Elder Law FAQs

Not always. If your mother has previously signed a valid power of attorney and health care proxy while she still had capacity, those documents may let you act for her without going to court. New York treats guardianship as a last resort. A judge appoints a guardian only when it is necessary and other arrangements, such as a power of attorney, are not enough. A dementia diagnosis alone does not decide the question. The court looks at what the person can and cannot do day to day, and whether she understands the risks of that. If there are no documents, or they do not cover what is needed, guardianship may be the only path. An attorney needs to review what documents exist, when they were signed, and what decisions must be made now.

Often, the family has to go to court. Without a power of attorney, no one has clear legal authority to manage the person’s bank accounts, pay bills from their funds, or handle their property. To get that authority, a relative or other concerned person usually must ask a court to appoint a guardian under Article 81 of the Mental Hygiene Law. The process takes time and money, and it can strain family relationships. The judge also decides who serves, and it may not be the person your parent would have chosen. Medical decisions follow separate rules. An attorney needs to evaluate what assets are involved, how urgent the need is, and whether anyone in the family is likely to object.

Not necessarily. A diagnosis does not, by itself, take away a person’s ability to sign legal documents. What matters is whether the person understands what they are signing at the time they sign it. Many people in the early stages of dementia can still do this. But the window can close, and documents signed when capacity is in doubt are more likely to be challenged later. If you or your parent has a new diagnosis, now is the time to act, not after the next hospital stay. An attorney needs to assess the person’s current understanding, what the doctors have written in the medical records, and whether anyone may later question the documents.

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A health care proxy lets you name a person, called your health care agent, to make medical decisions for you if you cannot make them yourself. It takes effect only after a doctor determines that you cannot make your own decisions. Your agent can speak with your doctors, weigh your options, and follow the wishes you have shared. Without a proxy, decisions in a hospital or nursing home may fall to a relative chosen by a priority list set by law. That person may not be the one you would pick. A health care proxy is separate from a power of attorney: one covers medical care, and the other covers money and property. An attorney should review who you trust to serve, your wishes about treatment, and whether you also need a living will.

Undue influence happens when someone pressures a vulnerable person so heavily that their choices are no longer their own. Warning signs include a new helper who isolates your parent from family and friends, and sudden changes to a will, deed, or bank account that favor one person. Your parent may seem afraid or secretive about money. Someone may insist on being present at every meeting with a lawyer or banker. None of these signs proves wrongdoing by itself. Good planning is the best protection. When a parent meets privately with their own attorney, explains their reasons, and signs with proper formalities, their wishes are much harder to overturn. An attorney needs to look at the timing of any changes, who was involved, and your parent’s health when documents were signed.

Watch for changes in how your parent handles money and how they behave. Warning signs include unusual withdrawals or wire transfers, gift card purchases, new accounts or credit cards, and unpaid bills your parent can afford. Scammers create urgency, such as a call from a grandchild in trouble who begs your parent not to tell anyone. Your parent may become secretive or defensive about a new online friend, investment, or contractor. Victims are often too embarrassed to speak up, so approach the conversation with patience, not blame. Our free guide, The Financial Abuse Early Warning System, covers the warning signs in more detail. An attorney can review whether existing documents give anyone authority to step in and what protections make sense going forward.

Act quickly. Stop all contact with the scammer and send no more money. Call the bank and card companies using the number on the back of the card, and change passwords. If anyone is in danger, call 911. Then report it:

• Your local police department
• New York Attorney General: 1-800-771-7755
• Adult Protective Services in New York City: 718-557-1399 or 311
• Adult Protective Services outside New York City: 1-844-697-3505
• National Elder Fraud Hotline (U.S. Department of Justice): 1-833-372-8311

Scammers sometimes pose as these agencies, so use numbers from official websites. Once the crisis passes, look at prevention. A carefully drafted power of attorney can name a trusted agent and a second person to review that agent’s records. An attorney needs to review what was lost, what documents exist, and who should hold authority.

Medicaid planning means arranging your finances and legal documents, within the rules, so you can qualify for Medicaid help with long-term care without losing everything you have saved. Yes, it is legal. Federal and New York law spell out which transfers are penalized and which are allowed, and planning works within those written rules. What is not allowed is hiding assets or giving false information on an application. A good plan also has to work for the family. A plan that protects money but leaves siblings feeling cheated has failed. The right approach depends on your health, whether you are married, what you own, and how soon care may be needed. An attorney needs to review all of these before recommending any step.

For nursing home care, New York Medicaid looks back 60 months, or five years, from the date of application. Gifts and transfers for less than fair value during that time can trigger a penalty period, when Medicaid will not pay for nursing home care. Some transfers are exempt, such as certain transfers to a spouse or to a disabled child. Not every transaction is a problem, but each one may need an explanation. Money taken from a joint account, a wedding gift, or help with a down payment may all be reviewed. This is one reason waiting for a crisis limits your choices. An attorney needs to examine five years of financial records, the purpose of each transfer, and who received it.

Right now, New York does not apply a look-back period to Medicaid home care, but that is expected to change. In 2020, New York passed a law creating a 30-month look-back for home care and other community-based long-term care. The state sought federal approval, and the start date has been delayed several times. As of October 2026, the rule is not in effect, and no start date has been announced. Once it begins, transfers made in the 30 months before applying could delay home care coverage. Planning that assumes today’s rules will last is risky. The five-year look-back for nursing home care is separate and remains in force. An attorney needs to consider which type of care is more likely, your timeline, and the latest state guidance.

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Yes, in many cases. New York has an Excess Income program, sometimes called a spenddown. It works like a monthly deductible: once your medical bills reach the amount your income is over the limit, Medicaid can pay for covered care for the rest of that month. Another option, often used for home care, is a pooled supplemental needs trust. In some situations, income placed in this kind of trust is not counted, and the trust pays certain bills for you. Married couples have separate rules meant to protect income for the spouse who stays at home. Each option has strict requirements and tradeoffs. An attorney needs to review your income sources, the type of care you need, and whether you are married.

Generally, no. Medicare does not pay for custodial care, meaning help with daily activities like bathing, dressing, and eating, when that is the only care a person needs. Medicare Part A may cover a short stay in a skilled nursing facility after a hospital stay, for up to 100 days, if strict conditions are met. Coverage can end sooner if daily skilled care is no longer needed. After that, families usually pay privately, use long-term care insurance, or turn to Medicaid. Many families learn this only when a parent is being discharged from rehab, which is a hard time to start planning. An attorney needs to know your current coverage, any long-term care insurance, and how care is likely to be paid for over time.

In some cases, yes, usually through estate recovery after the Medicaid recipient dies. Owning a home does not automatically keep someone from qualifying for Medicaid, though New York applies a home equity limit in some situations. After death, the state can seek repayment from the estate for benefits it paid. Recovery is put on hold while there is a surviving spouse, a child under 21, or a child who is blind or disabled. Other protections may apply in specific situations. Whether a home is protected depends on how it is owned, who lives there, and what planning was done in advance. An attorney needs to review the deed, the family’s living arrangements, and the type of care expected.

No. Planning is easier with more time, but there are often still options after care is needed. Even in a crisis, an attorney can review which assets are exempt, how to apply correctly, and how to avoid mistakes that cause delays or penalties. What changes is the number of choices. Some steps that work well years ahead are no longer available once an application is close. That is the honest reason to plan early: more options for you and your family. If your parent is in the hospital or a rehab facility right now, contact us. An attorney needs to know where your parent is receiving care, what they own, what documents exist, and how quickly decisions must be made.