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.

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.

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
planning, or New York
Special Needs visit href="http://www.littmankrooks.com">http://www.littmankrooks.com.

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.

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.

With a Revocable Trust, you retain the right to add or subtract assets to the trust at any time. This gives you a great degree of flexibility, as you can manage the trust according to your family’s changing life circumstances. If you choose this type of trust, it is important to know that the government considers the assets in the trust part of your estate. If you die, everything in your trust will be included in your estate for tax purposes and may be subject to lawsuits. That means that if someone attempts to sue you after your death, the assets in your trust are susceptible.

An Irrevocable Trust, on the other hand, is separate from your estate, and you cannot remove the assets you place in it. These benefits will remain in the trust solely for the benefit of the person with disabilities. Even if you need these assets due to a personal situation, you cannot draw on them. While this may be considered a drawback, irrevocable trusts do have their benefits. For one, any assets that you place in the trust cannot be touched by your creditors for outstanding debts or taxes. In addition, the trust cannot be touched by any creditors of the person with the disability.

• Fully understanding the needs of the beneficiary
• Comprehending the language and intent of the trust document
• Handling an inventory of trust assets
• Collecting income and managing all trust assets
• Maintaining excellent records of all financial transactions
• Obtaining the proper IRS tax registration for the trust
• Filing both state and federal fiduciary income tax returns
• Establishing different accounts to manage the trust assets
• Arranging for the safekeeping and security of trust assets
• Hiring and monitoring service providers
• Maintaining good communication with the beneficiary and his or her service providers
• Assisting in any unforeseen or emergency situations

Although some of these issues can be complex, family members may be able to handle them. However, it may be a good idea to let family members focus on other issues and choose a professional trustee, who has extensive experience in handling those tasks.

Many parents believe that they can continue to care for their child with special needs by leaving money to a relative. This seems like a good idea because a relative knows the child personally and parents think they can trust them to care for their children. However, relatives are not legally bound to spend the money left to them on the child. In addition to this, the money can be taken from the appointed relative by a number of different parties, including creditors. Also, the money may be lost in a divorce settlement.

Many parents also make the mistake of leaving money to one of their children who does not have a disability, expecting this child to care for the one with special needs. However, this may be a bad idea because it also does not legally bind the child to use this money to care for the sibling with the disability. Also, doing so can pose undue stress on the sibling. If he or she already has to deal with the pain of losing parents, it may be too difficult for the sibling to deal with the added responsibility of caring for a child with special needs.

Rather than entrusting money directly to a relative or sibling, parents should consider forming a Special Needs Trust. Doing so will ensure that the child will be well taken care of and that the money devoted to this cause will not be taken by any other source and must be used for the purpose for which it was intended. Establishing a Special Needs Trust for a child with a disability is the best way to ensure the quality of his or her care in the future.

With a Revocable Trust, you retain the right to add or subtract assets to the trust at any time. This gives you a great degree of flexibility, as you can manage the trust according to your family’s changing life circumstances. If you choose this type of trust, it is important to know that the government considers the assets in the trust part of your estate. If you die, everything in your trust will be included in your estate for tax purposes and may be subject to lawsuits. That means that if someone attempts to sue you after your death, the assets in your trust are susceptible.

An Irrevocable Trust, on the other hand, is separate from your estate, and you cannot remove the assets you place in it. These benefits will remain in the trust solely for the benefit of the person with disabilities. Even if you need these assets due to a personal situation, you cannot draw on them. While this may be considered a drawback, irrevocable trusts do have their benefits. For one, any assets that you place in the trust cannot be touched by your creditors for outstanding debts or taxes. In addition, the trust cannot be touched by any creditors of the person with the disability.

• Fully understanding the needs of the beneficiary
• Comprehending the language and intent of the trust document
• Handling an inventory of trust assets
• Collecting income and managing all trust assets
• Maintaining excellent records of all financial transactions
• Obtaining the proper IRS tax registration for the trust
• Filing both state and federal fiduciary income tax returns
• Establishing different accounts to manage the trust assets
• Arranging for the safekeeping and security of trust assets
• Hiring and monitoring service providers
• Maintaining good communication with the beneficiary and his or her service providers
• Assisting in any unforeseen or emergency situations

Although some of these issues can be complex, family members may be able to handle them. However, it may be a good idea to let family members focus on other issues and choose a professional trustee, who has extensive experience in handling those tasks.

Many parents believe that they can continue to care for their child with special needs by leaving money to a relative. This seems like a good idea because a relative knows the child personally and parents think they can trust them to care for their children. However, relatives are not legally bound to spend the money left to them on the child. In addition to this, the money can be taken from the appointed relative by a number of different parties, including creditors. Also, the money may be lost in a divorce settlement.

Many parents also make the mistake of leaving money to one of their children who does not have a disability, expecting this child to care for the one with special needs. However, this may be a bad idea because it also does not legally bind the child to use this money to care for the sibling with the disability. Also, doing so can pose undue stress on the sibling. If he or she already has to deal with the pain of losing parents, it may be too difficult for the sibling to deal with the added responsibility of caring for a child with special needs.

Rather than entrusting money directly to a relative or sibling, parents should consider forming a Special Needs Trust. Doing so will ensure that the child will be well taken care of and that the money devoted to this cause will not be taken by any other source and must be used for the purpose for which it was intended. Establishing a Special Needs Trust for a child with a disability is the best way to ensure the quality of his or her care in the future.

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.

Waiting to start on an estate plan until “sometime in the future” or “a life changing event” such as marriage or having children is unnecessary due to amount of flexibility available in an estate plan. In fact, waiting to begin planning can cause undue stress and financial hardship for loved ones should something unexpected occur. It is always important to have an estate, and it is equally important to review the plan regularly to make sure it still conforms to current living situations.

The person named as your attorney-in-fact does not have to be a lawyer. In fact, when choosing a person to act as an agent, the most important characteristics to look for are trustworthiness, organizational and management skills, and good common sense. Depending on the complexity of the estate, it may be a good idea to name someone familiar with financial matters, as well as someone familiar with your wishes and personal habits. Make sure your attorney-in-fact has access to all necessary information, such as accounts, PIN numbers, and passwords that will be necessary should he or she have to begin making financial decisions on your behalf.

A trust is simply a legal document that allows an individual to determine how and when his or her assets will be distributed upon death. The main advantage of a trust is that it allows property to be directly transferred to beneficiaries, skipping the sometimes costly and lengthy court-supervised probate process. Trusts can also help with asset protection, gifting, and tax planning.

Placing assets into a well-managed trust can help optimize financial gains and benefits earned during one’s lifetime through work, good planning, and investment. Anyone wishing to protect money and property from taxes, creditors, and the expense of probate can benefit from the flexibility and privacy of a trust.

• Who should be notified of your death?
• Did you prepare a Will? If so, where do you keep it?
• If you own a life insurance policy, pension, annuity, or retirement account, where are the applicable documents stored?
• Where are the records for your bank accounts, stocks, bonds, or safety deposit box(es)?
• If you own real estate, where are the deeds?
• If you own a business, where are your critical documents stored?

Failure to organize this information and leave accurate instructions about how to retrieve it can be costly. If you own assets such as  stocks, bonds, real estate, insurance policies, and even bank accounts, these assets, if unknown to your family, may be turned over to the state government. This happens more than people may think, with millions of dollars going into state treasuries each year.

Because of income restrictions, leaving assets directly to a child with special needs can cause a greater burden for the child. If he or she has been receiving public benefits, those benefits may be lost. This situation can be avoided through special needs planning and the establishment of a Special Needs Trust. Careful planning and the use of a Special Needs Trust will help ensure that a child with special needs may receive support without losing important public benefits.

Other topics to be discussed during the two-day conference include, Conservation Easements and Ethical Issues in Asset Protection.

Bernard A. Krooks, Esq., is a founding partner of the law firm Littman Krooks LLP, with offices in New York City, White Plains, NY, and Fishkill, NY. He is president of the Special Needs Alliance (SNA). He is past president of the National Academy of Elder Law Attorneys, a fellow of NAELA, past chair of the NAELA Tax Special Interest Group, and former editor-in-chief of the NAELA News. He co-authored the NYSBA publication Elder Law and Will Drafting and is an adjunct asst. professor at NYU Center for Finance, Law, and Taxation. Mr. Krooks is an authority on elder law, special needs planning, and estate planning. He has been quoted in many national publications.

Learn more at http://www.littmankrooks.com.

The urge to ignore or put off estate planning can be particularly strong during a downturn in the economy. However, comprehensive estate planning is more important than ever during tough economic times.

According to Mr. Krooks, everyone should have basic estate planning elements in place, such as a Will and trust documents, all of which should be evaluated on a regular basis. Even as economic circumstances change, these documents remain valid. But, says Krooks, “valid” may not be optimal. Long-term planning must take into account both current circumstances and projected changes in personal finances and the overall economy.

One example of such changes is the continued burden that is being placed on state governments and, in turn, locally administered programs. Krooks continues, “The recession has hit state and local governments hard… It is almost certain that there will be additional cutbacks in long-term care services from government programs. The extent that you have assumed that the government will be there to provide your long-term care needs, that assumption may not be as defensible as it once was.”

Mr. Krooks also suggests that there are some specific circumstances that can serve as indicators that an estate plan needs adjustment. These include:

• Having an estate plan that is more than 5 years old;
• Moving;
• Learning of a family member with a disability;
• Having counted on Medicaid to pay for long-term care expenses;
• Large changes in net worth; and
• Changes in a child or children’s net worth or living situation

Changing economic circumstances can provide an opportunity to reevaluate documents that may be out of date or irrelevant. In addition to helping organize finances and assets in the short term, estate planning during tough economic times has obvious long-term benefits. Continuing to plan and make contributions to trusts, life insurance policies, retirement and other accounts will minimize the overall damage that could be done to your estate in the long-term.

Bernard A. Krooks, Esq., is a founding partner of the law firm Littman Krooks LLP, with offices in New York City, White Plains, NY, and Fishkill, NY. He is president of the Special Needs Alliance. He is past president of the National Academy of Elder Law Attorneys, a fellow of NAELA, past chair of the NAELA Tax Special Interest Group, and former editor-in-chief of the NAELA News. He co-authored the NYSBA publication Elder Law and Will Drafting and is an adjunct asst. professor at NYU Center for Finance, Law, and Taxation. Mr. Krooks is an authority on elder law, special needs planning, and estate planning matters. Mr. Krooks has been quoted in many national publications.

To learn more about estate planning and long term care planning, visit http://www.littmankrooks.com.