Tag: #elderlawroslyn

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When Decoration Day Became Memorial Day, and Why It Still Matters  

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Once the calendar has turned to May, the parade notices, Jones Beach Air Show announcements and retail sales ads begin, ramping up until the last weekend of the month, which you likely think of as Memorial Day.

For me, this last weekend will always be Decoration Day. My own Boomer memories include family trips to the Catskills, and I’m sure you have your own summer memories of parades, barbeques, and picnics. But Decoration Day has a history deserving of time and contemplation.

Decoration Day began in 1868 when General John A. Logan called for a holiday to honor the soldiers who died in the Civil War. On the first Decoration Day, 5,000 people helped decorate the graves of the over 20,000 soldiers buried in Arlington National Cemetery – both Union and Confederate soldiers.

Similar ceremonies inspired the event in cities around the country. Soldiers would decorate the graves of fallen comrades with flags, wreaths, and flowers. By 1890, every Union state had a Decoration Day.

After World War I, the purpose of Decoration Day expanded to honor all soldiers who died in all American wars. It was considered a day of civic duty to honor the dead and remember why they gave their lives.

In 1971, Congress declared a national holiday on the last Monday in May.

Some civic groups and veterans’ groups continue to honor our servicemen and women by taking the time to attend ceremonies and decorate the graves of soldiers. Here on Long Island, we have two large military cemeteries – Long Island National Cemetery in Farmingdale and Calverton National Cemetery.

As the years and wars have come and gone, Decoration Day became Memorial Day. Unlike Veterans Day, which honors all who serve, the traditions of Memorial Day honor those who gave their lives in service to our nation.

I post about this every May because I believe it is important to honor those Americans who gave their lives in service to our great nation. Remembering and honoring their lives and the sacrifices they made should be part of all of our Memorial Day activities.

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Climate Change Bill Brings a Bright Spot of Good News for Americans

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We welcome any good news in a dismal news cycle, but the healthcare provisions built into the “Inflation Reduction Act” are worth a special mention.

The New York Times calls it “the most substantial changes to health policy since the passage of Obamacare in 2010.”

Passed by the U.S. Senate on August 8 and expected to pass in the House of Representatives on August 12, President Biden says he is looking forward to signing the bill into law. Here’s what we are looking forward to:

What seniors have needed for decades: giving Medicare the power to negotiate directly with pharmaceutical companies to reduce the astronomical costs charged for many drugs seniors need to stay alive and healthy.

The bill, beginning in 2025, sets a cap of $2,000 yearly for how much seniors pay for drugs. After reaching the cap, funds will come from the federal government, private insurers, and drug companies.

Federal subsidies for people who buy private health insurance through the Obama exchanges will be extended for three additional years, as they were during the coronavirus pandemic. For example, someone who pays about $80 in premiums will continue to pay that amount. These costs would double in 2023 without the bill.

Adult vaccines will be free starting in 2023 for seniors and people on Medicaid.

The bill uses federal subsidies to reduce the cost of health insurance and prescription drugs, insidious economic difficulties suffered by middle class and senior Americans.

Many benefits of this bill may not be evident to the people they help, as they are not visible directly. For instance, people won’t see large medical bills and may not be fully aware of free vaccines. But for the millions of Americans, particularly seniors, who struggle to pay for their prescription medications, the bill will be life-changing.

By design, the legislation will pay for itself and reduce the federal deficit over time while cutting prescription drug costs for the elderly and tightening enforcement on taxes for corporations and the wealthy.

It sounds like good news to us.

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Top Six Reasons to Delay Having an Estate Plan

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Despite two years of COVID, two-thirds of Americans still lack an estate plan

It doesn’t make sense but is true. While we’ve never so closely known life’s fragility and know the importance of having a will, trust, or Power of Attorney, only a third of Americans have actually sat down with an estate planning attorney to create their estate plan. Many people equate estate planning with estate tax planning. Nothing can be further from the truth. Estate planning, simply stated, is making sure your assets end up with those you want to receive them

Why is this still so difficult for the average person, who stands to benefit both during and after their lifetime and whose family will be far better protected if they have an estate plan?

Mortality. Who wants to think about dying or what their family will do after they are gone? No one. But not addressing your estate plan could leave your family in a world of trouble. Estate taxes are the least of it. What if your estranged sister and brother-in-law inherit everything you own? Without a valid will, clearly stating how you want your assets distributed, it could happen.

We don’t have enough assets to need a will. People of modest means need a will, sometimes even more than people with significant wealth. You have assets worth protecting if you own a home, a retirement account, and a bank account. Without a will, those assets will pass according to the laws of your state. Remember, wealth is relative. Regardless of the value of your estate, preserving assets is the goal.

It’s expensive. Not having a will is far more costly. Without a will, administering your estate can cost more and is more closely supervised by the courts than if you had a will. An administrator’s powers are much more limited when there is no will than the powers of an executor under a will. The court will likely require an estate administrator to post a surety bond to protect the estate heirs. A bond can cost thousands of dollars per year until the estate is settled. When there is a will, the settlement of an estate is easier. If there is no will, a court proceeding known as an Accounting is required.

I don’t have time. Having a will made is something you make time for, just as you make time to see family and enjoy your favorite streaming shows.

Creating a comprehensive estate plan, including a Power of Attorney, Health Care Proxy, HIPAA Release Form, and a Living Will, helps your loved ones avoid arguing about your wishes if a serious medical emergency occurs. It will also save the time and cost of your loved ones from going to court to be named your guardian to act in your best interest. Your healthcare providers can decide based on your expressed wishes, but only if you have completed the proper healthcare documents. Otherwise, your adult children or healthcare providers will determine your end-of-life care; and it may not be the decision you want.

It’s too overwhelming. An estate planning attorney will walk you through the information you need to gather and help guide you and your loved ones through the process. They’ll tell you what you need and why. You have only to follow their instructions.

I have so many questions. We have answers. We are highly experienced estate planning attorneys and have worked with people like you to help them put their wishes into their estate plans and prepare for the future.

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The House passed “SECURE 2.0’ on March 29 – Now It’s Up To the Senate

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The other day, we sent out information about the SECURE Act and your estate plan. Now the law is on the verge of changing again.

The Securing a Strong Retirement Act (H.R. 2954), known as the SECURE Act 2.0, was approved in the House on March 29 with the most bipartisan approval in recent memory – 415-5. Now it’s headed to the Senate.

A significant change is the age when Required Minimum Distributions (“RMDs”) commences. This may seem odd since Congress is usually looking for tax revenue generated by RMDs. The legislative report says raising the age for RMDs recognizes the increased life expectancies in America. Starting in 2022, you must take distributions beginning at age 73, 74 in 2029, and 75 in 2023. Before the first SECURE Act, the age was 70 ½.

The intent of the SECURE Acts is to increase the ability of Americans to save for a secure retirement. Those are the bold strokes. Expanding coverage, increasing retirement savings, simplifying the retirement system (which is maddeningly complex), protecting Americans and their retirements. Does it accomplish this?

It depends on your situation.

One provision requires employers to automatically enroll eligible workers in 401(k) plans at 3% of salary, which increases to 10%. The employees may opt out, but studies show the chances of an employee saving for retirement as an automatic opt-in is higher than if they have their own savings plan.

Government studies show that only about half of all private-sector workers participate in the retirement plans at work.

Younger workers with higher wages will benefit; the average worker struggling to pay bills will not likely see this as an advantage.

Another advantage for young workers is electing all or some of their employee matches into a Roth 401(k).

For small business owners and nonprofits, provisions in the bill contain inducements to help them with the start-up costs of offering new plans. Another provides tax credits for matching worker contributions.

For part-time employees, a way of life for so many Americans today, access to a retirement savings plan from their employer would be required after two years of service instead of the three-year requirement.

An increase for older workers near retirement allows people ages 62-64 to make catch-up contributions of $10,000 annually. The current limit is $6,500.

The bill includes four revenue-raising provisions to offset costs over the next decade, most of which would take effect in 2023. The biggest offsets would mandate any employee catch-up contributions for employees over age 50 who contribute to Roth-style accounts. Employees may put employer matching contributions into the Roth-style accounts instead of traditional tax-deferred retirement accounts.

Roth accounts are robust savings accounts for the future. They are funded with after-tax contributions, and then withdrawals are not taxable. More Roth-style accounts would mean more revenue in the near term for the federal government. Still, they would also mean less future revenue. The cost of these provisions may become burdensome over the life of the ten-year budget window.

Two bills are pending in the Senate with similar provisions. Will the SECURE Act 2.0 will make it through the Senate? Stay tuned.

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Football’s Hall of Fame and Estate Law Changes Both Moving to the End Zone

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The Pro Football Hall of Fame recently announced the finalists for the Class of 2022, and it occurred to me that estate law legislation is a lot like the Pro Football HOF. The list is announced, some fall by the wayside, but eventually, fifteen names make it and the number of bronze statues in Canton, Ohio increase.

Federal lawmakers work in the same way. We have a long history of laws being delayed, revised, failing to get passed on the first and even the second go-round. For example, the carry-over basis laws put into place in 1976 were repealed, then added back. The child-care credit took four times to make it into law.

Just because the changes regarding the carry-over basis and other laws that will impact estate and tax planning didn’t make it through in 2021, don’t count them out just yet.

I’m advising clients to act now, because when these laws do eventually pass (and I believe many of them will), it will be too late to take advantage of the current laws.

That includes the mega-Roth IRA, which was created as a means of encouraging regular Americans to save for retirement and bloomed into a way for wealthy Americans to tuck away millions, or billions, in accounts with no requirements for withdrawals and no taxes due on withdrawals (taxes are paid when the money is contributed to the account).

We were concerned in December 2020 that Congress would enact retroactive changes, which may happen for taxes, but not for estate and gift taxes, which are rarely retroactive. Logistics make it near impossible. When the law changes regarding estate and gift taxes, the IRS has to get forms and tables to millions of practitioners. Even when everything is online, it does not happen fast enough. Taxpayers and executors would run into countless complexities, like filing a final tax return within in the nine-month period allotted and then having to file an amended return—possibly more than once.

If you really want something to worry about, some legislation contains the phrase “effective on enactment,” which means the minute President Biden’s pen is lifted, the law is in effect and must be complied with. But estate planning matters are pretty complex, and lawmakers know it takes time to prepare for changes.

Greek philosopher Heraclitus said change is the only constant in life. This applies to Congress as well.

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Elder Law Attorneys Stephen J. Silverberg and Scott B. Silverberg Named to the 2021 Super Lawyers Metro New York Lists — Scott B. Silverberg Named Rising Star 2021

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Stephen J. Silverberg has been selected to the New York Metro Super Lawyers list as one of the top New York metro area lawyers for 2021. Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers has named Silverberg to its select list of attorneys for fifteen consecutive years, from 2007 to 2021.

Stephen J. Silverberg is nationally recognized as a leader in the areas of estate planning, estate administration, asset preservation planning and Elder Law. He is a past President of the prestigious National Academy of Elder Law Attorneys (NAELA) and was awarded the credential of 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 commitment to the Academy.” Mr. Silverberg is a past President of the New York State chapter of NAELA and was a founding member of the chapter.

He holds the designation of a Certified Elder Law Attorney (CELA), awarded by the National Elder Law Foundation to fewer than 525 CELAs throughout the United States. Mr. Silverberg is rated AV Preeminent (5.0 out of 5.0), the highest possible designation from Martindale-Hubbell.

Scott B. Silverberg has been named to the 2021 New York Metro Rising Stars list for the second year in a row. To qualify, New York Metro Rising Stars must be 40 years old or younger or have been practicing for less than 10 years. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

He is a member of the National Board of Directors of the National Academy of Elder Law Attorneys (NAELA) and a member of the Board of Directors and Treasurer of the New York State Chapter of NAELA. Scott is Vice-Chair of the Practice Management Committee of the Elder Law and Special Needs Section Executive Committee of the New York State Bar Association.  He is also a member of the Nassau County Bar Association.

Scott has attained the L.L.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 provide legal services in elder law matters in highly specific areas of the law. Stetson’s L.L.M. Elder Law program faculty comprises many leading attorneys in Elder Law.

Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from over 70 practice areas who have attained high peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive, and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

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Stephen J. Silverberg Named a Top Business Leader by Prominent Nassau Publisher

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I am honored to be named to Blank Slate Media’s first Top Business Leaders of Nassau County Award and invite you to join me on Thursday, February 18, at 7 PM for a virtual awards event with Michael Dowling, CEO of Northwell Health as a fellow honoree and keynote speaker.

As if being honored along with Michael Dowling wasn’t enough, I am pleased to find myself in such good company. Other local luminaries being honored that night include:

  • Stuart Rabinowitz, President, Hofstra University
  • Andrew Malekoff, CEO North Shore Child and Family Guidance Center
  • Michael N. Rosenblut, President & CEO, Parker Jewish Institute
  • Jeffrey L. Reynolds, President & CEO, Family and Children’s Association
  • Phil Palumbo, Founder, CEO, Palumbo Wealth Management
  • Jan Burman, President, The Engel Burman Group
  • Edward Blumenfeld, President & Founder, Blumenfeld Development Group
  • Richard Kessel, Chairman, Nassau County IDA/LEAC

We were asked about the business impact of the pandemic in March 2020 when the state placed all but essential services on “pause.”

We transitioned to remote work smoothly, as our firm’s management, document storage, and communications systems were all internet and cloud-based even before the pandemic, allowing attorneys and staff to work in the office, at home, or anywhere. Investing in technology has always been a high value at the firm, and clients benefited from our ability to keep working without interruption. Since returning to the office, we have followed all CDC guidelines, including masks and sterilization requirements.

To see the complete list of honorees and register for this virtual event, click here.

To see the journal for this event, click here.

We hope to “see” you on Thursday, February 18!

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ELDER LAW UPDATE: Medicaid Community Based Care Look Back Period Extended to April 2021

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 As a result of the continued pandemic, the Secretary of Health and Human Services has continued to renew the declaration that a public health emergency exists. The most recent renewal extends the PHE through until late April, 2021. Due to the requirement for states to maintain Medicaid benefits through the Public Health Emergency, no changes to Medicaid benefits can go into effect until July 1, 2021.

For New York State residents and families contemplating a Medicaid application for community home care, this is welcome news. The lookback requirements were to have changed to require applicants to submit to a 30 month financial lookback to ensure eligibility for Medicaid community home care.

As a result of this additional renewal of the PHE, there is additional time for seniors and family members to conduct Medicaid planning for community home care. It is now possible to make gifts, transfer assets and utilize other planning techniques, but only if your Medicaid Application is filed before July 1, 2021.

This is a unique opportunity and one that should be taken advantage of if at all possible.

For decades, Medicaid community home care applicants did not have to worry about any kind of lookback period. This changed in 2020, but the Covid-19 pandemic has created a window of opportunity.

We encourage you to contact our office at 516-307-1236 if you or a loved one anticipates filing for community Medicaid or Medicaid home care.

 

 

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Woman caring for a elder woman

NEWS UPDATE: Important Changes to the New Community Based Long Term Care Laws

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Adding new lookback requirements for those applying for community-based Medicaid home care that went into effect on October 1, 2020 have been pushed back to January 1, 2021 because of the renewal of the Federal Public Health Emergency (PHE) Declaration. The renewal is effective as of October 23 and for 90 days thereafter.

All COVID easements (including a ban on terminating or reducing Medicaid) will continue through January 2021, as will all other rules  from the legislation regarding  Coronavirus (COVID-19) – Medicaid Eligibility Processes During Emergency Period. This is because of the “Maintenance of Effort” requirement of the stimulus law conditions New York’s receipt of enhanced Federal Medicaid funding on continuing eligibility for all recipients, and on continuing the same eligibility rules through the end of the Public Health Emergency.

The takeaway for seniors and family members is an increased window of opportunity to conduct Medicaid planning for community home care. It may now be possible to make gifts, transfer assets, and other planning techniques to be used from now to January 1, 2021.

Details are still being worked out, as this change requires significant adjustment and training for the Medicaid and Department of Health personnel, and systems. It is not clear if transfers made before the PHE ends would be penalized, as that would be a prohibited restriction on eligibility. So it is possible that lookback period might even be moved to February 1, 2021, but this is still unclear.

We will continue to keep you up to date as this change to the law and Medicaid planning continues to evolve.

We encourage you to contact our office 516-307-1236 if you have questions or anticipate needing to file for community Medicaid or Medicaid home care within the next few months. This is an unusual planning opportunity, and one that should be explored.

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How Do the New Rules for Community Medicaid for Home Care Work?

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While October 1, 2020 may feel like it’s a long way off, it will be here before you know it. October 1 is the date when a host of new rules go into effect regarding Medicaid home care and all community based long term care services. It is essential to plan now if this is on the event horizon for you or a member of your family.

Perhaps the most significant change is the 30 month look-back for Community Medicaid. It provides care for people at home and other benefits for people living in the community. After October 1, 2020, anyone who wants to receive Community Medicaid benefits must submit financial statements for the past 30 months, or 2.5 years, when applying for benefits. Any funds transferred by the applicant or a spouse may create a period when the person will not be eligible for Medicaid benefits. That starts on October 1, 2020.

Until October 1, 2020, there is no look-back period and no penalties for transfers, so now is the time to talk with our office so we can create a plan.

Next, there are changes to the CDPAP – Consumer Directed Personal Assistance Program (CDPAP) and PCS (Personal Care Services) program. The CDPAP allows recipients to hire a non-licensed person to provide services in the home, instead of through a home healthcare agency. The person can be a family member, friend, or someone the family knows to provide caregiving, and Medicaid pays for that care.

The New York State Department of Health is creating a new assessment tool to determine how much care a person will receive through Medicaid.

And instead of your treating doctor giving you the go-ahead, after October 1, 2020, the plan of care will need to be determined by an independent physician approved by the Department of Health.

The PCS program allows Medicaid recipients to receive care services through home healthcare agencies who have contracts with the local department of social services.

Changes that also begin on October 1, 2020:

Eligibility requirements change – you must require help with three (3) ADLs (Activities of Daily Living). It is an increase from the previous requirement of needing help with two (2) ADLs, meaning people will require more care to be eligible for Community Medicaid. Those diagnosed with dementia, including Alzheimer’s, need require only help with one (1) ADL. The Activities of Daily Living include bathing, dressing, grooming, toileting, walking, turning, positioning, and feeding.

For those who believe they will need help, an application for Medicaid must be completed and submitted soon. Many people will likely wait until September, but that’s a mistake. Wait too long, and you or a loved one may not get the services needed.

If you have questions about Medicaid and these changes, please call our office at 516-307-1236. We are open and able to serve you through phone, email, and videoconferencing.