September 9

Using a NY MOLST form for End of Life Decisions

End of life care is never easy to talk about, but it is one of the most important and overlooked parts of any true estate plan.

NY MOLST form

All of my clients who come in “for a will” always walk out with a health care proxy and a living will as well. A health care proxy designates an agent to make decisions on behalf of the principal, or usually at that time, the patient, after two physicians concur that the patient lacks medical decision-making capacity. A living will states the client’s wishes to the agent so that the agent will act in accordance with them.

New York has a little known form known as the MOLST form when it comes to a seriously ill person who may die in the next year. This is not a form an attorney can fill out for a client, only something we as attorneys can push a client to fill out with their doctor. In my opinion it is a mandatory form to help guarantee that a person’s wishes are fulfilled as some of the most trying times lay before them. As long as this person has the ability to make medical decisions regarding life sustaining treatment, a MOLST form will list exactly what they want and do not want done to them: resuscitation, intubation, mechanical ventilation, hospitalization. It has advanced to the point where the form has gone electronic, found at www.NYSeMOLSTregistry.com, so that it can be easily accessed.

There are no lawyer secrets here, in fact I wish this form was not such a secret at all. When someone is entering a time where palliative care is being considered or is in the near future start reading about the MOLST document here and you can even bring the document into your doctor’s office, if she hasn’t heard of it, found here.

The two best aspects about the MOLST form that jump out at me are one, it cannot be over-riden by a health care agent’s sole wishes. This helps guarantee a patient’s wishes – this is paramount when it comes to end of life decisions. Secondly, and equally as important, it eases the burden of the family around the patient. In those two weeks when life is incredibly hard for everyone a simple piece of paper shoulders the burden of the hardest decisions.

I’m happy to answer any questions that I can about this topic because I truly believe in the importance of it.

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August 26

Do I have to call the attorney who drafted the decedent’s will in order to probate the will?

This is a great question I have happily answered in the past because many people are under the impression that they must call the attorney who drafted their deceased parent’s will in order to effectuate the probate process. The quick answer: no you do not have to call that attorney.

Getting that out of the way I thought it would be best to explore the pluses or minuses of this specific issue:

Potential negatives:

– You may not be a good fit with your deceased loved one’s attorney. Probate is a long process and as I tell my clients, we will have a real working relationship by the end of it.

– The drafting attorney may have a fee structure that you do not like. Not every attorney is open to a contingent fee arrangement and many probate attorneys mandate that their hourly fee for every phonecall, email, or correspondence be paid on a monthly basis. If you are not in a position to pay this hourly fee, this may not be a good fit as well.

Pontential positives:

– If the deceased had a very good relationship with his attorney, then the drafting attorney may have a real working knowledge of the estate assets and possibly may have a written list- something that can really help with the process. My experience is that most people use different attorneys for different things these days and that these neighborhood lawyers are disappearing more frequently. I like the idea of neighborhood lawyers myself and attempt to bring some of that charm into my practice, but the reality is that the big law culture that persists usually will eliminate this possibility.

At the end of the day, the attorney that represents you in a probate or administration proceeding is your attorney. Keep that in mind when you have to make that decision.

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June 18

Common Questions for New York Medicaid or Income Income Trusts (IIOTs)

When I meet with a client and determine that a Medicaid or Irrevocable Income Only Trust is the right move for them I am usually asked the same questions, here’s a brief list of some of the questions:

I’m a senior who gets preferential tax exemptions on my home, do I get to keep them?

The answer is yes. A well drafted IIOT trust will allow the Settlor or Grantor of the trust to not only remain in his or home, but keep their senior citizen, disability, veterans and STAR exemptions. This is an important factor to consider for the usual client because these tax savings can sometimes be considerable depending on the timing of when the property is placed into the trust.

If I put my home into the Irrevocable Income Only Trust or Medicaid Trust, can the Trustee kick me out of my home?

The answer is no. The Settlor or Grantor shall have the right to occupy their home placed in trust for residential purposes.

If I put my home into the Irrevocable Income Only Trust or Medicaid Trust, do I have to pay rent to the trust?

The Settlor or Grantor of the trust does not have to pay rent to the trust.

Who pays the taxes, insurance, assessments, repairs and other charges necessary to maintain my home?

The Settlor or Grantor still pays these charges as they have in the past. In this specific regard, nothing changes from how things were done before the home and/or assets were placed in the trust.

What does Income Only really mean?

Income only means that the Settlor or Grantor of the trust is entitled to income, if any, of the money or property placed into the trust. For example, if only cash was placed in a the trust and the trustee hired a money manager to make 5% on that money, then the Settlor or Grantor of the trust would be entitled to those percentages gains every year, less the money manager’s fee.

What is the Medicaid look-back period in NY and how does it apply to a NY Irrevocable Income Only Trust?

One of the benefits of an IIOT is that it begins the “5 year look-back” period for Medicaid. So, if there is a possibility that the Grantor or Settlor has the potential to go into a nursing home at some point in the future, and that period ends up being after the 5 years any assets or property were transferred into the trust, than those assets or property would be safe from any possible Medicaid liens.

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June 8

New York Workers Compensation Fines

Penalties for noncompliance with the workers’ comp. or workers compensation can range from a few thousand dollars to egregious amounts in the tens of thousands of dollars. When you open a business in New York and have employees, acquiring workers compensation insurance is not a step that you can skip. Ask some of my business clients and they will tell you how much I harp on this. Yes, it is somewhat costly depending on the size of your business, but it is imperative you do not skip this step when starting a business. It will cost you. How much?

What is the law and what are the possible penalties?

Failure to secure coverage can be prosecuted both civilly and criminally.

Criminal: – Section 52 [1] (a) of the Workers’ Compensation Law provides that a failure to secure the payment of compensation for five or less employees within a 12 month period shall constitute a misdemeanor punishable by a fine of not less than $1,000 nor more than $5,000. Failure to secure the payment of compensation for more than five employees within a 12 month period shall constitute a class E felony punishable by a fine of not less than $5,000 nor more than $50,000 and is in addition to any other penalties otherwise provided by law.

Civil: Section 52 [5] of the Workers’ Compensation Law provides that the Chair, upon finding that an employer has failed for a period of not less than ten consecutive days to make the provision for payment of compensation may impose upon such employer, in addition to all other penalties, fines or assessments, a penalty of up to $2,000 dollars for each ten day period of non-compliance or a sum not in excess of two times the cost of compensation for its payroll for the period of such failure, which sum shall be paid into the uninsured employers’ fund. When an employer fails to provide business records sufficient to enable the chair to determine the employer’s payroll for the period requested for the calculation of the penalty provided in this section, the imputed weekly payroll for each employee, corporate officer, sole proprietor, or partner shall be the New York state average weekly wage, multiplied by 1.5. Where the employer is a corporation, the president, secretary and treasurer thereof shall be liable for the penalty.

There are also fines and levies that can be collected for failure to maintain accurate payroll (both civilly and criminally), and heavy fines for mis-respresentation. When thinking mis-representation think:

Paying workers “off the books,”
Not reporting wages paid to illegal aliens,
Misclassifying employees as “independent contractors,” and
Misclassifying the work of a business to a classification that is less hazardous (identifying all roofers as secretarial staff), and/or
Intentionally, materially misrepresenting or concealing information pertinent to calculation of premium paid.

See http://www.wcb.ny.gov/content/main/Employers/nonCompliancePenalties.jsp for the full run down or click NY workers comp fines

I just received a letter from the workers compensation board stating that I owe $22,000.

Maybe you’re reading the above text too late, or thought it wasn’t going to catch up with you. You receive a letter stating that you owe a very large amount of money from the New York State Workers Compensation Board. What do you do? Call me. I am a big advocate of do-it-yourselfing when it’s possible, but here I recommend an attorney to negotiate with the board. Sometimes these fines are so large it would put a company out of business. This is one of the times in life where it’s worth getting an attorney involved.

If you’re looking at a large fine, we have successfully negotiated these dollar amounts down truly significant amounts of money on a contingent basis. Most businesses are ok with this arrangement.

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