Sal DiCostanzo Joins Time To Talks with Jen Graziano

Time to Talk with Jen Graziano

(377) Sal DiCostanzo Join Jen Graziano on Time To Talk - YouTube
https://www.youtube.com/watch?v=6SKlc_OIF6c
Transcript:
(00:00) just all need to talk and think about here now is Jennifer Graziano and time to talk good morning Westchester it's 9 A.M on Monday and that and that means it's time to talk with me Jen Graziano I'm a licensed funeral director who oversees my family's funeral homes Cox and Graziano both americ and Greenwich and the Zion Memorial Chapel of Westchester every Monday I come to you discussing important topics and sensitive matters that all of us need to pause and reflect upon at some point and through this show
(00:31) I hope to provide a platform to do so if you're joining us this Monday we'll take your questions comments and calls live in the studio to 914-636-0110 if you are listening on wvox or Whitney Global Media Station good morning control room and good morning Facebook live viewers I hope you're enjoying this early morning on the Martin Luther King Day hello to Tim judge greenwichlocal.
(00:57) com the man behind the camera and the man on the other side of the camera just had me cracking up because he couldn't operate his chair but I trust trust me he's a very intelligent man here to give us some great legal advice to don't ask them to fix your chair um our legal expert on the show if you will he's been on many many times Sal de costanzo a partner a maker for golly decostanzo offices in northern and southern Westchester he has really helped so many listeners and viewers of our show and we're going to be
(01:25) discussing some great info today so good morning Sal good morning Jen are you are you secure there they don't teach you this in law school I think you know what I can't even laugh at you I have the same struggles myself and my chair is a bit wobbly too but welcome back thank you nonetheless thank you good to see you so um I always begin our shows by saying Sal specializes in the field of elder law and it's I Akin it too if you have a heart problem you're not going to really just go to your primary doctor
(01:53) you're going to go to a Cardiologist and this is really the need for a specialized person in this field of elder law when we're trying to do asset protection and preservation when we are trying to plan ahead it's so important to be with with Sal himself or someone like Sal who's also a CPA so you have not a CPA an accountant well I was trying to elevate he's an accountant but nonetheless quite knowledgeable so welcome back thank you Jen so it's the premise in which I reached out to you I think you kind of
(02:27) laughed at me but I think I think it's something that's on the Forefront of the news these days and worth discussing we're talking about guardianship and I texted him because I watched the Nancy Grace Britney Spears documentary which I thought was wonderful and I think it was such a terribly unfortunate misuse and abuse of power and that could be a conversation for another day but guardianship is something that really comes into play when you're speaking of some type of incapacitation you're
(02:56) lacking capacity you're lacking this ability to make decisions for yourself um be it Health financial and a guardian comes into play so I really want to break down for listeners and viewers how Guardianship and conservatorship comes to be let's start there and that's a good starting point and I think that's important Jen because a lot of people I think it's important for us to educate our audience as to as to when a guardianship can come about um a lot of people you know anybody that has a little bit
(03:30) of uh of knowledge about guardianships knows that the typical scenario for a guardianship is when somebody is uh generally lost their capacity uh let's say somebody's suffering from a cognitive impairment it could be anything it could be dementia it could be Alzheimer's and they're incapable of handling their Affairs right and when we talk about what are their Affairs right so we're talking about their finances but we're also talking about their their their medical decisions right so somebody that
(04:00) is incapable of making those types of decisions so we're talking of an after the fact scenario there's been a triggering event that is rendered them incapable correct well usually but that's the key and that's I think where you can you you can use the Britney Spears case as as a good good example uh generally speaking yes as a triggering event somebody loses their capacity but but you know these cognitive impairments really happen over time right uh but it could be a trick you know an onset you
(04:28) know a sudden onset it could be a stroke right okay where somebody uh is is fully functioning today and then tomorrow they're not and the key there the message is which you and I have have said Ad nauseam is is you've got to have your planning in place right and what does that mean you really want to have a good power of attorney and a health care proxy in place uh and this is overlooked Often by people so in the presence of and I I'm glad you brought that up because I want to go into distinguishing
(04:57) the POA but in the presence of a power and attorney in a healthcare proxy there would be that it would render the need for a guardian or not it might and that again we could talk about the Britney Spears case in a moment but if if you drafted a power of attorney and you appointed me as your agent I can handle your Affairs your financial affairs all right so if you have lost your capacity if you can't uh if you have functional limitations you would step in I could I could step in and but you have to do that in advance That's
(05:30) Why They Call Advanced directives correct right you've got to take the time in advance a lot of people come to the office and say well I'll worry about it when it happens right or my kids will worry about it no no no no these are not not good ideas and so if you do your planning in advance you should be able to fend off a guardianship that's the common guardianship right we see a lot of that we see a lot of people uh most of the guardianships that I do in my office are because the kids come in mom
(05:59) and or dad is sick maybe they need to go into a nursing home or they need home care and we're trying to protect their assets and we can't move the assets we can't do anything we can't set up trust because they lost their capacity and they don't have a good power of Eternity so if you have lost capacity you can no longer designate a POA correct if you've lost your capacity you're stuck in the mud okay and let's talk about capacity and what the legal threshold of capacity is we always say of sound mind and body now
(06:28) is there um is there a litmus test for that are there certain legal you know thresholds that have to be hit there are there is a legal definition of capacity but when you start talking about guardianships and it's a good segue into into the Britney Spears yeah because when you look at those legal documents that's right of what they uh of what they were proposing when her father was moving for this and the kind of lack of backed up medical evidence to support his claim right you know it really becomes a very gray and arguably
(07:00) dangerous area so really I'm glad you used the word the terms medical evidence it's really important a good attorney does not even need medical medical evidence right so in a guardianship matter it's all about functional limitations okay right so let's talk about the Britney Spears well let's not talk about the Britney Spears matter but let's sort of parlay into that another form of a guardianship is where uh let's create a fact pattern let's say um uh you know Mom and let's say mom mom hasn't lost
(07:31) our capacity right but the kids she lives with a child and that child is sort of got a stronghold on Mom's decision-making process as well as access to finances and possibly on the bank account yep and we see this quite often right yeah yeah and you know this sort of goes down the road of the Britney Spears matter where mom may not have dementia mom may not have Alzheimer's but mom is being unduly influenced possibly she's being coerced correct right and so you have the other children on the outside you know it's
(08:05) usually one child is living with Mom close caregiver takes mom to all her doctor's appointments has access to her finances and really whatever that child says over time Mom starts to listen and believe yeah and it may be right it may be wrong absolutely and then and then it's interesting because that's it's outright duress at that point yeah and that's yeah that's going to be litigated right well that's well that great question how does that get litigated because now you're dealing with well
(08:35) back up let's get into the guardianship first and we'll talk about the court appointed attorney in the best interest of the client so go ahead yeah so the in that case the children would come to us and say Hey listen the other children the other children and they would say uh you know we don't know what's going on over here uh you know we don't you know oh there's always going to be an allegation that that that the sister or the brothers is pilfering mom's assets or has done something you know Mom took you know the
(09:00) the child and the grandchildren on a Disney vacation you know we just sit here all day and talk about all the different facts and again something that we and we both see it yeah uh and so then we would have to you know we don't want to commence any kind of case frivolously right so we really have to flush it out we really got to kind of get into the Weeds on the patterns uh but generally speaking uh there's probably enough there to to say that Mom has functional limitations not not MediCal right it's not a medical
(09:30) issue I'm not I'm not looking to take a doctor's testimony I'm gonna go into court and say mom is is being influenced she's being uh forced into this situation she's not aware of some of these city of of the circumstances uh she's not she's in case capable of making her own decisions because of of the daughter's influence and those are called functional limitations right you think you hear about functional limitations in the world of elder abuse right and so we would go to court and we
(10:02) would have you know the the children as as our as our Witnesses we take the mom's testimony right we will cross-examine the child that's that's living with Mom and what court are you in exactly Supreme Court there's a guardianship part in in Supreme uh and and so and and generally speaking what might happen again to protect the interest of the person the court might appoint an independent third party as as a guardian right over Mom or over Mom and and and and not always not necessarily stripping mom of her rights
(10:35) right uh but just maybe somebody that goes into hand help Mom to assist mom to handle her Affairs but not that's necessarily stripping the rights however once you're placed under that guardianship are you able to to Advocate anymore are you able to sign checks are you able to are you able to say who you want I mean let's go back again to Britney Spears she he had guardianship over both her person and her estate she was not able to have a credit card she was not able to have access to cash she was not able
(11:07) to render a health care decision that's a true guardianship so how now so what is the the line that separates where mom's legal court appointed Guardian doesn't cross so egregiously into taking over her entire person that's the court proceeding to show that Mom has enough financial Acumen okay to understand that she these are her assets this is what she wants um and that she should participate continue to participate so that line is drawn by a judge yes and papers will reflect that she is it is it spelled out
(11:40) the specific access she is to have or is it kind of just a general no so the great thing about the guardianship here in New York state is you could tailor the proceeding okay right it's not an all or nothing it often looks like that it often looks like an all or nothing because look if you have Dementia or if you have Alzheimer's it is it is a full blown out guardianship you are being stripped of your of your rights to to handle your face because you can't which they actually accused her of having I
(12:04) mean there were court documents sent that you know right showed a dementia diagnosis sure um and that was the proceeding yes right so so if if we were going to commence a proceeding so again there's different types of guardianships the guardianship now that we're talking about is where somebody is in is um in need of assistance but they haven't lost their capacity right so you would tell that guardianship to say okay uh South ECO stands are going to be a point to the guardian over Jen Graziano and and here
(12:35) here's how it's going to go down here's here's the the Judgment of the Court Sal and Jenna spoke to work together okay you're supposed to consult with each other uh you know and and we could tailor that as as much as we want so circling back now you're my legal guardian and I find that you're overstepping far too much now I want to commence an action yeah so how do I do that you're my legal appointed Guardian do I go retain additional counsel to bring a suit against you you could and
(13:02) and that's actually the point that I was trying to make to you the other day is that you know uh once you're in a guardianship there are bad people everywhere right very true I I I'd like to think here in Westchester County see the court is going to appoint somebody off of a list correct they're not just randomly assigning the guardianship to and it's usually an attorney right uh so they're going to appoint somebody now if that attorney is acting uh unethically uh or if they're breaching their fiduciary
(13:32) duties you know because they have to act in the best interest of the award uh anyone you know whether it's uh an interested family member uh sometimes it could be a nursing home it could be it could be anybody that has that that sees what's going on so in the case of mom and the one kid versus the other kids yeah other kids could bring a suit and they're standing for anybody who's intro who has an interest in the in the file a petition with the court remember the guardianship part is very sensitive so you know you just go back
(14:07) to the to the court even if it's not you know if you don't have the right papers the Court's going to hear you and if you go to the court and say Hey listen we think something's going on over here it's not right uh the Court's gonna going to probably hold a hearing what about the duration of guardianship is it does it only end if if a legal action is commenced to end it or is it a finite date it depends right so so uh a typical guardianship or somebody's got you know cognitive impairments goes on for the
(14:36) person's lifetime but we often commence guardianships for specific purposes as well so let's say I have somebody that has dementia and I want to try to protect their house and I want to set up a trust I can go into court and ask for the court to appoint a limited special Guardian okay solely for the purpose of creating a trust once I get that power I go back to my office I create the trust I go back to the court I show them the trust we're done they bless everything we're done okay okay and then the guardianships over
(15:03) going back there's just so much that we can cover on this in such a limited amount of time but a durable power of attorney that survives the cognitive impairment so if I appoint you as my POA now and then I lose all cognitive function you are still you were I mean the power of attorney survives you were able to come in and make these decisions that's right why would people not have a durable power and as a matter of fact the New York State Statute was changed a few years back okay where we no longer
(15:30) have a non-durable power so it's always going to survive if you go pull the form off the internet which I do not recommend but if you pull the form off the internet uh which is likely gonna put you into a guardianship because the form on the Internet is is is is is lacking well I think that's a very important point and you should illustrate why and again it always comes back to um you need to be in the right hands there's so much at stake when it comes to your your administrative housekeeping and it's not something that anyone can
(16:01) do you need someone with the specialized knowledge of the Everton changing laws in New York state the nuances the ins and outs because these are these are such sensitive subjects that matter style but this is everyday stuff these are not far-fetched scenarios these are things that can happen we see them happen so explain why the DIY power of attorney the DIY Legal Zoom will you know why is this not good so if you go on the internet and pull uh what we call a boilerplate power return it's valid right it's it's a valid power of
(16:33) attorney uh but the statutory form of a power of attorney has very basic powers so for instance there we like to call them uh ministerial Powers they're a little bit more complicated than that but generally speaking it's the power to handle banking transactions so what does that mean that means that if I am your agent I can go to the bank and I can pay your bills um I can have access to your bank records okay right but I can't move your bank account I can't take your bank account transfer it to a trust I can't give it to you I
(17:09) can't I can't add somebody's name to it and you might say well why would you want to do that well if God forbid you get sick and we're looking to reposition your assets so that way we can protect them and you're not spending you know all of your money on your care well I need to move your assets around and can you tailor if a power of attorney is done correctly can you tailor it the way you can show it why you don't use the do-it-yourself form the do-it-yourself form gives you that basic power whereas speaking sitting
(17:36) down with you and we're going to modify it and we're going to put the power to transfer your assets we're going to put the power to change beneficiary designations we're going to put the power to create a trust these are not in your standard form they're huge Powers Yeah no absolutely and another question I know the POA uh dies with the person does the guardianship is a guardian able to act in their fiduciary capacity posthumously for the person New York State Statute allows you to wind up the guardianship
(18:07) but simultaneously you'll have to commence the probate proceeding the guardian yeah okay well the nominated executor okay um but usually I mean in cases like this do you find that a will is lacking when we when we're dealing with cases the reason why we're in the guardianship because they don't have a power of attorney usually if they don't have a power they didn't do anything correct um this is if you're just joining us or if you join late we're talking to Sal de costanzo elder law expert and we're
(18:36) talking about mostly guardianship but we're touching on Powers of Attorney and an overall need to plan so it's January people are still mindful they're still in resolution mode and if you're saying this is the year that I'm going to do this don't put it off and if you take nothing else away from the show please take that I want you to address any listeners and viewers who are you know they're they're they're over 70 they're over 75 they haven't done anything yet and they're
(19:03) saying it's too late it's definitely not too late why quite frankly there's always something that we can do if you're if you're a seasoned elder law attorney you have a bag of tricks you know I don't like to use the word tricks but you know I've I have all these arrows in my quiver uh so I may not be able to do the same thing for you in your 80s that I could do in your 60s uh but I could still do things to save your assets or protect your assets at least at least to a portion but you could always draft the power of
(19:35) attorney you could always draft a healthcare proxy so long as you have your capacity and how important is that and I think you touched on something earlier in your example with when you have that situation with multiple kids and one might be the more prevalent one but you know and doing the doctor's visits and and involved and everything but you know it doesn't mean that the other children are not well intentioned and shouldn't be part of the process absolutely I think when you have cases of multiple children it's probably all
(20:02) the more important to spell out who's doing what and let it come from you rather than the kids have it out after the fact absolutely if you have a family you know there's so many families today that you know one child's going that way one child's going this way it's so important to make sure that you take the time to sit down and put your Affairs in order so that way everybody hears it yeah right it's not just about drafting the right documents it's communicating all the kids down around the table and
(20:28) saying okay listen sunny boy you're getting yeah XYZ you know daughter you're gonna get my my ring sonny boy do you hear that daughter do you hear that my clients take pictures of their tangible personal property they turn it over they develop the pictures they turn it over and they write to Jed you get my diamond ring shown on the other side of this photo and all and all it holds up legally there it's their intent obviously you know what it just it's it's sometimes like playing poker not one of those kids
(21:02) at that table is gonna is gonna believe that that's not what their mom intended right well we hope but you know again these are hard conversations to have but important nonetheless once you get past I always say it might be uncomfortable but getting past that initial discomfort I mean look at look at the what if if you don't do it that's right that that's Mega discomfort you can see siblings I've seen siblings lose relationships over this I see feuding at funerals and you know it's if you just have this hard
(21:30) conversation up front um and and that is a common situation the other common situation nowadays you know the nuclear family is not what it was not everybody's getting married and having children absolutely not so if you find yourself in that situation where you don't have that immediate next of kin that we're talking siblings or then arguably nephews nieces you have to spell it out because that's right where where will your assets go where you know I mean you know under New York state law there's there's your assets will still
(22:00) pass to your family members correct and there's a hierarchy there's a hierarchy a lot of people come to me and they say well I need to drift a will because if I don't my assets the state's going to take my assets that's not true uh well yeah it's not true um but if you've got extended family or family that doesn't get along right uh you know and this is a different discussion for another day but we want to avoid probate so we're going to want to talk about trust and you know that
(22:25) the trust vehicle I still find is so underutilized I mean it's getting there and we're doing more and more trust these days yes it's you you know the courts are great in Westchester County especially the surrogates court but there are just certain uh they there are certain things that if you could avoid then then it's worth avoiding Sal I know pre-covered you're just always out on the circuit lecturing and that's such a part of what you do is blogging and writing and a very comprehensive website you're also
(22:54) featured in uh the magazine that we produce Coming of Age the latest issue as well um are you getting back there are you doing more anything coming up yeah matter of fact I'm hoping to send out a newsletter today or tomorrow um we're planning an event in the Rye office on February 1st oh okay um we I think I think what it's going to be is uh uh uh we're combining we're trying to combine you know sometimes it can be really boring to come and talk about legal matters right so we're going to
(23:24) have a uh it's so exciting so so everybody wants to do that we're going to do a craft oil and vinegar tasting oh oh there's an outfit here I think it's in Pleasantville where they're going to come and they have all these different crafts uh you know vinegars and oils and good taste and then I'll say a little something about you know Estate Planning and we're going to do that on February 1st it goes perfect with oil and vinegar just try to change it up a little bit it should be oil and water if you're
(23:53) talking about feuding families but uh um uh no that's a great idea so that's good to know and we'll always um you know we'll have you give your website now because it's going to take about two minutes so go ahead his website the website is uh planned today for tomorrow it's all spelled out uh but you could reach me by email at SMD at mfdhyphen law.
(24:20) com the phone number is 914-925-1010 and your Northern Westchester phone number 914-245-2440 we have two offices one on rye and one in Yorktown Heights well so no matter where you are in Westchester County you can find Sal um but all joking aside I just think this is so important and you you really don't is it is it a safe statement to say you just don't want to end up in the guardianship you're just absolutely not we're working on a Case right now where the the sun is retaining us and uh you know he he could he could go and apply
(24:57) for Medicaid uh but he can't because there's no power of maturity and we need to commence a guardianship proceeding to it and it's going to cost another ten thousand dollars in legal fees so we don't want to be here so the way to avoid being here is having the proper documents in order having wishes and Affairs spelled out um distinguish quickly for us Guardianship and conservatorship are they interchangeable everything in New York City you know other states call it conservatorship okay but New York is a
(25:25) guardianship a guardianship State um 914-925-1010 if you were in the southern half of Westchester and up the line it's 914-245-2440 and also get information on an upcoming event in the Rye office coming up on February 1st and people get to take home their oil and vinegar of course oh well just gotta make sure nobody goes home empty-handed um but the message today folks is it's a fresh year fresh start get your Affairs in order and don't just go to anybody go to an expert it believe me the mistakes
(26:04) you can make you can be so costly to go to the wrong person don't make mistakes well we all got to do something for a living so with that thank you so much Sal you'll be back I know you will be great to see you and this is Jen Graziano thanking you for taking the time to listen as we took the time to talk have a great day everybody bye-bye [Music]