Too much of a Good Thing –

Duplicate Original Wills: the Danger Zone

Our New York Court of Appeals (the State’s highest Court) recently ruled on an appeal by the children of the Decedent sending the matter back to the Surrogate’s Court for a determination if a 1996 pre-divorce Will can transfer the family home, that had been in the family “for generations”, out of the blood line to the father of the ex-husband. (In the Matter of the ESTATE OF Robyn R. LEWIS, Deceased, June 4, 2015.)

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The Graduate?

With apologies to Mr. Robinson, it’s more than the plastic!

With your new grad, consider new legal requirements – they are now adults?

Parents and guardians often forget, or fail to consider, that once the proud graduate turns 18 s/he is now, in the eyes of the law, and the doctor, and the hospital and the school an adult.  Mom, Dad and Aunt Ethel have no right to see, hear or obtain the graduate’s personal information without their consent.

Off to College – you get to pay but not to see.

Schools and colleges, hospitals and doctors are restricted, by some very strict laws, from exposing and discussing the personal and private information of their students/patients.  So, grades, attendance, disciplinary and medical records are all out of bounds to mom and dad without the consent of the graduate.

Many parents are shocked and surprised when, in their usual parental role, they expect to manage the graduate’s affairs, they are met with a blank stare, or silence, following a query to the bursar, registrar or dean of discipline. And, in an emergency, say injury or an accident or stranding while a student abroad, parents and guardians should be prepared and able to gain access to protected information to help. Continue reading

Mother Loved Me Best! – It’s all about the money.

Court slams adult children jockeying for mom’s cash.

A refrain often heard in Article 81 Guardianship proceedings is : “I only want what’s best for ” Mom, Dad or Aunt Ethel! Sadly, too often that oft repeated claim is a smokescreen hiding the true intent of the speaker: to hold on to the money!

A recent case illustrates how sibling rivalry, avarice and perhaps a lifetime of unreconciled mommy issues can impact, on a most profound level, the well being of and care for a frail and dependent Senior.

The Bronx County Supreme Court (the Court of general trial jurisdiction in New York) essentially kicked the son and daughter of a mother found to be an Incapacitated Person to the curb based on their egregious manipulation of their mother and her assets in competition with each other for their own benefit. (See, In the Matter of the Application of CARYL S.S., Petitioner, For The Appointment of A Guardian For the Person and/or Property of Valerie L.S., An Alleged Incapacitated Person, Respondent.
No. 91809/14. | March 23, 2015.) Continue reading

No Will – There IS a Way!




Clients or family members often express concern, after the passing of a loved one, that they cannot locate Mom’s or Dad’s Will or that there is no Will. Often, a bank or other institution requires court documents to process the assets or claims of the decedent. We refer to a person who dies without a Will as having died “intestate”.

Intestacy – The Law of Descent and Distribution

Under these circumstances the New York Law of Intestacy (or Descent and Distribution) provides for a process known as Administration and the appointment of an Administrator to manage the estate and affairs of the decedent and to distribute the property as provided in the Law of Descent and Distribution – Intestacy.

The Administrator is the fiduciary of the decedent’s estate, just as an Executor is, in the case where a decedent left a Will.

As in a probate proceeding, the statute requires that all persons who would be entitled to take the property of the decedent pursuant to the law of intestacy (the “distributees”) be served with a citation and notice of the Administration Proceeding. In this way, all parties have the opportunity to express an opinion as to who will be appointed the Administrator or to object to the appointment of a particular person who may be petitioning for Letters of Administration.

The Petition is filed by an interested party asking for Letters of Administration to be issued to a designated person. Usually the Petitioner is asking for letters to be issued to them. Just as in the probate process, it is important to locate all distributees so that the court has complete jurisdiction and can issue a decree that will bind all parties. If distributees are missing, unknown or under a disability (including age or mental disease or defect) the court will require diligent efforts to find the missing distributes and will appoint a Guardian ad litem to protect the interests of the person who is missing or under a disability.

Assuming, however, that all distributees are known and none are under a disability, and that there is no objection from any distributee, the court will appoint an Administrator of the estate who will be charged with marshaling the decedent’s assets, paying administration expenses, funeral expenses, taxes and debts and to distribute the remaining assets among the distributees as provided in the statute. Among the duties of the Administrator, would be to file federal or New York State income tax returns for the decedent and, if necessary, the estate.

If the estate is of a size to be subject to federal or New York State estate taxes, the administrator is required to file the appropriate returns. Final distribution may be delayed until the taxing authorities have approved the estate tax filings.

The Black Sheep

The statute directs the distribution of the net assets of the estate to the spouse and children, in prescribed portions, or to the children or more remote descendents if there are no spouse or children. This distribution scheme can be a cause for concern and even conflict among family members.

The spouse may have been the intended recipient of all of the assets but the spouse may have to share the estate with minor children. Or, a decedent may not have wanted to distribute assets to a particular family member or group of family members.

For example, if the decedent were estranged from his son and had no contact with or disharmonious relations with the son and his family, the decedent could have explicitly excluded them from any portion of the estate in a properly drafted will. However, in intestacy, the disfavored son will be included as an equal  beneficiary with his presumably favored siblings.

Similarly a decedent may have wanted to preclude the appointment of a particular person or group of persons as executor of his or her estate. In intestacy distributees equally positioned generally have an equal right to be named Administrator of the decedent’s estate; each of the decedent’s children, for example, would have an equal claim to be Administrator, assuming the decedent’s spouse had predeceased.

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Managed Long Term Care – Dual Eligible Medicaid Home Care



Homecare managed by the private sector

Recent changes to the Medicaid Home Care program (driven by a hoped for cost saving) requires all “dual eligible” applicants (receiving Medicare and Medicaid) and others upon approval for home care services to select and enroll in a Managed Long Term Care Plan (“MLTC”) run by a number of approved providers.  The Medicaid program pays the provider a fixed fee per enrolee (“capitation”) and the MLTC determines the level and kind of services the enrolee requires.

Those who where were receiving Medicaid home care before MLTC became mandatory will continue to receive the same kind and level of services without change for at least 60 days.  New enrolees, however may find that the kind and level of services are limited because of the strong incentive of the plan to minimize expenses and maximize profit.

More importantly for all, however, the first level of appeal from the services decision is to the plan itself (the wolf guarding the hen house?); after the internal appeals are exhausted an appeal (a “fair hearing”) to the state Department of Health is possible.  In any event, the MLTC approach bodes ill for seniors and their families; look out for extended struggles to obtain the services needed.

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Managed Long Term Care – Medicaid Home Care


New rules affect Medicaid homecare.

Applicants for Medicaid home care who are also covered by Medicare (“Dual Eligibles”), and others, are now required, upon approval for home care, to select and enroll in a Managed Long Term Care (“MLTC”) plan, including enrollment on a HMO. The MLTC selects and pays the providers and coordinates all care, including non-covered services.

Applicants have a limited number of days following the edibility approval to select a MLTC or one will be assigned randomly by Medicaid.  This decision will require investigation of the available plans, their services, an in-home assessment.  One major consideration will probably whether the applicant’s current medical providers are in-network.  Shopping around will be the order of the day. Continue reading