Life Happens Radio, Hosts: Lou Pierro and Aaron Connor

August 9th, 2025. 

Episode Transcript

Speaker 1 (00:00):
Good morning everyone, and welcome to Life Happens Radio. I'm Lupiro,
your host for this morning, and you've got a special treat.
You have two of the names in pier O'Connor and
Strauss in the booth. Aaron Connor is with me today.
Good morning Aaron, Good morning Lou and we're going to
talk to you about some important topics and come to
you from our law firm here in Latham, New York.
We have offices around New York State. We practice law

(00:22):
in the areas of a state planning, elder law, business,
business succession planning, and we do also litigation and Aaron
is in charge of the litigation side of the practice
where we do a state and trust litigation, guardianship litigation,
and a number of other things all related around how
you get the goals that you set for yourself and
your family and your wealth to be achieved and make

(00:45):
sure that you were protected for your lifetime and that
your beneficiaries are protected once you're gone. And it can
be done very efficiently, It can be done very easily,
but erin when it's not done right, Mistakes happen, Yeah.

Speaker 2 (01:00):
I mean a lot of things can go wrong when
attention is not paid to the plan, especially if it's
set up and never looked at again. People make mistakes,
or at least should reevaluate. Maybe their choices of who
they're person in charge of their estate may be, whether
that be as through a will or through a trust right,

(01:22):
whether we're talking trustee or executor executricks because sometimes that
person when you're young, you might appoint a sibling or
a parent, and as you get older that choice may
not be appropriate or they may not even be around
to help anymore.

Speaker 1 (01:40):
And that brings up an excellent point that when you
do in a state plan, it's going to include a
whole host of documents. Yes, and we go through those
documents on this show all the time. We go through
them with our clients one by one. And you have
a healthcare proxy, a power of attorney, a will, a
disposition remains a point, and a trust and all of

(02:02):
those things need to be looked at. But the question
that a lot of clients ask is how often should
I review this? How often should I look at it?
Review my plan to make sure that it's current. And
we have some thoughts on that, and yeah, clients that
come to us, you know, we give them a cloth
bag with all their documents in it, and a lot
of times, twenty five years later, it's the first time

(02:24):
they've unzipped the cloth bag, which is get what's in there?

Speaker 2 (02:27):
Some ways good news for them, right, yes, because that
they haven't needed a healthcare proxy or power of attorney
during that time.

Speaker 1 (02:33):
They've been doing well for thirty years or twenty five years.
But we have a program to do that. What do
you think what would you advise clients, just on an
average basis, how often should you pull those documents out
and look at what's done in there?

Speaker 3 (02:48):
Well?

Speaker 2 (02:48):
I think some of that depends on what stage in
life you're at. Youngish people, I'll say maybe you know,
under seventy. I think every three to five years you
should take a look at it. Make sure, certainly though,
anybody who has a major life change needs to look
at it, right, marriage, divorce, death, birth, those things.

Speaker 1 (03:09):
Asset changes, right, loss of assets, gain of assets right.

Speaker 2 (03:13):
Inherronments right, sure, those are big life events. No matter
when you did it, those should be I think reevaluated
at that period of time. The older you get, I
think the more often you need to look at it.
You know, it might be every couple of years every year,
depending on you know where your health's at and where
where your various acuities are at.

Speaker 1 (03:32):
So we're talking about the legal side of the planning
because that's what we do. We do wills, trust, powers
of attorney, all the things, all the legal documents. But
we also deal very closely with financial advisors. We look
at things like four oh one ks and iras. How
do you structure those, how do you maximize the value
of those, and how do you leave them to the

(03:54):
next generation? And should you be thinking about a roth conversion.
I have a lot of clients come to me that
haven't been broached with the idea of a ROTH, and
with today's climate doing a Roth conversion, I still think
it's the biggest giveaway that the government has in its
portfolio because you get to accumulate money in the ROTH
tax free. A limited amount of money can go in,

(04:15):
but you can roll into a WROTH from an existing
IRA under certain circumstances. So these kinds of issues come up,
and we actually use a program in our office. It's
called Inherlink, and we make in Harolink available to our
clients through an overarching program that our firm has developed,

(04:36):
and we've been doing this for twenty five years with
our clients. We call it the Professional Advisor's Lifetime Management System.
PALMS is the acronym. So you're gonna hear me talk
about PALMS a lot with our clients and on the
radio and on seminars, and I have had clients come
to me that said, the only reason we came to
your firm was because of the PALMS program, because we

(04:59):
want to have counsel that we can call on and
having an attorney that you can pick up the phone,
have a relationship with that has all of your documents,
all of your information, knows your children, knows your family.
That is very important as you go on in life.

Speaker 2 (05:14):
I hear from a number of people that their parents
worked with X person or firm and they don't want
to work with them, maybe because you know, they didn't
get a lot of contact afterwards, they didn't get a
lot of guidance, and probably didn't get a lot of
funding guidance.

Speaker 3 (05:28):
Right.

Speaker 2 (05:28):
That's a big I think differentiator in our firm is
they get a lot of funding guidance.

Speaker 1 (05:32):
Dealing with assets and how do you get them into
the trust? How do you make sure they get to
the right people at the right time and in the
right manner. All of that is very tricky, but we
hit barriers with financial institutions, so we're we're on top
of that. We have a paralegal who does nothing but
work with clients to make sure that their assets match
their estate plan.

Speaker 2 (05:53):
Yeah, it's very frustrating, especially I think for second generation
so kids are whomever the beneficial areas are, to find
out that there's nothing in a trust that somebody paid.

Speaker 3 (06:04):
For right and this we see this a lot.

Speaker 2 (06:06):
Yeah, and not from our clients, but from clients generally
that have worked with other firms that they didn't get
any guidance right they might have. Generally, I think most
firms will deed property into a trust, but other than that,
they're not.

Speaker 3 (06:21):
Going to give you a lot of assistance.

Speaker 2 (06:22):
And you really need to figure out what you're going
to put in a trust, especially in irrevocable trust, because
you may not be putting everything into an irrevocable trust.
A revocable trust, there's no reason really to have anything
that's not either owned or tied to it by beneficient designation.

Speaker 1 (06:38):
Right areas are taxable, so they can't It would be
a taxable transaction. But other than that, everything gets tied
together in that revocable trust. And we're going to talk
about probate and what happens when you have a will
and it goes to probate. But just to finish the
thought on palms. When you come in for a consult,
then we sit down with clients. We have if they

(07:00):
do all of our questionnaires and their online questionnaires, we
have all their family information, their children, their grandchildren. We
know who their decision makers are going to be. They've
already thought about that, maybe not have a final decision
on every alternate, but have thought about it, and we
have all of their asset information. We get that so
that we can make informed decisions and give them a guide,

(07:21):
give them guidance on the plan that is exactly right
for them, because Aaron, no two plans are the same.

Speaker 3 (07:28):
That's true.

Speaker 2 (07:29):
And you know recently I had someone come in who
basically refused to fill out the financial form and that
made it very difficult because they were withholding information about assets.

Speaker 3 (07:43):
And we have, first of all, have an attorney client relationship.

Speaker 2 (07:46):
So even if I wanted to which I don't want
to go out and talk to other people about your assets.
I would be barred from doing that ethically. And two,
I can't make a plan without knowing what.

Speaker 3 (07:59):
We're trying to attacked.

Speaker 2 (08:00):
Yeah, and so it's very important when people come in
to to let us know what their assets are and
what the values are, because sometimes people may be taxable,
they may not be taxable, they may have beneficiary problems
that we need to deal with in certain assets, right
like an IRA.

Speaker 3 (08:20):
If you leave an.

Speaker 2 (08:21):
IRA carefully to a disabled person, they can get a
stretch right, right, And you can't do that with everybody.

Speaker 1 (08:27):
There are so many nuances to a state planning and
trust and wills in the terms of those documents are
part of what we do. But we also work very closely,
as an error just alluded to, with financial advisors to
make sure that the language on the beneficiary forms are
correct and that they're making the right choices and right decisions.
We do a lot of medicaid planning, and when you

(08:47):
start looking at medicaid planning, you're dealing with different assets
in different ways. Certain assets like iras are exempt, other
assets are not.

Speaker 3 (08:55):
So.

Speaker 1 (08:56):
Liking it folks to ax throwing acts throwing, we take
our firm there a couple times. We had some fun
we did through the acts, but think about trying to
hit the bullseye with a blindfold on. You might kill somebody.
So true, trying to throw that acts with a blindfold
on is like trying to do an estate plan without
any information, without that financial information and the details that

(09:19):
you need to really fine tune that plan. And our
poems program, as I was talking about, allows us to
not only do it once, but do it year over
year and meet with you on an annual basis and
update all of the information that you've provided to us.
And we have something called the OBBBA, which is the
big beautiful act that just passed in Washington, which has

(09:42):
significant ramifications for everyone. And we actually just did our
firm just published our analysis of OBBBA for New Yorkers.
How does it interplay with New York law, both medicaid
law and tax law. And so if you'd like to
get a copy of that, it's pot off the press.
Just came out on Wednesday, and you can get a

(10:03):
copy by emailing us at info at Pyrolaw dot com,
info at purolaw dot com. We'll be happy to send
you a copy of our analysis and planning guide for
the big beautiful bill that was passed in Washington and
Palms keeps our clients informed. So when we meet with
our clients over the next year, everybody has an annual meeting,

(10:25):
we're going to go through it. How does this apply?
Not just in general, because if you try to take
into account every law that's out there, you're going to
spend a lifetime. But what's applicable to you, what matters
in your plan, And that's really the difference in the
consultation Aaron. We can zero in on that target.

Speaker 2 (10:44):
Right, I mean, we don't come in with a plan
already set in stone. It's not like we have a
cookie cutter plan that we pull off the shelf and
say here you go. We have to do some investigation.
That's why we need asset information. We need people information,
whether you have children with or you don't, whether it's
a first marriage, second marriage, fifth marriage, whatever it may be.

(11:05):
You know who your people are going to be, whether
anybody is going to need a special needs trust or
anything like that, whether they're minors.

Speaker 3 (11:13):
So there's there's and.

Speaker 2 (11:14):
What types of assets they are, and what are the
basets in certain assets because basis ends up being a
very important thing as well.

Speaker 1 (11:21):
It is now with what we're going to get in
January is a fifteen million dollar federal estate tax exception.
New York has a seven million dollar roughly a state
tax exception. But within that, if you have assets passing
through a seven million dollar state, you pay zero in
a state tax and you get a full step up.

(11:42):
So if you have stocks that you bought hopefully at
ten and now they're one hundred, you've got a big
capital gain. That capital gain washes away when someone who
holds those assets passes. So even if it's in a trust,
and a lot of people get this wrong, right, even
if it's in a trust revocal or irrevocal, if it's
structured properly, the beneficiaries are still going to get that

(12:06):
step up in basis. And that's critical today's work.

Speaker 2 (12:08):
It's very critical, and it's something that people miss right,
so they make a gift outright gifts which are generally
a bad idea anyway, almost always either for medicaid purposes
or basis purposes. But when you gift low basis assets,
you're gifting your low basis So you know, if you
people come in and they say, well, what if I

(12:29):
give my house directly to my children. Well, there's a
number of problems of it, the biggest one probably being
that they're going to get a carryover basis. So if
you paid fifty thousand dollars for your house and it's
worth two fifty if they sell it, two hundred thousand
of that is going to be capital gains.

Speaker 1 (12:44):
Yeah, and we do a lot of sophisticated work in
trying to pull assets back into in a state even
after they've been gifted. We just unwound a trust and
had the assets go to the children, who then gifted
them back to the parents because the kids don't have
tax states and the parents don't have a taxable estate,
so we put the asset back in and it's a

(13:05):
very valuable property up on Lake George. We put the
asset back into the parents of state to step up
the basis so that if the kids ever do sell it, yes,
it pay zero capital gains tax. So when we do
the consultation, your initial consultation, even if you don't want
to go online, and we have clients that are averse
to giving information online, we have a paper questionnaire. We'll
send you the document on paper, you fill it out

(13:28):
but most of our clients, probably ninety five percent of
our clients now are comfortable putting the data in. It's
fully secure. We can give you the encryption and then
we get it. We do a plan, we fund your
trust and then year over year you review it and
revisit that plan to make sure that every beneficiary is correct,
that every fiduciary, every trustee, every agent under your power, attorney,

(13:51):
healthcare proxy, all of those things are correct and current
and for good measure erin we throw in two hours
of time during the course of the year because guess what,
you can't always wait.

Speaker 3 (14:03):
A year to get an answer to a question. Yeah, no,
it's very true.

Speaker 2 (14:06):
Things may change, things, timing may be important, or you
just want it because you sleep better at night, and
that's part of the program.

Speaker 1 (14:14):
And peace of mind is a big part of this.
So if you'd like to see how PALMS works, you'd
like to see the inheralink site. You can go to
pyrolaw dot com and there's little Palms section there. You
can click on palms. We have a sample and heerlink
site on there if you'd like to see how to
do this and how our law firm handles clients on
a year over year basis to maintain your plan and

(14:36):
make sure it works. I highly recommend that you go
to Pierro Law dot com. That's p I E R
R Law dot com and go to palms and you'll
see how it is, how it works, what the parameters
of the program are, and it's something that clients have appreciated.
We're there for them and their families and as life happens,

(14:58):
you want your attorney to be with you and to
know you and to know what the next steps are
for you. So the next step for us is to
take a break. So we're going to take a short break.
You're listening to Life Happens Radio every Saturday morning here
on Talk Radio WGY. We'll be right back after this
and we're back. Welcome back to Life Happens. Thank you

(15:18):
for listening. We hope that you are a repeat listener.
If you're a first time listener, we hope you come back.
This is a show that talks about how you can
prepare yourself and your family for all of life's challenges.
And Lord knows you know, over the last few weeks,
I've had so many things in my life that have
changed and people that I knew that were good friends

(15:39):
of mine that have passed away, others that have you know,
recovered from illnesses, and you just never know what life
is going to bring. So our show tries to bring
you information and ideas, and we do this from a
perspective of the lawyer on the team. We work closely

(15:59):
with your other professionals, your financial advisor, your accountant, but
trying to bring to you ideas, information and critical thinking
to make sure that you have planned and you are protected.
I'm here in studio with my partner Aaron Connor, and
we are Pierre O'Connor and Strauss and Aaron. We had
our marketing director, Beth Wortman, add up our legal experience

(16:23):
and how many years our lawyers carry in legal experience,
and the total is pretty impressive. I think four hundred
and seven total years of legal experience. So we're not
first timers, folks. It's not our first rodeo. We've been
doing this a while, so we think that our clients

(16:43):
benefit from that collective experience and we share ideas. We're
not an insular firm where one lawyer has his own
practice and another lawyer has her own practice. We practice
together we share information, we share ideas. The top of
the show, we were talking about our Palms program, something
that every attorney gets educated on and makes available to
their clients, and that's to keep your plan current. We

(17:07):
all approach things with a similar viewpoint and Aaron I
think that is extremely important. And we've talked to other
attorneys who are very experienced to have interviewed with our firm,
who have told us you're the only firm that has
this kind of consistency, right.

Speaker 2 (17:22):
And it was very surprising to learn, especially big firms, right.
These were not three person doing their own thing type firms.
These were very large firms with the state planning divisions
or whatever you want to call it, and everybody basically
did their own thing. So one set of documents would
not match another set of documents, which we went over.

(17:44):
I would not want to be a litigator with, you know,
a set of documents from one partner and a set
of documents from another partner and trying to explain or
defend why one is different from the other.

Speaker 1 (17:55):
Especially if it's missing a clause that would have saved
the day in one form isn't in the other document
done in the same.

Speaker 2 (18:02):
Law firm right, and they're still cutting and pasting in
most of these cases.

Speaker 1 (18:05):
Yeah, why we have taken our practice, we think, to
a level where we use automation. We don't draft with AI,
so don't worry about that. We're drafting with a system
that we've actually helped to create. That's the document drafting system,
and we review those documents very carefully, make sure that
they're up to date, up to speed. But you get
a team of people and you get four hundred and

(18:27):
seven years that's spread out right now over fifteen lawyers.
We're going to be adding two lawyers right shortly, there'll
be non lawyers for six months.

Speaker 3 (18:37):
They'll be adding zero years, zero years.

Speaker 1 (18:39):
Negative six months of experience. Actually, because we have Ethan
and Avery who are lost students who just took the bar.
They just graduated from Albany Law School and they will
be joining the firm in a couple of weeks and
we're looking forward to that and then they'll get their
bar results and hopefully they'll be admitted in January. So
we'll have two new lawyers hopefully starting up in January.

(19:00):
But we have fifteen lawyers on the job now. Eleven
of them are here in Albany. Four are down in
New York City, and we serve clients all across New
York State in these areas. So we were talking about
how to keep your plan current, how to do a
good job identifying all of the things you need to
put into a plan, and there are a lot of

(19:21):
reasons to do this, Aaron. We talk about tax planning,
and I mentioned our memo for the OBBBA, the new
budget bill for federally that was passed and signed by
President Trump and what that means for you, what that
means for you if you live in New York in particular,
but it also is going to have an impact on Medicaid,

(19:42):
Medicare and long term care planning, and that's a big
part of our practice as well. So be alert for this, folks.
There are changes coming now that are coming right up.
We're going to cover some of those changes in New
York on Monday. We have a webinarity that's done once
a month. Our Medicaid partner, Frank Hemming and I are

(20:04):
going to be doing it and covering all of their
upcoming changes to the New York State Medicaid program. And
these are things already happening regardless of the bill in Washington.
So New York has some big changes that are on
the horizon. And Aaron, when we look at clients and
we start breaking down what are the risks applicable to

(20:25):
most of our clients, it's okay, you can get tangled
up in probate, you can have will contests and you can't.
You can have a plan that doesn't take into account
that is a second marriage to make sure that things
get done properly. We'll talk a little bit about that
in the second half of the show. But long term
care becomes a primary planning consideration because of the cost

(20:49):
of care and the lack of available resources. And that's
something that we've been doing a long time. Yeah, I mean,
and there's not necessarily one path.

Speaker 3 (20:59):
Right.

Speaker 2 (20:59):
I met with people well recently who have a long
term care insurance policy. We were talking about what it
would pay for, what it wouldn't pay for. Right, they
may need to, that's right. And they all have what's
called or at least any policy issued in the near
past has what's called an elimination period. I didn't come

(21:20):
up with that name, so please don't get at me
about that.

Speaker 1 (21:23):
That's as you get older, that's another problem.

Speaker 2 (21:25):
Right, but that can be usually ninety or one hundred days,
which is a very significant amount of money, you know,
upwards of fifty thousand dollars for a lot of people.

Speaker 1 (21:36):
Yeah, people don't realize the nursing homes right here in
the Capital District in New York are now seventeen to
eighteen thousand dollars per month.

Speaker 3 (21:45):
Right, that's crazy.

Speaker 2 (21:47):
And if Medicaid reimbursement goes down, that number is only
going to go up because the only way to balance
the budget for a nursing home is to charge more
to the private pay client.

Speaker 1 (21:58):
And if you're on Medicaid, nursing home doesn't get the
same amount of money, right, Medicaid pays them less. They
pay a Medicaid rate to that nursing home. So, as
Aaron said, and if you look at the numbers, seventy
five percent of the beds in nursing homes in New
York State are paid for by Medicaid. So they're balancing
their books on the backs of the private pay twenty
five percent.

Speaker 2 (22:18):
Right, either to people who didn't plan, right, a few
people who have good insurance, right, or the wealthy enough
that it's not you know, not crushing now.

Speaker 1 (22:27):
Yeah, but as you said, you may have long term
care insurance, but is it going to pay out eighteen
thousand dollars a month right?

Speaker 3 (22:35):
Well, and there's no partnership policies available anymore.

Speaker 1 (22:38):
Nope, So you don't get asset protection. So in your
long term.

Speaker 2 (22:41):
Care, if you're unfortunate enough to live in a nursing
home for more than three years, that well planned policy
that you had may may may not cover you either.

Speaker 1 (22:51):
Yeah, So the cost even for three months, as you said,
it's over fifty thousand dollars, so you have to be
prepared that you're going to pay. That's during the elimination
period and then you're going to be paying eighteen thousand
dollars a month for until you can qualify for Medicaid.
So Medicaid planning and preparing for long term care. And

(23:12):
I mentioned nursing homes. No one wants to be there, right,
So we talk about this all the time. Sure people
want to be taken care of in their own homes.
And we have a seminar coming up next week. We
also have our webinars, so if you want to attend
Medicaid Monday and learn about the new changes in New York.
It's twelve noon this coming Monday. It's a webinar. It's

(23:35):
thirty minutes long, so it's pithy. We go through it
very quickly, and you can sign up again at pyrolaw
dot com, p I E R R O l a
w dot com, or you can call our office anytime
at five point eight four five nine one hundred. We
have the news coming up, and we're going to take
a short break. We're gonna come back. We're gonna unpack

(23:57):
a little bit more about long term care and long
term care planning. Talk about a case that's spent in
the news recently, and that's the case of Jimmy Buffett
and some of the issues that it brings up for
our clients. Stay with us. We'll be right back after
the news and we're back. Welcome back to Life Happens Radio.
I am Lou Piro, your host for this morning on

(24:17):
Talk Radio WGY. I'm in studio with my partner, Aaron Connor.
We're talking about things that we think are important. We
know they're important to some people because when life happens,
if you don't have a plan, it's like a title
wave rolling over you. So we're talking about things like
wills and trusts and powers of attorney and how to
keep your plan current. But we closed talking about long

(24:41):
term care, which is one of the major considerations, and
the cost of care, which is over two hundred thousand
dollars per year, and you should have some protection because
right now Medicaid is on the chopping block, And we
were talking about the rules for Medicaid and we talk
about them frequently, which are changing based upon law changes

(25:02):
three to four years ago that have been just pushed
off due to COVID. Now they're all coming into focus.
And most of these are home care rules. So the
state of New York has made accessing home care ever
more difficult.

Speaker 2 (25:19):
Yes, well, I think they're just home care can be
more expensive than nursing.

Speaker 1 (25:23):
Home care. Yeah, right, do the math, and it all.

Speaker 3 (25:25):
Comes down to money at the end of the day.

Speaker 2 (25:28):
And I think that they want home care to be
harder to access. I mean, it already takes time to
access in most cases, which is one way of kind
of pushing people off.

Speaker 1 (25:41):
Justice delayed is justice denied, so is care. Care delayed
is care denied. So if you file a home care application,
you may not get paid care in your home for
four or five six months.

Speaker 2 (25:53):
Right, And it doesn't mean you didn't need the care
because you can't file the application until you need the care.
So it's not like you can do a preemptive strike
and be like, oh, I'm ready now.

Speaker 1 (26:03):
It doesn't work like that. So we have another seminar.
Our webinar is great if you want to get updates
on how Medicaid is changing, but if you want to
really dig in from the ground up, we have a
seminar that's coming up next Wednesday, August thirteenth. It's at
twelve thirty to two pm and it's at the gilderlind
YMCA and I highly recommend this seminar. It's myself my partner,

(26:27):
Frank Hemming, and we have with us a life care
or healthcare advocate that's the new name, okay for Diane
Mikkel Gottabiowski and her crew at ever Home Care Advisors.
They are healthcare advocates and they help us put together
a plan, not just looking at the cost of care,

(26:47):
the legal structure, how are you going to pay for it,
the financial structure, but where are you going to find
home health as and Aaron this is one of the
big dilemmas in healthcare today.

Speaker 2 (26:56):
Have this conversation a lot with people, especially if you
live rural, if you don't have family member who's willing
to be that person for you, it's very difficult, not impossible,
but difficult. But even in a suburban or urban area,
there's a lot of demand for caregivers, and unfortunately it's
not a very highly paid job, so there's a lot

(27:18):
of competition for that labor in the market, and they
may go do something else that is actually going to
make them more money.

Speaker 3 (27:25):
So there is a big shortage there is.

Speaker 1 (27:27):
And how you find those caregivers, how you coordinate that care,
how you pay for that care? Legally, that's our job
and financially we will tell you what the available financial
resources are. But how do you then take those resources
and apply them to the market of home health care?

Speaker 2 (27:46):
Well, you said will help you legally. Many people don't
realize that they're paying illegally right from home care. I
mean to some people don't, yes, right, But if you
are providing money for someone, you are there employer really,
and there's a lot of laws and tax laws.

Speaker 3 (28:04):
And things that can go wrong.

Speaker 2 (28:05):
We've had people who've paid privately and then that person
gets hurt on the job and they go file a
worker's complaim, Well, guess what, you didn't have any workers
comp insurance because so you weren't doing that.

Speaker 1 (28:16):
Right that Home Health Aid can own your house, yes,
and suit you correct for those damages. And if it's
workers comp if they're an employee, then you're covered by
the workers compensation insurance, tax issues, tax withholdings, unemployment insurance.

Speaker 3 (28:31):
Yes, that too.

Speaker 1 (28:32):
So we work with a couple of agencies that do
payroll and as part of the payroll, they cover all
of the insurances. Right now, it's an extra cost because
you're not paying and you have to find somebody that's
willing to take money on the books, that's right, and
not a twenty dollars bill or that twenty and ten
or whatever. You're paying them under the table. That gets

(28:54):
you in trouble in a lot of ways.

Speaker 3 (28:56):
Well.

Speaker 2 (28:56):
It also when we then need to do a nursing
home application, it becomes very difficult because if you paid
some money under the table and they haven't reported the income,
well it looks like you've been making gifts.

Speaker 1 (29:07):
Yeah, so they when you do a medicated application, Folks,
our staff and our partner, Frank will do a five
year history of every bank account that you had.

Speaker 3 (29:19):
It's an audit really, when you think about it, it is.

Speaker 1 (29:21):
It's more of an audit than tax than a tax audit,
and they look at every check over one thousand or
two thousand, depending upon the county. But if you're going
to the bank and you're withdrawing six thousand dollars a
month and taking out cash and using that cash to
pay the caregivers, and you do that for ten months, right,
you've got a sixty thousand dollars transfer that's uncompensated that

(29:42):
you can't justify, right.

Speaker 2 (29:43):
And they can aggregate anything too, if they see five
hundred dollars coming out twice you know a week. Yeah, right,
So it really can get you in a world of
hurt because you don't have the money to fix the
problem anymore.

Speaker 3 (29:56):
Right.

Speaker 2 (29:56):
And what happens is that creates a penalty period if
you can't substantiate it for the amount of money that
you don't have. So you really need to plan before
the money is going out. Because we can do a
lot more helpful things proactively than we can reactively.

Speaker 1 (30:11):
And we are advocates for home healthcare We work as
hard as anybody to keep people at home, and we
work with over home care advisors and other markets. We
work with other care coordination agencies. But it's so important
to have advocates on your side to take you through
the system and get Medicaid and get care because the
two have to be present. You have to be able

(30:32):
to use the Medicaid and pay for the care that
you need. And so if the plan changes to nursing
home care, now you've got that five year audit that
you're going to go through. Now the whole plan changes,
and you have to go back and look at everything
that was done over that five year time period.

Speaker 3 (30:51):
So a lot of people get tripped up there, and they.

Speaker 1 (30:53):
Do, and the nursing homes aren't happy because now they
have somebody. The hospital's trying to discharge someone into a
nursing home and they require a financial affidavit And if
you don't disclose gifts, you're committing fraud.

Speaker 3 (31:06):
Yeah, a lot of people don't think about that. They're
committing fraud.

Speaker 2 (31:10):
Right they sign a Medicaid application saying these are the assets,
and that's not true. That's a fraud. And I mean
it's one of the easiest frauds to prove because you
have a sworn statement signed by you.

Speaker 1 (31:21):
Have you transferred assets over the last five years, that's
one of the questions. Yes, and you're swearing to the
fact that you haven't.

Speaker 3 (31:27):
Right, people think, oh, it's just not a big deal.
Now it's a pretty big deal.

Speaker 1 (31:30):
And legally you're getting tripped up because you think you're
paying for care, but in fact they're treating it as
a gift right because you have no documentation. Right.

Speaker 2 (31:40):
What people tend to not understand is you don't just
walk in and get medicaid, right. You have to prove
your eligibility for it. The burden is on you, not
on them. It is not an entitlement, right, So you
just don't get it, yep. And if you can't prove
that you are eligible, then you don't get the better.

Speaker 1 (32:00):
So if you get into a nursing home and the
nursing home doesn't get paid for six months because you
have these transfers, they could evict you and they do
they do, or they could come after other assets. Yes,
we are fortunate in New York State that we don't
have what we call third party liability. In Pennsylvania, they

(32:21):
can sue the children right and take the children's assets
to pay for the parents care.

Speaker 2 (32:27):
One thing that would be available though, is if there's
been like a gift of a house out to a
child during that five year look back, that's still on
the table.

Speaker 1 (32:34):
They could recoup it. Yes, So you have to do
this very carefully. So join us. It's a lot. Join
us this coming Wednesday, August thirteenth. The name of the
seminar your home or the nursing home you choose. It's myself,
Frank Heminger, partner Diane Mikkel Gottabiowski. It's Wednesday at the YMCA.

(32:55):
We're not going to play that music, but it's at
the YMCA in Gilderland, two fifty Winding Brook Drive, and
that is twelve thirty to two pm. You can register
again always on our website at pyrolaw dot com or
call our office at five one eight four five nine
twenty one hundred and I just gave out three different

(33:18):
educational events, webinars, seminars. We do a lot of them, folks.
You can always keep track of what we're doing by
going to that website, going to Pyrolaw dot com, go
to events and you'll see the calendar of all the
things that we have coming up, and we'll be doing
more seminars throughout the fall, So stay current, stay with us.

(33:40):
We love to see you at our various seminars and
our webinars and attending and we are thankful that you're
listening to Life Happens Radio here and Talk Radio WGY. So, Aaron,
back to the medicaid topic. One of the changes that
we're going to talk about on Monday's Medicaid Monday at
Noon is that they're now going to additional medical requirements,

(34:03):
not financial, but medical, and they're called activities of daily
living and bathing, dressing, go into the bathroom, transferring, getting
up and down out of a chair, and continence and
being able to feed yourself. Those are the activities the
six ADL six activities of daily living, and they're going

(34:26):
from two, so if you couldn't do two, you can
qualify from Medicaid to three. And this is going to
bounce a lot of people who would otherwise qualify if
they can only do two out of the three activities
of daily living. So if you're a family and you're
trying to figure out whether mom or dad can do

(34:48):
two out of the six ad ls, and it's going
to qualify for Medicaid home care after you go through
this whole lengthy process.

Speaker 3 (34:55):
How do you do that well?

Speaker 2 (34:57):
And in most cases, I think the safest thing to do,
if it'stionable, is to get an assessment done upfront, yes, right,
because you don't want to be six months down the
line and get a denial, right in a well grounded denial.

Speaker 3 (35:12):
Right.

Speaker 2 (35:12):
There might be a denial coming for some people who
have three to ADL problems too, and there's a good
basis to fight those. But if an assessment and medicaidble
think that someone only has one or two ADL problems,
then you're not going to get home and you're not
going to get the care.

Speaker 1 (35:29):
And the government state of New York in this case,
and New York State has been the gold standard for
home healthcare for fifty years. Our home care program we talk,
I talk all around the country to other attorneys and
other people, and our home care program has been different
than almost any other state. But we're starting to look
more like other states. And New York has built barriers

(35:51):
to accessing home care. Financially, we can still get people
eligible without any look back period, which is something that
people don't know.

Speaker 2 (36:00):
That's right, that's the easy part, frankly, right. We'd get
your asset eligible if you came in today. Under most circumstances,
we can get your asset eligible by the end of
the month, right, And that way because you have to
be eligible on the first of every month.

Speaker 3 (36:16):
That's also something people get tripped up without snapshot.

Speaker 2 (36:19):
If you are ineligible on the first, you have to
wait till the next first. There's no second date.

Speaker 1 (36:25):
So if you came in and met with us today,
as Aaron said, we would get a picture of all
of your assets, all of your income, and in this
case transfers don't count for Medicaid homecare.

Speaker 3 (36:37):
Still need to do them carefully. You do.

Speaker 1 (36:39):
Medicaid allows you to keep roughly thirty two thousand dollars
if your single individual. Married couples have different rules, but
a single individual you keep thirty two thousand. So we
would work to get you down below thirty two thousand
dollars by creating a trust in most cases, so we're
going to fund the trust, put your assets, your home,
your other assets into the trust, and have if you

(37:00):
mediciate eligible by September first. The timing is interesting because
you can't apply on September first because you need September
one bank statements. That's the application process. So we have
to wait till the tenth or twelfth of the month
till you get your September statements, your August statements coming
on September first, and then we package all that up,

(37:22):
we get it to the Medicaid agency. It still goes
to the county, So if you're in Albany County, Renstler County,
Saratoga County, you have to go to that county Department
of Social Services. We file the Medicaid application. We put
it in We make sure that everything is audited in
advance so that it's not going to miss. If you
have income over the income allowance, which is one and twenty,

(37:46):
you need another special type of trust called a pooled
income trust. You can actually keep your income. People don't
believe this. You can keep all your assets, you can
keep all your income, and we'll get you qualified for
Medicaid on September first. Here's the catch. You now have
to go through a three step assessment process. So the

(38:07):
county does the financial piece. They used to do the
medical piece too. The county healthners would come to your house,
do an assessment, give you a result.

Speaker 3 (38:15):
Oh and by the way, they get forty five days
to do the financial piece.

Speaker 1 (38:18):
Yes, if you do a pool trust, yes, so they're well.

Speaker 3 (38:21):
Pool trust is actually ninety days.

Speaker 2 (38:23):
Yes.

Speaker 1 (38:24):
So there is an upfront delay before the county can
turn it over to the state to do these assessments.
And they have a group called NAYA, the New York
Independent Assessor, which is the old Maximus.

Speaker 3 (38:37):
Which sounded more ominous.

Speaker 1 (38:39):
It did, still does and that's still behind all this.
But they do an upfront assessment and now they're going
to be looking at three activities of daily living versus two.
And if you don't qualify there, you're out. First assessment,
you're done. Second assessment is an independent physician who has
never met you. I don't even know if they review
your records, but they supposed too, and they're going to

(39:01):
do a video conference with you, and that independent physician
is going to render an opinion as to whether you qualify.
So now you're going through the initial NAYA assessment.

Speaker 2 (39:10):
It's going to be interesting to see how many people
on the receiving end can even set up that video
conference right right, If you don't have an advocate who's
doing that for you.

Speaker 1 (39:19):
Yeah, somebody and I know the ever home coordinators bring
their laptop right to the home, right.

Speaker 3 (39:24):
But a lot of people are going to get stripped out.

Speaker 1 (39:26):
Because having an advocate by your side during this process
is key. And here's why. You have the first assessment
are you eligible? You have the second assessment that's the
doctor's review. You have a third assessment which is done
by a managed long term care company an MLTC. These
are companies that have been brought into the New York

(39:47):
state system. They're private companies. Many of them are for
profit companies, so they're out to provide services, and they're
supposed to be doing managed long term care.

Speaker 2 (39:58):
Provide service, has but not too much services correct them
for their perspective.

Speaker 1 (40:02):
And this is a system that we've talked about that's
perverse because you're handing these contracts to these mltcs managed
long term care companies on a fixed fee basis. So
let's say they get five thousand a month to care
for mom, and if they give Mom twenty four hour
a day care, they're going to lose a bundle, right.

(40:22):
But if they give Mom four hours a day, they're
going to make money.

Speaker 2 (40:25):
Well, frankly, they would have loved to ADL people compared
to three ADL people, right from a Unfortunately, from an
economic standpoint, that was better for mltcs. Yeah, they got
more clients, right because we also could say to people
that needed help but didn't need huge amounts.

Speaker 3 (40:40):
Of help that they were pretty attractive to an mltcah Right.

Speaker 1 (40:44):
So it's it's a game, folks that the state keeps
stacking the deck and making it harder and harder and
harder to win the game to get the hours that
you need. Having advocates through this process is absolutely essential,
and we can be the legal advocates. We do a
lot of appeals of what we think are wrongful denials,

(41:05):
but working with a good care coordinator care manager is
I think essential and that makes the process work because
they're there to make sure that the people on the
other side are doing their job and the people that
are going to profit over your hours of care can't
short you in what you're deserving. They make money when
you don't get care exactly.

Speaker 3 (41:26):
That's the system. Yeah, it doesn't make any sense, it.

Speaker 1 (41:29):
Doesn't make sense, but that's how the state has put
a filter on where it's not your legislator saying, oh
we can't give out that level of care. Oh we're
giving it out, but it's up to the MLTC to
make the decision. So those are actually passing the buck
exactly right. So we go through all of this every
year at our annual Elder Law Forum. And right now

(41:52):
we're going to take a short break, come back and
talk about a case. But remember your home of the
nursing home this coming Wednesday, August thirteenth, twelve thirty at
the Guildelin YMCA. Always go to pyrolaw dot com to
get our upcoming events and get more information and our guides,
and we will be right back with more of Life
Happens after this short break. Welcome back to Life Happens Radio.

(42:14):
I'm Lupira, your host for this morning studio with my
partner Aaron Connor. We've been talking about a whole variety
of topics that we cover at Pierre O'Connor and Strauss
at our law firm. Going from a state, plans, wills
and trusts, How do you keep it current? How do
you have a plan that morphs with you when life changes,

(42:36):
When life happens, when you have unexpected events that you
need to then mote, modify the plan, make it, mold it,
craft it for the new situation. Our Palms program, we
met with our clients annually. We give them advice and
council throughout the course of the year. We become their council,
which is a role that we relish, being part of

(42:57):
that family fabric and being their advisor something we really
make ourselves do and be dedicated to to keep the
family going thriving generation over generation.

Speaker 2 (43:11):
Well, frankly, the better you know the client and their family,
the better advice you can give. You can watch their
interactions over time, and you may suddenly think that Johnny
wants maybe more than his fair share or as angling
for extra y.

Speaker 1 (43:27):
And you know, so we talk about celebrities at times,
and we talk about cases we covered on the show
last week. Ozzy Osbourne and Hulk Hogan an odd couple.

Speaker 2 (43:38):
But generationally pretty similar. Though yeah, that's true, that's true.

Speaker 1 (43:44):
But we are also looking at the people like Jimmy Buffett,
who passed and did a plant, has a trust.

Speaker 3 (43:55):
He has a trust he set up for.

Speaker 1 (43:57):
His wife, but the trust is noting as he intended
it to and that's a problem.

Speaker 3 (44:05):
Yeah.

Speaker 2 (44:05):
I mean, so we've had, maybe not on this scale,
but we have litigated trusts where the trustee is acting
like it's their own money and they don't want to
give it out right. And we often are analyzing trust
return right. So we've had a few cases where large
trusts were not producing much money for beneficiars right who

(44:27):
either only had an income right or an income plus
a HEMS right, which is a if they have a
demonstrable need like not.

Speaker 3 (44:35):
For a Ferrari right, but for.

Speaker 2 (44:38):
A school, or if they were literally without a house,
HEMS would provide those types of things. So it doesn't
give them a lot of leeway. And in maybe five
or eight years ago, there wasn't a lot of income
in the world. Certainly was no interest in oh.

Speaker 1 (44:56):
For ten years. Right post two thousand and eight, you
have a one percent return.

Speaker 2 (45:00):
So unless you're getting big dividends, there wasn't a lot
of income crying from these trusts. Or I suppose if
you owned if they owned a bunch of rental properties
and there was net income, then maybe you'd get that right.
But traditionally, what I've seen is heavily invested trusts that
weren't producing a lot of money, and there's there's solutions
for that. The solution I usually push is a unit

(45:21):
trust because it kind of takes the trustee out of
the a lot of the discretion, right, and you can
pick a percentage. It can be three percent, can be
four percent, it could be.

Speaker 1 (45:31):
High, right, but it evens out the flow it does
of income. So if you have and just pick a number,
Let's say that you're fortunate to have accumulated a million
dollars it's in trust, and you say, well, I want
my spouse to get a forty thousand dollars year income
off the trust. Right, then you're going to pick a
four percent unit trust, right, and that regardless of what

(45:51):
income it produces, could produce one percent income. The other
part is going to come out of gain.

Speaker 2 (45:56):
Or principle, and it allows it to be invested for
capital growth. Because so it usually satisfies the income beneficiary
and whoever.

Speaker 3 (46:04):
The residuary beneficiaries are.

Speaker 2 (46:05):
Works nicely, like in this second marriage situation, here's your
stream of income for the rest of your life. But
I want these assets ultimately to go to my kids.

Speaker 1 (46:13):
So Jimmy and Margueriteville made I think two critical errors. One,
he didn't structure the trust properly, right, leaving enough flexibility
that the trust he could use the money income and
principle or structuring a unit trust, but making sure that
the spouse got She can't even pay her bills based
upon the income that she's getting right off of it.

(46:34):
And this is a large case, yes, But two hundred
and seventy five million dollar trust right now, that's extraordinary.
But this applies to any situation where you have beneficiaries
that you want to benefit during their lifetime, but then
you have remainder beneficiaries that you want to get the
remainder of the property. And that's one not structuring the

(46:56):
trust properly. And the second mistake was choosing the wrong trust. Yes,
and he chose his business manager right as his trustee,
who isn't looking to the needs of the spouse who's
the lifetime beneficiary of the trust.

Speaker 3 (47:09):
He might be taking a bigger commission than she is
getting income.

Speaker 1 (47:12):
Yeah, And according to the articles that we read, he
has taken one point seven million in commission yeah, off
of that trust for doing very little.

Speaker 3 (47:23):
It's good work.

Speaker 1 (47:24):
It's good work if you can find it. So Aaron.
Talk about this from a litigation perspective. We do the drafting,
We go through extensive conversations with our clients. How do
you want your beneficiaries to benefit? Who is going to
be the beneficiary during lifetime? If it's a first marriage situation,
this usually is pretty easy, yes, because you have most children. Yeah,

(47:44):
and most of the time you're giving the spouse some control.
In many instances like this, she might be a co trustee,
and in this case, I think she is, but she
doesn't have the ability to override right the other trustee.

Speaker 3 (47:57):
Right.

Speaker 1 (47:58):
So how do you see this? And this comes up
frequently the structure of the trust, how are the benefits
paid out? And who is managing that trust?

Speaker 3 (48:08):
Yeah?

Speaker 2 (48:08):
So I think in this case, if I were advising,
I would do a reformation and I'd be looking to
change the trust into such a way. And we've done
this ourselves, where we've converted something like this to a
unit trust, because I just think it's easy and it
alleviates a lot of the problems. You could also, and

(48:30):
I think this is one of the avenues they're pursuing,
is to remove the trustee because they're really only benefiting
themselves and not the beneficiary.

Speaker 3 (48:39):
Of the trust.

Speaker 1 (48:40):
Now you're in litigation, right, that's a violation of fiduciary duty.
And if the money is in the trust, who has
access to it?

Speaker 3 (48:46):
That's right the trustee the trustee.

Speaker 1 (48:48):
So if you're suing a trust, the trustee's got a
war chest right to defend themselves.

Speaker 2 (48:53):
And the only real remedy after if you're successful, would
be to sanction that person, and that may be very
difficult because they don't necessarily have a big chest, and you.

Speaker 1 (49:03):
Have to prove that they've had mouth Jesus or nonfeasance,
that they've done something wrong or haven't done something they
should have done.

Speaker 2 (49:09):
Nine times out of ten, you're going to settle this case.
You're going to give them some money to go away, yep,
and you're going to appoint your own trustee.

Speaker 1 (49:16):
Right now, we draft in a role for someone called
a trust advisor. Yes, So if you get stuck with
a trustee that isn't performing or is not doing the
job that they were hired to do as a trustee,
you can appoint someone the family would We can be
the person that does the appointment, but the family chooses
somebody to change the trust. That's right, modify the trust,

(49:40):
change the terms even right, and that can be a
trust advisor.

Speaker 2 (49:44):
That's right, and that person is really an independent third
party to come in and make a change where it
doesn't it takes out a lot of tax issues because
it's not someone with a general power, right, and in
this case that would be a problem. But ultimately it's
supposed to supposed to be kind of an independent third
set of eyes to resolve an issue or to opt

(50:06):
in or opt out of the change in law that
may come down the pike.

Speaker 1 (50:10):
And we do trust that last not only your lifetime,
but your children's lifetime, your grandchildren's lifetime. So having the
flexibility in that trust to do the things that need
to be done is critical. Well, as they used to
say on car Talk, well we've wasted another good hour
click and clack the Tappitt brothers and we're out of

(50:32):
time here on Life Happens Radio. Thanks for joining us
this morning for Aaron Connor, myself and all of the
attorneys with four hundred and seven years of experience at
pier O'Connor and Strauss. Thanks for listening and hope you
can join us again next week at nine am right
here on life happens,