NYSBA FALL 2012 | VOL. 22 | NO. 4 Elder and Special Needs Law Journal A publication of the Elder Law Section of the New York State Bar Association IInsidenside • Digital Estate Planning in the Facebook • Pooled Trusts and the Preemption Age Doctrine • The Bypass or Credit Shelter Trust • Client Files: Care, Upkeep and Planned • Problems with Guardian Disbursements Death • Provider’s Role in Proving Undue • Recent New York Cases Hardship • Recent Tax Bits and Pieces • Advance Directives When Circumstances • Interview with David Goldfarb Change From the NYSBA Book Store Elder Law, Special Needs Planning and Will Drafting* AUTHORS Jessica R. Amelar, Esq. Section Members New York County Surrogate’s Court get 20% discount** New York, NY with coupon code Bernard A. Krooks, Esq. PUB1541N Littman Krooks LLP New York, NY Elder law is one of the most challenging andd rewarding di practice ti areas. With the aging of the baby boomers, and the rapid growth of the number of senior citizens, elder law practitioners have stepped in to fi ll the gaps in the more Book Prices traditional practice areas. This text provides an introduction to the scope and 2011-2012 • 300 pp., softbound practice of elder law in New York State. It covers areas such as Medicaid, long- • PN: 40821 term care insurance, powers of attorney and health care proxies, and provides NYSBA Members $90 an estate and gift tax overview. Non-Members $105 Elder Law, Special Needs Planning and Will Drafting provides a clear overview Order multiple titles to take advantage of our low fl at rate shipping charge of $5.95 per order, regardless for attorneys in this practice area and includes a sample will, sample represen- of the number of items shipped. $5.95 shipping and tation letters and numerous checklists, forms and exhibits used by the authors handling offer applies to orders shipped within the continental U.S. Shipping and handling charges for in their daily practice. orders shipped outside the continental U.S. will be based on destination and added to your total. The 2011–2012 release is current through the 2011 New York State legislative **Discount good until October 31, 2012. session and is even more valuable with Forms on CD. * The materials included in the NEW YORK LAWYERS’ PRACTICAL SKILLS SERIES are also available as segments of the New York Lawyer’s Deskbook and Formbook (PN: 4152), a seven-volume set that covers 27 areas of practice. The non-member price for all seven volumes of the Deskbook and Formbook is $710. The member price is $550. Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB1541N Table of Contents Page Message from the Chair . .4 Anthony J. Enea Message from the Co-Editors in Chief . .6 Adrienne Arkontaky and David Kronenberg Your Online Afterlife: Digital Estate Planning in the Facebook Age . .7 Jim D. Sarlis The Bypass or Credit Shelter Trust . .12 Lainie R. Fastman Guardianship News: Problems with Disbursements . .16 Robert Kruger The Provider’s Role in Proving Undue Hardship . .19 Nancy Levitin, assisted by Moriah Adamo Advance Directive News: Circumstances Change . .22 Ellen G. Makofsky Pooled Trusts and the Preemption Doctrine—An Update. .23 Robert P. Mascali The Care, Upkeep and Planned Death of a Client File . .25 Kameron Brooks Recent New York Cases . .29 Judith B. Raskin Recent Tax Bits and Pieces . .31 David R. Okrent David Goldfarb Talks with Natalie Kaplan About: Lobbying in Albany and 14 Chickens in the Bathroom . .34 NYSBA Elder and Special Needs Law Journal | Fall 2012 | Vol. 22 | No. 4 3 Message from the Chair As you are reading this Chair’s Message, the Elder minutes of travel from the Law Section has just completed another successful and hotel. It is also within a few highly enjoyable Summer Meeting at the Marriott miles of the Village of Sleepy Longwharf in Boston, Massachusetts. Thanks to the Hollow, which is famous for efforts of our program Co-Chairs, Beth Polner Abra- being the home of the legend hams and Salvatore M. DiCostanzo, we were enter- of the Headless Horseman. tained to three days of highly informative CLE pro- Some have speculated that grams as well as enjoyable sightseeing excursions to the Headless Horseman was such venues as the New England Aquarium, the an elder law attorney on a Museum of Science, the Freedom Trail and, of course, busy day. Boston’s world renowned “Duck Tour.” One of the Program Co-Chairs Matt highlights of the meeting was a wonderful evening of Nolfo and Tara Pleat have “Lobsters and Laughs” on the beautiful terrace of the assured me that they have assembled a panel of dis- New England Aquarium overlooking Boston Harbor. tinguished speakers who will be addressing numerous Peter Grim of the Boston Hysterical Society provided timely topics, with the fi rst day of the program being the comedic entertainment, often making the legal a day of roundtable discussions moderated by highly profession the butt of his jokes. In spite of their losing experienced elder law practitioners. This will be a pro- baseball record, the Bostonians played gracious hosts gram that elder law attorneys will be talking about for to the legions of Yankee fans that had descended upon years to come. Practitioners throughout the state will their beloved city. A warm thank you to all our mem- be asking “Were you at the Fall Meeting in Tarrytown?” bers and their families who attended. I am confi dent a You will not want to be the person who embarrassingly good time was had by all. has to answer in the negative. I would be remiss if I didn’t express our collective Please also remember to save the date for our appreciation to all of the excellent speakers who de- Annual Meeting on January 22, 2013 at the New York voted their time and efforts to the program as well as to Hilton in New York City. Lisa Bataille, Kathy Heider, Kathy Plog and all of the NYSBA staff that played an integral role in making the 2012 summer meeting a success. Their hard work and Update of New Section Initiatives efforts truly paid off. Additionally, we also owe a debt As you may recall at our Annual Meeting in Janu- of gratitude to our many sponsors, who without their ary I presented to the Section a number of proposed fi nancial support the costs of this event to our Section initiatives which I believed were of importance to would be signifi cantly higher. A special thank you to the future success of our Section. The following, for NYSARC Trust Services (sponsor of the Program Fa- purposes of brevity, is an update on some of the most vors), RDM Financial Group (sponsor of the Cocktail important of these initiatives: Reception) and Enea, Scanlan & Sirignano, LLP (spon- sor of the Thursday evening comedy show) and all of A. Enhancing the Practice Management Skills of our other loyal sponsors, the Arthur B. Levine Com- Our Members pany, Elder Counsel, Interim Health Care, Krause I am pleased to announce that our Section is Financial Services, Inc., New York and National Long partnering with the New York State Bar Association to Term Care Brokers and Personal Touch Home Care. present a series of CLE programs throughout the State Finally, as far as sponsorship is concerned I want to entitled, “Developing an Elder Law Practice. ” The pro- thank Salvatore M. DiCostanzo who has completed grams will be held in November and December of this his tenure as our Sponsorship Committee Chair. Sal has year in Westchester County, New York City, Long Is- for years diligently worked to ensure that our meetings land, Rochester and Albany. Practice Management and are appropriately sponsored. Technology Committee Co-Chairs, Ronald Fatoullah In keeping with my discussion of our Section and Robert Kurre, are the program Co-Chairs. We have Meetings, I would like to remind you to mark your collaborated to formulate a program agenda that will calendars for our Fall Meeting which is scheduled explore such topics as Building a Successful Elder Law for October 24th and 25th at the Doubletree Hotel in Practice, Marketing, Networking and Public Relations beautiful Tarrytown, New York. For those of you not for the Elder Law Practitioner, the Computer Software familiar with Tarrytown it is a scenic Hudson River and Technology needs of an elder law practice, hiring town in Westchester County with great shopping, and staffi ng needs as well as how to conduct elder law antiquing, dining and sightseeing, all within a few research. 4 NYSBA Elder and Special Needs Law Journal | Fall 2012 | Vol. 22 | No. 4 Please stay tuned for the dates and specifi c loca- tions. The Task Force is currently exploring how best to tions of the programs. Other than missing the Fall 2012 approach this dialogue and whether NYSBA permis- meeting, this could be the biggest mistake you ever sion is required to do so. make if you don’t attend. In fact some have opined that In conclusion, it was the opinion of the Task Force non-attendance may be negligence per se. that we presently don’t have suffi cient evidence to B. Unauthorized Practice of Law make this an issue to be brought to the State Bar’s Un- lawful Practice of Law Committee. That doesn’t mean As you may be aware, the Unauthorized Practice we will cease monitoring this issue or that we will not of Law Task Force, which I chair, recently surveyed the do so at a later date. membership to determine whether they believed non- attorneys were engaged in the practice of elder law, C.