Life Happens

April 29th, 2023

Episode Transcript

(00:00):
Good morning everyone. Welcome to LifeHappens Radio, your weekly radio broadcast bringing
you ideas, thoughts, and planningconcepts to put into practice. How do
you get yourself ready for all thethings that life brings your way? And
today what life is bringing us israin. It's rainy here in the Capital
District's been rainy for a while.It's going to be rainy for a little

(00:21):
bit longer. But as they say, April showers bring May flowers, and
looking forward, we'll get back upinto the seventies, eighties, nineties and
have those warm summer days. They'reright around the corner. So we hope
that you are enjoying spring. AndI know we're all waiting for the blossoms
to bloom and the weather to turna little bit, but that will come

(00:43):
with time. In April, it'salways budget season in New York State,
so our government, state Legislature,the Senate, and Assembly have been meeting,
working with the governor to try toget a budget out and that budget
impacts each and every one of youand us, and it's something that we
follow very very closely. And onMay eleventh, we're conducting our twenty eighth

(01:07):
that's twenty eight years we've been doingan Elder Law Forum and it's become a
very policy oriented forum, and wehave legislators. John McDonald is going to
be joining us along with other statelegislators talking about the budget session and what's
going on. We're going to havethe head of Long Term Care FRO New
York State Department of Health, AdamHerps, the head of the State Office

(01:27):
for Aging, Greg Olson, anda cast. We have twenty four different
speakers for the Elder Law Forum,and you can actually join us for the
Elder Law Forum. It's at theDesmond Americana and you can join us live.
It's a professional based program, butit's very interesting. If you have
interest in this area, you canalso join us virtually. We're going to
be broadcasting it live from the Desmond, so you can stay home watch or

(01:51):
you can come to the Desmond,get a bite to eat and watch along
with all of the others. Aboutthree hundred people have signed up so far,
and you can do that on ourwebsite. You can go to pyrolaw
dot com go to events. You'llsee all of the scheduling, the various
speakers and the people that will bewith us on May eleventh to talk about
the New York State budget, howit impacts each and every one of us,

(02:14):
and what New York State is undergoingin terms of aging and aging in
a rapid fashion. The workforce isnot growing, but the population of people
who need services is, so howwill New York State grapple with that?
May eleventh Elderlaw Forum. Go topyrolaw dot com events and you can sign
up right now. We hope thatyou can join us. And one of

(02:37):
the people that would be joining uson May eleventh is my partner Peter Straus,
and he's also joining us live thismorning. Good morning, Peter,
Good morning, Low You just fadedout a little bit, Okay, I'll
try to keep my voice up.And I was just talking about the Elder
Law Forum, something that we lookforward to each year because we learn a

(02:58):
great deal of what's going on stateand federal level, and what's going on
around our region here in in NewYork City as well. And Peter joins
us from Manhattan or the Hampton's Whereare you today, Peter, Good morning.
The weather here is just like allthey gloomy, and I hope that's
not a prediction of what the statebudget is going to finally look like,
well, we're not hearing great things. The money is tight, the budget,

(03:22):
you know, looking to cut inareas that we rely upon, that
is Medicaid and social services in theOffice for aging. The people that we
have on this show that are goingto be on the panels on May eleventh
and speaking May eleventh. So far, the no one knows for sure because
it isn't passed yet. It's amonth late coming up. It's supposed to

(03:43):
be passed on April first, soit doesn't look like they're going to get
it passed until May. But it'sgoing to have, you know, some
really hard things for everyone to livewith, and that's also going to be
explored by our panels on the eleventhElder Law Forum. But it's something Peter,
we work on every day with clients. And today's topic that we're going

(04:09):
to talk about is suddenly everything wentdark and when that happens, the fear,
the anxiety, the unknown of anillness, a sudden accident, life
changes in a heartbeat, and areyou prepared if you do go to the

(04:30):
hospital and someone needs to make adecision, you need a surgery, a
blood transfusion, other treatments. Who'sgoing to make that decision? And do
they know what your wishes are?If you have someone who has to have
authority to take care of your finances, pay your bills, get your health
insurance information, contact the insurance companies, make sure that your stay is covered.

(04:54):
Who was going to do that foryou? And if you have assets
and you end up in eating care, healthcare, hospital care, transitioning,
perhaps the rebuilitation, transitioning perhaps toa nursing home or back home with assistance
when that day comes, are youprepared? And unfortunately, Peter, a

(05:15):
lot of people are not. Ithink that's correct Blue. When as a
background to this discussion, I haveto make one comment about the budget.
Because New York has had a historyof being the pioneering state in assistance to
people who have medical needs and agingrelated issues. We've been way ahead,

(05:38):
as we will probably discuss during thismorning's program, generous medicaid programs, generous
eligibility rules, far more liberal thanmost other states. But suddenly, because
of budget problems, the costs ofCOVID nineteen, and a change in philosophy,
we're seeing budget driven decision and goinginto the adoption of the budget cutting

(06:02):
back on resources and eligibility rights thatare available to our clients, and we
see that every day, so weneed to keep that in mind as we
discuss the answer to your question,are we prepared? Too Many people are
not prepared, and we're going totalk to you about that now. So
individual preparedness is part of this.And how do you plan? What documents

(06:27):
should you have, what should yoube thinking about, How should you structure
your assets, how should you namebeneficiaries? What can you do to protect
yourself today so that when that daycomes, you don't have at least one
anxiety, and that is the anxietyof how will things be dealt with because
you will have preplanned it. Theother piece the preparedness of our government for

(06:50):
the things that we're about to faceand the aging phenomena, especially here in
New York. They are not prepared. And it's something that budgets go year
to year and government has a cycleof year to year and elections, and
as soon as someone wins for office, they have to start running again to

(07:11):
get reelected in the next campaign andstart raising funds again. So we don't
have a long term vision in thegovernment. The governor has a master Plan
on Aging. She just announced thatin December. She has two people that
are in charge of that, onefrom the Department of Health, one from
the State Office for Aging. Andthe master Plan on Aging being conducted by
Adam Herbst and Greg Olsen, bothof whom will be addressing these issues at

(07:34):
our Elder Law Forum on May eleventh. So we're gonna have probably eight or
nine hundred people attend the forum.It's an event that has grown over time,
and this issue of preparedness. Thenumbers, we've been following these numbers
for twenty seven years and this isour twenty eighth annual, and the numbers
are numbers. And when you lookat the Baby boom generation, Peter,

(07:56):
that's my generation. And we're comingthrough and there is a huge swath of
people seventy six million people who haveturned sixty five, who are now turning
seventy four seventy five, and we'recoming through this in a way that's going
to swamp the systems that exist today. And that's a societal problem that we're

(08:16):
just not dealing with and grappling with. And we've discussed on other shows that
even if there were budgetary or fundsand the fund sens results of the budget
for pained for care under the Medicaidprogram and other programs, there may not
be the workers available to provide theservice here that needed, not just upstate

(08:39):
rural areas, but it's happening inNew York City as well, and it's
happening all across the country, sono one is immune from this. The
number of people that are eligible workersin healthcare and long term care has not
grown, but the demand, theneed for those services has grown enormously over
the last ten years and will continueto grow over the next thirty to forty

(09:01):
years. And so preparing ourselves individuallyis something we can control. Preparing ourselves
societally is something that we have touse our vote to make sure that people
are taking these issues seriously, andwe have to use our advocacy. We
do some lobbying work, mostly withthe Bar Association, to make sure that

(09:22):
our clients' rights are protected. Andyou have to have a voice. You
cannot expect that passively things are goingto go well for you if you leave
them to someone else. And Ihate to be on the soapbox, Peter,
but money is the root of allevil in politics and it's a money

(09:43):
gain when you have lobbyists who haveinfluence. The people that pay those lobbyists
and can afford those lobbyists are theones that get the time, the FaceTime
with the decision makers who then createour public policy. So public advocacy the
groups that we support, the peoplethat lobby on behalf of people with disabilities.

(10:07):
Beth Finkel, who is the NewYork State chair of AARP, one
of the leading advocacy groups for seniors, is going to be part of our
May eleventh panel. She's been onthe show very recently. These are issues
that are important to all of us, and it's something that you can't sit
in your cocoon and expect that therest of the world is going to treat
you right. You have to advocatefor your own rights. So what we're

(10:30):
going to focus on today, though, is not public advocacy, it's private
advocacy. How do you create aplan? And Peter, I just lost
a friend and a client, someonewho was sixty two years old. He
was an attorney, and he camein and did his estate plan six months
ago. He had no plan inplace. Six months ago. He came

(10:50):
in and did his estate plan andI got a call from a hospital letting
me know that he was in thehospital and asking for his healthcare proxy,
which we were able to send overa scan over and send it to the
hospital so that his agent could makedecisions. But unfortunately he passed at age
sixty two, and he is takingcare of his elderly father who was still

(11:15):
with us, And so you neverknow. And the name of the show
is life Happens. And when hehit the hospital, fortunately he had a
healthcare proxy in place, he hadclear instructions as to what he wanted,
and he had an agent in place, and they got that healthcare proxy emailed
to them immediately. But that scenario, the document that he had in place,

(11:37):
along with his others, is criticalat the moment of time in time
when you do have that nine calland you do end up in the hospital.
Right Unfortunately, Lou, many ofour clients, when we get that
call, we have to tell thesocial worker who's making it from the hospital.
Setting novel. We sent our clienta draft six months ago and she

(12:01):
hadn't come back to sign her documents, notwithstanding five emails from us. So
people don't understand the risks here,and we don't want to scare the audience
on a or any day. Peopleneed to plan, and the alternative if

(12:22):
they don't is there may need tobe a petition to a court to a
point a guardian to make personal decisionsand health decisions, and you may not
get a temporary guardian appointed overnight whenthese healthcare decisions need to be made.
Now, there is something called thefamily healthcare decision making that where spouses and

(12:43):
children have rights to make decisions ina hospital. If you don't have a
healthcare proxy, but you don't knowwhere your kids are going to be,
they could be on vacation in Hawaiior and even with zoom, that's not
a good thing to have to happen. So let's talk about what needs to

(13:03):
be done, and we're going tocome back after a short break and start
laying out for you the legal plan, the documents that you can put in
place today so that when that nineone one calls and it's about you,
you are prepared. Stay with us, We're it'll be right back. You're
on w g Y at Life inLife happens every Saturday morning at eleven am.

(13:24):
Stay with us, We'll be rightback. You're baking my heart you're
shaking, all right. Welcome backeveryone. You're listening to Life Happens.

(13:48):
I'm Lou Piero from Pierre O'Connor andStrauss, your host for this morning,
and I have with me Peter Strauss, who is going to be back on
the line in just a moment.We're talking about planning and being prepared for
the day that that event happens toyou. And trust me, folks,
this is not an if question.This is a when question. Something is

(14:11):
going to happen to you at somepoint, whether it's an accident, an
illness, an incapacitating event, andit may be that you are disabled and
incapacitated and you need to plan forthat. It may be that your life
is over and you need to planfor that as well. So putting those
plans in place are things that weneed to think about, but more than

(14:31):
think about, we need to do. We need to put it in place.
And Peter, I think you're backon. Yes, can you hear
me clearly? I can hear youclearly. And I was just kind of
bringing us back to the show.And you know, this time of year,
it's it's spraying, it's rainy,it's cloudy, but the sun will
come out for many of us,not for all of us. We look

(14:54):
at you know, it's baseball season, the Mets, the Yankees, the
Red Sox, whoever you're following.Now's the time. It's a great time
of year. Go to a game, watch it on television. If you're
a football fan, the NFL Draftis going on right now. If you're
a Jets fan, you have AaronRodgers who's joining your team. So it's
a pretty exciting time for Jet fans. I'm a Giants fan. I think

(15:16):
they're doing pretty good. The Patriots, you know, perennial powerhouses, no
out kind of rebuilding. All ofthese things take us day to day through
our lives, and we can getdistracted and we can focus on those things,
but we also have to turn focusat times to being prepared. And

(15:37):
that's legal planning, financial planning,tax planning, making sure that you are
doing the things, the blocking andtackling, as we say, making sure
you're doing the things day to daythat will keep you financially sound. W
g Y does a great job bringingyou information. You have Dave Kopeck,
you have Steve Bouchet. The frontand back end of this show. And

(16:00):
those are great advisors, and youget great information on your financial planning,
making sure you have enough money goinginto a retirement account so that when you
do retire you have an IRA orroth IRA and accounts that you can count
on to produce income for you.You may be in the stock market and
you may be following the bank stocksthat are volatile right now and all the

(16:21):
other things that they talk about,and having a sound financial plan is essential
to future success to make sure thatyou have the money in place if you
have an emergency, that you havethe funds if you retire, that you
can retire successfully with the cash flowand the income that you need in order
to do the things that you wantto do in retirement. But hand in

(16:42):
hand with that is a sound legalplan, and that's the part that many
people put off. And Peter,how many times do clients or people that
you run into on the street comedup to you and say, well,
when should I do a will?You know when's the right time to do
a will? And there's an easyanswer for that. Well, the answer

(17:03):
is you never know when bad thingsare going to happen. When life happens.
You know, over my career,I've I've done emergency planning for people
who wrote their motorcycles at the ageof twenty seven years under a mack truck.
That had to be a guardianship becausethey didn't realize that they, you

(17:26):
know, can be waiting till sixtyfive to do their planning. And so
the planning, you know, toimplement the financial plan has to be done
with having the legal documents to dealwith your finances. That's half of it.
The other half is having the legaldocuments to deal with your health decisions

(17:47):
and personal decision making in life.So right now we're going to start with
the financial documents. And essentially youneed to have a good, strong,
solid, well rafted, durable powerof attorney, meaning that you appoint someone
to take over to make your financialdecisions, pay your bills, look at

(18:12):
your investments, file your tax returnswhen you are not able to do it
for yourself. We call that personthe agent, sometimes called the attorney in
fact, but agent is really whatit is. It's your representative to speak
and act for you to deal withyour financial affairs and deal and implement the

(18:36):
financial plan and take care of yourselfand your family. Sometimes we also use
trusts and we'll talk a little bitabout it's a little more formal system and
in most cases today it makes alot of sense to have a trust.
Let's go, let's out with powerAttorney, Peter, because that's an important

(18:56):
document. And we'll take these oneat a time, the power Attorney,
and then we'll get into the differenttypes of trusts and how they are used.
But I did talk this morning atAlbany Law School. It's their annual
Senior Citizens Law Day, something thatwe started back in nineteen ninety seven that
they've been doing at the Law schooland it's back on board and it's a

(19:18):
great day where you can go inand get real information. And I was
talking to folks about these illegal documentsthe power of Attorney, and questions were
coming in from the audience, andI'm going to give it give all of
you listening an opportunity to ask yourquestions right now as well. It's eight
hundred talk w G Y you cancall us right now. Is actuaiting to
take your call. It's eight hundredeight two five five nine four nine eight

(19:42):
hundred eight two five fifty nine fortynine. And you know a couple of
people said, well, you know, I went online and I downloaded a
form and I started to ask themquestions about the power of attorney, and
I said, did you see agifting provision in there? And they said,
oh, yeah, I saw that, but I don't want to fill
that out. I don't want anybodyto have the ability to make gifts of
my assets. And in a contextof estate planning, when we as planners

(20:06):
look at this document and we craftthe document for each client, most of
our clients once that gifting authority isexplained. But more importantly, what happens
if you don't have that gifting authority? They will sign it and once they
understand it, So just walk usthrough. And you mentioned earlier the court
system and guardianships, and that's whereyou end up if you don't have these

(20:27):
things. And sometimes people, evenif they have the power of attorney,
still have to go to guardianship becausethey don't have the right power of attorney.
Correct. So aside from the giftingprovision, there are several other important
points. And by the way,if the client still is nervous about that,
after your very clear explanation of whyit's necessary to do tax planning supporting

(20:55):
relatives who are in need medicated planning. You can always say, well,
all right, require that you're trustedfriend, family member, attorney, accountant
would have to consent to the gift, so that you know there's some security
built in. It's not necessarily alwaysa good idea because that flows things down,

(21:19):
but for the very very nervous,you can do that. You can
also appoint multiple agents, Peter.So if you have three children and you
don't want to put one on thehot seat, you can name all three
and you can make sure that theycommunicate by acting jointly. And so it
has to be a joint decision.And all the kids, by the document

(21:40):
and by law have to be treatedthe same way they're treated in your will
or your trust. So any grectinghas to go according to your estate plan.
That's how the document is crafted.So there are many protections that we
can build in for you so thatit's something that you need to have and
if you don't have it. Ihad client come in and they had they

(22:02):
had paid an attorney a lot ofmoney to do a plan, and they
came in and the power attorney wasnot done fully. It didn't have the
gifting writer and the person who wasthe principle their parents lost capacity, they
had a stroke, and they hadassets, They had a home, they
had other assets that they wanted toprotect, and they could not protect them.

(22:23):
They could not transfer them because theydid not have this provision in the
power of attorney. And that's aperfect example of when you still would need
a guardian to implement that asset protectionplan, which is probably going to include
medicaid planning. So it's very veryimportant. Now, I just did one

(22:44):
for clients who were concerned about thegifting provision. But we solved the problem
by saying, if they were appointingtheir three children and either any one of
the three could act independently to paytheir bills and make investment decisions, but
when it came to the gifting,it required two out of the three.
So there's a way to tailor theseimportant powers to the client's needs. But

(23:11):
it brings us back to the questionof who is the most trustworthy and capable
agent. It's not my son thelawyer necessarily, or my accountant a son
or daughter. It's the one thatyou trust because you can always get legal
or financial advice, but you can'tbuy trust. So the choice of the

(23:36):
agent where they live, how muchtime they could devote to taking care of
your financial affairs. All become criticalquestions and this is part of the consultative
process that a good lawyer goes through. So if you're shopping for an attorney
to do estate planning, what youdon't want to do is go to the
same attorney that you use to doyour house closing to do your traffic tickets.

(24:00):
You want to go to somebody that'sdoing this full time because the law
is complex, and we spend hoursand hours and hours researching and fine tuning
the documents that we're talking about here, and we're going to talk in the
second half of the show about thehealthcare decision making, and then get into
the trusts, because the power ofattorney leads to a will, and a

(24:21):
will is a good document, butnot the end of the story. A
trust is a document that can overseeall of the assets both during your lifetime
and at death, and once againavoid the courts. We're going to take
a short break for the news,then we're going to come back. I'm
Lou pierro On with my partner PeterStraus, joining us to New York City,
and we're glad that you can joinus on this somewhat rainy and dreary

(24:45):
Saturday here in the Capitol region andin the city, and we'll be back
right after the news. All right, we are back. That can only
play this song for me for anothertwo months and then I'm out of the

(25:07):
sixty four and into the sixty five. So I'll be signing up for Medicare
very very soon. And my partneris on with me, Peter Strauss,
who's been on Medicare for a fewyears. Peter, that's true, Thank
goodness for Medicare. One of theprograms that you still works but is on
shaky ground. And on the news, if you'll listen through the news break,

(25:32):
they were talking about the economy andthe inflation rate and the pessimism that
people have today eight and ten.People feel that the economy is either doing
poorly or fair and so it's somethingthat this perception becomes people's own reality.
But you can't let it get youdown. You can't let it stop you

(25:52):
from doing the things that are areessential for you. And education is a
big part of that, making yourselfan educated consumer, knowing what your rights
are, knowing what your options arein terms of planning. So we have
some upcoming webinars that I want toinvite you to. We do something called
Medicaid Mondays. And Medicaid Mondays arethirty minute, concise, well done webinars

(26:19):
that we do in our office andthe next one is May eighth, coming
right up Monday, and next Mondaythat's Medicaid Monday Navigating Nursing Home Medicaid what
are the realities And one of therealities is that it costs now sixteen to
eighteen thousand dollars per month, that'sover two hundred thousand dollars per year to

(26:41):
be in a nursing home. Sohow do you protect your assets if this,
unfortunately happens to you at some pointAgain, life happens, whether it's
a stroke, Alzheimer's, or anotherphysical or mental ailment, you may need
long term care at some point inyour life. And the older we get,
the more likely it is that we'regoing to need it. So on

(27:02):
Monday, May eighth, at noonyou can join us and Frank Hamming myself
will be talking about medicaid and howthese pieces all fit together. So how
to plan how to protect your assets, your home, your bank accounts,
your other assets and qualify for MedicaidMonday, May eighth, June twelfth,
which is our next Medicaid Monday,again at noon, will be the right

(27:22):
to medicated What happens if you're denied? So how do you appeal your rights?
But join us Mondays the second Mondayof every month May eighth, June
twelfth at noon and you can signup on our website pyrolaw dot com.
You can always call us at fiveor eight four to five nine two one
zero zero or email info at pyrolawdot com. So those Medicaid Mondays Peter

(27:48):
have been drawing four and five hundredpeople to the webinars and that's I think
a testament to Frank in the firmat the dedication that we have to educating
our clients and something I believe andI know you do as well, that
an educated client makes good decisions,There's no question about it. And I
think people also are responding because theysee the difficulty in financing long term care,

(28:15):
and that's a whole program in andof itself. Long term care insurance
is essentially no longer an option forpeople even if they were eligible because they
were still healthy. It was gettingexpensive and so Medicaid is taking on an
even greater importance for those who couldqualify, and the firm is pretty good

(28:38):
at making sure people can exercise alltheir options to make themselves medicate eligibly,
eligible, legally and above board.There are plenty of options, and unfortunately
people don't know about it. Ihad a referral just this week from a

(28:59):
friend of miners or the divorce lawyer, who was fairly educated, and the
wife came in. The husband,he's sixty years old, he's not on
Medicare and he has to get aliver transplant. And so as you went
to the divorce lawyer seeking a divorce, and he fortunately told her that wasn't
your only option. Go call PeterStrauss and talk about other ways. And

(29:22):
yes there was another option. It'scalled medicaid, and we're proceeding and we're
going to have to do it underthere's an immediate need program. So people
do need to be educated. Wehave many guides on our website about medicaid,
about a state planning, about trusts, about powers, plus the live

(29:44):
programs that you can check on.So that website again is Purolaw dot com.
It's p I E r r OLaw dot com. And a lot
of information on there is. Petersaid, also a schedule of our upcoming
events, including the two Medicaid mondaysI just talked to you about, and
other things that we have upcoming.The Elder Law Forum on May eleventh that
I mentioned, which is a broadpublic policy forum that our firm has conducted

(30:07):
now in its twenty eighth year.So learn what's going on out there,
know what your rights are, knowwhat you can do to prepare yourself,
and if you have questions right now, on that call us eight hundred talk
w G Y pick up the phone, make that call, doesn't cost nothing,
and Peter and I are here toanswer your questions. Eight hundred eight
two five fifty nine forty nine.Peter, back to the healthcare decision making.

(30:33):
We talked about the power of attorney. We talked preliminarily about the healthcare
proxy, but healthcare decision making isone of the major components of this all
the way through to something that you'revery passionate about, and that is the
right to choose at the end oflife. So let's walk through the different
options people have to put decision makersin place for healthcare decisions and then end

(30:56):
of life choices. So arting pointis the basic document called a healthcare proxy.
It is in fact a medical powerof attorney. You are appointing a
healthcare agent to make healthcare decisions whocan speak for you at such time as

(31:18):
you no longer have capacity to expressand make your own healthcare decisions. And
that determination is made generally by aphysician who, after examining and interviewing the
patient, says, Mom really doesn'tunderstand the medical issues she is facing,

(31:40):
and I believe that it is timefor her trusted healthcare agent to take over.
Now, how does the healthcare agentknow what to do? Well?
That comes with many discussions, aftermany discussions with mother about her wishes,
what kind of care and treatment wouldshe want if there is a terminal illness

(32:06):
which might result in her death?And so the agent is guided by those
discussions. And yes, maybe theyshould be at the Thanksgiving dinner table or
the Christmas Eve dinner table, whichis usually a happy time, but maybe
it's the only time the family getstogether and you have those discussions. But

(32:28):
the agent is also guided by anotherdocument, which the media calls the living
will. We prefer to call ita healthcare declaration because that's what it really
is. It's mother's written statement ofthe kind of care and treatment she would
want at the end of life,what she would want to have, and

(32:49):
what she would want to forego,including such questions as resuscitation if your heart
stops or your lung stop working,two feeding, stomach tube feeding, even
antibiotics if she's got pneumonia and hasbeen suffering from severe dementia for years and

(33:12):
doesn't have much quality of life.So the living Will healthcare Declaration addresses those
patient wishes, and it needs tobe properly drawn. Don't use terms like
I don't want heroic measures. What'sa heroic measure? Is a heart transplant
a heroic measure? Or is ittoday routine medical treatment? So stick to

(33:36):
some discussion in that document about whatis your quality of life? What are
the terms and times when you sayenough is enough? I'd like to have
a peaceful death. And this isprobably the longest part of our consultation with
the client as to the documents they'regoing to sign, because this is really

(34:00):
the essential planning tool for the endof life. And you mentioned a good
point, Peter, and that isthe conversation because people's wishes don't get conveyed
telepathically. There has to be adiscussion, and the question then becomes where
does that discussion occur and who doesit occur with. And at times,

(34:23):
perhaps there is someone in the familythat the principle feels comfortable with having this
conversation, but there's always the riskthat that person is not there at the
appropriate time and that there's a successoragent that they may not have had this
conversation with. So it ends uphappening in a law office in many instances.
And we have been doing this documentsince nineteen ninety three. There's a

(34:45):
whole history behind it, and Peter, you have written a guide that we've
published internally and externally within the firmon healthcare decision making. Again, it's
an excellent recitation of all of thesefactors and the history of New York's law
and the different documents that you cancreate, and that's available on our website
at Pyrolaw dot com. Go toresources and you can get our healthcare decision

(35:07):
Making Guide. Always you can emailus at info at dot com or called
the office. But when we lookat this conversation that we have with clients,
is the conversation most appropriate in alaw office. Aren't these at the
end of the day, Peter,medical decisions? You're absolutely right, Lou,

(35:29):
And that brings us to another document. I want to come back after
this discussion to who the agent shouldbe. But there is something called the
MOST, a medical order on lifesustaining treatment. It is legal in New
York State. In some other states, it's called a post physician order on
life Sustaining Treatment. New Yorkers callit the MOST. And what's good about

(35:52):
it is that it is a medicalorders. It's results from an intense discuss
between the physician and the patient,usually done when there is a concern that
the medical condition may be life threatening, and it spells out in greater detail

(36:13):
than the legal document that we prepareas our combined healthcare proxy healthcare declaration.
It specifically talks about the kinds ofsurgeries and procedures that you would want and
you would want to forego. Andbecause it becomes a medical order in your

(36:34):
chart at the hospital, it ismore likely to be honored and respected by
the physicians who will deal with youbecause you know it may not be your
primary care decision you're dealing with whenyou're in the hospital. They don't normally
today have privileges any longer. It'sthe hospitalist, the doctor to whom you're

(36:54):
assigned when you're in the hospital.So this most document is they're in your
chart and they are legally obligated tofollow it. Now, in general,
the whole question of honoring your choicesis an issue, and that's another topic
that would take a whole Saturday morningdiscussion. And I will be discussion honoring

(37:16):
patient choice at the convention of theWomen's Bar Association on June second, and
lovely with Hershey, Pennsylvania, soI'll bring back lots of chocolate. But
these are essential issues. Who youragent is going to be, what your
wishes are, and choosing the agenthas some important implications, obviously, and

(37:39):
it should not be my daughter thedoctor. She may be the one with
the most medical knowledge, but naymay not be emotionally and psychologically able to
carry out your wishes. The bestagent is the one who has that stability,

(38:00):
who understands what you want. Becausethe agent's job is not to decide
what's best for you. It's firstto follow your wishes and instructions as known
to the agent. And if there'san unknown we don't really know what mother
would have decided under these circumstances.Then the agent is allowed to make a

(38:21):
decision based on what he or shethinks is in your best interests. But
first it's to honor your wishes andfollow those instructions, even if you would
have made, as the agent,a different decision. And so the healthcare
proxy is a bare bone statutory documentthat appoints our agent. The healthcare declaration

(38:45):
in our language that we've crafted overthe years is it fulfills ninety five percent
of our client's intentions, It matchesninety five percent have different ideas on what
they want in terms of end oflife decision making. So we use that
we modify it to our clients specifications. But what we do in our office

(39:06):
is we combine the two documents.So your proxy, in your appointment of
your agent, and your instructions livein one document, and if the agent's
there, they'll carry out your wishes. Even if the agent's not there,
this document stands alone as that livingwill or healthcare declaration. And then you
get to the point in time whenyou have a most form the medical order

(39:28):
done with a healthcare professional. Andwe didn't see these in our office.
The MOST has been around a longtime, and we wondered why, and
we found out that there was nobilling code, so the doctors couldn't get
paid for having the conversation and completingthis document until about three years ago,
and Medicare now has a billing coldcode for this type of thing. So
when you have your next annual checkup, ask your doctor to consult with

(39:52):
you regarding the medical order, andthen you can make these decisions in great
detail if you choose to, inthat MOST, but you can always have
the healthcare proxy and healthcare declaration documentbehind that so that your agent would have
the authority to speak on your behalf. We have to take one more short
break and then we're gonna come backand we're going to talk about trusts and

(40:13):
how trusts work, and one otherdocument we're gonna touch on quickly, what
happens after you die, What happenswhen the lights really go out, your
healthcare proxy, your power of attorneyno longer have any effect, What picks
up when those balls drop. We'lllet you know right after this short break.
Thanks for listening on this rainy Saturdaymorning, The Life Happens Radio here

(40:35):
on Talk Radio WGY. We'll beright back. I'm just a little Simon
and Garfunk. Thanks exact. I'mloupierro On with Peter Strauss. We're partners
at Pierre O'Connor and Strauss and wedo estate planning, older law, business

(41:00):
succession planning, tax and we dolitigation. But Peter and I focus more
on keeping people out of court thenputting them in and that's something that estate
planning does for you. And we'retalking today about the documents that put decision
makers in place and give them properinstruction. We talked about the power of
attorney. We talked about the healthcareproxy and healthcare declaration. Those two documents,

(41:25):
Peter, are called advanced directives.Both of those documents cease to exist
upon your death. So when we'retalking about traditional estate planning, it's planning
with a will, But a willdoesn't have any impact upon your death because
it has to go through probate,the court process of proving the will and
getting a certificate from the judge.And that certificate is what gives you the

(41:49):
right to do things. And inNew York City, Peter, right now,
that's on a good day. Howlong does it take three to six
months. It's becoming very difficult throughoutthe five counties of New York City.
Staff shortages, budget cutbacks, manyestates caused by deaths during COVID nineteen fewer

(42:13):
staff to work on those estates.You can get something called preliminary letters where
you could affect or a temporary managerthe estate or temporary executor, but that
takes time too, and you haveto have special reasons, and that doesn't
always happen. So by having yourassets in a trust, that trust does

(42:37):
not need any court approval. Itstands on its own. It's it's Some
clients don't know what it is,so I said that, then, well,
it's like your own private corporation.But since it's not a business,
it's it's it's family. We callit a trust, but it's a similar
thing. The trust takes title tothe sets, so you transfer ownership through

(43:02):
this trust. You can be yourown trustee in irrevocable living trust, which
is what we do mostly for peoplewho are not doing Medicaid planning, where
we do a different kind of irrevocabletrust, and you're your own trustee as
long as you can function. Itnames successor trustees if you do become incapacitated,

(43:24):
so it takes over. It's amore formal kind of powever attorney,
but it spells out the duties ofthe trustee to a much greater extent,
and it continues when you die.It continues to exist until the terms of
the trust say it ends. Itcould end at your death and go to

(43:47):
your adult children if they're all healthyand wise and financially stable, but you
could also have it continue. Certainlyyou will have it continue in most cases
for your spouse for his or herlife, and then it might end at
the spouse's death, but it couldalso at that time continue in further trusts

(44:10):
for your children, particularly if youhave a child with disabilities, so you
might distribute to two healthy children twothirds and one third or more perhaps will
stay in ongoing trust as a supplementalneeds trust for a child with disabilities.
So there's great flexibility, and youdo not need to go to the surrogate's

(44:37):
court to probate a will. Ifyou followed our advice and got most of
your assets, including your residences,into trust ownership, but you're the boss,
you don't have to give up control, and that's a key component for
many of our clients not seeding controlover their assets. And the revocable trust.

(44:58):
You have control and ownership, butyou have transferred ownership into the name
of the trust and yourself as trustee, so that the two events that we're
talking about here, what if Iam incapacitated, how do things get done?
And what if I die? Howdo things get transferred upon my death?
So the power of attorney that wetalked about and the will that we

(45:20):
talked about are both replaced by thetrust. And the trust gives you a
great deal more control. It givesyou terms that you can impose upon the
success or trustee and require them tofollow, and then you can put in
place the plan for your next generationfor the beneficiaries. And one of my
favorite topics that didn't used to be, but over the last ten or twelve

(45:44):
years, I've grown to appreciate thisfollowing conversations I've had with thousands of parents
and the fact that those parents feellike, Okay, I was given a
gift. I was given a societywhere I could work, I could save,
I could put money away. Ihave Social Security, I have Medicare.
But are those things going to bearound for my kids do. I

(46:07):
want to have a way to protectmy children for their future in the event
they get divorced and they have amessy divorce and the lawyer attacks everything they
inherited from us, or if theyget sued, or if they go bankrupt,
or if they themselves have a healthissue and need medicaid. We've created
a plan, Peter through the trustwhere the trust doesn't end, it continues.

(46:30):
It continues for the children and onright to the grandchildren. And we
call that a beneficiary controlled trust.And when I have this conversation with parents
and I lay out their options tojust leave it to the kids outright and
let them deal with it and fendfor themselves, or leave it to the
kids in trust, name them astheir own trustee, allow them to use

(46:50):
the money, invest the money,and have it for them and their families,
and use it freely, but protectedfrom all of those events divorces,
lawsuits, bankruptcies, medicaid. Nineout of ten parents opt for that beneficiary
control trust. And sometimes they willlike to extend the protection for a number

(47:14):
of years so that they might say, well, I'd like that idea.
I'd like a beneficiary control trust.But maybe when they're fifty or fifty five,
let's let's end it. So there'sgreat flexibility. And the other day
I had a parent say, youknow what, why don't you talk to
my daughter. Let her decide.You know, I'll do what she would

(47:37):
like. And I had that conversationwith the daughter, and the daughter said,
you know, maybe my marriage maynot live, you know, live
forever as long as i'd live,and maybe that's a good idea. And
another client said to me recently,you know what, let's let's split it
in half. Maybe I'd like toprotect, but I really like to have

(48:01):
more total control over the other half. And I explained that with the Beneficiary
Control trust, you have a lotof control and distributions can be made to
you if there's no need. Soevery client has different concerns and the beauty
of the trust is it gives greatprotection, but you can design it in

(48:22):
a way that's extremely flexible. Yeah. I had this conversation with my three
children, who are in their twentiesand they're all very bright. We sat
around the table and I said,okay, so I'm doing my trust,
and I have the option of justleaving things to you outright, or I
can create a trust for you whereyou are the sole trustee. You have
control of the assets, you caninvest them how you choose, you can

(48:43):
use them when you want to.But no one else can touch that trust.
But you or I can just putthem in your name. Then you
could decide how you want to dealwith it. And then you have to
go do your own trust. Andyou can't do this trust because you cannot
create an asset protection trust in NewYork for yourself. They all looked at
me and said, that is thisa trick? Why wouldn't we do that
trust? So that's what my childrenare getting, and I feel really good

(49:07):
about that because it's giving them anopportunity to have control but still have protection
that I can't do for myself,but I can do for my kids.
So it makes a great intergenerational estateplan. And that's a big theme in
our office, taking care of you, the parents, but also the kids
and maybe your parents and maybe yourgrandchildren. So looking at the multiple generations

(49:30):
and how an estate plan can affectall of them. And when you do
the revocable living trust, you doit without court intervention, without having to
go through the judge, and soit gives you a great advantage. It's
private, it's secure, and it'sa way to put your family in a
position where the assets that you've workeda lifetime to accumulate can be protected for

(49:51):
them. The other type of trustI just want to touch on very briefly,
Peter, for those people who areworried about Medicaid and nursing homes in
that seventy eighteen thousand dollars per monthbill that they may face, we do
a different type of trust, aMedicaid Asset Protection trust. We have one
minute to talk about it, sowe're going to go pretty quickly through this.

(50:12):
But if you want to learn moreabout the Medicaid Asset Protection Trust,
go to our website. We havea video. One of our Medicaid mondays
was on the Medicaid as a protectiontrust, so you can watch that at
perilaw dot com. But this isan irrevocable trust where you have someone else
be your trustee now and you protectthe assets inside. So if you do
go to a nursing home, youhave the ability to shelter those assets.

(50:32):
But be careful because there is afive year lookback on creating this trust for
nursing home purposes and we're facing alook back for home care starting potentially next
April, so Peter, with that, we're out of time. I want
to thank you for joining me fromNew York City and adding to this show
so that we have some educated listeners. I hope you enjoyed today's show as

(50:55):
I did, and we hope thatyou can join us each and every week
here on Life Happens Radio. Havea great weekend, enjoy the weather will
turn, folks, it's just amatter of time, so take care and
on behalf of Pierre O'Connor and Strauss. We want to wish you a happy
spring and see you next week.