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As we gear up to receive COVID vaccinations, we begin to see a light at the end of this dark tunnel. This is not a time to let up but to take action. At Cona Elder Law, we continue to emphasize the importance of having proper planning in place to avoid unnecessary heartache, loss of control and waste of assets.
It’s an understatement to say that most people were not prepared for the Coronavirus pandemic, certainly from an estate planning perspective. The Coronavirus took us by surprise and for a long period of time our health care system and the public were in a state of panic.
Recounting unfortunate worst case scenarios, loved ones were taken to hospitals, placed on ventilators and unable to communicate with healthcare providers. Regrettably, many individuals did not have the necessary documents in place for loved ones to act on their behalf. If there wasn’t a Power of Attorney or Health Care Proxy in place, family members were left without the ability to obtain medical information or access finances. Further, when a loved one passed away without a Last Will & Testament, surviving family members were left in the untenable position of the state laws of intestacy determining how the assets would be divided. We cannot stress enough that proper and preventative planning lessens the trauma and anxiety caused by an unexpected health crisis.
We want to share our experiences working with families during this time to drive home this important point. The story below illustrates the consequences of being unprepared when an unexpected health crisis occurs.
John and Tina* were married for fifty (50) years. John was semi-retired and Tina was caring for her very elderly mother. While they did their best to remain safe during the pandemic, Tina became ill with the virus at the end of December. Not surprisingly, Tina’s husband John also tested positive while Tina’s elderly mother tested negative. John became very sick and was taken to the hospital where he was eventually placed on a ventilator. Tina was not permitted to accompany him into the hospital and was unable to see him. She tried to speak with him via Facetime but he was too ill to do so. Tina remained at home, sick herself and unable to communicate with her ailing husband. A further complication was that Tina was unable to get timely updates regarding his condition as there was no Health Care Proxy in place. Tina also had financial problems because their savings account was in John’s name alone and they had never signed Powers of Attorney. She was unable to transfer funds to pay their monthly expenses. She unfortunately quickly fell behind on their bills. It got even worse….
Tina was the sole caretaker of her very elderly mother who lived alone in a nearby apartment. Tina had a very difficult time arranging care for her mother while she was ill with COVID and unable to care for her mother herself. Tina’s mother needed a caregiver to shop for her, prepare her meals, help out around the house, assist her with bathing and dressing, etc. Her mother is on a fixed income and is an ideal candidate for Medicaid Home Care benefits. She never did any long term care planning herself and because of that, has too much money to immediately qualify. After Tina recovered, she realized she needed to prioritize planning to secure her mother’s eligibility for Medicaid Home Care benefits. She needs to move quickly, however, because the look-back rules are changing and time is of the essence as we assist her.
Unfortunately, John passed away approximately one week after being placed on a ventilator. Not only was there no joint owner or beneficiary on his savings account, he also never prepared a Last Will & Testament. Therefore, Tina now must bring an estate administration proceeding in Surrogate’s Court in order to gain access to the funds which she so greatly needs. Adding insult to injury, in New York State, when a person dies without a Will, the estate assets do not pass to the spouse in their entirety. Pursuant to the laws of intestacy, Tina will receive $50,000 plus one-half of the other estate assets. The other half must pass to Tina and John’s son who has been estranged from both of them for years. Tina and John’s life savings amounted to approximately $600,000, and now Tina will only receive approximately $325,000.
As elder law attorneys, we work with families during these crises to find creative solutions to ease the financial burden. However, this situation is one of several that could have been avoided. Putting a plan in place would have prevented so much stress, heartache and financial loss. First, Tina and John, as well as Tina’s mother, should all have had, at a minimum, Powers of Attorney, Health Care Proxies and Living Wills. Of course, this would not have stopped them from getting COVID but it would have allowed Tina to access the funds in John’s savings account and communicate with John’s health care providers. Tina and John should also have had Last Will & Testaments in place. Tina will now lose a good portion of her life savings to her estranged son. Discussing your family dynamics, long-term needs and wishes with an elder law attorney and then devising a plan to prevent such a mishap is critical. Finally, Tina’s mother needs assistance at home. Had she engaged in asset protection planning, she would have protected her assets with an asset protection trust years earlier and a home health aide could have been there to help her almost immediately.
This family is only one of many we have helped over the past year while this pandemic has taken its toll. This story is common and unfortunately is the rule rather than the exception.
Now that people have begun to receive the second COVID vaccine, they must turn their attention to asset protection and estate planning so as to never find themselves in a position like Tina and John. Do not become complacent and wait too long to take care of yourself and your loved ones with essential and proper planning.
Our elder law attorneys are available to assist you with planning in person or virtually. We offer late night and weekend appointments as well. We must use the knowledge gained from this difficult story and others like it to ensure that everyone has a proper plan in place.
As always, contact us if you have any questions. Our Elder Law attorneys are always available to address your questions and concerns. Call us at 631.390.5000 or click here.
*Real identities have been modified to protect client privacy
Cona Elder Law is a full service law firm based in Melville, LI. Our firm concentrates in the areas of elder law, estate planning, estate administration and litigation, special needs planning and health care facility representation. We are proud to have been recognized for our innovative strategies, creative techniques and unparalleled negotiating skills unendingly driven toward our paramount objective - satisfying the needs of our clients.
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