1. 1 Special Needs Planning: Power of Attorney Advance Directives Medicaid Trusts Judith D. Grimaldi, Esq.

2. 2 Introduction to Advance Directives Advance Directive options:  Power of Attorney  Health Care Proxy  MOLST – Medical Order for Life Sustaining Treatment  Living Will  Surrogate Decision Making

3. 3 Why use POA and Directives?  Provides another with the tools to act when the disabled person cannot  Can avoid the complexity of Guardianship  Allows another to act according to your wishes  Can create leadership and authority

4. 4  Amends general obligation law  Effective September 1, 2009  Previous Powers of Attorney still in force and must be honored New NYS Power of Attorney Law

5. 5 POA and Directives are Revocable  Can be Changed and Challenged  HCP Can’t Force Treatment  HCP is only Triggered by Doctor when Grantor is Found Unable to Act.  Best Alternative Available

6. 6 Purpose of NYS Power of Attorney Revision  Appoint a legal and financial representative  Protect financially vulnerable individuals  Provide better controls on finances  Provide ability to arrange for bill paying.

7. 7  Execution of new Power of Attorney revokes prior document  Power of Attorney is durable unless otherwise stated  New form has a separate gifting rider  In New York State statutory form must be used  Agent must sign and accept role of agent Law Changes - Form

8. 8  Must be signed by Principal and Agent to be effective [GOLS 5-1501 B sub 1(c)]  Gifting power must be initialed and have a separate rider  Lapse of time between signing and issue Execution of Power of Attorney

9. 9 Fiduciary Duties  New Optional role of POA MONITOR  Can receive copies of all transactions  Sets a Standard of behavior –prudent person  Agent liable for conduct or omission  Record keeping required

10. 10 Gifting Powers in the POA  Must be noted in the general POA form and in the Statutory Major Gifting Rider  Without Rider gifts by agent are limited to $500 or consistent with prior gifting patterns  Grantor can give specific instructions  Standard-”Best Interest” of Principal  Must be signed by Principal before two witnesses

11. 11 Selecting an Agent  Person who can make decisions for the disabled person  Individual with understanding of individuals Illness  Can handle finances and paper work  Can receive compensation  Can have more than one agent or successor agent.

12. 12  Does not provide for springing POA  Does not allow substitute agent to automatically step up unless they sign to accept  Provides for compensation for agent Cautions in New Law

13. 13 Why do we need the Statutory Major Gifts Rider?  Estate Planning  Gifts and charitable gifting  Medicaid Planning  Maintaining income and resource eligibility level  Can never predict the future  Assets need to be flexible

14. 14 Advance Directives The Health Care Proxy (sometimes called a Medical Power of Attorney) appoints an “agent” to make medical decisions A HIPAA Release Form allows your “agent” access to your medical records A Living Will describes the health care measures desired if seriously ill with no hope of recovery

15. 15 Health Care Proxy The Health Care Proxy should be the lead medical document for the orderly decision- making in the event of disability.

16. 16 A Living Will does not appoint an agent, but describes the kind of health care measures an individual would desire if he or she were seriously ill with no hope of recovery. Living Will

17. 17 Passed July 2008:  Medical order for last stage of treatment  Requires Doctor’s signature  Travels with patient MOLST –NEW MEDICAL DIRECTIVE FOR END OF LIFE

18. 18 Surrogate Decision Making For Health Care  New York requires clear and convincing evidence of patient’s wishes.  Legislation passed in 2010 giving family members right to make certain decisions.

19. 19 New NY’s Surrogate Family Decision Making Act  Procedure for medical decision making for persons lacking capacity  Sets a priority list of surrogates beginning with Court appointed Guardian to spouse, child, parent, sibling then close friend  Sets standards

20. 20 Paying for Care and Income Supports  Medicare  Medicaid  Private insurance  Coverage linked to Disability  Special Medicaid programs

21. 21 Medicare and SSD  Individuals on Social Security Disability  Worked the required quarters, or  Disabled before age 21 and parent receives SSA benefits  Receives Medicare after disabled for required period  No resource or asset limitations  Must remain unable to be gainfully employed to continue benefits

22. 22 Medicaid and SSI  Disabled with limited or no work history  Income limits – poverty level  Resource and income limitation  SSI resource limit $2,000  Medicaid resource limit - $13,80O  Can apply through SSI or Medicaid alone

23. 23 Two Medicaid Programs  Community based Medicaid  Coverage for Institutional Care  Medicaid in the Community covers:  Outpatient and community mental health services  Hospital stays  Prescription drugs, supplies and equipment  Home care and personal care.

24. 24 Medicaid Eligibility for Community Coverage  Simplified application beginning April 2010. “Access NY”. NO Look back.  Income cap – $787 (single adult) with spend down option  All sources of income are counted  Personal interview no longer required  Resource amount -$13,800 for individual  Must prove citizenship

25. 25 Trusts Planning for Special Needs TYPES OF TRUSTS:  Irrevocable Medicaid Trusts  Discretionary Trusts  Pooled Income Trusts  Supplemental Needs Trusts

26. 26 Why Should I have a Revocable Trust? Revocable Trust vs. Power of Attorney  Grantor has full control over assets  Upon incapacity, Successor Trustee can continue to manage funds  The instructions are spelled out in the trust document – i.e. Gifting assets, supporting and maintaining family  Trustee may receive commissions, or generally statutory liquidating assets.  Trust Law is well established  Limit liability of the Trustee

27. 27  Grantor directs how the assets are used and by whom  Grantor decides who receives the assets at death  Once funded, the funds are not available to the Medicaid applicant Why Should I have a Revocable Trust? Revocable Trust vs. Power of Attorney

28. 28 Exempt Medicaid Trusts Social Security Law creates exempt trusts for individuals who are:  Determined disabled and  Under age 65

29. 29 Pooled Income Trusts  Income placed in the Trust is not counted in calculating income for Medicaid eligibility  Income in Trust can be used to pay bills of beneficiary  Managed by a non-profit  Remaining funds in Trust at death revert to the pool or repays Medicaid

30. 30 Supplemental Needs Trust- Payback Type  For persons under 65 years of age  Funded with the individual’s own funds  Established by a parent guardian or court order  For individual’s sole benefit  Not counted as a resource by Medicaid  At death the remainder must reimburse Medicaid first then to heirs  Can be used for supplemental care and quality of life expenses and support

31. 31 Supplemental Needs Trust – Non Payback  Created for benefit of a person with a disability  In a Will by a relative or parent  No pre-approvals needed  Provides for special needs  No payback

32. 32 GRIMALDI & YEUNG LLP 9201 Fourth Avenue, 6 th Fl. Brooklyn, New York 11209 546 Fifth Avenue, 6 th Fl. New York, New York 10036 Tel. (718) 238-6960 jgrimaldi@gylawny.com www.gylawny.com