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.

Britney Spears isn’t the only one with a guardianship problem

The news about Britney Spears’ battle with her father Jamie to end his guardianship has garnered its fair share of headlines. But Britney’s high profile guardianship battle is hardly the first and won’t be the last. A recent study published in The Lancet reveals the number of children who have lost parents or caretaking grandparents, and the results will be with us for years to come.

The Lancet estimates that 1.134,000 children worldwide have lost primary parents, including one parent or a custodial grandparent. The study estimates that over 100,000 are from the U.S., which ranks fourth globally for the most kids orphaned by COVID.

We hope the children’s parents had wills that named guardians and life insurance policies to cover the expenses of the children’s lives, including college costs. But we know from experience that many of these American children will have their lives upended and depend upon the court to make life-changing decisions for them.

Our practice encourages parents of all ages and stages to plan for what would happen if both parents died. It is unpleasant to consider, but it is something that every family should plan for.

Guardianship is also an issue for the elderly or seniors who cannot manage their affairs. Usually, adult children face no choice but to seek guardianship when a parent refuses to yield control. It is not unusual. While the reasons seem obvious, the results are not always ideal. A parent can name who they wish to serve as guardian should one be needed in a power of attorney. The designation is not binding on the court, but the judge will give great weight to the parent’s intentions.

An example is an older woman who suffered from alcoholism. Her diligent son has gotten her into rehabilitation programs but to no avail. At 79, the chances of her having any recovery are low, and the almost weekly calls to the local rescue department have become a routine: she injures herself, calls 911, and goes to the hospital, where she stays for a short while and then is released again and again.

Does she need guardianship? She would benefit from having her son manage more of her life, including staying current on bills, but she is not at the point where a court could consider her incapacitated.

If the mother would grant the son Power of Attorney and sign an Advance Health Care Directive, he could help. Without her cooperation, the only way he could take charge of her affairs would be to petition for guardianship. It’s not an ideal solution to the larger problem, but there are few other options.

Our recommendation for families considering guardianship is simple. To protect minor children, parents need wills that leave their assets in trust for the children and name a trusted individual or financial institution as a trustee. They should also name a guardian for the children in the event of the death of both parents.

If the parents do not adequately plan, the courts control the children’s money until they turn 18. The court retains control over investment decisions, approval of all expenditures on behalf of the children, and the guardian must account annually to the court for money spent for the children.

Having an estate plan is a much better alternative for the child’s well-being.

In the case of aging parents, a comprehensive estate plan includes a Will, Power of Attorney, Advanced Care Directive, and other documents. Doing so gives the family the ability to help when the time comes.

New York’s New Power of Attorney – June 13 – A Change for the Better

We are proud of our colleagues and friends in the New York State Bar Association who worked tirelessly – for five years – to negotiate changes to the Power of Attorney (POA) statute. The changes were signed into law in December 2020, and any POA executed on or after June 13, 2021, is enforceable under the new law.

Common Sense Wins Over Minor Errors

The old New York State POA law required that every POA use exactly the same wording as the statute. A misplaced comma or one misspelled word and the document could be rejected. A POA form executed on or after June 13, 2021, must be accepted as long as it substantially conforms to Section 5-1513 of the General Obligations Law.

Mentally Competent Adults May Authorize Another Person to Sign on their Behalf

For people who are physically challenged but have mental capacity, a third party may now sign for the person at the person’s direction. This is an especially important change for people who are physically unable to manage a pen but are mentally competent.

The Statutory Gifts Rider Is Eliminated

In the past, a person’s representative was limited to gifts of $500 a year. Anything over that amount had to be documented with a Statutory Gifts Rider, an unwieldy process that caused a great deal of confusion and costs. There is no longer a need for a Statutory Gifts Rider. The gifting provision may be included in the modifications section of the Power of Attorney form.

Statutory Gifting Ceiling Is Lifted

The basic statutory gifting amount has increased from $500 to $5,000. Any gifts in excess of $5,000 must be expressly authorized by the principal in the Modifications section of the form.

Witness Requirements Clarified

The Power of Attorney must be acknowledged and witnessed by two people who are not named in the instrument as agents or as recipients of gifts. The person who takes the acknowledgement can serve as one of the witnesses. By simplifying the requirements for witnesses, it will be easier for POAs to be executed.

Penalties for Unreasonably Refusing a POA

Banks and financial institutions are notorious for refusing to accept POAs, often blaming the refusal on an internal policy of only accepting the institution’s own POA forms. This caused enormous problems for families, including increased costs, delays, and stress when a properly prepared POA was rejected for no good reason.

Now, these institutions must accept the POA as long as it meets the rules set forth in the statute. An institution has ten (10) days to accept or reject the POA. If it’s rejected, the financial institution is required to explain its decision, in writing. To encourage compliance, a company can be sued for damages and attorney fees if the POA is unreasonably refused.

If you have a POA but it has not been updated in two to four years, we suggest a review. Relationships change and life events like birth, death, divorce, marriage, and other trigger events are always an important time to review your estate planning documents. Call our office at 516-307-1236 to learn more.

 

Gov. Cuomo Signs Changes to Power of Attorney Into Law in New York State

After over five years of negotiation between the New York State Bar Association, the legislature passed, and Gov. Cuomo signed a law significantly changing New York State’s Power of Attorney form (” POA”). The new law simplifies and improves the POA form and its use for families and individuals.

Kudos to my colleagues in the New York State Bar Association’s Working Group on the Power of Attorney, which included members of the NYSBA’s Elder Law and Special Needs Section, Trusts & Estates Section, Business Law Section, Real Property Section, and Health Law Section. The Working Group created a report with recommendations, which provided the basis for this legislation, which goes into effect June 13, 2021, 180 days from the day the Governor signed the law.

Here are highlights of the changes:

Refusal of a valid POA exposes the bank or other third party to sanctions, legal fees, and damages that result from the refusal to honor a properly executed POA.

Refusing a POA is a common occurrence, causing many families to go to court to gain access to family assets when granted the legal power to do so. This most common refusal occurs when banks or brokerages demand that the POA be on their institution’s POA forms.

Safe harbor provision for good-faith POA

In tandem with the sanctions provision, the new law protects a third party that accepts a POA based on the agent’s claim it is valid, even if the POA is void, invalid, or terminated. If the third party reasonably questions the POA, it can request an attorney’s opinion regarding the POA’s legal matters.

Language in the POA form must “substantially” confirm to the statute.

The old POA statute requires that the POA’s language incorporate the exact same language as the statute, making it far more likely that insignificant language changes in a POA may invalidate a POA. Under the new statute, as long as the language that substantially conforms to the statute suffices.

The new law eliminates the Statutory Gift Rider.

Under current law, an agent may not make more than $500 in gifts each year unless they sign a Statutory Gifts Rider outlining the agent’s gifting ability. The Rider was a major source of confusion and caused many problems. The new POA eliminates the need for a separate Statutory Gifts Rider. Instead, the person can give their agent authority to make gifts on their behalf in the POA modification section.

The POA form is simplified.

By simplifying the POA form, it will be easier for residents in hospitals and nursing homes to execute the firm and allow their agents to act on their behalf.

Witnesses are no longer needed.

Eliminating the Statutory Gifts Rider also removes the need for witnesses. The signature of the person granting the POA only needs notarization. Find witnesses was difficult during this pandemic.

A power of attorney is one of the most commonly used estate planning documents. It permits a family member or trusted friend to act on behalf of another person when they are too ill or otherwise incapacitated. With a POA, someone hospitalized with COVID-19 can appoint another person to take care of all their legal and financial affairs. Without it, the family must commence a guardian proceeding. It will cause delays and added costs to an already stressful time, especially if acts are necessary to qualify for Medicaid.