Ethical Issues in Elder Law Practice Book 1

Information Regarding CLE Credits and Certification

Ethical Issues in Elder Law and Special Needs Planning
October 4, 2011, 6:00PM to 8:00PM


The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.


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  1. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.


  1. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.


  1. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.


Thank you for choosing NYCLA as your CLE provider!


New York County Lawyers’ Association

Continuing Legal Education Institute

14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646



Ethical Issues in Elder Law and Special Needs Planning

Tuesday, October 4, 2011, 6:00 PM – 8:00 PM






5:30PM – 6:00PM Registration


6:00PM – 6:10PM Introduction and Announcements


6:10PM — 8:00PM Discussion



*** There will be a ten minute break during the program.

New York County Lawyers Association

October 4, 2011


Case Study # 1


Mr. and Mrs. Smith come to the office to speak to you about setting up a Special Needs Trust for JORDAN, who has just turned 18. JORDAN had a lawsuit settlement when he was injured due to an automobile accident at age 8. The initial recovery was $67,000, the full policy of the defendant less legal fees. The funds have been held jointly with an officer of the bank with Mrs. Smith. They are now valued at $150,000. The banks have been calling to tell Mrs. Smith to bring JORDAN in so that the bank accounts can be paid to him pursuant to the Infant Compromise Order.


JORDAN has developmental delays but will graduate from high school this year (with a local diploma) and then attend a special program at CUNY to train him in the culinary arts. He knows how to read and passed the English Regents. Math is his big problem.


Mr. and Mrs. Smith want JORDAN to receive the benefits for which he is eligible. They went down to Social Security and were told that they can’t apply for SSI because of the money.


You tell Mr. and Mrs. Smith that JORDAN can either give them all the money and delay applying for SSI or they can set up a trust for him. They hate the idea of the payback of the SNT, so they prefer the gifting of money.


They don’t want JORDAN to know how much money he has, because, you know 18 year olds! You tell them to bring in JORDAN and that you will then be able to implement the plan.


Whom do you represent?

Who will pay for the consultation? Who will pay for any follow-up?


Mr. and Mrs. Smith bring JORDAN in. JORDAN is very close to them, you can tell, and he values their opinion, you can tell. While Mr. and Mrs. Smith are in the room, you explain to JORDAN that he has some money in the bank that prevents him from getting his own spending money each month. You tell him that if he lets his parents open a new bank account for him, he will be able to get $761/month to spend as he wishes. You ask him if this is okay with him. He says sure. Is this an ethical discussion?


You then hand JORDAN a new Power of Attorney with all imaginable powers. You ask JORDAN if it’s okay with him if he lets his parents handle things for him in case he ever got hurt and couldn’t make his own decisions. He says sure. He signs all of the powers, including the Major Gifts Rider. You serve as notary. His parents sign before you as agents. Your staff serves as witnesses. Have you acted ethically?


All goes as planned, and JORDAN gifts the money via Power of Attorney. Then, when he turns 21, he falls in love with someone “unacceptable” to his parents. They forbid him from seeing her. He decides to get married, and demands his bank book from his parents. They refuse to give him the money. His fiancée’s brother is a lawyer and calls you about the transactions. Are you in trouble?



Case Study #2


POPS first came to see you in 1995, when he was an active 70 year old. At that time you prepared his Will, but he didn’t want to give a Power of Attorney to anyone. He always wanted to stay in control. He owned a business and he employed his son. Eventually, he advised that he assumed his son would take over the business and he would change his will when that occurred to leave the business to him and his liquid assets to his 2 daughters. He and MOMS executed mirror wills, providing first for each other via disclaimer trusts and then for the children or grandchildren.


POPS called every few years to see what was happening with the estate tax laws.


In 2000, MOMS passed away. POPS was devastated. He wanted to redo his will,

but you advised that so long as his distributions to the children hadn’t changed, there was no need to change anything in the will. He decided not to disclaim any assets to fund the disclaimer trust, because he wanted to stay in control.


In 2005, POPS suffered a stroke and needed care at home to provide for his activities of daily living. LOLA, someone a neighbor knew of, is the home attendant. Under her watchful eye, POPS makes a wonderful recovery. After a few months, POPS and LOLA are an item.


In 2007, his children come to see you because they feel that POPS is under LOLA’s spell. SONNY is concerned that the business is not being run well. POPS still shows up every day, but SONNY feels that he isn’t making good business decisions. SONNY feels that he is being shut out of important decisions. He feels that POPS will run the business into the ground. He asks you to talk to POPS and see if he wants to relinquish any power. He doesn’t want you to tell POPS that he came to see you. May you keep the visit confidential from POPS?


The children also want to know if there is a Power of Attorney in place. You tell them that there is no Power of Attorney. Is this ethical? They tell you that LOLA has taken control of POPS’ life, and that they think his considerable assets have significantly diminished. They want to know what they can do about it. You tell them that they can bring a Guardianship petition for POPS. Is this ethical?



They already knew about Guardianship, but they are afraid that POPS will be very angry if they go to court. They decide to speak with him instead. You promise to call POPS under the pretext of checking in, and you will not tell POPS about the visit. Is this ethical?


POPS is glad to hear from you and makes an appointment to meet with you. He is thinking about getting married and even if he doesn’t, he wants to change his will. He doesn’t want Sonny managing the business – he thinks he’s way too bossy with the staff and is sure he’ll cause problems. LOLA has impeccable judgment and gets along well with everyone. So he really wants to leave all of his estate to LOLA. You tell POPS that this is not a good idea. He insists on carrying out his plan. You refuse to prepare the documents. Is this ethical?


POPS leaves the office in a huff and tells you that he will never let you represent him again.


You hear nothing else from the family until October 2011. The children come in to see you. Should you have allowed the appointment to be made?


In short, POPS has had a rapid cognitive decline since 2007. He has refused to relinquish control over the business and there is no income coming in. All the employees have been fired. He is barely lucid and often does not recognize them or even know what year it is. Lately, he won’t let the children into the house, and he hangs up on them when they call. They spoke to his accountant, who told them that in 2010, the only income was Social Security – no interest, no dividends and no withdrawals from IRAs. They believe that LOLA must have raided the funds. The house was transferred to LOLA via a Power of Attorney purportedly executed by him in her favor in January 2011, but they didn’t recognize his signature. They also have hired a private investigator who has found that LOLA had married 2 of her former patients, both of whom died shortly after the marriage.


They are now ready to proceed with legal Guardianship. They feel that you are the best person to represent them, because you understand the danger to POPS. May, should, would you accept to represent them?



Case Study #3


Mom, 80 years of age, comes to see you with 4 of her 6 children. Sonny lives with Mom and has assisted her by shopping, dispensing her medicines, scheduling doctor’s appointments and providing transportation for Mom for many years – he returned back home after Dad died 6 years ago. Sonny is divorced and has no children. Mom appreciates the help and knows that she couldn’t have lasted in the home without him – Mom has post polio syndrome and now walks with a walker. Her diabetes has been acting up and she has already suffered one stroke.


The family had a pow-wow over the weekend, and they want to act to make sure that the house is protected for generations to come. The house is clearly Mom’s most valuable asset – it’s located in Sag Harbor and appraised at $1,500,000. Most of Mom’s savings are gone, just paying the taxes on the house. Because the steps are so steep and the living quarters are upstairs, and because her blood pressure has been so high, Mom believes that she may need a nursing home in the foreseeable future. Mom is okay with this, so long as the house is protected.


Mom spoke to a social worker at the nursing home who told her that the home could be transferred to a care giving child and Mom would not have to wait 5 years for the Medicaid program to pay for her in a nursing home. Mom wants to protect the house but also wants to make sure that it will be there for all of the children, and the grandchildren and even the great-grandchildren. All of the children (the 4 present assure you) are united in the effort to preserve the house.


  1. Mom wants to know if you will prepare documents to transfer the house to Sonny.

  2. She wants to know how long Sonny has to own the house for it not to count as her asset if she needs a nursing home.

  3. She wants to know whether you can prepare a Deed in which she transfers the house to Sonny and also a second Deed for him to sign right away in which he will transfer it to his siblings.

  4. She asks if Sonny won’t agree to this second Deed right away, or if there is a waiting period before which Sonny can re‐convey the Deed, whether you will prepare an agreement:

    1. that Sonny will transfer the house to his siblings as soon as he’s owned the house long enough for Medicaid, signed by her and Sonny?

    2. the same agreement, signed by Mom and Sonny and the siblings?

    3. the same agreement, signed by Sonny and the siblings, but not Mom?

  5. She asks if you will prepare a Will for Sonny, to be executed prior to the Deed, in which he will leave the house to his siblings upon his death. If so, she also asks if you will prepare an agreement in which Sonny states that he will not change that provision in his Will.



You do not prepare any of these agreements but you do prepare a new Deed from Mom to Sonny. Two years later, Mom has a stroke and requires nursing home care. Sonny is still living in the house. He asks you to prepare a Medicaid application.

  1. He shows you the original Deed. What investigation, if any, do/should/would you do as to whether or not any other agreements or Deeds have been prepared?

  2. He shows you the original Deed as well as a second deed from him to his siblings prepared a month after the first Deed that you prepared. Do you ask him what made him sign this second Deed?

  3. He tells you that this second Deed was never recorded. He wants to know which Deed is better to use for the Medicaid application. How do you respond?


Mom’s Medicaid has been approved, and the family finds the home too expensive to maintain. Mom is now mentally incapacitated. Sonny and his siblings want to sell the home.

  1. Will you represent them at the closing?

  2. What if Mom is deceased?

  3. What if Sonny never conveyed the home to his siblings and he alone wants to sell the home and he is the sole owner?


What if Mom had never come to see you, but Sonny alone had come in with a power of attorney that allowed unlimited gift-giving. Would you prepare the Deed without meeting Mom? What if Mom was already in a nursing home? And Sonny told you that he was an only child, and that Mom never had made a Will. Would you prepare the Deed? Should you do any independent investigation?



By Bernard A. Krooks & Michael Gilfix


Navigating the System


Changes to both the Medicare and Medicaid programs, as well as recent court rulings on eligibility, will have a major impact on seniors

Advising clients on Medicare and Medicaid planning and eligibility has become increasingly complicated. Elder law practitioners must struggle to keep up with the ever-changing health care “wild west” and consider the impact of new laws on both the federal and state levels, as well as the effect of recent court rulings on program eligibility. And advisors must take into account the possibility that their state may withdraw from the Medicaid program as costs to participate increase.


Health Care Reform

Unless you’ve been living under rock, you know that in 2010, Congress passed and the president signed into law the Patient Protection and Affordable Care Act (the Act). The Act contains numerous provisions that affect, or will affect, seniors in our country. The Act is expected to cost approximately $940 billion over the next decade. To help offset the cost of health care reform, the Act imposes higher taxes, fees and reduced payments to Medicare providers. According to the Congressional Budget Office, the Act is projected to reduce the federal deficit by about $143 billion over 10 years.

The changes to the Tax Code include restrictions on the use of flexible spending accounts, limitations on the deductibility of medical expenses, increases in the Medicare tax on wages and a new tax on unearned income for certain taxpayers. In addition to these increased taxes for individuals, there will also be new assessments on insurance and pharmaceutical companies.


Bernard A. Krooks, far left, is a partner in the New York City, White Plains and Fishkill, N.Y. firm of Littman Krooks LLP. Michael Gilfix is a partner in the Palo Alto, Calif. firm of Gilfix & La Poll Associates LLP



Generally speaking, the Act requires most U.S. citizens and legal residents to have qualifying health insurance. Those without coverage will pay a penalty, which will be phased in over a few years. Exemptions will be granted from the penalty for financial hardship and religious reasons, among others.

So, what does this all mean for our senior clients and those with special needs?


Improved prescription drug benefit. The passage of the Act improved Medicare prescription drug benefits. Seniors who enter the “donut hole” in 2010 receive a $250 rebate. The donut hole, which first took effect a few years ago, is a coverage gap in Medicare Part D. Basically it means that once your client and his prescription drug plan have spent a certain amount of money for covered drugs, your client has to pay all costs out-of-pocket up to a certain limit. The Act plans to gradually eliminate the donut hole by 2020, when it’s expected to be fully closed. In addition, the Act provides that in 2011, pharmaceutical manufacturers whose drugs are covered by Part D must provide a 50 percent discount for brand-name drugs for those in the donut hole. Moreover, federal subsidies are pro-vided for generic drugs.

Payments to Medicare Advantage plans (Part C), the private-plan part of Medicare, will be reduced to make them on par with payments made through traditional Medicare. The excess payments to Part C plans have allowed these privately run plans to offer more benefits than traditional Medicare. So, if your clients participate in one of these plans, don’t be surprised if some of their optional benefits such as vision or dental are reduced. It’s hoped that these reductions will extend the life of the Medicare Trust Fund, which according to some estimates is expected to go broke in 2017.


Free preventive care services. The Act provides for free preventive care services such as mammograms, colon and breast cancer screenings and an annual physical exam starting in 2011 for Medicare beneficiaries. As a result, there will be no co-payment or deductible for an annual wellness visit, which includes the creation of a personalized prevention assessment plan. This shift in focus from treatment to prevention attempts to reduce Medicare costs in the long term. Prevention services include referrals to education and preventive counseling or community-based interventions to address risk factors.


The spouse of a nursing home resident is entitled to more assets than the spouse of an at-home patient.

New advisory board. The Act creates an Independent Medicare Advisory Board (the Board) that will have authority to make legislative proposals with recommendations to reduce the cost of Medicare. While there are restrictions on what the Board can propose, its recommendations will take effect if Congress doesn’t enact an alternative proposal that achieves the same cost savings. Congress is required to re-examine the Board in 2017 and has the power to terminate it.


Higher premiums for some. The Act ties Medicare Part D premiums to income and moves more Part D and Part B beneficiaries into higher income categories, although the majority of Medicare beneficiaries aren’t affected. Thus, those affected will pay higher premiums due to a freeze on income thresholds. For example, the Medicare Modernization Act of 2003 changed how Medicare Part B premiums are calculated for some higher income beneficiaries. This law, which took effect in 2007, requires higher income beneficiaries to pay a higher Part B premium based on income they report to the Internal Revenue Service. The income thresholds have historically gone up based on an inflation index. The Act freezes the Medicare Part B premium threshold from 2011 through 2019, which means that more people will be paying higher Part B premiums. Traditionally, Medicare hasn’t been a means-tested program, although that appears to be changing.


More community-based delivery systems. The Act makes some changes to the way long-term care will be delivered in the United States. The Act attempts to shift our health care delivery system away from the current institutional bias to a more community-based system. Under current law, many seniors are forced into nursing homes because they don’t have the resources to stay at home and aren’t eligible for long-term care insurance due to a pre-existing condition. The Act establishes the Community First Choice Option, whereby states are given more federal money if they set up community services for residents who would otherwise be in nursing homes. States will be able to provide community-based services to seniors and other individuals with disabilities who are Medicaid-eligible and who require an institutional level of care. This program ends in 2016, five years after it starts in 2011.


Spousal impoverishment protections. The Act also mandates that states include spousal impoverishment protections, such as the community spouse resource allowance, in their home-based waivered Medicaid programs. Since the late 1980s, spouses of nursing home residents have been entitled to enhanced protections under law. Although the protections vary by state, the spouse of a nursing home resident generally is entitled to keep more assets and income than a spouse of someone who is receiving care at home paid for by Medicaid. This new program will apply to Medicaid waiver programs and will also end after five years. A Medicaid waiver program allows states to provide certain services to their residents, yet still receive federal matching funds.


CLASS program. The Act establishes the Community Living Assistance Services and Supports program (CLASS). CLASS is akin to a national long-term care insurance plan in many respects. This was the brainchild of the late Sen. Edward M. Kennedy (D-Mass.) and had been in the works for several years. CLASS is intended to allow seniors and those with disabilities to maintain their independence and alleviate the burden on caregivers, while reducing the institutional bias in our health care system. Another goal is to ease the strain on the Medicaid program by attempting to get more Americans to recognize the need to plan for long-term care at an earlier age and to contribute towards the cost of that care. CLASS is set to take effect in 2011, although it’s unlikely to be fully implemented until the Secretary of Health and Human Services (HHS) has issued regulations, since many of its provisions are subject to interpretation, such as setting the premium and benefit levels and the disability triggers for receiving benefits. HHS isn’t expected to issue regulations until 2012; therefore, the CLASS program might not take effect until 2013.

Under the program, employees may make voluntary payroll deductions as determined by HHS, in exchange for the right to receive cash payments if they’re unable to perform daily living activities (that is, toileting, dressing, transferring, eating and bathing) or suffer from cognitive impairment. The cash benefits are to be used for the purchase of community living assistance services and supports such as a home health aide, transportation, wheelchair, lift, adult day care and respite care or to pay for care in an assisted living facility or a nursing home. Only working individuals are eligible. Retired individuals (unless they work part-time), non-working spouses and unemployed individuals aren’t eligible to participate. The premiums and benefits will be determined by age, with younger people paying less than older individuals. Participants will be required to pay premiums for five years (the so-called “vesting period”) before they can receive any cash benefits. The daily benefit hasn’t been set but won’t be less than $50, with no lifetime limit. The Congressional Budget Office assumed a daily cash benefit of $75 and a monthly premium of $123 in one of its cost estimates. The premiums are expected to remain constant, unless an increase is needed to maintain the solvency of the program. There are no underwriting requirements and those with pre-existing conditions are accepted.

One of the biggest questions regarding the implementation of CLASS is, “Who will participate?” According to some estimates, only about 5 percent of eligible employees choose to participate in employers’ private long-term care insurance benefit programs, and only about 7 million Americans own private long-term care policies. Initially, the long-term care insurance industry lobbied against CLASS, fearing that it would reduce people’s incentives to purchase private long-term care insurance. Others argue that it will heighten people’s awareness about the need to plan for long-term care and actually increase sales of long-term care insurance since the CLASS daily cash benefit may be in the $50-to-$75 range. The average cost of long-term care in the United States is significantly higher than that. In fact, in some major metropolitan areas, the cost can exceed $200,000 per year. Perhaps long-term care insurance can be used to fill in some of the gaps in the CLASS program similar to the way Medigap policies fill in the gaps in Medicare.

Under the Act, CLASS is supposed to pay for itself through premiums; the government can’t subsidize it. During the first five years CLASS is in effect, this shouldn’t be a problem since no participants will be entitled to cash benefits during this time. However, after the first five years, the long-term viability of CLASS will depend upon whether enough people participate. Will enough young, healthy people contribute so the sys-tem isn’t financially strained by significant payments to people who need the benefits? We won’t know the answer to this question until CLASS develops a track record. According to one government estimate, only 5 percent to 6 percent of those eligible to participate would actually sign up for the CLASS program. Other estimates predict even lower participation. To attract healthy employees, the government is hopeful that the CLASS regulations will provide for a streamlined sign-up process and make it easy to have the premiums deducted from employees’ paychecks. One way of doing this is to offer employees the opportunity to pay their premiums through payroll deductions. In that case, all employees must be automatically enrolled in the program unless they opt out, similar to the way some firms administer their 401(k) plans. It’s hoped that automatic enrollment will increase participation by employees, which in turn, would strengthen the financial condition of the CLASS program.


Other provisions. While there are many other provisions in the voluminous Act, including insurance reforms, nursing home staffing, quality of care provisions and elder abuse protections, the foregoing is a summary of some of the more salient provisions affecting seniors and those with disabilities. Of course, with the mid-term elections now behind us, it’s possible that some of the provisions of the Act could be modified or even eliminated. Only time will tell.


State Application of DRA

The Deficit Reduction Act of 2005 (DRA) was signed into law on Feb. 8, 2006. It substantially changed and restricted planning steps that can be taken to protect assets and achieve Medicaid eligibility for skilled nursing



Many states are considering withdrawal from the Medicaid program.



facility services, in particular. These changes affected the treatment of annuities, residences, the lookback period, periods of ineligibility flowing from gifts and contracts with continuing care retirement communities. While the DRA’s provisions are relatively clear, implementation at the state level has been sporadic and inconsistent. Some states implemented the DRA immediately after it became law. California, the lone holdout, still hasn’t implemented it. Some states made its new terms effective as of the date specified in implementing state legislation or regulations. Other states, such as Illinois, have applied DRA restrictions and policies retroactive to Feb. 8, 2006, which is the earliest possible retroactive implementation date. There are significant variations in how provisions relating to the exempt residence are incorporated at the state level.

Here’s the most important lesson: Don’t assume that just because you understand the DRA’s provisions, you also understand how your jurisdiction implements the DRA. You must be familiar with how your jurisdiction interprets and applies the DRA, be it by legislation, regulation or other state (or District of Columbia) Medicaid program process.


Withdrawal From Medicaid

Medicaid is a program funded in part by the federal government and in part by state governments. The cost of the Medicaid program at the state level has increased consistently to the point where it consumes enormous portions of state budgets. In Texas, for example, Medicaid consumes 20 percent of the annual budget. This percentage is even higher in other states. Nationally, the federal government covers only 57 percent of the program’s cost.

Many state governors have begun expressing concern about mandates contained in the Act for Medicaid expansion, slated for 2014. States will then be required to expand Medicaid to cover all non-elderly who have family incomes below 136 percent of the federal poverty level. For three years, the federal government will subsidize the cost of expansion. In 2017, states will be required to contribute additional dollars to cover the cost. Importantly, the federal government won’t subsidize the cost of administering an expanded Medicaid program at the state level.

As a result, many states (with both Republican and Democratic governors) are considering withdrawal from the Medicaid program. Withdrawal is most seriously being considered in Nevada, South Carolina, Texas, Washington and Wyoming. The stated goal is to consider replacing Medicaid and its many mandates with state programs that are more flexible and presumably employ stricter eligibility criteria.

Since Medicaid is the primary source of payment for nursing home care, these developments are a source of worry for millions of Americans. Should Medicaid become unavailable or subject to restrictions in your state, planning will be compromised and more challenging.

Keep a careful eye on these developments, particularly if you practice in one of the identified states. Most observers agree: Something has to give. 


A Step in the Right direction

On Aug. 15, 2010, New York Governor David Paterson signed into law the Palliative Care Information Act. This “right to know” legislation requires that physicians and nurse practitioners provide terminally ill patients with information and counseling regarding palliative care and end-of-life options appropriate to the patient. The information may be provided verbally or in writing. If a patient lacks capacity to make informed choices relating to palliative care, the information will be provided to the person with health care decision-making authority.

The bill was modeled after similar legislation in California. It’s hoped that the legislation will result in a higher quality of life for patients and increase the patients’ ability to forego aggressive but unnecessary interventions, as well as result in substantial cost savings.

End-of-life discussions with physicians can be very powerful and influential. Research published in the Oct. 8, 2008 issue of JAMA, the Journal of the American Medical Association, showed that terminally ill patients who discuss end-of-life care with their physicians are more likely to sign a do-not-resuscitate order and receive hospice care. The study also found that the discussion doesn’t make patients more anxious or fearful.


Powers of Attorney

In Matter of Phillips, an Indiana appeals court affirmed the validity of a joint trust that was based on a durable power of attorney in arguably questionable circum-stances. The lessons: draft powers of attorney with care and respect for their potential power; less explicitly, include specific powers with purpose and avoid simple forms.

In 1992, Donna and Ollie Phillips executed reciprocal wills that provided their entire estate would pass first to the surviving spouse and the remainder to the Riley Hospital for Children. The Phillips had no children. They also set up durable powers of attorney naming each other as attorney-in-fact. In 2003, the couple befriended Elizabeth Shoemaker, who helped manage their house-hold affairs. Donna was diagnosed with Alzheimer’s disease in mid-2006, and by late 2007, her condition had deteriorated to the point that her physician deemed her no longer able to manage her own affairs.

The couple contacted their long-time attorney in late 2007 and stated that they “wanted everything to go to [Shoemaker] after their deaths,” because “she’s like a daughter to us.” Given Donna’s incapacity to make a new will, the attorney drafted a joint trust, naming Ollie and Donna as grantors and initial primary beneficiaries, Ollie as initial trustee and Shoemaker as successor trustee and remainder beneficiary. The attorney reviewed the trust with Ollie and Donna several times over a four-month period before the trust was executed. On Feb. 11, 2008, Ollie executed the joint trust, signing his name and Donna’s name by his power of attorney. 

Ollie died on Dec. 26, 2008. A family friend was appointed to serve as the guardian of Donna’s person and estate. The guardian filed a petition to revoke the joint trust. The trial court denied the guardian’s petition, holding that Ollie’s creation of the joint trust was consistent with Donna’s intentions and its revocation wouldn’t be in Donna’s best interests. The guardian appealed and the Court of Appeals affirmed the trial court’s ruling.

Despite some indications of incapacity, further estate planning could still take place in certain circumstances through the use of a durable power of attorney. In situations in which an attorney is able to establish and document an elder’s wishes, it may be pos-sible for the attorney-in-fact to carry out those wishes.


Annuities and “Income First”

Much is said and written about the DRA because of its limiting impact on asset protection planning for individuals facing the cost of long-term care. Johnson v. Lodge is interesting because it employs a strategy of Medicaid planning to increase the amount of money the “community spouse” may retain that’s not affected by the DRA. The result, however, is disappointing.

Benjamin and Wilma Johnson applied for, and were denied, Tennessee Medicaid benefits while Benjamin was a nursing home resident. The Johnsons had combined non-exempt assets of $164,694, twice the amount of Wilma’s $82,347 community spouse resource allowance (CSRA). The CSRA is the amount the community spouse may retain while the institutionalized spouse achieves Medicaid eligibility.

The Johnsons’ combined monthly income was about $1,358, which fell short of the minimum monthly maintenance needs allowance (MMMNA) by $432 per month. (The MMMNA is the minimum income the community spouse is able to retain after the institutionalized spouse becomes Medicaid-eligible.) The Johnsons appealed the denial, arguing that Wilma’s CSRA should be raised to account for the MMMNA income shortfall, pursuant to 42 U.S.C. 1396r-5(e)(2)(C). They claimed that a CSRA of $172,800 would provide Wilma with income of $432 per month at a 3 percent interest rate.

The district court rejected their argument. The court



Transfers from an institutionalized spouse eligible for Medicaid to another spouse may result in ineligibility.



held that the couple could cover the income shortfall of the community spouse by liquidating the current CSRA and purchasing a single premium immediate annuity. That way, an increase in the CSRA wouldn’t be necessary. 

This holding doesn’t bode well for asset preservation for community spouses. As the court acknowledged, when the person covered by the annuity dies, the insurance company typically keeps the remaining principal, if any. The remaining principal is thus lost to future generations.


Implications of “Self-funding”

Concerning Medicaid eligibility, will a transfer penalty be imposed on beneficiaries over age 65 who join a pooled trust? In Wisconsin, an 86-year old beneficiary transferred about $5,000 into a pooled self-funded special needs trust while applying for Medicaid. She was receiving Social Security retirement benefits, but had never received a disability determination from any government program. The local agency denied her Medicaid benefits, holding that the transfer of funds by a non-disabled person was a divestiture. The beneficiary’s agent appealed on her behalf.

Several authorities provide that a finding of disability is necessary for beneficiaries of any age who transfer funds into Medicaid pooled trusts. Program Operations Manual System, Supplemental Security Income 01120.203.B.2.b provides that individuals who use Medicaid pooled trusts, including those who qualify for supplemental security income on the basis of age, must “meet the definition of disabled.” The State Medicaid Manual states that, if an individual isn’t receiving disability benefits, a determination must be made concerning the individual’s disability. 

Considering these authorities, the Wisconsin Division of Hearings and Appeals ultimately ruled that transfers to the pooled trust by disabled persons age 65-and-over aren’t divestments. Applicants age 65-and-older must arrange a disability determination process with the Wisconsin Disability Determination Bureau to determine whether Social Security disability standards are met. If so, the elder’s transfer to the pooled trust isn’t a divestment.


Post-Medicaid Eligibility

Generally speaking, asset transfers from one spouse to another don’t create problems with Medicaid eligibility when one spouse is institutionalized. This continues to be the case when transfers are made before Medicaid eligibility is established, since all assets held by a non-institutionalized spouse are counted in determining eligibility. If eligibility has already been established, however, transfers from the institutionalized spouse to the community spouse can result in ineligibility. This happened in two recent cases—one in Ohio and the other in Oklahoma.


In Burkholder v. Lumpkin, Rex Burkholder became eligible for Medicaid in October 2007. One year later, Rex inherited from his mother’s trust a deed to real property, as well as $17,810 in the form of an annuity payment. During that same month, Rex transferred the real property to his wife, Linda, in the form of a quitclaim deed and transferred the annuity payment to Linda’s bank account. At the time of transfer, Rex was living in a nursing home, the cost of which was being paid for by Medicaid. In February 2009, Linda sold the real property and used the money to pay off her home and her car and to remodel her home.

In April 2009, the Ohio Medicaid agency mailed Rex a notice of restricted coverage, indicating its intent to stop paying for the nursing home from May 1, 2009 to April 30, 2011. Rex asked the court to enjoin the agency from continuing its suspension of Medicaid payments to the nursing home. The court granted the agency’s motion to dismiss.

The court held that, for post-eligibility transfers, 42 U.S.C. 1396r-5(a)(1) only permits transfers for less than fair market value from the institutionalized spouse to the community spouse up to the CSRA amount. The court rejected Rex’s argument that 42 U.S.C. 1396p(c)(2)(B)(i) allows post-eligibility transfers between spouses in excess of the CSRA.

In Morris v. Oklahoma Department of Human Services, Glenda Morris applied for Medicaid benefits for in-home care. As of the application date, Glenda and her husband Morris’ assets equaled about $108,000. To spend down Glenda’s $57,000 spousal share of the assets to $2,000, Leroy used about $18,000 of Glenda’s assets to purchase an irrevocable annuity, which provided an income stream for Leroy alone. The Oklahoma Department of Human Services (DHS) denied Glenda’s claim for Medicaid, finding that the annuity exceeded Leroy’s CSRA, that the purchase of the annuity resulted in a transfer penalty and that the annuity’s income stream could be sold in a secondary market, making it a countable asset. Glenda appealed the decision.

The Oklahoma federal court upheld the DHS’ decision. The court held that assets attributed to the institutionalized spouse couldn’t be transferred, after an initial determination of eligibility, to the community spouse. Citing Burkholder, the court stated, “If an institutionalized spouse can ‘spend down’ that spouse’s share by transmogrifying spousal share resources into community-spouse income, the provisions dividing and limiting the spousal resources are superfluous.” 

A lesson, therefore, is the usual: “Timing is every-thing.”

All Together, Now!

This Polish version of the “Zolta Lodz Podwodna”(“Yellow Submarine”) (81 cm. by 58.5 cm.) movie poster was sold at Christie’s Vintage Film Posters Auction in London on Dec. 1, 2010 for $1,264. The real Beatles participated only in the closing scene of the film; other actors voiced the rest of their lines.





Individuals With Special Needs


A variety of options are available to help families handle the complex planning issues they face

Although the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 reduced the importance of estate tax planning for many, it didn’t obviate the need for estate plans for non-tax reasons such as asset protection, guardianship, elder law and special needs planning. For families who have members with special needs (for example, an individual who has physical or mental disabilities), the estate planning concerns are magnified. These families face many difficult and complex planning issues in addition to the typical issues faced by all families. After all, what could be more important than making sure the future of a family member with special needs is secure? 

Planning must assure appropriate management of finances and personal decisions in the event both parents become disabled or die, with a goal towards avoiding future problems. Parents might also need to continue making decisions for an individual with special needs during adulthood, provide for future residential needs and find someone to care for the individual when they’re no longer able.

Unfortunately, there’s no “training manual” on how to do things the “right way.” In fact, there’s probably no single “right” way as the needs and concerns of each individual with special needs are different. Nevertheless, as part of this process, all parents likely need to find necessary care and services, foster the development of independent living skills and make sure their child receives an appropriate education. In addition, they also should maximize financial resources for present and future expenses, which will allow for the highest possible quality of life for the individual with special needs and other family members. Often, this involves securing eligibility for government-financed programs and supplementing those programs with private funds.



Bernard A. Krooks is a partner in the New York City, White Plains and Fishkill, N.Y. firm of Littman Krooks LLP


Although some parents are aware of the array of legal issues they must confront, many arrive at the attorney’s office concerned only about what will happen on their deaths and perhaps wondering about a “special needs” trust. Simply put: these are discretionary trusts drafted so that the income and assets aren’t counted as resources of the beneficiary with disabilities for purposes of establishing eligibility for means-tested government benefits. Various types of these trusts exist and each one has its advantages and disadvantages.


Other Considerations

Before deciding on a particular planning option, practitioners should consider two issues:


1. Using a team approach. Many support groups and community services are available to assist families who have members with special needs. But at some point, it becomes necessary to obtain help from competent professionals. In my experience, the best estate plans developed for families who have members with special needs arise from a team approach. In addition to the special needs planning attorney, it’s critical that the family’s accountant and its insurance and financial advisors be involved in the process. Of course, the family is an integral part of this process as well. If appropriate, the individual with special needs should be included in these discussions to the extent possible. In these types of situations, practitioners must listen to the needs and concerns of the family and individual with special needs. Only after hearing these needs and concerns can they design an appropriate estate plan.


2. Applying for government benefits. When reviewing the individual’s need for governmental benefits, practitioners should distinguish between those that are means-tested and those that aren’t based on the individual’s income or assets. Means-tested benefits are reduced or denied when income or assets are above certain limits. The two primary means-tested benefits that will be important in most instances are Supplemental Security Income (SSI) and Medicaid. Both have strict asset and income requirements to qualify. If your client is eligible for Medicaid, it will cover long-term health care, which can be extremely important for an individual with special needs. SSI is a federal program, which provides a monthly income supplement to meet basic needs such as food, clothing and shelter. The various programs have different rules regarding the treatment of unearned income and in-kind support from third parties. These differences often dictate the provisions that should be included in the client’s estate planning documents. The goal is to assure that the individual with special needs isn’t disqualified from these programs because of assets placed in his name.


What’s in a Name?

First, let’s start with a little nomenclature. If the assets used to fund the trust belong to the individual with special needs, I’ll refer to that type of trust as a special needs trust (SNT). A variation of the SNT is a “pooled trust.” This is an SNT in which a non-profit organization typically serves as trustee. It has slightly different requirements than an SNT.

If the assets used to fund the trust belong to any per-son other than the individual with special needs, then I’ll refer to that type of trust as a “supplemental needs trust.” Some practitioners refer to these types of trusts as “third-party trusts.” Keep in mind that there’s no one correct name for each of these trusts and that the verbiage may differ among advisors. The most important factor, as we shall discuss below, is whose assets are being used to fund the trust.



An SNT is a discretionary trust authorized by 42 U.S.C. Section 1396p(d)(4)(A), enacted as part of the Omnibus Budget Reconciliation Act of 1993 (OBRA- 93). Only an individual with special needs under age 65 can be the beneficiary of an SNT, which must be established by a guardian, parent or grandparent. Thus, without a living parent or grandparent, court intervention is necessary to establish an SNT. Many states have expedited court proceedings so that the trust can be established without a plenary guardianship proceeding. This is the preferred approach if there’s no other reason to appoint a guardian for the individual with special needs. For example, an SNT can be for a 45-year-old who has multiple sclerosis with accompanying physical disabilities but wouldn’t otherwise need a guardian. If a guardian is necessary because the individual doesn’t have legal capacity (as would typically be true in the case of a minor with special needs), then an SNT may be established as part of that proceeding.

Although a parent, grandparent, court or guardian establishes the SNT, the trust is funded with assets belonging to the individual with special needs. That’s why many call this a “first-party trust”—it’s funded with the assets of the individual with special needs as opposed to someone else such as a third party (for example, a parent). In many cases, the individual receives these funds as a result of a personal injury or medical malpractice lawsuit pursued on his behalf, an inheritance or as child support payments as a result of a matrimonial action. In other cases, when the disability occurs later in life, the individual may have accumulated the assets used to fund the trust before he had special needs.

Pursuant to OBRA-93, the funding of an SNT doesn’t trigger a penalty period with respect to the individual’s eligibility for Medicaid or SSI. Generally, transfers of assets within the 60-month look-back period will result in a period of ineligibility for Medicaid, and transfers within a 36-month look-back period will result in a period of ineligibility for SSI. However, there’s an exception for transfers to SNTs under OBRA-93. Those transfers aren’t subject to the transfer-of-asset provisions; there-fore, there’s no period of ineligibility with respect to SSI or Medicaid as long as the assets are transferred into the SNT while the individual is under age 65. In addition, assets held in an SNT don’t count as a resource of the individual with respect to his eligibility for Medicaid or SSI.

In exchange for the foregoing exceptions, an SNT must contain a payback provision requiring that the trustee, upon the death (or earlier termination of the trust) of the beneficiary, reimburse the Medicaid pro-gram out of trust assets the amount of Medicaid expended on behalf of the beneficiary of the trust. The Medicaid payback takes priority over other items such as funeral expenses, claims against the trust estate and residuary beneficiaries. However, trust administration expenses and taxes may be paid prior to satisfying the Medicaid payback. The payback provision doesn’t apply to SSI benefits. It should be noted that there’s no requirement that the trust have sufficient assets on the death of the beneficiary to fully reimburse Medicaid. The payback is limited to the lesser of the amount of money remaining in the trust or the amount of Medicaid paid on behalf of the beneficiary. In fact, one might argue that in a perfectly administered SNT, the trustee spends the last trust dollar on behalf of the beneficiary just prior to his death.

Federal law requires that all SNTs be irrevocable and that the individual with special needs be the sole beneficiary of the SNT during his lifetime. Upon the death of the beneficiary and the satisfaction of all claims, including the Medicaid payback, residual beneficiaries may inherit trust property. Many states also impose bonding and accounting requirements for the trustee of the SNT. These requirements exist to protect the state’s interest in the remainder of the trust. For example, it isn’t uncommon for states to require the trustee to notify Medicaid when substantial distributions are made from the trust.

Despite the payback, an SNT makes a lot of sense in many cases since the assets in the trust can be used to improve the quality of life of the individual with special needs. Without an SNT, those assets would have to be spent down on the cost of his care prior to qualifying for Medicaid and SSI. With an SNT in place, these assets can be used to supplement what benefits are available from the government. In addition, the money is paid back to Medicaid without interest. Thus, if the trustee purchases an item today for $5,000 and the beneficiary dies in 2040, when that same item would cost $20,000, the Medicaid payback is $5,000.

Finally, some services aren’t readily available with-out prior qualification for government benefits. For example, there may be group homes or other residential placement services that accept only SSI as payment. In these cases, it may be very important for the individual to have an SNT as that may be the only way to immediately qualify for SSI due to excess resources in the individual’s name.


Pooled Trusts

A pooled trust also is a discretionary trust created under OBRA-93. It’s created and managed by a non-profit organization. Basically, there’s a master pooled trust, and separate sub-accounts are set up to manage the finances of each particular beneficiary. To become part of a pooled trust, the beneficiary typically signs an agreement and transfers his funds to the trust. The funds are pooled together for investment and management purposes, but each person’s assets are accounted for in his separate sub-account.

Similar to SNTs, transfers of funds to a pooled trust are exempt from the Medicaid and SSI transfer-of-asset and look-back provisions, and the assets held by the pooled trust aren’t considered available with respect to the beneficiary’s eligibility for Medicaid or SSI. However, important distinctions exist between pooled trusts and SNTs: (1) the individual with special needs may establish the pooled trust himself. Thus, there’s no need to involve a parent, grandparent, guardian or court as is necessary for an SNT; (2) there’s no age requirement for a pooled trust. Thus, an individual age 65 or over may join a pooled trust, whereas SNTs may only be created by individuals under age 65. While someone over age 65 may join a pooled trust, the states have varying interpretations as to whether the exemption from the Medicaid and SSI transfer-of-asset provisions apply in those instances; (3) pooled trusts have a modified payback, which allows the remaining trust funds, upon the death of the beneficiary, to continue to be held in trust for the benefit of the remaining pooled trust beneficiaries, as opposed to being repaid to Medicaid.

Pooled trusts are generally a good option for individuals age 65 or over or those who aren’t transferring significant funds to the trust and don’t want to incur the expense of setting one up and having it administered. With a pooled trust, these tasks are taken care of by the non-profit organization, which also professionally manages the funds as trustee. Of course, the individual has more flexibility to select his own trustee when opting for an SNT.


Supplemental Needs Trusts

Supplemental needs trusts, like SNTs and pooled trusts, are discretionary trusts created for the benefit of an individual with special needs. However, unlike SNTs and pooled trusts, supplemental needs trusts are funded by anyone other than the individual with special needs. Although there’s no federal statute authorizing the use of supplemental needs trusts, many states have their own statutes or case law authorizing them.


If an individual needs—and qualifies for—means-tested benefits, an outright distribution to him or a bequest to a support trust will make him ineligible for Medicaid or SSI. Property held in a properly drafted supplemental needs trust, on the other hand, won’t affect the individual’s eligibility. The income and assets of the trust can thus be devoted to improving his quality of life and supplementing what he receives from government benefit programs. A supplemental needs trust is a completely discretionary trust and the beneficiary can’t have any right to compel distributions from the trust. In addition, the trust should prohibit the trustee from making any payments directly to the beneficiary, as this may result in reduction or disqualification from government benefits.

If you’re working with a client who has a child with special needs, the client can: (1) include the child in the estate plan through an outright distribution, (2) disinherit the child, (3) distribute the share of the child with special needs to his sibling and rely on moral commitment of that sibling to “take care of the child,” or (4) create a supplemental needs trust. Making an outright distribution to the child with special needs will result in disqualification for Medicaid and SSI. Disinheriting the child, while solving the Medicaid and SSI problem, doesn’t improve his quality of life, which is likely to be very important to the parents. Leaving the share of a child with special needs to a sibling may seem appropriate in theory, but often doesn’t work in practice. The best laid plans of relying on “moral commitment” often go astray, especially after the parents die and new parties become involved in the process (for example, through marriage). Thus, the surest way to provide a good quality of life for the child with special needs is through a supplemental needs trust.

A supplemental needs trust may be established by any adult with capacity. Unlike an SNT, the beneficiary needn’t be under age 65. Moreover, upon the death of the beneficiary, there’s no requirement that Medicaid be paid back for the cost of care expended on behalf of the beneficiary. The reason there’s no Medicaid payback required is that the assets used to fund the trust don’t belong to the individual with special needs. Unlike an SNT, the parent is typically not relying on an exception to the Medicaid and SSI transfer-of-asset provisions to fund the trust.

A supplemental needs trust may be set up as a testamentary trust in a client’s will or as an inter vivos trust during his lifetime. A testamentary trust can be used when gifts to the trust won’t be made until the parents’ death. A benefit of an inter vivos trust is that parents or others can make contributions during their lifetimes or at death. The inter vivos supplemental needs trust can thus act as a receptacle for gifts from others who won’t be required to incur the expense of creating a supplemental needs trust as part of their estate plans. Moreover, the funds available to assist the individual with special needs will all be part of a single trust. Many families find this to be a very attractive option. Although an inter vivos supplemental needs trust can be irrevocable or revocable, it should probably be irrevocable as other donors may be disinclined to make gifts to a supplemental needs trust if the parents can revoke it at any time.


Caveat Emptor

Special needs planning is an extremely complex area of the law. Practitioners must be familiar with federal and state statutes and regulations, as well as local practices. A lot can go wrong, resulting in grave consequences to the family and individual with special needs. Here are two tips to help you avoid some minefields: 

(1) No one other than the individual with special needs should ever contribute assets to an SNT. If a third party wants to set aside funds for an individual with special needs, he should set up a supplemental needs trust and contribute the assets to that trust. This way, those assets aren’t subject to the Medicaid payback contained in the SNT.

(2) If an individual is the beneficiary of both an SNT and a supplemental needs trust and you’re the trustee or you’re advising the trustee, make sure that you spend the assets of the SNT prior to tapping into the supplemental needs trust. That’s because the assets in the SNT are subject to the Medicaid payback while those in the supplemental needs trust aren’t.


Rewarding Process

While this may be a complex area of practice, it’s also very rewarding. When we work with parents who are raising a child with special needs, they’ve shared with us that they feel like a huge weight has been lifted off their shoulders after they’ve gone through this process. While parents can’t predict the future for their child with special needs, they take great comfort in knowing that they’ve done what they can do to ensure the best quality of life for their child.

Faculty Biographies



Bernard A. Krooks is a founding partner of the law firm Littman Krooks LLP and Chair of its Elder Law and Special Needs Department. Mr. Krooks is a nationally-recognized expert in all aspects of elder law and special needs planning. He has been accredited by the U.S. Department of Veterans Affairs to present and prosecute claims for veterans’ benefits. 


Mr. Krooks is immediate-past President of the Special Needs Alliance, a national, invitation-only, not-for-profit organization dedicated to assisting families with special needs planning. Mr. Krooks is past President of the National Academy of Elder Law Attorneys (NAELA), a Fellow of NAELA, past Chair of the NAELA Tax Section and past Editor-in-Chief of the NAELA News. In addition, he is certified as an Elder Law Attorney by the National Elder Law Foundation. He is a founding member and past President of the New York Chapter of NAELA. In 2008, he received the Chapter’s Outstanding Achievement Award for his lifelong work on behalf of seniors and those with disabilities.


Mr. Krooks is past Chair of the Elder Law Section of the New York State Bar Association (NYSBA) and past Editor-in-Chief of the Elder Law Attorney, the newsletter of the NYSBA Elder Law Section. Mr. Krooks is a member of the Trusts and Estates Law Section and Tax Section of the NYSBA. In addition, he is a former member of the NYSBA House of Delegates and he served on the NYSBA special committee on Multi-Disciplinary Practice. Mr. Krooks co-authors (1) a chapter in the NYSBA publication Guardianship Practice in New York State entitled “Creative Advocacy in Guardianship Settings: Medicaid and Estate Planning, Including Transfer of Assets, Supplemental Needs Trusts & Protection of Disabled Family Members.”; and (2) the NYSBA publication Elder Law and Will Drafting. He serves on the Editorial Boards of Exceptional Parent Magazine, Trusts & Estates Magazine, and Leimberg Information Services.


Mr. Krooks, a sought-after expert on elder law, special needs planning and estate planning matters, has been quoted in The Wall Street Journal, The New York Times, Newsweek, Forbes, Investment News, Financial Times, Money Magazine, Smart Money, Worth Magazine, Kiplinger’s, Bloomberg, Consumer Reports, Wealth Manager, CBS, Lawyer’s Weekly USA, Reader’s Digest, Bottom Line, The Journal of Financial Planning, The New York Law Journal, The Daily News, New York Post and Newsday, among others. He has testified before the United States House of Representatives and the New York City Council on long-term care issues. He also has appeared on Good Morning America Now, National Public Radio, CNN, PBS, NBC, and CBS evening news, as well as numerous cable television and radio shows.


Mr. Krooks is President of the Westchester Estate Planning Council, a member or the Advisory Board of the National Association of Estate Planning Councils, and a member of the New York City and Hudson Valley Estate Planning Councils. Mr. Krooks recently received his AEP accreditation from the National Association of Estate Planners & Councils He also is a member of the Real Property, Probate & Trust Law Section and Tax Section of the American Bar Association; a member of the Bar of the Supreme Court of the United States, and a member of the American Institute of CPAs. Mr. Krooks also is a Fellow of the American College of Trust and Estate Counsel (ACTEC) and serves on its Elder Law Committee. He is an Adjunct Professor at NYU Center for Finance, Law & Taxation and is a member of the NYU Institute on Federal Taxation Advisory Board.


Mr. Krooks has served on the Board of Directors of the Alzheimer’s Association Westchester/Putnam Chapter and the Bioethics Advisory Committee of New York Hospital. He is a member of the board of directors of Westchester ARC, a member of the Blythedale Children’s Hospital Planned Giving Professional Advisory Board, a member of the Trusts & Estates Group of the Lawyer’s Division of the UJA-Federation of New York, and a member of the legal advisory committee of the Evelyn Frank Legal Resources Program of Selfhelp Community Services, Inc. He is listed in the Best Lawyers in America, Who’s Who in America, The New York Area’s Best Lawyers, New York Magazine and New York Times, and the Top 25 Westchester, New York Super Lawyers.


Mr. Krooks is married and has four children. He is an AYSO certified soccer coach and an NYSCA certified baseball coach.

Sarah Diane McShea 


Sarah Diane McShea has practiced in the “law of lawyering” field in New York since 1980. Her private practice is devoted to advising lawyers, law firms, government agencies and corporate law departments on a wide variety of legal ethics and professional practice issues. She represents lawyers in disciplinary matters, litigates sanctions and disqualification motions, provides risk management and advisory ethics opinions, consults on partnership disputes, advises lawyers and clients on billing and fee issues, represents bar applicants and serves as an expert witness on professional responsibility issues. McShea is a member of the Editorial Board of the ABA/BNA Lawyers’ Manual on Professional Conduct and a Trustee of the New York State Lawyer Assistance Trust. She is Chair of the NYSBA Law Practice Continuity Committee, Co-Chair of the NYSBA Professional Discipline Committee, and a member of the NYSBA Committee on Standards of Attorney Conduct, which has proposed major revisions to the New York Code of Professional Responsibility. McShea is a past President of the Association of Professional Responsibility Lawyers. She writes regularly on legal ethics issues and lectures frequently on professional practice issues. McShea taught professional responsibility as an adjunct professor at Columbia University School of Law (1989-1992), St. John’s University School of Law (1999), and Brooklyn Law School (2001-2007). She served as Deputy Chief Counsel and staff counsel to the Departmental Disciplinary Committee, Appellate Division, First Department (1980-1989) and Chief of the Public Corruption Bureau, Kings County District Attorney’s Office (1990-1993). She is a graduate of Yale College (1975) and Boston University School of Law (1979).

Ira K. Miller



1. Graduated SUNY Plattsburgh with a B.S. in 1975.

2. Received his J.D. from Brooklyn Law School in 1979.

3. Founding Chair of the Elder Law Committee of the Brooklyn Bar Association and acted as same for 1993 and 1994.

4. Vice Chair of the Elder Law Committee of the Brooklyn Bar Association 1995, 1996 and 1997.

5. Executive Board of the New York State Elder Law Section from 1993 through 2010.

6. Secretary of New York State Elder Law Section elected January 2000.

7. Vice Chair of New York State Elder Law Section elected January 2001 & 2002.

8. Published articles in the New York State Bar Association Elder Law Attorney.

9. Published articles in One on One Newsletter of the General Practice Section of the New York State Bar.

10. He has lectured frequently for the New York State Elder Law Section and the Brooklyn Bar Association.

11. He was the Chairperson and a speaker at New York Bar CLE Basics of Elder Law.

12. He was the Chairperson at the New York State Bar Association Elder Law’s Advance Institute for 2000, 2001 and 2002.

13. He was the Chairperson of 2002 Summer Meeting of the Elder Law Section of New York State Bar, Toronto, Canada.

14. Mentor Attorney for New York Law School 2005.2006, 2007, 2008, 2009, 2010, and 2011.

15. Conservator, Committee and Guardian for over 100 incapacitated persons in his career including numerous pro- bono actions.

16. He was a speaker at the Practical Skills program of the New York State Bar, May 2011.

Elizabeth Valentin | Littman Krooks LLP


Elizabeth Valentin


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Elizabeth Valentin is an attorney with the law firm of Littman Krooks LLP.  Ms. Valentin’s practice focuses on elder law, Medicaid planning, special needs planning, guardianships, asset protection planning, real estate, trust and estate administration, and estate planning.


Elizabeth received her undergraduate degree from the University of Pennsylvania and her Juris Doctor degree from the City University of New York School of Law.


Ms. Valentin is admitted to practice in both New York and New Jersey. She is a member of the New York State Bar Association (NYSBA), the Elder Law and Trusts & Estates Sections of the NYSBA, the New York County Lawyer’s Association and Dominican Bar Association. Ms. Valentin is currently serving on the Executive Committee of the Elder Law Section of the NYSBA as Co-Chair of the Client and Consumer Issues Committee, Co-Chair of the Diversity Committee and as a District Delegate.


Elizabeth is a frequent presenter to consumer and professional groups as well as advocacy organizations addressing the legal, financial and other related issues which affect our senior population.


Ms. Valentin speaks fluent Spanish.


Elizabeth is also a freelance photographer.  She founded the not-for-profit organization Ojitos, which teaches photography to inner city children who are survivors  of domestic violence.