Advanced Directives Help Retain Control, Avoid Expenses

The Journal of The nassau CounTy Bar assoCiaTion

July/August 2015 www.nassaubar.org Vol. 64, No. 11

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NCBA President Steven Eisman recently welcomed the new 2015-16 committee chairs, co-chairs and vice chairs at the annual New Committee Chair Meeting. The committee leaders learned what they need to know to ensure a successful year as they embark on their monthly committee meetings start-ing in September. NCBA members, as part of their membership benefits, may join as many commit-tees as they wish. If you have not already made your committee selections, contact the Membership Office to update your committee choices to ensure you receive information regarding scheduled meet-ings. A committee meeting calendar appears in the Nassau Lawyer from September to June. An updated complete list of the 2015-2016 Committees Chairs can be found on page 21. (Photo by Hector Herrera)

OF NOTENCBA Member Benefit - I.D. Card PhotoObtain your photo for Secure Pass Court ID cards at NCBA Tech Center Cost $10 August 4, 5 & 6 • September 1, 2 & 39 a.m. – 4 p.m.

EVENTSWE CAREAmazin’ Mets Games! vs Rockies Thursday, Aug. 13 vs Phillies, Wed., Sept. 2 vs Yankees, Fri., Sept. 18Citifield/ Pepsi Porch$150 ppFor tickets call:Perri (516)747-4070 x226Ken Marten (516)747-5800

BBQ at the BARFREE EVENTWelcome Home to DomusNCBA’s Annual BBQThursday, September 105:30-7:30 p.m.Pre-registration requiredDetails pg 6

JUDICIARY NIGHTThursday, October 15, 20155:30 p.m. at DomusDetails pg 6

PRO BONO FAIRThursday, October 29, 20153:00 p.m. at DomusDetails coming soon

WhaT’S INSIdEFOCUS: Elder Law/ Trusts & EstatesAdvanced Directives Help Retain Control, Avoid Expenses Page 3

Apostilles or Affirmations: Recent Legislative Changes to CPLR 2106 Page 3

Deferred Payment of the Estate Tax For Closely Held Businesses Page 5

The Irrevocable Life Insurance Trust: Getting It Right Page 7

New Inheritance Rights for Children Conceived After Death Page 9

Protecting Residents: Should Nursing Homes Bring Guardianship Proceedings? 0

Tied the Knot? Maybe Not. Defining “Lawful Spouse” for Inheritance Purposes Page 14

Conflict-Free Evaluations for Medicaid Community-Based Home Care Page 16

UPCOMING PUBLICATIONS COMMITTEE MEETINGSOPEN TO ALL NCBA MEMBERSThursday, August 13, 2015 12:45 at DomusThursday, September 10, 2015 12:45

at Domus

NCBA Committee Chair Meeting: Preparing for the 2015-16 year

The Nassau County Bar Association, in cooperation with Nassau County Judiciary, has embarked on a unique new initiative to introduce the con-cept and benefits of mediation as an alternative to litigation in resolving certain guardianship-related con-tests. Nassau County Administrative Justice Thomas A. Adams, Surrogate Edward W. McCarty III, Justice Arthur M. Diamond, Justice Angela G. Iannacci and Justice Gary Knobel have all indicated their support for NCBA’s Guardianship Mediation Pilot Project, under which the first 20 court-referred contested guardian-ship-related cases will be provided with four hours of mediation services through NCBA’s Mediation Panel free of charge.

“This is the first guardianship medi-ation program of its kind sponsored by a bar association. If successful, it is likely to serve as the model for sim-ilar programs throughout the state,” according to Beth Polner Abrahams, a Pilot Project Coordinator and NCBA Alternative Dispute Resolution Committee liaison with the NYSBA Elder Law & Special Needs Section’s Committee on Mediation. “We’ve been meeting and talking with various indi-viduals and organizations involved in the guardianship area, and getting an enthusiastic response throughout New

York State for the Pilot Project.”“Contested Article 81 and SCPA 17

& 17A matters are particularly suited for mediation,” according to Elizabeth Donlon, Immediate Past Chair of the Alternative Dispute Resolution (ADR)

Committee. “When family members are in conflict over who should be appointed as the guardian of an inca-pacitated person, they typically

“This is the first guardianship mediation program of its kind sponsored by a bar association. If successful, it is likely to serve as the model for similar programs throughout the state.”

NCBA Launches NY’s First Mediation Pilot Project

Courts to Refer Guardianship Contests to NCBA’s Mediation Panel

See PROJECT, Page 19

2 n July/August 2015 n Nassau Lawyer

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Nassau Lawyer n July/August 2015 n 3

Elder Law/ Trusts & EstatesAdvanced Directives Help Retain Control,

Avoid ExpensesJohn Lennon once wrote, “Life is

what happens to you while you’re busy making other plans.” This statement is both insightful and true, especially when it comes to the loss of one’s deci-sion-making capacity.

No one ever plans to lose their mental faculties or the ability to communicate their wishes, but unfortunately it happens. Luckily there are effective planning tools called Advanced Directives that exist. These planning tools enable an individual who is 18 years old or older and who is not incapacitated to appoint another person to make deci-sions on his or her behalf, as well as commemorate his or her wishes while he or she is still able to express them.

These legal documents can help indi-viduals retain control of their health-care and finances in the event that they lose the legal capacity to make decisions. In addition these documents may alleviate the need for a lengthy and expensive guardianship proceeding under Mental Hygiene Law Article 81.1

Advanced Directives consist of health care proxies, living wills, and durable general powers of attorney.

Durable General Power of Attorney In New York, a Durable General

Power of Attorney New York Statutory Short Form (POA) is a written authori-zation that gives someone who is desig-nated in the document broad powers to handle another’s property during life. The person authorizing the other to act is called the principal, and the one authorized to act is the called the agent or attorney-in-fact.

An agent may represent or act on

the principal’s behalf in private affairs, business, or health care decision-mak-ing.2 A principal may designate one or multiple agents in the POA, and can include a third-party to monitor. The statute provides that if more than

one agent is designated, they must act jointly unless the principal initials the state-ment in the POA allowing the agents to act separately.3

The POA allows a prin-cipal to appoint someone to make decisions, sign docu-ments and carry out other important acts if he or she is unable. An agent is a fiducia-ry for the principal and owes both a fiduciary duty of care and a duty of loyalty to the principal.4 This means the agent must act in the best

interest of the principal. The agent’s power to act on the principal’s behalf can be limited based on the language in the POA. In addition, the agent’s pow-ers ceases upon the principal’s death or revocation of the document.

The Durable General Power of Attorney allows the agent’s authority to continue until the principal’s death whether or not the principal suffers a lack of capacity in the future. In New York it is possible to have what’s known as a Springing Power of Attorney. This Power of Attorney provides that a power only takes effect after the incapacity of the principal or upon the occurrence of some other definite future act or circumstance explained in the language of the document.5 In order for the Springing Power of Attorney to take effect, the “springing event” must be proven. A written statement signed by persons designated in the Power of Attorney may satisfy this requirement.6

A principal may also include what

is known as a Statutory Gifts Rider to his or her Durable General Power of Attorney. The Statutory Gifts Rider is a document that allows the principal to supplement a statutory short form Power of Attorney to authorize cer-tain gift transactions, other than those permitted by the New York General Obligations Law.7 A major benefit of the Statutory Gifts Rider is that by allow-ing the agent to make gifts on behalf of the principal, the agent can implement Medicaid, estate, and tax planning for the principal.8

Health Care Proxy A Health Care Proxy is a legal docu-

ment that allows an individual to des-ignate another person to make health care decisions on the individual’s behalf in the event that the individual becomes incapable of making such decisions.9 The goal is to insure that health care decisions respect and reflect the wishes of the incapacitated person. Health care decisions are defined to include any con-sent or refusal to consent to any treat-ment, service, or procedure to diagnose or to treat an individual’s physical or mental condition.10

The person who designates another person to make health care decisions on his or her behalf is called a “principal.” The person given the decision making power is called the “agent,” and acts as a surrogate for the principal. The principal may appoint one initial agent and as many successor agents as he or she wishes. A successor agent steps in only if the initial agent is unwilling or unable to act as agent. New York law does not allow the appointment of co- agents.11

Once a Health Care Proxy is execut-ed the principal will continue to make his or her own health care decisions

as long as the principal remains com-petent. However, in the event that the principal is incompetent, the agent can step in and make health care decisions for the principal. The agent must pro-vide the principal’s health care provider with a copy of the Health Care Proxy before being able to make the decisions.

It is important for the principal to thoroughly reflect upon his or her wish-es and have an open and honest discus-sion with the agent and any successor agents about his or her health care wishes. Although an agent is charged with following the principal’s wishes, the language in the health care proxy can limit the agent’s decision-making power by stating specific powers.

Living WillA Living Will is a written, legal

statement that sets forth the types of medical treatments and life-sustaining measures a patient would like. Unlike the Health Care Proxy and Durable General Power of Attorney, the Living Will is not a creature of statute, but rather is based in common law.

The main benefit of a Living Will is that it can constitute clear and con-vincing evidence of a patient’s wishes, eliminating the need for further judi-cial proceeding for a hospital to follow such wishes.12 A Living Will can include instructions concerning the termina-tion of life support, and can be very specific or very general. More specific Living Wills may include information regarding the desire for services such as analgesia (pain relief), antibiotics, hydration, feeding and the use of venti-lators or cardiopulmonary resuscitation (CPR).

Some may think that the New York Family Health Care Decisions Act (the

Eric J. Einhart

See DIRECTIVES, Page 4

A major victory was won for the trusts and estates Bar with the recent legislative amendments to CPLR 2106, but the time for celebration must wait.

Traditionally, CPLR 2106 only allowed certain enumerated professionals, name-ly attorneys, physicians, osteopaths and dentists authorized and licensed to prac-tice in New York, to submit affirmations to the courts of this state in lieu of sub-mitting sworn, notarized affidavits.1 The law was amended, effective January 1, 2015 to add, in a new subsection (b)

The statement of any person, when that person is physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular posses-sion subject to the jurisdiction of the United States, subscribed and affirmed by that per-son to be true under the penalties of perjury, may be used in an action in lieu of and with the same force and effect as an affidavit ...” 2

Put simply, the recent legislative amendments to CPLR 2106 allow any

person, professional or not, who is physi-cally located outside of the United States to submit unsworn affirmations to the courts of this state, which affirmations are to be given the same force and effect of traditional, sworn, notarized affidavits. As stated by David Paul Horowitz in his article Burden of Proof, “[i]ronically, the only people in the world after [January 1, 2015] who may not affirm pursuant to CPLR 2106 are those located within the United States or its territories who are not New York licensed or authorized attorneys, physicians, osteo-paths and dentists.”3

Changes in Administering the Estates of Foreign Nationals and

Recent ImmigrantsWhile such a sweeping change to

CPLR 2106 may not affect the trusts and estates practitioners’ more “run of the mill” cases, where the decedent and

his/her family are residents of this state, the effect of this legislative change is apparent in dealing with estates of dece-dents who were foreign nation-als, immigrants, or first-gen-eration Americans, as these decedents may not have any living relatives or close friends in the United States.

When such is the case, especially when the petition requires that it be supported by either a family tree dia-gram and affidavit and/or an affidavit of heirship, practi-

tioners often find themselves in a jam; the practitioner can either try in vain to locate a close friend or relative of the decedent who lives in the United States and has both the required knowledge of the decedent’s family tree and a willing-

ness to provide an affidavit attesting to such facts; or work with the decedent’s family members and friends living abroad in preparing and having required affida-vits properly executed and authenticated, which requires either that the affidavit be executed at the local U.S. Consulate or signed in the presence of a local notary public, or notary equivalent, and properly authenticated through the attachment of an apostille.

“An ‘apostille’ is an international method for verification of foreign docu-ments similar to notarization. Fed. R. Civ. P. 44(a)(2)(A)(ii) permits, ‘as evidence of a foreign official record’, the record--or a copy-- . . . accompanied . . . by a certi-fication under a treaty or convention to which the United States and the country where the record is located are parties.’”4 Under the Hague Convention of 1961, an apostille became a standard certification for purposes of authenticating documents

Apostilles or Affirmations: Recent Legislative Changes to CPLR 2106

Christopher C. Haner

See CPLR, Page 6


WELCOMING THE NEXT GENERATION OF LAWYERS

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Nassau Lawyer (USPS No. 007-505) is published monthly, except combined issue of July and August, by Long Island Commercial Review, 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 additional entries. Contents copyright ©2015. Postmaster: Send address changes to the Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501.

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Nassau LawyerNassau Lawyer

NCBA Officers

During the course of the past weekend, I had the opportunity to attend the summer meeting of the Family Law Section of the New York State Bar Association. While I have been attending their annual winter meeting in New York for many years, this was my first trip to the summer meet-ing. I was recently appointed as a member at large of the section’s executive committee, and I welcomed the opportunity to spend time with representatives of the Bench and Bar from across the State in a collegial, relaxed atmosphere.

I thoroughly enjoyed myself. The weekend gave me the opportunity to attend not only a board meeting and avail myself of continuing legal education, but it also permitted me to interact and break bread with Judges, law-yers, and forensic accountants in my field of practice over the course of several days.

The reason I bring this up is not to regale you with tales of “my summer vacation”, but rather to discuss the benefits of bar associa-tions in general, and ours in particular, and what we as members can do to promote the multitude of services and programs our Association has to offer to young members, the Judiciary and law students.

As a newly minted attorney working for a small Garden City criminal defense firm, I joined our orga-

nization with hopes and aspirations of mingling with Judges and successful attorneys. I attended my first event at Domus filled with both anticipation and trep-idation. Sitting at a table full of Judges and attorneys, none of whom I knew, was somewhat overwhelming.

Notwithstanding my anxiety, both the Judges and attorneys were welcoming and warm, leading me to increase my level of involvement exponentially along the way. My increasing involvement ultimately culmi-nated in my current position.

As active members of this Association, it is incum-bent upon us to not only avail ourselves of the many programs and services the Bar has to offer, but to reach out to young lawyers and unaffiliated attorneys and encourage them to become involved. I firmly believe that the continued success of our Association depends on the involvement and support of our members, and what better way to do that than by welcoming a new

generation of attorneys into our home.As many of you know from my installation and the

“From the President” Article in the June 2015 edition of the Nassau Lawyer, I created a task force to initiate

a dialogue between the young lawyers of our Association and judiciary. The purpose of the task force is to explore the most effec-tive avenues to address the needs of our young lawyers to ensure their continued involvement.

The task force is working with the local law schools to encourage law school stu-dents to become involved as early as ori-entation during their first year of law school. Members of the Young Lawyers and Membership Committees have already com-mitted to speak during orientation at Touro College Jacob D. Fuchsberg Law Center and the Maurice A. Dean School of Law at Hofstra University next month. The Hon. Jeffrey A. Goodstein and several members of our Young Lawyers Committee are speaking to the judicial interns this month about life

as a young lawyer and the importance of bar association membership in a young attorney’s early career. The hope is that if law school students meet a few of our Young Lawyers that they will feel more welcome at Domus and not experience some of the fear and trepidation we all once felt when we attended our first bar association event. Conversely, we want our Young Lawyers to know that they are a valued and vital part of our Association, and they are the key to our continued success.

The ultimate question is how do we translate these efforts into success for the coming year? Our ever pop-ular September event, Domus on the Lawn, which shall now be known as “Barbeque at the Bar”, is a great way to return to Domus after a summer away to greet your friends. At the same time, it is the perfect opportunity to introduce potential new members to our Association. There will be no charge for anyone who attends this event, members and potential members alike. This will permit us to show off not only the “bricks and mortar” that comprises our historic building, but to display our greatest asset - the bond between our members.

Whether it is Barbeque at the Bar, the continuing legal education programs sponsored by our own Nassau Academy of Law, the programs and meetings of our individual committees, the charitable enterprises of our Association through We Care and the numerous social gatherings throughout the year to honor and wel-come distinguished members of the Bench and Bar, our Association provides endless benefits to our members. I strongly urge you to join me in promoting our great Association to the next generation of members.

Nassau Lawyer welcomes articles written by members of the Nassau County Bar Association and are of substantive and procedural legal interest to 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 editors, or NCBA, unless expressly so stated. Article/letter authors are responsible for the correctness of all information, citations and quotations.

...we want our Young Lawyers to know that they are a valued and vital part of our Association....

From the PresidentSteven J. Eisman

PresidentSteven J. Eisman, Esq.President-ElectMartha Krisel, Esq.Vice PresidentSteven G. Leventhal, Esq.TreasurerElena Karabatos, Esq.SecretaryRichard D. Collins, Esq.Executive DirectorKeith J. Soressi, Esq.

Editor-in-ChiefChristopher J. DelliCarpini, Esq.Associate EditorsRhoda Y. Andors, Esq. Anthony J. Fasano, Jr., Esq.ProofreaderAllison C. Shields, EsqEditor/Production ManagerSheryl Palley-EngelAssistant EditorValerie ZurblisPhotographerHector Herrera

July/August Editorial StaffElder Law/ Trusts & EstatesDeborah S. Barcham., Esq. Focus EditorRhoda Y. Andors, Esq. Sean E. Campbell, Esq.Christopher J. DelliCarpini, Esq.Anthony J. Fasano, Jr., Esq.Kristina S. Heuser, Esq.Jeff H. Morgenstern, Esq.Allison C. Shields, Esq. David Torreblanca, Esq.

Upcoming Focus IssuesSeptember 2015Real Estate/ Municipal LawOctober 2015OCA/ GeneralNovember 2015Alternate Dispute Resolution

Committee MembersChristopher J. DelliCarpini, Esq., ChairRhoda Y. Andors, Esq., Co-Vice ChairAnthony J. Fasano, Jr., Esq., Co-Vice ChairDeborah S. Barcham, Esq.Gale D. Berg, Esq.Sean E. Campbell, Esq.Deanne Marie Caputo, Esq.Ellin Regis Cowie, Esq.Marc G. DeSantis, Esq.David J. Friedman, Esq.Nancy E. Gianakos, Esq.Michael R. Gionesi, Esq.Robert S. Grossman, Esq.Sharon Kovacs Gruer, Esq.Adrienne Flipse Hausch, Esq.Kristina S. Heuser, Esq.Charles E. Holster III, Esq.Arielle S. Howe, Esq.Anthony F. Iovino, Esq.George M. Kaplan, Esq.Kenneth J. Landau, Esq.Michael J. Langer, Esq.Douglas M. Lieberman, Esq.Dennis M. Lyons, Esq.Cheryl Y. Mallis, Esq.Angelica Marie McKessy, Esq.Thomas McKevitt, Esq.Jeff H. Morgenstern, Esq.Marian C. Rice, Esq.Daniel W. Russo, Esq.Rayne M. Sassower, Esq.Michael A.H. Schoenberg, Esq.Meryl D. Serotta, Esq.Thomas G. Sherwood, EsqAllison C. Shields, Esq. Christina H. Singh, Esq.Andrij V.R. Szul, Esq.David Torreblanca, Esq.Eric Anthony Zeni, Esq.

“Act”) obviates the need for a Health Care Proxy and Living Will. This belief is incorrect and can be dangerous. The Act allows a surrogate to make health care decisions for an incapacitated indi-vidual, and is only applicable for an individual in a hospital, residential health care facility, or hospice setting.13 The Act does not cover individuals in a public health center, diagnostic center, treatment center, out- patient lodge, dispensary and laboratory or central service facility serving more than one institution.14 In addition to other short-falls, the law sets out a list of individu-als who have decision making priority, which may conflict with the individuals a principal would actually like to make

these decisions.15

Furthermore, the Act actual-ly requires an attending physician to make reasonable efforts to determine whether the patient has a health care agent appointed in a Health Care Proxy before the attending physician can seek or rely upon a health care decision by a surrogate.16 If a Health Care Proxy exists, then pursuant to the Act, the health care decisions for the patient must be made by the agent and the agent will have priority over decisions by any other person except the patient.17

Despite the availability of Advanced Directives, many people never execute them because they are either not aware of them, or do not think they need them. No one knows what tomorrow will bring, however, which is why it is important to plan for the unthinkable.

Eric J. Einhart is an Associate with the

law firm of Vincent J. Russo & Associates, P.C. of Westbury, Islandia, Lido Beach, and Manhattan. His areas of practice include Elder Law, Estate Planning, Trust and Estate Administration, Guardianship, Tax Law, and Real Estate.

1. Mental Hygiene Law § 81.02; Matter of Maher, 207 A.D.2d 133 (2d Dept. 1994).2. General Obligations Law §§ 5-1502A to 5-1503.3. GOL § 5-1508(1).4. GOL § 5-1505.5. GOL § 5-1506.6. GOL § 5-1501B(3)(b).7. GOL § 5-1501(n).8. GOL § 5-1514.9. Pub. Health Law § 2980.10. Pub. Health Law § 2980(4).11. Pub. Health Law § 2981.12. In re Albert S., 286 A.D.2d 684 (2d Dept. 2001); Saunders v. State, 129 Misc. 2d 45 (Sup. Ct., Nassau Co. 1985).13. Pub. Health Law § 2994-b.14. Pub. Health Law §§ 2994-a(10), 2801(10).15. Pub. Health Law § 2994-b.16. Pub. Health Law § 2994-b(2).17. Pub. Health Law § 2994-b(2).

DIRECTIVES ...

Continued From Page 3


Elder Law/ Trusts & Estates

2015-2016 NCBA BOARD OF DIRECTORS

Executive Committee

Steven J. EismanPresident

Martha KriselPresident-Elect

Steven G. LeventhalVice President

Elena KarabatosTreasurer

Richard D. CollinsSecretary

John P. McEnteeImmediate Past President

Elected Directors

RosaliaBaiamonte ‘16

Adam D’Antonio‘18

Brian J. Davis‘17

Jaime D. Ezratty‘17

Edmond D. Farrell‘17

Marilyn K. Genoa‘16

Alan B. Hodish’16

Christie R. Jacobson ‘18

James P. Joseph‘18

Sarika Kapoor‘17

Gregory S. Lisi ‘17 Michael A. Markowitz ‘17

Kevin P. McDonough ‘18

Sondra K. Pardes ‘18

Sanford Strenger ‘16

Elizabeth D. Pessala ‘17

Lisa M. Petrocelli ‘16

Jennifer Rosenkrantz ‘18

Ross L. Schiller‘18

Alan J. Schwartz ‘16

Peter B. Skelos‘18

Charlene J. Thompson ‘17

Carolyn ReinachWolf ‘16

Katheen Wright‘16

Mary Ann AielloDean, NAL

Section 6166 of the Internal Revenue Code permits the estate of a decedent who dies owning a closely held business interest to pay the federal estate tax attributable to that interest in install-ments over a fourteen-year period if certain requirements are met. Section 997 of the New York Tax Law incorpo-rates the provisions of the federal statute, with certain modifications, and allows a similar fourteen-year defer-ral of the New York estate tax attributable to a closely held business. Sounds sim-ple, until you have to either read about it, think about it, or apply it.

Deferral for New York Estate Tax

Although the New York estate tax exclusion amount is slowly, but surely, approaching the federal amount, there are still many estates which require the filing of a New York estate tax return (Form ET-706), even though no federal estate tax return (Form 706) is required. New York Tax Law sec-tion 997 specifically permits New York estate tax deferral under these cir-cumstances when no federal estate tax return is required. However, if a feder-al estate tax return is filed, a New York deferral election cannot be made unless

the election is also made for federal estate tax purposes.

Suppose the estate is large enough to require filing a federal return, but is not subject to federal estate tax, only

to New York estate tax. The New York statute does not address this situation. One possible solution that meets the literal terms of the New York statute is simply to file a notice electing § 6166 defer-ral with the federal estate tax return (even though there is no federal tax liabil-ity to defer). Section 997 of the New York Tax Law only requires that “a similar elec-tion was made and allowed with respect to the federal estate tax return required to

be filed . . . .”

Deferral BenefitsThe benefits of this estate tax defer-

ral can be tremendous. Assume the decedent died January 1, 2015, and that his estate owes $400,000 of New York estate tax and no federal estate tax. Further assume that the entire taxable estate consists of a closely held business, which qualifies for the estate tax deferral. If the executor does not make the deferral election, the estate will have to pay $400,000 on October 1, 2015, nine months after death. If,

instead, the executor elects to defer the tax under section 997, the first payment of $40,000 towards the tax liability will not be due until October 1, 2020, five years and nine months after the date of death. The tax liability can be paid in nine more installments of $40,000 each, with the last payment due October 1, 2029.

Interest would be charged during the entire deferral period commencing nine months after death. The first interest payment would be due one year and nine months after death, which would be October 1, 2016. A reduced interest rate of 2% is applied to the first $54,000 of tax and the prevailing rate of inter-est is charged on the balance (if federal estate tax was also due, the interest on that is computed somewhat different-ly).1 Interest on the unpaid portion of the tax liability would be paid annually with the final payment due October 1, 2029.2 The interest paid on the install-ment payments is not deductible as an administrative expense of the estate.3

Qualification for DeferralIn order to qualify to defer the estate

tax in this manner, the decedent’s inter-est in a closely held business must be more than 35% of the adjusted gross estate.4 The maximum amount of estate tax that can be deferred is the portion of the tax attributable to the closely held business.5 For example, if the business

is 50% of the adjusted gross estate, then 50% of the estate tax can be deferred.

If any portion of the closely held business is distributed, sold, exchanged or otherwise disposed of after the dece-dent’s death and the aggregate of these events equals or exceeds 50% of the value of the interest, then the right to make the installment payments will be terminated.6

If the decedent had interests in two or more closely held businesses, they will be treated as an interest in one business for calculation purposes,7 pro-vided 20% or more of the total value of each business is included in determin-ing the value of the decedent’s gross estate.

Unavailable for Passive AssetsMany closely held businesses consist

of rental real estate. Estate tax deferral will not be approved unless the dece-dent was involved in an active business at the time of death. If the decedent was treating the real estate as invest-ment property and the decedent, his agents and employees had no involve-ment in the day-to-day real estate oper-ations, the real estate business will be disqualified from estate tax deferral on the grounds that it is a “passive asset” under § 6166 (b) (9) of the Internal Revenue Code.

Some factors the taxing authorities

Deferred Payment of the Estate Tax For Closely Held Businesses

Susan M. Bacigalupo

See DEFERRED, Page 7


for use in foreign countries. While the second scenario might be

easy enough to achieve when the dece-dent’s friends and family live in a “first-world” country, such is not true else-where, where locating, traveling to and paying the fees associated with having an affidavit properly authenticated might be too burdensome for the decedent’s friends and family. It is this second scenario which is particularly troublesome, as the practitioner’s inability to locate a friend or relative with both the required knowledge to swear to a meaningful affidavit and a willingness to shoulder the burden of hav-ing such affidavit properly authenticated leaves many estates, especially those of recent immigrants, in limbo.

The recent changes to CPLR 2106 enable the practitioner to solve this prob-lem, but will the Surrogates’ Courts accept the affirmations of persons physically locat-ed outside of the United States (“Foreign Affirmations”) as sufficient proof of the facts recited therein and thereby eliminate the burden and need to have foreign-ex-ecuted affidavits properly authenticated?

Evidentiary Value of Foreign Affirmation

It is worth noting, at the outset, that an affidavit/affirmation is nothing more than a proffer of factual evidence and, as with any other proffer of evidence, the courts have the authority to accept, reject or require additional proof of the facts recited therein. So will the proffer of evi-dence offered in Foreign Affirmations be sufficient to satisfy the Surrogates’ Courts that the facts recited therein are truthful? An informal survey of the aw clerks, law departments and Surrogates in the metro New York area and Long Island revealed that the answer to this question is “it depends.”5

Affidavits/affirmations tend to play two very important roles in the Surrogates’ Courts: affidavits/affirmations have the ability to confer the court’s jurisdiction over a proceeding and the parties thereto, such as when an affidavit of service is filed, and affidavits/affirmations impact the substantive factual record before the court, potentially effecting estate distribu-tions, after jurisdiction has been obtained.

While the Surrogates may have differ-ent thoughts about the appropriate weight to be given to affirmations that affect the substantive factual record before the court (“Substantive Affirmations”), the Surrogates seem to be uniform in their opinion that such affirmations will not be accepted or afforded evidentiary value in establishing the court’s jurisdiction over the proceeding and the parties thereto (“Jurisdictional Affirmations”). Therefore, the practitioner would be ill advised to submit any verified petition, objection or accounting whose verification is in the form of an affirmation in lieu of an affida-vit;6 or file an affirmation of service, unless such affirmation is a traditional affirma-tion made by a licensed attorney, physi-cian, osteopath or dentist (“Traditional Affirmation”); or file a waiver and con-sent and/or acceptance of service which is affirmed instead of sworn to and notarized.

Concerning Substantive Affirmations, which include affirmations of family tree/heirship, affirmations concerning living trusts, affirmations to dispense with the filing of a bond and affirmations in support of motions, the opinions of the Surrogates’ Courts as to the acceptability of such affir-mations, and as to the evidentiary value to be given to such affirmations, seems to fall into two camps.

The first camp would reject such affir-

mations outright, and would give no evi-dentiary weight to such affirmations. The reasons given for this stance tend to be that the recent legislative changes to CPLR 2106 were not intended to affect the practice of the Surrogates’ Courts. Instead, the changes were only intended to affect the practice of the Commercial Part of the Supreme Court, as the com-mercial bar provided the strongest push for the change.

The first camp finds such affirma-tions lack the indicia of reliability of Traditional Affirmations because, unlike the Traditional Affirmation where the affirmant places his/her license and pro-fessional reputation on the line if he/she were to falsely affirm, the foreign affir-mant places nothing on the line, as he/she is not subject to the laws of the United States, and, thus, is more likely to create facts favorable to the affirmant or to a friendly third party.

While the second camp agrees that foreign affirmations lack the reliability of Traditional Affirmations, for the same reasons outlined above, and thus may be awarded less evidentiary weight than a Traditional Affirmation or affidavit, the second camp has instructed all clerks to accept such affirmations for filing and consideration. While the Surrogates of the second camp could not provide a clear list of when such foreign affirmations will be afforded the evidentiary value neces-sary to impact a decedent’s estate, these Surrogates seemed to agree that a “com-mon sense” approach will be used when considering such Foreign Affirmations, which may include the decedent’s immi-gration status, the size of the decedent’s estate, and other factors relevant to the particular case.

Unfortunately, due to this divide, prac-titioners cannot look to CPLR 2106 as their “saving grace” in particularly difficult estates, where the decedent left no surviv-ing relatives or close friends on domestic soil. However, despite the fact that the recent legislative changes to CPLR 2106 may not add a reliable tool to the practi-tioners’ toolbox, a tool, nonetheless, has been added and should be used when a tra-ditional affidavit cannot be obtained for, as provided in SCPA § 102 and 22 NYCRR § 207.1, when the SCPA, EPTL and Uniform Rules of the Surrogates’ Courts do not pro-vide otherwise, the CPLR is to be followed and applied in all Surrogates’ Courts pro-ceedings.

Note that while the Surrogates’ Courts are not, at present, able to articulate a uniform response in regard to their accep-tance of these foreign affirmations and the evidentiary weight to be afforded them, this topic will be the subject of debate and consideration at future meetings of the Surrogates in hopes that a uniform response or rule will emerge to guide practitioners.

Christopher C. Haner, Esq., an associate attorney at Genser Dubow Genser & Cona, LLP, concentrates his practice in the areas of probate, estate administration, Medicaid eligibility and planning, estate planning and guardianships and is a certified Guardian, Court Evaluator and Counsel to incapac-itated persons and an IRS Accredited Representative. He can be reached at [email protected] or 631.390.5000.

1. CPLR 2106(a).2. CPLR 2106(b).3. David Paul Horowitz, Burden of Proof, NYSBA Journal, November/December 2014.4. Corovic v. Mukasey, 519 F.3d 98 n.2 (2d Cir 2008).5. A special thank you to all the Surrogates, Chief Clerks and heads of Law Departments who responded to my request for an interview in connection with the writing of this article. Your thoughtful responses provided the material neces-sary for publication.6. See CPLR 3020 (regarding the requirements of verification) and CPLR 3022 (“where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity”).

CPLR ...



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IT11_NassauLawyer_BVbaseball_v1.indd 1 11/11/11 12:29 PM

will review to determine whether the decedent’s rental real estate business is a disqualified passive asset include time spent by the decedent (or his agents or employees) on business matters, wheth-er an office was used to conduct business activities, and whether the decedent (or his agents or employees) was involved in finding tenants, negotiating leases, and providing services to the premises, such as landscaping and repairs.8

Even if a real estate business is established to be an active business, it could hold some assets considered to be passive, such as a brokerage account held for investment purposes only and not used in the operation of the business. The date of death value of these passive assets would have to be subtracted from the value of the business to determine the amount of estate tax able to be deferred. In a 1988 Letter Ruling, the IRS concluded that a $500,000 insurance policy was a passive asset, even though it was used as collateral to secure loans used to purchase business assets.9 The life insurance proceeds were subtracted from the value of the business.

QTIP TrustsA situation that often arises, but has

been seldom addressed, is whether a QTIP trust funded with the decedent’s closely held assets can qualify for estate tax defer-ral on the death of the surviving spouse. A 2005 IRS Letter Ruling found that the estate of the surviving spouse would be entitled to estate tax deferral as long as the decedent in the first estate (or the dece-dent’s agents or employees) were actively engaged in the business at the time of the first death and there was no “mate-rial change in form or operation of those assets” from the time of the first death until the death of the surviving spouse.10

Susan M. Bacigalupo is a former Chair of the N.C.B.A. Surrogate’s Court Estates and Trust Committee and a partner with the Garden City law firm of McCoyd, Parkas & Ronan LLP, which practices exclusively in the areas of estate planning, probate and administration of estates and trusts, and estates and trust litigation. 1. 26 CFR § 20.6166-1(f).2. Tax Law § 997(i), (j).3. 26 USC § 2053(c)(1)(D) [can we globally change “U.S.C.” to “USC?”]4. 26 U.S.C. § 61660(a)(1). 5. 26 U.S.C. § 6166(a)(2). 6. 26 U.S.C. § 6166(g).7. 26 U.S.C. § 6166(c).8. Rev. Rul. 2006-34, 2006-1 CB 1171.9. IRS Letter Ruling 8848002 (July 26, 1988).10. IRS Letter Ruling 200518047 (Jan. 27, 2005).

DEFERRED ...



The Irrevocable Life Insurance Trust (ILIT) is a popular estate and tax planning tool with many benefits, but it comes with many tax and administrative complexi-ties. If practitioners are not careful about navigating these complexities they may sacrifice the ILIT’s advantages.

Basic Benefits of ILITsA properly drafted and

administered ILIT will exclude the death benefit proceeds of the life insurance policies held therein from estate taxation. The funds within an ILIT can provide invaluable liquidity for clients anticipating outstand-ing debt or estate tax issues at death. Also, ILIT property can be used to equalize the division of estate assets among a client’s heirs when an estate consists of business interests, real estate portfolios, or other types of interests that are not easily divided between beneficia-ries.

Life insurance held within an ILIT is unique in its ability to “leverage” the federal gift and generation-skipping transfer (GST) tax exemptions. Once the exemptions are initially allocated to the ILIT’s property upon contribution, the ILIT’s property is permanently excluded from gift and GST tax.1 Although any appreciating asset may achieve this lever-age, permanent life insurance is nearly guaranteed to substantially appreciate as a result of the insured’s death, and the appreciation will be exempt from income taxes.2 These benefits particular to ILITs are in addition to the traditional benefits of holding property in trust.

Drafting and Setup of the ILIT

The potential pitfalls of ILITs begin during the drafting and setup process. If drafted incorrectly, even the ILIT’s basic language may bring disastrous conse-

quences. When the trust prop-erty will be used to pay taxes and/or debts upon the death of the settlor, practitioners must avoid requiring the trustee to use the trust property for such payments, which would render the trust property includible in the settlor’s taxable estate,3 and instead merely permit the trust-ee to make such payments.

The ILIT should be a grantor trust.4 If an ILIT is funded with income-producing assets, then grantor trust status helps in two important ways. First, the

transfer of the assets to the ILIT will be ignored for income tax purposes.5 Second, the income produced will be taxed to the grantor rather than the trust.6

Even if an ILIT is funded only with an insurance policy and premiums are paid via regular contributions, grantor trust status will still be preferable. Typically, contributors of cash to an ILIT will prefer to characterize the cash gifts as pres-ent-interest gifts rather than future-inter-est gifts in order to take advantage of the annual gift tax exclusion.7 To that end, the trust allows the beneficiaries a power of withdrawal over the contributed prop-erty that the beneficiaries are expected to release. Upon release of the power of withdrawal, the trust would be partially

The Irrevocable Life Insurance Trust:

Getting It Right

Matthew E. Rappaport

See RIGHT, Page 8

By Matthew E. Rappaport and Edward Gordon


rendered a grantor trust with respect to the beneficiaries.8 This quirk would not arise if the trust is already a grantor trust with respect to the settlor.9

When making an ILIT a grantor trust, the drafter must avoid inclusion of the trust property in the grantor’s taxable estate. When the ILIT has income-pro-ducing assets, the ILIT will automatically be rendered a grantor trust with respect to the settlor.10 When the ILIT is funded with only the policy (whether an existing policy or a new policy), the trust instru-ment must confer one or more powers upon the settlor that would render the trust a grantor trust. The safest power to grant is the power to reacquire the trust property by substituting other property of equivalent value.11

Administering the ILITOnce the ILIT has been drafted, the

ILIT must then be funded with either an existing life insurance policy or a new policy. When the ILIT is going to be funded with an existing policy, selling the policy to a grantor trust will avoid appli-cation of the “transfer-for-value” rule that would otherwise render the death benefit subject to income taxes.12 When the ILIT is funded with a new policy, formalities must be followed in order to avoid includ-ing the policy in the taxable estate of the settlor.13 The policy should be acquired by the trustee without any input from the settlor’s spouse or other family mem-bers,14 and the policy should be issued ini-tially in the name of the trust and never that of the settlor.

After the ILIT has been funded, the ILIT will require additional contributions to pay premiums unless the trust has been funded with sufficient income-producing

property. Qualifying the additional contri-butions for the annual gift tax exclusion will increase the amount of premium the settlor may pay toward the policy without using his or her lifetime gift tax exemp-tion, which will result in higher overall tax leverage. Crummey powers will allow use of the annual exclusion for all beneficiaries who are granted the power, even contin-gent remainder beneficiaries and minors;15 this principle can allow for significant tax leverage when a trust has many Crummey power holders.16

Qualification for the annual gift tax exclusion is typically achieved through annual Crummey powers of withdrawal.17 Crummey powers raise interesting ques-tions. One such question is whether actual or constructive notice of the power to each beneficiary is mandatory. A dictum in Crummey and a subsequent case suggest that notice is not required at all,18 but the best practice is to give notice of the power at least fifteen days before its lapse.19

The notice will inform the beneficiary that: (1) the settlor has made a contri-bution to the ILIT; (2) he or she has the power to withdraw an amount up to the contribution made or annual gift tax exclusion in the relevant year, whichever is greater; and (3) he or she may either exercise the power or allow the power to lapse by taking no action for 30 days.20

Although any prior understanding or prearranged plan will nullify the Crummey power for lack of substance, beneficiaries typically understand that exercising the Crummey power would be against their best interests; accord-ingly, beneficiaries typically allow the Crummey power to lapse.

When Crummey powers are held over an amount greater than $5,000 by one or more beneficiaries, a quirk in the tax law may render the amount above $5,000 a gift by the power holder upon the lapse of the Crummey power.21 To avoid this result, practitioners allow for the Crummey

power to “hang,” meaning that the power will only lapse as to the greater of $5,000 or 5% of the trust property and continue as to the remainder of the contribution up to the annual exclusion amount. If the beneficiary predeceases the termination of the trust, the “hanging” balance is includi-ble in the beneficiary’s estate as a general power of appointment.22 Once the policy reaches “paid up” status, the “hanging” balance will eventually diminish until it disappears, provided the beneficiary sur-vives long enough.23

The Importance of Regular Maintenance

Once the trust has been set up, the trustee and insurance advisor have a responsibility to periodically review the trust’s insurance policies for suitability and performance.24 Courts in states other than New York have held that the trust-ee’s legal duty is non-waivable.25 Ongoing monitoring of ILIT policies becomes par-ticularly important with universal life policies, especially variable universal life policies. Factors to consider during review include validity of the policy’s initial pro-jections and creditworthiness of the issu-ing company. For variable life policies, constant attention must be paid to the underlying investments and the insurance company’s “collars” relating to the policy.26

Although ILITs are commonly used to maximize the benefits of life insurance, they can be ineffective if they are not set up and administered correctly. At mini-mum, the attorney and life insurance pro-fessional must work together to ensure that the ILIT accomplishes its purpose with no adverse consequences.

Matthew Rappaport is an Associate at the Garden City law firm of Karol & Sosnik, PC, where he concentrates his practice in matters of tax, estate, and asset protection planning. He is the Co-Vice Chair of the NCBA Tax Law Committee.

Edward Gordon, a Certified Estate Planner™, is

the Principal of Preservation Capital Partners LLC of Garden City, where he concentrates his practice in employing life insurance in tax-ad-vantaged estate, business, and asset protec-tion planning structures for select clientele. 1. See IRC § 2632(c)(1) and s. 2641(a)(2).2. IRC § 101(a).3. IRC § 2036(a)(2).4. See generally IRC § 671-678. When a grantor trust exists, all tax items attributable to the trust are instead reported by the grantor on her person-al income tax return each year. IRC § 671. A trust may be a grantor trust with respect to any party, not just the settlor. IRC § 678.5. Rev. Rul. 85-13, 1985-1 C.B. 184.6. Compare IRC § 1(e) with IRC § 1(a)-(d).7. IRC § 2503(b)(1).8. IRC § 678(a)(2).9. IRC § 678(b).10. IRC § 677(a).11. IRC § 675(4)(C).12. IRC § 101(a)(2)(B).13. See IRC § 2036(a)(1); see also Treas. Reg. IRC § 20.2036-1(a).14. Cf. IRC § 672(c).15. Estate of Cristofani, 97 T.C. at 82-83; see also Estate of Kohlsaat v. Commr., 73 TCM 2732 (1997); but see IRS AOD 1996-010, IRS TAM 9628004, and IRS TAM 9731004 (stating IRS disapproval of the Estate of Cristofani holding regarding permissible Crummey power holders).16. See, e.g., Mikel v. Commissioner, T.C. Memo. 2015-64.17. See Crummey v. Commr., 397 F.2d 82 (9th Cir. 1968). As a matter of course, settlors should not pay premiums directly to the insurance company; otherwise, Crummey powers will be ineffective for lack of substance.18. Crummey, 397 F.2d at 88; Estate of Cristofani v. Commissioner, 97 T.C. 74 (1991).19. Estate of Cristofani, 97 T.C. at 75.20. The beneficiary should never affirmatively waive the Crummey power because doing so would be considered a partial release of a general power of appointment, resulting in taxable gift treatment for the releasing beneficiary. IRC § 2041(a)(2).21. Compare IRC § 2503(b) with IRC § 2514(e).22. IRC § 2514(b); see IRS PLR 9804047. For this reason, the authors recommend that the “hanging” balance be stated in each annual Crummey notice.23. IRC § 2514(e). The balance will diminish faster if 5% of the trust property amounts to greater than $5,000.24. Cf. EPTL § 11-2.3. Note that the insurance advisor’s responsibility is not legally binding, so clients should consult an advisor who is willing to monitor the policy alongside the trustee through-out the duration of the trust.25. Rafert v. Meyer, 859 N.W.2d 332 (Neb. 2015).26. “Collars” restrict the downside and upside potential of the investment returns within the policy.

RIGHT ...



Laws are often unable to keep up with issues that arise from developing bio-technology. This is especially true for the advances in assisted reproductive tech-nologies and the lag of state inheritance laws to address the rights of children conceived after the death of a parent.

On November 14, 2014, Governor Cuomo passed a new statute, EPTL § 4-1.3, and amended sections of EPTL § 11-1.5 to resolve these open issues under New York law. This article will review the new law and investigate whether these new provisions address the panoply of issues raised prior to its passage.

The use of assisted reproductive tech-nologies has increased dramatically over the past two decades.1 Many reasons for the rise in the storage of genetic material, such as eggs, sperm and embryos exist. These reasons include: early detection of life threatening diseases, infertility, indi-viduals in the military and individuals who simply want the option to wait until later in life to have children. The rise of these scenarios coupled with the access and availability of assisted reproductive technologies have added to this growing phenomenon.

Prior Cases Prior to the enactment of EPTL §

4-1.3, the few cases that involved the

rights of posthumously conceived chil-dren demonstrated that this issue has manifested itself across the economic spectrum, from a family with substan-

tial means eager to qualify for trust distributions, to a lower income family attempting to qualify for federal benefits.

In Astrue v. Capato, a hus-band froze his genetic mate-rial after obtaining a termi-nal diagnosis.2 His wife gave birth to twins after his death using in vitro fertilization and subsequently applied for survivor’s insurance ben-efits. Her application was denied by the Social Security Administration on the basis

that the children had to be eligible to inherit under the state’s intestacy laws. The Capatos lived in Florida where the intestacy laws do not recognize children who were not in utero during the par-ent’s lifetime. The US Supreme Court agreed that the state’s inheritance stat-ute controlled eligibility to federal entitle-ments and deemed the children ineligible for benefits. This case underscored the importance of clarifying state statutes in this context.3

An earlier case addressed the issue of whether a posthumously conceived child could inherit from a trust. Decided in 2007, In re Martin B. considered whether two grandchildren who were conceived from frozen genetic material after the

death of their father, could inherit from a trust created by their grandfather in 1969.4 The question was whether these children qualified as “issue” and “descen-dants” under the terms of the trust.

The court addressed the tragic circum-stances and the fact that the father, who died prematurely of cancer, would consid-er these children his own since he planned for such an event to occur.5 Nevertheless, it was the grandfather’s intent gleaned from the trust documents, as opposed to the father’s wishes, which was the controlling factor. Clearly, few in 1969 could have foreseen these circumstances. Ultimately the Court held that the children did in fact qualify to inherit from the trust. However, the Surrogate urged the legislature to pass “…need for comprehensive legislation to resolve the issues raised by advances in biotechnology.6”

The New EPTL § 4-1.3EPTL § 4-1.3 defines “genetic materi-

al” as sperm or ova (egg cells)7. A “genetic parent” is defined as a man who provides sperm or a woman who provides ova used to conceive a child after their death.8 A child conceived from the genetic material and born after the death of the genetic parents is defined as a “genetic child”.9 The statute establishes multiple require-ments necessary for a genetic child to inherit from a genetic parent, either under intestacy or under a will or trust.

First, the genetic parent must have expressly consented, in a written instru-

ment, to the use of his or her genet-ic material and authorized a person to make decisions about the usage of said genetic material after their death (the “authorized person”).10 This express writ-ten consent must take place no more than seven years before the death of the genet-ic parent.11 The written consent must be dated and signed by the genetic parent in the presence of two witnesses who are over the age of eighteen.12 Neither of the witnesses can be the same as the autho-rized person under the document.

The statute also provides that an alternate to the authorized person can be selected in in the event the authorized person dies before the genetic parent.13 Revocation of the written consent can be done by a new writing, executed in a sim-ilar fashion to the consent.14 Interestingly, the revocation of the written consent can-not be effectuated by a provision in the genetic parent’s will.15 The statute sets forth a form that can be used as a sample for written consent of a genetic parent.16

Second, the authorized person must give notice of the availability of the genet-ic material (for the purpose of conceiving a child) to the person to whom letters have been issued within seven months of the issuance of letters, or if no letters have issued, within four months of death of the genetic parent.17 In addition, notice must be given to a distributee of the genetic parent within seven months of the genetic parent’s death.18 Notice may


New Inheritance Rights for Children Conceived After Death

Amy F. Altman

See INHERITANCE, Page 11


A number of nursing home residents do not have family members or appointed agents under advance direc-tives to provide basic assis-tance with personal needs and/or financial decisions. Is it appropriate in those cases for the healthcare facility to bring a guardianship proceed-ing on behalf of the resident to ensure those needs are met? Is it appropriate if payment to the healthcare facility is one of the financial needs to be addressed?

In this growing debate, vociferous opinions can be heard from the bench, the press, and now the legislature, too. But what would

happen if healthcare facilities declined to bring guardianship proceedings when

warranted on behalf of a res-ident?

Statutory Authority to Commence a

Guardianship ProceedingSince Article 81 of the

Mental Hygiene Law (“MHL”) became effective in 1993, healthcare facilities have been authorized to commence guardianship proceedings concerning residents.1 The statute was amended in 2004 to provide that “the chief exec-

utive officer, or the designee of the chief executive officer, of a facility in which

the person alleged to be incapacitated is a patient or resident” may commence a guardianship proceeding by filing a Petition with the Court.2 Further, the chief executive officer of any facility in which an Alleged Incapacitated Person (“AIP”) resides must not only be pro-vided with notice of any guardianship proceeding commenced with respect to a resident, but must also be provided with copies of the Guardian’s initial and annu-al reports.3

In order to appoint a Guardian, the Court must find that the appointment is necessary to provide for the personal and/or property management needs of the AIP and that either the AIP consents to the appointment or the AIP is incapaci-tated.4 A finding of incapacity is two-fold in that the AIP is likely to suffer harm because: (1) the person is unable to pro-vide for personal needs and/or property management; and (2) the person cannot adequately understand and appreciate the nature and consequences of such inability.5 In determining whether an AIP is “incapacitated,” MHL Article 81 requires that the Court primarily consid-er the AIP’s functional level and function-al limitations, including the AIP’s ability to perform activities of daily living, the AIP’s actual needs, and the AIP’s physi-cal illnesses and mental disabilities.6

Guardianship Proceedings and Medicaid Benefits

It is often the case that a nursing home resident with no family or agent appointed under a Power of Attorney has neither a payment source nor the ability to tackle the arduous task of applying for Medicaid benefits. Such residents are then subject to civil litiga-tion for collection of the balance due or discharge from the healthcare facility for failure to pay.7 Neither is a good solution for an elderly or disabled per-son who needs nursing home care, nor is it reasonable for health care facilities to provide care and services for which they are not paid.

Since the MHL became effective, guardianship proceedings have success-fully been commenced by healthcare facilities for the purpose of securing medical insurance and government benefits such as Medicaid on behalf of patients and residents. In one such case, a hospital commenced a guard-ianship proceeding to secure Medicaid benefits for an AIP who had accrued a large balance due. The Court appointed a Guardian for the AIP and revoked the AIP’s Power of Attorney because the agent thereunder refused to cooperate with securing Medicaid benefits for the patient.8

In another case, the Court appoint-ed a Special Guardian to sell the AIP’s co-op apartment so that the AIP could become eligible for institutional Medicaid benefits and continue resid-ing in the nursing home. In appointing the Special Guardian, the Court recog-nized that it was necessary because the AIP would otherwise suffer harm as she would be unable to continue residing in the nursing home without the provision of Medicaid benefits.9 Similarly, in a Bronx County case, the Court found that the AIP could not pay for the

nursing home care he required without securing Medicaid benefits, and that the AIP was unable to complete his Medicaid application on his own, there-by necessitating the appointment of a Guardian.10

In addition, in an informal opinion, the Attorney General recognized that it is necessary for nursing homes to address the financial needs of often incapacitated residents and specifical-ly pointed to MHL Article 81 as a means for a nursing home to address an incapacitated resident’s financial needs, including remitting income to the nursing home.11

However, some Courts have begun to take issue with guardianship proceed-ings brought by healthcare facilities in general. In those cases, because the healthcare facility was owed payment for care and services rendered to the resident, the guardianship petition was deemed “inappropriate.” Two such deci-sions were reported wherein the Court, in dismissing the Petition, stated: “[t]he purpose for which this guardianship proceeding was brought, to wit, for the nursing home to be paid for its care of the person, was not the Legislature’s intended purpose when Article 81 of the Mental Hygiene Law was enacted in 1993.”12 The Court further stated that “[t]o the extent that the nursing home is seeking to be paid for the care it has rendered to the person, the petitioner must seek a different avenue of redress for that relief as a guardianship appli-cation is inappropriate.”13

There is presently no statutory or case law precedent prohibiting a guardianship proceeding from being commenced to resolve an outstanding debt, including payment to a health-care facility. However, on March 25, 2015, legislation was introduced in the New York Assembly to preclude guard-ianship proceedings from being used solely for the purpose of collecting out-standing debts. Specifically, Assembly Bill 6510 proposes an amendment to Mental Hygiene Law §81.06(7), add-ing that the Chief Executive Officer of a healthcare facility can commence a guardianship proceeding except where the petition is brought primarily for purposes of bill collection or resolving a bill collection dispute.

While some petitions for guardian-ship are brought solely for personal needs management, the majority of cases seeking the appointment of a guardian involve an AIP who needs assistance with both personal needs and financial management. This is especially true since the passage of the Family Health Care Decisions Act.14 Financial management needs often include payment of bills such as med-ical bills, including bills for services rendered at the nursing home.

Further, financial management for nursing home residents often includes applications for Medicaid benefits. A resident with no family or agent under a Power of Attorney has little to no chance of completing a Medicaid Application with a five-year history of all bank records and financial state-ments, an accounting of all transfers


Protecting Residents: Should Nursing Homes Bring Guardianship Proceedings?

Jennifer B. Cona

See GUARDIANSHIP, Page 15


in Brief

Cullen and Dykman LLP is pleased to announce the selection of Christopher Palmer, a commercial banking attorney in the firm’s Garden City office, as its new managing partner, effective July 1. Palmer takes over as managing part-ner from Thomas J. Douglas, Jr., who served in that role since 2002, and who will remain with the firm.

Patricia E. Salkin, dean of the Touro Law Center, was appointed the Touro Graduate and Professional Division Interim Provost, serving as the Chief Academic Officer for the Graduate and Professional Division at Touro and providing leadership, policy formation and guidance for faculty and academic programs. Salkin will continue to serve as Dean of the Jacob D. Fuchsberg Touro Law Center while the search for a permanent provost continues.

Matthew F. Didora has joined Abrams,

Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP as Partner and Director of the firm’s Commercial Litigation Department, representing clients in all phases of complex commercial litigation, including at trial and on appeal. Executive Partner and co-chair of Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP’s Family & Matrimonial law department, Samuel J. Ferrara, recent-ly achieved an AV Preeminent® rating by Martindale-Hubbell® and is recognized as one of the “Top 10 Divorce Law Attorneys in Long Island” by Ten Leaders.

Farrell Fritz congratulates partner Jason S. Samuels on his recent appoint-ment to a two year term as Chair of the Nassau County Bar Association’s (NCBA) Construction Law Committee and counsel Katherine (Kate) A. Heptig, has recent-ly been named Chair of the Nassau County Bar Association’s Corporation, Banking & Securities Law Committee. Samuels concentrates his practice in construction law representing contractors, owners and developers in a variety of matters while Heptig provides general tax and corporate guidance to businesses and individuals.

Michael A. Ciaffa, a resident of Garden City, has become of counsel in the litigation department at Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, LLP, handling a wide variety of complex civil litigation matters, from their inception through appeal. Mr. Ciaffa was a Nassau County District Court Judge from 2009-2014, where he presided over the busy trial and motion calendar, hearing thousands of no-fault disputes and other civil matters.

Thomas R. Slome, a member of Meyer, Suozzi, English & Klein, P.C. and Chair of the firm’s Bankruptcy Practice and Co-Chair of its Corporate Finance Practice representing a wide variety of companies in all aspects of commercial law, includ-ing corporate reorganization, bankruptcy related litigation, creditors’ rights, and out of court debt restructuring, has been elected as the Board of Directors Chairman of Big Brothers Big Sisters of Long Island.

Pegalis & Erickson, LLC, the pre-em-inent law firm representing plaintiffs in medical malpractice action, announces the election of three of its partners to the New York State Trial Lawyers Association (NYSTLA) Board of Directors and the appointment of one of its attorneys to the executive board of the Nassau County Women’s Bar Association (NCWBA).

Stephen E. Erickson, senior partner at Pegalis & Erickson, LLC, has been re-elect-ed to the NYSTLA Board of Directors for the 2015 to 2018 term. Annamarie Bondi-Stoddard, Managing Partner at the law firm was elected NYSTLA Deputy

Treasurer for the 2015 - 2016 year while Gary Nielsen was named to the NYSTLA Board of Directors for the 2015 to 2018 term. Linda Oliva, a West Hempstead resident will serve as NCWBA’s President-elect for the 2015-2016 year, in this, her fourth term on the board.

Leslie Tayne of Melville-headquartered financial firm Tayne Law Group, P.C. has been elected Vice Chair

of Nassau/Suffolk Law Services (NSLS) Committee’s Advisory Council. Jeffrey M. Kimmel, a veteran litigator and head of the medical malpractice group at the Woodbury law firm of Salenger, Sack, Kimmel & Bavaro, LLP has been sworn in to serve on the NSLS Advisory Council. Established in 1966, NSLS is one of the largest providers of free civil legal assistance in New York.

Karen Tenenbaum of the Melville tax law firm, Tenenbaum Law, P.C. was recog-nized as a finalist of the SmartCEO CPA & ESQ Award in the Industry Practice area. Ms. Tenenbaum was nominated for her lead-ership, accomplishments, innovation and success. Brad Polizzano of the Firm recent-ly spoke on the topic of IRS and NYS Tax Collections for the New York State Society of Certified Public Accountants, Manhattan/Bronx Chapter, Small Firm Committee. Mr. Polizzano also discussed Foreign Tax Issues with the National Conference of CPA Practitioners, Nassau/Suffolk Chapter.

Jay Davis is pleased to announce that Londyn Graham, a graduate of Hofstra University Law School, is now a member of the law firm Jay Davis, PLLC.

Gary Sastow, a partner at the White Plains law firm of Brown, Gruttadaro, Gaujean & Prato PLLC, was recent-ly named Westchester County’s Leading Health Care Attorney at the “Above the Bar” Awards. Mr. Sastow, was also a speaker at the firm’s new speaker series aimed at educating current and prospec-tive clients on topics and issues that can affect their personal and professional lives.

Melissa Negrin-Wiener, a partner at Genser Dubow Genser & Cona concen-trating her practice in elder law, Medicaid eligibility planning, asset protection plan-ning, disability matters, guardianships, estate planning and Veteran benefits, was inducted as President of the Suffolk County Women’s Bar. Ms. Negrin-Wiener also appeared as a guest on WHPC’s radio (90.3 FM) “Law You Should Know” hosted by NCBA member Ken Landau, discussing the growing use of mediation to resolve elder law issues and keep families together. The Nassau Lawyer welcomes submissions to the IN BRIEF column announcing news, events and recent accomplishments of its members. Due to space limitations, submissions may be edited for length and content.

The In Brief column is compiled by Marian C. Rice, a partner at the Garden City law firm L’Abbate Balkan Colavita & Contini, LLP where she chairs the Attorney Professional Liability Practice Group. In addition to representing attorneys for nearly 35 years, Ms. Rice is a Past President of NCBA.

PLEASE E-MAIL YOUR SUBMISSIONS TO: [email protected] with subject line: IN BRIEF

Member Activities

Marian C. Rice

be given by certified mail, return receipt requested or by personal delivery.19

Third, the authorized per-son must file the written instru-ment within seven months of the genetic’s parents death with the Surrogate’s Court authorized to grant letters, whether or not let-ters have not been issued.20

Lastly, the genetic child must be in utero within twenty-four months of the genetic parent’s death and born no later than thir-ty-three months after the genetic parent’s death in order to qualify to inherit.21

As a result of the enactment of EPTL § 4-1.3, and the potential that an estate will be opened for thirty-three months, amendments were also made to EPTL § 11-1.5 to extend the time by which a fiduciary can delay payment of dispositions under a testamentary instrument or an intestate share until a genetic child is born.22 This gives the fiduciary flexibility to hold back distributions until all distributees are born (as opposed to in utero) and protection from other beneficiaries who may want to demand distributions prior to the birth of the genetic child.

AnalysisNow that the legislature has

addressed the issue by passage of a new statute, does the statute address the issue comprehensive-ly? The good news is that for chil-dren born from frozen sperm and eggs, the statute does a good job of defining requirements and time frames by which a genetic child can qualify to inherit from the genetic parent’s estate.

One glaring omission from the statute, is that only sperm and ova are defined as “genetic mate-rial” but what about frozen embry-os? One could argue that EPTL § 4-1.1(c), which deals with after born children extends to frozen embryos. EPTL § 4-1.1 states that a child conceived during the life-time of the decedent, but born after his death, is considered a distrib-utee23. Embryos are by definition fertilized, and presumably fit into the definition of “a child conceived during the lifetime of the decedent.” If frozen embryos created during the decedent’s lifetime fall under this statute, then there may be an un-intended result. None of the requirements listed in EPTL § 4-1.3 would apply to frozen embryos.

It begs the question: why should a child conceived from a frozen embryo of a deceased parent not have the same notice and timing requirements as a child conceived from frozen sperm or eggs? The result seems incongruous, and leaves open many of the same issues the statute was intended to prevent.

It must be noted that an overar-ching and an overlapping issue is the storage of the genetic material and the agreements with storage facilities. A case which has recent-ly been in the headlines involves two frozen embryos of actress Sophia Vergara and her ex-boy-friend Nick Loeb. They signed an agreement with a storage facility that stated that if they wanted

to change the current, i.e. frozen state of the embryos, the facility would require the consent of both parties. Loeb now argues that the agreement did not contemplate a situation where the couple would be separated (apparently required by California law) and therefore, he wants to void the agreement and have the ability to bring the embryos to term via surrogate.24

What happens if the written consent given by the genetic parent contradicts the agreement with the storage facility? For example, if the authorized person under the con-sent form for inheritance purposes, is different than the one designated under the agreement with the stor-age facility? Which document con-trols? The storage agreement or the consent? This may lead to further disputes or a delay in obtaining the genetic material, and ultimately a delay in the possible conception and birth of a child within thirty-three months from the date of the dece-dent’s death.

This also leads to a question of timing. It is well known that one of the main purposes for enacting the statute was to set a dead-line by which an estate may be closed, instead of the possibility that genetic children can be born far into the future and still inherit from an estate, thereby theoreti-cally keeping an estate open indef-initely. That being said, are there circumstances under which the thirty-three month birth deadline can reasonably be extended? What if the person trying to conceive had legitimate health reasons for the delay? It is important for estate planning practitioners to keep in mind that a testator may be able to preemptively extend deadlines through carefully crafted testa-mentary provisions.

Given that biotechnology has forged a new reality, the passage of EPTL § 4-1.3 is a major devel-opment which establishes clear requirements for how genetic chil-dren are eligible to inherit from their parent’s estate. How this statute will play out in the context of family dynamics and complex advanced reproductive technolo-gies situations remains to be seen.

Amy F. Altman is a senior associate at Meltzer, Lippe, Goldstein & Breitstone, LLP. Amy’s practice focuses on estate planning, estate administration and estate and trust litigation. She has a special interest in cases involving sup-plemental needs trusts, art law, and posthumously conceived children. 1. www.acog.org/Resources-And-Publications/Committee-Opinions/Committee-on-Obstetric-Practice/Perinatal-Risks-Associated-With-Assisted-Reproductive-Technology.2. Astrue v. Capato, 132 S.Ct. 2021 (2012). 3. Id. 4. Matter of Martin B., 17 Misc.3d 198 (Sur. Ct., N.Y Co. 2007). 5. Id.6. Id.7. EPTL § 4-1.3(a)(2).8. EPTL § 4-1.3(a)(1).9. EPTL § 4-1.3(a)(3).10. EPTL § 4-1.3(b)(1).11. Id.12. EPTL § 4-1.3(c)(1).13. EPTL § 4-1.3(c)(4).14. EPTL § 4-1.3(c)(2).15. EPTL § 4-1.3(c)(3).16. EPTL § 4-1.3(c)(5).17. EPTL § 4-1.3(b)(2)(A).18. EPTL § 4-1.3(b)(2)(B).19. EPTL § 4-1.3(b)(2).20. EPTL § 4-1.3(b)(3).21. EPTL § 4-1.3(b)(4).22. EPTL § 11-1.5(a).23. EPTL § 4-1.1.24. Jacqueline Hurtado & Michael Martinez, Sofia Vergara reportedly sued by ex-fiance over their frozen embryos, CNN (Apr. 21, 2015), avialable at www.cnn.com

INHERITENCE ...



Mary Ann Aiello of Westbury has been elected the 22nd Dean of the Nassau Academy of Law, the educational arm of the Nassau County Bar Association and the largest provider of Continuing Legal Education programs on Long Island. Aiello is a Principal of the law firm Mary Ann Aiello, P.C. in Garden City. The firm concentrates in the practice of family law and matrimonial law. Aiello has extensive trial experience

including contested custody and equitable distribution issues. Ambitious Agenda

This year Dean Aiello's goal is to offer more than 200 programs in all practice areas with a focus on the growing demand for more business skills, ethics and social media issues. She will encourage committee chairs to offer optional CLE at committee meetings. The Academy will also offer the 40-hour required training program to become a certified mediator or arbitrator. In addition, she is stepping up efforts to increase membership in NCBA's Domus Scholar Circle, a unique program that allows members to take a year of unlimited 1, 2 and 3 CLE credit courses for one low fee of $219. The Advisory Board is also expanding representation in more practice areas. The Advisory Board reviews and approves all CLE classes offered through the Academy. Mary Ann Aiello earned her law degree at St. John's University School of Law. Active at the Nassau County Bar Association, she has served as an officer on the Nassau Academy of Law for the past 4 years, and is an active member of NCBA's Matrimonial Law Committee. She also serves as President of the New York Family Law American Inns of Court, Trustee for the American Family Law Inns of Court, Second Circuit, and is the Past President of the Nassau County Women's Bar Association, where she also received the Rona Seider Esq. Award. In addition, she has served as a delegate and co-chair of the Women's Bar Association of the State of New York Matrimonial Committee, and has chaired the Children's Rights Committee. She lectures extensively for state and local bar associations and law schools.

Largest Provider of CLE The Nassau Academy of Law is an accredited provider of Continuing Legal Education for attorneys by the New York State CLE Board and is the largest provider of CLE classes on Long Island. Each year, the Academy organizes and presents more than 180 substantive legal seminars in dozens of practice areas to educate attorneys on the newest developments in the law and to provide the practical skills to enable attorneys to most effectively represent their clients.

LIBN—CLE centerfold Master Page Paper size 23” x 15”; image size 21.25 x 13.25

NASSAU ACADEMY OF LAW

SEPTEMBER SEPTEMBER 9 Dean’s Hour: Jeffrey MacDonald Trial: Separating Fact from Fiction, and Lessons to be Learned 12:30-2:00PM 1 credit in professional practice Speaker: Douglas T. Burns, Esq. Attorney at Law, New York, Former Assistant U.S. Attorney Speaker: Joseph R. Conway, Esq., LaRusso & Conway, Mineola, Former Chief, Long Island Criminal Division, U.S. Attorney, EDNY Moderator: Anthony Michael Sabino, Esq., Sabino & Sabino, P.C. Mineola SEPTEMBER 17 Dean’s Hour: How to Prepare Your Divorce Case from A-Z Part 1: Client Interviewing 12:30-2:00PM 1 credit in professional practice or skills Speaker: Alisa J. Geffner, Esq., Speaker: Carolyn D. Kersch, Esq. Samuelson Hause Samuelson Geffner & Kersch, LLP, Garden City SEPTEMBER 21 Dean’s Hour: Mad Men and Mad Women: Attorney Advertising and Ethical Considerations 12:30-2:00PM 1 credit in ethics Speaker: Chris G. McDonough, Esq., McDonough & McDonough, Garden City Speaker: Omid Zareh, Esq., Chair, NCBA Ethics Committee SEPTEMBER 24 Dean’s Hour: Time to Control Your Practice and Your Life: Time Management (Business of Law Series) 12:30-2:00PM 1 credit in professional practice or skills Speaker: Thomas J. Foley, Esq., Foley Griffin LLP, Garden City Speaker: James P. Joseph, Esq., Joseph Law Group PC, Garden City SEPTEMBER 30 Dean’s Hour: Top 10 Common Mistakes & Misconceptions in Landlord/Tenant Law 12:30-2:00PM 1 credit in professional practice or skills Speaker: Jaime D. Ezratty, Esq., Ezratty, Ezratty & Levine, Mineola

OCTOBER OCTOBER 6 Dean’s Hour: The Write Stuff: Writing for Bar Journals With the NCBA Publications Committee 12:30-2:00PM 1 credit in professional practice or skills Christopher DelliCarpini, Esq., Chair, NCBA Publications Committee

Legal Malpractice 2015 Update: Insuring, Avoiding and Defending Yourself Against It! 5:30-7:30PM 2 credits in ethics Speaker: Ralph A. Catalano., Esq. Speaker: Gary Petropoulos, Esq. Speaker: Matthew K. Flanagan, Esq. Catalano, Gallardo & Petropoulos, Jericho

OCTOBER 7 Top Qualified Domestic Relations Order (QDRO) Mistakes and How to Avoid Them 5:30-7:30PM 2 credits in professional practice or skills Speaker: William R. Burns, Lexington Pension Consultants, Staten Island Speaker: TBA

OCTOBER 14 Dean’s Hour: How to Prepare Your Divorce Case from A-Z Part 2: Preparing Your Client’s Statement of Net Worth; Do’s and Don’ts in a Custody Litigation 12:30-2:00PM 1 credit in professional practice or skills Speaker: Alisa J. Geffner, Esq., Speaker: Carolyn D. Kersch, Esq., Samuelson Hause Samuelson Geffner & Kersch, LLP, Garden City OCTOBER 20 Construction Law Issues Between Owners and Contractors 5:30-7:30PM 2 credits in professional practice Speaker: Michael D. Ganz, Esq., Tunstead & Schechter, Jericho Speaker: Jason L. Rothman, Esq., Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, LLP, Uniondale

OCTOBER 21 Dean’s Hour: Privilege of Practicing Our Profession 12:30-2:00PM 1 credit in ethics Speaker: Chris G. McDonough, Esq., McDonough & McDonough, Garden City

OCTOBER 26 Insurance Law Update 2015 5:30-7:30PM 1.5 credits in professional practice or skills; .5 in ethics Speaker: Professor Michael J. Hutter; Albany Law School; Special Counsel, Powers & Santola LLP, Albany Speaker: Jonathan A. Dachs, Esq., Shayne, Dachs, Sauer & Dachs LLP, Mineola OCTOBER 27 Dean’s Hour: Caught on Camera: The Legality of Body Cameras With the NCBA Criminal Court Law & Procedure Committee 12:30-2:00PM 1 credit in professional practice Speakers: TBA Moderator: Andrew Monteleone, Esq., Chair, NCBA Criminal Courts Law Committee OCTOBER 28 Dean’s Hour: Incomplete Sentence: Continuing Struggles with the Federal Sentencing Guidelines and the Need for Reform 12:30-2:00PM 1 credit in professional practice Speaker: Douglas T. Burns, Esq., Attorney at Law, New York, Former Assistant U.S. Attorney Speaker: Joseph R. Conway, Esq., LaRusso & Conway, Mineola, Former Chief, Long Island Criminal Division, U.S. Attorney, EDNY Moderator: Anthony Michael Sabino, Esq., Sabino & Sabino, P.C. Mineola

Program Calendar

New Dean Aiello Aims to Boost

CLE Course Offerings

EXECUTIVE BOARD Mary Ann Aiello Dean Mili Makhijani Associate Dean Thomas J. Foley Assistant Dean Daniel W. Russo Assistant Dean Jaime D. Ezratty Assistant Dean Anthony M. Sabino Secretary Mary P. Giordano Treasurer Christine T. Quigley Counsel

ADVISORY BOARD Robert S. Barnett Gale D. Berg Sharon N. Berlin Lauren B. Bristol Andrea M. Brodie Joseph A. DeMarco Elizabeth P. Donlon Joseph A. Gentile Nancy E. Gianakos Christopher A. Gorman Amy H. Hsu Zelda Jonas Sarika Kapoor James R. Klein Gary Petropoulos Michael E. Ratner Susan Katz Richman L. Susan Slavin Terrence Tarver

Miss the Live Program?

Get the CLE You Need on CD and DVD

Use the Order Form on page xx

“D omus Scholar Circle (“DSC”) is the best educational bargain in Nassau County which gives me the ability to learn other areas

of the law which may impact on my areas of practice or just gives me the ability to learn new topics from excellent practitioners in the field.

An additional benefit is meeting lawyers from diverse practice areas to discuss ideas about substantive and procedural law as well as practice management issues and establish professional relationships who can become resources for my clients in the future.”

-John M. Zenir, Westbury

NEED CLE? BE A DSC!

CLE Registration Form 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

Date Seminar Name P S E

TOTAL Credits Member

Non- Member

Domus Scholar Circle 18B

Sept 9 Jeffrey MacDonald Trial: Lessons Learned 1.0 1 $30 $40 $0 ~ Sept 17 How to Prepare Your Divorce…Part 1 1.0 √ 1 $30 $40 $0 ~ Sept 21 Mad Men and Mad Women 1.0 1 $30 $40 $0 ~ Sept 24 Time to Control Your Practice..Time

Management for Attorneys 1.0 √ 1 $30 $40 $0 ~ Sept 30 Top 10 Common Mistakes…Landlord/Tenant 1.0 √ 1 $30 $40 $0 ~ Oct 6 The Write Stuff: Writing for Bar Journals 1.0 √ 1 $30 $40 $0 ~ Oct 6 Legal Malpractice 2015 Update 2.0 2 $80 $115 $0 ~ Oct 7 QDRO Mistakes and How to Avoid Them 2.0 √ 2 $80 $115 $0 ~ Oct 14 How to Prepare Your Divorce…Part 2 1.0 √ 1 $30 $40 $0 ~ Oct 20 Construction Law Issues 2.0 2 $80 $115 $0 ~ Oct 21 The Privilege of Practicing our Profession 1.0 1 $30 $40 $0 ~ Oct 26 Insurance Law Update 2015 1.5 √ 0.5 2 $80 $115 $0 ~ Oct 27 Caught on Camera: Legality of Body

Cameras 1.0 1 $30 $40 $0 $30 Oct 28 Incomplete…Federal Sentencing Guidelines 1.0 1 $30 $40 $0 ~ √ Skills credits available Name: TOTAL ENCLOSED Address: Phone: City/State/Zip: Email: Credit Card Acct. #: Billing zip for credit card: Security Code: _________ Exp. Date:______________ Signature: For Financial Aid Guidelines or Arrangements for Live Programs : [email protected]

10


Mary Ann Aiello of Westbury has been elected the 22nd Dean of the Nassau Academy of Law, the educational arm of the Nassau County Bar Association and the largest provider of Continuing Legal Education programs on Long Island. Aiello is a Principal of the law firm Mary Ann Aiello, P.C. in Garden City. The firm concentrates in the practice of family law and matrimonial law. Aiello has extensive trial experience

including contested custody and equitable distribution issues. Ambitious Agenda

This year Dean Aiello's goal is to offer more than 200 programs in all practice areas with a focus on the growing demand for more business skills, ethics and social media issues. She will encourage committee chairs to offer optional CLE at committee meetings. The Academy will also offer the 40-hour required training program to become a certified mediator or arbitrator. In addition, she is stepping up efforts to increase membership in NCBA's Domus Scholar Circle, a unique program that allows members to take a year of unlimited 1, 2 and 3 CLE credit courses for one low fee of $219. The Advisory Board is also expanding representation in more practice areas. The Advisory Board reviews and approves all CLE classes offered through the Academy. Mary Ann Aiello earned her law degree at St. John's University School of Law. Active at the Nassau County Bar Association, she has served as an officer on the Nassau Academy of Law for the past 4 years, and is an active member of NCBA's Matrimonial Law Committee. She also serves as President of the New York Family Law American Inns of Court, Trustee for the American Family Law Inns of Court, Second Circuit, and is the Past President of the Nassau County Women's Bar Association, where she also received the Rona Seider Esq. Award. In addition, she has served as a delegate and co-chair of the Women's Bar Association of the State of New York Matrimonial Committee, and has chaired the Children's Rights Committee. She lectures extensively for state and local bar associations and law schools.

Largest Provider of CLE The Nassau Academy of Law is an accredited provider of Continuing Legal Education for attorneys by the New York State CLE Board and is the largest provider of CLE classes on Long Island. Each year, the Academy organizes and presents more than 180 substantive legal seminars in dozens of practice areas to educate attorneys on the newest developments in the law and to provide the practical skills to enable attorneys to most effectively represent their clients.

LIBN—CLE centerfold Master Page Paper size 23” x 15”; image size 21.25 x 13.25

NASSAU ACADEMY OF LAW

SEPTEMBER SEPTEMBER 9 Dean’s Hour: Jeffrey MacDonald Trial: Separating Fact from Fiction, and Lessons to be Learned 12:30-2:00PM 1 credit in professional practice Speaker: Douglas T. Burns, Esq. Attorney at Law, New York, Former Assistant U.S. Attorney Speaker: Joseph R. Conway, Esq., LaRusso & Conway, Mineola, Former Chief, Long Island Criminal Division, U.S. Attorney, EDNY Moderator: Anthony Michael Sabino, Esq., Sabino & Sabino, P.C. Mineola SEPTEMBER 17 Dean’s Hour: How to Prepare Your Divorce Case from A-Z Part 1: Client Interviewing 12:30-2:00PM 1 credit in professional practice or skills Speaker: Alisa J. Geffner, Esq., Speaker: Carolyn D. Kersch, Esq. Samuelson Hause Samuelson Geffner & Kersch, LLP, Garden City SEPTEMBER 21 Dean’s Hour: Mad Men and Mad Women: Attorney Advertising and Ethical Considerations 12:30-2:00PM 1 credit in ethics Speaker: Chris G. McDonough, Esq., McDonough & McDonough, Garden City Speaker: Omid Zareh, Esq., Chair, NCBA Ethics Committee SEPTEMBER 24 Dean’s Hour: Time to Control Your Practice and Your Life: Time Management (Business of Law Series) 12:30-2:00PM 1 credit in professional practice or skills Speaker: Thomas J. Foley, Esq., Foley Griffin LLP, Garden City Speaker: James P. Joseph, Esq., Joseph Law Group PC, Garden City SEPTEMBER 30 Dean’s Hour: Top 10 Common Mistakes & Misconceptions in Landlord/Tenant Law 12:30-2:00PM 1 credit in professional practice or skills Speaker: Jaime D. Ezratty, Esq., Ezratty, Ezratty & Levine, Mineola

OCTOBER OCTOBER 6 Dean’s Hour: The Write Stuff: Writing for Bar Journals With the NCBA Publications Committee 12:30-2:00PM 1 credit in professional practice or skills Christopher DelliCarpini, Esq., Chair, NCBA Publications Committee

Legal Malpractice 2015 Update: Insuring, Avoiding and Defending Yourself Against It! 5:30-7:30PM 2 credits in ethics Speaker: Ralph A. Catalano., Esq. Speaker: Gary Petropoulos, Esq. Speaker: Matthew K. Flanagan, Esq. Catalano, Gallardo & Petropoulos, Jericho

OCTOBER 7 Top Qualified Domestic Relations Order (QDRO) Mistakes and How to Avoid Them 5:30-7:30PM 2 credits in professional practice or skills Speaker: William R. Burns, Lexington Pension Consultants, Staten Island Speaker: TBA

OCTOBER 14 Dean’s Hour: How to Prepare Your Divorce Case from A-Z Part 2: Preparing Your Client’s Statement of Net Worth; Do’s and Don’ts in a Custody Litigation 12:30-2:00PM 1 credit in professional practice or skills Speaker: Alisa J. Geffner, Esq., Speaker: Carolyn D. Kersch, Esq., Samuelson Hause Samuelson Geffner & Kersch, LLP, Garden City OCTOBER 20 Construction Law Issues Between Owners and Contractors 5:30-7:30PM 2 credits in professional practice Speaker: Michael D. Ganz, Esq., Tunstead & Schechter, Jericho Speaker: Jason L. Rothman, Esq., Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, LLP, Uniondale

OCTOBER 21 Dean’s Hour: Privilege of Practicing Our Profession 12:30-2:00PM 1 credit in ethics Speaker: Chris G. McDonough, Esq., McDonough & McDonough, Garden City

OCTOBER 26 Insurance Law Update 2015 5:30-7:30PM 1.5 credits in professional practice or skills; .5 in ethics Speaker: Professor Michael J. Hutter; Albany Law School; Special Counsel, Powers & Santola LLP, Albany Speaker: Jonathan A. Dachs, Esq., Shayne, Dachs, Sauer & Dachs LLP, Mineola OCTOBER 27 Dean’s Hour: Caught on Camera: The Legality of Body Cameras With the NCBA Criminal Court Law & Procedure Committee 12:30-2:00PM 1 credit in professional practice Speakers: TBA Moderator: Andrew Monteleone, Esq., Chair, NCBA Criminal Courts Law Committee OCTOBER 28 Dean’s Hour: Incomplete Sentence: Continuing Struggles with the Federal Sentencing Guidelines and the Need for Reform 12:30-2:00PM 1 credit in professional practice Speaker: Douglas T. Burns, Esq., Attorney at Law, New York, Former Assistant U.S. Attorney Speaker: Joseph R. Conway, Esq., LaRusso & Conway, Mineola, Former Chief, Long Island Criminal Division, U.S. Attorney, EDNY Moderator: Anthony Michael Sabino, Esq., Sabino & Sabino, P.C. Mineola

Program Calendar

New Dean Aiello Aims to Boost

CLE Course Offerings

EXECUTIVE BOARD Mary Ann Aiello Dean Mili Makhijani Associate Dean Thomas J. Foley Assistant Dean Daniel W. Russo Assistant Dean Jaime D. Ezratty Assistant Dean Anthony M. Sabino Secretary Mary P. Giordano Treasurer Christine T. Quigley Counsel

ADVISORY BOARD Robert S. Barnett Gale D. Berg Sharon N. Berlin Lauren B. Bristol Andrea M. Brodie Joseph A. DeMarco Elizabeth P. Donlon Joseph A. Gentile Nancy E. Gianakos Christopher A. Gorman Amy H. Hsu Zelda Jonas Sarika Kapoor James R. Klein Gary Petropoulos Michael E. Ratner Susan Katz Richman L. Susan Slavin Terrence Tarver

Miss the Live Program?

Get the CLE You Need on CD and DVD

Use the Order Form on page xx

“D omus Scholar Circle (“DSC”) is the best educational bargain in Nassau County which gives me the ability to learn other areas

of the law which may impact on my areas of practice or just gives me the ability to learn new topics from excellent practitioners in the field.

An additional benefit is meeting lawyers from diverse practice areas to discuss ideas about substantive and procedural law as well as practice management issues and establish professional relationships who can become resources for my clients in the future.”

-John M. Zenir, Westbury

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Sept 9 Jeffrey MacDonald Trial: Lessons Learned 1.0 1 $30 $40 $0 ~ Sept 17 How to Prepare Your Divorce…Part 1 1.0 √ 1 $30 $40 $0 ~ Sept 21 Mad Men and Mad Women 1.0 1 $30 $40 $0 ~ Sept 24 Time to Control Your Practice..Time

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Under New York law, a surviving spouse cannot be entirely disinherited from his or her decedent spouse’s estate. If the decedent spouse died with a will but excluded his or her surviv-ing spouse, then pursuant to EPTL § 5-1.1-A the surviving spouse has the statutory right to inherit an elective share of the deceased spouse’s assets. If the deceased spouse’s prop-erty is distributed in intestacy, then EPTL § 4-1.1 provides for distribution to the surviving spouse.

In order for the surviving spouse to inherit, however, the surviving spouse must estab-lish that he or she is the lawful spouse of the decedent. Thus, the over-riding question is: When is a marriage a lawful marriage?

The “Valid Marriage” RequirementTo be considered a lawful spouse,

there had to have been a valid marriage between the parties. While CPLR 4526 states that having a marriage certificate is prima facia evidence of a marriage, DRL § 25 provides that a marriage will not be “render[ed] void by reason of a fail-ure to procure a marriage license” as long as the marriage was solemnized between persons of full age.1 Therefore, a marriage that is not celebrated in conjunction with a marriage certificate will not result in a void marriage, nor will it defeat the rights

of the surviving spouse. Rather, pursuant to the DRL, the prerequisite to a valid marriage is a proper solemnization.

DRL Article 3 provides the require-ments for a proper solemniza-tion of a marriage and for who is authorized to solemnize a marriage. Article 3, section 12 provides that the parties must declare to take each other as each other’s spouse in the presence of an officiating party and at least one attend-ing witness. However, a spe-cific type of ceremony for such solemnization is not required under the statute.

Therefore, marriages can be solemnized in the custom practiced by a party’s religion.

Since each religion has its own marriage ritual, there are many ways for marriag-es to be solemnized. Nonetheless, the religious aspect of the wedding ceremony does not play a factor in establishing whether a marriage is valid; rather the crux of the determination is whether or not the requirements of section 12 have been met.

For example, in a recent matrimo-nial case, a husband claimed that even though he and his wife had a wedding ceremony, the marriage was invalid since they never intended to be married.2 The supreme court first held that establish-ing the validity of the marriage would involve an inquiry into religious doctrine,

and therefore require the court to make “strictly a religious determination.”3 Upon reargument, and later affirmed by the Appellate Division, the court determined that an inquiry into religious doctrine was not necessary. Instead, it focused solely on whether the marriage ceremony complied with section 12. Determining that it did, the court held the marriage was valid and binding.4

What is critical, however, is who may solemnize the marriage, as he or she must be authorized under DRL Article 3, section 11. An example of such autho-rized party is a “clergyman” or “minister” of any religion, as long as the religion is defined in the Religious Corporations Law.5 A marriage solemnized by some-one without the statutory authority to do so will be considered invalid. In one case, a marriage was considered void by the court since the solemnization of the marriage was conducted by a minister of the Universal Life Church, Inc., which was not a religion defined in the Religious Corporation Law.6

Still, it is important to note that although the religion has to be defined in the Religious Corporation Law, the church or synagogue does not need to be affiliated with a certain denomination or order, nor is it required for the minister or rabbi to receive sanctioning authority from a church or synagogue.

For example, in In re Estate of Silverstein, a decedent’s child contended that his deceased father’s marriage to

his stepmother was invalid since the rabbi who officiated the marriage cere-mony had not received formal authority from the Jewish sect to act as a rabbi. The court held that such authority was unnecessary. Since the rabbi conducted religious services in a synagogue for over ten years and was considered by the congregants as their spiritual leader, the rabbi was a person authorized by statute to solemnize a marriage and so the mar-riage was valid.7

Additionally, if a couple marries out-side of New York State and the marriage is solemnized by an authorized person in the state where the marriage took place, then such marriage will be considered valid in New York. This point is high-lighted by Fisher v. Fisher.8 In this case, a ship captain solemnized a marriage in the middle of the ocean. The court found that although New York was the port of departure, the applicable law was that of the jurisdiction where the ship’s owner resided. Since ships’ captains were not unauthorized to solemnize marriages in that state, the marriage was held valid.9

When Is A Marriage Invalid?However, even if a person authorized

by the DRL conducted a ceremonial mar-riage that complied with Article 3, the marriage may still be invalidated. The status of the parties entering into the marriage and their capacity to enter into a marriage is another crucial element.10

Tied the Knot? Maybe Not. Defining “Lawful Spouse” for Inheritance Purposes

Avigail Goldglancz

See SPOUSE, Page 20


from or between accounts, copies of all checks over $2,000, and the myriad of personal documents required, such as original birth certificates, marriage or death certificates for spouses, proof of Social Security and pension income, etc.

Most nursing home residents need 24/7 care and have no way of traveling bank to bank to gather this information. Is it the Court and Legislature’s inten-tion that incapacitated residents who have no family and no advance direc-tives are ineligible to have a guardian appointed to help with bill paying or applications for needed governmental benefits solely because those residents have an open balance due to the nurs-ing home? Clearly, this is a preposter-ous result.

One solution is available under Article 81 of the Mental Hygiene Law which allows for a Special Guardian to be appointed for a limited purpose or specific transaction. If a resident is found to be incapacitated, the Court “may authorize, direct, or ratify any transaction or series of transactions necessary to achieve any security, ser-vice, or care arrangement meeting the foreseeable needs of the incapacitated person ….”15 This provision has been used for such limited issues and trans-actions as securing Medicaid benefits on behalf of a nursing home resident, after which the Special Guardian is discharged. However, as a practi-cal matter and although authorized by Article 81 of the Mental Hygiene Law, the Courts have lately disfavored such limited appointments because the Incapacitated Person (“IP”) with no family or appointed agents generally has needs greater than the single trans-action.

What alternatives does a healthcare facility have then, if it is “inappropri-ate” to have a guardian appointed to assist a resident? The facility can bring a civil lawsuit to collect a balance due. Of course, this does nothing to address the issue of health care costs going forward for a resident who continues to reside in the facility, nor does a civil lawsuit assist in securing medical insurance (i.e. Medicaid benefits) for the resident.

Further, in the event the resident lacks decision-making capacity, a Guardian ad Litem (“GAL”) will be appointed for the resident in the civil litigation.16 However, the GAL’s role is limited to protecting the defendant’s rights in that litigation only and a GAL is generally not empowered to consent to a proposed settlement.17 In fact, it

is well-settled that only a Guardian appointed under MHL Article 81 may apply to the court for approval of a pro-posed settlement.18 Furthermore, case law indicates that in the event a defen-dant requires management of his or her personal and property needs, the Court in a civil lawsuit may refuse to appoint a GAL in lieu of a Guardian under Article 81 of the Mental Hygiene Law.19

The only other alternative is for the healthcare facility to involuntari-ly discharge the resident. A resident may be involuntarily discharged from a nursing home when “the resident has failed, after reasonable and appropri-ate notice, to pay for (or to have paid under Medicare, Medicaid or third-par-ty insurance) a stay at the facility.”20 But where will that resident go? Presumably, the resident can’t go home due to the need for 24/7 institution-al-level care. But what other healthcare facility will accept such a resident for admission where that resident has no insurance or payment source?

Is this really more “appropriate?” Do we, as a society, prefer to start lawsuits against possibly incapacitated persons - or worse, discharge nursing home res-idents, effectively cutting off their care - instead of appointing a Guardian under the Mental Hygiene Law because one of the needs to be addressed is payment for care? We need to take a hard look at how we are assisting and caring for our elderly and incapacitated nursing home residents. Jennifer B. Cona, Esq. is the managing partner of the Elder Law firm Genser Dubow Genser & Cona LLP, where she heads up the firm’s Health Care Facility Reimbursement and Recovery department. Ms. Cona wishes to thank Adam Kahn, Esq. for his assistance with this article. Ms. Cona can be reached at 631.390.5000 or www.genserlaw.com.

1. MHL §81.06(7).2. MHL §81.06.3. MHL §81.07(g)(1)(vi), 30(h), & 31(c).4. MHL §81.02(a). 5. MHL §81.02(b).6. MHL §81.02(c).7. 10 N.Y.C.R.R. §415.3(h)(1)(i)(b).8. In re Rochester Gen. Hosp., 158 Misc.2d 522 (Sup. Ct., Monroe Co. 1993).9. In re Wingate, 169 Misc.2d 701 (Sup. Ct., Queens Co. 1996).10. Matter of J.T., 42 Misc.3d 1202(A) (Sup. Ct., Bronx Co. 2013).11. Atty. Gen. Inf. Opn. 1038 (1997).12. Matter of G. S., 17 Misc.3d 303 (Sup. Ct., N.Y. Co. 2007); Matter of S.K., 13 Misc.3d 1045 (Sup. Ct., Bronx Co. 2006).13. Matter of S.K., 13 Misc.3d 1045 (Sup. Ct., Bronx Co. 2006).14. New York Public Health Law Article 29-CC (2010).15. MHL §81.16(b).16. CPLR §1201. 17. 1234 Broadway, LLC, v. Feng Chai Lin, 25 Misc.3d 476 (Civ. Ct., N.Y. Co. 2009).18. Matter of Sills, 32 A.D.3d 1157 (4th Dept. 2006). 19. Matter of Lainez, 11 Misc.3d 1092A (Sup. Ct., Kings Co. 2006).20. 10 NYCRR §415.3(h)(1)(i)(b).

GUARDIANSHIP ...



Medicaid community-based home care (“CBHC”) provides assistance to disabled individuals with their activities of daily living in their homes, as well as in some independent and assisted living facili-ties. To receive these services, an individual must financially qualify for Medicaid, and have a physical need for someone to assist them in the home.1 In order to receive services, dual eligibles (those who are receiving both Medicare and Medicaid) must enroll with a Managed Long-Term Care Provider (“MLTCP”).2 The MLTCPs are then paid a flat rate by New York State for services provided.3

When enrollment in an MLTCP became mandated, the MLTCPs were also made responsible for determin-ing an individual’s eligibility for CBHC services, as well as the number hours and days per week that the person may receive services through the MLTCP.4 As a result of the MLTCPs flat fee for service and their responsibility to deter-mine applicant eligibility, a financial con-flict of interest arose.5 The MLTCPs now had incentive to enroll low-cost members, rather than high-cost members,6 and that is exactly what happened. As a way to curb costs and increase their profits, some MLTCPs approved more high-function-ing individuals for CBHC services rather than the more disabled individuals. As a solution to this problem, the conflict-free assessment was born.

The conflict-free assessment is the result of a partnership between the Department of Health and New York Medicaid Choice, who manages the Conflict-Free Evaluation and Enrollment Center (“CFEEC”). The CFEEC’s purpose is to determine applicant eligibility for CBHC.7 The CFEEC works with corpo-rate contractor Maximus,8 who is respon-sible for providing all activities related to the CFEEC, including the Medicaid nursing evaluation.9 The partnership with Maximus is intended to remove the financial conflict of interest with the MLTCPs, and to ensure that the more disabled individuals are approved for ser-vices. While this conflict-free assessment and partnership with Maximus may alle-viate New York State’s concerns with the MLTCPs, it creates a burden on our clients by introducing another step in the already complicated process of Medicaid CBHC service approval.

This past February, the conflict-free assessment became a necessary step in Westchester and Suffolk Counties, join-ing New York, Bronx, Queens, Richmond, Kings, and Nassau Counties, where it was mandated in 2014.10 By May 2015, it will be mandated in all New York State counties.

The ProcessJust as before the existence of the con-

flict-free assessment, an applicant must first be evaluated for financial eligibil-ity in order to receive services through Medicaid.11 While an applicant’s financial eligibility is under review with the appli-cable county Medicaid office, the appli-cant can be assessed by Maximus.

Maximus’ assessment is only valid for sixty days. After that period, an applicant

must have enrolled in an MLTCP or the applicant will have to be reassessed by Maximus. This expiration date creates an issue when, in the interest of time, an applicant is assessed by Maximus while

his/her application is under review with the county depart-ment of social services, but then does not receive applica-tion approval from the county within the sixty-day timeline. Now, the applicant must be reassessed by Maximus, and possibly by the MLTCP if also already completed.

Before the MLTCP can complete their assessment and enroll an individual, Maximus must first complete their evaluation.12 Maximus

should be contacted as soon as an appli-cant receives notice of Medicaid approval (or while the Medicaid application is pending). Once notified, Maximus has 5-7 business days to schedule an evaluation.13 Maximus’ evaluation is solely for the purpose of determining an individual’s eligibility, not the number of hours or days per week that an applicant qualifies for—this determination remains with the MLTCP.14 In the counties where the con-flict-free assessment is presently mandat-ed, the MLTCP is no longer permitted to enroll new individuals until Maximus has determined eligibility.15

CFEEC Notices & Dispute Resolution Process

The CFEEC manages the notices for each applicant and has a number of notices that they will issue after each applicant‘s Maximus assessment. The most basic notices include long-term care approval and long-term care denial.16 The denial letter must include the cli-ent’s right to a fair hearing.17 Though, in reality, most clients’ know Maximus’ eligibility determination once the nurse completes the assessment. In fact, the Department of Health states that it is a “goal . . . to have the determination made once the CFEEC [Conflict-Free Evaluation and Enrollment Center] eval-uation is completed.”18

Since both Maximus and the MLTCPs complete separate assessments, there is the possibility that Maximus and the MLTCP will disagree on a client’s need for CBHC services. In that case, the MLTCP may trigger a Dispute Resolution Process through the submission of a “dis-agreement request.”19 The MLTCP is allotted up to six business days to submit the disagreement request.20 Upon receipt of the disagreement request, there will be another clinical review of the client on behalf of New York State and, if a decision cannot be made, then the case may be escalated to the Department of Health’s Medical Director for a final determination.21 The Medical Director must make a decision within three busi-ness days.22 As a result, the entire dispute resolution process can take up to a maxi-mum of nine days.23

Depending on the determination made by the Dispute Resolution Process, the CFEEC will issue a Notice regarding the client’s long-term care decision. If the applicant’s long-term care approval is overturned, the Notice must include the client’s right to a fair hearing.24

The last notice that CFEEC may issue to an applicant is that an applicant’s long-term care approval has expired because the applicant did not select a plan within 60 days of Maximus’ assessment.

Hypothetical CaseTo demonstrate the period of time that

it takes for an applicant to start receiving CBHC services through Medicaid, let’s follow a hypothetical case.

Your client comes to you and tells you that he has been privately paying for assistance in the home and it is projected that he will run out of resources in the near future. The client consults with you to determine if he is financially eligible for Medicaid CBHC assistance. Pursuant to your advice, the client is financially eligible for Medicaid by January 1. The client provides you with the necessary financial and personal documentation by February, and the application is submit-ted to the county Department of Social Services by the end of the month.

Depending on the county, the county’s review of the Medicaid application can take between 30-120 days.25 Using this timeline, your client’s Medicaid applica-tion is approved on April 5. Maximus is immediately contacted to schedule the client’s initial assessment, which must be completed within seven business days, around April 12. As soon as this date is scheduled, the MLTCP is contacted to schedule their assessment in order to complete their assessment by April 19,26 so that your client may start receiving CBHC services through the MLTCP by May 1. Provided that the MLTCP completes the assessment by April 19, the client will start receiving services on May 1. Based on this timeline, a total of four months has passed from the point of the client’s Medicaid eligibility and his receipt of ser-vices through Medicaid. Throughout this time, the client must continue to privately pay for home care assistance.

Now, if we change the facts of the above hypothetical by just a few days—perhaps the client’s application is approved on April 15 and Maximus completes the assessment on April 19—this leaves no time for the MLTCP to complete their assessment by the nineteenth of the month. The client must now privately pay for an additional month of home health care services before the MLTCP begins providing services on June 1.27

ConclusionWhat does all this mean for our cli-

ents and their families? It means that a process that was meant to be simple has become complicated and costly. Clients must be educated on the time that it can take for CBHC Medicaid approval and the invasiveness of at least two medical assessments in the home. The clients should be prepared for the financial cost that they might be responsible for paying. The clients should also be prepared for emotional toll that the entire process can take on them and their family.

Does the Maximus assessment offer any benefit to our clients? At this time it is unclear whether the Maximus assess-ments will make any additional determi-nations other than a person’s eligibility for long term care. For example, the Maximus assessment might be a resource for those

families who are uncertain if homecare is safe and viable option for the applicant. Perhaps the applicant’s health is so prob-lematic that he/she is unsuited for home care. If Maximus offered feedback of this nature, it may be useful for those family members trying to determine the best care options for their loved one.

Although the conflict-free assessment may resolve the issue with the MLTCPs financial conflict of interest, it tends to create more delays and difficulties for those clients who are in need of immedi-ate home care services. The system should be examined from a client’s perspective to make some fundamental reforms in order to reduce the costs to the client both per-sonally and financially.

Meghan McCarthy is an associate at the Law Office of Howard J. Atlas, P.C., and practic-es Elder Law and Trusts and Estates.

1. 42 USC § 1396d.2. Letter from Mark Kissinger, Director, Division of Long Term Care, Office of Health Insurance Programs to Managed Long Term Care Plan (Sept. 20, 2012).3. Bernstein, Amanda, Day Centers Sprout Up, Luring Fit Elders and Costing Medicaid, New York Times, Apr. 22, 2013; Bernstein, Amanda, Advocates Say Managed-Care Plans Shun the Most Disabled Medicaid Users, New York Times (Apr. 22, 2013).4. www.wnylc.com/health/entry/114, follow Conflict-Free Evaluation Assessment (CFEEC) Required Before Enroll in MLTC.5. Id.6. Id.7. Frequently Asked Questions by the Conflict-Free Evaluation and Enrollment Center (CFEEC), dated Sept. 29, 2014, available at www.health.ny.gov.8. www.maximus.com.9. CFEEC FAQs, supra n.7, question no. 1.10. The plan is being rolled out into other coun-ties in New York State each month, with the last roll out in May 2015. See MLTC policy 14.06, available at www.health.ny.gov.11. See GIS 14 MA/029 from Judith Arnold, Director, Division of Eligibility (Jan. 1, 2015), available at www.health.ny.gov.12. Powerpoint presentation by Conflict-Free Evaluation and Enrollment Center (CFEEC) on their role within the enrollment of members into managed longer-term care (Sept. 22, 2014), avail-able at www.health.ny.gov.13. Frequently Asked Questions by the New York State Department of Health, Conflict-Free Evaluation and Enrollment Center (CFEEC), (Mar. 27, 2015), available at www.health.ny.gov.14. Fact Sheet by the New York State Department of Health, Conflict-Free Evaluation and Enrollment Center (CFEEC) (Sept. 2014), available at www.health.ny.gov.15. MLTC Policy 14.06.16. CFEEC Presentation dated Sept. 22, 2014, available at www.health.ny.gov.17. Id.18. CFEEC FAQs dated Mar. 27, 2015.19. Id. question no. 8.; CFEEC Presentation, supra n.12.20. CFEEC FAQs, supra n.18, question no. 8.21. Id.; CFEEC Presentation, supra n.12.22. CFEEC FAQs, supra n.18, question no. 8.23. Id.24. CFEEC Presentation, supra n.12.25. Technically, the county social services office must determine Medicaid eligibility within 45 days, or 90 days if eligibility depends on disabili-ty, but, as practice dictates, this deadline is often not met.26. An applicant must enroll in an MLTCP by the twentieth of each month in order to receive services by the start of the following month. See Presentation by Margaret O. Willard of the New York State Department of Health, Update on the Transition of FFS Community Based LTC Services to MLTC Model (NYPWA Winter Conference 2013), available at www.health.ny.gov.27. A client may request reimbursement for his/her private payments for home care once finan-cially eligible, however, reimbursement is only permitted up until the date that the Common Benefit Identification Card (CBIC) is issued. 10 OHIP/ADM-9 (IV.A2.) Nov. 22, 2010. This means that for this hypothetical, the client will privately pay for an additional 45 days without a reim-bursement option.


Conflict-Free Evaluations for Medicaid Community-Based Home Care

Meghan McCarthy


We Care

Donor In Honor of Harold L. Deiters III Ellen Rosen’s birthdayDeena & Jerome Ehrlich Stephen W. Schlissel’s continued commitment & extraordinary generosity to WE CARESteven J. Eisman & Samuel J. Ferrara Ellen Rosen’s birthdayCarol Kantor Stephen W. Schlissel’s birthdayMiriam & George Kaplan the marriage of Carolyn Wolf and Bob LeventhalMartha Krisel the wedding of Jessica SeligsonMartha Krisel the wedding of Silvia DurriHon. Sondra Pardes Kieth Rieger’s receipt of the Rick Keidel Memorial Tribute Award Hon. Sondra Pardes Mike Campisi’s receipt of the Court Employee of the Year Award Hon. Denise Sher Hon. Bruce Cozzens Jr.’s receipt of the Long Beach Lawyers’ Judge of the Year AwardHon. Denise Sher the installation of Mary Ann Aiello as NAL DeanHon. Denise Sher the installation of Martha Krisel as NCBA President – ElectHon. Denise Sher Kieth Rieger’s receipt of the Rick Keidel Memorial Tribute AwardHon. Denise Sher Ellen Rosen’s birthdayHon. Denise Sher Lt. John McDonough’s receipt of the Long Beach Lawyers’ Lawrence Elovich Leadership AwardHon. Peter B. Skelos Lt. John McDonough’s receipt of the Long Beach Lawyers’ Lawrence Elovich Leadership AwardHon. Peter B. Skelos Hon. Bruce Cozzens Jr.’s receipt of the Long Beach Lawyers’ Judge of the Year AwardHon. Peter B. Skelos Hon. Sylvia Hinds-Radix’s award of Doctor of Humane Letters by Metropolitan College

Donor For Speedy RecoveryHon. Leonard B. Austin Joseph ForstadtHon. Leonard & Debbie Austin Hon. Joseph CovelloRoberta Scoll Evelyn KalenscherHon. Denise Sher Hon. Joseph Covello Hon. Peter B. Skelos Hon. Joseph Covello

Donor In Memory of Emily Franchina & Mary Giordano Loretta Scalzo, mother of Susan SlavinDeena & Jerome Ehrlich Herbert Duber William A. Gallucci John Donald LeBlancRobert Keidel Richard J. KeidelKenneth L. Marten Ida Grandinette, mother of Anthony GrandinetteHon. John G. Marks Ida Grandinette, mother of Anthony GrandinetteHon. John G. Marks John Donald LeBlancPhilip S. Milone Thomas J. Hayden Grace D. Moran Lawrence Lally, husband of Hon. Ute Wolff LallyHon. Andrea Phoenix Lawrence Lally, husband of Hon. Ute Wolff LallyHon. Andrea Phoenix Dora TruzzolinoSusan Katz Richman Sylvia Spellun Jean Roncallo Lawrence Lally, husband of Hon. Ute Wolff LallyJoan & Stephen W. Schlissel Melvin GoldbergHon. Denise Sher Ida Grandinette, mother of Anthony GrandinetteHon. Denise Sher Loretta Scalzo, mother of Susan SlavinHon. Peter B. Skelos Lawrence Lally, husband of Hon. Ute Wolff Lally Hon. Peter B. Skelos David Carrigan, father of Scott CarriganHon. Elaine J. Stack Loretta Scalzo, mother of Susan SlavinMichael P. Vessa Roy W. Vasile

We Acknowledge, with Thanks, Contributions to the WE CARE Fund

Hon. Leonard & Debbie Austin

Merri ChechanoverHarold L. Deiters III

Jerome ScharoffHon. Denise Sher

In Honor of the installation of Steven J. Eisman as NCBA President

Ellen P. BirchHarold L. Deiters, IIISteven J. Eisman & Samuel J. Ferrara

Emily F. FranchinaMarilyn K. GenoaJerome ScharoffLois Schwaeber

Hon. Denise SherHon. Peter B. SkelosJohn M. Zenir

For Speedy Recovery of Stephen W. Schlissel

Mary Ann Aiello Karen Bodner

John P. DiMascio, Jr.John P. Dimascio, Sr.

Stephen Gassman

Hon. Leonard B. AustinHon. & Mrs. Stephen Bucaria Lois & Ivan Lazarus

Parkville SchoolHon. Denise Sher

Schlissel, Ostrow, Karabatos PLLC

Mary Ann AielloHon. Leonard & Debbie AustinHon. Ruth C. BalkinBarket Marion Epstein & Kearon Ellen P. BirchKaren Bodner Betty & Bill BourkeJane K. CristalHarold L. Deiters IIIJoan DudleySteven J. Eisman & Samuel J. FerraraHon. Andrew M. Engel & Sheryl Palley-EngelHon. & Mrs. Anthony FalangaDina & Joanne Ferrante

Dana FinkelsteinNadine FitoussiFranchina & Giordano, P.CRichard FromewickJudy & Marc GannMeryl & Stephen GassmanMarilyn K. Genoa Joseph A. GentileHon. & Mrs. Frank Gulotta Jr.Betty & Bill HammondKathryn D. HopkinsHon. Steven & Peggy JaegerHon. Zelda Jonas Evely KalenscherMitchell KaneffThe Kassimir FamilyCheryl Mallis

Susan & Marty MarkowitzHon. John G. MarksKenneth MartenHon. Sondra PardesHon. Danielle M. Peterson Hon. Andrea PhoenixPort Washington Teachers AssociationSousa Social CommitteeSusan Katz RichmanLois SchwaeberHon. Denise Sher Elizabeth ShirianJulie SimonHon. Peter B. SkelosWillis of NY Construction TeamRichard & Kathleen Wright

Hon. Ruth C. BalkinEllen P. BirchHarold L. Deiters, IIIJohn P. DiMascio, Jr.

John P. DiMascio, Sr.Dana J. FinkelsteinFass & Greenberg LLPSteven J. Eisman &

Samuel J. FerraraHon. Denise Sher Hon. Peter B. Skelos

In Memory of Elliot Rosenbaum

In Memory of Hon. Gabriel Kohn

In Memory of Sanford Goldsmith, partner of Hon. Elaine J. Stack

In Memory of Gustavo Serrano, father of Maria Schwartz


Rita SteinThis month, the Nassau County Bar Association

(NCBA) is delighted to honor Rita Stein as the Pro Bono Attorney of the Month for her dedication to the Nassau County Bar Association through her volunteer work with the Senior Clinic.

Ms. Stein is an accomplished attorney who started her career as a certified NYS teacher, H&R Block tax preparer, and NYS Insurance Department Auditor. She received a Masters in teaching at Hofstra. All of these accomplishments have helped to enhance and augment her legal practice.

Ms. Stein earned her JD from New York Law School where she graduated Magna Cum Laude. During her legal career, spanning 37 years, Rita has served on numerous NCBA committees, most notably as a Director of the NCBA and Co-Chair of the Judiciary Committee. She is a Past President of the Nassau County Woman’s Bar Association. She has created and given seminars

and lectures on various topics including matrimonial law, grandparents rights, elder abuse, elder law, trusts and estates, and Senior Citizens Rights, to name a few. Rita has been published in the New York Law Journal, Nassau Lawyer and various civic and charitable papers. She has spoken at New York Law School, Hofstra University, Nassau Community College, Channel 12 Television, numerous schools and libraries and other institutions across the state. She has served on the Commercial Mediation Panel, serves as a Supreme Court Referee and Receiver, Guardian Ad Litem in Surrogate, Family, and Supreme Court and is a District Court Arbitrator.

Nevertheless, Rita still finds time to volunteer at almost every Senior Clinic and Pro Bono Fair. She has mentored young attorneys and volunteers at the NCBA Senior Clinic where she counsels seniors on numerous issues that they face. She also volunteered at the Mary

BY GALE D. BERG

Pro Bono Attorney of the Month Brennan Inn offering legal assistance to those in need.When informed of being selected as the Pro Bono

Attorney of the Month, she stated, “ I am the most fortu-nate person. I have a profession that I love and am well compensated for my work. I had a wonderful husband and have loving and caring children and grandchildren including Audra Mauner, who is an attorney and often works with me. It is my pleasure to give back to those in need and do pro bono work. Thank you Nassau County Bar Association for providing me with the opportunity to par-ticipate in the Senior Clinic and other pro bono activities.”

When she is not wearing her attorney hat, Rita is actively involved in her community. She has been a member of the Roosevelt Temple School Board and B’nai B’rith, served on the Roosevelt PTA, East Williston PTA, and served as the first woman President of the RCC Civic Association.

Ms. Stein is admitted to practice in the States of New York and Florida, The Supreme Court of the United States and both the Federal Courts for the Eastern and Southern Districts of New York.

We are proud to acknowledge her generosity and ser-vice to the community by honoring Rita Stein as the Pro Bono Attorney of the Month.

Attorneys interested in volunteering at the Senior Clinic, working on the Mortgage Foreclosure Project or have any questions please call Gale D. Berg, Director of Pro Bono Attorney Activities, at the Nassau County Bar Association (516)747-4070 or e-mail her at [email protected].

resort to ‘demonizing’ one another in order to prove their respective litigation positions. This approach inevitably takes an enormous toll on family relationships and rarely, if ever, benefits the incapacitated person. And the court’s determina-tion may be such that neither side is satisfied. With the mediation approach, on the other hand, the stage is set for the parties and their counsel to be able to craft an arrangement where everyone’s interests can be met.”

Judge Adams added, “We antic-ipate that this pilot program pro-vided through the Nassau County Bar Association will help demon-strate how mediation may play a significant role in addressing guardianship disputes with less stress on family members.”

As contemplated under this special program, after the parties in a guardianship dispute agree to mediation, the judge will refer the case to NCBA for possible resolu-tion. A mediator or co-mediators assigned from a special roster of NCBA mediators with specialized training or experience will pro-vide up to four hours of mediation services. If the matter does not reach a resolution after the first four hours, the parties may agree to extend the mediation at NCBA’s standard reduced rate of $300 per hour.

“The NCBA Court-Referred Guardianship Mediation Pilot Project was made possible only through the support of our judi-ciary and of the mediators who have agreed to donate their time and talents in order to promote the use of mediation. We also want to thank our sponsor, Focused Wealth Management of Highland, NY, for underwriting the NCBA administrative fee for ten cases and the NCBA for waiving its fee for an additional ten cases, so as to further induce participation in this program,” said Harriette Steinberg, a Pilot Project Coordinator and Chair of NCBA’s

ADR Promotional Council. Currently, there are 43 medi-

ators who have qualified as mem-bers of the NCBA Mediator Panel. Each applicant for membership on the NCBA Mediator Panel is required to be an NCBA mem-ber in good standing, have at least 40 hours of NYS Office of Court Administration-approved mediation training, and have been admitted to practice in New York for at least 10 years.

Further, applicants must be screened by NCBA’s Judiciary Committee. Mediators who are participating in the Guardianship Pilot Program are experienced in guardianship matters and have received additional special train-ing.

Besides guardianship media-tion, NCBA also offers mediation services, as well as arbitration services, in many other kinds of disputes including commercial, breach of contract, products lia-bility, labor, medical malpractice, domestic relations, estate and trusts, employment, and elder law matters.

There are presently 33 expe-rienced arbitrators on the NCBA Arbitrator Panel, all of whom have qualifications similar to those of NCBA Panel mediators.

“Attorneys are coming to real-ize that counseling their clients about so-called alternate dispute resolution — whether mediation, arbitration, or various other ADR processes — results in more sat-isfied and happier clients,” noted Harriette Steinberg.

“We are spreading the word that the Nassau County Bar Association not only offers medi-ation and arbitration services, but our Association provides top qual-ified mediators and arbitrators and at very reasonable rates.”

For more information about low-cost mediation or arbitration services through the NCBA, con-tact NCBA ADR Administrator Demi Tsiopelas, 516-747-4070, [email protected].

PROJECT ...


NCBA Immediate Past President, John P. McEntee, received a grant from The New York State Bar Foundation from NCBA Past President, Emily Franchina, Chair of the NYS Bar Foundation Fellows. The grant will help support NCBA’s award-win-ning Mortgage Foreclosure Project. NCBA members who would like to participate in the Mortgage Foreclosure program, help-ing residents struggling with mortgage foreclosure issues, may contact NCBA Director of Pro Bono Attorney Activities, Gale D. Berg at 516-747-4070 or [email protected]. (Photo by Hector Herrera)

NCBA Past President Peter H. Levy and NCBA Director Michael A. Markowitz (seat-ed) gave the gift of life at NCBA’s Annual Blood Drive in June. Sponsored by the Community Relations and Public Education Committee, this year dozens of attorneys participated at the donation center set up at NCBA’s headquarters in Mineola. Blood Drive Chair, Louis Imbroto, thanked everyone who took the time to give blood, and said “These donations can mean the difference between life and death for someone on Long Island.” (Photos by Hector Herrera)

NYS Bar Foundation Supports Mortgage Foreclosure Project

Lawyers Give the Gift of Life at 2015 Blood Drive


Adoption LawMeeting Date: 5/26/15Chair: Frederic Wool

Committee members discussed vari-ous topics of interest, including a recent Kings County Surrogate Court decision on the issue of adoption for same-sex couples, a recent New York County Surrogate Court decision per-mitting adoption by “intimate friends,” other various appellate and trial court decisions, and proposed leg-islation.

Environmental LawMeeting Date: 5/28/15Chair: Kenneth Robinson

This meeting, held at the Suffolk County Water Authority Education Center in Hauppauge, was a joint pro-gram with the Environmental Law Committee of the Suffolk County Bar Association. Guest speaker Scott Stoner of the New York State Department of Environmental Conservation, Bureau of Water Assessment Management, Chief of the Standards and Analytical Support Section, spoke about state-level programs for the prevention of disposal of unused pharmaceuticals in drinking water resources. Guest speaker Douglas Feldman, P.E., of the Suffolk County Department of Health Services, Principal Public Health Engineer, spoke about county-level programs for the preven-tion of disposal of unused pharmaceuti-cals in drinking water resources. Guest

speaker Adrienne Esposito, Executive Director of the Citizens Campaign for the Environment, discussed her organi-zation’s role in state and local programs.

Commercial LitigationMeeting Date: 6/8/15Chair: Kevin Schlosser

The committee participated in a CLE event entitled “An Evening with the Commercial Division Judges of the Tenth Judicial District.” This event was jointly organized by the Commercial Division Committee of the Suffolk County Bar Association and the New York State Bar Association’s Federal & Commercial Litigation Section. Present at the event were all six Commercial Division Justices of Nassau and Suffolk Counties – Justices Stephen A. Bucaria, Vito M. DeStefano, Timothy S. Driscoll, Elizabeth H. Emerson, Jerry Garguilo and Emily Pines. Guest speakers included Robert L. Haig, partner at Kelley Drye & Warren LLP and Chair of the Commercial Division Advisory Council. Program top-ics included the new Commercial Division Rules as well as each Justice’s view and implementation of various rules.

Condemnation Law & Tax CertiorariMeeting Date: 6/25/15Chair: John Terrana

Douglas Atkins, Esq., delivered a pre-sentation on Real Property Tax Law Section 727 from its enactment to recent case law. The next meeting will be held in September 2015. Michael J. Langer, an associate in the Law Offices of Kenneth J. Weinstein, is a for-mer law clerk in the United States Court of Appeals for the Second Circuit, and a former Deputy County Attorney in the Office of the Nassau County Attorney. Mr. Langer’s prac-tice focuses on matrimonial and family law, criminal defense and general civil litigation.

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A marriage is a civil contract and the parties must consent to its creation. To provide consent, the parties need the requisite legal capacity. If a party is men-tally incompetent when entering into a marriage, the marriage will be void, as the party did not have capacity to marry.11 Further, if one party’s prior marriage was not terminated by death, divorce, or annulment, then such party does not have the capacity to enter into a subse-quent marriage.

In In re Estate of Warren, a surviv-ing spouse was denied the exercise of her right of election because the dece-dent spouse’s divorce from a prior mar-riage was not finalized until a year after his marriage to the surviving spouse. Consequently, the marriage between the surviving spouse and the decedent spouse was deemed void.12

Therefore, as long as the parties had the requisite capacity to enter into a mar-riage and the marriage ceremony com-plied with DRL Article 3, then the failure to obtain a marriage certificate will not invalidate the marriage. In such a scenar-io, the surviving spouse will be deemed a lawful spouse with full rights to inherit.

In re Estate of Kaminsky is illustra-tive, as in that case a marriage solem-nized by a rabbi in a ceremony that complied with Jewish rituals was held valid despite the parties never obtaining a marriage license.13 Accordingly, the sur-viving spouse was entitled to inherit from her deceased spouse’s estate.14 Similarly, in Persad v. Balram, a couple’s marriage

was recognized as valid, even without a marriage certificate, since the marriage ceremony was conducted pursuant to Hindu rituals with the parties exchang-ing vows in the presence of an ordained Hindu priest.15

Thus, for a surviving spouse “to have and to hold” onto his or her inheritance, it is the sanctity and observance of a formal ceremony that will determine the sur-viving spouse’s rights rather than such rights being solely based on a certificate evidencing the marriage.

Avigail Goldglancz is an associate attor-ney practicing in trust and estates with Schwartz, Fang & Keating, PC in Woodbury.

1. DRL § 25.2. Hirsh v. Stern, 83 A.D.3d 783 (2d Dept. 2011).3. Id. at 784. 4. Id. 5. DRL § 11(7).6. Ranieri v. Ranieri, 146 A.D.2d 34, 36 (2d Dept. 1989).7. In re Estate of Silverstein, 190 Misc. 745 (Surr. Ct. Bronx Co. 1947).8. Fisher v. Fisher, 250 N.Y. 313 (1929).9. To this day, if a New York resident gets mar-ried on a ship, then a ship officer is required to report the marriage to the New York City Clerk within three days of the ship’s arrival in New York. DRL § 19-a.10. 2-32 Warren’s Heaton on Surrogate’s Court Practice § 32.12.11. In Cambell v. Thomas, the court held that the marriage between the decedent and the purported surviving spouse was void since the decedent was mentally incompetent when he entered into the marriage and therefore he didn’t have capacity to marry. 73 A.D.3d 103 (2d Dept. 2010).12. In re Estate of Warren, 131 A.D.2d 681 (2d Dept. 1987).13. In re Estate of Kaminsky, 204 Misc. 793 (Surr. Ct. Kings Co. 1953).14. Id. 15. Persad v. Balram, 187 Misc. 2d 711 (Sup. Ct., Queens Co. 2001).

SPOUSE ...



2015-16NCBA Committee Chairs

Access to Justice - Steven G. Leventhal, Gregory S. Lisi Adoption Law - Faith Getz Rousso

Alternative Dispute Resolution - Erica B. Garay, Loretta M. Gastwirth

Animal Law - TBD

Appellate Practice - Richard M. Langone

Association Membership - Marc G. Gann, Geoffrey N. Prime

Attorneys & Accountants - Leslie Tayne

Awards - John P. McEntee

Bankruptcy Law - Holly R. Holecek

By-Laws - Peter H. Levy

Civil Rights Law - Jason Starr

Commercial Litigation - Thomas J. McNamara

Committee Board Liaison - Martha Krisel

Community Relations & Public Education - Ira S. Slavit

Conciliation - Sanford Strenger

Condemnation Law & Tax Certiorari - John V. Terrana

Construction Law - Jason Samuels

Corporation, Banking & Securities Law - Katherine A. Heptig

Criminal Court Law & Procedure - Andrew Monteleone

Defendant's Round Table - Thomas J. Nogan

District Court - Mitchell H. Hirsch

Domus Open - Daniel W. Russo

Education Law - Candace J. Gomez

Elder Law, Social Services & Health Advocacy -

Maureen R. Ditata, Saundra M. Gumerove

Environmental Law - Kenneth L. Robinson

Ethics - Omid Zareh

Family Court Law & Procedure - Mark A. Green

Federal Courts - Joel R. Weiss, Greg S. Zucker

General/Solo/Small Firm Practice - Gary Port

Grievance - Mary Rita Wallace

Hospital & Health Law - J. Kemp Hannon

House ("Domus") - Edmond D. Farrell, Pia E. Riverso

Immigration Law - Rajat Shankar

Insurance Law - Lorin A. Donnelly

Intellectual Property - Ariel E. Ronneburger

Judicial Section - Hon. Jeffrey A. Goodstein, Hon. Erica L. Prager

Judiciary - Marian C. Rice

Labor & Employment Law - Jeffrey M. Schlossberg

Lawyer Referral - Jonathan R. Klee

Lawyers Assistance Program - Mark E. Goidell

Matrimonial Law - Rosalia Baiamonte

Medical-Legal - James N. Licalzi

Municipal Law - Liora M. Ben-Sorek, Lisa A. Cairo

Nominating - John P. McEntee

Plaintiff's Round Table - Terrence L. Tarver

Publications - Christopher J. Dellicarpini

Real Property Law - Kevin P. McDonough, Mary E. Mongioi

Senior Attorneys - Bruce R. Hafner

Sports, Entertainment & Media Law - Matthew A. Kaplan

Supreme Court - Steven Cohn, Alan W. Clark

Surrogate's Court, Estates & Trusts -

John Graffeo, Lori A. Sullivan

Tax Law - Noelle T. Geiger

Technology & Practice Management -

Deborah E. Kaminetzky, Franklin C. McRoberts IV

Veterans & Military Law - Steven M. Raiser

Women in the Law - Martha V. Haesloop

Workers' Compensation - Brian P. O'Keefe

Young Lawyers - Michael DiFalco, Jennifer L. Koo

By Valerie ZurblisElizabeth Eckhardt, LCSW, PhD is the

new Director of the Nassau County Bar Association’s Lawyer Assistance Program (LAP), which provides free and confiden-tial assistance to the legal community for problems relating to alcohol and drug abuse, gambling, depression and other emotional and behavioral issues.

Dr. Eckhardt has more than 20 years of clinical experience providing mental health and substance abuse services to individu-als, couples and families in private practice and in community mental health settings. In her private psychotherapy practice, she provides counseling to help lawyers and other professionals maintain their employ-ment when they encounter difficult life circumstances. Dr. Eckhardt also provides counseling services to students, consulta-tion to faculty and staff, and workshops and trainings in stress reduction and other mental health issues at Touro Law School.

All information provided by attorneys to LAP is completely confidential and pro-tected by law. Under Section 499 of the Judiciary Law (as amended by Chapter 327 of the Laws of 1993), all conversa-tions between LAP and an attorney are deemed to be privileged on the same basis

as provided by law between attorney and client, and all information is immune from liability.

To learn more about LAP, call 1-516-747-4070 or if you, or an attorney, judge or law student you know, is experiencing problems related to alcoholism, drug addic-tion, other addictions, depression, stress or other psychological problems, please call the 24-hour confidential hotline, 1-888-408-6222.

LAP is supported by grants from the We Care Fund, part of the Nassau Bar Foundation, NCBA’s charitable arm and the NYS Office of Court Administration.

New LAP Director Joins NCBA

Elizabeth Eckhardt

The golfers at the 2015 Domus Open enjoyed a great day of golf on a beautiful June afternoon at Eisenhower Park’s Red Course. 2015 Domus Open Chair, Daniel W. Russo, welcomed golfers and guests to the evening BBQ where raffle prizes were raffled off. President Elect Martha Krisel presented the President’s Cup to the winning foursome (left to right): Kevin Brennan, Christian Brandeweide, Karl Chip Seman and Peter Fecht.

Event Dinner Sponsor was Serenity Limousine. The event was supported by the NCBA Corporate Partners Baker Tilly, CBS Coverage Group, Champion Office Suites, Realtime Reporting, Wayne Steinberg Real Estate Strategies and Serenity Limousine.(Photo by Hector Herrera)

2015 DOMUS OPENA Great Day of Golf


BY SCOTT M. KARSONThe annual summer meeting of the

New York State Bar Association was held on June 18 – June 20, 2015 at the Otesaga Hotel in Cooperstown, New York.

The main event, the meeting of the Association’s policy-making body, the House of Delegates, featured the formal installation of David P. Miranda of Albany as the Association’s 118th President. The oath of office was administered to President Miranda by former New York State Chief Judge Judith S. Kaye.

The meeting also marked the debut of NYSBA President Elect Claire P. Gutekunst as Chair of the House.

The meeting featured memorials to two giants of New York’s legal community who passed away in recent months. First, former NYSBA President Maxwell Pfeifer delivered a memorial to the late Robert P. Patterson, who served on the federal bench in the Southern District of New York and as President of the Association. Second, former NYSBA President Stephen P. Younger delivered a memorial to the late Richard J. Bartlett, who served as the State’s first Chief Administrative Judge, Dean of Albany Law School and President of the New York Bar Foundation.

The prestigious Root-Stimson Award, which is named after distinguished law-yers Elihu Root and Henry Stimson, and is given annually by the Association to recognize exemplary community service that is unrelated to the practice of law,

was awarded to Jeffrey A. Moerdler in recognition of his long-time service as a volunteer emergency medical technician.

The Association’s Committee on Women in the Law has identified ten women attorney “trailblazers” in New York State. They are: Kate Stoneman, the first woman admitted to practice law in the State (in 1885); Mary M. Lilly, the first woman attorney elected to the State Legislature (in 1918); Jane Matilda Bolin, the first black woman judge in the United States (appointed by New York City Mayor Fiorello LaGuardia to the Domestic Relations Court in 1918); Florence Perlow Shientag, the first woman federal prosecutor in New York (in 1843); Charlotte Smallwood-Cook, the first woman District Attorney in New York (elected as District Attorney of Wyoming County in 1949); Shirley Adelson Siegel, appointed Chief of the New York State Attorney General’s Civil Rights Bureau in 1959 and, in 1979, as New York State Solicitor General; Constance Baker Motley, who, in 1966, became the first black woman appointed to serve on the federal bench; Maryann Saccomando Freedman, the first woman President of the New York State Bar Association (1987-88); Geraldine Anne Ferraro, United States Congresswoman and first woman nominated by a major political party to run for the office of Vice President of the United States (in 1984); and Judith S. Kaye, the first woman appointed to serve on the New York

Court of Appeals (1983) and as the State’s Chief Judge (1993). Three of these dis-tinguished trailblazers, Shirley Adelson Siegel, Maryann Saccomando Freedman and Judth S. Kaye, are still living, and two of them, Ms. Siegel and Judge Kaye, were present at the House meeting and were recognized by the Association.

Interim reports by the Special Committee on Re-Entry, the Commercial and Federal Litigation Section on Social Media, the Committee on Women in the Law on the Family and Medical Insurance Leave Act and the Chief Judge’s Commission on Statewide Attorney Discipline were presented to the House for informational purposes only.

The meeting ended on a somber note, with a moment of silence for the nine victims of the Charleston, South Carolina church murders.

The next meeting of the House will be held on Saturday, November 7, 2015, at the State Bar Center in Albany, New York.

The author is the Vice President of the NYSBA for the Tenth Judicial District and serves on the NYSBA Executive Committee and in the NYSBA House of Delegates. He is also Chair of the NYSBA Audit Committee and former Chair of the NYSBA Committee on Courts of Appellate Jurisdiction. He is a former President of the SCBA, a member of the ABA House of Delegates, a member of the ABA Judicial Division Council of Appellate Lawyers and Vice Chair of the Board of Directors of Nassau-Suffolk Law Services Committee, Inc. He is a partner at Lamb & Barnosky, LLP in Melville.

NYS Bar Association Annual Summer Meeting

Miranda Installed as President at New York State Bar Association Summer Meeting in CooperstownWe Welcome

the Following New Members

Attorneys

Patrick King YuEast Coast Abstract

Students

Moya BallHenry Schein, Inc.

Dominic Delorantis

Christen Kalkanis

Claire Frances Persico

Krista Schlueck

NCBA New Members


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Advanced Directives Help Retain Control, Avoid Expenses

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