What Issues Can Elder Law Planning Help With?

The headline issue in nearly every elder-law engagement is the cost of long-term care. Skilled-nursing-facility care in the New York City metropolitan area currently runs $15,000 to $18,000 per month. Home care under CDPAP and certified home health agency programs runs $20 to $25 per hour, with 24-hour live-in care approximating $400 to $500 per day. For a multi-year care episode, the unprotected cost can exceed $500,000 — enough to consume a working family's savings in two to three years.

Elder-law planning addresses this cost through multiple channels: Medicaid eligibility (SSL § 366 and 42 USC § 1396p), long-term care insurance review (including the New York Partnership for Long-Term Care that provides additional resource protection), Veterans Aid and Attendance for wartime-era veterans, and structural conversion of countable assets into exempt assets. Most plans combine two or three of these channels.

The earlier the engagement, the wider the toolkit. A 60-to-65-year-old client has access to all the structural tools — MAPT funding, long-term care insurance purchase, beneficiary-designation review. A client already in care has access to a narrower set — pooled income trusts, spousal refusal, half-a-loaf gifting with Medicaid-compliant promissory notes. The math improves dramatically with planning runway.

The most consequential structural tool in New York elder law is the Medicaid Asset Protection Trust under EPTL Article 7. The MAPT is an irrevocable income-only trust into which the client transfers the family home and selected liquid assets. After the 60-month look-back under 42 USC § 1396p(c) expires, the trust assets are outside the Medicaid eligibility calculation. The grantor retains the right to trust income, the right to occupy the home, and the right to direct who receives the assets at death — but not access to principal.

Properly drafted, the MAPT preserves the stepped-up basis at the grantor's death under IRC § 1014. This is the critical income-tax consequence. A home transferred outright to children during life carries the parent's carryover basis under IRC § 1015. A home transferred to a properly drafted MAPT carries the date-of-death stepped-up basis. The basis difference on a New York City home can run to hundreds of thousands of dollars.

MAPT planning is not for every client. Clients who already have institutional care imminent cannot benefit from MAPT funding because the 60-month look-back cannot be cleared. Clients with substantial assets and high tolerance for asset-tax exposure may prefer DAPT structures in permissive jurisdictions (Delaware, Nevada, South Dakota) over Medicaid-focused planning. We start the conversation with the client's actual asset profile, not a templated MAPT recommendation.

Every elder-law engagement includes a hard look at the documents that determine who can act for the senior when capacity fails. The statutory short-form power of attorney under GOL § 5-1501B handles financial authority — banking, taxes, real estate, retirement plans, and the optional Modifications section that authorizes the agent to make Medicaid-planning transfers on the principal's behalf. The 2021-revised form is meaningfully different from the prior version and from any pre-2010 form.

The health care proxy under Public Health Law § 2981 designates an agent to make health care decisions when the principal lacks capacity. The proxy form is more flexible than the POA, but the agent's authority is broader — including end-of-life decisions if the principal has provided clear-and-convincing evidence of their wishes (the Cruzan-derived standard New York applies). We draft the proxy together with a living will that articulates that evidence in writing.

When no advance directive exists and capacity is already gone, Article 81 of the Mental Hygiene Law provides the guardianship framework. The proceeding is filed in Supreme Court, requires a court evaluator under MHL § 81.09, and produces an order tailored to the alleged incapacitated person's actual functional limitations. Guardianship is the most expensive and intrusive option — proper POA and proxy drafting generally prevents it.

Estate recovery under SSL § 369 and 42 USC § 1396p(b) is the state's right to recover the cost of Medicaid services from the probate estate of a deceased Medicaid recipient age 55 or older. New York applies the narrower probate-estate definition rather than the expanded definition used in some states. Assets passing outside probate — through a MAPT, joint ownership with right of survivorship, beneficiary designation, or transfer-on-death registration — generally escape recovery.

Elder-law planning routinely incorporates probate avoidance as a parallel objective. A revocable trust at death, joint titling between spouses, properly updated beneficiary designations on retirement accounts and life insurance, and a MAPT for the family home together move most of the deceased recipient's net worth outside the probate estate. The result: estate recovery has nothing to recover against.

Probate avoidance and estate recovery defense are different framings of the same structural goal. The planning we do during the recipient's lifetime is what determines whether estate recovery has anything to claim. Reactive planning after the recipient's death is dramatically more limited and frequently impossible.

Families with a disabled child, grandchild, or sibling have a separate set of planning issues. A direct inheritance to a beneficiary receiving Supplemental Security Income or Medicaid will disqualify the beneficiary from those means-tested programs. The standard solution is a Supplemental Needs Trust under EPTL § 7-1.12 — a trust designed to supplement, rather than replace, the public benefits the beneficiary receives.

Two SNT structures matter. A third-party SNT is funded with assets that never belonged to the disabled beneficiary (typically parents' or grandparents' assets) and has no Medicaid payback at the beneficiary's death — the remainder passes to other family members or charities as the grantor directs. A first-party SNT (also called a 'd4A' trust under 42 USC § 1396p(d)(4)(A)) is funded with the disabled beneficiary's own assets — typically a personal injury settlement or an inheritance received outright before planning was completed — and requires a Medicaid payback provision at death.

We draft both structures, with careful attention to the trust language that preserves the beneficiary's SSI and Medicaid eligibility while permitting trustee distributions for supplemental needs — education, recreation, travel, electronics, supplemental medical and dental care, and other expenditures not covered by the public programs. Trustee selection matters enormously, because the trustee will exercise discretion over distributions for the beneficiary's lifetime.

When a senior has been exploited financially or physically — by a family member, a paid caregiver, or a fiduciary — the elder-law toolkit includes emergency Article 81 guardianship petitions, immediate freezing of compromised accounts, recovery actions under DCL Article 10 (the Uniform Voidable Transactions Act enacted by New York), and coordination with Adult Protective Services and law enforcement.

The earlier the family calls, the more likely the assets can actually be recovered. Once funds have been dissipated to third parties, moved offshore, or spent on non-recoverable consumption, recovery becomes substantially harder. Forensic accounting can trace movements for months or years, but a quick freeze in the first weeks after detection prevents the dissipation in the first place.

Prevention is also part of the practice. Properly drafted POAs with the gifting authority in the Modifications section tightly cabined, careful selection of agents and trustees, layered authorities that require co-signatures for large transactions, and periodic family check-ins on financial activity all reduce the exposure. We routinely review a senior's existing documents for exploitation vulnerabilities as part of an initial consultation.