2008-07-25 / Columnists

Spotlight On Elderlaw

Not Just For Senior Citizens
Commentary By Nancy J. Brady, RN, Esq. And Linda Faith Marshak, Esq.

Much of what we (as well as other attorneys practicing in the field of elderlaw and estate planning) write about focuses on the needs of "baby boomers" and senior citizens. While that information is often timely and pertinent, certain topics don't apply exclusively to those age groups - there are many examples of legal documents that are necessary for younger adults who are married with minor children as well as younger adults who are single having never been married or who are widowed - so for those younger adults: HEY KIDS, LISTEN UP!

Are you too young for a Last Will and Testament?

If you are over eighteen years of age, the answer is NO! If you are the parent of minor children a Will is a necessary document as a legal declaration of who YOU would like to raise your children, and protect their assets in the event both parents are deceased. Naming godparents during a religious ceremony provides no legal basis for the issue of who will raise your children. Naming guardians in your Will does provide for your children's future care. Additionally, in the Will, trustees must be named to manage the assets left to your children to cover the cost of their care, education and health expenses. Note that a loving guardian is not always a good money manager and that these important jobs may be given to different individuals. These are your decisions, but only if you formalize them in a written Will.

What if you have a child with special needs and that child is re-ceiving, or may be entitled to receive government benefits at the time of your death? If your disabled child inherits from you through your Will, either before or after he or she is receiving support from a government program, eligibility may be denied, or existing coverage or services may be jeopardized if a sum of money is inherited. How can this be avoided? By executing a Will and with special Supplemental Needs Trust language, assets can be set aside for the benefit of that child without jeopardizing government benefits. The establishment of this testamentary trust, allows the assets to be placed in a special account in the trust name (not in the name of the disabled individual) and a trustee is named to manage the assets, using the monies only for the benefit of the disabled person.

Note - if an individual dies without a Will (known as intestate), the laws of intestacy in NY state apply and a surviving spouse will inherit $50,000.00 plus one half of the deceased spouse's estate and, with the children sharing the other half. In addition to this distribution being contrary to what you may have desired, it will result in disruption of any benefits a disabled child of yours may be receiving, since in that case the child will receive his or her share outright instead of in a trust with the necessary language to prevent this situation.

Lastly, if you have never been married, and die without a Will, the laws of intestacy will also apply, but your parents will inherit, provided they survive you. This may be what you want, but if it's not, it may have unintended results - especially since as our parents age, they may be divesting themselves of assets as part of their estate plan, or long term care planning. It is your decision how your assets pass on your death, but only if you have a Will for those assets that may not pass outside of probate.

Are you too young for a health care proxy?

The answer is, again - if you are over the age of eighteen, NO! This document provides for an agent (a person you choose) to make health care decisions for you ONLY if you are unable to make them for yourself. This document can, if you wish, document specific instructions from you - including your wishes regarding artificial nutrition and hydration, organ donation, and other end of life issues. Most people dislike thinking about their own incapacity or death, as was most likely the situation in Florida when Terri Schiavo's parents and husband could not agree her end of life care. A validly executed health care proxy will prevent those unfortunate delays in your wishes being followed.

Are you too young for a Power of Attorney?

The answer is once again NO! A power of attorney is a document in which you appoint one or more people (agents) to stand in your shoes to make financial decisions for you. While it's true that power of attorney may not be required to access most jointly held assets, many situations do require a power of attorney, one example (among many) being the sale or transfer

of real property. Without a validly executed power of attorney form your family will have to petition a court to appoint a guardian for you, and the decision as to who that agent will be will not be yours. This proceeding will also be time consuming and expensive. Make these decisions for yourself!

For more information about these and other pertinent topics, as well as our upcoming Seminar dates, please contact the law office of Brady & Marshak, LLP at 718-945-7777.

Return to top

Email Us
Contact Us

Copyright 1999 - 2016 Wave Publishing Co. All Rights Reserved

Neighborhoods | History



Check Out News Podcasts at Blog Talk Radio with Riding the Wave with Mark Healey on BlogTalkRadio