Tag Archives: do it yourself

The Elder Law Minute: The Pitfalls of Do-It-Yourself Legal Documents

| rfatoullah@queenscourier.com

A good portion of our practice is comprised of meeting with new clients, collecting their pertinent information and coming up with a strategy that incorporates both estate and/or elder law planning that meets their specific needs. We typically ask to review a client’s prior estate/elder law documents during the consultation if, in fact, any planning had been done previously. All too often we come across documents that were prepared by individuals without the expertise of an attorney and the results are frequently quite similar. These individually-prepared documents are usually lacking the protection that is required and can unfortunately lead to dire consequences. Documents that ostensibly seem easy to prepare and execute are often subject to specific and frequently subtle nuances that only an experienced practitioner will be familiar with.

Preparing and executing a valid health care proxy provides a good illustration. The health care proxy is a document that allows an individual (the “principal”) to appoint an agent to make health care decisions in case he/she becomes incapacitated. The main purpose of the health care proxy is to appoint an agent. There is a presumption that the agent knows the principal’s wishes.  Nonetheless, according to New York State case law, if a principal’s wishes regarding the withholding of artificial nutrition and hydration are not articulated, an agent will not be able to make such decision. Based on this case law, it is imperative for the principal to set forth his/her wishes regarding the administering of artificial nutrition and hydration either in the actual health care proxy or in a separate living will. Failure to do this can result in unforeseen consequences – which is exactly what the principal was trying to avoid in the first place. Secondly, many individuals erroneously believe that they can appoint more than one agent at a time on a health care proxy. This would make the document faulty because only one agent at a time can make medical decisions. A person drafting a health care proxy can add language to avoid insulting other family members, but again- this requires the help of someone with experience.  Finally, the document must be witnessed by two individuals in order for it to be validly recognized. A person should not have his agent, spouse or child be a witness to the signing.

We see even more problems in the area of powers of attorney. The main thrust of a power of attorney is to appoint an agent to act on an individual’s behalf with respect to financial matters in case such individual becomes incapacitated. Many people innocently refer to this document as one that is “simple” to prepare. This could not be further from the truth. Firstly, New York State passed legislation effective September 2009 in an attempt to create a statutory form that would be uniformly accepted. This legislation was the result of tremendous abuse that was found in this particular area, with some appointed agents taking advantage of the disabled and elderly.

The new power of attorney law results in a much lengthier document, and significantly restricts the actual power given to the agent over financial matters. If transfers are to be made on behalf of the principal, a separate gift rider must be executed. The gift rider must specifically articulate the agent’s power to make gifts to himself/herself or to third parties. Further, any additional powers beyond those enumerated in the statute, must be added to a modification section. Finally, while the law mandates banks, brokerage houses and other financial institutions to recognize the power of attorney, the form utilized must be statutory. Accordingly, if someone decides to cut corners and download a form from the internet, this may result in a tremendous disservice because if the form is not statutory, it does not have to be legally recognized. The power of attorney is an extremely important tool for estate and elder law practitioner. If the principal incorrectly drafts and/or executes this form, his/her ultimate plans regarding Medicaid eligibility or gifting to loved ones could be completely stymied. It is imperative to have this document prepared by an experienced practitioner.

A last will and testament is yet another document that must be prepared under the supervision of any experienced attorney. After the person who executed the will dies (the “decedent”), the will gets admitted to probate through surrogate’s court so that the decedent’s wishes can ultimately be fulfilled. Through the probate process, the will is reviewed and the court checks to make sure the will was drafted and executed properly. The number of witnesses, the affidavit they sign and the way the will is fastened are some examples of what the court reviews. Any mistakes, such as the removal of a staple or an ambiguous bequest can result in unnecessary delays, costly legal fees, and at worse, an inability to complete the probate process.

The examples described above provide a small illustration of how self-drafted documents, perhaps initially done to minimize costs, can result in poor planning and the ultimate outlay of unnecessary legal fees to correct the damage that was done. It makes far more sense to do it right the first time.

Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts and wills. The firm has offices in Forest Hills, Great Neck, Manhattan, Brooklyn, and Cedarhurst, NY. Mr. Fatoullah has been named a “fellow” of the National Academy of Elder Law Attorneys and is a former member of its Board of Directors. He also served on the Executive Committee of the Elder Law Section of the New York State Bar Association for over 15 years. Mr. Fatoullah has been Certified as an Elder Law Attorney by the National Elder Law Foundation. Mr. Fatoullah is a co-founder of Senior Umbrella Network of Queens. This article was written with Debby Rosenfeld, Esq., a senior staff attorney at the firm. Ronald Fatoullah & Associates can be reached by calling (718) 261-1700, 516-466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES.

‘Contractor to the stars’ in Maspeth

| nkarimi@queenscourier.com


DIY [Do-It-Yourself] Network’s show “Million Dollar Contractor” focuses on the details, the materials and the amount of money clients spend to allow Stephen Fanuka, the “Contractor to the Stars,” to create million-dollar projects.

The half-hour long series premieres on Sunday, October 16 at 10 p.m. It gives viewers a behind-the-scenes look at some of the spaces and construction of Manhattan’s luxury homes.

“I’ll give you the inside track on the fast-paced world of high-end interior residential renovations,” said Fanuka, whose company, Fankuka Inc., began 17 years ago in College Point and is now located on 56th Avenue in Maspeth. “With ‘Million Dollar Contractor,’ I’ll show you the way the best designers, architects and vendors think outside the box while giving you the know-how to do it yourself or hire the right contractor. Your home is your castle, and I’ll show you how to treat it like one.”

Fanuka is well known for his work with top designers, architects and celebrity clientele, including Thom Filicia, Nate Berkus, Tyra Banks, Tony Bennett and Michael J. Fox.

“I worked hard at being the go-to guy for the best clients in the world and eventually the name [‘Contractor to the Stars’] just came about. You have to earn that title. You can’t aspire to it.” said Fanuka.

During each episode, Fanuka takes his clients’ “wish list” and turns them into reality. He will turn a $10 million, three-bedroom penthouse in Manhattan’s West Village into a bachelor pad with a 700-pound walnut pivot door to change the shape and flow of the condo.

The show will also include an apartment on the Upper East Side, featuring handmade Venetian plaster moldings, custom pocket doors, Fanuka’s trademark custom cabinetry, Thassos pure white marble and LED hallway lights.

“The premise of the show is that the ‘Million Dollar Contractor’ isn’t all about money. It’s about the million dollar look. We all deserve the million dollar look and now you will know how to have it in your home,” said Fanuka.

Although his clients differ in tastes and styles, they all have one thing in common – they expect the transformation to be perfect. Although it’s not always smooth, Fanuka pulls out all the stops to create the kind of end result that satisfies even the toughest critics.

“There are no scripts [in the show] and we give it to you like it is real time and real life. All those magazine photos of beautiful homes and rooms always credit the interior designer and architect. Now it’s time to salute the men and contractors that make it a reality,” said Fanuka.