7 Sane Steps for Estate Planning

Try these practical tips to avoid feuds and spare feelings.

1. Spell things out. Ask your parents to figure out who gets what, right down to the Christmas tree lights. Some people put stickers with names on the bottoms; others leave a list. Just as important, make sure your parents let everyone know - - if Mom really liked you better and leaves you all the Waterford, wouldn’t you like your sister to be mad at her, not you?

2. Resist the temptation to avoid the depressing details. Big fights can erupt when planning the funeral - - remember the brouhaha when Ted Williams died? - - and spill over to estate issues. So ask your parents what kind of service they want, whether they want to be cremated or buried.

3. Don’t hesitate, mediate. If you sense battle lines being drawn, mediation and arbitration can provide a lower-cost alternative to taking one another to court. In mediation, a neutral third party helps all sides reach an agreement. Usually, mediation isn’t binding. (The specifics of both mediation and arbitration are governed by state law and the Federal Arbitration Act.) Often, a judge will order warring siblings into mediation, and many wills contain a clause stipulating arbitration - - say, if parents’ personal effects cannot be divided by the children within 30 days. In general, fees for either mediation or arbitration are significantly lower than those of lawyers in a lawsuit. Note: However, in New York State, all estate matters are handled by the Surrogate Court.

4. Draft a will with the personal touch. A heartfelt letter attached to a will can soothe the anger of grief-stricken children. In Illinois, attorney Jim Nash’s favorite: a man gave his children and grandchildren a reading list of his favorite books. The University of Minnesota’s Marlene Stum knows of a case where the matriarch called her adult children around her and started holding up objects, explaining each one’s history and then asking who wanted it.

5. Make an end run around stubborn parents. If they refuse to talk about their plans, start paving the way for clear channels of communication with your siblings now. Hard as it may be, the initial “Have Mom and Dad ever talked to you about what they want to happen to their stuff when they die?” Conversation is even more critical for siblings who don’t get along well.

6. Once you begin settling the estate, talk face-to-face. Nash is a big fan of Kinko’s videoconferencing for far-flung siblings. IF everyone is in the loop, it’s harder to escalate to those tense “You threw the birdhouse I built in eighth grade in the trash” exchanges. Above all, advises mediator Olivia Boyce-Abel, be cautious with e-mail. “Something that sounds fine to you when you write it at midnight can come across very differently when your brother gets home from a hard day at the office.”

7. Vow that this is one more time you won’t be like your mother. Call your ELDER LAW ATTORNEY and make sure your own will is current, and that your heirs know what is - - and isn’t - - coming to them.

Written by Sarah Mahoney, contributor to More magazine. Reprinted from More.com, 3/20/07.

Medicare Advantage Open Enrollment Period Ends March 31, 2007

The Open Enrollment Period (OEP) during which Medicare beneficiaries can make one election to change in certain kinds of plans, ends on March 31, 2007. The Open Enrollment Period applies to individuals who are changing Medicare Advantage (MA) plans or enrolling in or disenrolling from MA plans.

During the OEP, beneficiaries may switch from:
-a medicare Advantage prescription drug plan (MA-PD) to another MA-PD or original Medicare with a Prescription Drug Plan (PDP);
-one MA-only plan (no prescription drug coverage) to another MA only plan or original Medicare with no drug coverage;
-original Medicare with a PDP to a MA-PD; or
-original Medicare with no drug coverage to a MA-only plan.

A beneficiary may make only one of these changes during an OEP. For a visual representation of the options, see the Health Assistance Partnership’s chart at www.hapnetwork.org/assets/pdfs/2007-MA-OEP-chart.pdf.

An OEP cannot be used to enroll in prescription drug coverage for the first time or to drop prescription drug coverage entirely; it also cannot be used to switch from one (non-Medicare Advantage) prescription drug plan to another (non-Medicare Advantage) prescription drug plan. In short, one cannot use the OEP to switch from a PDP to another PDP.

Medicaid beneficiaries have a continuous Special Enrollment Period that allows them to switch into or out of Medicare Advantage plans (including plans with Part D coverage) at anytime.

The landscape of enrollment options and limitations for Medicare beneficiaries, particularly with respect to prescription drug benefit coverage, is complex. Aggressive marketing by plans can add to the confusion and lead to mistakes and problems.

Source: Washington Weekly, volume XXXIII, Issue No. 11, March 16, 2007.

Davidow Announcements

We have planned our next two elder law and estate planning seminars! Learn how to PLAN NOW, not later, in order to protect everything you’ve worked a lifetime to acquire. Come and discover the answers to crucial and timely questions at either The Venetian Yacht Club in Babylon Village on Thursday, April 26th at 10am or Villa Lombardi’s in Holbrook on Wednesday, May 2nd at 10am. The seminar is FREE, but reservations are required. Call 631-234-3030 to reserve your seat.


Last year alone, Friends of Karen, Inc. helped more than 600 sick children and an additional 800 of their brothers and sisters with the enormous strain that is put upon a family when a child is diagnosed with cancer or any life-threatening illness. This year, a team is being organized to join the RUN FOR FRIENDS OF KAREN at the Long Island Marathon, Festival of Races on Sunday, May 6th, 2007 at Eisenhower Park. Proceeds from the Run will help this important organization in their continuing efforts to provide emotional, financial and advocacy support to these very special families.

For information and an application on the RUN FOR FRIENDS OF KAREN, please call 631-473-1768. We encourage your assistance in helping this wonderful organization!

Crabby Old Man

The following story and poem made its way around our office and we felt compelled to share it in an effort to remind everyone what quite possibly is going through the minds of our elderly loved ones.

When an old man died in the geriatric ward of a small hospital near Tampa, Florida, it was believed that he had nothing left of any value.

Later, when the nurses were going through his meager possessions, they found this poem. Its quality and content so impressed the staff that copies were made and distributed to every nurse in the hospital.

One nurse took her copy to Missouri . The old man's sole bequest to posterity has since appeared in the Christmas edition of the News Magazine of the St. Louis Association for Mental Health. A slide presentation has also been made based on his simple, but eloquent, poem.

And this little old man, with nothing left to give to the world, is now the author of this "anonymous" poem winging across the Internet.


Crabby Old Man

What do you see nurses? .......What do you see?
What are you thinking......when you're looking at me?
A crabby old man, ....not very wise,
Uncertain of habit ........with faraway eyes?

Who dribbles his food.......and makes no reply.
When you say in a loud voice....."I do wish you'd try!"
Who seems not to notice ....the things that you do
And forever is losing .............. a sock or shoe?

Who, resisting or not...........lets you do as you will,
With bathing and feeding ....... the long day to fill?
Is that what you're thinking? Is that what you see?
Then open your eyes, nurse......you're not looking at me.

I'll tell you who I am ....... as I sit here so still,
As I do at your bidding, ...... as I eat at your will.
I'm a small child of Ten......with a father and mother,
Brothers and sisters .......who love one another

A young boy of Sixteen ...........with wings on his feet
Dreaming that soon now. ..........a lover he'll meet.
A groom soon at Twenty .........my heart gives a leap.
Remembering, the vows........that I promised to keep.
At Twenty-Five, now .......... I have young of my own.
Who need me to guide ....... and a secure happy home.
A man of Thirty ......... my young now grown fast,
Bound to each other ........ with ties that should last.

At Forty, my young sons ........have grown and are gone,
But my woman's beside me........to see I don't mourn.
At Fifty, once more, .......... babies play 'round my knee,
Again, we know children ......... my loved one and me

Dark days are upon me .......... my wife is now dead.
I look at the future ............I shudder with dread.
For my young are all rearing ........young of their own.
And I think of the years...... and the love that I've known.

I'm now an old man........and nature is cruel.
Tis jest to make old age .......look like a fool.
The body, it crumbles..........grace and vigor, depart.
There is now a stone........where I once had a heart.

But inside this old carcass ...... a young guy still dwells,
And now and again ........my battered heart swells.
I remember the joys.............. I remember the pain.
And I'm loving and living.............life over again.

I think of the years ....all too few......gone too fast.
And accept the stark fact........that nothing can last.
So open your eyes, people ..........open and see..
Not a crabby old man. Look closer....see........ME!!
1. Remember this poem when you next meet an older person who you might brush aside without looking at the young soul within.....we will all, one day, be there, too!

House Passes Medicare Drug Price Negotiation Bill

The new Democrat-controlled House passed a Medicare drug bill, H.R. 4, on January 12, 2007 despite threats of a presidential veto from the White House. The bill would require Health and Human Services Secretary Michael Leavitt to conduct negotiations with pharmaceutical manufacturers to obtain lower prices for Medicare beneficiaries. It is, however, widely anticipated that the bill’s journey through the Senate will not be quite so smooth.

The vote in the House was 255-170, with 24 Republicans joining the Democrats in voting for government negotiation. The measure would overturn a provision of the 2003 Medicare law, pushed through by a then Republican-controlled Congress. The provision prohibits negotiations by the government and instead leaves drug-price negotiations in the hands of private drug plans. The bill would also require the Secretary every six months to regularly report to Congress on the progress of negotiations, and prices and discounts achieved by the negotiations. Requiring the Secretary to negotiate drug prices on behalf of Medicare beneficiaries is widely seen as an important step towards making the prescription drug benefit more simple, affordable and reliable for seniors and individuals with disabilities.

If the measure becomes law, the federal government would be required to use its bargaining power against the drug companies to obtain lower prices. The Department of Veterans Affairs secures much lower prices for its beneficiaries precisely because of its ability to negotiate. Republicans argue that the current system allows for competitive market forces to drive down prices and government negotiation will only hamper the efforts of private insurers.

Source: Washington Weekly, Volume XXXIII, Issue No. 4, January 26, 2007.

Elder-Care Costs Deplete Savings of a Generation

We'd like to share the following article in an attempt to impress upon you the crucial need for advance planning with a certified elder law attorney. Now, more than ever, planning is a necessity.

December 30, 2006 - The New York Times
By JANE GROSS

To care for her ailing 97-year-old father over the past three years, Elizabeth Rodriguez, a vice president at the Federal Reserve Bank in New York, has borrowed against her 401(k) retirement plan, sold her house on Staten Island and depleted nearly 20 years of savings.

The money has gone to lawyers' fees ($50,000) to win a contested guardianship. It has gone for home-care equipment like the mattress for his hospital bed (about $3,000 in all) and for a food service to deliver meals ($400 a month).

It has gone for a two-bedroom rental apartment big enough for herself, her dad and a home aide ($1,600 a month more than a one-bedroom apartment in the same building), and for a wheelchair-accessible van to get him to doctors' appointments ($330 a trip).

Asked to tally the costs, Ms. Rodriguez, 58, said she had no idea how much she was spending. "A shower chair, body cream with no alcohol, new shoes," she said. "You don't stop and calculate. You just buy what you have to buy."

Ms. Rodriguez is among the legion of adult children - more than 15 million, according to various calculations - who take care of their aging parents, a responsibility that often includes paying for all or part of their housing, medical supplies and incidental expenses. Many costs are out of pocket and largely unnoticed: clothing, home repair, a cellular telephone.

Adult children with the largest out-of-pocket expenses are those supervising care long distance, those who hire in-home help and those whose parents have too much money to qualify for government-subsidized Medicaid but not enough to pay for what could be a decade of frailty and dependence.

The burden is compounded by ignorance, according to a study by AARP, released in mid-December, which found that most Americans have no idea how much long-term care costs and believe that Medicare pays for it, when it does not.

Families have always looked after their elderly loved ones. But never has old age lasted so long or been so costly, compromising the retirement of baby boomers who were expecting inheritances rather than the shock of depleted savings.

"There is a myth out there that families abandon their frail elders," said Dr. Robert L. Kane, a geriatrician at the University of Minnesota School of Public Health. "Instead, across the income spectrum, children are sacrificing to care for their parents to the limit of their means and sometimes beyond."

Researchers have documented the time spent by adult children, and others, caring for ailing  elatives. But data is woefully inadequate on how much they actually spend, health economists say, because most people do not keep itemized entries as they write checks, use their credit cards or pocket money to meet the demands of the day.

"When you're in the middle of the forest, with so many things coming at you, you can't really see the trees," Ms. Rodriguez said. "But each one of those trees has actual dollars connected to it."

Costs are astronomical for long-term, low-tech care, the sort most often needed by those who linger with Alzheimer's disease or are too frail to get around on their own. Medicare is of almost no help, since it covers only acute episodes like a heart attack, cancer or repair of a broken hip.

That means the elderly and their families are left to pay for assisted living (which averages $35,000 a year), nursing homes ($74,000) or home health aides. Only the very poor receive Medicaid, which pays nursing-home bills nationwide but home care in only a few states (New York among them), and nothing toward assisted-living rent.

Nor does Medicare cover equipment like grab bars for the shower and incontinence supplies, which alone can run $2,000 a year, or travel expenses for an adult child responding to medical emergencies.

Marilyn de Leo, for instance, has made two trips from New York City to Los Angeles since September, when her mother fell in the bathroom and broke her neck and both ankles. Ms. de Leo, 62, an associate director in the development office of Mount Sinai Medical Center, spent $800 on
airfare for the first frantic trip , plus $50 a day on taxis, since she had left her eyeglasses behind in a mad dash to the airport and therefore could not rent a car. Ms. de Leo has no savings left, and is $5,000 in debt. When asked about her own future, she said, "I'll have to work till I drop."

Only one authoritative survey, in 2004, has even asked adult children how much they contribute to their parents' support. Half said they did, and the average monthly expenditure was $200.  espondents who looked after their parents at least 40 hours a week said they spent an average of $324 a month.

But those figures were based on "quick, top-of-the-head estimates," said Gail Hunt, president of the National Alliance for Caregiving, which conducted the survey.

Knowing the extent of these expenses might inform public policy, some experts say, calling attention to a gap in the government safety net for the elderly.

"Should this burden fall solely on the individual and the family?" asked Judy Feder, dean of the Public Policy Institute at Georgetown University. "And can we really expect this arrangement to keep doing the job as a larger and larger population comes to grips with it?"

Congress recently passed a poorly financed bill that would help family members who need a break to pay for substitute care of an ailing loved one. But the Bush administration, to date, has preferred a private sector solution, recommending long-term insurance and reverse mortgages.

For spouses, most expenses are tax-deductible if they exceed 7.5 percent of adjusted gross income. But children cannot claim parental expenses unless they pay more than half of a parent's support, which is often not the case when the parents are on Medicaid, likeMs. Rodriguez's father, or have savings, like the Schoengood family.

The elder Schoengoods, both 86, own a home in Yonkers and a condominium in Florida and have assets enough for round-the-clock care, which can cost $100,000 a year. Still, their son, Matthew G. Schoengood, 49, vice president of student affairs at the Graduate Center at the City University of New York, has kicked in at least $1,000 a month since 2005, when his mother had the first of two strokes.

Mr. Schoengood flew his family nanny to Florida, for example, to look after his father. Now that his parents are permanently up north, Mr. Schoengood orders their groceries online along with his own. "As a child, it's just something you do," he said. "Mostly you don't even
think about it."

His father makes a half-hearted effort to pay him back, but Mr. Schoengood always says, jokingly, "I'll put it on your tab, Dad." Typical of their generation, his parents fret about every penny. His father asks, incessantly, "Do we have enough?" Mr. Schoengood tells him not to worry.

For sure, he hopes his own children will do for him what he is doing for his parents, but he cringes at the prospect of burdening them - one reason long-term care insurance is becoming attractive.

Mr. Schoengood's out-of-pocket spending is not sensible, elder-care experts say, but the result of the awkward minuet of preserving a parent's pride.

If families behaved logically, said Steven Schurkman, an elder-care lawyer in White Plains, all expenses would be paid from the parents' money, which if depleted would entitle them to Medicaid. "What most of us do isn't sound financial planning," Mr. Schurkman said. "But it's healthy for the family dynamic."

Carol Levine, director of the Families and Health Care Project at the United Hospital Fund in Manhattan, said that paying for her mother's needs required delicacy, even subterfuge. When Ms. Levine went shopping, her mother would say, "Take $5 out of my purse." Her daughter would return with 10 bags of groceries, and both would pretend that was all she had spent.

Both Mr. Schoengood and Ms. Rodriguez say their out-of-pocket expenses will not ruin them. Others are not so lucky.

Take Patrice B., 47, who returned to her childhood home in Jacksonville, Fla., seven years ago to move in with her mother, 84, who has Alzheimer's disease, and her father, 86, who has congestive heart failure. (They requested that the family's last name be omitted so neighbors would not know their plight.)

In their African-American culture, Ms. B. said, putting her parents in a nursing home would have been shameful. Plus, they could pay for some home care out of pensions as well as military disability checks. She, on the other hand, after years of sporadic part-time work and untallied
out-of-pocket expenses, is broke.

She has catastrophic health insurance, but it will not pay for the hysterectomy she needs. She has lost her credit cards after accumulating $20,000 in debt. "Honestly," Ms. B. said, "I've got nothing anymore. I go from very angry to very depressed."

Kate Mesmer, a single mother in Northern California who had always worked for nonprofit organizations, was living paycheck to paycheck when her mother had a stroke in 2001. Ms. Mesmer took a tenant into her house so she could contribute to her mother's $6,000-a-month rent at an
assisted living center.

Then Ms. Mesmer lost her job and had to move her mother to a board-and-care home. A second stroke forced her mother into a nursing home, where she qualified for Medicaid. That is where she died last year, with nothing left but an $18,000 I.R.A. The State of California is seeking that, contending the $18,000 should have gone toward nursing-home fees.

Given what she learned in the final years of her mother's life, Ms. Mesmer said: "I have a panic attack at least once a day. It's frightening to think about our generation and what's going to happen to us."

2007 Medicaid Rates

The following is a listing of the 2007 Medicaid regional rates which must be used to determine a transfer of assets penalty period when applying for Medicaid. You must refer to the rate for the region in which the facility is located. These rates are based on average nursing home costs in each of the seven regions in the State.

Central New York: $6506

Long Island: $10,123

New York City: $9,375

Northeastern New York: $7,189

Northern Metropolitan Area: $9,074

Rochester: $8,002

Western New York: $6,820

In addition, due to an increase in the consumer price index, the federal maximum community spouse resource allowance (CSRA) increases to $101,640 effective January 1, 2007. The State’s minimum CSRA will remain unchanged at $74,820. Therefore, in determining the community spouse resource allowance on and after January 1, 2007, the community spouse is permitted to retain resources in an amount equal to the greater of the following amounts:

1. $74,820 (the State minimum community spouse resource allowance); or
2. The amount of the spousal share up to $101,640 (the new federal maximum).

“Spousal Share” is the amount equal to one-half of the total value of the countable resources of the couple as of the beginning of the most recent continuous period of institutionalization of the institutionalized spouse on or after September 30, 1989.

Also effective January 1, 2007, the community spouse minimum monthly maintenance needs allowance (MMMNA) increases to $2,541. The increased MMMNA, family member allowance, federal maximum CSRA, and State minimum CSRA must be used when completing an assessment of a couple’s resources and income.