Veterans Day 2023

Today we honor the veterans who have kept our country and our democracy safe with respect, honor, and gratitude. We encourage clients, friends, and colleagues to consider donating to a Veterans organization, as so many of the nearly 100,000 veterans living on Long Island struggle to meet basic needs.

Please join us in supporting these organizations so they can do their important work of helping our veterans:

www.generalneeds.org

https://www.unitedwayli.org/mission-united

Veteran Resources:

Nassau County’s Veterans Services Agency  

VFW – Albertson, NY

American Legion – Williston Park

To all Veterans, we thank you for your service to our country.

Are You One Medical Crisis Away from Losing Control of Your Life?

If nothing else has you calling our office to ensure your Power of Attorney and Power of Attorney for Healthcare documents are in order, this recent article from The Washington Post will do it.

It is the story of an 80-year-old retired pilot driving his Ford Mustang convertible into a gas station. Someone thought he looked very distressed and called 911. He was placed in the responding ambulance and taken to the hospital, where doctors said he had suffered a stroke.

Most people do not realize the appointment of a guardian is a request to strip the incapacitated individual of their civil rights to manage their affairs. The United States Constitution requires a full court proceeding is necessary as Section 1 of the 14th Amendment to the Constitution provides in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Because he lived alone and there was no evidence of family, when he didn’t improve, hospital officials went to court and told the judge he needed a guardian. The judge agreed, and the formerly independent man lost his civil rights and many freedoms, including the right to vote, how to spend his money, and where to live.

More than a million Americans are in guardianship, many of whom are elderly. Despite many horror stories, there seems to be no end to the abuse. Excessive billing, missing funds, and disposition of personal possessions occur with no penalty.

As America continues to age, there’s a little more focus on this arrangement, especially in Florida, where so many seniors go to retire. Florida has 2 million residents aged 75 or older – more than the population of 14 other states. They move to Florida from different parts of the country, away from families, and when they show up in emergency rooms, they are vulnerable.

What happened to the pilot? His family in Pennsylvania began searching for him. After his stroke, he couldn’t tell anyone to call his family, and it’s not clear how hard the hospital tried to reach any relatives. He lived alone, had never married, or had children, but he had a niece who he had regularly visited with other family members in the Philadelphia region.  

When he was finally ready to be discharged from the hospital, a staff member of the Orlando hospital signed a petition to the court stating the pilot had no one to take care of his finances or medical decisions. He ended up in a nursing home.

The attorney hired by the hospital made a recommendation for a guardian. The attorney for the hospital was the guardian’s attorney. There is no rule in Florida prohibiting an attorney from representing both the hospital and the guardian recommended by the hospital in the same case.

It’s a long, ugly story where no one responded to the family’s search for their uncle, the court delayed responding to the niece’s query about her uncle’s whereabouts, and the real estate agents undersold the home by more than $100,000. The pilot died two days after Florida declined to pursue a criminal investigation despite a preponderance of evidence of fraud, intent to deceive, and elder abuse.

Takeaways for seniors and their children:

Regular check-ins – by phone, online video chats, and in-person visits, are the best way to keep an eye on family members. Even an estranged family member deserves some regular contact – no matter how grouchy they are.

Estate planning documents are necessary. Everyone, especially seniors living alone, should have their estate planning documents prepared long before they expect to need them. We never know when a stroke or heart attack will happen. These are the important documents everyone should have:

  • Durable Financial Power of Attorney – you appoint a person you know and trust to manage your money, pay bills, and manage your household.
  • Healthcare Power of Attorney – names a person you know to make medical decisions on your behalf.
  • Last Will and Testament – A Will directs the distributions of your property to your beneficiaries. It also names an executor, who is legally responsible for marshaling your assets and paying any debts, taxes, and expenses. The executor is also responsible for making sure the beneficiaries receive their legacies.
  • Trusts – can hold assets in case of incapacity, when only the named trustee will have access to funds and as much or as little discretion as you wish to use the funds.
  • HIPAA Release – The Release names an individual(s) who can discuss your medical issues with your medical team. Federal law prohibits medical professionals from discussing and accessing your medical records and history without the Release.
  • DNR – Do Not Resuscitate – declares your wish not to have CPR performed in the event of a heart attack.
  • MOLST (Medical Orders for Life-Sustaining Treatment) – a medical order form signed by a doctor or nurse practitioner to tell others the patient’s wishes for life-sustaining treatment. It is the only document used to document DNR and Do Not Intubate (DNI) orders in a non-hospital setting. Most states allow MOLSTs, but the form may vary from state to state.
  • Living Will – A Living Will is a document expressing your wishes if you cannot communicate your wishes yourself. In an end-of-life situation, i.e., if you are in a persistent vegetative state or have a terminal illness, the Living Will expresses your wishes regarding everything from painkillers, artificial nutrition and hydration, dialysis, organ donation, and life-prolonging treatments.

If you don’t have these documents in order, call our office to get things started to protect yourself and your family.

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Reference: The Washington Post (November 4, 2023) “The retired pilot went into the hospital. Then his life went into a tailspin.”

The IRS Offers Tax Prep Software – Free – Is it For You?

It’s been a long time coming, but next year, for the first time, some taxpayers will have a new filing option: a free tax prep software program created by the IRS and named “Direct File.”

The roll-out will be slow. Direct File will be available only in thirteen states, including New York. Note that the IRS warns that it’s not suited for all taxpayers. You’ll need a special invitation to use Direct File in the first cohort. The IRS expects to send the invitations around mid-February.

If all goes well with the early filers, the program will slowly open up to more users. The goal is to have the program available to anyone who wants to use it in the thirteen states by the tax deadline in April 2024.

The IRS created Direct File following research reflecting potential users’ preference to use an IRS program only if it can process federal and state returns. For the first year, Direct File will be available only to taxpayers in the nine states without a state income tax, plus four states that agreed to work with the IRS to integrate Direct File with their state websites to file tax returns. New York, Massachusetts, Arizona, and California are among the states participating in the program.

The IRS says it’s open to any state willing to participate and expects more states to join if the 2024 filing season is a success.

There are limitations to be aware of. You can’t itemize deductions, which over 10% of taxpayers still do. Also, only certain tax credits and forms of income will be allowed. You won’t be eligible to use the software if you claim a credit for child-care expenses or have interest income above $1,500. And self-employment income isn’t listed as one type to be processed, which means freelancers and gig workers are not eligible.

Direct File will process three major tax credits: Earned Income Credit, Child Tax Credit, and Credit for Other Dependents. It will also let users deduct teacher’s expenses and student loan interest. But that’s it, at least for now.

There are options if you aren’t eligible for Direct File but are searching for a way to file your taxes for free. You can complete your taxes and submit them electronically or on paper. People with an annual income below $73,000 can get free access to some commercial tax software through the Free File program. Older adults and those with an annual income below $63,000 can have volunteers prepare taxes free at Volunteer Income Tax Assistance programs supported by the IRS nationwide.

Because only 3% of Americans use the Free File program, even though 70 percent of Americans are eligible, it will be interesting to see how Direct File does.

We are taking a wait and see position on this. New software of any kind is subject to unexpected glitches, given the complexity of the tax laws. We recommend waiting until the completion of the first tax year of Direct File to see its success. While we’re always excited about new technology, we will wait and see.

Reference: The Washington Post (October 17, 2023) “IRS to offer a new option to file your tax return”

Don’t Make These Medicare Mistakes

Medicare can be complicated and mistakes can be expensive. Knowing the pitfalls in advance can make a big difference for seniors.

Here’s an example of what can go wrong. A 66 year old actor from California enrolled in a Medicare Advantage plan. After receiving a prostate cancer diagnosis last year, he learned the specialists he wanted to see weren’t in his United Healthcare HMO’s limited network. He faced delays getting tests and treatment.

Worse, when he tried to get access to more doctors by switching to traditional Medicare. Worried about the steep out-of-pocket costs, he tried to get a fill-in policy known as a Medigap plan. He was denied because of his diagnosis.

Medicare beneficiaries don’t know they have a right to purchase a Medigap policy only at certain times and if they don’t get them at the correct time, they may not be able to purchase them at a later date.

Medicare’s open enrollment period started October 15 and runs until December 7. This is the time when beneficiaries can pick new plans for next year. This includes traditional Medicare or Medicare Advantage plans, private insurance benefits.

Ads for Medicare Advantage plans promise all kinds of benefits such as dental and vision coverage and generous financial terms. But consumer advocates warn seniors to be careful about the limits of Medicare Advantage plans.

Here are five of the biggest pitfalls:

Medigap or Medicare supplement insurance doesn’t have the same rules as most health insurance. Medigap insurance companies can reject applicants or charge more based on medical conditions. The best time to get Medigap is when you join Medicare, when you have a six-month window and insurers can’t turn you down or charge you more because of your health conditions. There are other “protected window” times, but you might not be able to get a policy outside of those times.

Medicare Advantage plans can have limited access to doctors and hospitals. The plans, especially health maintenance or HMOs, can have limited networks, which means you can’t go to the doctors or hospitals you want. As for the directories of in-network doctors on the insurance companies’ websites, be careful. They can be wildly inaccurate. Call the insurer and be specific about what plan you are discussing and what doctors and hospitals you want.

Medicare Advantage plans can sometimes delay or block access to treatment. This is downright frightening. A recent government investigation found beneficiaries were denied services that should have been covered. You may need to get approval from the insurer before getting surgery, or a referral from a primary care doctor before you can see a specialist. When seniors start using the more expensive care, this is when the limitations of the Medicare Advantage plans become evident.

Will your drug coverage be sufficient? Drug coverage can come in through a stand-alone Part D plan, or part of your Medicare Advantage plan. This is something you’ll want to review every year. You may also want to go to the insurer’s website to look at restrictions on access.

Is the advice you’re getting legitimate? Ads selling Medicare Advantage programs can be deceptive, featuring Medicare card photos and a toll-free hotline that may look official but isn’t the federal government’s office. Be careful, as websites are often tied to particular insurance companies or insurance agencies incentivized to promote certain plans, regardless of whether they are the right fit for you.

Call us if you have questions. Every year we prepare a guide to Medicare that answers many questions about Medicare and how to determine the best plan for you. You can pick it up at the office, or we can send it to you by email. We aren’t selling anything – we understand how confusing Medicare can be, and we’re here to help.

Reference: The Wall Street Journal (Oct. 15, 2023) “The Big Mistakes People Make in Medicare—and How to Avoid Them”

No Estate Plan Means an Estate Disaster for Many American Families

Less than half of Americans over 55 have an estate plan in place – – which means, even after COVID, the number of households with an estate plan to distribute assets after death has fallen.

People age 35-54 have placed their families and minor children at risk at even higher levels, with only 28 percent having an estate plan. These unsettling numbers are from a survey conducted by caring.com.

According to caring.com, New York is the worst place to die without a will if you have children. Due to complicated guardianship issues, a minor child of the deceased may be placed in a home with a court-designated guardian unless there is a will naming a guardian. If there’s no will, the court decides who will raise the child, and it might not be the person the parents would have wanted.

When someone dies without a will, families must face the grim realities. State law determines what happens to the person’s property when there’s no will. In some states, half their property will go to their spouse and half to the children. The surviving spouse may not maintain their living standard, and there will be nothing they can do. If a child is a minor, the courts manage their finances until they are no longer minors. During that period, the court must approve every expenditure on behalf of the minor and control the investment of the child’s share.

The family home is often the most valuable asset. Generally, this is passed along to children when the last living parent dies, but dividing a house is difficult. Unless the offspring agree to sell the house and share the proceeds, things can get nasty—and court battles are expensive.

The same applies to a family-owned business. If there’s no will and no succession plan, the company’s operation is severely affected. Instead of providing employment or income for future generations, it could be consumed by creditors, sued by customers, and create enormous tax liabilities.

Non-traditional families have become increasingly common across the US, but state inheritance laws don’t cover non-traditional families. Unmarried partners have no legal inheritance rights, no matter how long they have been together or how intertwined their lives are.

Another complication is the number of accounts and assets Americans own and have named beneficiaries. Among these assets are insurance policies, retirement accounts, bank and brokerage accounts. If the wrong beneficiary is listed—an ex-spouse or estranged relative—the asset will go to the person on the beneficiary form, no matter what the will says.

These issues can be resolved with an estate plan prepared by an experienced estate planning attorney. If you don’t have an estate plan, or if you haven’t had your estate plan reviewed in over three years, call our office for an appointment to discuss your situation. Taking steps now to protect your family is always a wise move.

Source: Daily Mail (October 4, 2023) “America’s inheritance crisis: Only 46% of over 55s have a will in place – and experts warn it could be catastrophic for their heirs”

Stephen J. Silverberg Named To 2023 Super Lawyers Metro New York – Scott B. Silverberg Named Rising Star 2023

For the seventeenth consecutive year, Stephen J. Silverberg has been named to the New York Metro Super Lawyers list as one of the top New York metro area lawyers in Elder Law for 2023. Each year, the research team at Super Lawyers selects only five percent of the lawyers in the state to receive this honor. Super Lawyers has named Stephen J. Silverberg to its select list of attorneys for seventeen consecutive years, from 2007 to 2023.

Stephen J. Silverberg is recognized nationally as a leader in estate planning, estate administration, asset preservation planning, and Elder Law. He is a past President of the National Academy of Elder Law Attorneys (NAELA), an organization of almost five thousand Elder Law attorneys throughout the country. He was named a NAELA Fellow, the highest honor bestowed by NAELA to “attorneys… whose careers concentrate on Elder Law, and who have distinguished themselves both by making exceptional contributions to meeting the needs of older Americans and by demonstrating a commitment to the Academy.” Mr. Silverberg was a founding member of the New York State chapter of NAELA and served as President of the chapter.

He is a Certified Elder Law Attorney (CELA), designated by the National Elder Law Foundation under the auspices of the American Bar Association. To obtain this designation, an applicant must pass a full-day written examination and is subject to rigorous blind peer review. Since 1993, fewer than 525 Elder Law attorneys in the United States have earned the designation. Martindale-Hubbell has rated Mr. Silverberg AV Preeminent (5.0 out of 5.0), the highest possible designation.

For the fourth consecutive year, Scott B. Silverberg was named to the 2023 New York Metro Rising Stars list. To qualify, New York Metro Rising Stars must be younger than 40 or have been practicing for less than ten years. Each year, the research team at Super Lawyers designates no more than 2.5 percent of the lawyers in the state to receive this honor.

Scott is President of the New York State Chapter of NAELA and a member of the National Board of Directors of NAELA. He also serves as Co-Chair of the Technology Committee of the Elder Law and Special Needs Section Executive Committee of the New York State Bar Association. In 2022, he became a member of the Estate Planning Council of Nassau County, a member chapter of the National Association of Estate Planners and Councils (NAEPC). He is also a member of the Nassau County Bar Association.

Scott has attained the LL.M. (Master of Laws) in Elder Law from Stetson University School of Law. This rigorous program is offered only to Elder Law practitioners who have provided legal services in Elder Law matters in complex areas of the law. Stetson’s L.L.M. Elder Law program faculty comprises many leading attorneys in Elder Law.

Remembering 9/11

Many of you know I am a Kansas City Barbeque Society Certified Barbeque Judge. Over the years, I have judged numerous competitions up and down the East Coast. A number of years ago I joined the Barbeque Brethren, a group of competition barbeque teams on Long Island. Pre-covid, we hosted a BBQ for 1500 veterans and family members at the VA on Long Island for more than ten years. In 2016, the Barbeque Brethren learned nothing was being done to commemorate 9/11 for the 2,000 Navy, Coast Guard and Marines based at the Brooklyn cruise port.

(C) Stephen J. Silverberg 2016

A few strings were pulled by the Barbeque Brethren, who had been doing BBQ lunches for 1500 veterans and family members at the VA on Long Island for more than ten years.

The only ones permitted to attend this event was the crew, some of the VA home residents and members of the Barbeque Brethren. It was not open to the public.

While I was there, cooking and serving along with my fellow Barbeque Brethren, I saw the Coast Guard cruiser coming into port in front of the Freedom Tower and took this photo. Notice the ship’s number: 911.

The Coast Cruiser made its way past the Freedom Tower. It was a remarkable sight.

We shall never forget all those who were killed on the day of the attacks and who have died as a result of their efforts afterwards.

Stephen J. Silverberg Named to 2024 Edition of Best Lawyers, Scott B. Silverberg Named to 2024 Ones to Watch

Attorney Stephen J Silverberg

For the tenth consecutive year, Stephen J. Silverberg, based on extensive peer review, is listed in the 2024 Edition of The Best Lawyers in America® in the practice area of Elder Law.

Scott Silverberg

For the first time, Scott B. Silverberg is listed in the 2024 edition of The Best Lawyers in America: Ones To Watch® in the practice areas of Elder Law and Trusts and Estates.

For the 2024 edition of The Best Lawyers in America®, a review of over 13.7 million votes resulted in over 76,000 leading lawyers being honored in the milestone 30th edition.

 For the 2024 edition of Best Lawyers: Ones to Watch® in America, over 2.4 million votes were analyzed, which resulted in over 25,000 lawyers being honored in the new edition.

Stephen holds the AV® Preeminent (5 out of 5) rating, the highest possible designation from Martindale-Hubbell, and has been on the Super Lawyer New York metro list since 2007.

He is designated a Certified Elder Law Attorney (CELA) by the National Elder Law Foundation, as authorized by the American Bar Association. Applicants must pass a stringent written examination and substantial independent peer review to receive this designation. Although the test started in 1993, fewer than 520 attorneys have earned the CELA designation. Silverberg is a graduate of Hartwick College and Brooklyn Law School. He has been a New York and Florida Bars member for over forty years.

Stephen J. Silverberg is a nationally recognized leader in estate and tax planning, estate and trust administration, asset preservation planning, and Elder Law. He is the past President of the prestigious National Academy of Elder Law Attorneys (NAELA). In 2003 he was named a NAELA Fellow, the highest honor given by NAELA to “attorneys… whose careers concentrate on Elder Law, and who have distinguished themselves both by making exceptional contributions to meeting the needs of older Americans and by demonstrating commitment to the Academy.” Silverberg is also a former President and is a member of the New York State chapter of NAELA. 

Scott B. Silverberg is President of the New York Chapter of the National Academy of Elder Law Attorneys (NAELA) and a member of the National Board of Directors of NAELA. He also serves as a member of the Board of Directors of the Elder Law Practicum of national NAELA. As a New York State Bar Association member, Scott serves as Vice-Chair of the Practice Management Committee of the Elder Law and Special Needs Section Executive Committee. Previously, he chaired the Technology Committee.

In 2022, Scott became a member of The Estate Planning Council of Nassau County, a member chapter of the National Association of Estate Planners and Councils (NAEPC).

Scott earned an LLM (Master of Laws) in Elder Law from the Stetson University School of Law, a leader in special needs planning. He is the only attorney in New York who holds this degree. He graduated from Fordham Law School (JD, 2013) and holds a Bachelor of Science from the internationally renowned Cornell University School of Industrial and Labor Relations.

The Law Office of Stephen J. Silverberg, PC, represents clients in estate planning, tax, estate administration, asset preservation planning, Elder Law, and related issues. The Law Office of Stephen J. Silverberg, PC is at 185 Roslyn Road, Roslyn Heights, NY 11577, 516-307-1236 and www.sjslawpc.com.

What is the Medicare Observation Trap?

The Medicare Observation Trap happens when patients and families are least expecting it. The patient has a serious health emergency and goes by ambulance to a local hospital. Family members are worried, and the patient might not know what is happening around them. The patient goes to the Emergency Room, where they undergo a thorough evaluation, and doctors decide whether the patient needs to remain in the hospital or can go home.

If you decide to remain in the hospital, the Medicare Observation Trap can limit the care you receive when discharged.

Most Medicare patients rely on Medicare for their hospital coverage and, when needed, up to 100 days in a rehabilitation facility. But what often happens when a patient remains in the hospital for observation without being admitted? The patient might be ineligible for Medicare coverage of rehab.

Hospitals often register elderly patients as under observation rather than admitting them as patients. Observation can last days or weeks – with the same level of treatment as an admitted patient.

Why would the hospital do this? Hospital billing departments often make this decision, not the doctor. The billing department is concerned about getting paid. Medicare reimbursement might not happen if a Medicare auditor overturns the physician’s decision to admit the patient. The observation payment rate is lower and is less likely to be denied—the hospital bills Medicare Part B rather than Part A.

Part A of Medicare coverage only begins upon admission to the hospital. Patients “under observation” are technically outpatients, no matter how long they are in the hospital.

This practice impacts care after hospitalization when the trap is sprung. If you are in the hospital on “observation” status, no matter how long you are in the hospital, Medicare will not pay for skilled nursing care in a rehab center. The patient or the family may realize none of this – until a massive bill arrives.

How can you protect yourself or a loved one from the Medicare Observation Trap?

Be clear with your doctors as to the patient’s status. Even if they say they are waiting for a bed to become available, insist that the patient be formally admitted and firmly ask for a document showing the patient’s admission.

If the patient needs to go to a skilled nursing center immediately after hospitalization, make sure you bring the admission document with you. Let the nursing center’s office keep a copy of the document – you must keep the original.

It is an important detail you must remember during a medical emergency,  as it could protect the patient or their family from a financial emergency.

#elderlawyerny #estateplanninglawyer #taxattorney #retirementplanning #specialneeds #inheritance #estate planning #estateplanningattorney #legalneeds #newyorklawyer #longislandelderlaw

What’s On My Grill This Summer?

Sky-high prices for beef make this the year to expand your grilling horizons, with less expensive cuts of meat, new takes on chicken and adding more than salmon to your fish repertoire. Here are a few ideas to try out:

Try beef brisket instead of more traditional sirloin steaks. Prepare the brisket for low and slow cooking with a marinade – the recipe below is a traditional BBQ marinade – or swap out cayenne pepper for cardamom and turmeric for a completely different take on brisket.

  • ½ cup Kosher Salt
  • 3 TBS Black Pepper
  • 2 TSP Cayenne Pepper
  • 2 TSP Brown Sugar
  • ¼ cup Apple Cider Vinegar
  • One Clove Garlic, finely chopped.

Start early in the day, as brisket can take five to eight hours to reach an internal temperature of  185-190 degrees.

Some folks like to sear their brisket, 20 minutes per side on a hot grill – 400 degrees –  then switch to low and slow at 250 degrees. Check the brisket temperature every hour.

What other fish can you grill besides salmon?

Any fish with thick flesh works great on the grill as long as you prepare the grill and the fish right.

What kind of fish? Tuna, red snapper, sea bass, grouper and halibut are all good for grilling.

Prep the grill by using a grill marinade brush dipped in vegetable oil and rub it over the grates. Keep going until the grate is glossy and black, seasoned like a cast-iron skillet.

Coat both sides of the fish with a layer of vegetable oil with a brush.

Place the fish on the grill, diagonal to the grate slats, skin side down. Lower the heat to medium.

Cook for 2 – 4 minutes or until the skin is crispy.  Use two spatulas for more control, and if it doesn’t come off cleanly, keep cooking it another minute until it does.  Flip the fish and keep cooking for another 3 – 7 minutes.

If you’re cooking salmon, the center should be opaque and reach 125 degrees. Any fish with white flesh should be cooked until the internal temperature reaches 140 degrees.

Grill baskets are a great idea for fish, especially if you’re grilling a whole fish. Be sure to use vegetable oil on the basket so the fish doesn’t stick to the basket.

What’s this I’m hearing about braided salmon bread that looks like challah?

I haven’t tried this, but it’s on my list for this summer. You’ll need a big fillet, skinned. Brine it, then cut into four equal long strips. Braid it as if you were making challah bread, then season with a salt-free rub (the brine will provide the salty flavor). Use a simple glaze, citrus and maple syrup will do. Cook it low and slow on the grill – depending on the density of your challah, about an hour or until the internal temperature is 125-130 degrees.