MEDICAID PLANNING AND ASSET PROTECTION

Properly preparing for admission into a nursing home or the expense of long term care is a tedious and sometimes tiring process. In the event you or a loved one may be entering into a nursing home or require long term care, it is best to consult with an attorney as early as possible to discuss the ramifications. The Medicaid laws are complex and confusing. The application process may be easier with the assistance of an attorney, and in many cases the assets of the applicant may be protected. Attorney David Green has the experience in assisting families in having their loved ones become Medicaid eligible and at the same time protecting their assets from the longterm care costs associated with nursing homes.  Nevertheless, the Medicaid planning process is detailed and requires patience. Be sure to plan ahead and reach out to an attorney or other knowledgeable individual if you believe youor your loved ones may need nursing home care.

ESTATE PLANNING

Estate Planning is often overlooked by many and thought to be necessary only by those with a lot of money. NOT TRUE. A properly drafted Will, Health Care Proxy and Power of Attorney is essential for most individuals. Unfortunately, many Americans do not have Wills, Powers of Attorney or Health Care Proxies, however, most could benefit from having them.  The primary importance of having an estate plan in place allows the client to maintain maximum control and hopefully limit undesirable outcomes. David Green is an experienced attorney in the Estate Planning Field and can assist you in addressing these needs. Attorney David Green understands that a correct Estate Plan requires attention to detail and listening to your client’s concerns.

The following are some advantages in consulting with an attorney and having a Last Will and Testament, Health Care Proxy, and Power of Attorney:

1. Allows the Testator (individual executing the will) to select who shall inherit from his or her estate. Many times clients desire to leave an inheritance to someone other then their next of kin, such as a charity or a long time friend. Unless there is a Will in place there is no guarantee these intentions will be carried out.
2. Allows the Testator to determine when the beneficiary may access their inheritance. Many parents find it undesirable for their minor children or irresponsible children to inherit large sums of money. An alternative is to create a testamentary trust (a trust under the will) to hold the money pursuant to the Testator’s wishes. The trust allows the Testator to control when, how much, and under what circumstances the beneficiary may receive a trust distribution.
3. Allows the Testator to provide greater protection for disabled children. It is often advisable that parents of disabled children create a Supplemental Needs Trust to act as a receptacle for the inheritance that may otherwise be given outright to a disabled child. The usefulness of a Supplemental Needs Trust is to protect the assets from unnecessary liens that may exist from Governmental agencies providing assistance.
4. Maximizes organization and allows the Testator the ability to provide their attorney with an itemized list of all their assets. Upon death, it is necessary for the responsible party administering the estate to be aware of what the decedent owned, where to go to get it, and what to do with it. Many of these matters may be addressed in advance thereby avoiding unnecessary delay in administering the estate or in some instances overlooking an asset entirely.
5. During every estate planning consultation, it is necessary to address beneficiary designations with respect to the client’s life insurance or retirement accounts. It is essential these items stay current and reflect the client’s actual intent.
6. Inevitably everyone will pass away, and in the event there is an estate proceeding, it is necessary to know the whereabouts of the decedent’s heirs at law. Generally, this may be the decedent’s spouse, parents or children, however, in certain instances those individuals are difficult to locate or may not exist. As such, prior to moving forward with the estate administration, there may be a delay in having a fiduciary appointed. As a result, an essential part of an estate planning consultation is ascertaining the names and addresses of the Testator’s heirs at law. This allows for greater efficiency in administering the estate.
7. A properly executed Power of Attorney and Health Care Proxy provide for maximum flexibility and protection for the client. In many instances neither document is ever utilized. However, in its absence, if needed, expensive and timely Guardianship proceedings may ensue in order to appoint an individual with the authority to act on behalf of the individual. There are few, if any, excuses not to have a Power of Attorney or Health Care Proxy. However, there are many related items to discuss regarding the execution and implementation of the same that may require the assistance of an attorney.

Additionally, in certain circumstances a Living Trust ( A trust created during the client’s life) may be useful. A Living Trust may be either a Revocable or Irrevocable Trust. The advantages and disadvantages of both are numerous and too detailed to discuss here, however, do play a pivotal role in many estate plans.

ELDER LAW

Elder Law is somewhat of a catch all designation that touches on areas of both Estate Planning and Medicaid Planning, as well as, Guardianship practice. The remarkable difference that I find in my practice is that Elder Law practice encompasses a management component as well. Elder law clients generally require more time, patience and understanding. In many instances, Elder Law clients do not have responsible family members to assist or they are unavailable, and as a result, the attorney may find themselves handling matters that would otherwise be characterized as non legal. However, as an Elder Law practitioner you have to be prepared to address what ever is necessary for the benefit of the client. David Green is fully capable of handling all aspects of the Elder Law client and specifically looks forward to the numerous challenges that are presented.

Please note that Guardianship Law is an area of law that David Green has experience, although Guardianship practice is not highlighted under areas of practice. The goal, however, is to avoid the necessity of a Guardianship proceeding by being prepared and having a properly executed Health Care Proxy and Power of Attorney.

PROBATE AND ESTATE ADMINISTRATION

Probate and Estate Administration is generally required when a decedent passes away owning property individually. In these instances it is necessary to either have the decedent’s Will probated or bring an administration proceeding to appoint a fiduciary to carry out the estate’s administration. Under both scenarios an attorney is generally retained to assist the Fiduciary in handling the estate’s affairs. An estate proceeding is brought in Surrogate’s Court and generally takes upwards to 12 to 15 months to complete, provided the parties are completely cooperative. An estate administration requires great attention to detail and organization. Furthermore, effectively handling an estate involves strong accounting skills, as well as, knowledge in the area of Tax law. David possesses such characteristics and has practiced in Surrogate’s Court his entire career. David is very knowledgeable of the local Surrogate Court procedures and practices, and draws extensively on his bachelor’s in accounting from Siena College. It is helpful for the attorney to be made aware of the following when preparing to probate an estate:

1. The decedent’s heirs at law. Prior to having a fiduciary appointed, the decedent’s heirs at law must be notified. In many instances this is not a difficult task because the heirs at law may be the spouse, parents or children that are readily accessible. However, in other circumstances there are estranged spouses, children born out of wedlock or distant relatives that require notice. As such, maintaining a proper list of names and addresses may avoid unnecessary delays. Preparing a family tree in advance may be of great help in limited situations where the decedent has no known relatives. In that case providing the family tree along with the dates of death of the decedent’s known family members would a great assistance.
2. An itemized list of the decedent’s assets. It is necessary for the fiduciary to account for 100% of all the assets that the decedent had an interest, whether individually owned or not. This generally includes all jointly owned property, life insurance, retirement accounts, and life estates. This is particularly important for tax implications which are too detailed to discuss here.
3. Miscellaneous documentation, tax returns, and mail of the decedent may help assist the attorney in administering the estate.

FORMATION OF CORPORATIONS AND LIMITED LIABILITY COMPANIES (LLC’S)

David has formed numerous Corporations and LLC’s in his career and maintains numerous corporate clients. Nevertheless, it is generally helpful to consult an accountant prior to making your selection of which entity is best for you. Corporations and Limited Liability Companies are the most widely formed business entities, however, there are a myriad of other alternatives. In lieu of a lengthy narrative on the various options it is best to consult with an account prior to making a decision.  There are numerous costs and tax implications associated with each alternative and it is not a decision that should be reached without great consideration.

EVICTIONS

David is well trained in handling an eviction proceeding on behalf of the Landlord. David has performed evictions in nearly all the local courts and is familiar with how to efficiently handle the eviction process from start to finish. If the proper attorney is not retained to handle your eviction, it may lead to unnecessary and costly delays. Be sure you are getting a competent attorney that is familiar with the Court’s procedure and can properly advise you so that you can plan accordingly. 

An eviction proceeding is a summary proceeding that, in many respects, is a quick entry into court to resolve a landlord tenant dispute. Most of the time evictions are for the non payment of rent, however, there are numerous other reasons a landlord may have a basis for evicting a tenant. An eviction proceeding is initiated with the filing of a notice of petition and petition with the court of jurisdiction. As part of the petition, however, the landlord must have previously served upon the tenant proper notice of the basis for the eviciton (generally either a three day notice to vacate for non payment or 30 day notice to vacate). Most courts will not accept the fililng of a petition without the proper notice having been served and an affidavit of service establishing the same.  In most cases, however, service, can simply be by first class regular mail.  There is no need to send it registered mail or certified mail return receipt requested.

Once the notice of petition and petition are filed with the court then it must be served upon the tenant. There are statutory time frames in which to serve the tenant, as such, it is wise to hire a professional process server so that service is properly done.  Upon proper service the affidavit of serviec must be returned to the Court no later then 5 days before the court appearance.  This is essential for jurisdictional purposes.  Service is not complete until the affidavit(s) are filed with the court.  Many courts are not enforcing this, however, if challenged it is an automatic defect and dismissal of the eviction proceeding.  Also, it is important to note that in the event the landlord is seeking a monetary judgment it is important to have the tenant personally served, otherwise, in the event of a default, some courts will not grant the monetary relief requested.

When the day arrives that the petition is heard, many times the tenant does not show up.  In that instance, if there was proper service, then a default judgment is granted and a warrant of evicition issued.  Most courts require that the petitioner provide the order and judgment, as well as, the warrant of eviciton.  Others, however, will provide them for the Petitioner.

In the event that the tenant does appear in court, then they must answer the petition.  Most times there is no legitimate excuse for the non-payment of rent, however, savy tenants that have been through the process know exactly what to say in order to adjourn the matter and buy themselves more time.  As a result, it is often wise to have an attorney to represent you and perhaps negotiate a settlement when difficult tenants present themselves.

Nevertheless, in most instances the warrant of eviciton is eventually issued and provided the landlord.  It is now the landlord’s responsibility to have the sheriff serve the warrant of eviction on the tenant.  Once served, the tenant has 72 hours to vacate, otherwise, they will be physically removed by the sheriff.  At this point it becomes the landlord’s responsibility to safe guard the premises and store all of the tenant’s personal property for no less then 30 days.  Please note, that simply because the court has issued a warrant of eviction, does not mean the landlord has the right to unilaterally perform the eviction without the sheriff’s involvment. The landlord must involve the authorities.

The entire eviction process is fairly burdensome from start to finish and requires quite a bit of attention.  An attorney should be considered in order to avoid any unnecessary delays or costly miscues, and in some cases is required (corporate filers).

REAL ESTATE

Purchasing or Selling real property is generally a big deal. It is not an every day occurrence. As a result, it requires an attorney who is well organized and capable of addressing their client’s needs in a timely manner. If mishandled, a real estate transaction can lead to unnecessary and costly delays. David has handled hundreds of real estate transactions, both residential (including new construction) and commercial. David also has extensive knowledge in addressing most real estate related concerns including drafting residential and commercial leases.

A real estate closing is much more then simply making an appearance the day of the closing.  The process begins early, when the client enters into a contract for the purchase or sale of real property.  At that time it is often necessary to retain an attorney to review the contract and give their approval.

When an attorney represents a purchaser, it is necessary that the attorney properly advise their client on a number of items including but not limited to, obtaining a mortgage, conducting a structural inspection, obtaining a survey, purchasing title and homeowners insurance, and most importantly how much money will be needed at closing.  Often times, these matters are not timely addressed and the client is completely unaware of potential errors that could be fatal.  Furthermore, of great importance in a real estate contract, are the contingency deadlines.  These deadlines are not to be taken lightly and must be noted by the attorney so that the dates do not pass without first obtaining the proper approvals. 

When an attorney represents a seller, there is generally much less work involved, however, there are a number of items that must be addressed that include transfer of title.  For instance does the seller have marketable title, preparing the property for sale, properly marketing the property, cleaning up any outstanding liens, satisfying any outstanding mortgages, and properly drafting the closing documents.  Furthermore, in the event of a corporate seller or property held in an estate, the role of the attorney for the seller becomes much greater.  Such items, however, are outside the scope of this narrative, but if they apply to you then please call for a consulation.

An attorney should be consulted when purchasing or selling real property property in hopes that the transaction can be completed in a timely and efficient manner. There are a number of potential problem areas in real estate and it is not the time to go unrepresented.

CONTRACT DISPUTE AND RESOLUTION

In today’s society it is uncommon to find someone that hasn’t sued, been sued, or at a minimum, contemplated suing. Breach of contract is every day vocabulary. As a result, there is a great need for attorneys that are capable of handling client concerns when these matters arise. David is experienced and knowledgeable in initiating a lawsuit for the breach of a contract, however, would much prefer resolving the matter without litigation. Every situation does not lend itself to litigation and the client must be properly advised as to all the aspects of a lawsuit, especially enforcement of a judgment. David possesses strong negotiating skills, and has had great success avoiding litigation, however, when the need arises, David is equally up for the task. David implements a risk/cost analysis with the client prior to commencing a lawsuit. In many instances it is not worth the time or effort in litigating a claim, not to mention the cost. As a result, David has encouraged implementing stronger internal controls with many of his corporate clients to avoid the unnecessary cost of litigation in an effort to maximize productivity.

COLLECTIONS/ENFORCEMENT OF JUDGMENTS

Simply because a client has obtained a judgment does not mean they are going to collect. The greatest hardship in litigating for contract damages on behalf of a plaintiff is collecting the judgment. The law provides numerous mechanisms available to the plaintiff (judgment creditor) in order to collect on an outstanding judgment. The process can be long and tedious, not to mention costly. As a result, the client must be well advised PRIOR to commencing a lawsuit as to the strategy of collecting on the judgment, if successful. David has extensive knowledge and experience in enforcing judgments. It is a very unrewarding area of the law. Obtaining the judgment tends to be easier then actually collecting. Nevertheless, David has experience with enforcing the available remedies the law allows, including but not limited to, property executions, income executions (garnishment of wages), and real property liens.

PURCHASE AND SALE OF BUSINESS

David has assisted over a dozen clients in the purchase or sale of their business. In order to properly protect the client, a well thought out purchase and sale agreement must be drafted. The purchase and sale agreement must address a number of matters the scope of which is beyond this narrative. Most importantly, however, are the tax implications and liability concerns specific to the business. Furthermore, often times there are other concerns ancillary to the transaction regarding real property, leases, inventory, and dissolution of the business. David possesses the ability to address each of these concerns and properly advise the client accordingly.

PERSONAL INCOME TAX RETURNS

Preparing taxes is a task the majority of individuals must face on an annual basis. It can be a time consuming and frustrating event. Individuals that provide tax preparation as a service must be well educated in tax law and be prepared to advise clients on recent tax developments. David has been a tax preparer since 1993 since his time as an accounting major at Siena College. David has prepared over five hundred returns and prioritizes customer satisfaction. David uses tax preparation as a spring board into his other areas of practice, and often times, is able to better advise his clients as a result.

FIDUCIARY INCOME TAX and ESTATE TAX RETURNS

David’s extensive Surrogate practice has led him to become knowledgeable in preparing fiduciary income tax returns, as well as, estate tax return. Generally speaking, most estates require that a fiduciary income tax return be filed. An estate tax return is necessary on a much more limited basis and addresses taxation of the gross estate. A detailed discussion of the respective tax returns is not warranted here, however, attorney David Green has the ability to prepare both return alleviating the need for the client to retain outside counsel to accomplish the same.

CRIMINAL MATTERS INCLUDING DWI’S

Having to appear in court as a result of a DWI or other criminal matter is damaging enough. The client does not need the added expense of a high priced attorney to accomplish a routine plea bargain agreement. The majority of local criminal court matters are settled relatively easy. Furthermore, handling a criminal matter for a client who has no criminal history is also relatively easy and can generally be settled fairly quickly. As a result, most attorneys regardless of their experience or retainer will accomplish the same result. The one variable tends to be the attorney’s interaction with the client and level of responsiveness. Most first time offenders are nervous and unaware of Court procedure. David has extensive experience in handling local criminal matters and has the ability to resolve most matters quickly, and more importantly, to the client’s satisfaction. David prioritizes communication with the client in order to maximize comfort level and understanding by the client. Those clients with extensive criminal history or charged with a more serious crime, however, should seek a more experienced attorney that has the ability to try the case if necessary.

VEHICLE AND TRAFFIC MATTERS

Having to attend traffic court is generally an unpleasant experience. However, with the right attorney it can be as painless as possible. Most traffic infractions (other then DWI’s) are not criminal, and therefore, are rarely punishable by anything other then a fine. However, this does not mean that traffic matters should be taken lightly. In fact, numerous traffic infractions can lead to a driver’s license suspension and/or high fines. This in turn results in inconvenience. As such, it is best to be prepared and as well informed prior to attending Court. Having an attorney assist you with handling a traffic infraction is always encouraged, although not necessary. In many instances, however, the attorney may appear on your behalf or handle the matter through the mail preventing the client from ever having to make an appearance. David has attended local traffic court in nearly all the local courts in the Tri-City Area. He has extensive knowledge in resolving traffic matters to the satisfaction of his clients. Keep in mind that when selecting an attorney to represent you on a traffic matter, more is not necessarily better. Most attorneys will be able to obtain the same routine plea bargain agreement regardless of their experience or retainer.