ROUND UP OF RECENT LEGISLATION AFFECTING GUARDIANSHIPS

Guardianships are a constantly evolving area of the law. Here is a summary of legislation and rules that impact guardianships that are pending, recently enacted or on the horizon.

Recently Enacted

Amendments to Medicaid Statute (federal)

The Bipartisan Budget Act of Act of 2013 (effective October 1, 2017) amends the federal Medicaid statute to permit liens to be filed not only against a lawsuit recovery, but also against the assets of a Medicaid recipient. Affects ability of attorneys representing injured plaintiffs receiving Medicaid to resolve those cases.

 

Peter Falk’s Law (NY) (signed by Governor Cuomo on July 21, 2016)

Amends the Mental Hygiene Law to (i) require that the order appointing a guardian identify the persons entitled to receive notice of the incapacitated person’s death and funeral and burial arrangements; and (ii) allow the court to identify person entitled to notice if the incapacitated person is transferred to a medical facility and to identify persons entitled to visit the incapacitated person.

 
ABLE  (Achieving a Better Life Experience) Implementation Act (NY) (signed by Governor Cuomo on July 21, 2016)

The ABLE ACT allows disabled individuals and their families to establish tax-exempt savings account (similar to 529c accounts used for education expenses) to use to pay for housing, education, transportation, medical, funeral and burial and certain other expenses. This law provides for implementation of the NY ABLE ACT by allowing the comptroller to enter into a contract with the administrator of the NYS college choice tuition savings program for the administration of NY ABLE savings account program.

 

21st Century Cures Act, a/k/a Special Needs Trust Fairness Act (federal) (signed by President Obama on December 13, 2016)

Permits disabled persons under 65 to create their own self-settled special needs trusts (SNTs) for their assets.  Self-settled SNTs help protect the government benefits of a disabled person who receives assets, such as a personal injury settlement, inheritance or gift. The prior law permitted the creation of self-settled SNT’s only by a disabled person’s parent, grandparent, or guardian, or by a court. Under the prior law, if a disabled person had no such living relatives with the ability and willingness to create a self-settled SNT on their behalf, that person had to rely on a guardian, the appointment of which requires a court proceeding in NY, or a court. The addition of the two words “the individual” to the statute now accords disabled persons the power to create their own trusts, without reliance on third-parties or court intervention.

 

 

Pending

Credit for Caring Act of 2016 (federal) (referred to the House Committee on Ways and Means)

Amends the Internal Revenue Code to introduce a new tax credit of up to $3,000/year for eligible caregivers for 30% of the costs of long-term care expenses in excess of $2,000.

 

Medical Aid in Dying Act (NY)

Allows terminally ill patients who are mentally competent to request medication that will be self-administered in order to hasten the patient’s death, if the requirements set forth in the act are met. Provides protections and immunities to physicians who prescribe medication to terminally patients for self-administration and other health care professions.

 

FINRA Proposed Rules (SEC)

The Financial Industry Regulatory Authority submitted proposed rules to the Securities and Exchange Commission (SEC) to require firms to use reasonable efforts to obtain the name of and contact information for a trusted contact for a customer’s account; and to allow firms to place a temporary hold on a disbursement when there is reasonable belief of financial exploitation, as well as to notify the trusted contact of the hold.

 

Upcoming?

Health Care Proxy Registry (NY)

Establishes a health care proxy registry within the Department of Health to maintain the health care proxies of individuals who choose to submit their proxies to the registry and to provide their health care providers with access to their proxies. Did not pass during 2015-2016 NY legislative session, but may be reintroduced next session.

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