48 THE QUEENS COURIER • HEALTH • MAY 20, 2021 FOR BREAKING NEWS VISIT WWW.QNS.COM
health
Elder Law Minute TM
Can I give mom’s usual gifts now that I am her POA?
BY RONALD A. FATOULLAH, ESQ.
AND JOSEPH BRENINGSTALL, ESQ.
A question which is often raised by individuals
who are designated as agents under a durable power
of attorney is whether the agent can continue giving
customary sentimental gifts such as holiday and
birthday gifts on behalf of the principal.
The short answer is yes, however, there are several
variables to keep in mind. On December 15, 2020,
Governor Cuomo signed Assembly Bill A5630A which
makes substantial changes to the power of attorney
document. This law will go into eff ect on June 13,
2021 and will aff ect the ability to gift on behalf of the
principal (the person who creates the document).
Currently, an agent on a Statutory Power of
Attorney (POA) is able to give gifts of up to $500
annually unless the principal signs the Statutory
Gifts Rider ( SGR) which allows the agent to give gifts
in excess of that amount. Under the current form,
the SGR specifi cally delineates the authority of the
agent to continue the principal’s lifetime giving patterns.
Under the new form, the SGR will be eliminated
altogether and the gifting ability will be included
in the modifi cations section of the POA. If a principal
ELDER LAW
RONALD FATOULLAH
ESQ, CELA*
does not initial the gifting section of the modifi
cations, then the default amount that an agent is
authorized to gift will be raised to $5,000.
So, to summarize, under the current POA the
agent can gift $500 yearly and under the new form
the agent can gift $5,000 annually. If the principal
signs an SGR to the old form or initials the gifting
section of the new form, then that ability is unrestricted.
This would allow the agent to give gifts on
behalf of the principal as long as they are within the
gifting authority.
It is important to keep in mind that utilizing the
annual gift tax exclusion can be a very important
planning tool for high net worth individuals. In 2021
the gift tax exclusion amount is $15,000 per donor
per recipient per year. The gifting ability under the
POA/SGR is vital for a principal who would like to
continue to use this planning tool even in a situation
where he or she may no longer be able to do so
independently.
Gifting can be a double-edged sword. If an individual
is thinking of applying for Medicaid long term
care benefi ts, he and his agents need to be cognizant
of the 60-month look-back period for longterm
institutional care. Medicaid will analyze an
applicant’s fi nancial transactions within the lookback
period to determine whether the applicant
(or spouse) transferred, i.e. gifted, income and/or
resources for less than fair market value. Medicaid
applicants for community based long-term care,
which includes home health care (including consumer
directed program-CDPAP), private duty nursing,
and assisted living programs will incur a 30-month
look back period for transfers of assets eff ective
January 1, 2022. When an applicant makes a gift
within the look-back period, the Medicaid agency
will impose a period of ineligibility, or “penalty period”,
during which the applicant will be required to
pay privately for care.
This article provides a brief overview of the changes
in the new POA form as they aff ect gifting. As
always, it is important to consult with a competent
elder law and estate planning professional to better
understand what eff ect gifting would have on an
individual’s particular situation.
Ronald A. Fatoullah, Esq. is the founder of Ronald
Fatoullah & Associates, a law fi rm that concentrates
in elder law, estate planning, Medicaid planning,
guardianships, estate administration, trusts, wills,
and real estate. Joseph Breningstall, Esq. is an associate
attorney with the fi rm. The law fi rm can be
reached at 718-261-1700, 516-466-4422, or tollfree
at 1-877-ELDER-LAW or 1-877-ESTATES. Mr.
Fatoullah is also a partner with Brightside Advisors,
a wealth management fi rm with offi ces in New York
and Los Angeles.
This summary is not legal advice and does not create
any attorney-client relationship. This summary
does not provide a defi nitive legal opinion for any
factual situation. Before the fi rm can provide legal
advice or opinion to any person or entity, the specific
facts at issue must be reviewed by the fi rm. Before
an attorney-client relationship is formed, the fi rm
must have a signed engagement letter with a client
setting forth the Firm’s scope and terms of representation.
The nurse administrator and aging
Careers in long term care present a challenge to
the fi eld of geriatric nursing. The literature is replete
with articles addressing this issue. An absence of
long term care nursing as a specialty is clearly evident,
according to recent statistics. Nevertheless,
nurses continue leading the way and having an
impact in all specialties of patient care.
The nurse, in long term care, however, must be
knowledgeable with issues that deal with legislation
that can aff ect the care being rendered. Long
term care is a fi eld for the adventurous and dynamic
nurse.
Just as Florence Nightingale held her ground
during her assignment in the Crimean War, nurses
today who have the conviction will, inevitably,
make those changes that are needed to infl uence
the growing value of geriatric nursing practice.
There are, in fact, nurses who have turned to
positions requiring greater authority. One example
is administration. As such, administration calls for
considerable responsibility and potential for making
important contributions in the fi eld of long term
care. The question is, however, what are the requirements
for achieving and carrying out a successful
administrative role? The researchers, McClosky
and Grace, recommend, “The administrator must
have knowledge about human relations, political
and managerial skills, decision making and budget
management.” This also includes intuition, sensitivity
and a willingness to allow others to test their
ideas while risking possible failure.
An organization that thrives best is one in which
ideas are generated at all levels and in which
employees can also be involved at implementing
change.
At present there is a realistic shortage of qualifi
ed geriatric trained nurses with all of the previous
mentioned skills. Most employment agencies are
constantly seeking individuals for the position with
an MBA. Long term care administration can be a fertile
fi eld for the qualifi ed nurse.
Several decades ago nurses managed nursing
homes until Medicare regulations, reimbursement
issues, state mandated policies and specifi c care
practices defi ned the nature of the nursing facility
with the emergence of the Director of Nursing, a
fairly recent role. The question now is what does the
role require? An assertive individual must be eager
to gain and ultimately exercise power, and ready to
cope with the demands of multiple regulatory policies
and agencies along with profi t oriented issues.
With that shift from a clinical staff position to
Director of Nursing, responsibilities now fall squarely
on her shoulders to oversee that patient care is
being rendered at all facility levels. She needs to be
tactful, patient, empathetic, and have a broad range
of skills that go beyond the basics that were once
practiced at the patient’s bedside.
For example, she might be called at night to deal
with a faltering heating system and a wintry temperature
that is dropping, or help fi nd a patient who
has wandered away and could be in serious trouble.
In eff ect, she could be involved in an endless number
of complex activities and issues that might tax
her ability to continue in the position, and for anyone
else who would be in similar circumstances.
In most situations that deal with the quality of
patient care being rendered, we observe a direct
correlation to the DNS competence and commitment
to the facility’s functioning and the health and
safety of the patient population.
The following suggestions deal with the potential
success of the nurse administrator.
Surround yourself with competent and loyal individuals
who will complement your leadership skills
and talent as a leader.
Prepare your thoughts well in anticipation of
questions that staff and relatives want to ask.
Be fully acquainted with background and data
pertaining to daily tasks and/or projects that will
require additional preparation.
Develop collegial relationships with staff,
heads of other departments, on site professionals,
assigned consultants to Nursing, who can aid you
with productive ideas and complex problems that
may at fi rst appear unsolvable.
Become involved in the larger picture such as
outside participation in networking via professional
organizations, informal group presentations, seminars,
or just plain get-togethers for brainstorming
sessions.
Have your previous survey reports re-reviewed
for earlier violations that were incurred. Seek
to determine whether the violations had been
addressed and corrected and are being maintained
on an ongoing basis.
It is my hope these suggestions will benefi t
future nurse administrators as well as the lay public
who reads this article and who may have a loved
one in a nursing facility.
It is also my hope that our nursing facilities will
continue moving in a direction that enhances optimal
patient care and results in family satisfaction.
The family’s decision for admitting their loved
one was based on the assurance that the patient
will be cared for in a safe and respectful environment.
To my professional colleagues whether in a nursing
facility, a hospital, home health agency, or those
who are in positions of authority, it is your duty to
continuously perpetuate the concept of hope to
those who are less fortunate.
The poet Emily Dickinson expresses it best:
“Hope is the thing with feathers
That perches in the soul
And sings the tune without the words,
And never stops at all.”
Sheldon Ornstein Ed.D, RN, LNHA
Dr. Sheldon Ornstein is a
registered professional nurse with a
doctoral degree in nursing organization.
He has specialized in the care of
older adults and has published many
articles on the subject. He has done
post-graduate work in gerontology
and has taught at several universities.
In 2013, he was inducted into
the Nursing Hall of Fame at Teachers
College, Columbia University.
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