nysba spring 2020 | vol. 30 | no. 1 elder and special

Elder and Special Needs Law Journal

SPRING 2020 | VOL. 30 | NO. 1NYSBA

A publication of the Elder Law and Special Needs Section of the New York State Bar Association

Insiden COVID-19 Update

n Death of the Stretch: The SECURE Act

n NY’s Uniform Partition of Heirs Property Acts Paves the Way for Heirs to Attempt to Remain in Their Homes

n Asset Protection with Trusts—Testing the Limits... and more

www.nysba.org/Elderlaw

NYSBA Elder and Special Needs Law Journal | Spring 2020 | Vol. 30 | No. 1 3

Table of Contents Page

Message from the Chair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Tara Anne Pleat

Message from the Co-Editors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Katy Carpenter and Patricia Shevy

Note from the Editors Regarding COVID-19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The Housing Stability and Tenant Protection Act of 2019: An Overview of Notable Updates and Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Joseph A. Coticchio

Advocating for Least Restrictive Alternatives in Plenary Guardianships . . . . . . . . . . . . . . . . . . . . 11 Amy C. O’Hara

Death of the Stretch: The SECURE Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Patricia Shevy

Adventures in a Busy Elder Law/T&E Office: A Comic Strip . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Anthony Eminowicz

Young Lawyers Spring Event 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Save the Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Member Spotlight: Britt Burner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Interview by Katy Carpenter

Fall Meeting Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Elder Law and Special Needs Section Awards Ceremony at Annual Meeting 2020 . . . . . . . . . . . 21

New Member Spotlight: Kirill Muchnik . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Interview by Katy Carpenter

New York’s Uniform Partition of Heirs Property Act Paves the Way for Heirs . . . . . . . . . . . . . . . 25 to Attempt to Remain in Their Homes Regina Kiperman

Asset Protection with Trusts—Testing the Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 James Yastion

Tales from the Trenches (Part IV) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Christine Mooney and Linda Redlisky

Elder Law and Special Needs Section Welcomes New Members . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Section Committees and Chairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

4 NYSBA Elder and Special Needs Law Journal | Spring 2020 | Vol. 30 | No. 1

Happy New Year! I am proud to report that quite a bit has happened over the last several months .

On October 24th and 25th the Section held its Fall Meeting jointly with the Trusts and Estates Law Sec-tion at the Gideon Putnam in Saratoga . It was a sold-out program co-chaired by Ellyn Kravitz and Sal DiCostanzo from our Section together with Nicole Clouthier and Frank Santoro from the Trusts and Estates Law Section . More than 250 of our colleagues came together for this lively and comprehensive program . The meeting began with Katy Carpenter and Joanna Feldman’s discus-sion about powers of attorney and the common powers practitioners look for, with Katy representing the elder law practitioner perspective and Joanna representing that of the trust and estate practitioner . We then heard from Ian MacLean and William Keniry on the topic of litigat-ing power of attorney disputes . Thursday’s program was rounded out with a dynamic and passionate presentation from Nassau County District Attorney Arlene Markarian focusing on financial abuse of the elderly .

Friday’s program began with a panel of Hon . Tanya R . Kennedy, former Guardianship Part Judge in New York County, and Hon . Paul V . Morgan, the primary Article 81 Guardianship Judge presiding over cases in the Third Judicial District . The panel, which focused on prac-tice in contested guardianship proceedings, was moder-ated by Anthony Lamberti . This session was followed by Ira Salzman’s discussion on interstate guardianship practice . Professor Ira Bloom then joined us to present on the differences between New York’s current trust laws and the noteworthy provisions of the proposed New York Trust Code . (The Trust Code was recently approved by the Office of Court Administration and it is anticipat-ed that the legislative proposal will be introduced in this years’ legislative session .)

Bob Freedman and Bob Abrams gave an excellent and interactive presentation on the ethical issues in representing a client with diminished capacity . After our lunch break, Ilene Cooper and Joe LaFerlita presented on the effective administration of estates and trusts to avoid litigation . The final presentation of the two-day program was a panel on mediation as an alternative to litigation in trusts and estates disputes . Hon . Rita M . Mella of New York County Surrogate’s Court, Hon . Brandon R . Sall of

Message from the ChairBy Tara Anne Pleat

the Westchester County Surrogate’s Court, and Nancy Rudolf and Daniel Weitz from the Office of Court Admin-istration were our panelists .

In November our Section co-sponsored the Health Law Section’s fall meeting on “Duties, Rights and the Law at the End of Life,” which was held on November 8th at the Bar Center in Albany . Many thanks are owed to David Kronenberg, Tammy Lawlor and Moriah Adamo for their representation of our Section during the planning process and execution of this incredibly important and well-received program .

My message from the fall Elder and Special Needs Law Journal contained reference to a letter the Medicaid Com-mittee authored to the New York State Department of Health regarding GIS 19 MA/04 Clarification of Policy for Treatment of Income Placed in Medicaid Exception Trusts and the Pooled Trust Notification Act, N . Y . Social Services Law @ 366, subd . 5 (f) (enacted Dec . 18, 2017) . On Decem-ber 16, 2019 Valerie Bogart, Ronald Mayer of the New York Legal Assistance Group, David Goldfarb, Naomi Levin and I participated in a conference call with several program and counsel staff of the New York State Depart-ment of Health (DOH) scheduled as a result of that letter that the Section sent to the DOH in August .

We are very pleased to report that the DOH advised us in the call that it will be rescinding GIS 19 MA/04 and has confirmed its position is now that Statutory Gifts Riders are not required to establish exception trusts . We were advised that this is a policy change that is effective immediately; however, the formal rescission of the GIS is not likely to occur until sometime in mid to late winter . The DOH has also agreed to revise its “Effects of Trusts on Medicaid Eligibility” notice and will be circulating a draft to Val, David, Ron, Naomi and myself for review and comment prior to re-issuing .

On January 28th we held our Annual Meeting of the Section in New York City at the Midtown Hilton . It gives me great pleasure to announce that during the business segment of our meeting, we elected the following of-ficers, delegates and Member at Large of the Executive Committee:

Section Officers

Chair-Elect: Deepankar Mukerji

Vice-Chair: Christopher Bray

Secretary: Fern Finkel

Treasurer: Britt Burner

Pursuant to our bylaws, Matthew Nolfo will assume the role as Chair of the Section on June 1st .

Tara Anne Pleat


Paul Ryther and Richard Marchese, presenting part 2 of the intergenerational family representation case study which began at our summer meeting in Boston . Follow-ing our program we held a reception at the Warwick Hotel that was generously sponsored by Wells Fargo Trust and Fiduciary Services . We received incredible feed-back regarding the programming at the Annual Meeting and were glad to see so many friends and colleagues in attendance .

As many of you know, the week before the Annual Meeting, Governor Cuomo unveiled his budget . This year, the budget did not contain any provisions related to cuts in the New York State Medicaid Program, but rather forecasted the reconstitution of the Medicaid Redesign Team (known as MRT II) . Together with the government affairs counsel for NYSBA we sought a seat on the MRT II, which unfortunately (but not unexpectedly), was not fruitful . We anticipate that the proposals coming through the MRT II process will be known to us in late March and expect our leadership and legislative committee will be ready to advocate .

Finally, we reported after the summer meeting the work of our Task Force on the Unauthorized Practice of Law . That Task Force, co-chaired by Robert Kurre and Sal DiCostanzo, has been hard at work over the last several months . Affirmative legislation that would modify the Public Health Law mandating that certain health care ser-vice providers advise patients and residents of their right to seek legal counsel in the application process has been proposed to the Executive Committee of NYSBA and our Section will present on this proposal at the April meeting of NYSBA in Albany . Our friends and colleagues in NY NAELA have also taken interest in this proposal and we hope to work collaboratively with them in order to bring this issue to light in the legislature .

As is always the case, there is a lot happening and we welcome new faces and new energy . If you are interested in how to get involved in any of our committees and our projects please contact me at TPleat@WPLawNY .com .

District Representatives

Jessica R . Botehlo, 4th District

Karen J . McMullen, 6th District

Sarah A . Steckler, 9th District

Patricia Powis, 11th District

Danielle Leventhal Elias, 13th District

Member at Large

Anthony Lamberti

A great many thanks are owed to our Nominations Committee comprised of Immediate Past Chair Judith Grimaldi, Former Chair JulieAnn Calareso, Rick Mar-chese, Elizabeth Adinolfi and Anthony Lamberti, who not only presented the slate of Officers, Delegates and the Member at Large, but also presented four Section awards .

First, the Section honored Judge Peter J . Kelly from the Queens County Surrogate’s Court with our Judicial Award in recognition of his positions that have favored the practice of Elder Law and the rights of persons with disabilities . Next the Section honored Judge Brandon R . Sall of the Westchester County Surrogate’s Court with our “Friend of the Section” award in recognition of his support and advancement of mediation in our field .

We awarded Valerie J . Bogart for her sustained ef-forts as an advocate whose actions are in furtherance of the rights of both the elderly and persons with disabili-ties . Finally, we awarded Ellen G . Makofsky with the Section’s Lifetime Achievement Award for her advocacy and representation of the elderly and persons with dis-abilities . The awards segment of our annual meeting was very special this year indeed .

Program Chairs Patricia A . Bave and Sara L . Keating put together a fantastic educational program for our An-nual Meeting attendees . This meeting, like the fall meet-ing, was a sellout . David Goldfarb started us off with the always anticipated “Annual Elder Law Update .” Adri-enne Arkontaky followed with a session on “Integrating Special Education Advocacy or Litigation into a Special Needs Practice,” and then Moriah Adamo gave our Sec-tion members insight on “Maintaining the Maintenance Standard” in light of the Jimmo case . After our refresh-ment break, which was graciously sponsored by Orange Bank and Trust Company, Moira Laidlaw, Professor Guy Maytal and Lisa Volpe gave an enlightened and heartfelt session on “Mental Health Issues in Estate Planning and Administration .” Our day was rounded out by our Ethics Committee leaders, Joanne Seminara, Robert Mascali,

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We asked and you an-swered . In our last Journal, we asked you to consider writing an article for the Journal . In this edition of the Journal, we have contributions from several new authors . We appreciate hearing from our Section members, and hope that you will feel com-fortable submitting articles for publication . Even if you have never written an article, if there is an idea or topic you have always wanted to research, do the research and reach out to us . A member of our edito-rial board would be pleased to help you turn that research into an article for publication in an upcoming Journal . We plan to issue three Journal editions in 2020, with the next deadline for submission set for May 15, 2020 .

The annual meeting Section program, “Keeping Cur-rent in Elder Law and Special Needs Planning,” was a great success . More than 300 Section members participated in the program . David Goldfarb, Esq ., provided the annual update, including a discussion of the Jimmo decision, and a summary of the Secure Act, legislation changing the post-death distribution rules for retirement accounts . This Journal includes Tricia’s article summarizing the Secure Act, describing who is an “eligible designated beneficiary,” and the exceptions to the new 10-year rule . Our Section co-sponsored with the Trusts and Estates Section a webinar on the Secure Act, presented by David Pratt, Esq ., Jennifer Boll and Tricia, which can be purchased and viewed online through the Association’s website . We hope that our next Journal will also offer additional planning strategies taking into consideration the Secure Act changes .

Also at the Annual Meeting Section program, Moriah R . Adamo, Esq ., detailed the Jimmo decision, specifi-cally detailing how we can advocate for our clients when skilled services are required in order to provide care that is reasonable and necessary to prevent or slow further deterioration; coverage cannot be denied based on the absence of potential for improvement or restoration . Adri-enne J . Arkontaky, Esq ., presented the federal and state special education laws outlining the Individuals with Dis-abilities Education Act (IDEA) and New York’s Part 200 of the Regulations of the Commissioner of Education .

If you were unable to attend the Annual Meeting but would like to read the materials presented by these authors, the full outline is available for purchase through the Association’s website . Be on the lookout—the As-sociation now offers an all access pass through the Asso-ciation’s website where you gain unlimited access to the Association’s CLE database . Many great Elder Law and

Message from the Co-EditorsBy Katy Carpenter and Patricia Shevy

Special Needs Planning Section programs are included in the all access pass .

It is our goal to include articles that expand the view of our Section into relevant areas of practice that do not neces-sary scream “elder law .” Real property law is one such area . Regina Kiperman, Esq .’s article brings partition proceedings to the forefront, detailing RPAPL 993’s preference on negotiations, attempts at partial buyouts, at-

tempts at partition in kind, and directs for sale only as the last resort, as a means of preventing a real estate investor from preying on an elderly or disabled individual . Joseph A . Coticchio’s article describes the Housing Stability and Tenant Protection Act of 2019 enacted and effective July 14, 2019, which seeks to update and increase protections for tenants across the State of New York .

Antony M . Eminowicz, Esq .’s comic always seems directly on point . How many times have we been on a conference call where we don’t feel like we’re being heard? Technology is a wonderful thing, and conference calls can be an efficient way for multiple individuals to commu-nicate all at the same time . The toughest part of a confer-ence call for us is the inability to interpret the visual cues — someone who grimaces and doesn’t look like she or he understands what is being said, allowing you the opportu-nity to offer a different explanation . On other calls, there is the person who talks and talks leaving no open space for a response . Video conferencing may offer a solution . The Association is now using Zoom for certain conference calls, webcasts and webinars, which at times allows for live visual streaming . Even with all the advances in technology, there are times when in-person, face-to-face communica-tion remains best .

Coming this Spring is the return of the UnProgram scheduled for Thursday, April 30th through Friday, May 1st at The Desmond Hotel in Albany . The UnProgram of-fers a unique opportunity for collaboration among practi-tioners throughout the state . Each small group is led by an experienced elder law and special needs planning attorney to discuss a specific topic . The group then discusses how each attorney might deal with that topic in that attorney’s area of the state . All levels of experience are encouraged to attend the UnProgram . Registration is available through the Association’s website . You never know what you might learn, or the connections you could make while discussing the various areas of practice .

Tricia and Katy

Katy Carpenter Patricia Shevy


As you can probably guess, we are all a little stressed . Putting together the Journal takes months—the articles are written and then edited by our Editorial Board, and then our NYSBA Publications Department puts together the gal-leys for our review—inserting the advertisements and Section information . It takes hours and hours . Just as we were ready to update the galleys and print the Spring Journal, COVID-19 hit . The NYSBA print shop is temporarily closed, and we’re sending you the Spring Journal electronically . It may be printed and mailed to you some day, but for today, you are receiving it electronically, with unplanned updates to bring you current and relevant information .

The world is changing every day, and how we interact with our clients requires flexibility and technology . We are all trying to manage our practices from home given the current definition of “essential business” in New York . Many of us are developing creative way to help our clients execute their estate planning documents . My other NYSBA hat is as CLE Chair of the Trusts and Estates Section . On April 1st, Tricia moderated an online discussion with Tara Pleat as Chair of the Elder Law and Special Needs Trust, Jill Beier as Chair of the Trusts and Estates Section and Deborah Kearns, the Albany County Surrogate Court Chief Clerk . We discussed how we can assist our clients properly in these trying times by meeting virtually and how we can creatively execute estate planning documents . No CLE credit is offered for this discussion, but we do strongly suggest you watch the video . It is available at no ad-ditional cost in both NYSBA Communities for the Elder Law and Special Needs and Trusts and Estates Sections .

Of particular note is Governor Cuomo’s Executive Order 202 .7, which allows for remote notarial acts . Executive Order 202 .7 in part provides, “IN ADDITION, by virtue of the authority vested in me by Section 29-a of Article 2-B of the Executive Law to issue any directive during a disaster emergency necessary to cope with the disaster, I hereby is-sue the following directives for the period from the date of Executive Order through April 18, 2020: Any notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology provided that the following conditions are met:

• The person seeking the Notary’s services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after;

• The video conference must allow for direct interaction between the person and the Notary (e .g . no pre-record-ed videos of the person signing);

• The person must affirmatively represent that he or she is physically situated in the State of New York;

• The person must transmit by fax or electronic means a legible copy of the signed document directly to the No-tary on the same date it was signed;

• The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and

• The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution .”

In this Journal, we included an article on the SECURE Act . The CARES Act (the Coronavirus Aid, Relief, and Eco-nomic Security Act) was signed by the President on March 27, 2020 . The CARES Act includes a one-time payment to tax filers in order to help households cover necessary expenses . The rebate for a tax filer is equal to $1,200 ($2,400 for married couples filing jointly) . The rebate is increased by $500 per child . The entire rebate amount phases out begin-ning at an individual’s adjusted gross income of $75,000 ($150,000 for married couples filing jointly, $112,500 heads of household) .

The CARES Act lifts the requirement for individuals to take retirement account required minimum distributions in 2020 . The CARES Act also waives the 10% early withdrawal penalty tax under Internal Revenue Code Section 72(t) on early withdrawals up to $100,000 from a retirement plan or IRA for an individual who is diagnosed with COVID-19; whose spouse or dependent is diagnosed with COVID-19; who experiences adverse financial conse-quences as a result of being quarantined, furloughed, laid off, having work hours reduced, being unable to work due to lack of child care due to COVID-19, closing or reducing hours of a business owned or operated by the individual due to COVID-19; or other factors as determined by the Treasury Secretary .

We hope you will stay connected with other Section members through the Communities . Stay safe .

– Tricia and Katy

Note from the Editors Regarding COVID-19

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IntroductionThe Housing Stability and

Tenant Protection Act of 2019 was enacted by Governor An-drew Cuomo on June 14, 2019, and became effective July 14, 2019 . The Act sought to update and increase protections for tenants across the State of New York . The enaction of the Act was seen as a dramatic swing of the pendulum toward ten-ants at a time when more U .S . households are renting than

ever before .1 Faced with these new changes and protec-tions, many tenants and elderly renters are looking to learn about and become empowered by the newly enacted protections and changes .

I. Security DepositsPreviously, tenants could be responsible for advanc-

ing last month’s rent and a large security deposit in consideration for entering into a lease . Under the new provisions in the General Obligations Law, tenants in residential premises are no longer required to pay secu-rity deposits or advances that exceed one month’s rent under a lease .2 In addition, the entire security deposit is refundable upon a tenant vacating the premises except for reasonable deductions .3 Landlords are not permitted to retain any amount of the security deposit for costs related to normal wear and tear or damage caused by a previous tenant .4 Upon the conclusion of a tenant’s occupancy of the premises, tenants are entitled to receive an itemized statement indicating the basis for any deductions from a security deposit within 14 days .5 If a landlord fails to provide a tenant with an itemized statement and deposit within the required time, the landlord forfeits the right to retain any portion of the deposit .6

II. Rent IncreasesEffective October 12, 2019, during a lease renewal, if

a landlord proposes an increase of 5% or more above the current rent, a tenant is entitled to receive written notice of the increase within newly enacted time periods, which depend upon a tenant’s previous length of occupancy .7 If a landlord fails to provide timely written notice, a tenant’s occupancy shall continue under the existing terms of the occupancy from the date which the landlord gave actual written notice until the notice period has expired .8 If a ten-

The Housing Stability and Tenant Protection Act of 2019: An Overview of Notable Updates and ChangesBy Joseph A. Coticchio

ant’s occupancy is less than one year, they are entitled to 30 days’ notice; less than two years but more than one year, they are entitled to 60 days’ notice; and less than three years but more than two years, they are entitled to 90 days’ notice .9

III. Discrimination Discrimination is nothing new to tenants, but the enac-

tion of the Act comes with new discrimination protections for tenants, which were enacted to prevent discrimination based on previous evictions . As part of the Act, landlords are no longer permitted to refuse to rent or offer a lease to a potential tenant on the basis that a tenant was involved in a previous landlord-tenant action or summary proceed-ing .10 Essentially, landlords are no longer able to refuse to rent an apartment because a tenant was previously evicted or involved in an eviction action . If a tenant can establish that a landlord submitted information to a tenant screen-ing bureau in search of previous evictions and the tenant was subsequently denied occupancy, then the landlord will be in violation of the Act, and a tenant may report such behavior in a complaint to the New York State Attorney General’s Office .11

IV. Application Fees and Late FeesExcept where provided by statute or regulation, land-

lords are no longer permitted to collect any fee, payment or charge for processing an application, unless the pay-ment, fee or charge is related to conducting a background or credit check .12 Even when a landlord collects a fee for an application or credit check, the amount of the fee can be no more than $20 .13 Previously, there was no such limitation . In addition, no landlord may demand any payment, fee or charge for the late payment of rent unless the payment of rent is beyond five days of its due date and the payment and late fees are statutorily limited to $50 or 5% of the monthly rent, whichever is less .14 Any provision in a lease that waives or limits any of these requirements is deemed void and against public policy .15

Joseph A. Coticchio is an Associate of the firm Towne, Ryan & Partners, P.C. and concentrates his practice on elder law, landlord tenant, labor and employment, and general practice matters. Joseph is a graduate of Albany Law School (2016) and is admitted to practice in New York. Mr. Coticchio is a member of NYSBA, the Elder Law and Special Needs Section (Co-Chair Elder Abuse Committee) and a member of the Albany County Bar Association and the New York State Academy of Trial Lawyers.

Joseph A. Coticchio


tenant cannot stay the execution of a warrant by paying off their rent, the act further changed § 749 of the RPAPL to give more time between the delivery and execution of a warrant of eviction from 72 hours to 14 days, and warrants may now only be executed on a business day by a sheriff .27

Finally, the newly enacted § 768 of the RPAPL codifies civil and criminal penalties for landlords that engage in “self-help” evictions or other specifically enumerated acts . Specifically, landlords are not permitted to threaten to use force against a tenant to vacate the premises, or engage in conduct that interferes with or is intended to interfere with or disturb the comfort, repose, peace or quite of such occu-pant in the use or occupancy of their dwelling unit in order to induce the occupant to vacate, which includes discon-tinuing essential services .28 Any person who intentionally violates or assists in the violation of any provision in § 768 of the RPAPL shall be guilty of a class A misdemeanor, and each violation shall be considered a separate and distinct offense .29 Such persons shall also be subject to civil penal-ties ranging from $1,000 to $10,000 .30

ConclusionAs a result of these new changes and updates, summa-

ry proceedings have become more complex and difficult to understand . Landlords and tenants attempting to represent themselves in these proceedings should always seek the assistance of counsel in order to ensure that their respec-tive rights are protected .

V. RentLeases are designed to be complicated and are put

in place to benefit and protect a landlord’s interest . Most consider the monthly rent to be the most important part of a lease . The newly enacted § 702 of the Real Property Actions and Proceedings Law (RPAPL) further defines rent in residential dwellings to mean “the monthly or weekly amount charged in consideration for the use and occupation of a dwelling pursuant to a written or oral rental agreement .”16 A landlord is not permitted to seek any fees, charges or penalties other than rent in a sum-mary proceeding for eviction, unless there is language to the contrary in a lease or rental agreement .17 During a summary proceeding, many times a landlord will seek additional fees, charges and penalties . Now, unless those additional fees, charges or penalties are agreed to in a lease, they cannot be sought to be recovered as rent in a summary proceeding .18

VI. Evictions A tenant facing an eviction can find themselves in

a dire time . Tenants endure significant challenges when their landlord pursues an eviction if they are not repre-sented by counsel . There are many procedural hurdles that landlords must clear in order to evict a tenant . Since the enaction of the Act, several protections have been enacted for the benefit of tenants . To begin, a landlord is now required to give written notice with at least 14 days’ notice to pay rent or vacate the premises .19 Previously, a landlord was only required to give three days’ notice .

In a non-payment of rent proceeding, a landlord must now serve a notice of petition and petition upon the tenant at least 10 days and not more than 17 days before the time at which the notice is to be heard .20 Previously, the time-period was not less than five days and not more than 12 days .21 This is incredibly significant in practice since most local justice courts only hold court for evictions during spe-cific times of the month or on alternating weeks . As a result of these changes in time-periods, a hearing on the petition may be pushed to the next month or alternating week if a landlord cannot effect service of the petition within these time periods . Complicating matters further for a landlord seeking a quick eviction, at the request of either party, the court shall adjourn the trial of the issue to a period not less than 14 days .22 Second or subsequent adjournments shall only be granted in the court’s sole discretion .23

Further adding to tenant’s protections, a tenant may now stop an eviction for nonpayment of rent if they are able to pay the full amount of rent due before the hearing of the petition .24 If such payment is made to the landlord, the payment immediately moots the grounds upon which the proceeding was commenced .25 Similarly, even if a warrant of eviction is obtained by a landlord, a tenant may stay or vacate an eviction and restore their possession of the premises if they are able to deposit with the court the full rent due prior to the execution of the warrant .26 If a

Endnotes1 . https://www .pewresearch .org/fact-tank/2017/07/19/

more-u-s-households-are-renting-than-at-any-point-in-50-years/ .2 . General Obligations Law § 7-108(1-a)(a) .3 . General Obligations Law § 7-108(1-a)(b) .4 . Id.5 . General Obligations Law § 7-108(1-a)(e) .6 . Id. 7 . Real Property Law § 226-c(1) .8 . Id.9 . Real Property Law § 226-c(2)(a)-(d) .10 . Real Property Law § 227-f(1) .11 . Real Property Law § 227-f(2) .12 . Real Property Law § 238-a(1)(a) .13 . Real Property Law § 238-a(1)(b) .14 . Real Property Law § 238-a(2) .15 . Real Property Law § 238-a(3) .16 . Real Property Actions and Proceedings Law § 702 .17 . Id. 18 . Id.19 . Real Property Actions and Proceedings Law § 711(2) .20 . Real Property Actions and Proceedings Law § 733(1) .21 . Real Property Actions and Proceedings Law § 733(1) (1965) (original

version at L 1965, ch 910, § 5) .22 . Real Property Actions and Proceedings Law § 745(1) .23 . Id.24 . Real Property Actions and Proceedings Law § 731(4) .25 . Id.26 . Real Property Actions and Proceedings Law § 749(3) .27 . Real Property Actions and Proceedings Law § 749(2)(a) .28 . Real Property Actions and Proceedings Law § 768(a)(i)-(iii) .29 . Real Property Actions and Proceedings Law § 768(2)(a) .30 . Real Property Actions and Proceedings Law § 768(2)(b) .


Recently our firm represented guardians seeking a modification of their son’s guard-ianship under Article 17-A of the Surrogate’s Court Procedure Act (Article 17-A) to revoke guardianship of the property while continu-ing to maintain guardianship over his person . In what appears to be a case of first impres-sion, the Westchester County Surrogate’s Court issued a decision granting the guard-ians’ petition .1

In 2010, a petition was filed on behalf of Jacob’s parents to be appointed as guardians over Jacob’s person and property based upon his inability to make decisions on his own regarding his person and property . Jacob has lifelong developmental disabilities that include autism spectrum disorder and cerebral palsy, resulting in cognitive delays .

Over the years, with the support of his guardians, Jacob made significant progress in his ability to manage his property . Through enrollment and cooperation with supportive programs, Jacob became steadily more inde-pendent and demonstrated the capacity to manage his property without his guardians’ decisions supplanting his own . At the same time, despite his guardians’ support for Jacob to live as independently as possible, Jacob still required total assistance by his guardians in attending to his health care decision-making . When faced with medical decisions, he would experience paralyzing anxiety that resulted in his inability to make any decisions at all .

Given Jacob’s advancements in financial indepen-dence, it was determined the guardians would petition the court to seek a modification to the terms of Jacob’s guard-ianship, namely they wanted to terminate the property guardianship but maintain guardianship of the person .

It is imperative to be aware of the issues surround-ing the Article 17-A statute as articulately reviewed by Lisa R . Valente in the Fall 2019 issue of this publication, specifically that it is a plenary guardianship .2 The Article 17-A statute is archaic and does not allow for tailoring of an individual’s functional limitations, which is vital when supporting the least restrictive alternative for individuals who have higher functioning capabilities but still need substantial support in one or more areas and when certain advance directives are not appropriate .

Article 17-A currently allows a guardian to petition the court to have the guardianship order modified, dis-solved or amended .3 The statute further enables courts to modify a guardianship order “if in its judgment . . . the interests of justice will be best served .”4

Courts must look at the best interests of the individual in need of a guardianship .5 As described by In re Guardian for Hytham, the assessment of an individual’s best interests should include an in-depth analysis of their functional capacity .6 “Understanding the functional capacity of an individual with dis-ability, what an individual can or cannot do, is a necessary inquiry in determining best inter-est and the necessity of guardianship . This is especially true in light of the emerging aware-ness that there is a wide range of functional capacity found among persons with diagnoses of intellectual disability and developmental

disability .”7

The analysis of “functional capacity” is a fact based in-quiry that examines the abilities of an individual and their potential for decision-making .8 As Surrogate Margarita López Torres stated In re Guardian of Michelle M., “[t]he per-functory appointment of a plenary guardian based upon medical certifications or diagnostic tests alone, without careful and meaningful inquiry into the individual’s func-tional capacity, relies upon the incorrect assumption that the mere status of intellectual disability provides sufficient basis to wholly remove an individual’s legal right to make decisions for himself .”9

Surrogate’s Courts have also held that the best inter-ests of an individual can change with time . For example, Surrogate Kristin Booth Glenn, presiding over In re Guard-ianship of Dameris, held that when a guardianship was no longer strictly necessary for the individual’s decision-making and there was a system of supported decision-making in place, the guardianship should be terminated .10

The decision noted how Article 17-A should be interpreted . “SCPA article 17–A must be read to include the require-

Advocating for Least Restrictive Alternatives in Plenary GuardianshipsBy Amy C. O’Hara

Amy O’Hara

Amy C. O’HArA is a partner with the law firm of Littman Krooks LLP. Her practice is focused in the areas of elder law, estate planning and administration, trust administration, guardianships, special needs planning, personal injury settlement consulting and veterans’ benefits. Amy is Certified as an Elder Law Attorney by the National Elder Law Foundation. She is the Vice President of the Board of Directors of the Special Needs Alliance, a national, not-for-profit organization dedi-cated to assisting families with special needs planning. Amy is also the President of the Board of Directors of Westchester Disabled on the Move, Inc., a not-for-profit organization that aims to improve the quality of life and the rights for all people with disabilities.


ment that guardianship is the least restrictive alternative to achieve the State’s goal of protecting a person with intellectual disabilities from harm connected to those disabilities .”11

In In re Jacob A.B .,12 the Westchester County Surro-gate’s Court moved the barometer forward in develop-ing case law to modify plenary guardianships to allow an element of tailoring to the least restrictive alternative . Jacob now has the ability to execute a supportive power of attorney tailored to his needs while at the same time his parents maintain full guardianship authority over his person, thereby eliminating the overwhelming anxiety he encountered when communicating with doctors regard-ing medical decisions .

It is arguable that there is a way to go to reach where we need to be in order to most effectively serve the indi-vidual’s needs in the 17-A guardianship process .

Article 17-A provides no mechanism for the courts to routinely review the welfare of an individual under a guardianship .13 As practitioners who represent families in all aspects of special needs planning, including Article 17-A guardianships, we are charged with the responsibil-ity of protecting individuals with functional limitations while at the same time providing them with the least restrictive form of intervention . We should be mindful of the families we represent in guardianship proceedings once a guardianship matter is complete . As these indi-viduals with disabilities age and navigate their way into adulthood, it is important that we work toward a goal where there is a mechanism to allow for these individuals to have access to the least restrictive alternative of inter-vention if their functional capabilities warrant a change to the terms of their guardianship .

Endnotes1 . In re Jacob A.B., N .Y .L .J ., Jan 31, 2020, p . ___, col ____ . (Surr . Ct .

Westchester Co . 2020) .

2 . Lisa R . Valente, Constitutional Challenges to Article 17-A Guardianships, N .Y .St . Elder and Special Needs Law Journal, vol 29, no . 4, at p .11, Fall 2019 .

3 . N .Y . Surr . Ct . Proc . Act § 1759 .

4 . N .Y . Surr . Ct . Proc . Act § 1755 .

5 . N .Y . Surr . Ct . Proc . Act § 1754(5) .

6 . In re Guardian for Hytham M.G., 52 Misc . 3d 111(A), 41 N .Y .S .3d 719, 2016 N .Y . Slip Op . 5113(U) (Surr . Ct . Kings Co . 2016) .

7 . Id. at 3 .

8 . In re Guardian for Michelle M., 52 Misc . 3d 1211(A), 41 N .Y .S .3d 719, 2016 N .Y . Slip Op . 5114(U) (Surr . Ct . N .Y . Co . 2016) .

9 . Id. at 3 .

10 . In re Dameris L., 38 Misc . 3d 570, 576, 956 N .Y .S .2d 848, (Surr . Ct . N .Y . Co . 2012) .

11 . Id. at 579 .

12 . See In re Jacob A.B., supra note 1 .

13 . If a guardian of the property is appointed, an annual accounting must be submitted .


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Death of the Stretch: The SECURE ActBy Patricia Shevy

The “Setting Every Community Up for Retirement Enhancement” Act (the “SECURE Act”) was passed in December 2019, effective for all retirement account own-ers and employees dying on or after January 1, 2020 . The SECURE Act adds a new paragraph (H) to Internal Revenue Code Section 401(a)(9), changing the post-death rules for retirement accounts . Since the SECURE Act amends Code Section 401(a)(9), the SECURE Act provi-sions reference “employee” but also apply to IRA owners (hereinafter a “participant”) . In addition, the SECURE Act increases the age for required minimum distributions to 72 for those who are not already 70½ years old as of January 1, 2020 .

Distributions to a participant before age 59½ gener-ally trigger a 10% early withdrawal federal tax penalty in addition to the income tax due . There are exceptions to the penalty, and the SECURE Act added as an exception the cost of birth or adoption of adoptee under 18 years old or disabled, up to $5,000 for a period of one year beginning on the date of birth or adoption .

The biggest impact of the SECURE Act is the partial elimination of stretch IRAs (the ability of a non-spouse designated beneficiary to choose a life expectancy payout over his or her actuarial life expectancy) . Beginning Janu-ary 1, 2020, only an “eligible designated beneficiary” may use the life expectancy payout method, with all other designated beneficiaries limited to a 10-year payout .

The 10-Year RuleCode Section 401(a)(9)(B)(ii) provides that when

there is no designated beneficiary, “the entire interest of the employee will be distributed within 5 years after the death of such employee .” For a beneficiary who does not qualify as a designated beneficiary, the five-year rule under Code Section 409(a)(9)(B)(ii) remains .

The SECURE Act substitutes 10 years for 5 years in Section 409(a)(9)(B)(ii),

A trust shall not constitute a qualified trust under this section unless the plan provides that, if an employee dies before the distribution of the employee’s inter-est is completed (regardless of whether distribution had begun prior to death), the entire interest of the employee will be distributed within 10 years after the death of such employee .

The new 10-year rule requires distribution to the designated beneficiary within 10 years after the death

of the participant without required annual distributions . The deadline for full distribu-tion is the 10th anniversary of the participant’s date of death, meaning that the designated beneficiary could wait and take the entire account balance at the end of the 10th anniver-sary (potentially extending the payout over 11 taxable years depending when in the year the participant died) .

The 10-year rule applies to both traditional and Roth IRAs, with full distribution re-quired by the 10th anniversary of the participant’s death . While the beneficiary of the Roth IRA may take distribu-tions during the 10-year period, the beneficiary is not required to do so as long as the account is fully distributed prior to the 10th anniversary, allowing for continued tax-free growth until full distribution .

The Basics of Beneficiary Designations: Pre- and Post-SECURE Act

Pre-SECURE, a “designated beneficiary” could stretch the benefits (and pay the tax) over the designated benefi-ciary’s actuarial life expectancy . The SECURE Act does not change the definition of a “designated beneficiary .”

The term “designated beneficiary” still means “any individual designated as a beneficiary by the employee .” Treas .Reg . §1 .401(a)(9)-4, A-1 provides that only a hu-man (an individual) may be a designated beneficiary . An estate does not have a life expectancy and may not be a

Patricia Shevy

Patricia J. Shevy is the founder of The Shevy Law Firm, LLC, of Albany, New York. Tricia focuses her practice exclusively in the areas of estate planning and administration and elder law/special needs planning.

Tricia routinely lectures regarding estate tax, long-term care and estate planning issues for parents of disabled children, as well as the unique issues of estate planning for non-traditional families and small busi-ness owners. Tricia also regularly lectures and writes for continuing legal education programs offered by the New York State Bar Association. She is an active com-mittee member of the New York State Bar Association and is also a member of the Albany County Bar Associa-tion and National Academy of Elder Law Attorneys.


designated beneficiary . However, if the participant names as the beneficiary “the residuary beneficiaries under my Will,” or “the residuary beneficiaries under my Revocable Trust,” this should suffice to establish them as designated beneficiaries if the residuary beneficiaries are restricted to identifiable individuals .

A “see-through” trust can qualify as a designated beneficiary . To qualify as a see-through trust for post-death distribution purposes, the trust must:

(1) be valid under state law or would be but for the fact that the trust does not have corpus;

(2) is irrevocable, or it becomes irrevocable upon the participant’s death;

(3) the trust beneficiaries are identifiable; and

(4) the required trust documentation has been provided to the IRA custodian no later than October 31st of the year following the year of the IRA owner’s death .

Once it is determined that the trust qualifies as a see-through trust and is therefore a designated beneficiary, how the distributions are made and taxed is based upon whether the see-through trust is a conduit or accumula-tion trust .

Under the SECURE Act, a conduit trust is still a conduit trust and an accumulation trust is still an accu-mulation trust . A conduit trust requires that all retirement account distributions made to the trust during the “con-duit” beneficiary’s lifetime be distributed to the conduit beneficiary outright and free from trust, almost immedi-ately after receipt by the trustees (subject only to deduc-tion of applicable expenses) . Pre-SECURE, the use of the conduit trust ensured that the distributions were made over the conduit beneficiary’s actuarial life expectancy with income tax paid by the beneficiary annually on the required minimum distribution . Post-SECURE, presum-ing that the beneficiary is not an eligible designated ben-eficiary, the 10-year rule will apply, and the beneficiary will receive all of the retirement account within 10 years of the participant’s death .

An accumulation trust allows the trustee to accumu-late retirement plan distributions within the trust during the initial beneficiary’s lifetime for possible later distri-bution to both the initial and presumptive remainder beneficiaries . Pre-SECURE, all beneficiaries (current and presumptive remainder) were considered for purposes of determining the eldest’s actuarial life expectancy for stretch purposes . Post-SECURE, the ages of the beneficia-ries is irrelevant, and the 10-year rule applies . However, if any beneficiary is not an individual, then the trust will not qualify as a see-through trust and the five-year rule applies .

Eligible Designated BeneficiariesCode Section 401(a)(9)(B)(iii) provides an exception

to the 10-year rule for “eligible designated beneficiaries” under Code Section 401(a)(9)(H), allowing “eligible des-ignated beneficiaries” to use the life expectancy payout . There are five categories of “eligible designated beneficia-ries”: the surviving spouse of the participant, the minor child of the participant, a disabled beneficiary, a chroni-cally ill beneficiary, and an individual who is not less than 10 years younger than the participant .

Surviving Spouse: The participant’s surviving spouse is an “eligible designated beneficiary .” The spou-sal roll-over rules are not affected by the SECURE Act . The surviving spouse still has the option of rolling over the inherited retirement benefits to the surviving spouse’s own IRA (with the benefits of waiting until the surviv-ing spouse has reached age 72 to begin taking required minimum distributions and naming new designated beneficiaries) .

A conduit trust for the sole benefit of the surviving spouse qualifies as an eligible designated beneficiary . However, a see-through accumulation trust for the benefit of the surviving spouse does not qualify as an eligible designated beneficiary, even if the surviving spouse is the sole lifetime beneficiary .

On the surviving spouse’s death, the 10-year rule applies (unless the beneficiary is an “eligible designated beneficiary”) .

Minor Child: A minor child of the participant quali-fies as an eligible designated beneficiary until the child achieves the age of majority . At that time, the 10-year rule applies . It is important to note that this exception only ap-plies to the participant’s minor child . The exception does not extend to grandchildren or other minor beneficiaries . There is no definition of “majority” within the SECURE Act . Unless the regulations later define “majority,” it is presumed that majority is reached when the child attains the age of majority in the child’s home state . New York Domestic Relations Law § 2 establishes the age of major-ity to be 18 years old in New York . The maximum age for distribution will be 28 years old .

A conduit trust for the participant’s minor child is treated the same as a minor child under the SECURE Act, but only until the child reaches the age of majority . Thereafter, the 10-year rule applies . Post-SECURE plan-ning could include a testamentary conduit trust for the benefit of a minor child, requiring life expectancy distri-bution payout over the minor’s actuarial life expectancy until the age of majority, understanding that once majority is reached, the payout will thereafter be made within the following 10 years .

An accumulation trust for the participant’s minor child does not qualify as an “eligible designated benefi-


(iii) requiring substantial supervision to protect such individual from threats to health and safety due to severe cognitive impairment .

Such term shall not include any individ-ual otherwise meeting the requirements of the preceding sentence unless within the preceding 12-month period a licensed health care practitioner has certified that such individual meets such requirements .

Code Section 7702(B)(c)(2)(B) lists the activities of daily living to include eating, toileting, transferring, bath-ing, dressing and continence . On the death of the chroni-cally ill individual, the 10-year rule applies .

Trusts for the disabled and chronically ill are granted further exception with respect to the “applicable multi-beneficiary trusts” rules . An “applicable multi-beneficiary trust” is a trust that has more than one beneficiary, all of the beneficiary of which are treated as designated ben-eficiaries for purposes of determining the distribution

period, and at least one of whom is an eligible designated beneficiary due to disability or chronic illness . Code Sec-tion 401(a)(9)(H)(v) .

If, under the terms of the trust document, the trust is required to be divided immediately upon the partici-pant’s death into separate trusts for each beneficiary, the payout rules shall be applied separately with respect to the portion of the disabled or chronically ill beneficiary’s portion . Code Section 401(a)(9)(H)(iv)(I) . The trusts for the non-disabled, non-chronically ill beneficiaries are subject to the 10-year rule .

Even if, under the terms of the trust document, the disabled or chronically ill beneficiary is not the “sole” beneficiary of the trust, if he or she is the sole life benefi-ciary, the life expectancy payout method is allowed . Based on this exception, an accumulation trust for a disabled beneficiary could get life expectancy payout treatment . However, the SECURE Act does not define over whose life expectancy payout is allowed (the disabled/chronically ill beneficiary or the eldest remainder beneficiary) .

Beneficiary Less Than 10 Years Younger: A desig-nated beneficiary who is less than 10 years younger than the participant is permitted to use the life expectancy

ciary” because the child is not considered the sole benefi-ciary of the trust even if the child is considered the sole lifetime beneficiary .

Disabled Designated Beneficiary: A designated beneficiary who is disabled within the meaning of Code Section 72(m)(7) qualifies as an eligible designated ben-eficiary . Qualification as disabled is determined as of the date of the participant’s death . A later occurring disability will not allow a conversion from the 10-year rule to a stretch . Code Section 72(m)(7) provides,

an individual shall be considered to be disabled if he is unable to engage in any substantial gainful activity by reason of any medically determinable physi-cal or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration . An Individual shall not be considered to be disabled unless he furnishes proof of the existence thereof in such form and manner as the Secretary may require .

An individual who has received a Social Security dis-ability determination will qualify as an eligible designat-ed beneficiary . On the death of the disabled individual, the 10-year rule applies .

Chronically Ill Beneficiary: A chronically ill benefi-ciary within Code Section 7702(B)(c)(2) qualifies as an eli-gible designated beneficiary . Qualification as chronically ill is determined as of the date of the participant’s death . Code Section 7702(B)(c)(2)(A) defines the term “chroni-cally ill individual” to mean

any individual who has been certified by a licensed health care practitioner as:

(i) being unable to perform (without substantial assistance from another individual) at least two activities of daily living for a period of at least 90 days due to a loss of functional capacity,

(ii) having a level of disability similar (as determined under regulations prescribed by the Secretary in consultation with the Secretary of Health and Human Services) to the level of disability described in clause (i), or

“There are five categories of eligible designated beneficiaries: the surviving spouse of the participant, the minor child of the participant, a disabled beneficiary, a chronically ill beneficiary, and an individual who is not less

than 10 years younger than the participant.”


age of an older remainder beneficiary) . Further, the use of the conduit trust required that the Trustee distribute the required minimum distribution to the beneficiary annu-ally upon receipt . In so requiring the annual distributions, a smaller amount was distributed to the beneficiary annu-ally, to be reported on the beneficiary’s personal income tax return at the beneficiary’s personal rate . Post-SECURE, this plan no longer works . The distributions to the benefi-ciary will be made over or at the expiration of the 10-year period, and the smaller distribution amounts previously calculated now grow exponentially, with full distribution after 10 years—not what the client was anticipating .

The balance between income tax planning with creditor protection and financial management must be reviewed with the client . It may be that the beneficiary requires creditor protection, and that income tax takes the back seat . The client may choose the use of an accumula-tion trust, knowing that the retirement account will now be distributed within 10 years (realistically at the 37% rate), but with the knowledge and confidence that the Trustee maintains control over the balance, maintaining creditor protection and financial management .

What Now?The eligible designated beneficiary rules have areas

open for interpretation . The SECURE Act does not indi-cate how it will apply to trusts with multiple beneficiaries . Some practitioners opine that if all of the beneficiaries of an accumulation trust are all eligible designated benefi-ciaries (some combination of participant’s spouse, partici-pant’s minor children, disabled/chronically ill, beneficia-ries within 10 years of participant’s age) that the 10-year rule will not apply until all of the beneficiaries have died . No current regulations provide an answer .

If your practice has included the use of conduit trusts as a tool for beneficiary designations, it is time to contact these clients so that they can be made aware of how the SECURE Act changes the plan . Clients should be made aware of both the tax consequences and the possibility of using an accumulation trust to ensure the beneficiary’s continuewd creditor protection . We hope to provide plan-ning strategies, including the use of life insurance and charitable remainder trusts, in the Summer Journal .

payout . Code Section 401(a)(9)(E)(ii)(V) . On the death of the beneficiary, the 10-year rule applies

Death of the Eligible Designated Beneficiary: Code Section 401(a)(9)(H)(iii) provides that the life expec-tancy payout “shall not apply to any beneficiary of such eligible designated beneficiary and the remainder of such portion shall be distributed within 10 years after the death of such eligible designated beneficiary .”

Income Tax Planning vs. Creditor ProtectionIncome tax planning for the beneficiary now becomes

paramount . In 2020, an individual does not reach the 37% highest income tax bracket until his or her income is $518,401 ($622,051 for married filing jointly) . Trusts reach the 37% tax rate at income totaling $12,951 .

Pre-SECURE, the stretch allowed the beneficiary to take distributions over actuarial life expectancy, paying tax on the distributions as they were made, taxed at the beneficiary’s personal rate . Post-SECURE, the beneficiary will need to analyze when to take the distributions, de-termining whether to take it all at the end of the 10-year period (allowing for continued tax deferral for as long as possible, but paying all the tax at once at a potentially higher rate), or taking it incrementally over the 10-year period (potentially paying tax at a lower rate with each distribution) .

Pre-SECURE, when planning for clients with signifi-cant retirement account balances, we routinely drafted lifetime creditor protected trusts for children and young-er generations to be funded with the retirement account balance on the client’s death, specifically drafted as sepa-rate conduit trusts for each beneficiary . The conduit trust ensured that the required distributions would be calcu-lated based on the age of the primary beneficiary (not the

“On the death of the eligible designated beneficiary, the

10-year rule applies.”


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Adventures in a Busy Elder Law/T&E OfficeA Comic Strip by Antony Eminowicz

Young Lawyers Upcoming 2020 EventsThe Elder Law and Special Needs Section’s Young Lawyer Membership Committee held a joint young lawyers

cocktail reception with the Trusts and Estates Section on Thursday, October 24th at the Gideon Putnam in Saratoga Springs . Thirty recently admitted attorneys met to network following the main Fall Meeting program .

Young and newly admitted attorneys should stay tuned for details on the next young lawyer event in the works, expected to include a wine tasting tour of Long Island Wine Country, with transportation provided from Westchester or New York City .

These events are part of ongoing outreach to build a stronger foundation for the younger and newer members of the Section by offering opportunities to meet each other, network, and build working relationships . The group also offers as-sistance for young lawyers who are interested in finding a mentor within the Section or committee placements .

For any questions, please contact Emily Kahn (EK@walsh-amicucci .com) or Kristen Casper (Kristen@thelawfirmal-bany .com) .





Upcoming Elder and Special Needs Law Section Meetings in 2020

July 16 - 19

The Elder and Special Needs Law Section Spring Meeting

The Equinox Resort, Manchester, Vermont

October 29 - 30

The Elder and Special Needs Law Section Fall Meeting

The Doubletree Hotel, Tarrytown, New York

ELDER LAW AND SPECIAL NEEDS SECTION

VISIT US ONLINE ATwww.nysba.org/Elder


Save the Dates


Q What did you want to be when you were younger?

A singer or a psychologist . It turns out my singing is best left to karaoke but my clients and their families can often bring out the inner therapist in me .

Q Where is your favorite place you have traveled to?

I love to travel, so it is hard to pick a favorite . I recent-ly traveled to Copenhagen, Denmark and was blown away by the charm of the city and the culinary scene!

Q Do you have any advice for young attorneys?

Raise your hand in a room full of people you are intimidated by or that you believe have more experi-ence than you — put yourself out there, you have something to contribute!

Q What are your hobbies or special interests?

Skiing . I recently tackled the mountain at Jackson Hole . I also enjoy wine tasting, trying new restau-rants, traveling, and SoulCycle .

Q Where are you from?

Port Jefferson, New York . It is on the North Shore of Long Island . But since college I’ve lived in New York City . I now live in downtown Brooklyn .

Q Tell me about your family.

I have six siblings—five sisters and one brother, and 12 nieces and nephews . We are basically the new age version of the Brady Bunch . My sister Robin and I are both attorneys at Burner Law Group, the firm my mom began 25 years ago!

Q Have you had any turning points in your life?

When I first graduated from law school, I was working in the litigation department at Dewey & LeBoeuf . I took time away from the firm to spend a year as a prosecutor in the Special Victims Unit at the Kings County District Attorney’s office . As I was about to return to my law firm, my mom broke her shoulder and my career took a sudden shift . Through my time taking care of her after surgery, I decided to switch gears and begin in the practice of elder law and am thrilled with the direction I decided to take .

Q What do you enjoy about practicing in the areas of Estate Planning and Elder Law?

I love my clients . Being able to learn about their concerns and help them problem solve is ex-tremely satisfying . I also enjoy that the practice is always changing and evolving, so I am continu-ally learning .

Q Tell me about a project or accomplishment that you consider to be the most signifi-cant in your career.

Building and expanding the Manhattan office of Burner Law Group over the past six years .

Member Spotlight: Britt BurnerBy Katy Carpenter


The duo from Farrell Fritz, Ilene Cooper and Joe LaFerlita, then took on the topic of administering estates and trusts to avoid litigation . Finishing off the day we had a lively panel of judges and attorneys talk about mediation instead of litigation . Hon . Rita Mella and Hon .Brandon Saul along with Daniel Weitz and Nancy Rudolf tackled this topic .

We wish to thank all speakers for their diligent efforts and acknowledge the support of our sponsors for this event: AMR Care Group; Empire Valuation Consultants; Grassi & Co .; Farrell Fritz; Midland Trust Company; MPI; NYSARC Trust Services; Orange Bank & Trust Company; Premier Home Health Care Services, Inc .; Quontic Bank and RDM Financial Group .

Aside from going back 100 years and listening to meaningful lectures, fun was had . Whether you enjoyed dinner and late evening gambling at the Canfield Casino, a tour of the Saratoga Battlefield National State Park, or perhaps a Saratoga mineral bath, Saratoga always remains a memorable experience . We wonder what it will be like 100 years from now!

Walter “Red” Smith, a famous 20th century sports-writer, once said that to get to Saratoga from New York City, “you drive north for about 175 miles, turn left on Union Avenue, and go back 100 years .” Attending the Fall program at the Gideon Putnam Resort, built by the founding Father of Saratoga, and visiting Saratoga in general, makes you feel like you went back 100 years . On the other hand, if you attended the substantive portion of our program, you would agree that the material was cut-ting edge . Congratulations to Tara Pleat and Rob Harper for crafting such an effective agenda and to our trusts and estates co-chairs, Nicole L . Clouthier and Frank T . Santoro, for rolling it out .

Our speakers were phenomenal . Their efforts to address the intersection of both practice areas produced stimulating dialogue . Katy Carpenter and Joanna Feld-man started our Thursday session with a tutorial on what every Trusts and Estates and Elder Law attorney needs to know about Powers of Attorney . Then we turned to William Keniry and Ian MacLean to talk about litigating Power of Attorney disputes .

One of the great highlights of the afternoon was Arlene Markarian’s lively discussion of the ADA’s view of elder abuse .

On Friday, Anthony Lamberti moderated a panel with Hon . Tanya R . Kennedy and Hon . Paul V . Morgan . I hope everyone “got” what they said as it related to con-tested Article 81 guardianships . Ira Salzman shared his wisdom about interstate guardianship practice . We then switched gears to learn about the New York Trust Code, presented by Professor Ira Bloom .

Then the infamous Bobs—Bob Abrams and Bob Freedman—provided our ethics portion of the day with the topic of representing a client with diminished capacity .

Fall 2019 Meeting SummaryJoint Meeting of the Elder Law & Special Needs and Trusts & Estates Law SectionsBy Ellyn S. Kravitz and Salvatore M. Di Costanzo


Elder Law and Special Needs Section Awards CeremonyAnnual Meeting 2020

Valerie Bogart honored as an advocate for the elderly and persons with disabilities, with Judie Grimaldi,

Former Chair, and Tara Anne Pleat, Chair

Hon. Peter J. Kelly, Queens Surrogate, Judicial Award, with Tara Anne Pleat, Chair

Hon. Brandon Sall, Westchester Surrogate, Friend of the Section, with Judie Grimaldi, Former Chair, and Tara Anne

Pleat, Chair


Q Where are you from?

Originally from Kiev, Ukraine . I arrived in the United States in 1992 . My family was granted passage to the United States as a result of work performed by a U .S . attorney and due to the efforts of human rights activists from England—they petitioned the Soviet Union to release my grandfather from the country . Initially, he was denied an exit visa by Soviet authorities because of his intimate knowledge of certain Soviet military secrets; he had security clearance as a radio engineer and was too familiar with certain technological developments that the Soviet Union was afraid to release abroad . After some uphill battles, my grandfather was granted permission to emigrate to the U .S . when George H .W . Bush gave Mikhail Gorbachev a list of 29 Soviet human rights cases and requested that they quickly be resolved . Fortunately, my grandfather’s case was included in that list .

I lived in Brooklyn until my junior year of high school and then moved to Queens . Now I live in New Jersey and work in New Jersey and New York .

Q Where is your favorite place you’ve traveled to?

While I’ve been to almost every Caribbean island, my favorite is St . Lucia . I went there on my hon-eymoon in 2016—it’s what I expect heaven to look like .

Q Why did you choose to practice in the areas of Estate Planning and Elder Law?

I completed my undergraduate studies in Baruch College, where I majored in finance and invest-ments . Coming into law school with a business background, I wanted to pursue a legal career that was somewhat related to my studies in business, tax and finance . Out of law school I worked for a personal injury attorney before joining my current firm almost five years ago .

It all fell into place when I began to witness the positive impact of my work on families and hav-ing clients of the firm label me as their trusted advisor . I couldn’t ask for a greater compliment .

Q Did you have a turning point in your career?

As far as a sudden change goes, it would be the end of the year 2018 when I became partner . I had to quickly learn how to work not just in the busi-ness, but on the business as well . From managing firm revenue effectively to making enough time for business networking, this change called for a very different set of priorities and skill sets .

Q What’s your favorite part about your job?

The Estate Planning and Elder Law practice is in constant transition and one can never get bored—there is always something new to learn . I love working with clients and handling the legal chal-lenges they face . This kind of work brings with it a great deal of satisfaction because in many instances legal issues can be resolved in a matter of months . Clients always appreciate expeditious results and with that, your hard work and commitment .

Q Tell me about an accomplishment that you consider to be the most significant in your career thus far.

Making partner and opening our second office in New Jersey—I always knew I wanted to utilize my admission to the New Jersey Bar .

New Member Spotlight: Kirill MuchnikBy Katy Carpenter


Q Where do you see yourself in five years?

In a bigger house with some kids running around and a busier practice which has expanded to include associates .

Q What did you want to be when you were younger?

A brain surgeon . It was probably because my mom was whispering in my ear that I should be a doctor ever since I can remember . I even spent a few semesters in a pre-med program in Baruch College, but I found that I enjoyed business law much more .

Q Tell me about your family.

My family are a very tight-knit unit . I’m very blessed to grow up in a home where I always felt loved and supported . I come from a family of engineers who continuously stress the importance of education and know how to have a good time . My parents are protective, kind and hardwork-ing . My grandpa is pure comedy and very easy to love . My little brother was my best man at my wedding and still is . My wife is my soul mate and simply the best . My Boxer dog named Onyx is my 105-pound ball of joy .

Q Are there hobbies you look forward to out-side of work and the law?

I am still trying to figure out the secret to open-ing up more hours for hobbies . If I do find the free time, I go to the gym and I enjoy movies, boxing events and traveling with my wife .

Q What is the best piece of advice you have received?

Not to be afraid to try new things . “Doubt kills more dreams than failure ever will .” Be confi-dent and celebrate your failures as much as your successes .

Q Is there anything else you want people to know about you?

I am bilingual as I speak Russian fluently . Also, my name is pronounced very different in Russian (“Key-reel Moochneek”) but when I moved to New York, my third grade teacher couldn’t pro-nounce it so it’s been her way ever since (“Kur-rill Much-nick”) .

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As will be explained in the ensuing paragraphs, the NY UPHPA addresses deficiencies in the existing partition law to protect these heirs from preda-tory practices by codifying such property as “heirs prop-erty,” balancing the process by which such property is partitioned, and ensuring the true value of the property is realized if a sale is inevitable .

How does the New York Uniform Partition Act Help a Co-Owner Who Is Forced to Sell His Home?

At the outset, effective December 6, 2019, if a parti-tion action is commenced in New York State, the court must first determine whether the property that is the sub-ject of the partition qualifies for treatment under RPAPL § 993 . In order to qualify, the property must be identified as “heirs property .”3 “Heirs property” is defined in the statute .4 If the property qualifies as “heirs property,” then the partition proceeding will proceed under the auspices of RPAPL § 993 .5

Some of the benefits of proceeding under RPAPL § 993 include:

1. Increased Transparency in the Legal ProcessThe new statute offers greater transparency and af-

fords the co-tenants more opportunities to become aware of the partition action, aware of their rights in the process, and offers additional opportunities for involvement in the process .

Specifically, the court may require the plaintiff who commenced the partition action to post and maintain a conspicuous sign on the property that a partition action is pending, the name of the court where the action is be-ing litigated, and the address of the property .6 The court

Mariya, age 93, died five years ago . At the time of her death, she was survived by three daughters, Amy (“A”), Beth (“B”), and Claire (“C”) . The sole asset of Mariya’s es-tate was Mariya’s brownstone in Brooklyn (the “Home”) valued at well over $1,000,000 . Since the sole asset of the estate was the Home, it passed by operation of law to Mariya’s heirs .1

A and B, now in their early 60s, lived with Mariya their entire life and planned to continue to live in the Home . A is developmentally disabled . (Mariya was A’s court appointed Article 17-A guardian prior to her pass-ing) . B took care of A during the later years of Mariya’s lifetime and now, will continue to take care of A, follow-ing Mariya’s death .

C is in her mid-50s and lives in Queens . C has a drug problem and is believed to have certain mental issues, which have never officially been diagnosed . Last year, an investor (“Investor”) targeted C about purchasing her one-third fractional interest in the Home . C, vulnerable to exploitation and in dire need of money, did not appreci-ate the true value of her interest in the property or the consequences of her actions . Realizing C’s vulnerability, Investor preyed upon her and purchased her interest in the Home for the paltry sum of $50,000 . Following the Investor’s swift purchase, the Investor contacted A and B and advised that he wanted the Home sold . When B refused, the Investor commenced a partition2 action in New York State Supreme Court .

This story, though painfully true, is not uncommon in New York, and, unfortunately, despite the efforts of some sympathetic judges to slow the partition process down, still ended poorly for both A and B because they were forced to sell their home and relocate . Moreover, A and B were forced to pay capital gains taxes on the appreciation of the Home for the five years following Mariya’s death . Given their limited means and rising New York City prices, they were unable to relocate to a similar setting and instead, found themselves residing in a worse neigh-borhood in another borough .

Recognizing that investors are increasingly targeting the vulnerable, which typically include the house rich, cash poor, elderly and disabled, and further recognizing that these stories of abuse and exploitation are rampant, in December 2019 the New York legislature enacted the New York Uniform Partition Act (NY UPHPA), codified as RPAPL § 993 . Indeed, RPAPL § 993, enacted Decem-ber 6, 2019, is intended to protect co-owners of inherited property from exploitation .

New York’s Uniform Partition of Heirs Property Act Paves the Way for Heirs to Attempt to Remain in Their HomesBy Regina Kiperman

Regina Kiperman

Regina Kiperman, Esq., is the managing attorney at RK Law PC, in New York City. Her practice pre-dominantly includes Estate Planning, Probate, Estate Litigation, Guardianship Litigation, Partition Actions, Kinship Hearings, and Elder Law. Special thanks to Bret Cahn, Esq., for his meticulous editing.


can also require the plaintiff to indicate the name of the plaintiff and the known defendants .7 Returning to our above example, if the Investor is unable to serve A and B and wants an order of publication, then the Investor will be required to post the sign on the Home so that A and B can see it .

In addition, after the request for judicial intervention on the partition action is filed, the court will hold a man-datory settlement conference .8 The court will give notice to all of the other known co-tenants of the property of the fact that a partition action is pending and will provide the time and place for the mandatory conference to oc-cur .9 The new law directs that plaintiff also post a notice of the time and date for the conference in a conspicuous location on the property so that the other co-tenants can learn about the partition and have an opportunity to come to court .10

Rather than operating in the blind, during the man-datory conference, the court will

(i) advise the defendant of the require-ment to answer the complaint, (ii) explain what is required to answer a complaint in court, (iii) advise that the ability to contest the partition action and assert defenses may be lost if an answer is not interposed, (iv) set a deadline for any co-tenants requesting partition by sale, and (v) provide information about available resources for legal assistance .11

In addition to providing defendants with informa-tion about their rights, the court will now order an ap-praisal of the property unless the parties have previously agreed on the property value .12 The court will have an independent appraisal conducted to avoid the issue of competing appraisals or inflated or undervalued apprais-als . The purpose behind this process is to apprise the co-tenants of the value of their inherited assets so they may make informed decisions .

2. Attempts to Partition in Kind Rather Than Jump to Partition by Sale

Presently, courts readily authorize a partition by sale because they see few ways to practically divide the property otherwise . In light of RPAPL § 993, courts must now consider a variety of factors in determining whether to partition by sale, or, whether a partition in kind can be

accomplished . Some of the factors that the Court should consider, as set forth in RPAPL § 993(9)(a), include:

(i) whether the heirs property practicably can be divided among the co-tenants;

(ii) whether partition in kind would apportion the property in such a way that the aggregate fair market value of the parcels resulting from the division would be materially less than the amount reasonably expected to be realized if the property were sold as a whole, taking into account the conditions under which a court-ordered sale likely would occur;

(iii) evidence of the collective duration of ownership or possession of the property by a co-tenant and one or more predeces-

sors in title or predecessors in possession to the co-tenant who are or were relatives of the co-tenant or each other;

(iv) a co-tenant’s sentimental attachment to the property, including any attachment arising because the property has ancestral or other unique or special value to the co-tenant;

(v) the lawful use being made of the property by a resident or other co-tenant and the degree to which any such co-tenant would be harmed if the co-tenant could not continue the same use of the property;

(vi) the degree to which the co-tenants have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintain-ing ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property;

(vii) the price, terms and conditions of the acquisition of the co-tenant’s interest in the property if such co-tenant is not a relative of the person from whom it acquired his or her interest; and

(viii) any other relevant factor .

“The court will have an independent appraisal conducted to avoid the issue of competing appraisals or inflated or undervalued appraisals.”


This stated preference towards partition in kind allows co-tenants greater latitude in remaining in their home and should hopefully disincentivize speculators from trying to break apart heir’s property .

3. Open Market Sale in Lieu of AuctionUnder current standard partition practices, if the

property is ordered to be sold, then the sale happens at an auction on the “courthouse steps .” Such a mechanism is not said to be a true sale on the open market because only a certain type of person shops at these auctions . Under RPAPL § 993, once the sale is judicially ordered, the prop-erty will be given to a broker to sell on the open market .13 The parties will agree on the broker and the commission to be paid to the broker . The sale on the open market is to maximize the value of the property .

4. Heirs Can Have a Chance to Acquire Partial Pieces of the Property.

Under the new law, any co-owner of the property shall be given the option to first buy out the partitioning party’s share for fair market value of that share .14

5. Sale as Truly a Last ResortRPAPL § 993 attempts to de-prioritize the sale . In-

stead, the statute puts more preference on negotiations, attempts at partial buyouts, attempts at partition in kind, and directs for sale only as the last resort . Going back to our example, even though the Investor acquired a frac-tional interest, under the new RPAPL § 993, theoretically A and B could have figured out a way to remain in their home .

While there is no real way to prevent a real estate investor from preying on an elderly or disabled individ-ual, RPAPL § 993 creates additional protections to allow New Yorkers who have inherited property to know their rights, make informed decisions regarding their interest in the property, and be able to remain in their homes . This new statute also gives the elder law and special needs planning bar a valuable tool to assist our clients remain in their long-term residences .

Endnotes1 . In re Grace, 62 Misc . 2d 51, 308 N .Y .S .2d 33 (Sur . Ct . Nassau

Co . 1970); In re Newton, 206 Misc . 1047, 135 N .Y .S .2d 197 (Sur . Ct . Suffolk Co . 1954); cf. In re Zahoudanis, 205 A .D .2d 547, 612 N .Y .S .2d 667 (2d Dep’t 1994) .

2 . Partition is a legal proceeding among tenants in common or joint tenants who own a property . It may result in actual partition or division of the property into separate parcels, each titled in the name of an individual cotenant according to the co-tenants’ respective interests (“partition in kind”), or, alternatively where actual partition would be prejudicial to the co-tenants, by judicial sale of the entire property and division of the net proceeds among the co-tenants according to their respective interests (“partition by sale”) . See 24 N .Y . Jur . 2d Cotenancy and Partition §§ 116, 117, 210, 216 and 217 .

3 . NY CLS RPAPL § 993(3) .

4 . “Heirs property” means real property held in tenancy in common which satisfies all of the following requirements as of the filing of a partition action: (i) there is no agreement in a record binding all of the co-tenants which governs the partition of the property; (ii) any of the co-tenants acquired title from a relative, whether living or deceased; and (iii) any of the following applies:

(A) 20% or more of the interests are held by co-tenants who are relatives;

(B) 20% or more of the interests are held by an indi-vidual who acquired title from a relative, whether living or deceased;

(C) 20% or more of the co-tenants are relatives of each other; or

(D) Any co-tenant who acquired title from a relative resides in the property .

5 . Id.

6 . Id. at 4(b) .

7 . Id.

8 . Id. at 5(b) .

9 . Id.

10 . Id.

11 . Id. at 5(d) .

12 . Id. at 6(d) .

13 . Id. at 10(b) .

14 . Id, at 7(b) .

Estate Planning and Will Drafting in New YorkEditor-in-Chief Michael E. O’Connor, Esq.Costello, Cooney & Fearon, PLLC Syracuse, NY


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Contents at a Glance Estate Planning Overview

Federal Estate and Gift Taxation: An Overview

New York Estate and Gift Taxes

Fundamentals of Will Drafting

Marital Deduction/Credit Shelter Drafting

Revocable Trusts

Lifetime Gifts and Trusts for Minors

Tax, Retirement, Medicaid, Estate and Other Planning Issues

Estate Planning with Life Insurance

Dealing with Second or Troubled Marriages

Planning for Client Incapacity

Long-Term Care Insurance in New York

Practice Development and Ethical Issues

Product Description

Estate planning is a diverse, challenging and sophisticated area of practice that requires the technical skills of a tax at-torney; a strong understanding of business, real property and decedents’ estate law; and the sensitivity and caring of a personal adviser. Estate planning is much more than will drafting - it is a well-recognized specialty that is a prominent part of the legal profession.

Written and edited by experienced practitioners, this com-prehensive book is recognized as one of the leading refer-ences available to New York attorneys involved with estate planning. The step-by-step coverage in Estate Planning and Will Drafting in New York is a great resource for novice as well as experienced practitioners. Especially useful are many “real world” examples, practice tips and sample forms. In-cludes Downloadable Forms.


The common law of spendthrift trusts was codi-fied in New York and makes all property while held in trust for a judgment debtor exempt from satisfaction of a money judgment where the trust was created by, or the funds came from, someone other than the judgment debtor .4

The statute has an excep-tion designed to avoid abuse of the law aimed to frustrate the beneficiary’s existing or imminent creditors . Additions to the trust are not exempt if made within 90 days of interposition of the claim on which the judgment was entered or that are deemed void-able as a fraudulent transaction .5 A fraudulent conveyance is one made with an intent to defraud creditors, con-structive evidence of which is that it renders the person insolvent .6

The law specifically makes all retirement accounts (in-cluding IRA, 401[k], 403[b], etc .) spendthrift and exempt from collection .7 The exemption for retirement accounts does not include inherited or beneficiary retirement accounts, that is, retirement accounts received from a parent or other donor by way of beneficiary designation .8 Since inherited retirement accounts are not on their own spendthrift, it is common to direct the retirement account to a spendthrift trust for the benefit of the beneficiary rather than to the beneficiary outright . This will keep the retirement account principal and income protected within the spendthrift trust . Special “conduit” language in the spendthrift trust can ensure that the retirement account required distribution schedule is “stretched” as long as possible, to the extent permitted by the existing law .9 Under the SECURE Act, the stretch remains available only for eligible designated beneficiaries .

To what extent is a beneficiary’s trust fund available to his or her creditors? Most elder law attorneys are very well versed in how trusts can be used to protect assets from claims by Medicaid, but it has been noticed, at least in my own experience, that the broader rules regarding asset protection and creditor access to funds in trust are not as well understood . A deeper appreciation of these rules can help elder law attorneys to offer better and more sound, cohesive advice to their clients . It can allow a synthesis of understanding across differing areas of the law that can be a value-added service for any elder law attorney .

Asset protection goes right to the heart of trust law and is where estate planning and debtor/creditor laws cross . Most people want to shield the inheritance for their children from creditors and adverse claims and keep the inheritance intact and earning income as long as possible . Others go further and want to shield assets from their own creditors including potential medical or nursing home debt . The law, however, is not uniformly applied in these various scenarios, so it is incumbent on one to learn and know the nuances of asset protection through the use of trusts .

There are many rules and competing interests at play . The main tension is between the policy of preserving a person’s right to dispose of his or her property as he or she sees fit with the competing rights of creditors .1 As the law has developed in New York, the freedom of disposi-tion generally wins out, with a few exceptions . It is also important to note, however, which party is trying to achieve asset protection . The law does not tend to allow a person to avoid his or her own creditors, but it is more lenient in allowing a donor to protect the funds the donor leaves for his or her beneficiaries from the beneficiaries’ creditors .

It is the general public policy of the state to enable a person to create a trust to protect a beneficiary from the beneficiary’s own spendthrift tendencies as well as the beneficiary’s creditors .2 Those in favor of spendthrift trusts argue that it is desirable for the trust creators to be allowed to provide protection from life’s hardships for their friends and relatives who may for one reason or another be unable to earn a living, or to preserve and keep their property, or who may meet hardships due to their own mistakes or misfortunes .3 That is not to say spendthrift trusts are only for spendthrifts, minors and those down on their luck, but also for other able-bodied individuals who can pay their debts but could benefit from increased asset protection .

Asset Protection with Trusts—Testing the LimitsBy James Yastion

James Yastion

JAmes G. yAstiOn established his firm in 2011. James represents both individuals, businesses, and not-for-profits in a wide range of legal disputes and transactions. James is a member of the New York State Bar Associa-tion and the Elder Law and Special Needs Planning Sec-tion of the New York State Bar Association.

James is currently a Board Member and is Le-gal Counsel for the New Paltz Regional Chamber of Commerce.


grantor relinquishes any interest in the principal of the assets distributed to the trust . Such trusts usually have income payable to the grantor of the trust, but insulate the principal from potential long-term care expenses otherwise covered by Medicaid . The operative language in the trust is that the grantor and grantor’s spouse have no access to principal and, as such, their creditors will not either .

One exemption often utilized by spouses looking to protect each other from long-term care costs down the road is called a trigger trust .14 Under the rule, the first spouse to die can create a trust in his or her last will and testament that, by its terms, will convert to a supplemen-tal needs trust if and when the grantor’s spouse needs long-term care nursing services; provided that the trust meets the requirements of Social Services Law § 366(b)(2) and the regulations implementing such clauses . Even though the trigger trust is for the benefit of a spouse, and not the trust creator him or herself, spouses are seen as the same when it comes to spendthrift law and asset protec-tion, so it marks a notable exception to the rule .

Another often utilized exception is the self-settled supplemental needs trust .15 Such a trust can be created by an individual under the age of 65 with proceeds of an inheritance, personal injury settlement or other monies to qualify for Medicaid without a five-year penalty period . These trusts have various restrictions on when they can be used and the terms; however, they represent another important exception to the rule that one cannot make a trust spendthrift as to one’s own creditors .

Also, unless the trust prohibits it, a trustee can with-draw principal to pay the grantor’s tax liability on trust income, if any, without opening up the principal to the grantor’s creditors .16

Finally, asset protection and protection from credi-tors should be discussed in the context of powers of appointment . A power of appointment is a very useful and flexible tool for estate planners to give beneficiaries rights to control the beneficial enjoyment of assets held in trust . In application, the beneficiary holding a power of appointment can direct the distribution of a trust fund to other beneficiaries upon the happening of an event such as the death of the holder . A common circumstance where a power of appointment would be exercised is in the last will of the holder directing the distribution of certain as-sets to a beneficiary upon the death of the holder .

Property over which a beneficiary has a general power of appointment is available to the creditors of that beneficiary if and upon it being exercisable .17 A power is general when it can be exercised in anyone’s favor includ-ing the beneficiary him- or herself or the spouse of the beneficiary . Assets become available when the power is exercisable, so if it is effective on death of an individual, it is when the person dies . An exception would be where the power is non-general, that is where it is restricted to

Income from a spendthrift trust is treated specifically and with more layers . Since 1973, a beneficiary’s income interest in a trust is inalienable and spendthrift unless the instrument expressly allows it .10 In other words, income earned within a trust cannot be transferred or pledged to others but can only be used by and for the beneficiary . As a result, the income is shielded from the beneficiaries’ creditors . This restriction is loosened somewhat in that an income beneficiary can transfer or assign income over $10,000 in any year to his or her spouse, issue, ances-tors, brothers, sisters, uncles, aunts, nephews or nieces, unless the instrument prohibits it . The restrictions of up to $10,000 do not apply to the extent that the beneficiary is legally obligated to support others such as a spouse or children .

Regarding the balancing of interests, the law allows creditors to access a certain amount of income . One stat-ute allows a creditor to access 10% of trust income .11 An-other statute allows a creditor to attach income in excess

of what is necessary for education and support, unless there is a valid direction to accumulate income that is not distributed .12 Courts have been at odds as to whether to look at other sources of income to determine what is nec-essary for support . To avoid this result, the instrument can include a clause to direct that undistributed income be accumulated . This will avoid this section’s application and should generally be used .

It is important to reiterate that the spendthrift rules apply to a beneficiary’s creditors as opposed to the trust grantor or creator’s creditors . The rules do not give a person carte blanche to create a trust for his or her own benefit to avoid existing or subsequent creditors .13 Since 1787, a person cannot avoid present or future creditors by placing his or her property in trust for his or her own benefit .

As is often the case, there are a number of very im-portant exceptions to this rule . The first is not necessarily an exception but a distinction, that is, where the trust is not for the benefit of the grantor, then it can be effec-tive to avoid the creditors of the grantor . The Irrevocable Medicaid Asset Protection Trust is an example where the

“The main tension is between the policy of preserving a person’s

right to dispose of his or her prop-erty as he or she sees fit with the competing rights of creditors.”



certain individuals other than the beneficiary, the ben-eficiary’s estate, the beneficiary’s creditors or the credi-tors of the beneficiary’s estate; or if it can only be used for the beneficiary’s health, education, maintenance and support .18 In these cases, the fund is not available to creditors .

Finally, how much power should we give a benefi-ciary over the disposition of his or her trust fund in light of the spendthrift protections we want to give? In other words, what latitude is there to allow a beneficiary to be his or her own trustee without deeming the trust fund a part of his or her estate? This relates to a general power of appointment and making sure the trustee/beneficiary’s access is not deemed a general power of appointment . The use of a savings clause could address this issue to provide that such a trustee may not exercise his or her discretion if to do so would be deemed a general power of appointment . Another way to deal with this situa-tion is to limit the power by only permitting the exercise of discretion to meet an ascertainable standard such as health, education, maintenance and support or to re-serve decisions on distributions to the a non-beneficiary co-trustee .

Trusts are extremely valuable tools to employ on behalf of clients looking for asset protection, but they do have their limits . Asset protection is a wide-ranging field and the above only scratches the surface of the issues in-volved . That said, it is important for every elder law and estate planning attorney to have a working knowledge of the relevant statutes and cases so as to serve their client’s better .

Endnotes1 . N .Y . Est . Powers & Trusts Law § 7-3 .1 (McKinney) .

2 . General spendthrift law was articulated in old cases as follows: “The restraint on the alienation of the right to income [and principal] from trusts **** represents a declaration of the public policy of the state . Its purpose was to enable a testator to protect the beneficiary *** from his own improvidence .” Helmsley-Spear, Inc. v. Winter, 101 Misc . 2d 17, 19–20, 420 N .Y .S .2d 599, 600 (Sup . Ct . 1979) .

3 . § 222 .Spendthrift trusts in the United States, Bogert’s The Law of Trusts and Trustees .

4 . N .Y . CPLR 5205(c)(1) (McKinney) .


6 . N .Y . Debt . & Cred . Law § 276 (McKinney) .


8 . In re Todd, No . 15-11083 (Bankr . NDNY 3/23/2018) U .S . Banktruptcy Court for Northern District held that debtor’s inherited individual IRA is not exempt from creditors under N .Y . law .

9 . See SECURE Act, which requires most non-spouse IRA and retirement plan beneficiaries to drain inherited accounts within 10 years after the account owner’s death .

10 . See EPTL 7-1 .5 .

11 . See CPLR 5205(5) . This exception does not include 10% of an IRA whose income is totally exempt .

12 . See EPTL 7-3 .4 .

13 . See EPTL 7-3 .1 .

14 . EPTL 7-3 .1(c)w .

15 . Social Services Law 366(b)(2)(b)(ii) .

16 . EPTL 7-1 .11 .

17 . EPTL 10-7 .2 .

18 . 26 U .S .C . § 2041 .

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Elder and Special Needs Law JournalLooking for past issues?


Tales from the Trenches By Christine Mooney and Linda Redlisky

If you believe in the predictions of Staten Island Mel, or the infamous Punxsutawney Phil, then it appears that we should be wishing you a “Happy Spring”; however, without the crystal ball, we just have to wait and see! If you are upstate in Otsego County, or downstate in New York County, the tales of predictions gone wrong are all too plentiful .

The O & J Says It All As an Article 81 guardian you are charged with mar-

shaling the assets of the incapacitated person (IP) . Upon presentation of a certified Commission and Order, and lately a wait of several weeks and months, a financial in-stitution will permit you to open an account . Not so fast . . . in two recent cases, the financial institution said, “No, no, no!” The officer at Bank A indicates that the Order and Judgment (“O & J”), with the Judge’s signature are pages 1-18; however, the little print on the upper right hand corner says, “1 of 43, where are the rest of the pag-es?” Guardian, thinks, hmmm, the last page of the Order signed by the Judge is all I need . . . . Wrong . In two recent guardianships, at two different financial institu-tions, the legal department requested copies of the entire scanned document, all 43 pages in one action and 142 in another . The financial institutions in both cases were clear that without all the pages indicated on the scan by the county clerk, there would be no account . Guardians and fiduciaries should be aware that presenting just the O & J may no longer be enough for a financial institu-tion . Skip ahead, over $75 later in additional copies, and three more weeks, the bank officer says, “What is all of this stuff: affidavits, affirmations, we don’t need this!” The answer was, yes they did; legal wanted to see all the pages, inclusive of the additional documents . Mission complete? Not quite, keep reading…

Next question, does your grandmother have iden-tification? After a long explanation that the IP is not a family member, the bank still wanted some form of identification from “my grandmother .” She does not have any: no Social Security card, no driver’s license, no passport . The bank officer cannot understand that the IP was discharged to the nursing home with no identifying documents . As a guardian it can be incredibly difficult to open guardianship accounts for an IP under the shifting policies, bank personnel changes and the push towards all things digital .

Ensure when opening the account if the IP has some form of identification that you provide a copy to the financial institution . At the very least, you could apply

to the Social Security Administration for a new card or request a birth certificate (if you can ascertain where the IP was born) .

Mayday MaydayAccording to Merriam-Webster’s dictionary, May-

day is an internationally recognized radio word to signal distress . It is the phonetic equivalent of “m’aidez,” which is French for “help me .” It is fitting then, that a property guardian’s annual account is due in the month of May, as many of us burn the midnight oil to ensure the timely fil-ing of our annual accounts . But the “help me” theme also relates to the ever-increasing vigilance we fiduciaries must exercise during a time where identity theft and account compromises are common occurrences . Lastly, be mindful of the Prudent Investor Standard that is the overarching principle applied to our investment decisions—getting help from the right professionals is critical .

Over the years, we have developed systems and procedures that not only reduce the stress of completing timely accountings, but also have ensured protection of our wards’ funds during a time where fraud and account breaches are rampant .

The first recommendation is to choose the institution wisely . We all have spent years cultivating relationships and educating institutions as to our fiduciary duties and how they must be an active partner to help us discharge our duties . Just because you have your personal account at ABC institution doesn’t mean it has the most experi-ence with fiduciary accounts . Ask your colleagues, in-terview various bank/institutional managers and make the decision based on your level of confidence in their competence . Several years ago, the regional manager of a large bank congratulated me on being such a “pest,”

Christine Mooney Linda Redlisky

https://www.merriam-webster.com/dictionary/mayday

https://www.merriam-webster.com/dictionary/mayday


Christine Mooney is a Professor at the City University of New York. Professor Mooney is an attorney licensed to practice law in the state of New York. She is a trained instructor for the National Science Foundation I-Corps program and the founder of the Community College Innovation Challenge at the City University of New York. She concurrent-ly serves as the Co-Pi of a grant from the National Science Foundation for the CUNY I-Corps program. She also serves as a certified arbitrator for the Financial Industry Regulatory Authority (FINRA).

Linda Redlisky is a partner at Rafferty & Redlisky, LLP, concentrating in elder law, including Medicaid planning and guardianship matters. She routinely is appointed by the court to serve as Court Evaluator, Guardian and Counsel to the Alleged Incapacitated Person in complex matters involving turnover and surcharge proceedings. She is a mem-ber of the Executive Committee of the Elder Law and Special Needs Section of the New York State Bar Association, chair of the Client and Consumer Issues subcommittee, and an active member of the Section on Women in Law. She can be reached at [email protected].

When in the branch, I was advised that in order to permit various recurring ACH payments and payroll, they have to “key in individual notes” and hope that the back office will notice it when the checks and ACHs are presented . The alternative was for me to authorize the release of the hold on the account and sign a release in the event the account was compromised again (which they wanted me to draft) and hope for the best . I then closed the accounts, re-opened them at Bank A, and learned a lesson .

While it may seem counterintuitive, electronic ac-cess is the best line of defense . You or your office should be reviewing each of your ward’s accounts online on a weekly basis at a minimum . It is recommended that when you establish your username and passwords, use a pass-word manager/generator with heightened encryption options . On a monthly basis, print statements and negoti-ated checks from each financial institution and file them appropriately, cross referenced with any receipts you may need so that when you start your accountings, everything is organized and ready for May Day . Monitor and review the brokerage accounts, IRAs, annuities and other invest-ment accounts as well . While we may choose managed accounts as a further layer of protection for our ward, we nonetheless remain responsible for the portfolio . Best practices dictate keeping the opening paperwork relating to your ward’s income and growth objectives as well as scheduling quarterly reviews with the investment advisor . Keep contemporaneous notes as to what was discussed and steps that were recommended by the advisor, espe-cially if the market is unstable and/or you were advised to change investments in any substantial way . This will help protect your ward’s investments as well as protect you from any Monday morning quarterbacks .

Lastly, MHL § 81 .21(a) permits a guardian to invest funds of the incapacitated person as permitted by the Prudent Investment Act embodied in EPTL 11-2 .3(e) . The guardian must “exercise reasonable care, skill and cau-tion to make and implement investment and manage-ment decisions as a prudent investor would for the entire portfolio, taking into account the purpose and terms and provisions of the governing instrument .” EPTL 11-2 .3 .(b)(2), Matter of Janes, 90 N .Y .2d 41, 50 [1997] . “The prudent

that I caused the establishment to create a “guardianship orders processing unit .” Victory!

Some things to consider when choosing where to entrust your ward’s funds: if your bank cannot open a guardianship account within two (2) days after you pres-ent a certified Order and Judgment and Commission, you are at the wrong bank . If you are told you cannot marshal an account at a bank because there is a Power of Attor-ney (POA) designation on an account, even though the Order and Judgment specifically revokes the POA, this institution’s team has a fundamental lack of understand-ing of guardianship orders that will plague you later on . Furthermore, if the institution refuses to establish online access for guardianship accounts, change institutions .

In fact, we believe the single most important feature in an institution is how it responds when your ward’s account is compromised . Before you establish so much as a checking account, understand what fraud detec-tion systems the institution has in place, how they reach the authorized representative, how quickly the ward’s funds can be refunded, and how they permit authorized payroll, automated clearing house payments (ACH) or electronic debits to continue until you can establish a new account .

For example, most of the guardianship operating accounts (checking) are maintained with Bank A . On July 25th, I was notified by telephone and e-mail that two of my nine guardianship accounts were compromised . I went into the branch the same day, completed a claim form with the banker online in real time, and the funds were returned within three business days . While the account was frozen, Bank A had the capability of permit-ting specific payments to continue . The process was not simply a “note on the file” but rather a coded solution as per its back-end operations . I also took the cautionary step of closing all of the accounts . On the other hand, just weeks before, on July 2nd, Bank B called just my home telephone (who has a home telephone?) not my office number or my cell phone, nor did they e-mail or otherwise attempt to contact me . Seven days later, my as-sistant discovered the unauthorized withdrawals during her routine weekly review of the guardianship accounts .


investor rule requires a standard of conduct, not out-come or performance .” EPTL 11-2 .3 .(b)(1) . “While a court should not view each act or omission aided or enlight-ened by hindsight, a court may, nevertheless, examine the fiduciary’s conduct over the entire course of the invest-ment in determining whether it has acted prudently .” In re Janes at 50; see also In re Estate of Atkinson 148 A .D .2d 329 [3rd Dep’t 1989] . I have been criticized by some examiners for using managed accounts over self-directed accounts, citing costs to the ward’s estate . Courts con-sistently have supported the decision to have fiduciary accounts professionally managed . I am not a professional money manager nor do I possess any training relating to investments . Get help . Use reputable financial institutions, banks that are FDIC insured,1 and if you manage a sub-stantial multi-million dollar estate, it is wise to consider spreading the management of the wealth over several financial institutions .2

Endnotes1 . The Federal Deposit Insurance Corporation (FDIC) is an

independent agency of the U .S . government that protects you against loss of deposit if your bank or thrift institution is FDIC insured . Eligible bank accounts are insured up to $250,000 for principal and interest .

2 . Of course, you must consider the increased costs associated with this strategy because management fees decrease when the portfolio is larger .

If you have written an article you would like considered for publication, or have an idea for

one, please contact Co-Editors:

Katy Carpenter Wilcenski & Pleat PLLC

5 Emma Lane Clifton Park, NY 12065

kcarpenter @wplawny.com

Patricia J. Shevy

The Shevy Law Firm, LLC 5 Washington Square

Albany, NY 12205 patriciashevy

@shevylaw.com

Articles should be submitted in electronic document format (pdfs are NOT acceptable),

along with biographical information.


REQUEST FOR ARTICLES

In my annual accountings for 2019 relating to my com-promised accounts, the narrative is that I found the breach because of my diligence, that I chose a bank equally as diligent in its fraud detection, and that the only harm was the time and inconvenience incurred by me to rectify the situation .

https://www.investopedia.com/terms/f/fdic.asp


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relevance of your membership.

As a New York State Bar Association member, your support helps make us the largest voluntary state bar association in the country and gives us

credibility to speak as a unified voice on important issues that impact the profession.

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Pamela McDevittExecutive Director


Financial Planning and Investments Ronald A . Fatoullah Ronald Fatoullah & Associates 60 Cutter Mill Road, Suite 507 Great Neck, NY 11021 rfatoullah@fatoullahlaw .com

David R . Okrent The Law Offices of David R . Okrent 33 Walt Whitman Road, Suite 137 Huntington Station, NY 11746-3627 Dave@okrentlaw .com

Guardianship Elizabeth Anne Adinolfi Phillips Nizer LLP 485 Lexington Avenue, 14th Floor New York, NY 10017 eadinolfi@phillipsnizer .com

Ira Salzman Goldfarb Abrandt Salzman & Kutzin LLP 350 Fifth Avenue Suite 4310 New York, NY 10118 Salzman@Seniorlaw .com

Health Care Issues Moriah Rachel Adamo Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP 3 Dakota Drive, Suite 300 New Hyde Park, NY 11042 madamo@abramslaw .com

David Ian Kronenberg Goldfarb Abrandt Salzman & Kutzin, LLP 350 Fifth Avenue, Suite 4310 New York, NY 10118-1190 kronenberg@seniorlaw .com

Legal Education Judith D . Grimaldi Grimaldi & Yeung, LLP 9201 4th Avenue, 6th Floor Brooklyn, NY 11209-7006 Jgrimaldi@gylawny .com Martin Hersh Law Offices of Martin Hersh P .O . Box 567 Liberty, NY 12754 elder .law@verizon .net

Section Committees and ChairsClient and Consumer Issues Patricia L . Angley Legal Services of the Hudson Valley 90 Maple Avenue White Plains, NY 10601 pangley@lshv .org

Linda A . Redlisky Rafferty & Redlisky, LLP 438 Fifth Avenue, 1st Floor Pelham, NY 10803 redlisky@randrlegal .com

Diversity Kirill Muchnik Johnson, Langworthy & Muchnik, PC 900 South Avenue, Executive Suites Staten Island, NY 10314 kirillmuchnik@gmail .com

Elder Abuse Antonia J . Martinez Antonia J . Martinez, LLC P .O . Box 883 Croton On Hudson, NY 10520 elderlawtimes@yahoo .com

Lorese Phillips Lorese Phillips, Attorney At Law 488 Madison Avenue, Suite 1120 New York, NY 10022 lp@loresephillipslaw .com

Estates, Trusts and Tax Issues Robert J . Kurre Kurre Schneps LLP 1615 Northern Blvd ., Suite 103 Manhasset, NY 11030 rkurre@ksesqs .com

Pauline Yeung-Ha Grimaldi & Yeung LLP 9201 Fourth Avenue 6th Floor Brooklyn, NY 11209 pyeung@gylawny .com

Ethics Robert P . Mascali The Centers 4912 Creekside Drive Clearwater, FL 33760 robert .mascali@centersmail .com

Joanne Seminara Grimaldi & Yeung LLP 9201 Fourth Avenue, 6th Floor Brooklyn, NY 11209 jseminara@gylawny .com

Legislation Britt N . Burner Burner Law Group, P .C . 45 W 34th St, Suite #1203 New York, NY 10001 bburner@burnerlaw .com

Tammy Rose Lawlor Miller & Milone, P .C . 100 Quentin Roosevelt Blvd ., Suite 205 Garden City, NY 11530 TLawlor@millermilone .com

Liaison to Law Schools Prof . Marianne Artusio Touro College Jacob D . Fuchsberg Law Center 225 Eastview Drive Central Islip, NY 11722 mariannea@tourolaw .edu

Prof . Margaret M . Flint John Jay Legal Services Pace Law School 80 North Broadway White Plains, NY 10603-3711 gflint@law .pace .edu

Mediation Beth Polner Abrahams Polner Abrahams Law Firm 350 Old Country Road, Suite 101 Garden City, NY 11530 Beth@bpabrahamslaw .com

Carla D . Glassman Glassman & Brown LLP 99 Court Street White Plains, NY 10601 cglassman@glassmanbrown .com

Medicaid Sara L . Keating Hoffman & Keating 254 South Main Street, Suite 200 New City, NY 10956 skeating@hkelderlaw .com

Naomi Levin Grimaldi & Yeung LLP 9201 Fourth Ave, 6th Floor Brooklyn, NY 11209 nlevin@gylawny .com


Membership Services Emily P . Kahn Walsh Amicucci LLP 1133 Westchester Avenue, Suite S-321 White Plains, NY 10604 ek@walsh-amicucci .com

Mental Health Law Julie Stoil Fernandez Finkel & Fernandez LLP 16 Court Street, Suite 1007 Brooklyn, NY 11241 jstoilfernandez@ffelderlaw .com

Moira Schneider Laidlaw Hollis Laidlaw & Simon, P .C . 55 Smith Avenue Mount Kisco, NY 10549-2813 mlaidlaw@hollislaidlaw .com

Mentoring JulieAnn Calareso The Shevy Law Firm, LLC 5 Washington Square Albany, NY 12205 julieshevylaw@gmail .com

Practice Management Timothy C . O’Rourke O’Rourke Seaman LLP 6800 Jericho Turnpike, Suite 120W Syosset, NY 11791 timothy .orourke@orourkeseaman .com

William D . Pfeiffer The Pfeiffer Law Firm PLLC 20 Corporate Woods Boulevard Albany, NY 12211 wpfeiffer@albanyelderlaw .com

Publications Katy Carpenter Wilcenski & Pleat PLLC 5 Emma Lane Clifton Park, NY 12065 kcarpenter@wplawny .com

Patricia J . Shevy The Shevy Law Firm, LLC 5 Washington Square Albany, NY 12205 patriciashevy@shevylaw .com

Real Estate and Housing Joseph A . Greenman Bond Schoeneck & King PLLC One Lincoln Center 110 West Fayette Street Syracuse, NY 13202-1355 jgreenman@bsk .com

Neil T . Rimsky Cuddy & Feder LLP 445 Hamilton Avenue, 14th Floor White Plains, NY 10601-5105 nrimsky@cuddyfeder .com

Special Education Adrienne J . Arkontaky The Cuddy Law Firm 400 Columbus Ave, Ste 140S Valhalla, NY 10595-1332 aarkontaky@cuddylawfirm .com

Special Needs Planning Lisa K . Friedman Law Office of Lisa K . Friedman 488 Madison Ave, Rm 1120 New York, NY 10022-5719 lf@lisafriedmanlaw .com

Joan Lensky Robert Robert Legal Group 780 Long Beach Blvd ., Suite 508W Long Beach, NY 11561 joan@robertlegalgroup .com

Sponsorship Lauren C . Enea Enea, Scanlan & Sirignano, LLP 245 Main Street White Plains, NY 10601 l .enea@esslawfirm .com

Task Force on Unauthorized Practice of Law Robert J . Kurre Kurre Schneps LLP 1615 Northern Blvd ., Suite 103 Manhasset, NY 11030 rkurre@ksesqs .com

Salvatore M . Di Costanzo Maker, Fragale & Di Costanzo, LLP 350 Theodore Fremd Avenue Rye, NY 10580 smd@mfd-law .com

Technology Daniel Ross Miller Miller & Miller Law Group PLLC 365 Bridge St ., Ste 7PRO Brooklyn, NY 11201-0900 daniel@millermillerlawgroup .com

Scott B . Silverberg Law Office of Stephen J . Silverberg, PC 185 Roslyn Road Roslyn Heights, NY 11577 sbsilverberg@sjslawpc .com

Veterans Benefits Patricia A . Bave Kommer Bave & Ollman LLP 145 Huguenot Street, Suite 402 New Rochelle, NY 10801 pbave@kboattorneys .com

Felicia Pasculli Futterman, Lanza & Pasculli LLP 13 E Main St Bay Shore, NY 11706-8303 fpasculli@trustedattorneys .com


Co-Editors-in-ChiefKaty Carpenter Wilcenski & Pleat PLLC 5 Emma Lane Clifton Park, NY 12065 [email protected]

Patricia J. Shevy The Shevy Law Firm, LLC 5 Washington Square Albany, NY 12205 [email protected]

Board of EditorsErik J. Einhart Russo Law Group, P.C. 100 Quentin Roosevelt Blvd. Suite 102 Garden City, New York 11530 [email protected]

Lee A. Hoffman, Jr. Hoffman and Keating PC 254 South Main Street, Suite 200 New City, NY 10956 [email protected]

Lauren I. Mechaly Schenck, Price, Smith & King, LLP 9 East 40th Street 14th Floor New York, NY 10016 [email protected]

Sara Meyers Enea Scanlan & Sirignano LLP 245 Main Street 5th Floor White Plains, NY 10601 [email protected]

Christine Anne Mooney Queensborough Community College 265 Sunrise Highway Suite 1-119 Rockville Centre, NY 11570 [email protected]

Elder and Special Needs Law JournalSection Officers

Chair Tara Anne Pleat Wilcenski & Pleat PLLC 5 Emma Lane Clifton Park, NY 12065 [email protected] Chair-Elect Matthew J. Nolfo Matthew J. Nolfo & Associates 275 Madison Avenue, Suite 1714 New York, NY 10016 [email protected] Vice-Chair Deepankar Mukerji Goldfarb Abrandt Salzman & Kutzin LLP 350 Fifth Avenue, Suite 4310 New York, NY 10118 [email protected] Secretary Christopher R. Bray Radley & Rheinhardt, PC 85 Otsego Street P.O. Box 360 Ilion, NY 13357-1803

Treasurer Fern J. Finkel 16 Court Street Suite 1007 Brooklyn, NY 11241 [email protected]

Financial Officer Martin S. Finn Lavelle & Finn, LLP 29 British American Boulevard Latham, NY 12110-1405 [email protected]

Immediate Past Chair Judith D. Grimaldi Grimaldi & Yeung, LLP 9201 Fourth Avenue, 6th Floor Brooklyn, NY 11209 [email protected]

The Elder and Special Needs Law Journal is published by the Elder Law and Special Needs Section of the New York State Bar Association . Members of the Section receive a subscription to the publication without a charge .

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Board of Editors (continued)Tara Anne Pleat Wilcenski & Pleat PLLC 5 Emma Lane Clifton Park, NY 12065 [email protected] George R. TilschnerLaw Office of George R. Tilschner, PC7 High Street Suite 302Huntington, NY 11743 [email protected]

Associate Editors Joanne SeminaraGrimaldi & Yeung LLP9201 Fourth Avenue 6th FloorBrooklyn, NY [email protected] Kim F. TrigoboffLaw Offices of Kim F. Trigoboff 1140 Avenue of the Americas New York, NY 10036 [email protected] Production Editor Lauren C. Enea245 Main Street 5th FloorWhite Plains, New York [email protected]

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nysba spring 2020 | vol. 30 | no. 1 elder and special

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