Littman Krooks

April 16, 2011 is the 4^th Annual National Healthcare Decisions Day (NHDD). NHDD exists to inspire, educate, and empower the public and providers about the importance of advance care planning. Read an entry from Bernard A. Krooks, Esq., regarding advance directives:

Advance Directives: Ensure your Wishes are Honored

What kind of medical care would you want if you were too ill or hurt to express your wishes? Advance directives are legal documents that allow you to convey your decisions about end-of-life care ahead of time. They provide a way for you to communicate your wishes to family, friends, and health care professionals, and to avoid confusion later on.

Advance directives allow you to appoint others to make decisions for you in the event you are no longer capable of making them yourself. Although we hope that we never become incapacitated, it is much better to plan in advance for this situation. If you don’t plan in advance, then your family may end up in a lengthy and costly court proceeding. More importantly, your wishes may not be carried out. There are basically three different advance directives that all of us should have:

1. Power of Attorney
2. Health Care Proxy (sometimes called Health Care Power of Attorney)
3. Living Will

A power of attorney is a legal document pursuant to which one person (the principal) appoints another person (the agent) to act on behalf of the principal with respect to certain financial matters. A general power of attorney authorizes the agent to perform virtually any act on behalf of the principal. A limited power of attorney authorizes the agent to perform limited acts, such as selling a home, and remains effective for a limited period of time; e.g. 60 days. The power of attorney is presented to a third party as authorization for the agent to act on the principal’s behalf. The third party might be a bank, a stockbroker, a title insurance company, or any other person with whom the agent must deal. A durable power of attorney is one that remains in effect even after the principal becomes incapacitated. This is important because it is at that point in time that the agent must begin to act on behalf of the principal.

Make your wishes known. You have the right to make these decisions for yourself while you have legal capacity.

The selection of an agent is particularly important in a power of attorney. It is critical to select an agent who is trustworthy. A trustworthy agent will carry out his fiduciary duty not to self-deal and to act only on behalf of the principal. The agent must also be diligent and get things done.

It is also important to include a successor agent in your power of attorney. If the primary agent dies or becomes disabled and in the meantime the principal has become incapacitated, a guardianship will be necessary. By naming a successor agent, the guardianship proceeding may be avoided.

Some individuals prefer to appoint two people as agents under a power of attorney. If two agents are appointed, does the principal want them to be able to act independently of one another or should they be required to act together? There are pros and cons of each method and these should be carefully considered.

In most states, gifts of the principal’s assets under a power of attorney are not valid unless specifically authorized by the document. This also is the position of the Internal Revenue Service (IRS). Good practice may dictate inclusion of gifting powers in the document. In determining the extent of gifting authority, consideration should be given to naming those persons to whom gifts can be made (including the agent, if appropriate), whether to limit the amount of the gifts to the annual gift tax exclusion amount (currently, $13,000), whether gifts can be made for education expenses, whether gifts can be made to charities, and whether gifts can be made to qualify the principal for public benefits including Medicaid.

These are just a few of the many items to be considered when your power of attorney is being drafted. Keep in mind that the power of attorney applies only to financial matters. In order to appoint someone to make health care decisions for you in the event you are incapacitated, you need to execute an advance health care directive.

An advance health care directive can be in the form of a health care proxy, living will, or both. Without an advance health care directive, the process of deciding what to do medically—and when to do it—can be a time-consuming and emotional task for caregivers, family members, friends, and health care providers.

Advance health care directives allow you to select in advance the person most trusted as your agent to make health care decisions in case you can’t do it yourself. A living will is an expression of how you want to be treated during end-of-life care. It generally applies if you are in a persistent vegetative state, coma, or you are terminally ill. The health care proxy is a delegation of authority to a third party to make health care decisions for you when you are unable to do so. All states and the District of Columbia impose legal requirements on the content and execution of these documents for them to be valid.

Once you have made the decision to have advance health care directives, there are many issues for you to consider, including:

• Who will serve as your health care agent and successor agent?
• Under what conditions, if any, do you want to authorize the withdrawal of life-sustaining medical treatment (life support)?
• Does your authorization to withhold or withdraw life-sustaining medical treatment extend to artificial nutrition or hydration?
• Do you have specific preferences concerning health care facilities or providers?
• Do you have any moral or religious convictions that dictate the use or rejection of certain forms of medical treatment?
• Do you want to make anatomical gifts (organ donation) or give the agent the power and authority to make these gifts?

In light of the privacy rules in the Health Insurance Portability and Accountability
Act of 1996 (HIPAA) and related regulations, the advance directive should also include a specific authorization under HIPAA for your health care agent to obtain confidential information concerning your medical condition. This will allow the agent to talk with your physicians and review your medical records. Although many individuals are accompanied by their children to routine medical appointments, in an emergency situation the children need to know that they will be able to talk with the treating medical professionals about their parent’s condition.

You want to make sure that your agent, family, and health care providers know that you have advance medical directives. At a minimum, you should have a candid and frank discussion of the advance directives and your health care preferences with your immediate family, health care agents, and primary care physician.

Typically, individuals do not like to think about advance directives and end-of-life care. These are not easy decisions to make and, for many, religious beliefs play an important role in the process. The important thing is to make your wishes known. You have the right to make these decisions for yourself while you have legal capacity. However, once you no longer have capacity, others will make these decisions for you, and their decisions may not be consistent with your wishes.

So, give yourself and your family the gift of peace of mind by completing your advance directives.

Bernard A. Krooks, JD, CPA, LLM (in taxation), CELA®, is a founding partner at the law firm Littman Krooks LLP and a nationally known and widely quoted expert on elder law.

For more information regarding advance directives, visit www.littmankrooks.com, www.elderlawnewyork.com, or www.specialneedsnewyork.com.  For more information about National Healthcare Decisions Day, visit www.nationalhealthcaredecisionsday.org.

Many former members of the armed forces are unaware of benefits available to them through the Veterans Administration. The Aid and Attendance Improved Pension—which has been available for nearly 60 years–is a case in point.  It provides funding to help defray the costs of ongoing assistance with such tasks of daily living as eating, taking medication, bathing, and toileting. Care in nursing homes or assisted living facilities due to mental or physical disabilities are also covered.

Vets, 65 or older, who served during a period of war, and whose income and net worth fall within the required range, are eligible.  Compensation is not tied to service-related injuries. Surviving spouses and dependent children qualify for more limited coverage.

A “homebound pension,” also available to those needing care, is less restrictive than Aid and Attendance and can frequently be used to compensate family caregivers or to defray the costs of adult day care.

There is also a “basic pension,” having no medical pre-conditions, available to vets 65 or over who have limited income. Unmarried vets with no dependent children must have annual incomes under $11,830.  Those with a spouse must have an income of under $15,493 yearly.

An elder law attorney can advise you on methods of protecting personal assets while qualifying for, and coordinating, Veterans and Medicaid benefits, the latter often needed to cover long-term care.

For more information,  visit www.elderlawnewyork.com or www.littmankrooks.com.

As the baby boomer generation increases in age, the number of elderly drivers on the road will rise dramatically. The New York State Department of Motor Vehicles reported that motorists over the age of 65 will increase by 60 percent by 2016.

Programs are available to help keep this increasing number of seniors mobile and educate them about safety as they age. In New York State, the Department of Motor Vehicles operates a unique service known as the Office of the Older Driver that offers education, information and referral materials to aging drivers.

This Office is committed to offering a selection of the best available educational and referral materials to older drivers and, importantly, to deliver these services in a supportive manner.

Among the many services offered is an assessment of the senior’s driving skills. It includes a physical evaluation of vision, reaction times, and “cognitive ability” as well as an overall driving evaluation. Upon completion of the assessment, the Office for the Older Driver can recommend a driver rehabilitation specialist who can help if the senior needs to improve their driving skills.

Occupational therapists are normally the rehabilitation specialists who conduct driver rehabilitation evaluations. The primary purpose of occupational therapy is to help the person remain independent. However, an evaluation may determine that a person needs to stop driving. In these cases, the occupational therapist can help the person and their family to find transportation other than driving.

In addition, the Office for the Older Driver also works closely with CarFit, an AARP and AAA sponsored program, to help elderly drivers determine if their vehicle is a appropriate for them. In the past, CarFit has found that more than one-third of elderly drivers have at least one important safety issue in their vehicle that needs correction. Very often, something as simple as adjusting the position of the seat or alignment of the steering wheel can increase a driver’s safety.

The website also provides forms that are commonly needed by the senior driver – such as the MV-80 Physicians Statement, MV-619 Eye Test Report and MV-232 Change of Address. The website also offers information about health issues that may directly impair driving abilities, such as cataracts, dementia or Alzheimer’s disease.

For more information, visit the Office of the Older Driver.

To learn more about New York elder law, New York estate planning, visit http://www.elderlawnewyork.com or www.littmankrooks.com.

As the baby boomer generation increases in age, the number of elderly drivers on the road will rise dramatically. The New York State Department of Motor Vehicles reported that motorists over the age of 65 will increase by 60 percent by 2016.

Programs are available to help keep this increasing number of seniors mobile and educate them about safety as they age. In New York State, the Department of Motor Vehicles operates a unique service known as the Office of the Older Driver that offers education, information and referral materials to aging drivers.

This Office is committed to offering a selection of the best available educational and referral materials to older drivers and, importantly, to deliver these services in a supportive manner.

Among the many services offered is an assessment of the senior’s driving skills. It includes a physical evaluation of vision, reaction times, and “cognitive ability” as well as an overall driving evaluation.  Upon completion of the assessment, the Office for the Older Driver can recommend a driver rehabilitation specialist who can help if the senior needs to improve their driving skills.

Occupational therapists are normally the rehabilitation specialists who conduct driver rehabilitation evaluations. The primary purpose of occupational therapy is to help the person remain independent. However, an evaluation may determine that a person needs to stop driving. In these cases, the occupational therapist can help the person and their family to find transportation other than driving.

In addition, the Office for the Older Driver also works closely with CarFit, an AARP and AAA sponsored program, to help elderly drivers determine if their vehicle is a appropriate for them. In the past, CarFit has found that more than one-third of elderly drivers have at least one important safety issue in their vehicle that needs correction. Very often, something as simple as adjusting the position of the seat or alignment of the steering wheel can increase a driver’s safety.

The website also provides forms that are commonly needed by the senior driver – such as the MV-80 Physicians Statement, MV-619 Eye Test Report and MV-232 Change of Address. The website also offers information about health issues that may directly impair driving abilities, such as cataracts, dementia or Alzheimer’s disease.

For more information, visit the Office of the Older Driver at http://dmv.ny.gov/older-driver/older-driver-resources

For blog archives, please visit www.littmankrooks.com/blog or  www.elderlawnewyork.com/blogs

According to the Centers for Disease Control and Prevention, the National Institutes of Health and the American Heart Association, coronary heart disease is the number one killer of women and men in the United States. A 2009 survey by the American Heart Association indicates that a woman in the United States suffers a heart attack every minute.

In fact, women are twice as likely as men to experience nausea, vomiting, or indigestion during their heart attack. Because many women are unaware of the symptoms of a heart attack, they do not react properly and seek immediate help. Women are also more likely than men to have other conditions such as diabetes, high blood pressure and congestive heart failure and, therefore, the need for timely medical response becomes even more crucial.

The U.S. Department of Health and Human Services on Women’s Health has created a national public education campaign, “Make the Call. Don’t Miss a Beat” to educate women and their families about heart attack symptoms.

Symptoms include:

• Unusually heavy pressure on the chest
• Sharp upper body pain in the neck, back, and jaw
• Severe shortness of breath
• Cold sweats
• Unusual or unexplained fatigue (tiredness)
• Unfamiliar dizziness or light-headedness
• Unexplained nausea (feeling sick to the stomach) or vomiting

For more information about womens health, visit www.womenshealth.gov/heartattack.

Littman Krooks LLP offers legal services in several areas of law, including elder law, estate planning, veterans’ benefits, special needs planning, special education advocacy, and corporate and securities. The firm’s offices are located at 399 Knollwood Road, White Plains, New York; 655 Third Avenue, New York, New York; and 300 Westage Business Center Drive, Fishkill, New York. For more information about Littman Krooks LLP, visit www.littmankrooks.com.

Are you having difficulty getting the pension or 401(k) plan funds you worked years to earn? Five pension counseling projects, funded through the U. S. Administration on Aging and serving plan participants and their beneficiaries in 22 states, can help.

The retirement system’s complexity and unresponsiveness can overwhelm the most tenacious retirees when they try to obtain the pensions they have earned. Companies change their names, merge or go bankrupt. They terminate, freeze and under-fund pensions. In some instances companies deny that employees worked for them, or they miscalculate pension benefits. Death or divorce can add difficulty in securing pension benefits. Solving these problems is the work of the pension counseling projects.

Since their inception in 1992, the pension counseling projects have obtained pension benefits valued at more than $75 million for workers and retirees who have earned them.

In most cases pension counseling projects confront a seemingly never-ending succession of brick walls to obtain what a retiree clearly appears to be entitled to. For example, a 62-year-old man from Connecticut worked for a large communications company for nearly 21 years, more than enough time to meet the legal requirements for vesting. He called the Pension Action Center at the University of Massachusetts Boston, utterly frustrated that after trying for more than a year, he was unable to get his pension.

First, company officials told him that they had no record of his employment. After he provided proof of his employment, they told him he must have worked in a position that was not covered by the pension plan. When he asked what that position was and why it was not covered, they said that they didn’t know because they had no records. The same baffling statements were initially repeated to the Pension Action Center.

Obtaining the legal documents that governed the plan proved that there was no basis for the statements. The documents specifically provided that “all employees” were pension plan participants and would accrue benefits under the plan. The Action Center filed a formal claim on the man’s behalf, pointing out the plan provisions and documenting his lengthy employment. After months of follow-up phone calls and letters, a favorable decision was received. The man received a monthly pension of more than $600 for his lifetime with an estimated value of more than $144,000.

Helping this man to get the benefits he had earned was gratifying, but the effort it took would anger and frustrate anyone who did not have the knowledge and persistence to finally win. That is what the pension counseling projects provide.

The pension counseling projects offer a unique and confidential service that is free of charge for individuals who need help. If either you, your company or pension plan is within a project’s service area, you may contact your project for help. Here are the pension counseling projects and the states they cover:

Mid-Atlantic Pension Rights Project
New York Pension Rights Office — (800) 355-7714

Serving New York and New Jersey
New England Pension Rights Project
Pension Action Center — (888) 425-6067

Serving Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont

Upper Mid-West Pension Rights Project
Minnesota Pension Rights Office — (866) 783-5021

Serving Minnesota, Wisconsin, North Dakota and South Dakota

Iowa Pension Rights Office — (800) 992-8161

Serving Iowa

Western States Pension Rights Project
California Pension Rights Project — (916) 551-2140

Serving California, Nevada, Arizona and Hawaii

Mid-America Pension Rights Project
Michigan Pension Rights Office — (866) 735-7737

Serving Michigan, Tennessee and parts of Pennsylvania

Ohio Pension Rights Office — (866) 735-7737

Serving Ohio, Kentucky and parts of Pennsylvania