, a special needs trust attorney can provide guidance regarding which type of trust is best for you and your loved one.

Learn more at Littmankrooks.com.

When designating a guardian, it is important that he or she understand your family’s unique circumstances. You will want to choose a person who knows the details of your family’s adoption and is willing to maintain the lifestyle that you have chosen for your adopted child. It may be a good idea to leave the designated guardians documentation that provides all the details of your child’s adoption. Also, you must make sure that you choose a guardian who is comfortable with the terms of your adoption. If, for example, you are in an open adoption, then you will want to choose a person who is open to maintaining this relationship with the child’s biological parents.

If you have an adopted child, particularly if it is an open adoption, the need to establish trust is extremely important, as there may be a number of people outside your immediate family, such as the child’s birth parents, who have a direct interest in your child’s life. Holding assets for your child in a Trust under the control of a trustee, whom you have chosen, will help to protect your child’s interests and will ensure that your assets will be used directly for your child’s benefit.

An adopted child only has rights to your estate once the adoption has been finalized. The length of time it takes to finalize an adoption depends on where the adoption was initiated, as well as a host of other factors. This process can take anywhere from six months to several years to complete. In the event that you pass away before this process is complete, the child would not be entitled to any of your assets. Once you begin the adoption process, you may wish to consider amending your Will to include your adopted child. This way, your Will can include specific language that categorizes the adopted child in the same manner a biological child or a child whose adoption has already been finalized.

Caring for an adopted child may require you to “put some extra thought into” a number of special provisions. If, for example, you adopted a child internationally and wish to expose the child to his/her home culture, then your Will and Trust should reflect these desires. In order to ensure that these wishes are carried out, you should consider making provisions in your Trust that specify your desires.

Consulting with an attorney who specializes in estate planning will help you to consider your options and can help you make the right choices for your family.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more, visit Littmankrooks.com.

On the other hand, an Intervivos Special Needs Trust is also meant to protect the future of the person with the disability but allows parents or caregivers to deposit money and other assets into the account and manage it while they are still living. Parents do not have to wait until the child turns 18 to establish this trust but can establish it at any time. An Intervivos Special Needs Trust offers several key benefits:

• The trust is completely separate from the family’s main estate.

• There is more freedom in managing the trust, as it is normally managed by the child’s parents.

• Using this account will help to keep a record of all the supplementary items that have passed government scrutiny. This will make it easier for the future trustees to know which items are appropriate and will provide a guide for them to use in the future.

• These types of trusts will allow family members to give money to the trust now, rather than just upon their deaths, where there may be significant tax issues that prevent them from donating as much money as they would like.

In creating an Intervivos Special Needs Trust, families will ensure a secure future for the person with the disability. This type of trust will continue to function without interruption in the event that parents have to go into a nursing home or die suddenly. Also, the trust allows for greater flexibility and the ability to build up assets over time.

It is important for family members to consult with an attorney who specializes in special needs planning, as they consider the benefits and drawbacks of each type of trust.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more, visit Littmankrooks.com.

Adult children often take on the care of a parent without question, and without consideration for the consequences of spending large amounts of money, or even going into debt, to fund the care. However, dipping into savings or retirement accounts to care for parents could leave individuals without adequate assets for their own future care.

An estate planning or elder law attorney can help individuals plan for the possibility of contributing to the care of an aging parent. A good estate plan will allow for the care of loved ones while preserving enough assets for one’s own future needs.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more, visit http://www.littmankrooks.com.

Wills are living documents, meaning they can be modified or amended at any time to reflect changing circumstances. However, busy schedules may prevent changes from being made in a timely manner. Naming alternate beneficiaries will prevent the need to modify a Will during already difficult times.

Naming alternates in a Will is a good practice in general. Families with young children should name guardians and successor guardians. Alternate executors may also be named should the original executor be unable to perform his or her duties. Careful planning will help ensure wishes are carried out even when unexpected events arise.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more, visit http://www.littmankrooks.com.

There are differences between a Roth IRA and a traditional IRA that are worth noting. Contributions to, and withdrawals from, each type of IRA are taxed differently. Contributions to a Roth are never tax deductible, while contributions to a traditional IRA may not be tax deductible. Additionally, qualified withdrawals from a Roth IRA are not subject to income or capital gains taxes. This distinction means that Roth IRAs provide tax-sheltered investment growth, while traditional IRAs provide investment growth that is only tax-deferred.

An age limit on contributions is another distinction between traditional and Roth IRAs. There are no age limits on contributions to a Roth IRA. However, contributions can only be made to a traditional IRA until the year the investor reaches 70.5. Individuals wishing to continue making contributions to an IRA account well into retirement should consider a Roth.

There are estate planning implications in deciding which IRA is appropriate. If the goal of an estate plan is to maximize assets and disbursements to beneficiaries, a Roth IRA offers unique estate planning benefits. Because a Roth IRA does not require individuals to make distributions from the account, it could grow more than an account might under traditional IRA rules.

This change in the rules will open new options for some investors. Individual investors should consider both the costs and benefits of conversion specific to their financial situation before making a decision. Consult an estate planning professional about any questions concerning account conversion.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more, visit http://www.littmankrooks.com.

It is still unclear whether the tax will be repealed in 2010. Earlier this month, the House passed a one-year extension of the tax, essentially freezing it at current levels until 2011. The House has also passed smaller extensions, from one to three months, in an attempt to give the Senate time to come up with a more permanent solution.

However, the Senate has, at this point, not passed any legislation dealing with the estate tax. Senate lawmakers recently rejected a one-month extension of the tax. Democratic leadership has promised to take up the issue in the new year and may pass an extension that applies retroactively to January 1, 2010.

This uncertainty could make estate planning somewhat more difficult for individuals with large estates, as the Senate continues to deliberate. Some estate planning professionals are advising a “wait and see” approach. But for those who need to settle affairs quickly, the decision about how to handle a large estate may be more complicated. An estate planning or elder law attorney can advise on the best way to handle this delicate situation.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more, visit http://www.littmankrooks.com.

The tax breaks are generally popular among both Democrats and Republicans and are routinely extended at the end of each year. However, this year legislators have reached an impasse over the proposed method for paying for the cuts. According to the House bill, the tax breaks would be funded with a tax increase on investment fund managers and a crackdown on the use of overseas tax havens.

The measure passed the house with a vote of 241-181, but it has not yet made it out of committee in the Senate. The package could be passed and applied retroactively, making tax planning and estate planning somewhat trickier in the following months. An estate planning or tax planning attorney can advise on the best financial strategies whatever measures may ultimately pass.

Bernard Krooks is a New York Elder Law and New York Estate Planning lawyer with offices in White Plains, Fishkill, and New York, New York. To learn more, visit http://www.littmankrooks.com.

Some children with special needs may wish to continue their education beyond high school. It is important for these students and their parents to understand what rights they have at a post-secondary institution, and to know how those rights differ from the rights they had in high school. Post-secondary institutions may not discriminate against students with disabilities, but they are not required to identify the special needs of their students as public schools are.

Students who believe they may need a college to make special arrangements for their needs, should request an academic adjustment. Academic adjustments might include priority registration, a reduced course load, providing note takers or sign language interpreters, extended time for testing, and equipping school computers with screen-reading. It is the responsibility of the student to request such an adjustment. As parents, it is important to know what your child is entitled to and when the right time to make a request may be. A special needs planning attorney can serve as an advocate for students pursuing continuing education.

For more information, please visit http://www.littmankrooks.com.

Some examples of powers that a trust protector may be given include: removing or replacing a trustee, handling disputes between trustees and/or beneficiaries, amending the trust, adding beneficiaries, changing disbursements according to changes in beneficiaries’ circumstances (such as divorce), and having the final say over investment of the trust’s assets. The trust document can be used both to name a trust protector and to define his or her powers.

Although anyone may serve as a trust protector, it is generally a good idea to hire an independent third party or professional, since s/he may have to make decisions that affect beneficiaries or resolve conflicts between beneficiaries should any arise. An experienced elder law and estate planning attorney can help ensure that a trust protector is given the right balance of power to oversee a long-term trust effectively.

For more information, please visit http://www.littmankrooks.com.

Same sex couples are not eligible for Social Security spousal benefits. When two married individuals retire, the spouse with the lower monthly benefit can choose to take either his or her own benefit or one-half the higher-earning spouse’s benefit, whichever is greater. For example, if one member of a married couple qualifies for a yearly benefit of $15,000 and the other for a yearly benefit of $6000, the lower earning spouse could instead choose to receive $7500 as a spousal benefit. A lower earning member of a same sex couple does not qualify for the higher benefit.

Same sex couples are also not eligible for survivor benefits, in which a surviving spouse may qualify for the higher-earning spouse’s benefit after s/he has passed away. Legally adopted minor children, however, are eligible for survivor benefits. Since New York law permits single, joint and second-parent GLBT adoption, same sex couples can and should take advantage of the law and legally adopt any minor children to whom they are not biologically related.

For more information, visit http://www.littmankrooks.com.

Financial planning for a child with special needs is the first step in providing a solid base of lifetime support. Once the child turns 18, his or her income will be used to determine eligibility for public benefits. Earning too much — for example because of contributions from parents — will cause the loss of public benefits. This can be avoided through a Supplementary Needs Trust. Funds paid into the Trust will not be counted as income and, therefore, will not affect eligibility for benefits. Planning for lifetime care must include instructions as to how the funds in the Trust are to be distributed and who will manage the trust.

Other questions to be considered:

• Do special arrangements need to be made with a college or other educational institution?
• What arrangements need to be made for housing?
• Will the individual need care of a legal guardian even after turning 18?
• Can the individual execute a Power of Attorney or Health Care Proxy?

Growing up and moving into adulthood is difficult for any adolescent, and even more so for a child with special needs. However, appropriate special needs planning can help make the transition go more smoothly for the whole family.

To learn more, visit http://www.littmankrooks.com.

A resident must be considered “chronically ill” in order for assisted care expenses to be deductible. This means a doctor has certified that the individual cannot perform at least two activities of daily living — for example, eating or bathing — and that the individual requires supervision because of a cognitive impairment. The services must also be administered in accordance with a plan of care prescribed by a doctor, nurse or social worker. Generally, only medical expenses my be deducted, but room and board expenses may qualify for deduction if the patient is chronically ill and in the nursing home for the purpose of medical care.

For more information, visit http://www.littmankrooks.com.

Once a minor child has been legally adopted, parents should draft an Authorization for Consent to Medical Treatment of a Minor, detailing who is authorized to make medical decisions for the child, and appoint a guardian and successor guardians. Taking the proper legal precautions will ensure that minor children will be cared for in accordance with the wishes of their parents and primary caregivers.

For more information, visit http://www.littmankrooks.com.

The Section 811 program provides a benefit to individuals with disabilities in the form of housing vouchers. These “Section 8” vouchers help low income individuals afford housing by paying the difference between the rent and what the tenant can afford. Section 8 vouchers, paid to government-approved landlords, increase housing options for people who may otherwise not be able to afford to rent an apartment. The Section 811 program provides such vouchers specifically to individuals with disabilities.

According to a release from Senator Menendez’s office, the legislation would improve and expand HUD’s Section 811 program by:

• Increasing the number of available housing vouchers for people with disabilities and ensuring that vouchers continue to be used to help people with disabilities.

• Encouraging the integration of mixed-used developments into the program and allowing funds from Low Income Housing Tax Credits and the HOME program to be used.

• Extending the length of rental assistance contract terms from 20 years to 30 years for projects using Low Income Housing Tax Credits.

The bill has attracted many endorsements, including support from such organizations as the National Association of County Behavioral Health and Developmental Disability Directors, the National Council for Community Behavioral Healthcare, the National Disability Rights Network and the National Multiple Sclerosis Society.

For more information, visit http://www.littmankrooks.com.

This week, the administration declared in a brief that the act is discriminatory and should be repealed by Congress, although the Justice Department will still offer a reluctant defense of the act. The brief intends only to clarify the official stance of the administration in favor of repeal of the act.

Assistant Attorney General Tony West wrote, in the brief filed with the U.S. District Court for the Central District of California, “This administration does not support DOMA as a matter of policy, believes that it is discriminatory and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality.”

For more information, visit http://www.littmankrooks.com

We have commented on Michael Jackson’s death and the professional estate plan he created during his lifetime. Jackson protected his children and his assets through a Will, trusts, guardianship appointments, and trustee appointments, making his intentions for his estate clear and legally binding.

From the initial reports on McNair’s death, however,  it appears that he died intestate, meaning he died without a Will. It follows that since he had no Will, McNair’s estate will be divided according to Tennessee law. Reportedly, McNair’s wife will receive 33% of the estate, and his four children will divide the rest. The courts will choose an administrator, which is likely to be his former wife.

Not being able to decide how your personal assets should be distributed is only one of the many downfalls of poor estate planning. Assuming that McNair also did not set up any trusts for his wife and children, his beneficiaries will lose a much greater share of his estate to estate taxes. This is unnecessary. McNair’s beneficiaries will also not be able to take advantage of any creditor protections or gifting advantages that trusts can provide.

Most people recognize the importance of estate planning but believe that it can be put off until some future time. No one likes to think about the possibility of an unexpected death. On the flip side, everyone benefits from estate planning. Everyone, regardless of age or income, deserves to determine the fate of their person and their property in the event that they cannot speak for themselves. Everyone deserves the peace of mind that comes from knowing that their loved ones will be cared for, and their wishes will be carried out.

There are several key elements that should be included in a written revocation of a power of attorney. These are:

• Your name
• A statement that you are of sound mind and your wish to revoke the power of attorney
• The date the original power of attorney was executed
• The person selected as your agent
• Your signature

The document should then be sent to the agent and any other individuals, businesses, or institutions that have a copy of the power of attorney that is being revoked. It is also a good idea to get the old power of attorney back from your agent. If this cannot be done, send the agent a certified letter, stating that the power of attorney has been revoked.

After revoking a power of attorney, make sure you appoint a new agent. An estate planning lawyer can assist you with revoking an old power of attorney and appointing a new one.