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Miles P. Zatkowsky

Miles Zatkowsky’s Answers

20 total


  • What is the difference between a power of attorney and a head of estate?

    im doing some last paper work for my grandma who past away and im power of attorney but some paper work says it goes to head of estate

    Miles’s Answer

    A Power of Attorney is a document whereby a principal appoints an agent to act on her behalf. The power is only valid during the lifetime of the principal. That is where the esate and executor of the estate pick up. The executor is in charge of gathering the assets and paying the bills after one's death. Once all liabilities are paid the balance is paid to the beneficiaries.

    You should contact a local lawyer to help you probate your grandmother's estate.

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  • How can we force a nursing home to follow the law without going to court?

    Moms Nursing home refuses to allow her pacemaker turned off even after the durable POA and HCP holder, my sister, has ordered it. Shes supported by all in the family as well as Mom's doctor from before entering the home last December 2010. We wan...

    Miles’s Answer

    This is a very difficult situation. First, the POwer of Attorney does not give any authority to make health care decisions. The Health Care Proxy is the document in this case needed to make health care decisions for a third party.
    In order for the health care agent to have any authority, your mother's treating physician must first make a determination that your mother cannot make any health care decisions on her own and document that decision in the medical record. Only then does the health care agent's authority begin.

    The nursing home is regulated by the NYS Department of Health and it was wise for them to have their ethics committee review this. That does not, however, prevent the health care agent from making decisions. If your mother has the cognitive ability to make her own decisions (facility claims she is not "sick enough") then it is completely your mother's decision.

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  • NY Joint bank accounts and a Successor Power of Attorney

    Need clarification on NY law issue, My wife is named as the successor on a durable power of attorney with her sister being the primary for their mother. My sister in law has a joint bank account with her mother and we are in the process of having ...

    Miles’s Answer

    A joint account holder generally means either owner has complete access to the account. Beware, there are different types of accounts which give different levels of authority, Assuming the mother and daughter in law have a joint account with equal rights, the mother has a right to withdraw the entire balance.
    A Power of Attorney generally provides authority to stand in the shoes of the principal, but the specific authority depends completely on the powers granted in the POA. Assuming banking authority is granted, the daughter (as agent) can go to the bank on behalf of the mother (principal) and withdraw the balance.
    Neither joint holder has complete control because each has certain rights. Remember, the granting of a POA to agent does not diminish principal's right to act for herself.

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  • A resident living in a Nursing Home long term has Dementia and the son who is POA & HCP is spending her money on himself

    She gets VA Pen and a Ford Pension along with SS. We are receiving her SS but he is spending her other income. She is Medicaid pending and per Medicaid her income is due to the facility. Can we put a freeze on her bank accounts so he can not withd...

    Miles’s Answer

    • Selected as best answer

    An agent has a "fiduciary" duty to the principal. Sounds like he breached that obligation and should be accountable. If the principal is incapable of demanding the return of her money inappropriately used by the agent, then a guardianship proceeding under Article 81 of the New York Mental Hygiene Law.

    Usually, the Court in the Article 81 will hold the agent responsible and demand an accounting. Typically, when we bring those cases, we also ask the court to revoke the poa.

    I suggest you contact a qualified Elder Law attorney with experience in Guardianships to handle this matter.

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  • A vehicle purchased with snt trust funds

    When preparing an annual report for the court and hra. If a vehicle was purchased 2 years ago for $5,000. Do you still show that asset as being $5,000 after 2 years or Do I depreciate it's value by a certain percentage each year and Would tha...

    Miles’s Answer

    An accounting for a Supplemental Needs Trust requires current fair market value. For a motor vehicle, you should be able to easily lookup the current value on line by getting the "blue book" value. It is more difficult to value other items, such as a television, without an appraisal and you do not want to spend the money for an appraisal each year. I would compare the price paid with current cost of a similar model and discount used from there. Also, you can see what similar tvs sell for on eBay or Craig's list for a price comparison.

    Reasonableness and honesty will be the benchmark!

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  • MY MOTHER IN LAW HAD A PAPER DRAWN UP STATING THAT SHE AND I WILL MAKE MEDICAL DECISIONS FOR HER SON (I AM WIFE) IS THAT LEGAL?

    I AM TEMPORARILY SEPARATED FROM MY HUSBAND AND LIVE IN FLORIDA AND HE IS IN A HOSPITAL IN NEW YORK

    Miles’s Answer

    In New York, any adult can sign a Health Care Proxy, which must be signed in front of 2 disinterested witnesses. If your husband signed this properly, he could have named you and his mother as decision-makers for his health care decisions.
    However, in order for a health care agent to act, a doctor must first determine that the person lacks the ability to make his own health care decisions.
    Also, you need not accept the responsibility. Generally we do not recommend 2 people to be agents at the same time as then there is a possibility of a deadlock.
    If there is no Health Care Proxy, then the New York Family Health Care Decisions Act sets a priority of individuals to decided. As spouse, you are first on the list unless your husband specifically appointed someone.

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  • Am I entitled to a portion of my ex-husbands social security after 23 years of marriage? If so, will I lose my earned benefits?

    Married & divorced in NYS. He will have earned considerably more than me by the time either of us can begin to receive benefits (we are both 48) because I was primarily a stay-at-home mom. If I am entitled to some of his benefits, do I lose thos...

    Miles’s Answer

    Susan is correct. Social Security law is federal and not specific to NY. Even thought your New York divorce decree did not specify, under SS law, you benefit from having been married more than 10 years. You should see an Elder Law or Estate Planning attorney in your area.

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  • Before i have to put my mother in to a elderly care facility can she make a one time gift of monies to one of her children

    she has life insurance to be paid and if she goes in the state will take her SS she gets each month.

    Miles’s Answer

    While there is a 5-year look back on transfers of assets without adequate compensation, there are also methods for planning so that the penalty can be paid to offset the gift. this is very complicated but you should see an Elder Law attorney right away to properly plan. Roughly half of any remaining resources can be saved by way of a gift.

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  • Moms in mnursing home and collects ss and medicaid shes 71...does medicaid take that money?

    moms in a nursing home..collects ss and medicaid..inherited 10k...does medicaid take that...?

    Miles’s Answer

    I understand the facts to be: mother is in a nursing home, Medicaid is contributing toward her monthly cost of care, and her income is Social Security. She can pay her own health insurance premium (Medicare is $96.40/month) and she can keep $50/month. the balance must be paid to the nursing home.

    You must report an inheritance to Medicaid. In addition to her income, $13,800 is exempt. So if she has no more than $3,800 in other assets, then she can theoretically keep a $10,000 inheritance.

    Notheless, without knowing all of the details, you should consult a local elder law attorney.

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  • Can a person in a nursing home receiving medicaid disclaim an inheritance and stay on medicaid?

    Can a person in a nursing home receiving medicaid disclaim an inheritance and stay on medicaid?

    Miles’s Answer

    In most states, disclaiming an inheritance will not be recognized by Medicaid as valid. Accordingly, the local Medicaid office will deem the person to have received the money, probably disqualifying the person for benefits. this is so even though they don't have the money.

    You should consult a local Elder Law attorney in the state.

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