Estate planning involves both planning for our family and property after our deaths, as well as planning for our long-term care while we are living. There are multiple tools that we use to protect your autonomy, control, and decision-making concerning your personal life, health care, and assets.
A will is the most basic estate planning document. It directs the disposal of your assets that do not already have a beneficiary attached. (An account with a designated beneficiary, such as a CD that is “In trust for” someone, goes directly to the beneficiary and is not a probate asset). The will also allows you to nominate your executor. In the absence of a will, you are considered to die intestate and the State of New York will determine who are your heirs at law and who is the administrator of your estate.
Trusts are entities that we create to own your assets and have your assets managed by a trustee. Trusts can avoid probate, be used for Medicaid planning and asset protection, can hold the assets of minors until they are a suitable age, or hold assets for disabled people so benefits are not disrupted. There are many other ways a trust can be used in estate planning as well—tax planning, planning for second marriages, charitable giving, etc. A trust should be drafted to address the specific needs you have for your own planning and the future benefit of your family.
A Power of Attorney is a document that names an agent to conduct business on your behalf while you are alive. The Durable Power of Attorney continues even after you lack capacity to make decisions for yourself. This is an essential document. Even spouses are not allowed to make financial decisions for one another without being given a Power of Attorney. In New York, there is the Statutory Short Form, which can add modifications to include Medicaid planning, e.g. There is also the Statutory Gifts Rider, which allows your agent to make gifts and create trusts on your behalf. The Statutory Gifts Rider is often the linchpin in planning for long-term care, as it allows your agent to engage in Medicaid planning or asset protection planning.
A Health Care Proxy is a document that names a person to communicate your health care decisions in the event you are unable to do so yourself. The Health Care Proxy applies in both the community and in hospitals and nursing homes. The Family Health Care Decisions Act, which creates a pecking order of decision makers, only applies when the patient is in a hospital or nursing home. To maintain the greatest control over you health care, both at home and in the hospital, you should do a Health Care Proxy.
There are many reasons to do estate planning. The main reason is to make things easier for our loved ones by leaving instructions for when your voice cannot be heard. You may also wish to make a plan for a minor or disabled child, protect the assets you have worked hard to obtain, or make sure that the charity of your choice receives a gift.
Do not hesitate to call me at 718-866-5373 or email me to discuss your estate planning needs. I would be honored to assist you with anything from simple to complex. I also promise that I will not create an estate plan that is more complicated than what you need to get the job done right.