The Journal of the Nassau County Bar Association

March 2017 www.nassaubar.org Vol. 66, No. 7

Follow us on Facebook NCBA Past President Lance Clarke

OF NOTE
NCBA COMMITTEE MEETING CALENDAR
Receives Top Honors at Annual
Black History Month Celebration
Page 21
ON ETHICS
Page 11

SAVE the DATES By Valerie Zurblis

NASSAU ACADEMY OF LAW
Hon. Elaine Jackson Stack
Nassau County Bar Association
MOOT COURT COMPETITION Past President Lance Clarke was hon-
March 21 & 22, 2017 at Domus ored with one of the highest awards,
the Hon. Alfred S. Robbins Memorial
WE CARE Award, at the annual Black Histo-
Dressed to a Tea ry Month Celebration. Sponsored by
Thursday, March 30, 2017 the Black History Committee and the
At Domus Amistad Long Island Black Bar Associ-
See pg 16 ation, Clarke was acknowledged for his
CINCO de MAYO CELEBRATION tireless service and leadership to the
Tuesday, April 25, 2017 legal profession and the community.
5:30 p.m. “I am deeply humbled,” said Clarke.
Cooking demo, taco bar, margaritas and more! “They say that there is no greater
Register on-line or contact Special Events honor than to be honored by one’s
events@nassaubar.org peers. I accept this award with all the
humility required.”
118th Annual NCBA Dinner Dance Hon. Andrea Phoenix presented the
Saturday, May 13, 2017
See pg 6 award, which is named after the first
Invitations have been mailed African-American elected to the Nas- The awards ceremony, held in Nassau County Supreme Court, included (l-r) Supervising
For Journal Ad Information see INSERT sau County Supreme Court bench. “It Judge of the Nassau County District Court, Hon. Norman St. George; Nassau County
is no surprise that Lance Clarke has Administrative Judge, Hon. Thomas A. Adams; NCBA President, Martha Krisel; Recipient
WE CARE been selected to receive the coveted of the Hon. Alfred S. Robbins Memorial Award and NCBA Past President, Lance Clarke;
Las Vegas Theme Night 2017 Hon. Alfred S. Robbins Memorial Nassau County Court and Chair of the Black History Committee, Hon. Jerald S. Carter;
Saturday, May 20, 2017 and, Amistad Long Island Black Bar Association, Cherice Vanderhall.
See HONORS, Page 18
Live entertainment, game tables, food and fun Photo by Hector Herrera
Details coming soon!

WHAT’S INSIDE Mock Trial Gives Students Unique

FOCUS: Elder Law/ Trusts & Estates SAVE THE DATE
Disposing of Real Property in a Tax-
Advantaged Manner pg 3
Promissory Notes: Medicaid’s “Plan B” pg 5
Why an Elder Law Attorney? pg 7
The Right of Sepulcher: An Overview of
Rights Regarding Dead Bodies pg 8
Elder Care Planning: How to Avoid a
pg 9
Turnover Proceeding
The Bare Essentials of Charitable Split-
Interest Trusts pg 10
BOOK REVIEW
FORESTER’S WILL
by Edward A. McCoyd, Esq. pg 17
VIEW FROM THE BENCH
Conducting an Article 81 Hearing pg 12
OF NOTE
NCBA Member Benefit - I.D. Card Photo
Obtain your photo for Secure Pass Court ID
cards at NCBA Tech Center
Only For New Applicants
Cost $10 • April 4, 5 & 6, 2017
9 a.m. – 4 p.m.
PLEASE NOTE: Existing Secure Pass holders do not need new
photos and can now renew online at the OCA website www.
nycourts.gov/attorneys/registration/securepass.shtml
UPCOMING PUBLICATIONS
COMMITTEE MEETINGS
Thursday, April 13, 2017 12:45 p.m. at Domus
Thursday, May 11, 2017 12:45 p.m. at Domus
Insight into the Judicial System
By Valerie Zurblis
A high school student nervously walks
to the podium in Supreme Court, ready
to argue his case on behalf of the plaintiff
and present his opening statements to
the presiding judge and his opponent.
A student from a second high school,
representing the defense, delivers her
opening statements. The attorney teams
call to the stand the witnesses, portrayed
by other students, for questioning and
cross-examination. Both student teams
then present their closing arguments to
the judge.
The judge grades the quality of each
student’s performance based on a rubric
supplied by the NCBA which includes
effective questioning, ability to respond
to opposing counsel’s strategy, mastery of
fact, issues and law, fluency and clarity,
use of and response to objections, and
CONFIDENTIAL HELP IS AVAILABLE
TO LAWYERS AND JUDGES
alcohol or drug use, depression or
other mental health problems
Call Lawyer Assistance Program
1-888-408-6222
All members are welcome to attend
the Mock Trial finals in Supreme Court
on April 5, 3 p.m., to see the finalists
argue before Judge Randall Eng,
Presiding Justice, Appellate Division –
Second Department.
at the
Get ready to be impressed!
Nassau County Bar Association
level of professionalism. Teams with the
highest scores advance, until one team
Tuesday, April 25th
emerges as the winner. The champion
team, representing Nassau County, pro-
5:30 p.m. - $45 pp
ceeds to the New York State Finals to Live Cooking Demonstration
compete state-wide for the championship. Margaritas
Understanding the Law Food and Fun!
The annual New York State (NYS) Register on-line nassaubar.org
High School Mock Trial Tournament, the
or contact
largest in the nation, provides students
Special Events (516)747-4070
See MOCK TRIAL, Page 18 events@nassaubar.org
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Elder Law/Trusts & Estates
Disposing of Real Property
in a Tax-Advantaged Manner
Many of our clients are heavi- trade or business or for investment is
ly invested in real property. In some exchanged solely for property of a like
cases, this investment may be a sin- kind to be held by the taxpayer for pro-
gle property in a ductive use in a trade or business or for
prime location; in investment.2
others, the client In most cases, a taxpayer disposing
(and maybe his of real property will not be able to swap
family) is in the his property with another taxpayer (a
business of own- “simultaneous exchange”); for example,
ing and operating Taxpayer A transfers Property A to
a portfolio of prop- Taxpayer B in exchange for Taxpay-
erties of differing er’s Property B. In recognition of this
qualities and val- reality, Congress and the IRS have pro-
ues. It is often the vided special rules for non-simultane-
case that the real ous exchanges. Unfortunately, because
of very strict statutory requirements,
property consti-
Louis Vlahos tutes the greater these rules are often not as helpful as
part of the client’s most taxpayers would like.
wealth. A non-simultaneous exchange, where
As the client gets older, he may the relinquished property is trans-
seek to withdraw from, or to reduce ferred before the replacement property
his involvement in, the management is acquired, generally may qualify for
of the real property. He may seek to non-recognition of gain if the taxpayer
diversify his portfolio, or to acquire identifies the replacement property or
one or more other properties to pro- properties within 45 days of the trans-
vide greater investment stability or to fer of the relinquished property, and
ensure a steadier stream of revenue in then receives such replacement prop-
retirement. erty within 180 days of the transfer.
He may seek to “re-task” his prop- The taxpayer may only purchase one
erty to take advantage of changing or more of the identified properties in
circumstances in the neighborhood in order to complete a like kind exchange;
which it is located, perhaps as part an “unidentified” property does not
of a joint venture with a third party qualify.3
developer and property manager (this In addition, as a general rule, the
is happening in many parts of Queens taxpayer may only identify up to three
and Brooklyn). replacement properties. Under an
It many cases, the client may be able alternative rule, however, the taxpayer
to leverage his existing real property may identify any number of like kind
and withdraw some of the equity there- replacement properties, provided their
from in order to finance the acquisition aggregate fair market value does not
of one or more new properties. In other exceed two times the fair market value
cases, however, the client would prefer of the relinquished property.4
not to leverage the existing property Because the identification and acqui-
and, so, has to sell that property, and sition periods cannot be extended, a
taxpayer may find it very difficult to
then use the net proceeds therefrom to
purchase other property. complete a like kind exchange. After
all, 45 days is not a very long period
Taxable Sale of time within which to investigate,
A sale of investment real property is and identify, replacement properties.
usually not desirable where it will gen- Even where replacement properties are
erate a not insignificant tax bill. After timely identified, it may be difficult
all, the improvements on the property to acquire those properties within the
may have been held for many years, prescribed 180-day replacement period.
and have been almost fully depreciated, The taxpayer’s diligence of the prop-
thus resulting in a very low adjusted erties may uncover structural or envi-
basis for the property against which the ronmental issues with the properties,
gain on the sale of the property will be or the owner may decide, for whatever
determined. Although most of the gain reason, not to sell to the taxpayer.
realized on the sale will likely be taxed In addition, because of the limits on
as capital gain (a 20 percent federal tax the number of replacement properties
rate) and as “unrecaptured deprecia- that may be identified, and the time
tion” (a 25 percent federal rate), there constraints for their acquisition, a tax-
may also be some ordinary income (a payer may find it difficult to diversify
39.6 percent federal rate, at least for his real property holdings through a
now) if the client has depreciated var- like kind exchange.
ious components of the property on an
accelerated basis.1 UPREIT
For that reason, when a client wants REITs, or real estate investment
or has to dispose of a real property, he trusts, may be publicly traded corpo-
would prefer to do so on a tax-free or, rations the assets of which consist of a
more accurately, tax-deferred basis. diversified portfolio of real properties
and related assets. They are compara-
Like Kind Exchange ble to mutual funds, and are required
The Code provides an exception from to pay out at least 90 percent of their
the general rule requiring the recogni- income to their unitholders (sharehold-
tion of gain upon the sale or exchange ers).5
of property. Specifically, no gain will Unfortunately for a taxpayer who
be recognized if real property held by owns real property, he may not contrib-
the taxpayer for productive use in a ute his property to an existing REIT in
Nassau Lawyer
exchange for an equity interest therein
on a tax-free basis.6
That being said, many REITs are
structured as UPREITs, or “umbrella
partnership REITs.” Under this struc-
ture, the REIT has formed a partner-
ship that it controls. The partnership
owns the REIT’s real properties. An
owner of real property who wants to
dispose of such property on a tax-free
basis may contribute his property to the
UPREIT partnership in exchange for a
partnership interest that is convertible
into shares of stock (units) in the REIT
partner.
In general, the owner’s contribution
of his real property to the partnership
in exchange for a partnership interest
is not a taxable transaction. A subse-
quent conversion of the partnership
interest into REIT stock, on the other
hand, would be a taxable exchange,
though the taxpayer can plan for this
tax consequence and may time it to his
advantage.7
There are other potential tax conse-
quences, however, that need to be con-
sidered. For example, if the real prop-
erty being contributed to the UPREIT
partnership is encumbered by debt, any
reduction in the contributing taxpayer’s
share of that debt will be treated as
a cash distribution to the taxpayer. If
the amount of this reduction exceeds
the taxpayer’s basis in his partnership
interest, he will recognize income to the
extent of the excess.8 Similarly, if the
debt was placed on the property within
two years of the contribution to the
partnership, the so-called “disguised
sale rules” may cause the contribution
to be treated as a partial sale of the
property.9
In addition, the taxpayer will have to
consider certain rules that are intended
to ensure that the taxpayer will be taxed
on the gain inherent in (or “built-into”)
his property at the time it is contrib-
uted to the partnership. Under these
rules, if the partnership were to sell the
contributed property, the gain realized
would first be allocated, and taxed, to
the taxpayer to the extent of the built-
in gain.10 For that reason, the taxpayer
will want to negotiate a period of time
during which the partnership will not
be permitted to sell the contributed
property; otherwise, the taxpayer may
never realize any tax deferral benefit.
Alternatively, the taxpayer will want
to be indemnified by the partnership for
the resulting tax liability.
Joint Venture
The taxpayer may decide that his
real property can be converted to a dif-
ferent, more profitable use. For exam-
ple, commercial properties in good or
up-and-coming locations may be turned
into residential rental buildings or con-
dominiums.
Because the taxpayer may not have
the expertise or the financial where-
withal to do this on his own, he may
decide to co-venture with a real estate
professional to undertake the develop-
ment project.
The joint venture would be struc-
tured as a partnership (usually in the
n March 2017 n 3
form of an LLC) and, so, the contri-
bution of the real property to the LLC
will raise many of the issues described
above regarding UPREITs. However,
there may also be other factors at play.
For example, although the owner will
be contributing his real property to the
venture in exchange for a membership
interest therein, he may also want
to take some equity off the table. In
that case, the partnership (using funds
contributed by the other partner) may
distribute some cash to the taxpayer.
This cash distribution may cause
the contribution of the property to be
treated as a partial sale of the proper-
ty. In that case, the taxpayer will have
taxable gain, unless the distribution
falls within one of several enumerated
exceptions (including the reimburse-
ment of certain pre-formation capital
expenditures), or the taxpayer uses the
proceeds to acquire replacement prop-
erty as part of a like kind exchange.
In general, the gain recognized will be
treated as capital gain. However, such
gain may be treated as ordinary income
under the related party rules, depend-
ing upon the size of the taxpayer’s
interest in the partnership.11
Wrap-Up
The foregoing was just a brief
description of some of the ways in which
a taxpayer may handle the disposition
of his real property in a tax-advan-
taged manner. Of course, a taxpayer’s
particular facts may make it difficult
to effectuate a disposition through one
of more of these tax-deferral vehicles.
For example, the taxpayer may not be
the sole owner of the subject property.
Once co-owners are introduced into the
equation, it may be that all bets are off,
depending upon their relationship and
their relative priorities, and depending
upon the terms of their partnership,
operating, or shareholder agreement,
if any.
Speaking of shareholders, if the real
property is held in a corporation—
every tax adviser’s nightmare—the
above deferral techniques will have to
be employed at the corporate level, but
the resulting economic consequences
will also have to be considered from the
perspective of the shareholders.
As always, it will behoove the real
property owner to plan for his exit from
the investment well in advance, and
to structure his holdings in a way that
will best facilitate such exit.
Louis Vlahos, Farrell Fritz, P.C. (Lou leads
the firm’s tax practice and writes a weekly
blog: Tax Law for the Closely Held Business
www.taxlawforchb.com)
1 IRC § 1(h).
2 IRC § 1031.
3 IRC § 1031(a)(3).
4 Treas. Reg. § 1.1031(k)-1(c)(4).
5 IRC § 857.
6 IRC § 351.
7 IRC § 1001.
8 IRC § 752.
9 IRC § 707; Treas. Reg. Sec. 1.707-3.
10 IRC § 704(c).
11 IRC § 707(b).
4 n March 2017 n Nassau Lawyer

OUR FIGHT FOR FUNDING: Nassau

Mortgage foreclosure consultation clinics and mandatory settlement conferences Lawyer
In August 2015, the In addition to the consul- 3. The law allows mortgagees to
New York State Comp- tation clinics, and responsive complete mortgage foreclosure via an The Official Publication
troller published a report to 2009 New York State leg- expedited process when the property of the Nassau County Bar Association
entitled, “The Foreclo- islation that established man- is vacant and abandoned; and 15th & West Streets, Mineola, N.Y. 11501
sure Predicament Per- datory settlement conferences 4. The law enhances many of the con- Phone (516) 747-4070 • Fax (516) 747-4147
www.nassaubar.org
sists,”1 which correctly prior to permitting foreclosure sumer protections that were enacted to
E-mail: info@nassaubar.org
states that “trends in actions to move forward, the protect homeowners after the subprime
both new foreclosure fil- NCBA brought its volunteer mortgage market collapse in 2008. NCBA Officers
ings and the total num- lawyers to Nassau Supreme. This legislation also provides addi- President
ber of pending foreclo- The NCBA did so because the tional protections for homeowners Martha Krisel, Esq.
sure filings indicate mandatory settlement confer- as part of the mandatory settlement President-Elect
that the problem is far
from resolved.” The 2015 From the ence law failed to include any conference in residential foreclosure
financial provisions for repre- actions, including the creation of a new
Steven G. Leventhal, Esq.
Vice President
report relied upon a New
York State Comptroller
2012 report that had
President sentation of homeowners fac- “Consumer Bill of Rights” and supple-
ing foreclosure. To this day, mental notice requirements informing
the NCBA is present at every property owners of their rights, includ-
Elena Karabatos, Esq.
Treasurer
Richard D. Collins, Esq.
addressed the impact of single mandatory settlement ing their right to remain in their homes
Martha Krisel Secretary
foreclosures on local gov- conference – every Mon- until the completion of the foreclosure Dorian R. Glover, Esq.
ernment.2 Both reports day, Tuesday and Wednes- process. All of this needs to be ensured
discuss the continued day morning and afternoon through legal consultation. Executive Director
Keith J. Soressi, Esq.
impact that the backlog of foreclosure – armed only with NCBA’s Associate Honored at the 2017 Black Histo-
cases have on the court system as well Attorney Greg Fishkin and volunteer ry Committee’s Twelfth Annual Cele- Editors-in-Chief
Rhoda Y. Andors, Esq.
as the reduction in property values attorneys to assist homeowners navi- bration, Past President Lance Clarke Anthony J. Fasano, Jr., Esq.
as a result of blighted properties in gate modifications and solutions. expressed his deep concern that the
Proofreader
foreclosure. Now, the NCBA is faced with helping NCBA’s crucial work through its con- Allison C. Shields, Esq.
At the NCBA, the foreclosure crisis Nassau County’s residents interpret sultation clinics and representation at
is “old news.” In 2008, NCBA Presi- the 2016 Zombie Property Remediation settlement conferences face loss of key Editor/Production Manager
Sheryl Palley-Engel
dent Lance Clarke authorized me to Law, 3 which also does not include any NCBA staff because the final bank
establish a mortgage foreclosure task financial provisions for legal assistance settlement funds provided by Attorney Assistant Editor
Valerie Zurblis
force to research and address early for homeowners in need of protection. General Schneiderman are slated to
reports of what were ultimately labeled Effective December 20, 2016, the law run out on September 30, 2017. Past Photographer
“subprime mortgages.” Later dubbed Hector Herrera
“NINJA” loans (No Assets No Jobs), Although I have asked our members to volunteer for our Access to March Editorial Staff
Nassau County’s Office of Housing and Elder Law/Trusts & Estates
Nassau County’s private practitioners Justice initiatives for many years, I have never before asked for Deborah S. Barcham, Esq.
were hearing stories about real estate Focus Editor
contracts based upon either an extreme- assistance with funding. Now, I am doing just that. 
Rhoda Y. Andors, Esq.
Ellin Regis Cowie, Esq.
ly low down payment (as low as 2.5%) Christopher J. DelliCarpini, Esq.
or no down payment at all, and about imposes obligations on mortgage ser- President Clarke emphasized the need Anthony J. Fasano, Jr., Esq.
Thomas McKevitt, Esq.
mortgages for $400,000 homes for pro- vicers to maintain properties under to urge our New York State legislators Jeff H. Morgenstern, Esq.
spective home owners with reported foreclosure. Described by the New York to ensure funding so that organizations David Torreblanca, Esq.
incomes as low as $35,000, or with no Conference of Mayors (NYCOM) as like the NCBA can continue to pro- Upcoming Focus Issues
proof of income at all. This, of course, “one of the most significant reforms tect those affected by foreclosures. Past April 2017
factored into a financial crisis in the passed during the 2016 New York President Lance Clark stated that, “I General
United States, and to particularly high State Legislative session,” the legis- think of the thousands of people who May 2017
incidences of mortgage foreclosures in lation includes substantial changes to have received legal services that they Matrimonial/Family/Adoption Law
Nassau and Suffolk Counties, where New York’s Real Property Actions and otherwise could not have afforded but June 2017
Health Care
real estate is expensive. Proceedings Law (RPAPL) that are for this program to save their most pre-
At the NCBA, our quickly-assem- intended to address zombie properties, cious asset – their home.” Clarke also Committee Members
Rhoda Y. Andors, Esq., Co-Chair
bled task force included government a major cause of the distressed, vacant, applauded Deputy Assembly Speaker Anthony J. Fasano, Jr., Esq., Co-Chair
attorneys (County Attorney, District and abandoned properties that blight Earline Hooper for fighting to ensure Deborah S. Barcham, Esq.
Attorney, New York State Attorney New York’s cities and villages. Zom- continued funding to sustain the work Gale D. Berg, Esq.
Sean E. Campbell, Esq.
General), NCBA’s not-for-profit part- bie properties are mortgage-delinquent of the NCBA at both the consultation Deanne Marie Caputo, Esq.
ners (Nassau-Suffolk Law Services) properties that have been abandoned clinics and at the mortgage foreclosure David Z. Carl, Esq.
and private attorneys with decades by the owner but which languish for settlement conferences. Ellin Regis Cowie, Esq.
Christopher J. DelliCarpini, Esq.
of experience in real estate transac- years in a state of disrepair and neglect Although I have asked our mem- Marc G. DeSantis, Esq.
tions who had never seen or heard of until the mortgagee completes the fore- bers to volunteer for our Access to Jus- Stephen Donaldson, Esq.
anything remotely like these mort- closure process. tice initiatives for many years, I have Avrohom Gefen, Esq.
Nancy E. Gianakos, Esq.
gage opportunities. At the NCBA, we never before asked for assistance with Avigail Goldglancz, Esq.
held meetings and organized a forum obtaining funding. Now, I am doing Robert S. Grossman, Esq.
through the NCBA Community Rela- How NCBA members can help: just that. Please make every effort to Adrienne Flipse Hausch, Esq.
Charles E. Holster III, Esq.
tions and Public Education Committee Volunteer at the NCBA
contact your New York State elected George M. Kaplan, Esq.
that filled the room with 250 extreme- gberg@nassaubar.org officials to encourage continued fund- Patricia Kessler, Esq.
ly worried homeowners. By May 2009, www.nassaubar.org /Mortgage%2| ing to protect homeowners from losing Kenneth J. Landau, Esq.
we opened our first consultation clin- Foreclosure/MortgageForeclosure.aspx their most valued asset: the homes in Michael J. Langer, Esq.
Douglas M. Lieberman, Esq.
ic and we have never looked back. 516-747-4070 x 202 which they raise their children and Cheryl Y. Mallis, Esq.
The original clinics included volun- care for their families. Pro Bono Direc- Angelica M. McKessy, Esq.
Contact your Legislators to Urge Funding Thomas McKevitt, Esq.
teer attorneys, municipal attorneys http://www.lwvnyc.org/elected_officials.html
tor Gale Berg will help you prepare for
Jeff H. Morgenstern, Esq.
and housing counselors from Nassau calls and will provide sample letters Sasha A. Navarrete, Esq.
County and other not-for-profit organi- and email text. Marian C. Rice, Esq.
zations. That model has changed over As always, please contact me at Daniel W. Russo, Esq.
Michael A. H. Schoenberg, Esq.
the years but the one-on-one assis- According to NYCOM, the Zombie mkrisel@optonline.net with questions Allison C. Shields, Esq.
tance provided by volunteer attor- law has four main components: or comments. David Torreblanca, Esq.
neys continues twice a month, every 1. The law requires certain mort- James W. Versocki, Esq.
Augusta J. Young, Esq.
month, and we have assisted more gagees to inspect properties that are 90 1 www.osc.state.ny.us/localgov/pubs/research/
than 12,000 Nassau County residents days mortgage-delinquent and to secure 2 snapshot/foreclosure0815.pdf
www.osc.state.ny.us/localgov/pubs/research/
Published by Long Island Business News
with mortgage foreclosure and Super- and maintain properties that are found (631) 737-1700; Fax: (631) 737-1890
foreclosure.pdf
storm Sandy problems. Ultimately, we to be vacant and abandoned; 3 RPAPL § 1308. And see Section 422.9 Publisher Graphic Artist
secured funding for our professional 2. The law requires certain mort- Enforcement. RPAPL 1308 and 1310 and the Scott Schoen Michael Duntz
staff through the New York State gagees to register vacant and aban- rules in this Part will be enforced as provid- Nassau Lawyer (USPS No. 007-505) is published
ed under RPAPL section 1308(8), the Finan- monthly, except combined issue of July and
Attorney General’s Home Owner Pro- doned properties with a State-main- cial Services Law and the Banking Law. August, by Long Island Commercial Review,
tection Program (HOPP). tained property registry; 2150 Smithtown Ave., Suite 7, Ronkonkoma,
NY 11779-7348, under the auspices of the
Nassau County Bar Association. Periodicals
postage paid at Mineola, NY 11501 and at
Nassau Lawyer welcomes articles written by members of the Nassau County Bar Association and are of substantive and procedural legal interest to additional entries. Contents copyright ©2017.
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our membership. Views expressed in published articles or letters are those of the authors alone and are not to be attributed to the Nassau Lawyer, its Nassau County Bar Association, 15th and
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Elder Law/Trusts & Estates
Promissory Notes: Medicaid’s “Plan B”
There are many myths and misconcep-
tions surrounding Medicaid, specifically in
the nursing home context. Although Med-
icaid has a “five
year lookback” rule
for nursing home
applications, many
families begin
planning for Med-
icaid only when
their loved one is
already in need
of skilled nurs-
ing care. While
it is still possible
to obtain nursing
Deidre M. Baker home Medicaid
benefits when a
loved one is already in a nursing home
or about to enter one, the applicant has
fewer options to preserve assets. Depend-
ing on the family structure and the appli-
cant’s resources, the best option at this
point is often a promissory note.
What is a Promissory Note?
In order to apply for nursing home
Medicaid, an individual must be in a
skilled nursing facility with no more than
$14,850 in non-qualified assets in his or
her name at the time of the application.
For clients who have resources above
the Medicaid allowance, the attorney
will then look for ways to spend-down
the surplus resources without incurring
a Medicaid penalty period. The most
common exception to the transfer pen-
alty rule is transfers to the “community
spouse” or the spouse who is not seeking
nursing home Medicaid benefits. The
community spouse may keep the higher
of $74,820 in assets or one-half of the cou-
ple’s assets up to $119,220. Also exempt
are transfers to the applicant’s child (or
a supplemental needs trust for his or her
benefit) who is certified blind or disabled.
Exempt transfers may also be made to a
supplemental needs trust for the benefit
of the applicant (if he or she is under age
65) or for the benefit of another person
disabled and under age sixty-five.
In 2005, the Deficit Reduction Act
(DRA) was enacted and had consid-
erable implications for individuals
seeking nursing home Medicaid bene-
fits. This federal law made significant
changes to the financial eligibility rules
of the Medicaid program, specifically
the transfer penalty rules when deter-
mining eligibility for nursing home ben-
efits, as the lookback period increased
from 36 to 60 months. The DRA also
made a noteworthy change to when
the penalty period begins or “starts
running.” In a pre-DRA application, the
penalty period started to run the month
after a non-exempt transfer was made.
The new rule dictates that the penalty
period starts on the later of the date the
assets are transferred, or the date on
which the individual is eligible for Med-
icaid. Typically, the second scenario
applies and the penalty period does not
start running until the individual is in
a nursing home, is financially eligible,
and has submitted an application for
Medicaid benefits.
When all possible transfer exemp-
tions, if any, have been utilized and the
applicant still has excess resources, it
is still possible to preserve some of the
applicant’s funds. In this scenario, a
promissory note is often the best way
to protect assets while still obtaining
Medicaid benefits. A promissory note is a
written promise to repay a loan that con-
Nassau Lawyer n March 2017 n 5
tains specific terms that will prevent it the amount of the loan. It is critical often intimidate clients. As a practice
from being evaluated by the Department that the attorney provides the borrow- tip, it is a good idea to also draft an
of Social Services as a countable resource er with explicit instructions regarding explanation letter to accompany the
for Medicaid eligibility purposes. what must be paid to the facility each note for the client. The explanation
By properly drafting and utilizing a month as it will be different from the letter should include all of the gifts and
promissory note, a financially ineligible actual nursing home bill. The attorney assets that were used in calculating the
individual is able to transfer assets out must also advise the client that the note, as well as the applicant’s income.
of his or her name in order to bring the total accumulated shortfall will be due Additionally, a chart outlining all of the
assets below the Medicaid allowance. to the facility at the end of the note. payments to be made and shortfall each
This permits the applicant to generally
save a significant amount of money that Drafting the Promissory Note month helps avoid confusion as to what
is expected of the borrower each month
would otherwise be spent on privately Once the calculations are complete during the length of the loan.
paying for nursing home care. and the gift and loan portions of the Even when done well in advance of
There are essentially two transfers assets have been determined, the note needing care, Medicaid planning is con-
that take place in the promissory note itself is fairly straightforward. In order fusing, at best. When nursing home care
plan. One transfer is a gift to someone for a promissory note plan to be effec- is needed immediately in the absence of
other than the applicant, typically a tive, the terms of the note must care- planning, it becomes exponentially more
child or other trusted family member, fully comply with the DRA. There are complicated, especially in the post-DRA
which creates a penalty, or period of four basic elements to a DRA-compliant world that exists today. Accurately draft-
ineligibility for Medicaid. The applicant promissory note: (a) the note must be ing and utilizing a promissory note as part
will be responsible for privately paying actuarially sound based on the lender’s of a larger Medicaid and asset protection
for the nursing home care during this life expectancy as determined by the plan can have significant financial bene-
penalty period. The second transfer, Office of the Chief Actuary of the Social fits for clients, but mistakes can also be
done simultaneously, is a loan of the Security Administration; (b) the note costly. It is important that this type of
remaining assets to the borrower, often must provide for payments of equal
to the same individual who receives the value for the length of the note; (c) the
planning be done under the supervision of
an experienced elder law attorney.
gifted assets, who in turn signs a prom- note cannot allow for deferral, prepay-
issory note documenting the loan. From ments, or balloon payments; (d) the note Deidre M. Baker is an associate attorney
the loan portion of the assets, there must prohibit the cancellation of the with the Elder Law firm of Makofsky & Asso-
will be a returning monthly income balance of the note upon the death of ciates, P.C., located in Garden City, New
stream that contributes towards the the lender.2 It is critical that the note York. The firm concentrates its practice on
cost of care in the skilled nursing facil- explicitly state all four of these elements trusts, estates and Medicaid planning, Med-
ity during the Medicaid penalty period icaid applications, guardianships, and estate
in order to avoid the value of the note administration. The attorneys can be reached
incurred by the transfers. being considered an asset by Medicaid. at (516) 228-6522.
Creating the Plan While the terms of the promisso-
ry note are relatively straightforward, 1. 42 USC § 1396p (c)(1)(D)(ii).
The most important step is ensuring the language of the note itself can 2. 42 USC § 1396p(c)(1)(I).
you have gathered all of the neces-
sary information before attempting to
calculate the promissory note. While
using rough numbers during an ini-
tial consultation may help the client
get a sense of the how the note works,
and how financially beneficial it can
be, accurate figures are needed before
you can finalize the plan. This means
gathering statements for all financial
accounts that the applicant currently
has or had in his or her name within the
past 60 months, even if joint with other
owners. It is critical that the attorney
review all assets and income sources in
order to accurately draft the note. Does
the client have life insurance with cash
value or have a 529 savings plan for his
or her grandchildren? Is there a security
deposit at the facility? These assets will
need to be factored into the gift and loan
calculation or explained to the County.
The attorney cannot protect any assets
of which he or she is unaware.
Calculating the gifted and loan por-
tion of the applicant’s excess resources
involves a delicate balance of being
“otherwise eligible” for Medicaid, pay-
ment of the applicant’s care during
the penalty period, and preserving the
applicant’s assets. The note itself will
often have to be calculated multiple
times before the numbers work out for
the individual applicant.
In order to be deemed “otherwise eli-
gible” for Medicaid, an applicant must
be receiving skilled nursing care in a
facility, be “income eligible” and have
assets below the Medicaid resource
allowance, which is currently $14,850.
New York is an income spend-down
state meaning in order to be “income
eligible,” a nursing home resident must
have medical bills he is unable to meet
in full; this is known as the “shortfall.”1
The amount of the shortfall will vary
from client to client as it depends on
the monthly income of the applicant,
the private pay cost of the facility and
 6 n March 2017 n Nassau Lawyer

Join us on Saturday, May 13, 2017 at the Nassau County Magistrates

118th Annual Dinner Dance
Long Island Marriott
Uniondale, New York
Invitations Mailed in March
$195 per person
2017 Distinguished Service Medallion Recipient
Association Donates $5,000
to Support Eisman Building
Fund and LAP
By Valerie Zurblis
The Nassau County Magistrates
Association (NCMA) had a special
guest at its General Membership Meet-
ing on February 2, 2017 – Nassau
County Bar Association President Mar-
tha Krisel. On behalf of the NCMA’s
approximately 120 members, many of
whom were at the gathering held at the
Bar Association, NCMA President and
former NCBA President Susan Katz
Richman proudly presented President
Krisel with two checks, totaling $5,000.
The first check of $2,500 was donat-
ed to the Lawyer Assistance Program
(LAP), which provides free and confi-
dential assistance to the legal commu-
nity with problems relating to alcohol
and drug addition, gambling, depres-
sion and other emotional and behav-
ioral issues that affect one’s well-being
and professional conduct. Richman
said, “The NCMA applauds all of the
confidential, competent assistance LAP
renders to judges and lawyers facing
addiction, illness and various other For more information on the Steven J.
difficulties – whether or not they are Eisman Memorial Fund, contact Stephen
NCBA members.”
The second donation of $2,500 went
to the Steven J. Eisman Memorial
Building Fund, which is dedicated to
President Steven J. Eisman’s vision
of maintaining the Bar Association’s
building, fondly referred to as “Domus,”
for future generations of legal profes-
sionals.
“Domus has always been the Nassau
County Magistrates Association’s home
to use – free of charge,” Richman noted.
“NCMA members are privileged to be
able to share in the historic beauty and
tradition of camaraderie in gathering
at Domus for our meetings, educational
programs and festivities.”
President Krisel was thrilled to
accept the contributions on behalf of
the Nassau Bar Foundation, the char-
itable arm of the NCBA. “Both LAP
and Domus serve a purpose wholly
consistent with the Nassau County
Magistrates Association’s goal – the
fair and effective administration of jus-
tice to the public that we all serve.”
Schlissel, (516) 877-8000.

Grace D. Moran, Esq.

Moran ŸKaramouzis LLP
NCBA Past President

We take pride in honoring the

NCBA members who are
celebrating their NCBA President Martha Krisel (l) received the NC Magistrates Association donations
from President Susan Katz Richman and Vice President Hon. Perry T. Criscitelli, with
50, 60 and 70 year anniversary NCBA President Elect Steven Leventhal.
Photo by Hector Herrera

of admission to the Bar.

Full list of Honorees,
see insert in this issue.

To take an ad in the
Dinner Dance Journal
see INSERT in this issue
or contact Special Events (516)747-4070
or events@nassaubar.org

Elder Law/Trusts & Estates
Why an Elder Law Attorney?
As our population continues to age,
there will be many opportunities for
non-elder law attorneys, accountants,
geriatric care
managers, social
workers, etc. to
refer their cli-
ents for advice
about Medicaid
planning/applica-
tions. It is becom-
ing increasingly
commonplace
for families to be
referred to local
Home Care Agen-
Melissa Negrin- cies or “Medicaid
Wiener Specialists” to
prepare Medicaid
applications for Home Care benefits
and Nursing Home Residents.
The Medicaid process is made up
of a set of intricate rules which may
be applied differently from county to
county. There are monthly and even
weekly changes in the way that the
Department of Health directs the local
Departments of Social Services to inter-
pret their Medicaid regulations. These
changes are often followed by appeals
and the outcomes of these hearings can
completely change the regular course
of action in a given Medicaid matter.
If practitioners are not immersed in
this type of work on a daily basis, they
are quite likely to miss some change or
nuance which could greatly affect the
Nassau Lawyer n March 2017 n 7
outcome of a case.
What happens when a family choos-
es to use an agency instead of an elder
law firm? There are stories upon stories
of disastrous and costly mistakes and
outcomes. Consider the following:
Sally1 and her mother, Clara, live
together in a home owned by Clara.
They have lived together for forty years.
A number of years ago Sally contacted
her accountant regarding Medicaid for
Clara and was referred to a “Medicaid
Agency.” Clara had very little in the
way of assets, but for her home. A
Medicaid application was submitted by
the Medicaid Agency and subsequently
approved. Clara recently passed away
but was a recipient of Medicaid benefits
for a number of years.
A few weeks after Clara passed
away, Sally received a letter from the
Estate and Casualty Recovery Unity
in Albany advising Sally that the Med-
icaid program had paid out approxi-
mately $340,000 for Clara’s care. They
were looking to recover that amount of
money from Clara’s estate. The only
asset of Clara’s estate was the home
that Sally still lived in.
The Social Services statute and
implementing regulations2 state that
a person will be eligible for Medicaid,
including nursing facility services, if
the applicant’s house is transferred to
that person’s:
See ELDER LAW ATTORNEY, Page 24
8 n March 2017 n Nassau Lawyer

Elder Law/Trusts & Estates

The Right of Sepulcher:

An Overview of Rights Regarding Dead Bodies
When a person dies, typically family For example, in Matter of Grace D., to determine whether a body should § 4306 provides a good-faith exception,
members agree on the burial arrange- the decedent’s sister and niece disagreed be disinterred. When it appears that exempting from civil or criminal liabil-
ments quickly. Occasionally, a question on whether the remains should be bur- remains were interred in contravention ity a person who acts in good faith in
ied or cremated.2 Although the sister, to the decedent’s desires, the courts accordance with the terms of the Public
who favored cremation, had a higher will allow disinterment and reburial, Health Law or with the anatomical
possessory right, the court noted that for example, to satisfy the “longing that gift laws of another state.17 However,
the decedent left a clear indication of those united during life shall not be in Batjer, the court concluded that
his wish to be buried by the purchase divided after death.”9 The standard is the record, which evidenced a cash-for-
of a burial plot some 35 years earlier, whether there are good and substantial body-parts scheme, did not support a
including the payment of a permanent reasons for disturbing the grave. finding of good faith.18
care fee indicating his intention that the In Briggs v. Hemstreet-Briggs, the
plot eventually be used and perpetually decedent executed a will where he Conclusion
tended. The court therefore granted the expressed his wishes to be buried “in Justice Cardozo wrote that courts
niece’s motion and directed that dece- the family plot at the Cobleskill Cem- must be sensitive “to all those prompt-
dent be buried.3 etery.”10 The plot, where his first wife ings and emotions that men and women
In a similar case, Booth v. Huff, was buried, contained a joint headstone hold for sacred in the disposition of their
Desiree Lovell Brian White the decedent’s daughters and soon-to- with the decedent’s name and date of dead.”19 Although the law provides for,
Fusco be ex-wife disagreed about where the birth. Decedent later remarried and, and Courts will rule on, what happens
decedent’s cremated remains should be upon his demise, the decedent’s new to a decedent’s body, this is the last
arises regarding the authority to make laid to rest: where the decedent hunted wife buried the decedent in a different thing that anyone wants. The best way
those arrangements, that is, who pos- and fished; the family garden; or in the county without notifying his family. to avoid this problem is by executing a
sesses the right to choose and control family plot. The court noted: The court held that there was a triable clearly drafted will stating the testator’s
the method of disposal of a human Generally, “the surviving next of issue of fact concerning the decedent’s intent for the disposition of his remains
corpse, known as the right of sepulcher. kin have a right to the immediate wishes. and nominating an executor to take
possession of the decedent’s body
Authority to Bury or Cremate a Body for preservation and burial…”
Most recently, the New York Coun-
ty Supreme Court has weighed in on
action on that intent. This will take the
burden away from the surviving fam-
First and foremost, the decedent’s However a decedent’s wishes will the issue of disinterment. Archbishop ily members, and will insure that the
last will and testament will govern. be taken into account when a dis- Fulton J. Sheen, an Emmy Award–win- decedent’s wishes are understood and
Public Health Law § 4201(3) grants pute erupts over the ultimate dis- ning host of a television show in the carried out.
the individual the capacity to make position of remains and, in some 1950s, was entombed at St. Patrick’s
a designation, in advance, by execut- cases, given effect over the objec- Cathedral in Manhattan, in 1979.11 A Desiree Lovell Fusco is the managing partner
ing a document specifying the agent tions of family members.4 campaign to have Archbishop Sheen at Bondi Iovino & Fusco, an AV-rated general
with capacity to make arrangement to The executor had scattered the ashes declared a saint had stalled when a practice in Garden City. She concentrates her
dispose of decedent’s remains. Section into the Hudson River, and various practice in the areas of trusts and estates,
dispute arose between the Catholic
4201(3) also provides the form of such blood relatives sought damages for their including planning, drafting, and litigation.
Archdiocese of New York and Sheen’s Brian G. White is an associate at Bondi Iovino
an instrument. loss of the right of sepulcher; however, niece, who brought an application to & Fusco.
However, if the decedent is intes- the Third Department found there was have his body moved to Peoria, Illinois,
tate, or if the will is silent or unclear a triable issue of fact regarding the where the candidate for sainthood was 1. See, e.g., Application of Hilliard, 91 N.Y.S.2d
regarding the disposal of decedent’s decedent’s intentions—regardless of the raised and ordained. Supreme Court 547, 549 (Sup. Ct., Bronx Co. 1944) (acknowl-
remains, New York has designated who family members’ wishes.5 Justice Arleen Bluth ruled in Novem- edging decedent’s act of building a mausoleum
is responsible for how a decedent’s Where there is a material issue of was indication of his intentions for his own
ber 2016 in favor of transferring Arch- burial place); In Re Application Pursuant to
remains would be laid to rest. Public fact concerning the burial wishes of bishop Sheen from his resting place at Art. 4200 of Pub. Health Law, 196 Misc.2d
Health Law § 4201(2) lists eleven dif- a decedent, an evidentiary hearing is St. Patrick’s Cathedral to St. Mary’s 599, 600 (Sup. Ct., Nassau Co. 2003) (finding
ferent persons, in descending priority, required.6 Notably, the Dead Man’s Cathedral in Peoria. The court deferred decedent showed intent to have a traditional
who shall have the right to control Statute does not preclude the parties at to the family’s wishes because “peti-
Jewish burial based on his involvement in
the Jewish community as testified to by his
the disposition of the remains. In the such a hearing from submitting the tes- tioner has set forth a justifiable, good, Rabbi).
absence of such a writing, the law will timony of disinterested persons regard- and substantial reason for moving the 2. 31 Misc.3d 622 (Sup. Ct., Nassau Co. 2011).
look to the statutory “possessory” rights ing the decedent’s wishes about how he remains.”12 3. Id. at 624.
of the next of kin, in the order provided wanted his remains to be disposed of.7 4.273 A.D.2d 576 (3d Dept. 2000) (quoting Estate
for in § 4201(2). Civil and Criminal Liability for of Finn v. City of New York, 76 Misc.2d 388,
While this statute settles the ques- Right to Disinter a Body Mishandling Corpses 389 (App. Term 1973) (internal quotation
mark omitted)).
tion of “who” has the right to possess When the decedent’s final resting The right of sepulcher was recog- 5. Id. at 576.
the body, the “where” and “how” may place may not be “final,” that is, when nized at common law, and is occa- 6. Briggs v. Hemstreet-Briggs, 256 A.D.2d 894, 894
still need to be adjudicated. That is, the a party asks for the body to be disin- sionally called upon by a family who (3d Dept. 1998).
courts will intervene if the Will did not terred, New York also has an appli- 7. Booth, 273 A.D.2d at 576 (citing CPLR 4519);
has been wronged by a party in pos- see also Matter of Conroy, 138 A.D.2d 212, 215-
indicate decedent’s desires regarding cable statute. Not-For-Profit Corpora- session of a decedent’s remains.13 In 16 (3d Dept. 1988).
his final resting place or method of body tion Law § 1510(e) dispenses with the one macabre case, Shipley v. City of 8. Conroy, 129 A.D.2d at 849.
disposal, and his wishes, if ascertain- need for court approval if the cemetery New York, the City Medical Examiner’s 9. Eirand-Herskowitz v. Mt. Carmel Cemetery
able, will be enforced, even if contrary corporation, surviving spouse, parents, Assn., 27 Misc.3d 1213(A) (Sup. Ct., Queens
Office removed and retained a deceased Co. 2011), aff’d, 82 A.D.3d 1232 (2d Dept.
to the family’s preferences. and children of the deceased all consent teenager’s brain without notifying the 2011) (allowing disinterment to accomplish
Courts will look to actions taken by the to disinterment. parents.14 The young man’s family had decedent’s “paramount wish that his wife and
decedent to ascertain his or her intent to However, courts will intervene if all consented to an autopsy after the teen he be together in death as they were in life”).
be buried or cremated, and where.1 The necessary consents are not obtained,8 died in a car accident; after the autopsy 10. Briggs, 256 A.D.2d at 894.
procurement of a plot is a clear indication and will weigh the decedent’s wishes 11. Cunningham v. Trustees of St. Patrick’s Cathe-
the remains were retrieved by funeral dral, 53 Misc.3d 1215(A), *1 (Sup. Ct., N.Y.
of the intended final resting place. even more heavily when called upon home personnel. Two months later, Co. 2016).
classmates of the decedent’s sister took 12. Id. at *3.
a field trip to the county mortuary and 13. See, e.g., Emeagwali v. Brooklyn Hosp. Ctr.,
11 Misc.3d 1055(A) (Sup. Ct., Kings Co. 2006)
discovered, in a “surreal coincidence,” a (right violated when hospital disposed of still-
human brain in a jar labeled with the born fetus remain without acquiring permis-
decedent’s name. The Second Depart- sion of parents); Whack v. St. Mary’s Hosp.
ment ruled that questions existed as to of Brooklyn, 2003 WL 230702 (Civil Ct., N.Y.
Co. 2003) (mishandling by hospital morgue
whether the Medical Examiner’s Office allowed decomposition preventing proper
had violated the parents’ right of sep- embalming and funeral delay).
ulcher by failing to inform them that it 14. 80 A.D.3d 171 (2d Dept. 2010).
had retained the brain while releasing 15. Id. at 179.
the rest of the decedent’s body.15 16. 77 A.D.3d 1279 (4th Dept. 2010).
17. Pub. Health Law § 4306(3).
The mishandling of a corpse may 18. Batjer, 77 A.D.3d at 1279; see also
also give rise to criminal charges. In http://www.rochesterfirst.com/news/lat-
People v. Batjer, the Fourth Depart- est-headlines/funeral-home-owner-found-
ment affirmed a funeral director’s guilty-in-body-parts-scandal.
19. Yome v. Gorman, 242 N.Y. 395, 402 (1926)
conviction for body stealing, opening (allowing disinterment to satisfy the “longing
graves, and unlawful dissection of that those united during life shall not be divid-
a human body.16 Public Health Law ed after death).

Elder Law/Trusts & Estates
Elder Care Planning:
How to Avoid a Turnover Proceeding
The “durable power-of-attorney” is one
of the most powerful planning tools
that an attorney can recommend to a
client, not only for estate planning, but
also for Medicaid and other entitlement
programs. - Caregiver.com
As noted, powers of attorney are
incredibly effective in Medicaid planning.
This is because, in the event of disabil-
ity, a designated agent will be in place
with decision-making authority to act on
behalf of the disabled individual. In Med-
icaid planning, the designated agent can,
if properly authorized, transfer a disabled
individual’s assets in order to qualify him
or her for Medicaid. After all, the prima-
ry focus typically is to protect the gifted
assets against the possibility of a Medic-
aid recovery. However, a secondary con-
cern—one that is gaining more and more
attention—is the potential challenge of
these gifts by fiduciaries on behalf of
disgruntled heirs. These surrogate’s court
proceedings, known as turnover proceed-
ings, are initiated by a fiduciary to pursue
recovery of a gifted asset for distribution
as part of a decedent’s estate. Fortunate-
ly, with proper planning and drafting,
practitioners can reduce the likelihood
that an asset gifted during the decedent’s
lifetime will need to be returned and dis-
tributed as part of the decedent’s estate.
When planning for Medicaid, a prin-
cipal will often choose to authorize an
agent to act in areas relating to “benefits
Nassau Lawyer
principal for purposes of qualifying for Med-
icaid. And while a principal can authorize
an agent to make gifts under the “personal
needs and family maintenance” authority
of the statutory short form, such authority
only allows an agent to make gifts up to
$500 annually in the aggregate, an amount
largely inadequate for any proper Medicaid
plan.2 Instead, if the principal desires to
give his or her agent the authority to make
significant gifts on his or her behalf, espe-
cially as part of a Medicaid plan, the prin-
cipal must initial that authority within the
Ronald A. Elizabeth power of attorney and attach a separately
Fatoullah, Esq. Forspan, Esq. signed and acknowledged document called
a statutory gifts rider (SGR).3
from governmental The SGR has been the recent focus of
programs or civil or turnover proceedings in surrogate’s court
military service,” because it is through the gift giving author-
which, according ity of the SGR that an agent potentially
to the rules of con- alters a principal’s future probate estate.
struction, enables In other words, when an agent transfers
the agent to act a principal’s assets to take advantage of a
on behalf of the Medicaid exemption—thereby qualifying
principal to make the principal for Medicaid and protecting
payments and file the asset against a Medicaid recovery—
claims against a the recipient of the gift may not be the
government agen- same person that would have otherwise
cy, including Med- inherited the gift on the principal’s death.
Jeffrey Gorak, Esq. icaid.1 This includes
To illustrate, an agent may, if properly
the authority of the authorized, transfer a primary residence
agent to submit a to a caretaking child living at home, which
Medicaid application and recertification on would be an exempt transfer for Medicaid
the behalf of the principal. However, this purposes, but the “caretaking child” may
authority does not allow an agent to trans- only be one of three children named to
fer assets or make gifts on behalf of the receive the house under the decedent’s
n March 2017 n 9
will. These types of transfers have been
the subject of a surge of turnover proceed-
ings in the surrogate’s court.
Turnover proceedings, as they relate
to the recovery of assets transferred by
power of attorney for purposes of Medicaid
planning, generally fall into one of three
categories of claims. First, the fiduciary
of the estate (or one appointed for this
purpose) could claim that the principal
did not possess the requisite capacity to
execute a power of attorney and SGR. In
New York, the creation of a valid power of
attorney, including SGR, must be signed
by a principal with capacity. According to
the General Obligations Law, capacity is
the ability to comprehend the nature and
consequences of the act of executing and
granting, revoking, amending or modify-
ing a power of attorney, any provision in
a power of attorney, or the authority of
any person to act as agent under a power
of attorney.4 In assessing a principal’s
capacity, an attorney should, at a mini-
mum, describe the features of the power
of attorney (e.g., durable v. non-durable),
review the enumerated powers and any
modifications in the power of attorney,
review the powers and any modifications
in the SGR, discuss potential agents and
methods of revoking the power of attorney,
and most critically, explain to the principal
the risk of abuse by dishonest agents.5 The
attorney must be certain that the principal
See ELDER CARE, Page 19
10 n March 2017 n Nassau Lawyer
Elder Law/Trusts & Estates
The Bare Essentials of Charitable Split-Interest Trusts
Charitably inclined individuals and
entities may choose among a wide vari-
ety of methods of transferring money
or property to or
for the benefit of
an organization
of choice. One
class of meth-
ods is known
as a charitable
split-interest
trust, so named
because the tech-
nique allows cer-
tain division of
the trust between
Matthew E. a charitable ben-
Rappaport eficiary and a
non-charitable
beneficiary. Congress explicitly allows
and arguably encourages donors to
use charitable split-interest trusts to
incentivize charitable contributions;
the donor effectively receives a tax
benefit in exchange for its donation.
While charitable split-interest trusts
require deep study to truly under-
stand, this primer is meant to intro-
duce uninitiated practitioners to the
concept and make them comfortable
enough to discuss the option with cli-
ents who might benefit.
Charitable split-interest trusts are
divided into two interests: a lead inter-
est and a remainder interest. The char-
itable beneficiary receives one inter-
est, with the non-charitable beneficia-
ry receiving the other; the settlor of
the trust will choose which upon the
trust’s creation. Charitable split-inter-
est trusts may last for a term of years
or for an entire measuring life.
Charitable split-interest trusts can
be divided into four broad types, each
of which Congress has explicitly sanc-
tioned in the Internal Revenue Code;
any other type will not be eligible for
a tax deduction.1 An annuity trust sets
forth a structured and predetermined
set of payments to be made to the lead
beneficiary, and when the term of the
trust expires, the remainder beneficiary
will receive all leftover trust property. A
unitrust provides for a valuation of the
trust property each year, with a fixed
percentage thereof distributed to the
lead beneficiary. When the term of the
trust expires, the remainder beneficiary
will receive all leftover trust property.
If the charitable beneficiary receives
the lead interest, the trust is known as
a charitable lead trust (CLT); on the
other hand, if the charitable beneficia-
ry receives the remainder interest, the
trust is known as a charitable remain-
der trust (CRT). Accordingly, the four
allowable types of charitable split-inter-
est trusts are a charitable lead annuity
trust (CLAT), charitable lead unitrust
(CLUT), charitable remainder annuity
trust (CRAT), and charitable remainder
unitrust (CRUT).
Choosing a Trust Structure
Two major practical differences exist
between an annuity trust and a uni-
trust: predictability and consequenc-
es of market fluctuations. An annuity
trust provides the lead beneficiary a
safer and more predictable payment
stream; therefore, the lead beneficiary
is only sensitive to market fluctuations
that would affect the trust’s ability to
make the required payments. However,
the remainder beneficiary is very sensi-
tive to market fluctuations because the
remainder beneficiary receives nothing
if the value of the trust assets decreas-
es below the threshold amount neces-
sary to satisfy the obligations to the
lead beneficiary. On the flipside, the
remainder beneficiary enjoys all of the
appreciation in the value of the trust
assets beyond the amount necessary
to satisfy the obligations to the lead
beneficiary.
A unitrust provides a less predict-
able payment stream to the lead bene-
ficiary, but since the annual payments
to the lead beneficiary depend on the
value of the trust assets each year, the
lead beneficiary benefits from appreci-
ation in the value of the trust assets.
Consequently, this greater exposure to
market risk also means the lead bene-
ficiary receives lower payments if the
value of the trust assets decreases year-
over-year. The remainder beneficiary
is less sensitive to market fluctuations
because the unitrust structure pro-
vides much greater assurance that the
remainder beneficiary’s interest will
not be exhausted by the time the inter-
est vests.
The factors contributing to a settlor’s
choice of structure for a charitable
split-interest trust are as follows:
Identity of Non-Charitable Ben-
eficiary: Whether the settlor prefers
to name herself or another party as
non-charitable beneficiary. If the set-
tlor prefers to name herself, a CRT
is the far likelier choice because the
settlor will not need to wait until the
expiration of the trust term to receive
a distribution.
Market Risk:
Whether the settlor prefers the char-
itable or non-charitable beneficiary be
exposed to greater market risk based
on the trustee’s investment strategy
and/or market forecasts. The CRAT and
CLUT expose the charitable beneficiary
to greater market risk, whereas the
CLAT and CRUT expose the non-char-
itable beneficiary to greater market
risk.
Predictability of Annual Payments:
Whether the settlor prefers the lead
beneficiary receive a safer and more
predictable annual payment stream or
receive a payment stream that may
benefit or suffer depending on mar-
ket performance. As described above,
this will determine whether the settlor
chooses an annuity trust or a unitrust.
Interest Rates:
The prevailing interest rate under
Internal Revenue Code § 7520 will
determine the actuarial value of the
charitable beneficiary’s interest for pur-
poses of calculating the donor’s federal
income, estate, and gift tax deductions.2
Concordantly, the prevailing interest
rate also determines the actuarial
value of the non-charitable beneficia-
ry’s interest. This is important when
the settlor names someone other than
herself as non-charitable beneficiary
because the settlor will then be making
a gift of the non-charitable interest.3
Tax Implications
If the trust is settled during the set-
tlor’s lifetime, or if the trust is settled
by an entity, the settlor will immedi-
ately receive a charitable contribution
deduction from federal income tax and
federal gift tax for the actuarial value
of the charitable beneficiary’s interest.4
The income tax deduction is limited to
either 20% or 30% of the donor’s adjust-
ed gross income for the taxable year,
depending on the type of charitable
recipient,5 and the deduction may be
carried forward five years if not fully
used during the first taxable year it
arises.6 If the trust is created under a
testamentary instrument, the settlor
will receive a charitable contribution
deduction from federal estate tax upon
her death for the same amount.7 The
actuarial value of the lead and remain-
der interests will be calculated based
on (1) fair market value of the property
contributed to the trust upon forma-
tion, (2) prevailing interest rates upon
creation of the trust, and (3) expectancy
of the measuring life (if the trust is not
for a term of years).8
Charitably inclined individuals com-
monly use CLTs in a similar man-
ner as grantor retained annuity trusts
(GRATs).9 The two types of trusts func-
tion the same way, except the lead ben-
eficiary of a GRAT is the settlor and the
lead beneficiary of a CLT is a charitable
organization; accordingly, CLTs do not
come with the same mortality risk as
GRATs. When a CLT is structured as a
CLAT, the remainder interest may be
actuarially “zeroed out,” meaning the
settlor is not considered to make any
taxable gift upon creating the trust;10
however, if the trust assets achieve a
greater rate of return than the pre-
vailing interest rate under § 7520,
the remainder beneficiaries receive the
excess returns free of all federal estate
and gift taxation. When the § 7520 rate
is relatively low, this “hurdle” rate of
return is easier to surmount, thereby
making the technique more likely to
succeed. When the settlor anticipates
certain assets will drastically appre-
ciate in value, a CLAT may serve as
a highly tax-efficient way to bequeath
those assets to the next generation.
Charitably inclined individuals com-
monly use CRTs to dispose of appreci-
ated capital property in a tax-efficient
way. Upon donation of appreciated
capital property to a CRT, the donor
immediately receives a federal income
and gift tax deduction for the actuarial
value of the remainder interest.11 The
CRT can then sell the appreciated capi-
tal property to a third party, which will
incur no federal income tax because
CRTs are not subject to any federal
income tax.12 Rather, federal income
tax incurred by a CRT will be taxed to
the lead beneficiary as distributions are
made.13 Donation to a CRT offers the
following advantages over an outright
sale by the donor: (1) an immediate fed-
eral income tax deduction, (2) taxation
of the income incurred from the sale
of the donated asset(s) at potentially
lower marginal rates, and (3) removal
of the donated asset(s) from the donor’s
gross estate.14
This discussion is meant as a surface
introduction to charitable split-interest
trusts. The topic is replete with techni-
cal nuances, which a practitioner can
explore deeply when a client expresses
serious interest in pursuing the strate-
gy. When considering possible solutions
for the charitably inclined client, no
practitioner’s planning arsenal should
be without charitable split-interest
trusts.
Matthew E. Rappaport, Esq., LL.M. (Taxation)
is a sole practitioner concentrating in taxation
as it relates to closely held businesses, trusts
and estates, and real estate. His offices are
located in Manhattan and Rockville Centre.
1. IRC §§ 170(f)(2), 2055(e), 2522(c).
2. See Treas. Reg. § 1.170A-6(c)(3); see also Treas.
Reg. § 20.2055-2(f). Note that CLTs only give
rise to a federal income tax deduction for
the settlor when the trust is structured as a
grantor trust under IRC § 671. IRC § 170(f)(2)
(B). Otherwise, CLTs are structured as com-
plex trusts and receive a federal income tax
deduction for all payments made to a charity
pursuant to IRC § 642(c).
3. See generally IRC § 2511(a).
4. IRC §§ 170(f)(2), 2522(c).
5. IRC § 170(b)(1)(D)(i).
6. IRC § 170(b)(1)(D)(ii).
7. IRC § 2055(e).
8. See generally IRC § 2511(a).
9. See generally IRC § 2702.
10. See Walton v. Comm’r, 115 T.C. 589 (2000).
11. See generally IRC § 2511(a).
12. IRC § 664(c)(1).
13. IRC § 664(b).
14. Note the lead interest in the CRT is potentially
includible in the donor’s gross estate, depending
on the identity of the lead beneficiary.

Addressing Claims Against A Client’s Settlement Funds
By Matthew K. Flanagan
Facts
The lawyer representing a plaintiff
in a personal injury action has success-
fully negotiated a settlement of the case
for $30,000. When the client comes in
to sign the settlement check, which has
been made out to both the lawyer and
the client, he advises the lawyer that he
really needs the money because a lien
for unpaid child support has wiped out
his savings.
The lawyer knew nothing of the child
support lien until the client mentioned it,
and when she inquires of the client, she
learns that the lien for unpaid child sup-
port is far greater than the client’s net
recovery from the settlement. She points
this out to the client, and the client says
that the attorney is not to (a) pay the lien
or (b) notify anyone of the receipt of the
Nassau Lawyer
ON ETHICS
The NCBA Ethics Committee welcomes ethics inquiries. It responds to the majority received
informally. The Committee does not provide legal advice or answer questions of law or establish
attorney-client relationships. The facts may have been modified to respect the sensitivity of
inquiries. The Committee’s hotline number rotates and can be learned by calling (516)747-
4070. The Committee’s chair, Kevin Kearon, can be reached at kkearon@barketmarion.com or
at (516)745-1500.
settlement funds. The client points out Rules Implicated
that the only way the attorney learned
of the lien was from him, and, he says, Rules of Professional Conduct, 22
the communication is protected by the NYCRR 1200.0, rules 1.15(c), 1.6(b).
attorney-client privilege. Discussion
Question Telling a client that he cannot have
“his money” is not a pleasant task. It
Can an attorney who learns from
may cause even the most agreeable cli-
the client of a third party’s interest in
ent to become disagreeable. Yet, in the
the client’s settlement funds notify the
third-party that the settlement funds hypothetical above, the attorney may
be required by the Rules of Professional
have been received?
Conduct to do just that.
Under Rule 1.15 (c)(1), where a law-
yer receives funds in which a client has
an interest, he or she must promptly
notify the client. But the duty to notify
does not stop with the client. The same
rule also requires the lawyer to notify
any third party who has an interest
in the funds. Similarly, Rule 1.15(c)(4)
requires the attorney to “promptly pay
or deliver” the funds to not only the
client, but to any third parties who are
entitled to receive them.
In our hypothetical, the attorney only
learned of the lien from her client. The
question which arises, then, is whether
an attorney who learns of a lien solely
n March 2017 n 11
through a confidential communication
from a client can ethically comply with
his or her notification obligations under
1.15(c)(1). In other words, does the obli-
gation to notify a third person under
1.15(c)(1) trump the duty under Rule
1.6 to maintain confidential informa-
tion obtained from the client? The short
answer is yes. The notification of third
persons under Rule 1.15(c)(1) does not
amount to a violation of Rule 1.6 because
under Rule 1.6(b)(6), a lawyer may reveal
confidential information when permitted
or required by other provisions of the
Rules of Professional Conduct. Thus, the
notification of third persons mandated by
Rule 1.15(c)(1) does not violate an attor-
ney’s obligation to maintain confidential
information obtained from the client.
An attorney can be held liable for
disregarding a third-party’s claim of
an interest in settlement proceeds. In
Leon v. Martinez, a plaintiff in a per-
sonal injury matter assigned part of his
recovery to one of his caretakers. The
attorney representing the plaintiff was
aware of the assignment (he drafted
it), but when the settlement proceeds
arrived, neither the attorney nor his
client paid any of the proceeds to the
caretaker. The caretaker then sued the
attorney and his firm. In finding that
the caretaker had stated a cause of
action against the attorney, the Court
of Appeals noted that Disciplinary Rule
9-102 (the predecessor to Rule 1.15(c)
See SETTLEMENT, Page 24
12 n March 2017 n Nassau Lawyer
Conducting an Article 81 Hearing
I will begin this article with the same
introduction I use when I speak on this
topic: I have good news and bad news
when it comes to doing an Article 81
hearing. The good
news is that the
rules of evidence
apply. The bad
news is the rules
of evidence apply
(unless waived by
showing of good
cause is made).
My point is that
if you are com-
fortable with the
rules of evidence,
Hon. Arthur M. you will have no
Diamond problem.
The petitioner
has the burden of proving incapacity
by clear and convincing evidence. Thus,
the petitioner will proceed with a wit-
ness(es) who can testify as to the capac-
ity of the alleged incapacitated person.
Assuming that the petition wants a
guardian to have both personal and
property powers, the witnesses must
provide competent, credible testimony in
support of the application. Medical testi-
mony is not necessary but may be need-
ed in certain cases. It is often sufficient
if the petitioner produces witnesses who
are able to testify as to the inability of
the incapacitated person (AIP) to man-
age their own personal and property
needs. So, for example, personal needs
VIEW FROM THE BENCH
are those that entail the activities of
daily living (ADLs)—eating, cooking,
grooming, bathing, dressing, cleaning,
shopping and medical management.
Property management typically involves
knowing one’s assets—for example their
pension, social security income, bank
accounts and where they are, paying
bills timely, and if needed the ability to
cooperate with a Medicaid application.
If you are familiar with MHL Arti-
cle 81, you are aware that the statute
created the position of court evaluator,
typically an attorney whom the court
assigns to conduct an investigation of
the allegations contained in the peti-
tion. The purpose of the evaluator is
to serve as the “eyes and ears of the
court” and to investigate the allega-
tions contained in the petition. That
would typically involve speaking to the
children of the AIP if there are any, the
next of kin, friends and anyone else the
evaluator deems appropriate. There is
access to the banking information and
the medical providers as well and upon
application to the court the evaluator
may gain access to such records if the
court is satisfied that it is necessary to
protect the well being of the AIP. The
evaluator will then submit a report
typically a few days before the hearing.
It is my practice that the evaluator will
testify after the petitioner produces
their case. The evaluator’s testimony
summarizes their investigation and
the content of the report which report
is then put into evidence.
The petitioner puts in all their proof.
It is important to be aware that the
alleged incapacitated person, common-
ly known as the AIP, has no obligation
to participate in the hearing other than
to appear. If the AIP tells the evaluator
that they will not speak to them or that
they intend to contest the appointment
of a guardian the evaluator must imme-
diately report that to the court and the
court will assign counsel for the AIP if
they do not have their own. The peti-
tioner may not call the AIP as a wit-
ness, as AIPs cannot be forced to testify
against their interest. This may well be
the case because once a person is found
to be incapacitated under the statute,
the court may allow the guardian to
take control of the AIP’s property, sell
their home, have them placed in a
nursing or other facility. These powers
may clearly impact on the Fifth and
Fourteenth Amendment rights of the
AIP, notwithstanding the fact that this
is not a criminal proceeding. Case law
establishes these interests.
Likewise, it is interesting to note
that case law also allows the AIP to
refuse to speak to the evaluator, even once contested the hearing is an adver-
though the statute says that they must. sarial one but all parties are in agree-
If the AIP chooses not to, the petitioner ment that outcome should reflect above
must proceed to prove the case without all the best interests of the subject.
any input from the AIP themselves. Hon. Arthur M. Diamond is a Supreme Court
As you can hopefully see from the Justice in Mineola. He welcomes evidence
above, Article 81 of the MHL is an questions & comments and can be reached
unusual statute in many respects. While at adiamond@nycourts.gov.
 2017 Special Events of the Nassau County Bar Association
œThere Is Something For Everyone...Mark Your Calendar 
For Information call (516)747-4070 ­Event location is @ Domus, unless otherwise noted
March
Hon. Elaine Jackson Stack Moot Court Competition­ - Tuesday & Wednesday, March 21 & 22. Third year law school students battle it
out in Appellate Court. Contact: Jennifer Groh x209 or jgroh@nassaubar.org for complete schedule.

WE CARE Dressed to a Tea­ AT SEA - Thursday, March 30 @ 5:00 p.m. $50pp. Featuring dinner, a spring fashion show and unique raffles.
Contact: Jody Ratner x226 or jratner@nassaubar.org

April
Pro Bono Recognition Cocktail Reception­, Thursday, April 6, 5:30 - 7:30 p.m. A reception recognizing those law firms, solo practitioners and individuals
who have preformed exemplary pro bono service to the community this past year. To RSVP contact Cheryl Cardona (516)747-4070 x231 or
CCardona@nassaubar.org

Cinco de Mayo­, Tuesday, April 25, 5:30 p.m. A celebration of Mexican-American culture. Cooking demonstration, margaritas, food and fun!

May
Law Day Celebration­ - Monday, May 1 @ 5:30 p.m. $60pp Law Day 2017 The 14th Amendment. Cocktails and Awards Dinner presenting the Liberty
Bell Award, Peter T. Affatato Court Employee of the Year Award and Thomas Maligno Pro Bono Attorney of the Year Award.
For details contact: Caryle Katz x211 or ckatz@nassaubar.org

118th Annual Dinner Dance - Saturday, May 13 @ 6:30 p.m. $195pp at the Marriott, Uniondale Join us in celebrating the anniversaries
of our 50, 60 and 70 year practitioners and the 2016 Distinguished Service Medallion recipient Grace D. Moran, Esq., Moran Karamouzis
and NCBA Past President.
To take an ad in the Dinner Dance Journal or make a Dinner Dance reservation contact: Special Events x226 or events@nassaubar.org

WE CARE Las Vegas Theme Night­ - Saturday, May 20. Details TBA

Student Mentor Luncheon­ - Thursday, May 25, 11:45 a.m. Luncheon honoring volunteer attorney members and their student mentees.

June
Installation of Officers­ - Tuesday, June 6 @ 6:00 p.m. New officers and directors of the Nassau County Bar Association and new deans and officers of
the Nassau Academy of Law are sworn into office for their terms of service at Domus. No Charge. Contact: Special Events x226 or events@nassaubar.org

Domus Open Golf Outing & BBQ - Monday, June 19 - Registration 12 noon - Tee-off 1:00 p.m.- Golf $195pp / Open Bar & BBQ Only $75pp
An afternoon of golf at Eisenhower "The Red” and BBQ at The Carltun. To register contact: Special Events x226 or events@nassaubar.org

Open House­- Monday, June 26, 3-5 p.m. or 5-7 p.m. Volunteer Attorneys Wanted! Meet one-on-one with a Nassau resident to provide legal information
and referral. At the Nassau County Bar Association. Call Gale Berg x202

July
WE CARE Ducks Game, Sunday, July 16, 5:05 p.m. Bethpage Ballpark, Central Islip. $45 pp includes BBQ. Ticket information contact Jody Ratner at
(516)747-4070 x226 or jratner@nassaubar.org

WE CARE Golf and Tennis Classic - Monday, July 31 Annual day of golf and tennis followed by dinner. Tam O'Shanter and Mill River Golf Clubs.
For pricing contact: Jody Ratner x226 or jratner@nassaubar.org

August
WE CARE Mets/Yankees Game - Thursday, August 17, 7:10 p.m. Citifield $150 pp includes $30 food/merchandise voucher. Ticket
information contact Jody Ratner x226 or jratner@nassaubar.org

September
BBQ at the BAR­ - Thursday, September 7, 5:30 to 7:30 p.m. The annual outdoor BBQ at Domus. No Charge. Contact: Special
Events or events@nassaubar.org

Oktoberfest­ - Wednesday, September 27, 5:30 - 7:30 p.m. at the Bar Association. Beer tasting, German inspired food and more....always a fun evening
full of surprises! Price TBD

October
Judiciary Night­- Thursday, October 19 at 5:30 p.m. NCBA hosts an evening in honor of all local judges. An opportunity for the
bench and bar to mingle away from the courtroom. Price TBD Contact: Special Events or events@nassaubar.org

Open House­ - Thursday, October 26, 3-5 p.m. or 5-7 p.m. Volunteer Attorneys Wanted! Meet one-on-one with a Nassau resident to provide legal
information and referral. Call Gale Berg (516)747-4070 x202.

November
WE CARE Thanksgiving Day Luncheon for Seniors­, Thursday, November 23. To recommend seniors who are alone for this holiday,
to make a donation or volunteer to serve contact: Jody Ratner x226 or jratner@nassaubar.org

December
WE CARE Gingerbread University­ - Date to be Announced - Saturday, Two sessions - 9:30-11:30 a.m. and 1-3 p.m. Children of all ages
decorate their own gingerbread houses. Price TBD Contact: Jody Ratner x226 or jratner@nassaubar.org

NCBA Holiday Celebration­ - Thursday, December 7 - 6:00 p.m. The annual telling of the “Tale of Wassail” by the NCBA President-Elect,
seasonal entertainment, goodie bags for kids and holiday fare. Price TBD. Contact: Special Events or events@nassaubar.org
LIBN—CLE centerfold March 2017
Paper size 23” x 15”; image size 21.25 x 13.25
14 n March 2017 n Nassau Lawyer
Program Calendar
March 15, 2017
Rise ‘n’ Shine Lecture Series
– Out to Lunch
Introduction to Fraud
Examination and Financial
Forensics
Sign-in 12:30; Discussion 1:00
-2:00PM
Harold L. Deiters III, CPA/
ABV/CFF, MAFF, CGMA,
Partner; Joseph Ammirati,
CPA/ABV/CFF, ASA, Baker
Tilly Virchow Krause LLP,
Melville; Moderator: Michael
C. Daab, Esq., Gassman,
Baiamonte, Gruner, P.C.,
Garden City
Program is free to attend.
Optional CLE credit available
for purchase. This program
also qualifies for skills credit
for newly admitted attorneys.
Must pre-egister. 516.747.4464
or academy@nassaubar.org.
March 15, 2017
Anatomy of a Car Accident
Case: From Crash to Court
With the NCBA Plaintiff’s
Personal Injury Committee
This program is sponsored by
Bee Reporting Agency Inc.
2 credits professional practice
or skills
5:30-7:30 p.m.
Michael Jaffe, Esq., Pazer,
Epstein, Jaffe & Fein, PC,
New York; John Coco, Esq.,
Law Offices of John Coco,
PLLC, Woodbury; Chair,
NCBA Plaintiff’s Personal Injury
Committee
NASSAU ACADEMY OF LAW
APRIL
April 3, 2017
Dean’s Hour: Nursing Home
Litigation – Claims, Defenses
and Discovery
With the NCBA Elder Law
Committee and NCBA Personal
Injury Committee
1 credit professional practice
or skills
Sign-in and Networking 12:30;
Program 1-2PM
Michele R. Levin, Esq.,
Catalano, Gallardo &
Petropoulos, LLP, Jericho
April 3, 2017
Litigating a Medical
Malpractice Case: Part 3—
Examination Before Trial
(EBT)
This series is sponsored by
Giorgenti Men's Custom
Clothing
2 credits professional practice
or skills
5:30-7:30 p.m.
Terrence L. Tarver, Esq.,
Tarver Law Firm, P.C., Garden
City; Treasurer, Nassau Academy
of Law Advisory Board
Russell Corker, Esq., Law
Offices of W. Russell Corker,
P.C., Huntington
April 4, 2017
Dean’s Hour: Top 10 Ethical
Problems Facing Attorneys
Today
With the NCBA Ethics
Committee
1 credit ethics
Sign-in and Networking 12:30;
Program 1-2PM
Kevin T. Kearon, Esq., Barket,
Marion, Epstein & Kearon,
LLP, Garden City; Chair,
NCBA Ethics Committee
April 4, 2017 April 19, 2017 Apr
Speaking for the Child: What Critical Ethical Consideration On
Family Law Practitioners Lecture Series Presents: and
Need to Know Dean’s Hour: Representing Act
With the NCBA Family Law & the Guilty Client In co
Procedure Committee AND the This series is sponsored by Cen
Nassau County Assigned Counsel Signature Bank Serv
Defender Program, Inc. 1 credit ethics Mat
2 credits ethics Sign-in and Networking 12:30; 3 cr
6:00-8:00 p.m. Program 1-2PM or s
Jeffrey M. Carpenter, Inc., Chris G. McDonough, Esq., 5:30
Chief Attorney, Nassau County McDonough & McDonough Step
Family Court; Kellie Stabile, LLP, Garden City; Omid Gas
Esq., Westbury, Chair, NCBA Zareh, Esq., Weinberg Zareh P.C.
Family Court Law & Procedure Malkin Price LLP, New York, **Th
Committee; Mark A. Green, Nassau Academy of Law Advisory is w
Esq., Westbury ; Donna M. Board for a
McCabe, Esq., Westbury to ta
Ellen Pollack, Esq., Mineola, April 19, 2017 befo
Vice-Chair, NCBA Family Court Determining Capacity: It Can thro
Law & Procedure Committee Make Your Head Spin LI o
With the NCBA Surrogate’s Serv
April 5, 2017 Court Trusts and Estates
Business of Law Lecture Series Committee Apr
Presents: 3 credits professional practice Imm
Dean’s Hour: Budgeting and 5:30-8:30 p.m. Crim
Profitability Hon. Anna R. Anzalone, Wit
1 credit professional practice Justice, Supreme Court, Law
or skills Nassau County; Hon. Gary F. Crim
Sign-in and Networking 12:30; Knobel, Acting Nassau County Com
Program 1-2PM Court Judge; Mark S. 2 cr
Frederick J. Esposito, CLM, Bekerman, Esq., Woodbury or s
Executive Director, Rivkin Michael P. Ryan, Esq., Jaspan 5:30
Radler LLP, Uniondale Schlesinger LLP, Garden City Erin
Thomas J. Foley, Esq., Nassau Lynn A. Schaefer, Ph.D., Cro
Academy of Law Associate Dean, Neuropsychologist; Cindy L. P.C.
Foley Griffin LLP, Garden City Breitman, Ph.D., Imm
Neuropsychologist Mic
** Please join us at 12:30 for a Moderators: Dennis Wiley, Lon
networking opportunity Esq., Rivkin Radler LLP, Imm
preceding this program. Uniondale, Co-Chair, NCBA Cen
Networking should be a fully Surrogate’s Court Trusts and Cris
integrated component in the Estates Committee; Sally M. Muj
life of every attorney, Donahue, Esq., Jaspan How
regardless of years of Schlesinger LLP, Garden City; Hem
experience. It will lead to Co-Chair, NCBA Surrogate’s
stronger contacts and Court Trusts and Estates
friendships that can help in Committee
every aspect of your practice.
We hope to see you **
 Nassau Lawyer n March 2017 n 15

Nassau Academy of Law ORDER FORM

TO REGISTER OR ORDER: Circle your selections in the correct columns and total amount due.
•By Check: Make checks payable to NAL and mail with form to NAL, 15th and West Streets, Mineola, NY 11501
•By Credit Card: FAX completed form with credit card information to 516-747-4147
•Seminar Reservations Online: www.nassaubar.org >MCLE>Calendar, Reservations
April 20, 2017 Seminar Reservation Form
ation On Trial: The Preparation Domus
Date Seminar Name TOTAL Non- Mem- Scholar
and Trial of a Matrimonial P E S Credits Member ber Circle 18B
ng Action Mar 15 Anatomy of an Automobile Accident 2.0 √ 2 $80 $115 $0 N/A
Apr 3 DH: Nursing Home Litigation 1.0 √ 1 $30 $40 $0 N/A
In collaboration with The Safe Apr 3 Litigating Medical Malpractice : Part 3 2.0 √ 2 $80 $115 $0 N/A
y Center LI, Nassau Suffolk Law Apr 4 DH: Top 10 Ethical Problems 1.0 1 $30 $40 $0 N/A
Apr 4 Speaking for the Child 2.0 2 $80 $115 $0 FREE
Services and the NCBA Apr 5 DH: Budgeting and Profitability 1.0 √ 1 $30 $40 $0 N/A
Matrimonial Law Committee Apr 19 DH: Representing the Guilty Client 1.0 1 $30 $40 $0 N/A
April 19 Determining Capacity 3.0 3 $115 $155 $0 N/A
2:30; 3 credits professional practice Apr 20 On Trial: Preparation and Trial..Matrimonial 3.0 √ 3 $115 $155 $0 N/A
or skills Apr 26 Immigration Consequences of Criminal Charges 2.0 1.0 3 $115 $155 $0 TBD
q., 5:30-8:30 p.m.
√ DENOTES SKILLS CREDIT AVAILABLE
ugh Stephen Gassman, Esq., SEMINAR RESERVATION TOTAL:
Gassman Baiamonte Gruner, CD and DVD Order Form
eh P.C., Garden City CD/DVD
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rk, **The Nassau Academy of Law P E Credits Member Member Seminar Code
visory is waiving tuition for the CLE Criminal Criminal Law and Procedure Update 2016 2.5 0.5 3 115/130 150/175 6CRIMUP1104
Ethics DH: Adversarial Client 1.0 1 40/55 75/80 DH020217
for attorneys who will commit Labor & DH: Non-Compete Clauses 1.0 1 40/55 75/80 DH030217
to taking a pro-bono case Employment Who Wants to be…Employment Law Millionaire 2.0 2 75/95 110/130 7EMPLOY0228
Law Firm DH: Excel Esquire 1.0 1 40/55 75/80 DH030817
before October 20, 2017 Management DH: Where Did the Time Go? 1.0 1 40/55 75/80 DH020117
Can through either The Safe Center Medical Litigating Med Mal Case: Pt 1 - Taking the Case 2.0 2 75/95 110/130 7MEDPT10202
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ctice Immigration Consequences of CD/DVD ORDER TOTAL:
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y, Long Island Regional
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BA Center, Central Islip
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. Mujer, Islandia
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 16 March 2017 Nassau Lawyer
WE CARE
n n

We Care
Dressed to a Tea
We Acknowledge, with Thanks,
AT SEA Contributions to the WE CARE Fund
Thursday, March 30, 2017 DONOR IN HONOR OF
5:00 p.m.  $50 pp Hon. Peter B. Skelos

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Fashion Show by Hon. Peter B. Skelos Hon. John M. Leventhal, Associate Justice of the
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The WE CARE Golf & Tennis Classic was founded by Stephen W. Schlissel in 1996.

LAWYER LIT
Edward A. McCoyd’s Forester’s Will
Book Review by
Ellin Cowie
“Try to remember a time in Septem-
ber” begins the famous ballad from the
world’s longest-running musical, The
Fantastiks.1 In his latest trusts and
estates novel, Forester’s Will,2 Edward
A. McCoyd, Esq., of counsel at McCoyd,
Parkas & Ronan, P.C., brings his read-
ers back to 1974, when the Yankees and
the Mets both played at Shea Stadium,
the musical “Shenandoah” premiered,
and Rudy Giuliani was a relative-
ly unknown Assistant U.S. Attorney.
McCoyd invites his readers to “try to
remember” when the Honorable C.
Raymond Radigan was the Law Assis-
tant to Surrogate John Bennett, and a
member of the “Bennett Commission,”3
which consolidated and modernized
existing laws into the Estates Powers
and Trusts Law (EPTL) and Surrogate
Courts Procedures Act (SCPA). Forest-
er’s Will features Judge Bennett and
then-Law Assistant Radigan, who rule
on several points of law that arise in the
course of a contested probate proceed-
ing in Nassau County Surrogate Court.
Under the EPTL, the proponent of a
will must demonstrate that the testator
was of “sound mind and memory”4 at the
time he executed the will. In Forester’s
Will, this issue of testamentary compe-
tence pervades. In the early scenes of the
novel, the reader encounters Mr. Chad-
sworth Forester as he is wheeled into
his office, in his Gold Coast mansion, by
his long-time assistant Georgette Gar-
nette. Mr. Forester has been physically
and mentally diminished for some time,
and has difficulty in trying to remember
many things. Mrs. Garnette explains to
Mr. Forester, yet again, that he is not
well enough to travel to California to at-
tend the wedding of her daughter. Mrs.
Garnette assures him that he will be well
looked after in the ensuing two weeks by
his daughter Cassandra, who, though es-
tranged, will be staying at the mansion.
In Mrs. Garnette’s absence, Cassan-
dra engages an unscrupulous attorney,
Simon Peter, Esq., to create a will that
removes Mrs. Garnette as executor and
extinguishes a sizable bequest to her as
provided by an earlier will. Not surpris-
ingly, the new will leaves the bulk of
the estate to Cassandra. Following the
death of Mr. Forester, Mrs. Garnette
seeks assistance of a young attorney
Tim O’Leary to challenge this new will.
Tim and his new partner Mike Green
accept this case on contingency, and set
out to prove that due to Mr. Forester’s
progressive dementia, he lacked the ca-
pacity to execute this dubious will.
As in his earlier novel, Simpson’s
Will,5 McCoyd pits David against Go-
liath. Here, the small firm of Green &
O’Leary represents the disenfranchised
Mrs. Garnette against an established
Wall Street firm seeking to probate this
new will on behalf of its powerful client
Tolentine Trust. The Wall Street attor-
neys are aptly named Mr. Rocque and
Mr. Stoneman. As to the latter, “[h]e’s
a take no prisoners’ type, one of those
guys who doesn’t just want to win. He
wants to chew up his adversaries and
spit them out like bad memories.”6 Nev-
ertheless, Tim temporarily gains the
upper hand by his knowledge of a so-
called “local rule”7 of evidence that es-
capes the Wall Street litigators.
Three-Two Rule
At the deposition of his client, Tim
objects to the scope of questioning based
on the “Three-Two rule,” of which his
opponent is unaware. Tim’s objection is
sustained by an attorney from the Law
Department: “[b]arring special circum-
stances, your examination is limited
to the period commencing three years
before the Will was signed and two
years after, or when [the testator] died
if that was sooner.”8 As Judge Radigan
explained in a recent interview, the
three-two rule would have been only
familiar to practitioners in trusts and
estates law, and not to attorneys in lit-
igation departments of large Manhat-
tan law firms, such as Mr. Stoneman.9
Thus, the hot-shot Manhattan lawyer
is outdone by the smarter but relative-
ly unseasoned solo attorney.10 This rule
is not statutory, but based on caselaw,
and is contained in the New York Code
of Rules and Regulations (“NYCRR”)
pertaining to Surrogate Courts, at 22
NYCRR § 207.27.
Unfortunately, at the conclusion of
her deposition, Mrs. Garnette admits
that she had accepted a $10,000 check
from the decedent just prior to the dece-
dent’s execution of the second will. This
admission shreds the argument that
the decedent was incompetent at this
time he executed the second will. Tim’s
only hope now lies with proving that
Mr. Forester’s daughter exerted undue
influence, which caused him to execute
a will at odds with his true intentions.11
If Tim can unearth evidence that Cas-
sandra’s efforts amounted to moral co-
ercion over her father, the Court will
deny probate of this dubious will.
Mortmain Statute
Meanwhile, Tim receives a career
boost by gaining a new client, Mrs.
Boyd. She intends to leave 100% of her
Connecticut estate to her church. As for
her children and grandchildren, “[n]one
of them gets a dime.”12 Tim is initially
reluctant to draft such a provision, pos-
sibly because of New York’s Mortmain
Statute that had existed up until 1981.
Under EPTL § 5-3.3, a potential distrib-
utee could elect to recover support from
the estate (up to age 21) where a dece-
dent leaves more than half of her estate
to a charity. Mortmain did not apply,
however, if the decedent leaves the
same bequest to an individual. In an
effort to close this loophole and provide
more inclusive protection to children
who are left without sufficient finan-
cial support by the terms of a parent’s
will, the Bennett Commission proposed
replacing the Mortmain Statute with
a family maintenance system, which
would have allowed minor children to
Nassau Lawyer n March 2017 n 17
Forester’s Will to sign various codicils to her 2002 will
that depleted her estate and contradict-
Author: Edward A. McCoyd
ed several publically stated viewpoints.
New Street Publishing Marshall, abetted by an attorney, was
convicted in 2009 of criminal charges
2016
stemming from his abuse of power.22
List price: $10.99 Several years prior to her death,
Brooke Astor had been diagnosed with
dementia, which afflicts approximately
obtain support from a parent’s estate 10 million Americans.23 It is the sixth
where they would have otherwise been
leading cause of death in the United
disinherited.13 Despite efforts of the States, with “potentially catastrophic
Bennett Commission, citing ideals of
legal consequences.”24 In June 2017,
“moral and social responsibility,”14 the Touro Law Center’s Aging and Longevi-
New York State legislature did not rati-
ty Law Institute will sponsor a program
fy this proposed legislation. Eventually,
on “Dementia, Science and the Law,”
the Legislature repealed the Mortmain
Statute entirely in 1981, since it was which will “review alternatives on how
outdated and easily circumvented.15 legal capacity should be determined.”25
In his recent article, co-authored by The New York State Bar Association
Jennifer F. Hillman, Judge Radigan begins 2017 with a spotlight on “the de-
offers an additional reason why New mentia crisis,” dedicating the January
York repealed Mortmain: “a changing edition of the Journal to this topic. For
public policy toward free will.”16 In the those dedicated to protecting the elderly,
1976 case Matter of Estate of Eckhart, particularly in Nassau County, Forest-
the New York Court of Appeals declined er’s Will makes for entertaining yet chal-
to allow a disinherited family member lenging reading. While McCoyd’s book
to use the Mortmain Statute, EPTL § chronicles the by-gone era of the early
5-3.3, where the testator’s stated in- 1970s, the issues raised remain relevant.
tent to disinherit that family member
is unambiguously expressed.17 Thus, Ellin R. Cowie is an attorney practicing in
a New York court would have denied Garden City, and a member of the NCBA
Mrs. Boyd’s disinherited family mem- Publications Committee.
bers their right of election under EPTL
§ 5-3.3 if her will reiterated her inten- 1. Harvey Schmidt and Tom Jones, “Try to
tion that “[n]one of them gets a dime.”18 Remember,” The Fantastisks (1960).
However, the author sidesteps the 2. Edward A. McCoyd, Forester’s Will (New
Mortmain issue since Mrs. Boyd’s estate Street Publishing 2017).
is located in a different jurisdiction. More- 3. Temporary State Commission on the Modern-
over, Tim’s attentions are soon diverted by ization, Revision and Simplification of the
his encounter with Mrs. Campbell, whose Laws of the States, established pursuant to
attorney husband plays an important Chapter 731, § 7 of the laws of 1961.
role in the conclusion of this probate mat- 4. Est. Powers & Trusts Law § 3-1.1.
ter. Mrs. Campbell contemplates turning 5. Edward A. McCoyd, Simpson’s Will (New
over the files of her ailing husband to the Street Publishing 2014).
predatory Simon Peter. Instead, Mike 6. McCoyd, supra note 2, at 65.
and Tim review Mr. Campbell’s files, and 7. Id. at 81.
discover the evidence needed to bar the 8. Id.
second will from probate. 9. Interview with Hon. C. Raymond Radigan, of
Responding to the “Dementia Crisis” counsel, Ruskin, Moscou, Faltischek, P.C., in
Uniondale, NY (January 11, 2017).
Throughout Forester’s Will, McCoyd 10. Id.
keeps his readers guessing as to Mr. For- 11. See In re Will of Walther, 188 N.Y.S.2d 168,
ester’s mental lucidity at the moment 172 (1959) (defining undue influence as
when he executed the contested will. “moral coercion…produced by importunity,
Early on, Mrs. Garnette explains that or by a silent restless power which the strong
her employer was “mentally incompe- will often exercise over the weak or infirm”
tent” having had “senile dementia” that (quoting Children’s Aid Soc. v. Loveridge, 70
had worsened during the last two years N.Y. 387, 394-95 (1877))).
of his life.19 The decedent’s long-time at- 12. McCoyd, supra note 2, at 101.
torney, Wally Denton, elaborates: 13. See Fourth Report of the Temporary State
He had been going downhill for a few Commission on the Modernization, Revision
years. I’d call him now and then to see and Simplification of the Laws of Estates,
if there was anything he needed. He’d N.Y. Legis. Doc. No. 19 (1965).
have a little bit of bounce back from
14. Id. at 197.
time to time, but it wouldn’t last long,
and each one was shorter than the one
15. Est. Powers & Trusts Law § 5-3.3, repealed
L. 1981, ch. 461 § 1, eff. July 7, 1981.
before. Toward the end, for the last six
16. C. Raymond Radigan & Jennifer F. Hillman,
months or so, he wouldn’t even recog-
Mortmain Statute and Restrictions on Testa-
nize my name, even when Mrs. Gar-
mentary Gifts to Charities, N.Y.L.J. July 11,
nette answered the phone and told him
2016, at 3 (citing Matter of Estate of Eckhart,
I was calling.20
Despite the progressive nature of the 384 N.Y.S.2d 429 (1976)).
disease, however, patients with demen- 17. 39 N.Y.2d 493 (1976); see also Estate of
tia often have lucid moments when they Newkirk, 86 Misc.2d 930 (Surr. Ct., Bronx Co.
are capable of executing a valid will. As 1974) and Matter of Cairo, 35 A.D.2d 76 (2d
stated by the Second Department in In re Dept. 1970).
Estate of Hedges, “[i]t has long been rec- 18. Supra, n.14; see Est. Powers & Trusts Law §
ognized that old age, physical weakness 1-2.19(a) (testator’s stated intention regarding
and senile dementia are not necessarily disposition of her property prevails).
inconsistent with testamentary capacity 19. McCoyd, supra note 2, at 17
as long as the testatrix was acting ra- 20. Id. at 64.
tionally and intelligently at the time the 21. 100 A.D. 2d 586 (2d Dept. 1984) (emphasis
codicil was prepared and executed.”21 added).
At the same time, failing mental 22. Joseph A. Rosenberg, Regrettably Unfair:
powers often leaves the elderly vulner-
Brooke Astor and the Other Elderly in New
able to moral coercion by their trusted York, 30 Pace L. Rev. 1003 (Spring 2010).
caretakers and family members. Such 23. Robert Abrams, The Dementia Crisis, NYSBA
undue influence was exemplified by Journal, Jan 2017, at 11, fn 7
Anthony Marshall who influenced his 24. Id. at 9, 10.
mother Brooke Astor in her last years 25. Id. at 11.
18 n March 2017 n Nassau Lawyer

HONORS ... by serving as General Counsel. These

Continued From Page 1
Award,” she said. “Indeed, he embodies
the very spirit of this honor. His storied
path allows us to see the measure of a
man.”
After earning his bachelor’s degree
from Tufts University and law degree
from Suffolk University Law School in
Boston, Clarke joined his family’s law
firm, the well-known community pillar
of Cooke & Clarke, based in Hempstead
since 1957. “In those years, this privi-
lege was extended to few people of color,”
Judge Phoenix noted.
Besides carrying a full caseload of
clients, Clarke also lent his keen skills
to dozens of community-based entities
include the Hempstead Branch of the
NAACP, the Roosevelt Fire District, the
Hempstead Housing Authority and the
Wyandanch Union Free School District.
Notably, for more than 30 years he has
served as Commissioner and Counsel
to the Town of Hempstead Landmark
Preservation Commission. In addition,
Clarke has rendered countless service
hours assisting not-for-profit entities.
Perhaps Lance Clarke is best known
for his dedicated service to the Village of
Hempstead. He served as Village Jus-
tice of the Justice Court of Hempstead,
Hempstead Village Trustee and as Dep-
uty Mayor. Additionally, he served as
Hempstead Village Special Counsel and
Village Prosecutor. “He is beloved in
Hempstead,” Judge Phoenix remarked.
Clarke now serves as counsel to the mise” to reform the Justice Courts.
Deputy Speaker of the New York State One of Clarke’s keynote initiatives
Assembly, Earlene Hooper. was bringing together all the satellite
Leading the Bar Association bar associations and the Magistrates
Association to present “Diversity in the
As President of the Nassau County Legal Profession.” He also participated
Bar Association from 2007 -2008, Clarke in “Courting Justice,” a gathering of 65
distinguished himself as an advocate judges, lawyers, and court clerks, offi-
for a new, first class Family Court and cers, reporters and interpreters in front
matrimonial center to be moved from
of 250 school children in a unique half-
Westbury to the existing court complex
area in Mineola. day presentation on careers in the law.
New initiatives during his term At the awards ceremony, Clarke said,
included an Animal Rights Task Force “To maximize education and avoid igno-
and pro bono assistance to returning rance, take up a cause, work with oth-
veterans and homeowners facing mort- ers and mentor someone, for life is not
gage foreclosure. In addition, NCBA worth living unless you live your life
authored two important reports regard- with a goal to make a difference for
ing the court system -- one on the Special someone other than yourself.”
Commission on the Future of the Courts (For more on Lance Clarke, see
of New York, and the “Nassau Compro- President’s Column, page 4.)

MOCK TRIAL ... challenges. In 2012, due to court bud-

get cuts, an overtime cost for court
Continued From Page 1 employees was added to continue to
use the courtrooms in Supreme Court.
with hands-on opportunities to further The Mock Trial Awards Reception also
their understanding of the law, court needs financial assistance to continue
procedures and the legal system, while to honor the students.
honing their speaking, listening, read- “We’ve had excellent support from
ing and reasoning skills. many members and their firms, but we
“The NYS High School Mock Trial still need more law firms to support this
Tournament is a keystone of NCBA’s important program that can promote
mission to inspire citizens’ respect for a career in the practice of law,” said
Community Relations and Public Edu-
the law and the governing principles of
cation Committee Chair Ira Slavit. “We
democracy through public education,”
are gratified that we can always look
said NCBA President Martha Krisel.
to our members to step up to support
“We are proud to provide the oppor-
these efforts.” Slavit encouraged law
tunity, to let students see what a real
firms and individuals who would like
trial is about, and to encourage them to Long-time volunteer Donnalynn Darling, serving as presiding judge, hears opening
statements from student attorneys.
to help to contact him at 516-294-8282,
consider the law as a career.”
Photos by Hector Herrera islavit@newyorkinjuries.com; or NCBA
NCBA began coordinating the pro-
Mock Trial Coordinator Caryle Katz,
gram 30 years ago, and now coordinates
tem at work. Some have served for 15 with the Marcus G. Christ Trophy, donat- 516-747-4070, ckatz@nassaubar.org.
50 participating public and private
years or more. We are fortunate to have ed by the family of NCBA Past President Genoa added, “Having co-chaired
schools and close to 500 students, the
this dedication and commitment from Hon. Marcus G. Christ, former presiding Mock Trial for many years, I must say
largest county participation in the state. it would not be the successful program
our members, but it is not surprising.” justice of the Appellate Division of the
The process to prepare the students for it is without the hard work and efforts
Hon. Leonard B. Austin began vol- New York Supreme Court’s Second Judi-
trial begins in December, when the fact of Caryle Katz, who deals with crises
unteering for Mock Trial as a team cial Department and a leader in the legal
pattern is distributed. All teams receive almost on a daily basis, and Daniel Bag-
advisor when his son was a student at community. The school name is engraved
the same case. NCBA recruits more nuola, Director, Office of Community
Jericho High School in the early 1990’s. on the huge silver bowl trophy, which the
than 53 volunteer judges and attorneys Relations at the Nassau County Court
“Although it was a great experience, he winning team can display at their school
who work with teacher coaches and System, who finds ‘rooms at the inn’ for
decided he never wanted to be a lawyer. for the year.
advise the students on the finer points of all of the trials, not an easy task.”
law and court procedures. Others serve Nevertheless, I continued to be involved New Challenges Krisel added, “This is such an great
as judges for as many as 80 trials held in the tournament as a lawyer-coach Need Member Support service to the community; we would
throughout the tournament, which runs and then later, after my election, as a
volunteer judge,” he remarked. “I want- Coordinating such a massive pro- like to see it continue into the foresee-
February through April. gram doesn’t come without financial able future.”
The tournament is in round robin for- ed to stay involved because it gives kids
mat, with each high school team argu- a great perspective on the court system
ing from both the plaintiff and defense and the reality of what happens during
sides. In May the winning school team a trial. It’s not what they see on TV.”
competes in Albany for the statewide “But I must say, these kids work so
championship. hard, are better prepared, and more
polite than many lawyers I have seen in
Special Value to Volunteers court,” he noted. “I’ve heard many judg-
Year after year, Appellate Court jus- es remark that they wished the lawyers
tices and Federal Court judges vol- they see in court were as prepared and
unteer to judge the final rounds. “We polite as the mock trial students.”
could not have the success we’ve had
without the participation of these judg-
Recognition of Accomplishments
es and jurists in Nassau County,” said Teacher coaches, parents, volunteer
this year’s co-chair Peter Levy. advisors and judges honor the accom-
Co-chair Marilyn Genoa added, “Our plishments of the winning and run-
attorney members take pleasure in serv- ner-up student teams at the annual
ing as role models every year to help Mock Trial Awards Reception held at More than 500 Nassau County high school students gather in the Jury Room at
young students experience the legal sys- Domus. The winning school is presented Supreme Court on the first day of the Mock Trial Tournament.
 Nassau Lawyer n March 2017 n 19

ELDER CARE ... exempt transfers that may deviate from issue and taking contemporaneous notes, 1 Gen. Oblig. Law § 1502J.
the principal’s estate plan at the time of and proper care is taken in drafting the 2 Gen. Oblig. Law § 1502I.

Continued From Page 9 execution of the power of attorney. SGR, including modifications addressing 3 Gen. Oblig. Law § 1502B(2).
Powers of attorney have always been gifts that may deviate from a principal’s 4 Gen. Oblig. Law § 1501(c).
invaluable tools in estate planning, testamentary plan, any future turnover 5 See 1-2 Bender’s New York Elder Law
truly understands the power of attorney including Medicaid planning. Recently, proceeding of a principal’s gifted asset is § 2.02 (2016).
and not simply rely on affirmative nods however, gifted assets by agents as part of more likely to withstand the challenge. 6 Id.
to questions. Moreover, if the supervising the Medicaid planning process have gar- 7 Id.
attorney suspects that the power of attor- nered greater attention in the surrogate’s Ronald A. Fatoullah, Esq. is the principal 8 Id.
ney may be challenged in a turnover pro- court in turnover proceedings. The focus of Ronald Fatoullah & Associates, a law 9 Semmler v Naples, 166 A.D.2d 751, 752 (quot-
ceeding on grounds of incapacity, further
of these challenges typically rest on the firm that concentrates in elder law, estate ing In re Estate of De Belardino, 77 Misc.2d
precautions should be taken. These may
principal’s capacity at the time of signing planning, Medicaid planning, guardianships, 253, 257 (Sur. Ct. 1974)).
include, for example, additional witnesses
the power of attorney, the agent’s author- estate administration, trusts, wills, and 10 See Rose Mary Bailly and Barbara S. Han-
to the SGR with each witness preparing a
ity to make gifts of the principal’s proper- real estate. Elizabeth Forspan, Esq. is the cock, Practice Commentaries, McKinney’s
statement as to the principal’s ability to
ty, and where the principal’s instructions managing attorney of the firm, and Jeffrey Cons Laws of NY, Book 24-A, General Obliga-
understand the nature and consequences
are unknown, whether a gifted asset Gorak, Esq. is a staff attorney at the firm. tions Law § 5-1514.
of the power of attorney.6 Further precau-
was in the principal’s best interests. If The law firm can be reached at 718-261-1700, 11 Id.
tions may also include a memorandum to
practitioners are mindful when assess- 516-466-4422, or toll free at 1-877-ELDER- 12 See In re Estate of Rice, 8 Misc.3d 1001(A)
the file describing the execution ceremo-
ing capacity, including taking precaution- LAW or 1-877-ESTATES. (Sur. Ct. 2005).
ny, conversations with the principal and
ary measures when capacity may be at 13 Id.
interactions with the principal.7 A final
precaution—and perhaps most convinc-
ing evidence of capacity—may include
a doctor’s memorandum describing the
principal’s mental faculties and his or
her ability to comprehend the power of
attorney.8
Another claim that could be asserted
by the fiduciary involves the authority
of the agent to make gifts of the princi-
pal’s property. In the absence of specif-
ic gift-giving authority by an SGR, an
agent cannot make gifts of the principal’s
property to him- or herself, or to a third
party. Gifts made in the absence of such
authority carry a presumption of impro-
priety and self-dealing, a presumption
which can be overcome only with the
clearest showing of intent on the part of
the principal to make the gift.9 This is a
heavy—and often insurmountable—bur-
den to meet. It is therefore important
that a power of attorney drafted for pur-
poses of Medicaid planning include an
SGR, which authorizes an agent to make
gifts of the principal’s property.
Lastly, the fiduciary might claim that
the transferred assets were not made
according to the principal’s instructions,
or, where the principal’s instructions are
unknown, the transfer was not made in
the principal’s best interests, which is
more commonly the case. An agent must
act according to the principal’s instruc-
tions or, when they are not known, in the
principal’s best interests. As it relates to
gift-giving, the principal’s instructions to
an agent in the power of attorney provide
the requisite donative intent to prove the
validity of the gift (in proving that a gift
was made, the donee must prove dona-
tive intent, delivery, and acceptance.)
But if the principal’s instructions are
not known, the principal must act in the
principal’s best interests. Caselaw holds
that transferring assets for the purpose
of qualifying for government benefits,
including Medicaid, is in a principal’s
best interests.10 These cases are based,
at least in part, on a legal presumption
that a disabled individual would want to
take advantage of public benefits as the
primary means of providing care for that
individual.11 While it is clear that plan-
ning for Medicaid is in the best inter-
ests of a disabled individual, it is less
clear whether particular transfers tak-
ing advantage of Medicaid exemptions—
including, for example, the “caretaker
child” exemption—are in the best inter-
ests of the principal when such a transfer
results in a deviation from the principal’s
testamentary plan. At least some courts
have held that the decedent’s testamen-
tary plan is, in fact, indicative of the
decedent’s donative intent.12 As a result,
if a transfer results in a deviation from
the principal’s testamentary plan, the
agent may have breached his or her fidu-
ciary duty to the principal resulting in
an order for the return of the gifted asset
to the decedent’s estate.13 It is there-
fore critical that elder law practitioners
meeting with principals contemplating
Medicaid planning discuss the advan-
tage of modifying the SGR to include
provisions addressing specific Medicaid
20 n March 2017 n Nassau Lawyer

Pro Bono Attorney of the Month

as M. Cooley Law School.
Prior to starting the Law Offices of Patrick
Binakis, P.C., Mr. Binakis worked as an associate
attorney where he represented banks and loan ser-
vicing companies in mortgage foreclosure actions,
including all stages of contested foreclosure.  Sub-
sequently, Mr. Binakis worked as a tax controversy
and litigation associate attorney where he was a
bi-monthly publisher for the firm’s newsletter, occa-
BY GREG FISHKIN Patrick Binakis sional speaker at the firm’s seminars and daily con-
tributor to the firm’s pro bono outreach group.

The Nassau County Bar Association is pleased to
award Patrick Binakis as the latest “Pro Bono Attor-
ney of the Month.”  Mr. Binakis is being recognized
for his generous work with the Nassau County Bar
Association’s Mortgage Foreclosure Project, which
provides twice monthly free legal Clinics as well as
volunteer attorneys to assist unrepresented home-
owners in Nassau Supreme Court.   an equal playing ground, which gives them peace
Mr. Binakis became aware of NCBA’s pro bono
program while working for a firm that represented
banks in foreclosure, and was therefore conflicted
out of giving advice regarding foreclosure matters
to defendants.  This did not stop him from offering
his services as a Greek language interpreter when
guests of the program were in need.  Eventual-
ly, Mr. Binakis changed employment and swiftly
offered to become a full fledged volunteer for the
program.
Having worked for a firm representing plain-
tiffs in foreclosure actions, Mr. Binakis possesses a
unique knowledge base which is of great value to
those wondering about what to expect when they
become defendants in foreclosure actions.  Gener-
ally, bank attorneys are well experienced and pre-
pared as to what arguments to anticipate from their
adversaries and how the legal process will play out.  the community by offering a variety of services for the pub-
Thanks to the information provided by volunteer
attorneys like Mr. Binakis, homeowners without
the means to afford an attorney can be on more of
of mind as well as a greater chance of successful-
ly defending themselves.  As an added bonus, his
mastery of tax issues often proves valuable to those
seeking advice on how to resolve their legal and
financial problems.
Patrick Binakis is the president and founder
of the Law Offices of Patrick Binakis, P.C.  Mr.
Binakis concentrates in the resolution of IRS and
New York State tax controversies and foreclosure
defense. Mr. Binakis earned a B.A. in Political Sci-
ence and a B.S. in Biology from Adelphi University,
New York.  After completing his undergraduate
degrees, Mr. Binakis obtained his J.D. and LL.M. in
Taxation from Western Michigan University Thom-
Founded in 1899, the Nassau County Bar Association con-
sists of private and public attorneys, judges, legal educa-
tors and law students who demonstrate their commitment to
lic, including lawyer referral services, mortgage foreclosure,
Sandy recovery and senior citizen legal clinics, judicial
screening, public education programs, and support for the
Volunteer Lawyers Project, which provides much-needed
free legal services for the indigent of Nassau County.  The
WE CARE Fund, a part of the NCBA’s charitable arm, assists
children, the elderly and others in need, through countless
projects and donations.  For more information, call (516)
747-4070 (language translation available), email info@nas-
saubar.org or visit nassaubar.org.
Greg T. Fishkin, Esq. is the Settlement Conference
Coordinator for Nassau County Bar Association’s Mortgage
Foreclosure Project.  Attorneys who are interested in working
on this pro bono effort, either at Mortgage Foreclosure
Clinics or representing homeowners at a Nassau Supreme
Court Mandatory Settlement Conference, may contact him
at gfishkin@nassaubar.org.

Law Day 2017 Please join us to celebrate and recognize those

law firms, solo practitioners and individuals
who have performed exemplary pro bono service
to the community this past year at

Law Day Celebration The Third Annual

Monday, May 1s 5:30 p.m. Pro Bono Recognition
Nassau County Bar Association
$60 pp
Cocktail Reception
Thursday, April 6, 2017
Cocktails and Awards Dinner
5:30p.m. - 7:30p.m.
Award Recipients
Nassau County Bar Association
Liberty Bell Award
Deputy Inspector Gary Shapiro
Nassau County Police Department
Peter T. Affatato Court Employee of the Year Award
Maria Rizzi, Administrative Secretary
Law Department, Nassau County Family Court
Thomas Maligno Pro Bono Attorney of the Year Award
Justice Anthony J. Falanga (Ret.)
Nassau County Supreme Court
Please RSVP to Cheryl Cardona at
For information and reservations contact Caryle Katz (516)747-4070 x231 or ccardona@nassaubar.org
(516)747-4070 x211 or ckatz@nassaubar.org
 Nassau Lawyer n March 2017 n 21

Committee Reports

Intellectual Property offer a CLE lecture entitled

Meeting Date: 2/2/17
Chair: Ariel Ronneburger
The committee meeting featured
Brian Fried, head of the Nassau and
Suffolk County Inventor’s Clubs, who
addressed issues about how attorneys
can work with clients who propose new
ideas for inventions, and to effectively
aid them in all aspects of the inventing
process, including successful market-
ing. A discussion was held about setting
up a panel of speakers in April or May
2017 to debate/discuss likely changes
with intellectual property and cyber-
security in the current federal admin-
istration.
The next committee is scheduled for
March 8, 2017.
Plaintiff’s Personal Injury
Meeting Date: 2/14/17
Chair: John Coco
The committee discussed the pitfalls
of no fault insurance law, and the dis-
cussion centered around a recent deci-
sion denying a private health insurer
subrogation rights after it paid for treat-
ment covered under a no-fault policy.
The next committee is scheduled for
March 15, 2017, at 5:30 p.m., which will
“Anatomy of a Car Accident
ees not only learned about
the substantive issues, but
the committee’s neutrals and advocates
described issues that have arisen in
Case: From Crash to Court.” also learned trial techniques. arbitrations and mediations, with ideas
In lieu of its March 2017 shared to best address these matters.
Real Property Law
meeting, the committee is A meeting of the panel neutrals will
sponsoring a Dean’s Hour on
Meeting Date: 2/15/17 be held on April 3, 2017, instead of the
March 2, 2017 at 12:30 p.m. regular monthly meeting.
Chair: Patrick Yu at NCBA, and Vice-Chair
The committee meeting
featured Louis Vlahos, Esq.,
Paul Millus will be present-
ing a lecture for CLE cred-
Medical Legal
of Farrell Fritz, P.C., who it entitled “Non-Compete Meeting Date: 3/1/17
delivered a presentation Clauses: The Law Today and Chair: Alan W. Clark
about tax planning for for- Their Future.” The meeting featured a presenta-
eigners buying real estate Michael J. Langer
Alternative Dispute
tion by committee chair Alan Clark
in the United States. The regarding access to medical records and
lecture also included infor- Resolution Protected Health Information (PHI)
mation about income, estate and gift under the Health Insurance Portability
Meeting Date: 2/16/17
tax considerations. and Accountability Act (HIPAA), the
The next committee is scheduled for Chairs: Erica Garay, Loretta M. Gastwirth Health Information Technology for
March 15, 2017 at 12:30 p.m., which will The committee discussed develop- Economic and Clinical Health Act
feature a presentation by Thomas Weiss ments in the NCBA Mediation and (HITECH), and New York’s Public
entitled “Litigating Mechanics Liens.” Arbitration Panels. Reports were
given from the ADR Promotional
Health Law, which included practical
Labor & Employment Law Subcommittee (delivered by Elan
application of these laws and their dif-
ferences.
Meeting Date: 2/15/17 Weintraub) and the ADR Advisory
Council (delivered by its chair, Michael The Committee Reports column is compiled
Chair: Christopher Marlborough Levy), and the committee welcomed by Michael J. Langer, a partner in the Law
The February 2017 committee meet- two new members of the Advisory Offices of Michael J. Langer, P.C.  Mr. Langer
ing featured a presentation by past Council, Maureen DiTata and Hon. is a former law clerk in the United States
Court of Appeals for the Second Circuit, and
committee chair Rick Ostrove about Ira Warshawsky (retired). A discus-
a former Deputy County Attorney in the Office
the “direct threat” exception under the sion was held regarding the use of of the Nassau County Attorney. Mr. Langer’s
Americans with Disabilities Act. Mr. mediation to resolve disputes in var- practice focuses on matrimonial and family
Ostrove presented the material in the ious legal spheres, including contest- law, estate and commercial litigation, and
style of a closing argument, so attend- ed and uncontested matrimonials, and criminal defense.

NCBA Committee Meeting Calendar • March 14 - April 13, 2017

Questions? Contact Stephanie Pagano (516) 747-4070 spagano@nassaubar.org
Please Note: Committee Meetings are for NCBA Members. Dates and times are subject to change.
Check website for updated information: www.nassaubar.org

Tax Law Alternative Dispute Resolution District Court Hospital & Health Law
Tuesday, March 14, 2017 Tuesday, March 21, 2017 Tuesday, March 28, 2017 Thursday, April 6, 2017
12:30 p.m. 12:00 p.m. 12:30 p.m. 8:30 a.m.
Brad Polizzano/Michelle Espey Erica Garay/Loretta Gastwirth Jaime Ezratty J. Kemp Hannon

Labor & Employment Law Elder Law Social Services Animal Law Alternative Dispute Resolution
Tuesday, March 14, 2017 & Health Advocacy Tuesday, March 28, 2017 Thursday, April 6, 2017
12:30 p.m. Tuesday, March 21, 2017 5:30 p.m. 12:30 p.m.
Christopher Marlborough 12:30 p.m. Marilyn Genoa Erica Garay/Loretta Gastwirth
Saundra Gumerove/
Maureen Rothschild DiTata Intellectual Property Community Relations & Public Education
Women In The Law
Wednesday, March 15, 2017 Monday, April 3, 2017 Thursday, April 6, 2017
12:30 p.m. Education Law/Civil Rights 12:30 p.m. 12:45 p.m.
Martha Haesloop Thursday, March 23, 2017 Ariel Ronneburger Ira Slavit
12:30 p.m.
John Sheahan/Kristina Heuser Ethics Labor & Employment Law
Real Property Law
Wednesday, March 15, 2017 Monday, April 3, 2017 Tuesday, April 11, 2017
12:30 p.m. Immigration Law 5:30 p.m. 12:30 p.m.
Patrick Yu Thursday, March 23, 2017 Kevin Kearon Christopher Marlborough
5:30 p.m.
Erin O’Brien Plaintiff’s Personal Injury Publications
Technology & Practice Management
Thursday, March 16, 2017 Tuesday, April 4, 2017 Thursday, April 13, 2017
8:30 a.m. Surrogates Court Estates & Trusts 12:30 p.m. 12:45 p.m.
Deborah Kaminetzky Thursday, March 23, 2017 John Coco Rhoda Andors/ Anthony Fasano
5:30 p.m.
Dennis Wiley/Sally Donahue Matrimonial Law
New Lawyers
Thursday, March 16, 2017 Wednesday, April 5, 2017
6:30 p.m. 5:30 p.m.
Jennifer Koo/Michael DiFalco Rosalia Baiamonte
22 n March 2017 n Nassau Lawyer
NCBA New Members
We welcome the following new members
Attorneys
Elizabeth M Aboulafia
Matthew D. Donovan
Farrell Fritz, P.C. - NYC
Debra P. Goldberg
Cullen and Dykman LLP
Christine M. Grillo
Geffner Kersch P.C.
Bernadette Kasnicki
Farrell Fritz, P.C.
Benjamin Sedaghatzandi
John Racanelli
Farrell Fritz, P.C.
Rachel Stier
Penelope Zagalis Pappas
Petras Law Office
NCBA
Shao S. Zheng
Sustaining Members
Students 2016 - 2017
Linnae M. Aufiere
Every year thousands of attorneys renew their membership
Alexandra Iorio
in the Nassau County Bar Association. In addition to dues,
Jessica Kumar some members show their appreciation to the NCBA by
James M. LoPiano making a special contribution and become a
Sustaining Member.
Carl R. Pierre
The NCBA is grateful for these individuals who strongly
value the Nassau County Bar Association’s mission and its
contributions for the betterment of the legal profession.
Martin P. Abruzzo Stephanie M. Keating
In Memoriam Mary Ann Aiello Hon. Susan T. Kluewer
Robert J. Malito, Esq. Mark E. Alter Martha Krisel
Ernest T. Bartol John F. Kuhn
Thomas A. Dent, Esq. Jack A. Bennardo Donald F. Leistman
Allan S. Botter Johnathan C. Lerner
Howard R. Brill Steven G. Leventhal
Neil R. Cahn Gregory S. Lisi
Robert M. Calica Hon. Roy S. Mahon
Ralph A. Catalano Shalom S. Maidenbaum
Alan W. Clark Peter J. Mancuso
Hon. Leonard S. Clark Michael R. Martone
Richard D. Collins John P. McEntee
Hon. William Croutier, Jr. Christopher T. McGrath
Joseph G. Dell Anthony J. Montiglio
John P. DiMascio, Sr. Neil J. Moritt
Thomas P. Dougherty Linda G. Nanos
Hon.Dorothy D. T. Eisenberg Hon. Michael L. Orenstein
Charo Ezdrin Charles E. Parisi
Samuel J. Ferrara Gary Petropoulos
Duncan A. Fraser, Jr. Christian A. Pickney
Lawrence R. Gaissert Michael E. Ratner
Domingo R. Gallardo Edward T. Robinson III
Marc C. Gann Stephen W. Schlissel
Eugene S. Ginsberg Marc H. Schneider
Frank Giorgio, Jr. Hon. Denise L. Sher
John J. Giuffre Hon. Peter B. Skelos
Douglas J. Good Ira S. Slavit
Robert S. Greco Hon. Arthur D. Spatt
Andrea N. Grossman Joseph J. Sperber
Hon. Frank A. Gulotta, Jr. Sanford Strenger
Martha V. Haesloop Gerard J. Sweeney
Andrew J. Hirschhorn Hon. Joy M. Watson
Alan B. Hodish Elliott C. Winograd
James P. Joseph Frank E. Yannelli
Elena Karabatos
To become a Sustaining Member
Please contact the
NCBA Membership Office
(516)747-4070
 Nassau Lawyer n March 2017 n 23

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dtsiopelas@nassaubar.com Administrative Marketing HR
www.nassaubar.org

LAW YOU SHOULD KNOW

LAW YOU SHOULD KNOW NCBA
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Hosted by: Kenneth J. Landau, Esq. 2016-2017
Shayne, Dachs, Sauer & Dachs, LLP • Mineola
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these shows. Check with the
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24 n March 2017 n Nassau Lawyer

In Brief
Ruskin Moscou Faltischek P.C.
announced that senior partner and
founding shareholder, Mark S. Mul-
holland, one of Long Island’s top busi-
ness trial attorneys, has been named
Chairman of the Brookhaven Memo-
rial Hospital Medical Center Board of
Directors. Prior to being named Chair,
Mark held previous Board positions for
BMHMC since 2008, including his most
recent position as Vice Chair.  attorney Brian A. Sands
The Honorable Stephen L. Ukei-
ley, Suffolk County District Court
Judge, has published the Third Edition
of his book, The Bench Guide to Land-
lord & Tenant Disputes in New York.
The Bench Guide is intended to be an
educational and practical resource for
practitioners, judges, law students and
litigants.
Karen Tenenbaum of Tenenbaum
Law, P.C. has co-written an article
“Staying One Step Ahead of Multistate
Residency Audits”, which was recently
featured on NJCPA.org.
Sahn Ward Coschignano, PLLC has
announced that John P. Christopher,
a Partner with the Firm who concen-
trates his practice in the areas of zoning
and land use, real estate transactions
and leasing, landlord/tenant disputes
and municipal law, has been appointed
as a Fellow of The New York Bar Foun-
dation. Fellows are nominated Nonprofit/Tax Exempt/Reli- Leslie Tayne of the Tayne Law
by their peers to the Founda- gious Organizations Practice Group, P.C., a full service debt resolu-
tion based on their outstand- Group at Certilman Balin tion law firm, announces the launch of
ing achievement and dedica- Adler & Hyman, LLP, has the firm’s franchise program – the first
tion to the legal profession. been elected to the Execu- in New York State focusing solely on
tive Committee of the Busi- debt resolution and bankruptcy alter-
Daniel M. Morrin, found- ness Law Section of the New natives.
ing attorney of the Law Office York State Bar Association,
of Daniel M. Morrin PLLC, and also as the incoming
is pleased to announce that Chair of its Not-for-Profit Terence L Tarver of the Tarver
Corporations Law Commit- Law Firm, P.C. has been accepted as
has been promoted to named tee. Touro College Jacob a member of the Theodore Roosevelt
Partner. The new law firm D. Fuchsberg Law Center American Inn of Court. 
Marian C. Rice
which will continue to con- honored Daniel J. Baker,
centrate its practice in the a partner in the firm’s Real NCBA General/Solo/Small firm prac-
areas of New York Workers’ Compen- Estate and Land Use Practice Groups, tice committee chairperson and WE
sation as well as Social Security Dis- with the Law Service Award. CARE advisory board member Max-
ability, is called Morrin & Sands PLLC. ine S. Broderick was appointed
Alan B. Hodish, a founding mem- Hempstead Village Justice.
Abrams, Fensterman, Fensterman, ber of the NCBA’s Mentor Program
Eisman, Formato, Ferrara & Wolf, LLP which provides mentors in the form of The Nassau Lawyer welcomes submissions to
proudly announces the promotion of judges and lawyer for selected “at risk” the IN BRIEF column announcing news, events
three of its attorneys to Partner: NCBA students, received an Award of Spe- and recent accomplishments of its members.
Board member Andrea Brodie, Jill cial Recognition from the East Meadow All submissions must be made as Word docu-
Goffer and Joy Jankunas. All three School Board and the entire East Mead- ments. Due to space limitations, submissions
Partners are resident in the firm’s Lake ow School community “in recognition of may be edited for length and content.
Success office. Ms Brodie focuses on all his many years of child advocacy and PLEASE E-MAIL YOUR SUBMISSIONS TO:
aspects of Family Law while Ms. Goffer exceptionally dedicated service the chil- nassaulawyer@nassaubar.org with subject
represents the firm’s clients of high net dren of East Meadow”. line: IN BRIEF
worth in complex matrimonial matters The In Brief column is compiled by Marian
and Ms. Jankunas represents the firm’s James Joseph of the Joseph Law C. Rice, a partner at the Garden City law firm
clients in all aspects of matrimonial Group, P.C., a matrimonial and family L’Abbate Balkan Colavita & Contini, LLP where
and family law at the trial court and law firm located in Garden City, NY is she chairs the Attorney Professional Liability
appellate levels. pleased to announce that  Nicole M. Practice Group.  In addition to representing
Zaino has joined the firm as an associ- attorneys for nearly 35 years, Ms. Rice is a
David Goldstein, partner in the ate attorney. Past President of NCBA.

ELDER LAW ATTORNEY ... otherwise come up with $340,000 to

Continued From Page 7
• spouse;
• child who is blind, disabled or
under age 21;
• sibling who has an equity interest
in the home and who resided in
the home for at least one year
before the person was institution-
alized; or
• child who resided in the home for
at least two years before the per-
son was institutionalized and pro-
vided care to maintain the person
at home (“caretaker child”).
Upon meeting with Sally, it was
clear that she fit the “caretaker child”
definition. Therefore, the home could
have been transferred to Sally during
the Medicaid planning process and it
would have been completely protected;
Medicaid could not assess a lien on the
house and Medicaid could not impose
a penalty upon the transfer. Sally was
told that as long as she lived in the
home, it would be protected. There was
no mention of actually transferring
the deed, which is a necessary part of
utilizing the caretaker child exemption.
Sally now needs to sell the house or
pay back Medicaid. As is often the case,
these costly mistakes are not discov-
ered until it is too late.
In another case, John hired a “Med-
icaid Advisor” to file a Medicaid appli-
cation for his father. John gathered all
of the documentation requested and
the application was submitted to the
Department of Social Services. Months
down the road, John received a Medic-
aid approval for his father with a pen-
alty period of six years.
The Social Services statute and
implementing regulations3 state that
an individual will not be ineligible for
Medicaid as a result of a transfer if the
asset was transferred:
• to the individual’s spouse or to
another for the sole benefit of the
individual’s spouse; or
• from the individual’s spouse to
another for the sole benefit of the
individual’s spouse; or
• the individual’s child who is blind
or disabled, or to a trust estab-
lished solely for the benefit of
such child; or
• to a trust established solely for
the benefit of an individual under
65 years of age who is disabled.
In this case, John was directed by
the Medicaid Advisor to transfer all of
his father’s assets to Greta, the woman
he had been living with for almost
thirty years. However, John’s father
had never married Greta. Seasoned
elder law attorneys know that there is
no “wiggle room” when it comes to the
controlling regulations. Greta was not
legally married to John’s father. The
fact they cohabitated, even if it was for
thirty years, does not give them the
same rights and protections as a mar-
ried couple. Therefore, all transfers to
Greta were considered gifts in the eyes
of Medicaid. A penalty was assessed
on these gifts and as a result, John’s
father was not eligible for Medicaid
benefits for six years. Luckily, Greta
was cooperative and a knowledgeable
elder law attorney was able to work
through the problem, obtain Medicaid
benefits for John’s father and protect
some of the assets.
Both clients had many sleepless
nights worrying about where they were
going to live and how they were going
to pay the nursing home. Had these
clients been referred to an elder law
attorney, these problems could have
been completely avoided.
These are but two real-world exam-
ples. Elder law practitioners come up
against many issues that are specific
to our area of practice, such as Prom-
issory Note planning to protect assets
upon or even after nursing home admis-
sion, Undue Hardship applications to
reverse a penalty period that resulted
from action taken by someone other
than the applicant, applications and
hearings to prove that an asset trans-
fer was a gift made for a purpose other
than to qualify for Medicaid benefits,
and more. These situations are real and
they happen every day. Elder law attor-
neys, unlike Medicaid Agencies and
Home Care Coordinators, can provide
the legal advice necessary to handle
all such cases properly from the begin-
ning, saving the client time, money and
unnecessary angst.
Melissa Negrin-Wiener, Esq. is a partner at
the Elder Law firm Genser Dubow Genser &
Cona in Melville. She is the Immediate Past
President of the Suffolk County Women’s
Bar Association and is an Advanced Elder
Law Mediator. For more information, go to
www.genserlaw.com.
1. All names in this Article have been changed
for confidentiality.
2. Soc. Serv. Law § 366(5)(d)(3)(i); 18 NYCRR
§ 360-4.4(c)(2)(iii)(b).
3. Soc. Serv. Law § 366(5)(d)(3)(ii); 18 NYCRR
§ 360-4.4(c)(2)(iii)(c).

SETTLEMENT ... “the lawyer must refuse to surrender

Continued From Page 11
(4)) “explicitly creates ethical duties
running to third parties as to funds in
the possession of the attorney to which
those third-parties are entitled.”
On occasion, a client may dispute the
third-party’s entitlement to the funds
and demand that the attorney deliver
the funds to him, notwithstanding the
third-party’s claim. In such situations,
according to the comments to Rule 1.15,
the property to the client until the
claims are resolved.” The comments to
the rule suggest that the lawyer need
not honor a third party’s claim if the
claim is frivolous, but an attorney look-
ing to avoid personal liability should
not be too quick to conclude that a claim
is frivolous. The Comment goes on to
state: “a lawyer should not unilaterally
assume to arbitrate a dispute between
the client and the third party, but,
when there are substantial grounds for
dispute as to the person entitled to the
funds, the lawyer may file an action to
have the court resolve the dispute.”
Conclusion
Difficult though it may be, sometimes
the attorney must tell the client that he
cannot have the money that the client
thinks is coming to him. The Rules of Pro-
fessional Conduct impose duties on attor-
neys in favor of non-clients when funds
are received by the attorney on behalf of
the client. The attorney who is aware of
third-party claims on client funds must
address those claims before disbursing the
money to the client. Ultimately, it is in the
interest of both the attorney and the client
to address and, where appropriate, sat-
isfy, any claims, so that future litigation
and its attendant costs can be avoided.
The formal opinions of the NCBA
Ethics Committee can be read at nas-
saubar.org. Go to the Members’ section
and choose Ethics Opinions.
Matthew K. Flanagan, a member of the NCBA
Ethics Committee, is a partner in the Jericho
firm of Catalano, Gallardo & Petropoulos,
LLP, where his practice is devoted to the
defense of legal malpractice and attorney
liability matters. He is a frequent lecturer
regarding legal malpractice prevention and
defense, and ethics and professional liability.
STAY UP TO DATE
ON THE GO WITH
 Nassau Lawyer n March 2017 n 27

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