Special Needs Long Island Radio Show

I’ve got a new gig!

 

I’m pleased to announce I am now co-hosting Special Needs Long Island, a weekly radio program dedicated to the special needs community on Long Island.  My co-host is Jeffrey Silverman, Director of Special Needs Planning for the Center for Wealth Preservation in Syosset, New York.

 

Every Monday night, from 6:30 to 7PM, we feature guests from special needs organizations, professionals practicing in the field and individuals with special needs.

 

Please tune in 1240 AM WGBB or on the web at www.am1240wgbb.com (click on Listen Live)

The Clean-Up: New York Power of Attorney Overhauled Again

As of September 12, 2010, New York’s Power of Attorney, having undergone a major revision just last year, has been amended  to clear up the confusion and unintended consequences of last year’s major overhaul of the power of attorney form.  All prior powers of attorney are still valid.

One important change is that revocation of prior powers of attorney is no longer the default provision, instead, in order to revoke a previous power of attorney a note must be inserted in the modifications section.

Powers of attorney serving primarily for a business or commercial purpose no longer need to use the format under the statutory power of attorney law.  The exceptions are enumerated in NY General Obligations Law Section 5-1501C and primarily exclude commercial, corporate and governmental transactions; proxy voting rights; financial institutions, real estate brokers; service of process; and decisions about health care and disposition of remains.

Other significant changes include the removal of the word “major” from the statutory gifts rider, referring now to “certain” gifts as opposed to “major” gifts. This eliminates confusion caused by those who did not find aggregate gifting of $500 annually major.  It is still ambiguous as to whether the rider needs to be utilized to make gifts or changes to interests in real property.

The new rules clarify how the  principal can revoke a power of attorney if the principal cannot locate the agent to give him or her notice.

Finally, the power of attorney can now provide for specific agent successor rules where as before it had been required that every agent be unable to act before a successor would be allowed to act.

Although total revocation of the Statutory Major Gift Rider would have been a better strategy, these amendments go a long  way to clear up some of the confusion caused last year.

Action Plan–8 Weeks to a Letter of Intent

Comprehensive planning for your child with special needs includes both legal planning to ensure financial security and information-gathering in order to write a guide for future caregivers.  My hope is to alleviate some of the worries and unique concerns parents face when thinking about the future of their special needs children.

The Letter of Intent is intended to be the place for you to be clear about your intentions for your child’s future.  The place for you to share the benefit of your knowledge about the daily needs and routines of your child.  A place to share your hopes and desires for their future.  A place to gather all the pertinent medical information and contact information of those that are most important to the health and well-being of your special needs child.

Creating a document that encompasses so much information is a labor of love.  Perhaps you have already been keeping good records, however, I suspect for most of us it has been all too easy to put off this task.

I propose that over the next eight weeks, we begin the process of what will be a continuing journal of both yours and your child’s hopes and dreams.  Why so long?  Much of the medical information may take time to gather.  You may have to dig through some old records and storage boxes.  You may need to contact some people to ensure they wish to be included in your child’s future plans, or find out who might be able to succeed them if they are no longer available.  These are important conversations, and should not be rushed.

I’m going to take this journey with you.  There’s a saying about how the shoemaker’s children have no shoes.  I have to admit I have not yet written my Letter of Intent.  I understand just how difficult and time-consuming a task this is, therefore I’m not going to ask you to do anything I am not going to do myself.  I can promise we will all sleep just a little better after completing this task.

On a practical level, if you are reading this, you have access to a computer.  Word processing software makes it easy to create a Letter of Intent that is simple to update annually or after any major change in either yours or your child’s life.  I suggest printing it out after it is finished or revised and leaving a copy with your other legal papers.

Finally, anyone who comes into my office for a consultation will leave with a CD which includes a pre-printed Letter of Intent form which can simply be filled in with your personal information and printed from your computer.  Please call me at (516) 223-4800 to make an appointment to discuss your planning needs.

New York State’s New Power of Attorney

What is a Power of Attorney?

A Power of Attorney is a powerful and important legal document delegating authority from one person to another.  It allows the agent you’ve appointed to make financial decisions on your behalf.  The person giving the authority is known as the principal, while the person to whom the authority is given is known as the agent or the attorney-in-fact.  The term “attorney-in-fact” does not mean the person is a lawyer.  You can give very broad authority to your agent, or you can limit the authority you are granting to certain specific acts.  The power of attorney deals only with financial matters.  In order to give another the authority to make medical decisions on your behalf, you will also need to sign a health-care proxy.

A power of attorney is a very effective tool should the principal becomes incapacitated and unable to act for themselves.  If you do not have a durable power of attorney in place should you become incapacitated, your family may have no choice but to file for guardianship, an expensive and time-consuming process.   Signing a power of attorney and health care proxy allows you to make the decision as to whom you wish to act as your agent, while a conservatorship or guardianship leaves the decision-making up to a court.

New York States’ New Power of Attorney Form

On September 1, 2009, significant changes to the New York Power of Attorney (POA) laws went into effect.  These changes relate to both the content and administration of the statutory short form power of attorney.

All powers of attorney signed prior to this date remain valid unless revoked.

By default, anyone executing a new Power of Attorney will automatically revoke any prior POAs.  Attorneys and principals alike should be very careful when executing the new form.  The new POA may and should be modified to specifically state that prior powers of attorney should not be revoked.

By way of illustration, if you already have a signed and notarized durable power of attorney for estate planning purposes and for use in case of future incapacity, any future  limited use POAs you execute must be modified so that the durable POA is not revoked.  Some examples of limited powers of attorney include those used for the IRS, real estate transactions and car leases.  Similarly, if you already have a POA being utilized for a limited purpose, the durable general POA should be modified before it is executed so that your limited POAs are not revoked.

Another significant change to the New York POA is that the new form requires that both the principal and the agent must sign in front of a notary public before it becomes valid.  This forces the agent to acknowledge their fiduciary duties.  Many principals do not wish their agent(s) to know that they have been granted this power until it is needed; however, the agent does not have to sign concurrently.  The form can be held at your attorney’s office until needed (in the event of your incapacity) at which point the agent can sign and notarize the POA to make the form effective.

The new short form also allows you to designate an independent monitor and gives the monitor authority to request records of all transactions made on the principal’s behalf.

The New York Statutory Major Gifts Rider

Should a principal desire to give their agent the ability to make property transfers and major gifts (more than $500) an additional form is required,  the Statutory Major Gifts Rider (SMGR).  Both forms must be signed concurrently.  Additionally, the SMGR must be signed in the presence of two witnesses and notarized in order to be valid.

The new statutory short form power of attorney and rider is designed to enhance protection of the principal (the person granting the power).   While the principal may still grant the ability to give major gifts and property transfer power to the agent, the new comprehensive form requires the principal to initial each different category of gift-giving authority and forces the principal to specifically name beneficiaries or a class of beneficiaries other than his/her spouse, children or parents.  This serves to give the principal adequate notice that the power they are granting is expansive.  All gifting powers must be specifically designated and consented to in the SMGR.

Without a properly executed POA and SMGR, the agent will have no authority to:

  • Make gifts to themselves
  • Add, delete, or change beneficiaries on insurance policies
  • Add, delete or change beneficiaries on retirement accounts
  • Make changes to joint or totten trust accounts
  • Gift more than $500 per donee per year

Additionally, the ability to give annual gifts is further categorized into (a) the amount of the gift tax exclusion (currently $13,000) or (b) the authority to make gifts and transfers in excess of the annual exclusion.  Those principals with children who have Special Needs Trusts are cautioned to include language that the agent is not required to make annual exclusion gifts.

Better to Have, Than Have Not

You should, of course, choose your agent carefully.  The best person is a close family member, preferably one who lives nearby.

Despite the feelings of vulnerability and need for trust when designating an agent in a power of attorney, executing the power will also bring peace of mind to both you as the principal and family members.

If you have been through a divorce since you signed your original power of attorney that POA has been automatically revoked and you will need to execute a new one.

Signing both the POA and SMGR allows your agent in the event of your incapacity to continue to fund college-savings plans for your children and grandchildren, make charitable bequests, convert traditional IRAs to Roth IRAs, and gives your agent access to electronic records that are password protected.

Clearly, New York States’ new Power of Attorney and Statutory Major Gift Rider are complex, powerful tools.  Although you are not required to use an attorney to execute these forms, seeking the advice of a qualified attorney may help you to understand the broad powers you are granting.

When Family Wants to Help Your Child with Special Needs

Very often a family member such as a grandparent, aunt or uncle or even a sibling would like to give the disabled individual a cash gift or other assets. Although the services available through government benefits are substantial, the actual cash benefits are not. Outright gifts might cause the disabled person’s assets to increase above the minimum established by the government (currently $3,000 for Medical Assistance and $2,000 for SSI).

Once a Special or Supplemental Needs Trust has been set up by the parent, grandparent or guardian for the disabled person, other family members can provide additional assets for that individual, creating a benefit without disqualifying the individual from their government benefits. Family members can contribute cash, stocks, bonds and even real estate for the benefit of the disabled individual.

Providing for the Future of Your Special Needs Child

For many years, we have provided for our loved ones with special needs and serious disabilities. We have taken them to occupational/physical/speech therapists. Found special camps. Had endless meetings with our school districts. Driven countless hours. Shopped with love for just the right gift to bring a smile. Bought a special outfit. In general, we have supplemented basic government benefits to enable our loved ones to enjoy a better quality of life. Who will continue to provide these things after you are unable to act as the primary caregiver? How do you make your wishes known? How do you ensure your loved ones get the same special services that you provided during your lifetime?

Although the truth is that no one will give our children the same love and attention that we have, by setting up a Special Needs Trust (sometimes called a Supplemental Needs Trust), you can ensure that many of those extras can be provided without disqualifying your loved ones from their government benefits such as SSI, Medicaid and food stamps.

Besides basic financial care, these government benefits may also make a disabled person eligible for local community services such as supported housing. These benefits help your loved ones live independently and help them care for him or herself.

It is important to work closely with a lawyer who understands all aspects of creating and administering Special and Supplemental Needs Trusts, and who is willing to spend the time with you to establish the appropriate planning tools to meet your family’s unique needs.

Planning for the Future of Your Special Needs Child

If you are the parent of a child with special needs as I am, you know that one of our greatest fears is how our children will be taken care of when we are no longer able to do so ourselves. Even worse, our fear only becomes greater as our children get older and we do too.

The range of disabilities which may impair our children and adults to the point where they are unable to support themselves is vast, and includes both physical and mental impairments. These individuals, our disabled children, may need to depend on government benefits to provide for their financial needs, but frequently end up living below the poverty level.

Worse, entitlement to government benefits often depends on a means test. To receive SSI and Medicaid, disabled people must limit their income and assets. Any financial assistance given to our children for food and shelter will reduce even these limited financial benefits.

Fortunately, there is a way parents and grandparents can grant some relief and provide stability and security to our children without jeopardizing these government benefits that are so important for our children, through the creation and use of Supplemental and Special Needs Trusts.