Can someone explain this medicaid law about paying them back?
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some of the issues those who use canned documents or cheap general practitioners to do estate paperwork is :
Preparing and executing a valid health care proxy provides a good illustration. The health care proxy is a document that allows an individual (the “principal”) to appoint an agent to make health care decisions in case he/she becomes incapacitated.
The main purpose of the health care proxy is to appoint an agent. There is a presumption that the agent knows the principal’s wishes. Nonetheless, according to New York State case law, if a principal’s wishes regarding the withholding of artificial nutrition and hydration are not articulated, an agent will not be able to make such decision. Based on this case law, it is imperative for the principal to set forth his/her wishes regarding the administering of artificial nutrition and hydration either in the actual health care proxy or in a separate living will.
Failure to do this can result in unforeseen consequences – which is exactly what the principal was trying to avoid in the first place. Secondly, many individuals erroneously believe that they can appoint more than one agent at a time on a health care proxy. This would make the document faulty because only one agent at a time can make medical decisions. A person drafting a health care proxy can add language to avoid insulting other family members, but again- this requires the help of someone with experience. Finally, the document must be witnessed by two individuals in order for it to be validly recognized. A person should not have his agent, spouse or child be a witness to the signing.
as i mentioned poa's are an issue
The main thrust of a power of attorney is to appoint an agent to act on an individual’s behalf with respect to financial matters in case such individual becomes incapacitated. Many people innocently refer to this document as one that is “simple” to prepare. This could not be further from the truth. Firstly, New York State passed legislation effective September 2009 in an attempt to create a statutory form that would be uniformly accepted. This legislation was the result of tremendous abuse that was found in this particular area, with some appointed agents taking advantage of the disabled and elderly.
The new power of attorney law results in a much lengthier document, and significantly restricts the actual power given to the agent over financial matters. If transfers are to be made on behalf of the principal, a separate gift rider must be executed. The gift rider must specifically articulate the agent’s power to make gifts to himself/herself or to third parties. Further, any additional powers beyond those enumerated in the statute, must be added to a modification section. Finally, while the law mandates banks, brokerage houses and other financial institutions to recognize the power of attorney, the form utilized must be statutory. Accordingly, if someone decides to cut corners and download a form from the internet, this may result in a tremendous disservice because if the form is not statutory, it does not have to be legally recognized. The power of attorney is an extremely important tool for estate and elder law practitioner. If the principal incorrectly drafts and/or executes this form, his/her ultimate plans regarding Medicaid eligibility or gifting to loved ones could be completely stymied.
A last will and testament is yet another document that can have all kinds of issues . Through the probate process, the will is reviewed and the court checks to make sure the will was drafted and executed properly. The number of witnesses, the affidavit they sign and the way the will is fastened are some examples of what the court reviews. Any mistakes, such as the removal of a staple or an ambiguous bequest can result in unnecessary delays, costly legal fees, and at worse, an inability to complete the probate process.
It would seem that the Probate Court, in making the writing of a will tediously complex, is simply trying to magnify its power and the prices of the attorneys (who may later become Judge of the Court.)
A will is supposed to be a clear statement of the intent of the writer as to the disposition of his assets upon his death.
Back in my days of Law 1, wills did not need to be witnessed or notarized. (Yes, I know that it is very convenient to have a will be "self-proving" with witnesses signing before a notary.
as the judges exact words to us , when estranged step children were written out of their grand fathers will and trust.
" i can clearly see the intent of the documents , but i am not allowed to re-write history or add missing words "
there was the omission of what happens if a child predeceases his parents and that threw the validity in to question as to whether the document could be used at all .
these estranged step children had it in their fathers will he wanted to provide for all his children . so the fact that their grand father wrote those estranged grand children out specifically now threw in to question the fact that the judge could go by their fathers documents and not their grand fathers which may be defective .
judge told us he was not quite sure how he would rule on this so his advice was try to reach an out of court settlement before he decides , so we did . it dragged on for a year .
they ended up getting a nice amount .
Last edited by mathjak107; 08-20-2017 at 07:53 AM..
It would seem that the Probate Court, in making the writing of a will tediously complex, is simply trying to magnify its power and the prices of the attorneys (who may later become Judge of the Court.)
A will is supposed to be a clear statement of the intent of the writer as to the disposition of his assets upon his death.
Back in my days of Law 1, wills did not need to be witnessed or notarized. (Yes, I know that it is very convenient to have a will be "self-proving" with witnesses signing before a notary.
today there is a whole sequence of questions asked by a good attorney at a will signing in front of witnesses.
do you know what a will is ? are you on medication ? did anyone pressure you in to any decision ? etc etc .
it is not required but it is just good protocol and all good attorney's do it .
good protocols and lengthy documents make for few or short litigation's as they say .
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