Frequently Asked Questions

Having an estate plan ensures that you choose the people who will take care of you while your still alive and choose who will carry out your wishes once you are no longer here. While you are alive you should have a Health Care Proxy (HCP) and Power of Attorney (POA)- these are documents that will be needed in the event something should happen to you but you do not pass away. For example you are unconscious or in a comma, you will need someone to make medical decisions for you (your HCP agent) and someone to continue to pay your bills and take care of your finances (your POA agent).

If an adult (someone 18 years and older) does not have a valid POA and/or HCP then someone (usually a loved one) would need to Petition the Supreme Court to be appointed the Guardian under Mental Hygiene Law Article 81.

A Guardianship under MHL Article 81 is a proceeding in which the Petitioner (the person bringing the proceeding) Petitions the Court and asks that he/she be appointed your legal guardian to make medical and financial decisions for you. The Petitioner alleges that the Person who is incapacitated (usually called the AIP) can no longer make their own decisions and that they do not have documents appointing someone to make those decisions.

Once your loved one passes away, it is important to determine whether or not they have a Last Will and Testament (Will) and what assets are in the person’s name. If someone passes away without, then the laws of intestacy apply.

A Last Will and Testament is a legal document whereby the Testator ( the person creating the Will) memorializes all of his/her wishes and desires as to who gets his/her assets when the Testator is no longer here.

When a person passes away, has a will and assets in his/ her name, the person named as Executor in the Will must probate the Will in order for the Will to have any legal effect. Probate is the process by which you take the Last Will and Testament and file it with the Surrogate’s Court. You ask the Court to make a determination that the Will is valid.

A Trust is a legal document created by the Creator during his/her lifetime in order to legalize his/her desires regarding his/her assets. There are several different types of trusts just as a revocable trust, Medicaid irrevocable trust, supplemental needs trust, etc. Each trust is uniquely tailored to the goals and needs of each client. Trust avoids probate so the beneficiaries gain access to these assets much quicker than if the assets have to do through the Probate Process.

Medicaid is a federal and state program, whereby it allows people in need to obtain services. There are two types of Medicaid services for people who need long term care. There is community Medicaid (care at home) and institutional Medicaid (when someone needs to go into a nursing home).

There are specific asset and income limits that applicants must comply with in order to be eligible for Medicaid services. The 2023 asset limit is $30,182 and the income limit is $1,677.

A Medicaid Asset Protection Trust is an irrevocable trust that protects the assets in the trust from Medicaid. The assets placed into the Trust do not court as the Creator’s assets for purposed of Medicaid eligibility. There is still the 5 years look back rule for Institutional Medicaid.