FOR BREAKING NEWS VISIT WWW.QNS.COM MARCH 14, 2019 • QUEENS BUSINESS • THE QUEENS COURIER 41
queens business
Elder Law Minute TM
When a Guardian is Appointed, Is the Spouse’s Income Protected?
BY RONALD A. FATOULLAH, ESQ.
AND EVA SCHWECHTER, ESQ.
When a loved one loses capacity and
a Power of Attorney has not been properly
executed, there is a chance the family
will need to initiate a proceeding to
have a Guardian appointed to handle the
individual’s fi nances. Th e Guardianship
process can be overwhelming for those
involved, and raises complicated questions
about the assets and income of the
people involved.
In order to be appointed Guardian
of the Property over an “Incapacitated
Person” or “IP”, a Commission is issued,
together with an Order and Judgment.
Th ese documents serve as a roadmap
for the Guardian, and detail his or her
powers with regard to the fi nances of
the Incapacitated Person. Th e powers
listed in the Order are generally broad
in nature, and are meant to allow the
Guardian to step into the shoes of the
Incapacitated Person and make fi nancial
decisions for the IP that are in his or her
best interest.
Many people are concerned that having
a Guardian appointed will mean that
the IP’s funds are tied up in the court system,
and can no longer be accessed. Th is
ELDER LAW
is especially true when the IP is married,
and the IP’s funds and income had been
used to support both the individual and
his or her spouse. In this circumstance,
the spouse will have legitimate concerns
with regards to his or her future fi nancial
security.
Most oft en in a Guardianship situation,
the Guardian will be ordered to transfer
the IP’s assets into a Guardianship
Account. Th e Guardian is tasked with
ensuring that all the funds of the IP are
accounted for, as well as monitoring the
IP’s income. Th e Guardian will then utilize
the assets and income held in the
Guardianship account to pay the IP’s
bills. If the IP was responsible for paying
for rent, utilities, mortgage payments,
etc., then the Order should state that the
Guardian can continue paying those bills
going forward. In this way, the spouse of
the IP can continue to benefi t from the
IP’s income, even if he or she doesn’t
have direct access to such accounts.
When an IP is a Medicaid recipient, the
general Medicaid rules continue to apply.
For purposes of Community Medicaid,
the Guardian can continue to collect the
IP’s income and either deposit it into
a Pooled Income Trust, who would in
turn pay the IP’s bills on his/her behalf,
or engage in Spousal Impoverishment
Budgeting, which would entail giving a
portion of the IP’s income directly to his/
her spouse. In this way, the spouse can
continue to benefi t from the IP’s income
in the same way he or she would have
if there were no Guardianship in place.
In the case where an IP is in a Nursing
Home and in receipt of Institutional
Medicaid, the same holds true. In this
case, the spouse will either receive a
portion of the IP’s income under the
Spousal Impoverishment rules, or if the
spouse’s own income already exceeds the
Medicaid limits, the
IP’s excess income will be paid directly
to the facility. Th is plan is no diff erent
from that of any other Institutional
Medicaid applicant; the only diff erence
is who has access to the IP’s assets to pay
the income to the appropriate party.
When a loved one has a Guardian
appointed over his or her property, it is
important to remain well educated as to
his/her continued rights and what benefi
ts he/she is entitled to. It is also important
to monitor the Guardian, to ensure
the IP’s needs are being met, that all decisions
are being made with the IP’s best
interests in mind, and that the Order and
Judgment is being followed.
Discussing one’s personal situation and
circumstances with an experienced elder
law attorney is necessary to ensure an
appropriate Guardianship plan, should
such a need arise, or to execute the
appropriate estate planning documents
while one has the capacity to make his/
her wishes known.
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.
Eva Schwechter is an elder law attorney
with the fi rm. Th e law fi rm can be
reached at 718-261-1700, 516-466-4422,
or toll free at 1-877-ELDER-LAW or
1-877-ESTATES. Mr. Fatoullah is also
a partner with Advice Period, a wealth
management fi rm that provides a continuum
of fi nancial and investment advice
for individuals and businesses, and he
can be reached at 424-256-7273.
RONALD FATOULLAH
ESQ, CELA*
editorial
Finding Success in the Workplace
Dear Mindy, I will be starting
an internship at a large
technology company this
summer. What characteristics
are necessary to be successful
in the business world?
Inquiring Intern
Dear Intern, Successful
people approach their personal
and professional life
with clear direction and
unwavering focus. Integrate
the following tips into your
daily routine and you will be
more likely to meet with success
in business and in life.
1. Keep the End in Mind - Successful
people set very specifi c short-term goals
that ultimately lead the way to achieving
broader long-term goals. Setting
and achieving goals takes a lot of hard
work that allows for gradual,
but consistent growth.
Understanding where you
would like to be towards the
end of your career will help
to keep you motivated to
achieve goals.
2. Have Focus and
Direction – While setting
and achieving goals is a cornerstone
to success, if you set
unrealistic goals you will not
be able to attain them. Focus
on small achievable goals
that will help build your confi
dence. Set priorities so that
you can manage your time eff ectively and
don’t be afraid to say no to “time wasters”
that take you away from your direction.
3. Regard Mistakes as Learning
Experiences - In order to achieve success,
people must believe in themselves.
Negativity holds you back and does
not allow you to make progress in life.
Everyone makes mistakes. However, successful
people regard mistakes as learning
experiences, not as an excuse to quit trying.
Only you can determine how much
or how little you achieve.
4. Work Smart, Not Hard – Make a
conscious eff ort to spend time pursuing
work and activities that get you closer to
achieving your goals. Take time to determine
how you can be more productive
and eff ective rather than busier. Once you
defi ne your long-term goals, it is easier to
make good decisions in your life.
5. Maintain Health and Well-Being –
It is easier to be productive when you are
healthy and happy. Here are a few essentials
to well-being: surround yourself with
supportive people, take vacations, get
enough sleep, eat healthily, exercise regularly,
maintain high ethical and moral
standards, spend within your means and
fi nd ways to eliminate stressors in your
life to ensure that you are living up to
your potential.
Learning how to manage your time,
your health, your fi nances and your goals
will add up to a positive, successful future.
Mindy Stern, SPHR, SHRM-SCP, ACC
is a career coach, author, speaker, trusted
HR advisor and president of AIM Resource
Group Inc. If you are ready to make a
meaningful impact on your career call for
a free 30 minutes strategy session. Visit
the website at www.aimresourcegroup.
com or call 718-217-1074 to get results!
Do you want your questions answered in
this column? Send requests to mstern@
aimresourcegroup.com .
EMPLOYMENT
MATTERS
MINDY STERN
SPHR, SHRM-SCP,
/www.aimresourcegroup
/WWW.QNS.COM
/www.aimresourcegroup
/aimresourcegroup.com
