Elder Law Attorney Stephen J. Silverberg Named To 2022 Super Lawyers and Scott B. Silverberg Named Rising Star 2022

For the sixteenth 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 for 2022. 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 Silverberg to its select list of attorneys for sixteen consecutive years, from 2007 to 2022.

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.

Scott B. Silverberg, for the third consecutive year, was named to the 2022 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.

He is a member of the National Board of Directors of the National Academy of Elder Law Attorneys (NAELA) and 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. 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.

Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from over 70 practice areas who have attained substantial peer recognition and professional achievement. A patented multiphase process includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area to create the list. The result is a credible, comprehensive, and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and 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.

The Law Office of Stephen J. Silverberg, PC, represents clients in estate and tax planning, estate administration, asset preservation planning, and 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 online at www.sjslawpc.com.

Top Six Reasons to Delay Having an Estate Plan

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.

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

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.

Proposed Legislation “For the 99.5% Act” Takes Direct Aim at Estate Taxes

Last week, Senator Bernie Sanders (I, VT) and Senator Shelton Whitehouse (D, RI) introduced the “For the 99.5% Act,” which includes a reduction in the estate tax exemption to $3.5 million per individual and $7 million per couple.  Sanders also introduced a bill to raise the corporate tax to 35% and reduce a corporation’s ability to shelter offshore profits.

We have known for a while there will be changes coming to estate and corporate taxes. Many estate planning attorneys expect this act to become a foundation for the estate, gift, and GST provisions of the 2021 tax bill President Biden presented during his campaign. We do not know which changes Congress will pass, but we know that changes in whatever bill eventually passes will require estate plans to be adjusted.

The changes expected include larger estates being subject to higher tax rates. The proposal calls for the increase of the 40% estate tax rate to 45% for taxable estates less than $10 million, 50% for taxable estates over $10 million, and 65% for taxable estates greater than $1 billion.

The “95.9% Act” calls for eliminating many of the estate planning tools used for the last twenty years. This includes GRATS (Grantor Retained Annuity Trusts), step-up in basis, the grantor trust rules, and eliminating most minority interest discounts and many marketability discounts for passive assets.

The proposed legislation reduces the lifetime gift tax exemption and changes to the Generation Skipping Tax (GST) exemption and rules. It is also possible that Irrevocable life insurance trusts, which own the life insurance policy and shelters the proceeds from estate taxation, may be eliminated.

The expected changes to the estate tax laws may be finding more popular support following the release of a report showing that the top 1% of Americans are managing to not pay far more in income taxes than the IRS’s methods had assumed.

The report from researchers from the IRS, the London School of Economics, Carnegie Mellon University, and the University of California, Berkeley, shows the wealthiest 1% of households fail to report 21% of their actual income, and 6% of that stems from “sophisticated evasion” strategies missed by federal audits. The unreported income might be as much as twice as large as the IRS thought.

With declining enforcement staff, the IRA’s rates of audits have declined in the last ten years, when the top 1% of wealthy Americans have become even more skilled at underreporting income. This costs the federal government about $175 billion a year. For a government now seeking revenues to recoup the pandemic’s enormous costs, there is a call for re-investing in the IRS’s ability to go after tax avoiders.

According to The Wall Street Journal’s article, “High-Income Tax Avoidance Far Larger Than Thought, New Paper Estimates,” pass-through businesses and partnerships, offshore tax avoidance, and other sophisticated entities have made it harder for the IRS to uncover income.

An op-ed in The New York Times’ Sunday Review, “How to Collect Unpaid Taxes,” references an IRS report from 2019  that estimated “Billions of dollars in business profits, rent and royalties are hidden from the government each year. By contrast, more than 95 percent of wage income is reported.”

The government’s inability to enforce tax laws is a function of how the IRS has been shrinking over time, with fewer workers. But former IRS commissioner Charles Rossotti says that Congress needs to change the law and create a third-party verification for business income, just as there is a third-party verification for wages. Rossotti proposes that information be collected from banks, requiring them to produce annual account statements totaling income and outflow, similar to the 1099 forms that investment firms must provide to clients. The Times thinks this would increase the taxes paid by those not reporting income by scaring people into compliance. Expect the banking and securities lobbyists to push back against any new requirements.

As someone who has worked in complex tax law for several decades, I have seen how often the IRS and academics have engaged in hand-wringing over how unfair the tax laws are, depending on the times, to the wealthy or American wage earners. But for now, tax law permits these strategies, and it appears any plan in place before a new tax law is signed will be grandfathered in.

We are keeping a close watch on the pending legislation as it winds its way through various committees and will continue to keep you informed on how it may affect your estate plan.

References:

The Wall Street Journal (March 22, 2021) “High-Income Tax Avoidance Far Larger Than Thought, New Paper Estimates”

The New York Times (March 20, 2022) “How to Collect $1.4 Trillion in Unpaid Taxes”

 

Guardianship Horror Story Now Trending – “I Care A Lot”

The popular Netflix movie, “I Care a Lot” begins with a scenario loosely based on a real life nightmare reported by The New Yorker several years ago.  A large number of seniors were disenfranchised and abused by a guardianship system in Clark County, Nevada. Unfortunately, this is far from the only place where this elder abuse occurs.

For those of us who work daily to protect seniors, the movie provides an opportunity to broaden awareness of guardianship abuse.  It is not flattering to the courts who hand out guardianships without proper oversight, the guardians who steal the lives and property of seniors, and law enforcement officers who don’t understand that they are aiding and abetting an abusive, tragic series of events when they enforce the abusive guardians.

From our perspective as Elder Lawyers, the guardianship process is intended to protect seniors and others who, for a variety of reasons, are not able to manage their own lives. It is the last resort, usually also the last thing adult children want to do for their aging parents.

In New York State, there are a number of rules and procedures to prevent the type of abuse that was reported in The New Yorker article and is depicted in “I Care a Lot”. That’s not to say the Empire State has completely eliminated all of its guardianship abuse problems, but they tend to occur less frequently here than in other states.

One important rule that New York has established to prevent Guardianship abuse is a cap on fees collected from Court appointees in a given time period. When attorneys who sign up to become Guardians for people are awarded fees by the Court, they must log the fees within the system maintained by the State. Once they hit a certain amount of fees, they are barred from taking on additional appointment for a certain time period. This prevents people like Rosamund Pike’s Marla Grayson from being continuously appointed for people and acquiring huge fees from the Guardianship process.

New York also has rules on who can petition for Guardianships in New York. While there is a catchall “a person otherwise concerned with the welfare of the person alleged to be incapacitated” who is allowed to petition for Guardianship, this is reserved more for friends and non-family members already involved in the person’s life. Additionally, people’s own doctors, as depicted in “I Care a Lot”, cannot petition the Court for Guardianship of an individual, as that would break doctor-patient confidentiality and the release of protected medical information would violate HIPAA. Medical records from a person’s long-standing doctor cannot even be introduced as evidence in a Guardianship proceeding without the person’s consent, as it is protected by HIPAA.

For those who find themselves involved in a Guardianship hearing for themselves or a loved one, an attorney who is experienced in the guardianship process and understands the law is needed. However passionately a family member may speak in court, they cannot protect their loved one without understanding how the process works and how the law is applied. In the opening scenes of “I Care a Lot”, you see a man in Court pleading with the Judge about his mother who has been placed into a Guardianship. The man in a suit standing next to the pleading son, presumably his lawyer, sadly says nothing. A proper attorney in a Guardianship matter would be speaking for his client and arguing for his client’s interests. A competent and experienced attorney can help avoid injustices in the Guardianship process.

The best way to avoid needing a Guardianship is estate planning with a properly drafted Power of Attorney and Health Care Proxy. The estate planning process is a far easier and less court-intensive way for the senior and their family to determine who will be in charge of medical decision making and managing assets. And when a guardianship must be established because of a lack of planning, the process is long and reporting requirements are rigorous, which is as it should be.

If you have a choice, having an estate plan in place well in advance of any issues is the best option. When the option of Guardianship is turned to, make sure you have an attorney who can stand and fight for you.

Medicare Doesn't Cover Everything

What’s Not Covered by Medicare?

Medicare provides health insurance for retirees, but it doesn’t cover everything. In fact, there’s a lot that Medicare does not cover, and many of these are health care costs that can consume a nest egg. Here are the top five healthcare costs that should be part of your retirement preparations:

Medicare and Long Term Care Costs

Long Term Care is one of the biggest budget busters for retirees. Long term care can easily cost tens of thousands of dollars a month. Medicare does offer some skilled nursing care coverage, but it’s very limited. If you are eligible, in terms of age, health and finances, buy a long-term care insurance. Sometimes a long-term health insurance policy is folded into a life insurance policy. Talk to your insurance broker—this is something you need, as much as an estate plan.

Alternative or Chiropractic Care

If your healthcare includes alternative or chiropractic care, Medicare is not yet fully evolved to pay for these services. The monthly massage that you know keeps headaches or crippling joint pain at bay is not covered, regardless of how effective it is for your well-being. There are some Medigap or Medicare Advantage plans that do cover specific kinds of alternative therapies, so do your research.

Dental and Oral Health

Medicare does not connect your healthy smile with your overall health. Despite studies that clearly demonstrate the connections between good oral health and overall health, especially cardiovascular health, Medicare is not paying for your dental treatment, unless they are “medically necessary” for you before your physician will allow you to undergo covered procedures.

But in most cases, you have to pay for your own dental care. And if you’ve ever needed a crown or root canal work, you know these procedures can cost several thousand dollars. Best to set aside some assets for dental work.

Glasses and Vision Care

The same goes for vision care. The cost of an eye exam, glasses and contact lenses must be paid by you. There are more options today than there were ten years ago (i.e., online, or big box prescription glasses and contact lenses) but it’s still an expense that you need to cover yourself.

Hearing Aids

Hearing aids are the bane of many retiree’s financial life. They are extremely expensive, and Medicare doesn’t cover the audiology exam that is needed before you can be fitted for them or the devices themselves, some of which can cost as much as $10,000. A federal law was passed in 2017 that directed the U.S. Food and Drug Administration to ease the financial barriers to purchasing a hearing aid, but the self-fitted, less expensive devices don’t work for everyone.