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Ensuring Your Final Wishes for Remains Disposition

Robin Burner Daleo • Jan 08, 2024

Question:

I am not married; I have been in a committed relationship for twenty years. When I pass away, I wish to be cremated and would like my partner to be in control of my remains. Is there a way to ensure that my wishes will be carried out?

Answer:

Yes, a properly executed document called an “Appointment of Agent to Control Disposition of Remains” will ensure that your wishes with respect to your final disposition will be carried out. New York Public Health Law Section 4201 commonly referred to as New York’s “Final Disposition Law” establishes a “next of kin” hierarchy for final disposition. The law also provides for a mechanism wherein you can legally designate any person as the Agent in control of the disposition of your remains. Executing this document will allow you to bypass the next of kin hierarchy and ensure that your wishes with respect to your final arrangements are carried out. The form provides for the naming of an Agent as well as successor agents should you choose to name them. In addition to naming an Agent to handle your affairs the document also allows you to indicate how you would like your final disposition to be carried out, for example you can give specific directions as to what type of service you would prefer and where you would want your ashes to be scattered.

It may also be advisable for you to consider entering into a pre-funded pre-need funeral agreement. These are agreements, which are entered into with a funeral home of your choice, effectively provide for the complete pre-arranging of your funeral. These agreements can be set up to be revocable or irrevocable. It is important to note that when you are entering into a pre-arrangement for the purpose of Medicaid planning the agreement must be irrevocable. If you have previously entered into a revocable agreement, the agreement can be switched to an irrevocable agreement. Used in conjunction, an Appointment of Agent to Control Disposition of Remains together with a pre-arranged pre-paid funeral arrangement will ensure that your wishes with respect to your final arrangements are carried out in the manner in which an by the person you designate.

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May is National Elder Law Month

by Robin Burner Daleo • 03 May, 2024

May is National Elder Law Month, for that reason we have decided to switch from our normal format and answer a question that we are oftentimes asked in our practice, “What is an Elder Law Attorney and why do I need one?” Answer: Elder Law is a fairly new and unknown area of the law. As baby boomers and their parents’ age, they are living longer and oftentimes, living with chronic medical conditions. As the cost of long term care continues to spiral out of control and families struggle to meet the needs of their aging members, an experienced Elder Law attorney can help you and your family members establish an estate plan that maximizes protection of assets while ensuring that your loved one has the best care available to them should they face a health crisis. While it is always best to plan proactively, Elder Law attorneys are adept at crisis planning and oftentimes can provide a solution which can preserve assets or save taxes where others you have consulted have told you that no solution existed. Elder Law attorneys must be familiar with multiple areas of the law - contract law, estate planning, trusts and estate administration, Medicare, Medicaid, health care insurance regulations, Public Health Law, Mental Hygiene Law, the Internal Revenue Code & State and local tax issues. In each instance the issues that we deal with are fact sensitive and the clients must be willing to give us the information that we need to formulate the Elder Law plan. This in itself is oftentimes a struggle as the clientele that we deal with tends to value privacy and are oftentimes reluctant to divulge information regarding their assets and private family issues. The various disciplines that make up the Elder Law practice are in a constant state of flux. As a result, it requires the Elder Law attorney to spend a great deal of time reading current journals and cases and continuously taking legal education courses. In addition, many Elder Law attorneys meet in informal study groups to read, understand and strategize. As the facts change, there will likely be different solutions for each client. What works for one client may be totally inappropriate for another. For instance, in one day, we may see two different clients, both clients are 86 years old, own their own homes, and need long-term care. Client A has a daughter, age 55 and Client B has a niece age 55. Client A, on the eve of going into a nursing facility, is advised to transfer her home to her caretaker daughter, who lives with her and has lived with her for more than 2 years. The transfer does not make Client A ineligible for Medicaid. Client B cannot follow the same plan because her niece is not her child. There are no exceptions for transfers to caregiver nieces. Because we do not have an exempt transfer available to us for Client B I advise Client B to sell the home and advise her that even though no pre-planning has been done, we will likely be able to save more than sixty percent of her aunt’s assets by engaging in crisis planning. Remember - one size fits all – is not the rule. Your Elder Law plan is personal, fact sensitive and requires a careful review of all of the facts and circumstances. By: Robin Burner Daleo, Esq.