David L. Leon, PC Attorney (New York) » Estate planning

Under Medicaid, what is a medical necessity?

admin — Sun, 29 Aug 2010 00:55:49 +0000

Medically Necessary (or Medical Necessities) per the Act are:

• Reasonably necessary to prevent illness or medical conditions, or provide early screening, interventions, and/or treatments for conditions that cause suffering or pain, cause physical deformity or limitations in function, threaten to cause or worsen a handicap, cause illness or infirmity of a recipient, or endanger life;

• Provided at appropriate locations and at the appropriate levels of care for the treatment of clients’ conditions;

• Consistent with health-care practice guidelines and standards that are issued by professionally-recognized health-care organizations or governmental agencies;

• Consistent with the diagnoses of the conditions; and

• No more intrusive or restrictive than necessary to provide a proper balance of safety, effectiveness, and efficiency.

Source: www.hhsc.state.tx.us

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What is hospice care? Or comfort care?

admin — Sun, 29 Aug 2010 00:55:18 +0000

Hospice care refers to a change in the style of treatment of a disease. Typically, hospice care refers to medical treatment or therapy in light of the impending death of a patient. The goal of hospice is to help terminally ill patients with “comfort care.”

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What is an ADL?

admin — Sun, 29 Aug 2010 00:54:38 +0000

In insurance and Medicaid/Medicare lingo, ADL is often used as an acronym for Activities of Daily Living. Activities of Daily Living are considered essential to daily personal duties of self maintenance. These duties including personal hygiene, getting dressed, using the restroom, and eating. Normally, these activities are placed on a checkbox style grid, and an applicable insurance policy will pay on an amount based upon the number of ADLs that a subscriber can or cannot perform on a daily basis.

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What is the difference between Medicare and Medicaid?

admin — Sun, 29 Aug 2010 00:54:00 +0000

Both are federal programs that help pay for medical needs.

However, Medicare, which is applied for at the Social Security Office, is for: People 65 and over, people of any age who have kidney failure or long term kidney disease and/or people who are permanently disabled and cannot work. There is no income requirements for Medicare.

Medicaid is for low income individuals including: pregnant women, children under the age of 19, people 65 and over, the blind, disabled and/or who need nursing home care. There are strict financial and income guidelines that have to be adhered to in order to qualify for Medicaid assistance.

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What is POD or TOD? What is a Totten Trust?

admin — Thu, 15 Jul 2010 13:35:55 +0000

POD is “Pay on Death” and TOD is “transfer on death.” These accounts will designate a person to whom the account is given upon the death of the account holder. These may also be called a “Totten Account” or a “Totten Trust.”

For example, Bill has an account at Milo Bank. The account is POD Steve. Upon Bill’s death, Steve may show Milo Bank a copy of Steve’s death certificate. Upon presentment, Milo Bank will pay the contents of Steve’s account to Bill, because Bill was the listed beneficiary of Steve’s POD account.

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Who can make a will under New York law?

admin — Thu, 15 Jul 2010 04:57:25 +0000

Anyone over the age of 18, who is of sound mind and memory may make a will under New York law.

N.Y. EPT. LAW § 3-1.1 : NY Code – Section 3-1.1:

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What is “issue” as used in a will?

admin — Thu, 15 Jul 2010 04:49:35 +0000

(a) Unless a contrary intention is indicated:
(1) Issue are the descendants in any degree from a common ancestor.
(2) The terms “issue” and “descendants”, in subparagraph (1), include
adopted children.

N.Y. EPT. LAW § 1-2.10 : NY Code – Section 1-2.10: Issue

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What is a fiduciary?

admin — Thu, 15 Jul 2010 04:47:30 +0000

A fiduciary is one who can act on behalf of another, typically as a personal representative. A fiduciary duty means that the person acting as a fiduciary must put the other person’s interests above his or her own.

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What is a codicil?

admin — Thu, 15 Jul 2010 04:40:56 +0000

A codicil is a change to an otherwise valid will. A codicil is a supplement to a will, either adding to, taking from or altering its provisions or confirming it in whole or in part by republication, but not totally revoking such will.

N.Y. EPT. LAW § 1-2.1 : NY Code – Section 1-2.1: Codicil

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What happens if someone dies in New York without a will?

admin — Mon, 31 May 2010 01:12:00 +0000

The intestacy laws of the State of New York apply in situations where someone dies in New York without a will. The intestate laws of decent and distribution are complex, but here is the gist:

1. If there is a spouse, but no children, then the spouse would inherit all.
2. If there is both a spouse and children (of the deceased), then the spouse would receive $50,000, plus one half of the property. The balance would go to the children of the deceased.
3. If there are children, but no spouse, then the children would share equally.
4. If there is no spouse or children, then the surviving parents would receive the estate.
5. If there are no children, spouse or parents, then the aunts and uncles would receive the estate.

The list continues with cousins, etc.

Sec. 4-1.1 of the Estates, Powers and Trust Code

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I left my house to someone under my will. I've since mortgaged the house. What happens?

admin — Mon, 03 May 2010 01:21:52 +0000

The beneficiary will receive the house, subject to the mortgage.

EPT 3-4.2

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How do I revoke a New York will that I've written?

admin — Mon, 03 May 2010 01:19:57 +0000

There are several ways to revoke a will in New York. The two most common:

1. Write a new will, and in the new will, mention that you have revoked your prior will.

2. Tear up or destroy your old will.

EPT 3-4.1

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I'm afraid of someone contesting a will after I write it. Can I cut someone out of a New York will if they contest it?

admin — Mon, 03 May 2010 01:08:47 +0000

Yes, this is called an “in terrorem” clause in a will. An in terrorem clause typically states that should a beneficiary contest the will, then the beneficiary’s gift under the will lapses. There are exceptions to the rule under EPT 3-3.5, such as probable claims that a will is a forgery, or that the will was revoked.

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What does "per stirpes" mean?

admin — Mon, 03 May 2010 01:04:53 +0000

Per stirpes means “by the stripes.” Typically, in an estate planning context, a per stirpes distribution means that if a testator gives a gift to a beneficiary, but the beneficiary dies before the testator, then the gift shall go to the heirs of the beneficiary.

An example:

Linus makes a will leaving property to 1/2 Charlie and 1/2 Sophia. Charlie has two children, Lola and Paloma. Sophia has no children. Charlie dies first, Linus second. Linus’s gift can’t go to Charlie, because he’s already deceased. Linus’s gift to Charlie would go to Charlie’s children (1/4 to Lola and 1/4 to Sophia) and the remaining half would go to Paloma.

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My family member left property to a sibling in a will written in New York. The sibling died before the testator. What happens to that sibling's share?

admin — Mon, 03 May 2010 00:55:09 +0000

This is a common problem. If an heir predeceases a testator, then the gift may lapse, in some instances. You would need to see the specific language of the will. If the will is silent, then rhis gets more complicated if the heir is a sibling to the testator, thanks to EPT (§3-3.3):

If the will was written BEFORE 9/1/92: Whenever a testamentary disposition is made to the issue or to a brother or sister of the testator, and such beneficiary dies during the lifetime of the testator leaving issue surviving such testator, such disposition does not lapse but vests in such surviving issue, per stirpes.

If the will was written ON or AFTER 9/1/92: Whenever a testamentary disposition is made to the issue or to a brother or sister of the testator, and such beneficiary dies during the lifetime of the testator leaving issue surviving such testator, such disposition does not lapse but vests in such surviving issue, by representation.

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What are the basics of a will in New York?

admin — Mon, 03 May 2010 00:50:17 +0000

A will is a legal document in which a person (called the testator) gives instructions to another person or entity (called an executor) to dispose of property (called the estate) by giving it to various people or entities (called beneficiaries) upon the death of the testator.

Upon the death of the testator, the executor will file the will with the court (called probate) and ask the judge for authority to carry out the wishes contained in the will.

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I am going to receive property under a New York will. Can I be a witness to the will?

admin — Mon, 03 May 2010 00:44:33 +0000

Yes, but it’s a very, very bad idea. If the will cannot otherwise be proven without the witnesses’s testimony, then the gift to the witness ay either be voided, or reduced to whatever the witness would have received had there been no will.

(EPT §3-3.2)

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Can I handwrite my own will in New York, and avoid having to use witnesses, etc.?

admin — Mon, 03 May 2010 00:40:42 +0000

Under very limited circumstances, you can do a handwritten (holographic) will in New York. In New York, you can do a holographic will without the necessary formalities required by Sec. 3-2.1 of the code if you are:

(1) A member of the armed forces of the United States while in actual
military or naval service during a war, declared or undeclared, or other
armed conflict in which members of the armed forces are engaged.
(2) A person who serves with or accompanies an armed force engaged in
actual military or naval service during such war or other armed
conflict.
(3) A mariner while at sea.

However, such wills will later become invalid after the person comes home from war, returns from sea, etc.

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Who can make a will under New York law?

admin — Sun, 02 May 2010 23:52:36 +0000

New York requires that a person making a will must be (1) over the age of 18 years and (2) be of sound mind and memory.

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