Comparing Revocable and Irrevocable Trusts

Why Your NY Power of Attorney Needs the Right Gifting Language

An irrevocable trust often feels final once you sign it and transfer assets into it. Many caregivers and families believe no changes are possible after that point, which creates stress when health, finances, or family needs change later. In New York, the law provides specific ways to adjust an irrevocable trust when it no longer serves its intended purpose. These options exist because life does not stay the same. Parents age, beneficiaries face new challenges, and laws change over time. If you are caring for a parent or managing a trust created years ago, you should understand your options before a minor issue becomes a crisis. This article explains when amendments to an irrevocable trust are possible in New York and what steps typically follow. Why Do People Create Irrevocable Trusts? Most people create irrevocable trusts to protect their assets. Once assets are transferred into the trust, they no longer belong to the individual in a legal sense, and this separation provides important protections. Many New York families use irrevocable trusts to protect a home or savings from nursing home costs, while others use them to reduce estate taxes or to protect assets for children. This loss of control is intentional. Medicaid rules, tax rules, and creditor laws rely on it. If the trust allowed easy changes, those protections would fail. At the same time, New York law recognizes situations in which a trust must adapt to remain effective. What Modifying an Irrevocable Trust Really Means Most irrevocable trusts do not allow direct edits. You cannot rewrite paragraphs or add new pages. Instead, New York law allows specific methods to achieve similar results without rewriting the original document. These methods include moving trust assets into a new trust, obtaining agreement from all beneficiaries, asking a court to approve changes, or correcting mistakes made when the trust was created. Some trusts also include built-in flexibility. The trust document itself determines which options are available, and even small wording differences matter. If you ask whether your trust qualifies for a specific method, I can’t answer without reviewing the trust document. Trust Decanting Explained in Plain Language Trust decanting is the most common way to modify an irrevocable trust in New York. It allows a trustee to transfer assets from an old trust into a new trust with updated terms. The original trust remains in place, but the assets are transferred to a structure that better suits current needs. Decanting typically works when the trustee has discretion to decide when and how trust assets are distributed. The more discretion the trustee has, the greater the flexibility. Decanting also often avoids court involvement, saving time and reducing stress for families facing urgent issues. When Decanting Helps Caregivers and Families Decanting often resolves issues that arise years after a trust is created. Trustees use it to update outdated language or address new family circumstances. One common situation involves trustees who can no longer serve because of age or illness. If the trust does not specify how to replace them, decanting allows the creation of a new trust with clear rules. Another common issue involves beneficiaries who now receive SSI or Medicaid . Direct trust payments could disrupt benefits, so decanting allows the creation of a supplemental needs trust share that preserves eligibility while still providing support. Real estate issues also arise frequently. A trust created years ago might not clearly authorize the sale or refinancing of a home. A new trust with modern language often resolves this issue and allows necessary decisions to proceed. Limits on Trust Decanting Decanting does not allow unlimited changes. You cannot add new beneficiaries unless the original trust permits it, and you cannot grant a beneficiary more rights than they already had. Some trusts require mandatory income payments to beneficiaries. These requirements limit what a trustee can change. If the trustee lacks sufficient discretion, decanting might not be possible. If you want to know whether decanting applies to your situation, I can’t tell without reviewing the trust document. Changing a Trust with a Beneficiary Agreement New York law allows all beneficiaries to agree to modify or terminate an irrevocable trust. This includes current beneficiaries and those who would receive assets later. This option works best when families communicate effectively, since every beneficiary must agree and one objection halts the process. Practical problems often arise. Some beneficiaries are minors or lack capacity, which requires court-appointed guardians and adds time and cost. Families most often use this method when selling trust property, changing trustees, or terminating small trusts that no longer serve a purpose. Court-Approved Trust Changes When decanting does not apply and the beneficiaries do not agree, courts provide another option. New York courts consider whether the trust still serves its original purpose and whether the circumstances have changed in ways the trust did not anticipate. Courts focus on issues such as outdated tax rules, a lack of authority to manage assets, or changes in a beneficiary’s health or finances. Court proceedings take time and involve legal fees, but they provide certainty. Once a judge approves a change, it carries legal authority. I don’t know whether a judge would approve your request. Each case depends on its facts. Fixing Mistakes Made When the Trust Was Created Some trusts contain drafting errors that families discover years later during Medicaid applications, tax filings, or property sales. New York law allows courts to correct these errors so the trust reflects the creator’s intent. This process is called reformation. Reformation applies only to errors, not to new planning goals. Courts require proof of both the mistake and the original intent, often through attorney notes or correspondence. If you believe a trust contains an error, gather documents early. I can’t determine whether reformation applies without reviewing the evidence. Built-In Flexibility Inside Some Trusts Some irrevocable trusts include flexibility from the start, reducing the need for court involvement. Examples include the power to replace a trustee, limited authority to redirect assets among family members, and the ability to exchange trust assets for tax-planning purposes. Not every trust includes these provisions. If yours does, these provisions often provide the simplest solution. When Caregivers Should Review an Irrevocable Trust Many caregivers wait too long to review a trust. You should review it whenever circumstances change. Common triggers include a parent needing nursing home care, changes in Medicaid rules, a beneficiary facing divorce or debt, or the need to sell trust property. You should also review any trust created more than ten years ago. Early review preserves options, while waiting often forces court involvement during emergencies. Special Concerns for Medicaid Trusts Medicaid asset protection trusts require careful handling. Improper changes risk restarting the five-year lookback period or treating trust assets as available resources. Decanting often preserves Medicaid protection when structured properly, and court-approved changes also work when handled carefully. Informal changes carry serious risk. If you ask whether a specific change affects Medicaid eligibility, I can’t answer without reviewing the trust and financial details. Risks of Informal Trust Actions Some families resort to workarounds. Trustees distribute assets improperly, or parents continue treating trust property as personal property. These actions undermine trust protections. Medicaid agencies and tax authorities closely review trust administration. Improper actions can result in benefit denial, penalties, and family conflict. Fixing mistakes later costs more than addressing them early. How an Elder Law Attorney Evaluates Trust Changes A thorough review begins with the trust language. The attorney examines every section and identifies the beneficiaries and trustee authority. Next, the review covers tax and Medicaid impacts, family dynamics, and timing. Only after this review does the attorney recommend a strategy. If someone gives quick answers without reviewing the trust, you should proceed cautiously. Common Caregiver Situations A parent placed a home in an irrevocable trust years ago and now wants to sell and downsize, but the trust does not clearly authorize a sale. Decanting often resolves this issue by transferring the home into a new trust with clear authority to sell. Sale proceeds remain protected when handled properly, yet many families delay action because they assume nothing can be done. A trust created years ago for children may now include a beneficiary receiving SSI. Direct trust payments can jeopardize benefits. Decanting or court approval allows the creation of a supplemental needs trust share, protecting benefits and long-term support. Trustees also age and experience health declines. A trust without replacement rules carries risk. Court appointment or decanting restores proper management, while delay leads to missed filings and financial harm. Why Timing Matters Early action keeps options open. Delay narrows choices and increases stress. Regular reviews help caregivers protect parents and beneficiaries. An irrevocable trust does not lock you in forever. New York law provides structured ways to address real problems when a trust no longer serves its intended purpose. You should not assume change is impossible, and you should avoid informal fixes. The Law Offices of Robin Burner Daleo advises families throughout Suffolk County from offices in Mt. Sinai and Hampton Bays. We help caregivers and families evaluate irrevocable trust amendments while protecting Medicaid eligibility and long-term goals. To schedule a consultation , contact our office. We review your trust, clearly explain your options, and help you decide on next steps with confidence.

Suppose you’re helping care for an aging parent or loved one. In that case, you may already know how overwhelming the Responsibilities can be, including managing medications, keeping track of doctor appointments, and ensuring that bills are paid on time. But what happens when your loved one can no longer make financial or legal decisions for themselves? That’s where a Power of Attorney comes in. In New York, a Power of Attorney (POA) is a legal document that allows someone to act on another person’s behalf in financial and legal matters. It’s one of the most essential tools for caregivers—but also one of the most misunderstood. Let’s walk through the essentials of Power of Attorney, what’s changed under recent New York law, and how it can protect caregivers and their loved ones. What Is a Power of Attorney? A Power of Attorney is a written document where one person (called the principal ) grants another person (called the agent ) the authority to handle their financial and legal decisions. Once signed, the agent can act within the limits set by the document. Why Caregivers Shouldn’t Wait Many people think they can wait until something happens before creating a Power of Attorney. Unfortunately, by the time a loved one is no longer able to make decisions, it may be too late. Without a valid POA in place, caregivers might have to undergo a lengthy and costly guardianship process just to obtain the authority to handle basic financial matters like: Paying bills Accessing bank accounts Managing insurance claims Handling Medicare or Medicaid paperwork Establishing a Power of Attorney now—while your loved one is still mentally able to do so—can save time, money, and stress later. Types of Powers of Attorney in New York There are a few types of POA documents, but the most common for caregivers is the Durable Power of Attorney . Let’s break it down: 1. Durable Power of Attorney This remains valid even if the principal becomes mentally incapacitated. This is the type most caregivers need, as it ensures continuity during a medical crisis. 2. Non-Durable Power of Attorney This is usually used for specific transactions, such as selling a home, and it terminates if the principal becomes incapacitated. 3. Springing Power of Attorney This only takes effect under specific conditions—usually when the principal becomes incapacitated. What the New York POA Law Changed In 2021, New York State revised its Power of Attorney laws to make the process simpler and more accessible for caregivers and seniors. These updates took effect on June 13, 2021. Here are the key changes that matter: Simplified Form: The old form was long and complex. The new version is easier to understand and complete. Elimination of Exact Wording Requirement: Previously, any deviation from the statutory wording could invalidate the POA. The law now allows for “substantial conformity.” Witness Requirement: The new form must be signed in front of a notary and two witnesses. Sanctions for Financial Institutions: Banks that unreasonably refuse to honor a valid POA can now face penalties. These changes were implemented to cut red tape and help families avoid unnecessary legal hurdles—something every caregiver can appreciate. What Powers Does an Agent Have? The POA document clearly states what the agent is authorized to do. These powers can be broad. or restricted, based on the principal's preferences. Some common powers include: Writing checks and paying bills Managing retirement accounts Buying or selling real estate Handling tax matters Applying for government benefits like Medicaid Accessing digital accounts In New York, there is a separate section called the Statutory Gift Rider . If the agent is permitted to make gifts or transfers of the principal’s assets—including Medicaid planning transfers—this section must be completed and signed separately. Caregivers should always consult with an elder law attorney before granting gifting powers, especially when planning for long-term care. Choosing the Right Agent Trust is everything. A Power of Attorney grants another person access to your money, property, and personal affairs. That’s why it’s so important to select an agent who: Is responsible and financially stable Understands your wishes and values Can keep clear records Will act in your best interest It’s also wise to name a backup or successor agent in case the first person can’t serve. For caregivers, the agent is often a child, spouse, or sibling—but think carefully before taking on this role. It involves a legal obligation to act honestly, responsibly, and in the best interest of the principal. Common Mistakes to Avoid Here are a few pitfalls we see too often: ❌ Waiting too long: Once someone loses capacity, they can no longer legally sign a POA. At that point, the only option might be guardianship. ❌ Using a generic online form: Each state has its own requirements. A “one-size-fits-all” POA from the internet might not meet New York’s legal standards. ❌ Not including the Statutory Gift Rider: If you plan to do Medicaid planning or transfer assets, this must be specifically authorized. ❌ Not notifying the agent: Simply signing the document isn’t enough. Make sure your chosen agent is aware of where the original is kept and understands their responsibilities. How to Create a Power of Attorney in New York Meet with an elder law attorney: a qualified attorney can draft a POA tailored to your loved one’s situation and ensure all legal requirements are met. Sign in the presence of a notary and two witnesses: New York requires both for validity. Store the original in a secure yet accessible place: Share certified copies with the agent and financial institutions if necessary. Consider signing multiple orginal documents. Review the document regularly: Life changes—so should your POA. Review it every few years or after significant life events. Final Thoughts: Don’t Wait for a Crisis If you’re a caregiver, helping your loved one establish a Power of Attorney is one of the kindest—and most practical—actions you can take. It enables you to handle their affairs legally and shields both of you from unnecessary difficulties. Every situation is unique. At The Law Offices of Robin Burner Daleo , we’re here to help families on Long Island understand their options and develop a solid plan. Whether you’re just starting out or need to update an old POA, we’re ready to guide you through it. Frequently Asked Questions (FAQs) 1. Does a Power of Attorney give me control over medical decisions? No. A financial Power of Attorney only covers financial and legal matters. To make medical decisions, your loved one would need a separate document called a Health Care Proxy. 2. Can I create a Power of Attorney for someone with dementia? Yes, as long as the person understands what the document means. Your attorney can assess this. 3. Do banks have to accept a Power of Attorney? Yes—if the POA meets New York’s legal requirements. Banks can request to review the document and may ask for a recent copy, but they cannot unreasonably reject a valid POA under the new law. 4. Can a Power of Attorney be revoked? Yes. As long as the person who created it is mentally competent, they can revoke it at any time. Revocations should be made in writing and shared with all relevant institutions.

A Power of Attorney is typically effective once signed, and the Principal does not need to be incapacitated for the Agent to act.

Learn how Community Medicaid can help cover healthcare costs while allowing you to stay in your home. Get expert guidance on eligibility and benefits.

Why Everyone Needs A Will One of the most common questions we hear as estate planning attorneys is “do I need a Will ?” Some people think if they do not have a house or a large estate, or a complicated distribution, they may not need a Will. The reality is almost everyone should have a Will. This article will discuss some of the most important reasons why you should consider adding a Will to your estate plan. Thankfully, if you pass away without a Will, it does not mean your family will not receive your assets. The laws of intestacy create a list of presumed beneficiaries for those that die without a Will. For a married person with no children, the law provides that the surviving spouse inherits everything. For a married person with children, the law provides that the spouse receives the first $50,000 and half the remaining estate, with the other half of the estate going to the children, in equal shares. For unmarried individuals, the estate would be distributed to their parents, if surviving, or to their siblings, if the parents are not surviving. The list goes on to more remote relatives.  However, relying on the laws of intestacy ignores the desires of those who may want to deviate from what the law presumes you would want. Additionally, just as the law presumes the individuals who would inherit your estate , the law also creates an order of priority as to who would serve as the fiduciary of the estate. This is known as the Administrator of the estate. For unmarried individuals with children, the law states that any child can serve, creating a potential for conflict if multiple children want to serve and disagree with how to manage the administration of the estate. The laws of intestacy do not offer any planning for disabled or underage beneficiaries, or those who may have creditor issues. If you pass away and one of your heirs is a disabled person receiving means-based government benefits, they may lose their benefits as a result of inheriting from your estate. Similarly, if a child under the age of 18 inherits from your estate, they are unable to hold property without an adult being appointed as a guardian. Once they reach the age of majority, the guardian must turn over the remaining assets regardless of their maturity level, or ability to manage the assets. This can have disastrous results. The laws of intestacy also do not provide for the opportunity for any estate tax planning. If your estate is valued at larger than the current New York estate tax exemption, there are planning opportunities available in your Will to leave more assets tax free to the remainder beneficiaries after your spouse. However, without a Will this opportunity is lost. Executing a Will avoids these issues. You can clearly state who should manage your estate, known as an Executor, and who the intended beneficiaries are with customized provisions. You can also provide language that ensures that whoever you name as the executor need not purchase a bond offering savings to the estate and incorporate estate tax planning. Lastly, you can provide provisions for what should happen in the event that a beneficiary is disabled, has creditor issues or underage. You can also nominate your choice of guardian or trustee for these individuals. While having a Will prepared by an attorney comes with a cost, the long-term benefits of having a well thought out estate plan are immeasurable.

When considering your estate planning it is important to consider any beneficiaries who may have special needs or disabilities.