50 THE QUEENS COURIER • HEALTH • JUNE 6, 2019 FOR BREAKING NEWS VISIT WWW.QNS.COM
health
Elder Law Minute TM
Co-op Transfers and Medicaid Planning
BY RONALD A. FATOULLAH, ESQ.
AND JOSEPH BRENINGSTALL, J.D.
ELDER LAW
When it comes to long term care planning,
Social Networking and Aging
A classic study by the researchers
Lowenthal and Haven, demonstrated the
importance of a caring relationship as a buffer
against “age linked social losses”. Th e
maintenance of a stable intimate relationship
was more closely associated with good mental
health and high morale than a high level
of activity or elevated role status.
In other words, one appears to be able
to manage stresses if relationships are close
and sustaining, and if they are not, prestige
and keeping busy may not always prevent
depression.
An intimate and confi ding relationship is a
buff er against stress and illness. It is increasingly
evident that a caring person may be a
signifi cant survival resource. Social bonding
increases health status, however physiologic
pathways are yet to be determined.
A network of relatives, friends and
acquaintances can sustain the old and give
life meaning.
Social networks are the vehicles through
which social support is distributed. For
example, married persons tend to have larger
and more diverse networks than persons
separated, divorced, widowed, or never married.
A longitudinal study by Field and Minkler
showed that social supports beyond the family
decrease over time for the very old and
for men, but not for women and the old-old.
Th us satisfaction with support from children
tends to increase over time as the elders
relinquish involvement beyond the family.
According to researcher s, this data is signifi
cant because it confi rms the constancy
of family in the support network of the old.
Families also are a source of emotional
support across the generations.
Th e shift ing needs for supply and demand
among family members helps to establish
a reciprocal and comfortable giving and
receiving relationship.
Too oft en we think of the aged as only
recipients. Even into advanced old age they
oft en provide emotional and fi nancial support,
child care, and cultural and religious
continuity.
As the population continues to shift
toward increasing numbers of frail aged with
multiple problems, there is a danger that this
balance will be diffi cult to maintain. Older
family members, who are also impaired, may
fi nd themselves taking care of a very old parent.
Th is is already occurring for many but is
expected to increase markedly in the future.
Further, as the age when “children” leave
home continues to increase, it is likely we
will again have three generational households.
It is important to note that the elderly
spouse who is caring for a disabled partner
has special needs also. Respite from continuous
care is essential. Oft en the spouse has
signifi cant health problems that are neglected
in deference to the greater needs of the
incapacitated partner. Most oft en the woman
is in the role as caregiver and may be in dire
need of caring and concern for herself.
Life satisfaction tends to be limited when
illness, low income, multiple demands and
the loss of intimacy and companionship converge
on a conscientious mate. Counseling,
and encouraging all involved family members
to discuss their needs and concerns
may, in the end, produce satisfactory results
for the disabled elderly person.
Sometimes people just need an opportunity
to share the diffi culties they are experiencing
and by having an attentive listener
without any emotional commitment may
also allow ventilation and release of storedup
feelings.
Our greatest contribution to the care of the
aged may be to modify temporarily our use
of institutional and agency services toward
sustaining the natural tendencies of families
to care for that dependent family member in
a familiar home setting.
Th is may not have to be an around the
clock venture. Consider care provided by a
part-time caregiver during the peak hours
when physical needs can be given along
with other essential duties such as preparing
a meal.
Th ere may be times when a family can
split up the day to prepare a meal while others
can perform light shopping or just provide
comfort care by reading to that elderly
person, or watch television together.
I am not suggesting this as an easy solution,
considering what ongoing caregiving
can cost or if family members might not
always be available, but it may delay institutionalization
for a more happy elderly person
at knowing he is still in familiar home
surroundings.
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.
the asset that is of primary concern
to many seniors is their primary residence.
Many seniors live in homes or apartments
that were purchased many years ago and
have a low basis, and in many cases there is
no debt owed on those properties; therefore
for many seniors their home is their single
most valuable asset.
Provided the senior is receiving care at
his/her home, or if the the spouse, a child
under 21 years of age, a certifi ed blind or
certifi ed disabled child, or other dependent
relative is living in the home, the home
remains an exempt asset for Medicaid eligibility.
The senior may then transfer title,
free of any Medicaid penalty, to the spouse
who remains in the community or any of the
other categories of people described above.
When it comes to advance long-term care
planning, there are two widely used options
with regard to real property: to transfer the
property to an irrevocable trust or gift the
property subject to a life estate. In a previous
article we discussed the pros and
cons of these two options. When seeking to
eff ectuate this planning with regard to traditional
real estate, the process is relatively
straightforward. A new deed is drawn up
transferring the property to the trust or to an
individual subject to a life estate.
However, in the New York area, where
many people own cooperative (co-op)
apartments, there is another aspect to the
transfer process that many people may not
be aware of. A co-op diff ers from other real
estate in that the owner does not actually
own the property in which they reside.
Rather, they own stock in the corporation
that owns the property and are given what
is referred to as a “proprietary lease”, which
gives them the exclusive right to live in the
unit. Co-ops are governed by their own
unique bylaws, which are set in place and
enforced by the co-op’s board of directors,
elected by the shareholders.
The fi rst step in long-term care planning
for a co-op would be to check with
the co-op board or management company
to see if the bylaws allow for transfers
to trusts or transfers subject to a life estate.
While co-ops diff er with regard to transfers
to trusts, virtually no co-ops permit transfers
subject to a life estate.
The actual process of getting approval for
the transfer of a co-op to a trust also varies
from co-op to co-op. Every co-op will want
to have their attorneys review the trust and
often they will require small changes to the
trust to refl ect that the rules of the co-op will
supersede the terms of the trust. Co-ops generally
require that the current owner guarantee
continued payment of the maintenance
and common charges for the co-op. They
also require that the owner sign a use and
occupancy agreement ensuring continued
occupancy of the co-op and that no one else
will be allowed to reside there or sublease
the unit. Many co-ops require board approval
for each individual transfer. There is typically
a fee associated with the co-op attorney’s
review of the trust and the management
company’s facilitation of the transfer.
Some co-ops treat transfers as they would
new purchases and demand that the current
owner and the trustee go through the entire
rigorous application and approval process.
They also may charge a “fl ip tax” and
require a new security deposit. Most co-ops
will require that a UCC lien search be done
to ensure there are no liens on the co-op
before it is transferred to the trust.
The Medicaid regulations with regard to
co-ops are the same as those for traditional
real estate. Thus, these transfers can be very
advantageous for those who are looking to
preserve their assets as a legacy for their
family. However, it is best to keep in mind
the various nuances and multiple layers
of approval that usually accompany these
transfers and to allow a fair amount of time
for the transfer to be completed. It is advisable
to seek out the assistance of a competent
estate planning or elder law attorney
who has experience with the various co-ops
and their regulations in order to make the
transfer process as smooth and expeditious
as possible.
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, J.D. is
an associate attorney with the fi rm (admission
pending). 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*
/WWW.QNS.COM
