Who is Eligible?
Upon application of the member/parent, your unemancipated* child, who is over 18 years of age and qualifies as an eligible dependent child (as defined by the rules of the Fund).
What is the Benefit?
The Fund provides coverage through the panel law firm for consultation and document review services to your unemancipated child on matters involving the followingHow is the Counseling of Unemancipated Children Benefit obtained?
To obtain the Counseling of Unemancipated Children Benefit, simply contact the Fund to request an appointment for your child. At the time of the appointment, your child and an attorney from the panel firm will complete the appropriate forms.
* An unemancipated child is any dependent child (as defined by the rules of the Fund) who is over 18 years of age and fully dependent on you/the member for support.
Exclusions:
Excluded from the Counseling of Unemancipated Children Benefit is advice or consultation in any controversy, dispute or proceeding with the covered member/parent.
BANKRUPTCY ABUSE PREVENTION and CONSUMER PROTECTION ACT OF 2005
By: MIRKIN & GORDON, P.C.
The Federal Government has implemented drastic changes to the bankruptcy laws by enacting the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the "Bankruptcy Act") which will seriously affect an individual's ability to discharge their debts in bankruptcy. Most importantly, an individual's ability to discharge their debts in a Chapter 7 will be predicated upon a means test based upon the debtor's income and expenses. Most of the provisions of the Act will take effect on October 17, 2005.
New York State has passed a separate but relevant law which increases the equity value of an individual's residence which is exempt from civil judgments including bankruptcy creditors. An individual can now exempt $50,000.00 of the equity in their residence, as opposed to $10,000.00 under the old law, from the enforcement of a judgment. This law became effective on August 30, 2005.
Key changes to the Bankruptcy Act include
As noted, the new Bankruptcy Act goes into effect on Monday, October 17, 2005. Based thereon, if you are considering filing bankruptcy, it is imperative that you contact our office directly as soon as possible to assess your situation and, if necessary, coordinate the preparation and filing of the bankruptcy petition before the new laws take effect.
MIRKIN & GORDON, P.C.
98 Cutter Mill Road, Suite 310N
Great Neck, NY 11021
(516) 466-6030 * (718) 895-7160 * (914) 997-1576
Recent events, particularly publicity surrounding the Terri Schiavo case, have focused interest and concern about final directives. The Union's benefit fund has provided coverage under the legal plan for members, the member's spouse, parents and spouse's parents for several years. Coverage includes legal advice and assistance in the preparation of a Health Care Proxy, Living Will, Last Will and Testament and Durable Power of Attorney.
New York State recognizes that an individual's right to refuse medical treatment is protected by the due process clause of the New York State Constitution. However, an incapacitated patient's right to withdraw or forgo life-sustaining treatment is at jeopardy in the absence of clear and convincing evidence of the patient's wishes in this regard.
Health Care Proxy and Living Will forms are recognized to different extents when it comes to making health care decisions on behalf of an incapacitated individual. A Health Care Proxy designates a particular individual to make those decisions while a Living Will sets forth the principal's specific wishes regarding life-sustaining treatment.
New York State Public Health Law Article 29-C establishes standards and criteria for designating health care agents and the corresponding duties and obligations of the proxy as well as health care providers. Unfortunately, there is currently no statute which recognizes a Living Will.
Subject to limited restrictions, an individual can designate any adult as their proxy to make "any and all health care decisions on the principal's behalf" if a doctor determines that they lack capacity to make such decisions on their own. The proxy is obligated to make health care decisions in good faith in accordance with the principal's wishes and/or best interests. The health care provider is obligated to act according to the proxy's directions.
A proxy's authority presumptively encompasses life-sustaining treatment. However, health care providers are given the right to challenge a proxy's decisions if they believe the proxy is acting in bad faith or contrary to the principal's wishes. Absent unequivocal proof of the principal's wishes, the Court will decide whether to implement or withhold life-sustaining treatment based upon what it believes the individual's desires would be if faced with the situation at hand. The ideal solution to avoid having a Court impose its interpretation of an individual's intentions is for the individual to set forth his wishes in a Living Will while he is still competent. A Court will recognize the principal's expressed wishes and fashion an appropriate Order based thereon.
Although Health Care Proxy and Living Will forms can simply be executed before two adult witnesses, an individual should consult with an attorney to discuss the legal ramifications of executing these documents and the significance of also having a current Last Will and Testament and Power of Attorney.
HAVE YOUR HEALTH CARE PROXY AND DURABLE POWER OF ATTORNEY REVIEWED
By: MIRKIN & GORDON, P.C.
The Health Insurance Portability and Accountability Act of 1996 ("HIPAA") was enacted by Congress under the auspices of the U.S. Department of Health and Human Services to improve the efficiency and effectiveness of the nation's health care system by encouraging the widespread use of electronic data interchange in health care. Congress simultaneously recognized that this could pose a threat to the security and privacy of personal information. Consequently, they incorporated certain privacy rules to protect the security and privacy of individually identifiable health information referred to as protected health information ("PHI").
The privacy rules require the following parties to implement procedures and safeguards to prevent the unauthorized use and release of PHI:
There are civil and criminal penalties for individuals and entities who\which violate the HIPAA privacy rules or otherwise fail to adequately protect PHI. Consequently, without specific authorization from a patient, the patient's family, friends Health Care Proxy and even their Attorney-in-fact (i.e. agent designated pursuant to a Power of Attorney) will be denied access to the patient's PHI. However, that information may be essential to address and resolve a billing dispute on behalf of the patient. More importantly, a patient's legally designated agent may be denied information critical to make an informed decision regarding the patient's continued care or course of treatment.
A duly executed Health Care Proxy and\or Power of Attorney designating a particular individual to act on behalf of a patient are useless to obtain PHI in the absence of a properly prepared and executed HIPAA authorization. The authorization must be in writing signed by the patient before a notary public and must contain specific information and instructions regarding a number of key matters including, but not limited to,
Although you may come across an 'authorization form' on your own, due to the complexity of the HIPAA privacy rules and the potentially life-threatening consequences of not having access to a patient's PHI, we encourage you to contact us to discuss the significance of supplementing your Health Care Proxy and\or Power of Attorney HIPAA authorization form and ensuring that it is legally sufficient and properly executed.
MIRKIN & GORDON, P.C.
98 Cutter Mill Road, Suite 310N
Great Neck, NY 11021
(516) 466-6030 * (718) 895-7160 * (914) 997-1576
Who is Eligible
You are eligible if you are a covered member, a covered member's spouse (if agreeable to the member) or a covered member's parent(s) and/or parent(s)-in-law.
What is the Benefit
The benefit provides covered members and their spouses, parent(s) and/or parent(s)-in-law with the opportunity to have estate planning trusts prepared and executed under the supervision of an attorney from the panel law firm.
The following schedule indicates the legal services available and the amount to be paid by the member:
| Steps in the Legal Process Provider By the Panel Law Firm |
Amount Paid By Member |
|---|---|
| A. Consultation | $150.00 * |
| B. Preparation and execution of certain estate planning trusts, as follows: Irrevocable Life Insurance Trust ("ILIT") - Designed to remove life insurance proceeds from the insured's and the surviving spouse's taxable estate. Revocable Grantor Trust (Living Trust) - Created during a person's lifetime and can be amended or revoked by the grantor at any time. Supplemental Needs Trust (Escher Type Trust) - Allows a person receiving governmental assistance (Medicaid) to receive prescribed amounts of income and principal from trust without jeopardizing governmental assistance. Marital Trust - A trust, which if containing specific statutory provisions will qualify for the marital deduction, and therefore not be included in the decedent's taxable estate. Qualified Personal Residence Trust ("QPRT") - Allows a person to place his or her personal residence in a trust and continue to have full use of the trust for a number of years, providing such term is less that the grantor's life expectancy. * To be credited to fee for preparation of trust. ** Usual and customary fee charged by the law firm for 2006 is $2,500 per trust for all trusts except QRPT trusts, which is $3,000 per trust. Fees may change year to year. |
20% Off The Usual and Customary Fee** |
How to Obtain the Benefit
To obtain the Estate Planning Benefit, you should contact the Fund to request an appointment.
DISPOSITION OF DECEDENT'S REMAINS
By: MIRKIN & GORDON, P.C.
The New York State Legislature has amended the Public Health Law to add §4201 which creates a hierarchy of individuals who have the right to dispose of a decedent's remains upon their death. First priority is given to the person who has been specifically designated by the decedent in writing to carry out his\her wishes in this regard. The written designation must be in substantially the form set forth in the statute entitled Appointment of Agent to Control Disposition of Remains.
Prior to the enactment of §4201, there was no legally recognized document by which a person could designate a particular person to dispose of his\her remains. Although the decedent's wishes could be incorporated in one's Will, the Will would not be probated for some time after the decedent's death.* Unfortunately, this often exacerbated ill-will and consternation among family members and loved ones at an already sensitive time.
Notably, the new law gives a decedent's Domestic Partner the same priority\hierarchy as a spouse - i.e. just below that of a designated agent. The term "Domestic Partner" is broadly defined to include a legally recognized domestic partnership or one based upon mutual financial and emotional interdependence.
Absent a properly executed Appointment of Agent, the following persons, in descending priority, have the right to control the disposition of the decedent's remains:
Should there be interest, the Legal Plan has included in its coverage the Appointment of Agent to Control Disposition of Remains. Thus, an appointment with an attorney to discuss your needs and concerns in this regard can be arranged while also reviewing your current Will and health care directives to ensure that they are adequate and properly reflect your current desires and intentions.
* Interestingly, however, the statute corrects that problem by retroactively validating directions regarding the disposition of one's remains in Wills executed prior to the statute's enactment regardless of whether such will is probated or subsequently declared invalid. Thus, all actions taken reasonably and in good faith based on those Wills' authorizations are valid.
MIRKIN & GORDON, P.C.
98 Cutter Mill Road, Suite 310N
Great Neck, NY 11021
(516) 466-6030 * (718) 895-7160 * (914) 997-1576
EMPOWERING NON-PARENTAL CAREGIVERS TO CARE FOR YOUR CHILD
By: MIRKIN & GORDON, P.C.
Whether due to need or choice, from time to time, a parent may leave their minor child with grandparent(s) or other non-parent caregivers. Such an arrangement may vary in duration and results in the unavailability or inability of the parent to make decisions\grant consent for education and\or health care matters. Thus, unless the caregivers have legally obtained custody, they are often faced with difficulties in making those decisions.
Recognizing this dilemma, the New York State Legislature, added Title 15-A to Article 5 of the General Obligations Law which is entitled Designation of Person in Parental Relation.*
This statute authorizes a parent(s) to designate another person (the "Designee") as a person in parental relation to a minor or incapacitated person to act in his\her\their behalf in matters relating to education and health care. Such designation must be in writing, identify the parties and be signed by the parent(s) (the "Designation"). The Designation may be made by one parent unless there is a court order requiring both parents to agree on education or health care decisions regarding a child. If so, then both parents must sign the Designation.
Designation may be limited in scope to suit the particular needs and concerns of the parent(s). Regardless of the breadth and scope of the Designation, the Designee's decision(s) may be superseded by a contravening decision of a parent.
If properly drafted, the Designation shall be valid for up to six months. A formal order of custody or guardianship would be necessary for longer periods. The Designation may be sooner revoked upon proper notice and shall automatically terminate and be deemed revoked upon the death or incapacity of the parent.
The Designee is authorized to consent to certain medical, dental, health and hospital services for the minor\incapacitated person. It does not impose upon the designee any duty to financially support the minor\incapacitated person. It does, however, impose upon the Designee a duty to ensure that the minor\incapacitated person is properly immunized and educated.
The Designation is obviously a very useful document for parents who must leave their child with a caregiver for a limited period of time.
Any parent considering a Designation should always consult with an attorney prior to executing same. The Legal Plan has included in its coverage the Designation of Person in Parental Relation and we encourage you to contact the Legal Plan attorney at (516) 466-6030 to schedule an appointment to discuss your specific needs and concerns and, as appropriate, to ensure that a Designation is legally sufficient and properly executed .
* Title 18 of Article 5 which had previously addressed this concern was, without explanation or justification, simultaneously repealed and replaced by Title 15-A.
MIRKIN & GORDON, P.C.
98 Cutter Mill Road, Suite 310N
Great Neck, NY 11021
(516) 466-6030 * (718) 895-7160 * (914) 997-1576
SAME-SEX MARRIAGE AND DOMESTIC PARTNER ELIGIBILITY
Effective April 1, 2009 the Port Chester Teachers Association Welfare Trust Fund ("Fund") has extended the definition of “spouse” for eligibility for Fund benefits to include same-sex spouses of marriages legally performed outside of New York in jurisdictions where such marriages are permitted. Also, the Fund has extended eligibility for Fund benefits to domestic partners of covered members. In the event your partner qualifies as a domestic partner or same-sex spouse and you wish to enroll him/her with the Fund, simply obtain a Domestic Partnership Affidavit/Enrollment Form from the Fund Office. Complete the form and return it to the Fund Office with the necessary supporting documents.
Please be further advised that under the Internal Revenue Service's ("IRS") rulings, if your same-sex spouse or domestic partner is not your "dependent" as defined in the Internal Revenue Code, then the market value of the benefits provided to your same-sex spouse or domestic partner is considered income to you, the employee/member. (Under IRC Section 152(a) (9), a "dependent" must live with you and receive more than one half of his/her support from you.) This "imputed" income is includible in your gross income for federal, state/local, and FICA/Medicare tax purposes.
If, however, your same-sex spouse or domestic partner is your dependent for income tax purposes, then you should provide proof of same to the Fund to avoid inclusion of the fair market value of the benefits in your income. Of course, you should consult your tax advisor if you have any questions about your partner's dependent status.
Since the Port Chester-Rye Union Free School District as the contributing employer may ask the Fund for a list of those members/employees that have enrolled a same-sex spouse or domestic partner with the Fund, you will have to execute a Domestic Partner Dependency Affidavit if you list your same–sex spouse or domestic partner as a dependent on your income tax returns. This Affidavit relieves the Fund from having to report the value of benefits provided to your same-sex spouse or dependent domestic partner by the Fund to the Port Chester-Rye Union Free School District for the inclusion on your W-2 form.
DEFINITION OF DOMESTIC PARTNER
A domestic partner, is defined as a person eighteen years of age or older, who is not related by blood to the member in a manner that would bar marriage in the State of New York and who is not legally married to another person, who has a close and committed personal relationship with the member, who lives with the member and has been living with same on a continuous basis, and who, together with the member has registered with the Fund as a domestic partner of the member and has not terminated the partnership.