Clients should beware of a recent scam in which companies are recommending that all homeowners obtain a copy of their current Grant Deed.  Contrary to this advice, securing a copy of the deed is not necessary once the original has been recorded (having a copy of the deed is not necessary to prove ownership as long as the deed is recorded in the county clerk’s office).  The companies involved in this scam have been contacting property owners via letters and emails, offering to provide a copy of the deed for a fee that ranges anywhere from $50 to $80.  Though not required, if a homeowner does wish to obtain a certified copy of the deed, this can be done through the county clerk’s office for a smaller fee, usually between $4 and $10 depending on the length of the original document.

Tags: deed scam, real estate deed

In recognition of World Elder Abuse Awareness Day, the Elder Abuse Committee of the Elder Law Section of the New York State Bar Association has created an FAQ about elder abuse tailored specifically for attorneys.Elder abuse is a widespread, growing problem and attorneys like you are effectively positioned to identify, address and remedy incidents of elder abuse within your pool of clients and potential clients.

The committee’s goal is to increase legal practitioners’ proactive and informed responses to elder abuse through substantive educational programming, resource creation and distribution, and community building.

What is elder abuse?

Elder abuse is an action or lack of appropriate actions, which causes harm, risk of harm, or distress to an individual 60 years or older and occurs:

• within any relationship where there is an expectation of trust; or
• when the targeted act is directed towards an elder person by virtue of age or disabilities.

Elder abuse can be intentional or unintentional, can take various forms, and includes but is not limited to emotional, physical, sexual or financial abuse, neglect and abandonment.

How do you know if your client is the victim of elder abuse?

Indicators of abuse you may encounter in your elderly clients include:

• Social and physical isolation
  • Family members or caregivers restrict the older adult’s contact with others
  • Older adult is not given the opportunity to speak with others without the family member or caregiver present.
• Unexplained injuries
• Unkempt or dirty appearance
• Agitation, trembling, confusion and/or disorientation
• Confusion about finances and transactions
• Emotional distress like crying and/or depression
• Withdrawn or flat/unemotional affect

Should I raise the subject of elder abuse with my client?

Yes. Speak with the client alone, away from any friends or relatives who may have accompanied the client to your office. Attempt to make your client comfortable. Try to ensure that your client has the appropriate glasses, hearing aids or other assistance needed to participate fully in a conversation, as sensory impairments can often be a barrier to meaningful dialogue. Ask questions about the aspects of the client’s situation that are troubling to you, beginning with less invasive, less threatening topics and language. For example, you might consider using the term “mistreatment” instead of “abuse”; remember that your client may react with some degree of fear, shame or shock. Develop a plan for your client to contact you independently for follow up.

Are there certain types of documentary evidence that indicate financial abuse/exploitation?

Yes. Such evidence may include:

• Activity deviating from usual banking patterns
• Requests for additional ATM cards or first time use of ATM card
• Opening a joint account, changing power of attorney, changing account beneficiary, or opening inappropriate investments
• Sudden property transfers or changes to will or other estate planning documents
• New authorized signers on signature cards
• Mail redirected to a new address
• Checks written out of numerical order
• Flurry of bounced checks/overdraft fees or low balances
• Large withdrawals from previously inactive accounts
• A frivolous or baseless guardianship petition

Is anyone mandated to report elder abuse?

No. New York is one of only three states with NO mandatory reporting of elder abuse. All disclosure of abuse to the police or law enforcement, Adult Protective Services and other government agencies is strictly voluntary.

This fact speaks to the need for legal professionals and advocates to exercise proactive vigilance when they suspect elder abuse. Adult Protective Service officials are mandated to report to law enforcement if they have “reason to believe that a criminal offense has been committed” against any of their clients. See N.Y. Soc. Serv. Law, Art. 9B, §473(5).

Does disclosure of elder abuse to a third party violate attorney/client privilege?

It may not. If 1) the client is at risk of “substantial physical, financial or other harm,” 2) is unable to act in his own interest and 3) the attorney believes the client to have diminished capacity, Rule 1.14(b) of the New York Rules of Professional Conduct permits the attorney to take “reasonably necessary protective action.”

Furthermore, an attorney may always reveal confidential information gained during or related to the representation of a client to the extent he believes “reasonably necessary to prevent reasonably certain death or substantial bodily harm.”

What should I do if I suspect elder abuse?

If your client’s situation falls into one of the categories outlined in the previous answer, you may contact the police or Adult Protective Services. You can also contact the District Attorney’s office to inquire about a potential criminal prosecution. Many communities have programs that include supportive services for older adults, and a growing number in New York State have local elder abuse agencies that can assist in individual cases. Additionally, the Weinberg Center for Elder Abuse Prevention is always available as a resource for attorneys. While there is no universal method for addressing a situation of suspected elder abuse, an attorney is always under an ethical obligation not to perform services that will perpetuate a pattern of abuse. See 22 NYCRR Part 1200 §1.1(c)(2)(2009).

How prevalent is elder abuse?

According to Under the Radar: New York State Elder Abuse Prevalence Study, 14% of all older adults in New York State have experienced some form of elder abuse since turning 60. Yet, for every elder abuse incident documented by New York State government agencies, there are nearly 24 that go unreported. Nationwide, elder financial abuse results in a national annual financial loss to victims of $2.9 billion.

Why is elder abuse difficult to identify?

Because a pattern of abuse often includes physical and social isolation of victims and therefore usually takes place without witnesses, elder abuse often goes unnoticed. Moreover, some victims are unable to speak out due to dementia or other impairments, and may not be believed if they do. Moreover, many victims are reluctant to report abuse because they may:

• Feel ashamed and embarrassed, particularly if a family member is the abuser
• Be afraid that the abuser will get “in trouble”
• Worry that they will be forced to live in a nursing home
• Feel guilty or that they are to blame
• Be in denial that abuse is occurring, or unaware that what is happening constitutes abuse or neglect
• Be afraid that the abuse will get worse if they report it.

A publication of the Elder Abuse Committee of the Elder Law Section of the New York State Bar Association

For more information about the Elder Abuse Committee, please contact Joy Solomon, Esq. at jsolomon@hebrewhome.org

Tags: Elder Abuse, elder abuse committee, world elder abuse awareness day

“Everybody has a Will. But, perhaps you don’t know what yours says?”

In New York State, everybody has a plan to distribute assets after death. Without a written Will Last Will and Testament, your assets will pass-on by what is commonly referred to as “intestate distribution” or “intestacy.”

There are four ways to pass on property when you die:

1. by operation of law – joint tenancy;
2. by contract – beneficiary designation;
3. by Last Will and Testament – written instructions; or
4. by intestacy – statute determines how assets are distributed following death.

Intestate distribution is made to distributees, i.e. the nearest level of blood (including half-blood) relatives. Unless you change that distribution by leaving a valid Last Will and Testament document, your estate will pass as follows:

1. Survived by spouse and issue (“issue” means children or next lineal descendents)
   • Spouse gets first $50,000 and ½ of the residue of the estate
   • Issue equally share the rest;
2. Survived by spouse and no issue, then the spouse inherits all;
3. Survived by issue but no spouse, the issue equally share the estate;
4. No spouse or issue, then to your parents, then to siblings, then to nieces/nephews, etc… , and so on, all the way to first cousins once removed;
5. If there are no family members beyond that, your estate will pass to the State of New York.

There are many other rules and nuances to intestate distribution that are beyond the scope of this short article, but, remember, if you do not leave a Last Will and Testament for yourself, total strangers could inherit your life’s savings.

With a Will, YOU decide who receives your property and in what proportions. Your may create a trust for children or family members with special needs. You may nominate guardians for your minor children. If you don’t make this decision for yourself, New York State law will make those decisions for you.

Wills are not costly or complicated if you have relatively simple needs and the cost is an investment that is well-worth the effort to ensure your wishes are honored. If you have any questions about this article, or wish to speak to an attorney, please contact HoganWillig at 716-636-7600. HoganWillig is located at 2410 North Forest Road in Amherst, New York 14068, with additional offices in Buffalo, Lancaster and Lockport.

Tags: elder law month, last will and testament, living, will

May is National Elder Law month!  Throughout the month of May, please check our website for informative articles on Estate Planning and Elder Law topics.

HoganWillig will be hosting an Elder Law Day on Monday, May 13, 2013 at our Amherst, NY location (2410 North Forest Road, Suite 301).  We are offering FREE 20-minute private consultations with one of our attorneys for review of basic estate planning documents and elder law issues.  These FREE consultations will be by appointment only.  Appointment slots will fill-up quickly, so, please call for an appointment today:  (716) 636-7600.

Tags: elder law, elder law day, Estate Planning, free consultation

Join me at the Adam’s Mark Hotel, 120 Church St., Buffalo, NY 14202, for Elder Law Day 2013.

Free seminars on legal issues of interest to older adults and their families.

• Grandparents’ Rights
• Avoiding Financials Scams
• Wills, Trusts, and Small Estate Planning
• Medicare, Medicaid & Long Term Care
• LGBT Legal Issues
• Veterans’ Benefits
• Elder Abuse & Mistreatment

Tags: Avoiding Financials Scams, Elder Abuse, elder law, elder law day 2013, Grandparents' Rights, LGBT Legal Issues, Long Term Care, medicaid, medicare, Small Estate Planning, Trusts, Veterans' Benefits, Wills

For many divorcing persons one of their most important assets, oftentimes the most significant one, is their house. Significant not only financially, but frequently emotionally as well.

When I first meet with a client about a divorce, one of the questions I am almost always asked is what is going to happen with my house? As with many questions in divorce, the answer is complicated and depends on many factors.

One possibility is that a party may be granted what is known as exclusive use and occupancy for a specified period of time. This usually occurs when the parties have children under the age of 18. Courts now express a preference for allowing a custodial parent to remain in the marital residence until the youngest child becomes 18 unless such parent can obtain comparable housing at a lower cost or is financially incapable of maintaining the marital residence, or either spouse is in immediate need of his or her share of the sale. In actual practice this occurs more frequently where the children are in their teens than when they are younger. At the conclusion of the specified period the house is usually sold.

The person having such exclusive occupancy is generally also entirely responsible for paying all of the carrying costs of the house, such as mortgage, taxes, and utilities, and for keeping it maintained. So while exclusive use may seem the way to go, you need to ask yourself if you will be able to afford it given your own income and what amount of child and spousal support you may receive.

If exclusive use and occupancy is not indicated or economically practical, frequently one spouse will want to buy out the other spouse’s interest in the house, either in exchange for other assets or for cash. This requires an agreement as to the value of the house or obtaining an appraisal. Affordability is again frequently a problem. Your spouse will justifiably want you to refinance the existing mortgage into your own name, which is not as easily done today as it was just a few years ago. And usually you have to refinance for more than the existing mortgage to raise the funds to pay your spouse his or her share of the home’s equity, so now you’ve taken on the existing expenses of the house and even more debt than there was before! Or if you’ve traded other assets to pay same, you may have left yourself financially vulnerable in other regards.

Last, the house can be sold and the proceeds divided. This is what a court will usually order if exclusive use is not awarded to one of the parties and they cannot otherwise agree on what should be done with the house. Even where parties agree without a court order to sell, any number of matters have to be discussed and agreed upon such as choice of realtor, sale price, payment of expenses pending sale, and how the proceeds are to be used, such as paying debt, and then divided.

I’ve touched on only a few of the issues and considerations involved in making a decision about what happens to a house in a divorce. The experienced family law attorneys at HoganWillig can provide you with informed guidance as to both the applicable law and in assessing your financial outlook going forward in order to help you make the smartest and most beneficial decision.

Tags: divorce

April 16, 2013 is “National Healthcare Decisions Day.” It is a day set aside to educate the public about the importance of health care planning. This is to encourage people to express their personal wishes regarding healthcare, in writing, before a health care crisis occurs.

Although it is a difficult issue to address, it is important for all adults to consider who is best-suited to make medical decisions for them in the event they become too ill speak for themselves and convey their own wishes.

Health Care Proxy: A Health Care Proxy is a document which allows you to designate an agent to make health care decisions in the event you are unable to do so. Your health care agent should be a person you trust to carry-out your wishes and deal with your physicians.

Living Will: A Living Will supplements the Health Care Proxy by allowing you to document your wishes concerning treatment during a terminal illness or in the event you are in a vegetative state where there is no reasonable likelihood of recovery.

Appointing a health care agent is a good idea even if you are not terminally ill. A health care agent can act on your behalf should you ever become temporarily impaired. For instance, if you are unconscious as a result of a general anesthesia or have become comatose because of an accident, your health care agent would be able to make medical decisions on your behalf.

Family Health Care Decisions Act: On March 16, 2010, NYS Governor David Paterson signed the Family Health Care Decisions Act (“FHCDA”) into law. The FHCDA may permit family members to make medical decisions, including decisions about the withholding or withdrawal of life-sustaining treatment, for patients who have lost their ability to make medical decisions and who had not previously prepared a Health Care Proxy or Living Will. However, the law may give some a false sense of security and belief that written a Health Care Proxy or Living Will is not needed. That is not the case.

The law established a protocol for doctors to determine whether a patient has decision-making capacity. When it is determined that a patient does not have decision-making capacity, the law requires the selection of a ‘surrogate’ from a list of individuals ranked in order of priority, including family members, domestic partners and close friends.

The FHCDA does not solve problems where individuals desire to make very specific medical decisions for themselves based upon their own personal, religious or moral beliefs. Additionally, in family disputes, there will still be issues. For example, if several siblings have differing opinions regarding medical care for a parent, there will be problems to address.

Without advanced written directives for medical care, family members are left in the precarious situation of trying to figure out what to do. The FHCDA clarifies a decision-making hierarchy that may be helpful in emergency situations, but, it does not obviate the need for a Health Care Proxy and/or Living Will. Also, under the FHCDA statute, the health care surrogate is obligated to make decisions based on clear and convincing evidence of the patient’s wishes. The best way for a patient to express his/her own wishes, avoid family conflicts and select one’s own health care agent is to have a written Health Care Proxy and/or Living Will.

If you have any questions about this information, or wish to speak to an Elder Law/Estate Planning attorney, please contact HoganWillig, Attorneys at Law at 716-636-7600 or visit www.hoganwillig.com. HoganWillig’s main office is located at 2410 North Forest Road in Amherst, New York with additional offices in Lockport, Lancaster and Buffalo.

Tags: Family Health Care Decisions Act, FHCDA, hcp, health care proxy, living will, National Healthcare Decisions Day