Revoking a Power of Attorney

 power of attorney

If for any reason, you become unhappy with the person you have appointed to make decisions for you under a durable power of attorney, you may revoke the power of attorney at any time. There are a few steps you should take to ensure the document is properly revoked.

While any new power of attorney should state that old powers of attorney are revoked, you should also put the revocation in writing. The revocation should include your name, a statement that you are of sound mind, and your wish to revoke the power of attorney. You should also specify the date the original power of attorney was executed and the person selected as your agent. Sign the document and send it to your old agent as well as any institutions or agencies that have a copy of the power of attorney. Attach your new power of attorney if you have one.

You will also need to get the old power of attorney back from your agent. If you can’t get it back, send the agent a certified letter, stating that the power of attorney has been revoked.

Because a durable power of attorney is the most important estate planning instrument available, if you revoke a power of attorney, it is important to have a new one in place. Your attorney can assist you in revoking an old power of attorney or drafting a new one.

For more information about Power of Attorney, click here>

To Collect Debts, Nursing Homes Are Seizing Control Over Patients

The need to protect your assets is always at hand. Planning for long-term care with an elder law attorney can help protect your assets for the in home spouse and heirs. Medicaid Planning or Life Care Planning helps to ensure that you or your loved one get the best possible long-term care and the highest possible quality of life, whether at home, in an assisted living facility, or in a nursing home. The following article brings this issue to light.

Article via The New York Times: 

Photo credit: Piotr Redlinski for The New York Times

To Collect Debts, Nursing Homes Are Seizing Control Over Patients.

Lillian Palermo tried to prepare for the worst possibilities of aging. An insurance executive with a Ph.D. in psychology and a love of ballroom dancing, she arranged for her power of attorney and health care proxy to go to her husband, Dino, eight years her junior, if she became incapacitated. And in her 80s, she did.

Mr. Palermo, who was the lead singer in a Midtown nightclub in the 1960s when her elegant tango first caught his eye, now regularly rolls his wife’s wheelchair to the piano at the Catholic nursing home in Manhattan where she ended up in 2010 as dementia, falls and surgical complications took their toll. He sings her favorite songs, feeds her home-cooked Italian food, and pays a private aide to be there when he cannot.

Legal DIY Web Sites Are No Match for a Pro, Consumer Reports Concludes

After road testing three leading Web sites that help you create your own will, power of attorney, and other important legal documents, Consumer Reports has concluded that none of the will-writing products is likely to entirely meet your needs unless those needs are extremely simple.

Consumer Reports

The independent non-profit testing agency evaluated three online services: LegalZoom, Nolo, and Rocket Lawyer. Using online worksheets or downloads, researchers created a will, a car bill of sale for a seller, a home lease for a small landlord, and a promissory note. They then asked three law professors — including Gerry W. Beyer of Texas Tech University School of Law, who specializes in estates and trusts — to review in a blind test the processes and resulting documents.

In his evaluation of the will-making programs, Prof. Beyer said that two of them could create good simple wills but he found deficiencies in all three, including features that could lead a user to add clauses that contradict other parts of the will.

Consumer Reports’ verdict?   “Using any of the three services is generally better than drafting the documents yourself without legal training or not having them at all. But unless your needs are simple—say, you want to leave your entire estate to your spouse—none of the will-writing products is likely to entirely meet your needs. And in some cases, the other documents aren’t specific enough or contain language that could lead to ‘an unintended result,’ in [a professor’s] words,”

An article on the study, titled “Legal DIY websites are no match for a pro,” appeared in Consumer Reports.  To read it, click here.

Consumer Reports’ findings accord with ElderLawAnswers’ own evaluation of online estate planning programs. For their White Paper on these programs, click here.

For a FREE DOWNLOAD : GUIDE TO ESTATE PLANNING click here.

Three Reasons Why Joint Accounts May Be a Poor Estate Plan

Many people, especially seniors, see joint ownership of investment and bank accounts as a cheap and easy way to avoid probate since joint property passes automatically to the joint owner at death. Joint ownership can also be an easy way to plan for incapacity since the joint owner of accounts can pay bills and manage investments if the primary owner falls ill or suffers from dementia. These are all true benefits of joint ownership, but three potential drawbacks exist as well:

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  1. Risk. Joint owners of accounts have complete access and the ability to use the funds for their own purposes. Many elder law attorneys have seen children who are caring for their parents take money in payment without first making sure the amount is accepted by all the children. In addition, the funds are available to the creditors of all joint owners and could be considered as belonging to all joint owners should they apply for public benefits or financial aid.
  2. Inequity. If a senior has one or more children on certain accounts, but not all children, at her death some children may end up inheriting more than the others. While the senior may expect that all of the children will share equally, and often they do in such circumstances, there’s no guarantee. People with several children can maintain accounts with each, but they will have to constantly work to make sure the accounts are all at the same level, and there are no guarantees that this constant attention will work, especially if funds need to be drawn down to pay for care.
  3. The Unexpected. A system based on joint accounts can really fail if a child passes away before the parent. Then it may be necessary to seek conservatorship to manage the funds or they may ultimately pass to the surviving siblings with nothing or only a small portion going to the deceased child’s family. For example, a mother put her house in joint ownership with her son to avoid probate and Medicaid’s estate recovery claim. When the son died unexpectedly, the daughter-in-law was left high and dry despite having devoted the prior six years to caring for her husband’s mother.

Joint accounts do work well in two situations. First, when a senior has just one child and wants everything to go to him or her, joint accounts can be a simple way to provide for succession and asset management. It has some of the risks described above, but for many clients the risks are outweighed by the convenience of joint accounts.

Second, it can be useful to put one or more children on one’s checking account to pay customary bills and to have access to funds in the event of incapacity or death. Since these working accounts usually do not consist of the bulk of a client’s estate, the risks listed above are relatively minor.

For the rest of a senior’s assets, willstrusts and durable powers of attorney are much better planning tools. They do not put the senior’s assets at risk. They provide that the estate will be distributed as the senior wishes without constantly rejiggering account values or in the event of a child’s incapacity or death. And they provide for asset management in the event of the senior’s incapacity.

They provide that the estate will be distributed as the senior wishes without constantly rejiggering account values or in the event of a child’s incapacity or death. And they provide for asset management in the event of the senior’s incapacity.  To download a FREE GUIDE TO ESTATE PLANNING click here.

For more information about this article feel free to email me at info@raphanlaw.com

Regards, Brian

Can you sue for Bedsores or Pressure Sores?

bedsore lawyer

2/22/2018 Law Firm added Free Booklet

Bedsores should not happen while in a nursing home or hospital. Often they are due to neglect and negligence.

Bedsores, Pressure Sores or Decubitis Ulcers are not the fault of the patient. At a hospital or nursing home there are federal laws in place to protect patients and assure they get the proper care. When these standards of care are not used sores can develop. Simple duties like turning an immobile patent frequently to relieve pressure, proper cleaning an hygiene are sometimes not provided. If a sore develops the patient has now become a victim. The sores can cause extreme pain and suffering and unfortunately even death. You can sue. And you have every right to do so and get financial compensation. Depending on the case, monetary awards can be in the millions. Below are some of the different types of lawsuits relating to sores.

Medical Malpractice

Medical Malpractice cases arise when a health care practitioner departs from the accepted standard of care in the medical community. In more simple terms, when a hospital, doctor, nurse, practitioner commits a serious error in his/her care and treatment, which results in further injury to the patient. Some common examples are failing to diagnose the bedsore; failing to report bedsores or pressure sores; failing to admit a patient into the hospital for bedsores when necessary; and failing to perform a medical procedure or provide treatment for bedsores that was otherwise indicated.

FREE BEDSORE FACTS BOOKLET>

angle booklet2

Nursing Home Liability

The elderly population frequently suffers due to serious neglect once they become patients or residents in nursing homes or any long term care facility.  Some critical issues relating to sores are: over or improper medication; lack of supervision; inadequate wound care leading to infections; not reporting the issue in a timely manner and overall neglect.

The severe injuries that patients experience along with the constant pain and suffering associated with bedsores are often the result of preventable situations. In our experience in handling these types of cases we have found frequent examples of poor care planning; lack of stimulation; failures to turn and position patients; failure to provided adequate pressure relief devices to patients; and unbelievably, failure to change adult diapers and failure to provide sufficient quantities of food and water. As a result of neglect in Nursing Homes, the illnesses range from severe infections and amputations, to dehydration and, unfortunately, death. Bedsores and pressure sores often lead to further infections and illnesses.

Hospital Negligence

At one time or another we all go to hospitals. While patients there, we have the right to expect quality medical care and treatment.  The unfortunate reality is that there are often tragic outcomes that are the result of medical malpractice which should never occur. This is especially true with bedsores.

Hospital Negligence occurs when there are “departures in the standards of good and accepted medical practices” that one should be able to expect in the local medical community given the current state of medical treatment and technology. These departures in the standard of care can stem from negligent treatment on the part of Doctors, Surgeons, Specialists, Lab Technicians, Physician Assistants, Nurses, Nurses Aides, Therapists, Administrators, Pharmacists and any other member of the Hospital Staff whose conduct, actions, or inaction, causes injuries and suffering that should not have occurred.

Some examples of Hospital Negligence include failure to provide proper medication or medical devices; failure to provide proper monitoring and supervision; failure to order consultations to other medical specialists; failure to diagnose bedsores in a timely fashion; failure to prevent infection and amputation; failure to turn and position the patient resulting in pressure sores, bedsores or decubitus ulcers; failure to perform a medical procedure or surgery properly; failure to warn patient of risks of a surgery or medical procedure; failure to keep family members informed regarding medical decision making; and failure to provide safe and proper discharge instructions.

Wrongful Death

This type of lawsuit occurs when a spouse or close relative has a right to recover when a loved one dies due to the sores or a medical complication that was related to the sores. Recovery is from the at-fault or negligent party. Recovery can include loss of income, services, comfort and society. New York has a very restrictive and complicated wrongful death statute. Our knowledgeable lawyers take you through it one step at a time. We understand that dealing with the loss of a loved one is not easy, so we are extremely sensitive when dealing with family members. Unfortunately, left untreated or not treated in time, bedsores can rapidly progress from stage 1-4 and lead to further complications often resulting in a wrongful death.

If you or someone you know is a victim of bedsores, the first thing to do is get the stage of the sore identified and immediate and proper medical attention. If you think you have a lawsuit then contact me on how to proceed. You can also begin an evaluation online by clicking here. We can even help you get better medical attention at the same time. Feel free to email about these matters at bedsores@RaphanLaw.com

Regards, Brian

New: Visiting Lawyer Services for Elder New Yorkers

Visiting Lawyer Services

Why should the elderly that aren’t as mobile as they used to be, or live in an assisted living facility or are even at home wheelchair bound, not have easy access to the same professional legal care as others? Well, they should. And now they do.

Visiting Lawyer Services (VLS) is now available to New Yorkers that are homebound or unable to travel to a lawyer. With VLS our lawyers come to you. There’s no longer a need to coordinate aides, transfers or transportation as you won’t need it The same practice areas of elder law firm are the same available with VLS.  Most of the services that we handle in our office can be handled at your place. For example; signing of your Will, Living Will, Health Care Proxy, revising a Will, Estate Planning, Medicaid Planning or setting up a Trust. If witnesses are needed for signing documents we also arrange them to be with us as well. Other family members or loved ones may be present as well.

Visiting Lawyer Services

You remain in the comfort of your home, apartment or nursing facility and we’ll bring all the necessary documents. This has been very helpful for elder couples–as is often the case with elders, one spouse may be healthy and agile yet the other quite limited.

‘Not being burdened by travel time or hindered by physical ability also allows seniors to focus better on their legal needs. We’ve taken our hands-on approach, compassion and legal prowess to the next level’

For more information on how our Visiting Lawyer Services can help, feel free to call me at 212-268-8200. – Brian

http://www.VisitingLawyerServices.com

info@raphanlaw.com

Some FAQ’s about Health Care Proxys

As an Elder Law attorney  for over 25 years  I have recently been getting more and more questions about Health Care Proxys. Below are some answers as well as a link to a Free Sample Draft so my readers can see what it’s all about:

 Why you need a will
Living Will
 

What is a Health Care Proxy?

A Health Care Proxy is someone you appoint to make health related decisions for you, in the event you can not.

Who decides that I’m not able to make my own healthcare decisions?

Your attending physician will decide whether you lack the capacity to make health care decisions. The decision is made in writing. A second doctor also must be consulted in the case of decisions to withdraw or withhold life-sustaining treatment.  You will be given notice of these decisions if there is any indication that you can understand it. If you object to this decision or to a decision made by your agent, your objection or decision will prevail unless a court determines that you are unable to make health care decisions.

 

What if I recover the ability to make my own healthcare decisions?

Your doctor is required to decide whether you can make your own health care decisions and confirm it in writing each time your doctor plans on acting on your agent’s health care decisions. If you have recovered the ability to make your own decisions, your agent will not be able to make any more decision for your unless you again lose the abilities to make them. 

 

How do I complete a Healthcare Proxy?

In New York State, laws set forth the requirements for completing a health care proxy. You must be at least 18 years old and have the capacity to make your own decisions at the time you complete the proxy.

You must state your name and the name of the person you want to act as your agent, and state that your want the agent to have the authority to make health care decisions for you. You also must sign and date your health care proxy in the presence of two adult witnesses who are not names as your agent and have the witnesses sign the proxy. Please note that there are also special rules for the execution of a proxy by residents of psychiatric facilities.

Please note that you do not need to have a lawyer draft your health care proxy, however, you may wish to consult with a lawyer for advice about a health care proxy.

 

When will my Healthcare Proxy end?

You can create a proxy that lasts for a limited period of time by including in the document the dates you want the proxy to be valid. You can also revoke your proxy if you wish and you are competent to do so.

If you have appointed your husband or wife as your agent, and then you divorce or legally separate, the appointment will be revoked unless you specify that you do not wish to revoke it. You should review your proxy periodically to be sure that it continues to reflect your wishes. 

 

 Where should I keep my Proxy?

It’s best to give a copy of your proxy to your doctor as well as to the agent named in your proxy. If you revoke your proxy, be sure to notify whomever you gave a copy of the proxy. Upon entering a hospital you may give it to an administrator in charge, as your doctor, or attending physician may not be there when you arrive. Also, keep a copy with your other important documents such as a Power of Attorney and Will. All should be reviewed every couple of years.

What if I don’t want a Healthcare Proxy?

You can’t be required to execute a health care proxy as a condition of receiving health care services or insurance. Also, the lack of a health care proxy or other specific instructions does not crate any presumptions regarding your wishes about health care.

If you have any questions feel free to contact me! You can also visit this page on our website and download a FREE SAMPLE DRAFT of a health care proxy.

Regards, Brian

info@RaphanLaw.com

The Law Offices of Brian A. Raphan, P.C.

7 Penn Plaza, New York, NY 10001

Judge: Casey Kasem’s daughter in charge of care

The Associated Press

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PORT ORCHARD, Wash. (AP) — A Washington state judge on Friday said Casey Kasem’s daughter, not her stepmother, is in charge of the medical care for the 82-year-old radio personality, who remains in critical condition with an infected bedsore.

However, all members of Kasem’s family can visit him at the hospital — just not at the me time, Kitsap County Superior Court Judge Jennifer Forbes ruled.

Kasem has been receiving intravenous antibiotics and other care at St. Anthony Hospital in Gig Harbor, Washington, for a serious pressure ulcer he had when he was admitted on Sunday, according to a hospital statement.

Hospital spokesman Scott Thompson said Friday he would make no comment beyond the statement that was issued Thursday.

“Right now, Casey Kasem’s health is declining and (he) won’t be with us much longer,” daughter Kerri Kasem’s spokesman, Danny Deraney, said in a statement.

“I want to be there for my dad,” Kerri Kasem said outside court Friday, KOMO-TV reported. “All of us. So if he does happen to open his eyes and look up, his entire family is there.”

The former radio show host is suffering from a form of dementia called Lewy Body Disease, according to court records.

His daughter said she is considering putting her father in hospice care at St. Anthony, the Kitsap Sun reported.

Kasem gained fame with his radio music countdown shows, “American Top 40” and “Casey’s Top 40.” He also was the voice of Shaggy in the cartoon “Scooby Doo.”

Wife Jean Kasem has been in control of her husband’s medical care and has controlled access to him as his children from an earlier marriage contested who should make those decisions. The couple have been staying for about a month at the home of friends in Kitsap County, west of Seattle.

On May 20, while Kasem and his wife were in Washington state, Los Angeles Superior Court Judge Daniel S. Murphy expanded Kerri Kasem’s power to determine her father’s medical care and ordered Jean Kasem to allow her stepdaughter to see him. Murphy also temporarily suspended Jean Kasem’s control over her husband’s medical care.

Forbes held Friday that the California court order prevails, with Kerri Kasem working in consultation with doctors, the Kitsap Sun reported.

The judge ordered separate visitation times because of the animosity between Jean Kasem and her husband’s children. Should the two sides meet, they must not speak to each other, she said.

The judge also found Jean Kasem in contempt of court for failing to allow Kerri Kasem to see her father the day the California court order was issued. However, the judge did not impose any sanctions.

“I don’t want to rub salt in the wound,” she said. “Mrs. Kasem is dealing with some of the worst times of her life. I feel for her.”

As Casey Kasem was removed by his daughter last weekend from the home where he has been staying, Jean Kasem tossed a package of ground meat at her stepdaughter.

“If you need to know why I did it — when a person is about to pass away, there are always rabid dogs,” Jean Kasem told reporters in response to a question after a court session Monday.

Why Not Just Use an Off-the-Shelf Power of Attorney Form?

poaA durable power of attorney is one of the most important estate planning documents you can have. It allows you to appoint someone to act for you (your “agent” or “attorney-in-fact”) if you become incapacitated. Without a POA, your loved ones would not be able to make decisions for you or manage your finances without asking the court to appoint a guardian or conservator, which is an expensive and time-consuming process.

There are many do-it-yourself power of attorney forms available; however, it is a good idea to have an attorney draft the form for you. There are many issues to consider and one size does not fit all.

The agent’s powers

The power of attorney document sets out the agent’s powers. Powers given to an agent typically include buying or selling property, managing a business, paying debts, investing money, engaging in legal proceedings, borrowing money, cashing checks, and collecting debts. They may also include the power to consent to medical treatment. Some powers will not be included unless they are specifically mentioned. This includes the power to make gifts and the power to designate beneficiaries of your insurance policies.

The power to make gifts of your money and property is a particularly important power. If you want to ensure your agent has the authority to do Medicaid planning on your behalf in the event you need to enter a nursing home, then the power of attorney must give the agent the power to modify trusts and make gifts. The wording in a power of attorney can be significant, so it is necessary to consult an attorney.

Springing or immediate

The power of attorney can take affect immediately or it can become effective only once you are disabled, called a “springing” power of attorney. While a springing power seems like a good idea, it can cause delays and extra expense because incapacity will need to be determined. If the power of attorney is springing, it is very important that the method for determining incapacity is clearly spelled out in the document.

Joint agents

While it is possible to name more than one person as your agent, this can lead to confusion. If you do have more than one person named, you need to be clear whether both parties need to act together or whether they can each act independently. It might make more sense and be less confusing to name an alternative agent to act in case the first agent is unable to.

Appointing a guardian

Another use of a power of attorney can be to nominate a guardian in case guardianship proceedings become necessary. Including your preference for a guardian can allow you to have some say over who will be managing your affairs. Usually, the court decides who will be chosen as a guardian, but in most circumstances, the court will abide by your nomination in the durable power of attorney.

Executing the power of attorney

To be valid a power of attorney must be executed properly. Some states may require a signature, others may require the power of attorney to be notarized, and still others may require witnesses. It is important to consult with an estate planning attorney in your state to ensure your power of attorney is executed properly.

Accepting a power of attorney

Even if you do everything exactly right, some banks and other institutions are reluctant to accept a power of attorney. These institutions are afraid of a lawsuit if the power of attorney is no longer valid. Many banks or other financial institutions have their own standard power of attorney forms. To avoid problems, you may want to execute the forms offered by the institutions with which you have accounts. According to a MarketWatch.com article, you need to be careful that you don’t sign a bank’s document that inadvertently restricts a power of attorney’s ability to deal with other assets, and you should check that any documents you sign with a bank match the original power of attorney.

For more information on the subject, visit this section on our website.

Regards, Brian A. Raphan, PC

9 (Potential) Problems with Your Trust:

All trusts should be reviewed every few years to make sure that they are up-to-date with the law and meet your goals today. Following is a checklist of trust features you can review yourself. But be aware that these only refer to revocable “living” trusts, not to irrevocable trusts.

elder law, brian raphan,

  1. Do you have the right successor trustees? Typically you will be the trustee of your own revocable trust with your spouse as co-trustee (if you’re married). Trusts should name one or more successors in the event the original trustee or trustees are unable to serve. Make sure that you still want the successors you originally named. Also, do you want them to come on and begin acting as trustee now? And if you and your spouse are co-trustees, do you want the successor or successors to step in when the first of you becomes incapacitated or passes away, or not until neither of you can serve?
  2. Who can remove trustees? You can always change the trustees of your revocable trust. But do you want your heirs to have this right after you pass away? This can often avoid problems if there are communication problems or disagreements with the trustee. On the other hand, you might want to limit this to some extent to make sure heirs aren’t just looking for a trustee to do whatever they say.
  3. Can your spouse change the ultimate distribution of trust assets after you have passed away? Many trusts give surviving spouses a so-called power of appointment to redirect trust assets at their death. This can be important to provide for flexibility to respond to changes in family circumstances. However, this usually doesn’t make sense in second marriages. In a Massachusetts court case, the second wife used her power to give everything to her children instead of to the original beneficiaries: her deceased husband’s children. Even in the case of a first marriage, removing this provision from the trust can provide protection for children and grandchildren in case the surviving spouse remarries and becomes estranged from his family.
  4. Does your trust protect your children and grandchildren from lawsuits and divorce? You have the option of drafting your trust to continue for your children’s lives to provide creditor and divorce protection.
  5. Have you funded your trust? We often see great trust documents that don’t do all that’s intended because the clients’ assets are still titled in their names. You can avoid probate and make sure that the estate tax protections in your trust operate as planned through retitling assets in the name of the trust.
  6. Who is named as beneficiary of your retirement plans and other investments? Often clients spend hours with their attorneys crafting an estate plan to match their goals and then circumvent it through naming individuals as beneficiaries of retirement plans and investment accounts. Make sure these are all coordinated.
  7. At what age will children and grandchildren receive their inheritance? Most trusts provide that funds will remain in trust until those inheriting reach a certain age, often 21 or 25. But you can set any age you choose and even permit them to withdraw a portion of the trust at set ages, say half at 25 and half at 30, or a third each at 25, 30 and 35. This doesn’t mean that they can’t benefit from the trust assets in the meantime, but that distribution decisions are made by the trustees until children and grandchildren have more financial experience.
  8. Does your trust have provisions providing for maximum tax deferral if it is named the beneficiary of a retirement plan? While you may choose to have your retirement plans go directly to your heirs — and often this is the simplest approach — if they are going to your trust, it must have special provisions to stretch out the annual required distributions for as long as possible.
  9. Is your trust up-to-date for estate tax purposes? Congress and many states have changed the estate tax laws several times in recent years. If your trust is more than five years old, or if you lived in a different state when it was drafted, it should be reviewed by an estate planning attorney to make certain it is still current.

You can check many of these questions on your own. In fact, it’s a useful exercise to make sure that you understand what is in your trust. Other issues, particularly those related to tax issues, will require consulting with an estate planning professional.

This article also appears in our monthly email newsletter. View it here and subscribe for free.

Regards, Brian

http://www.RaphanLaw.com

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