Get Your Important Documents, Including Advance Directives, Ready Now

There has never been a time in our lives when the need for an estate plan has been more critical. The sheer numbers of people who have died from COVID-19, in our community and worldwide, is something we have never witnessed. And while it may have seemed at first that the elderly were the most vulnerable, we know better now.

What should you be doing now to protect yourself and your loved ones? At the very least, you need a Will, Power of Attorney, and Advance Care Directive.

Find your most recent Will. If you cannot find it, you need a new one. Now!

Our office is open, and we are working with clients through phone, email, and videoconferences. We take all necessary precautions as recommended by the CDC for anyone who wishes to meet with us in person.

If your Will is over four years old, it probably is out-of-date. Your life may have changed, and it may not reflect new children, grandchildren, spouses, divorces, deaths, etc.

If your Will is out of date, it does not consider the changes in the law that have occurred in recent months. IRA distribution rules for heirs are among many changes that resulted from the SECURE Act (effective January 1, 2020). The CARES Act, passed in response to the economic impact of COVID-19, further modified these rules. What you had intended years ago may not come to pass because of these and other changes.

A will does not take long to create, but not having one creates unnecessary costs and stress for your loved ones.

Power of Attorney – Names a person who manages your finances and may transfer assets in certain situations. A POA allows your designated agent to pay your bills and handle health insurance problems during a medical emergency. Without one, if you are incapacitated, your assets will be inaccessible, and your family will need to undertake a costly Guardianship proceeding.

Healthcare Proxy – Names a person who may make medical decisions if you cannot do so for yourself. Without this document, family members can argue about who should decide what medical care you receive.

Living Will – Tells your health care proxy and family what your wishes are for end-of-life care. Without a Living Will, doctors can keep you alive in a vegetative state for years with no chance of recovery.

Three young women, Karen Ann Quinlan, Nancy Cruzan, and Terri Schiavo, became household names as their families battled over whether to keep them alive by artificial means. Even young adults admitted to intensive care units with COVID-19 are often struck suddenly. There’s no time for them to express their wishes.

We can create a plan tailored to your needs to protect your family. Call our office at (516) 307-1236 or email sbsilverberg@sjslawpc.com for a free consultation by phone, video, or in person.

What Are The Benefits Of Naming A Corporate Fiduciary?

Many individuals who establish trusts choose to name a close friend or relative as trustee.  However, there are many situations where naming a corporate fiduciary is a far better alternative.

Acting as a trustee requires that the person have a good background in finance and tax. Failing that, the liability of making poor financial decisions may be overly burdensome for someone selected primarily because of their relationship with you. Depending on the size of the estate, performing as a trustee may require more time and energy than the person is able to devote to the required duties.

Here’s another problem, and one that we see often. It is unfair to the beneficiaries of the trust to pay a trustee for services rendered if the trustee is not qualified to perform the services, or does not have the necessary credentials to manage the trust. Even if friends or family members are professionals in finance, law or tax, they may not necessarily have the right knowledge of estate tax. They may be capable and trustworthy without being qualified. Paying them if they are not qualified may lead to bad feelings between family members and/or friends.

Along those lines, naming a friend or relative may subject the individual to highly charged and emotional disputes. If they are a friend, they may not appreciate being thrust into a family argument, and if they are a family member, they may bring their own emotional baggage that may complicate even the simplest of arrangements.

An alternative is the corporate fiduciary, which will take on a more business-like approach to the tasks and responsibilities of managing a trust without becoming emotionally involved in any disputes among the beneficiaries. Naming a corporate fiduciary also adds permanence to the choice and ensures that individuals who are skilled in money management, taxes, and conservation of trust principal will administer the trust.

Selecting a bank or independent trustee does not preclude family participation in the trust decisions. A friend or family member might be named as a co-trustee, with power to make or participate in decisions regarding discretionary distributions to beneficiaries.

The best estate plan in the world can be undermined by poor trustee selection. This is a decision to discuss with advisors, including the family estate attorney, CPA, financial advisor, and other trusted professionals.

Governor Cuomo Authorizes Video Conferencing to Witness Legal Documents

In an effort to help New Yorkers who are unable to be physically present to witness the execution of legal documents and to protect the health and safety of the public, Governor Andrew Cuomo has just authorized the use of audio-video technology for witnessing wills, powers of attorney, health care proxies and other estate planning documents.

There are some requirements, but they are reasonable in nature and won’t be difficult to enact.

  • The person requesting that their signature be witnessed must be able to produce a valid photo ID to the witnesses during the course of the video conference, if they are not known to the witnesses;
  • The video conference must allow direct interaction between the person and the witness(es) and the supervising attorney. In other words, this can’t be done via a recorded session.
  • The witness must receive a legible copy of the signature page or pages, which may be sent by email or fax, on the same date that the pages are signed.
  • The witness can sign the emailed or faxed copy of the signature page and send it back to the person; and
  • The witness may repeat the witnessing of the original signature page(s) as of the date of the execution, as long as the witness(es) receive the original signature pages, along with the electronically witnessed copies within thirty (30) days after the date of the execution.

This is a common sense approach to a problem that has been a serious impediment to wills, powers of attorney, health care proxies and trusts being finalized during the COVID-19 pandemic.

Our office is open and fully operational, and we look forward to speaking with you.

If you have questions, please send them to sjs@sjslawpc.com or call 516-307-1236.

We Are Now Offering a Complementary Health Care Proxy

One of the most important estate planning documents, after a Will and a Power of Attorney, is the Health Care Proxy. This is the document that allows you to name someone to participate in discussions with your health care providers if you are not able to do so.

With so many seniors being concerned about the COVID-19 pandemic, our office is offering a free Health Care Proxy so parents and their children can have this document.

In New York State, a Health Care Proxy need not be notarized, but it does have to be signed with two unrelated adults serving as witnesses.

We hope that this offer will be taken up by children concerned about their parents and parents concerned about their over 18-year old children. Because of HIPAA regulations (Health Insurance Portability and Accountability Act), parents and adult children have the same legal status as a stranger. Doctors may not speak with parents about their child’s condition, or with children about their parent’s condition.

Parents or adult children have no legal standing to decide about their loved one’s care. The scenario is frightening for anyone.

A Health Care Proxy allows a person to designate another person as an agent or proxy entitled to information about the person’s medical condition, gain access to medical records and most important, make medical treatment decisions on behalf of the person. New York does not allow co-agents; only one person can serve at a time.

We are offering to prepare this document for free to members of our community as we believe it is so important. If we can help one family who otherwise could not make medical treatment decisions for a loved one, the entire effort will have been worth doing.

Your request for a health care proxy must be submitted through our website’s contact page https://www.sjslawpc.com/contact/. We cannot accept requests by phone.

Provide us with your name and address, and the name and address of the person you want to serve as your Health Care Proxy.  We will send you the document via email. Print it out, insert a date, sign your name on the line indicated in front of two unrelated witnesses. Make sure that the document is readily available in an emergency.

If you have questions, please send them to sjs@sjslawpc.com.

Be safe,

Stephen J. Silverberg, Esq.

Documents in New York State May Now Be Signed Remotely – Call for an Appointment

The Law Firm of Stephen J. Silverberg is continuing to provide our clients and their families with all the services they have come to rely on us for. We are using telephone, email and video services to stay in touch with clients and members of our team.

Now that the Governor of New York has issued Executive Order 202.7, we are able to help clients have documents notarized remotely, as long as certain procedures are followed.

If you were in the midst of having Power of Attorney, Deeds, Trusts or other documents prepared and were waiting to have them notarized, please call our office and we can set up a video conference to ensure that they are completed in a timely manner.

Please note that this is something that can only be done between now and April 18, 2020, so call our office at 516-307-1236 to make sure you don’t miss this deadline.

Our office and you will need to be able to interact during the call and you or the person who is signing the document must be physically located in New York State.

Please call us at 516-307-1236 if you have any questions. We are continuing to operate our practice and serve our clients. Be well, and we look forward to hearing from you.