The Kiley Law Firm Blog

Wrongful Death:

PENDING THE GOVERNOR’S SIGNATURE – both houses of the NYS Legislature have passed a bill which dramatically changes the present Wrongful Death law.  The Grieving Family Act will expand the definition of a family member to include “close family members”, including but not limited to, spouses, domestic partners, children, parents, grandparents, stepparents and siblings.  Furthermore, families of wrongful death victims will now be able to recover non-economic or intangible damages, which might include: Grief and emotional anguish caused by the victim’s death, loss of love, support, protection, and guidance. 

Click Here to Take Action: Concerned citizens can reach out to Governor Hochul with their thoughts and opinions. Visit www.hopefornyfamilies.com and submit your letter to the governor, today.

Medicaid:

N Y State’s attempted implementation of a “lookback” for community Medicaid benefits that was supposed to become effective January 1, 2021, has now been postponed until March 31, 2024, at the earliest.

Matrimonial Law:

New York’s child support formula for determining the appropriate amount of child support to award in any given case requires the court to apply a statutory percentage based on the combined parental income of both parents. As of March 1st, 2022, the income cap has increased to $163,000.  However, consistent with prior precedent, the trial courts have discretion to base child support upon combined parental income in excess of $163,000.

Remedies for Survivors of Sexual Assault:

On May 24th, 2022, New York Governor Kathy Hochul signed the Adult Survivor’s Act into law, establishing a one-year window for survivors to bring claims against abusers without the limits of the statute of limitations.

Increase in the Minimum Wage:

The Minimum Wage Act (Article 19 of the New York State Labor Law) requires that all employees in New York State receive at least $14.20 an hour beginning December 31, 2022. Minimum wage rates differ based on industry and region. On Long Island and in Westchester, the rate went up to $15 per hour.

No More Styrofoam in New York: 

As of January 1, 2022, New York State bans any single-use disposable polystyrene foam food service containers including bowls, cartons, clamshells, cups, lids, plates and trays. Additionally, polystyrene packing peanuts are illegal.

Marijuana Sales

New York legalized recreational use of marijuana to adults over the age of 21 in March 2021; but is still in the process of licensing people to sell it. The cannabis board also advanced proposed regulations for the sale of marijuana, with a focus on public health, product quality and safety and preventing those under 21 from buying cannabis.  Contrary to popular belief, you can’t buy marijuana just anywhere! 

Sport Betting is Legal in New York:

As of January 8, 2022,  the New York gaming commission gave their approval to four operators to start taking online bets from anywhere in the State including from a person’s own living room a bar or from the street.

Landlord-Tenant and Foreclosure Law:

Effective January 15, 2022, Hardship Declarations related to Covid-19 which were previously submitted to the courts will no longer automatically stay eviction proceedings and no new Hardship Declarations may be filed.

Guns:

As of September 1, 2022, New York State made statutory changes in response to the U.S. Supreme Court’s decision declaring New York’s restrictions on carrying concealed weapons unconstitutional.  This law enacted requirements for individuals seeking to obtain concealed carry pistol permits.  These included firearm training, in-person interview, and social media review, among others.  Also, the law outlawed conceal carry in sensitive locations including times square, bars, libraries, schools, government buildings and hospitals.  It also requires permit recertification or renewal every three years 

Robocalls: 

In November 2021, two bills were signed into law addressing robocalls.  The first requires telecommunications providers to block calls from numbers that do not or cannot make outgoing calls. These types of numbers are indicative of ‘spoofing’ schemes in which the true caller identity is masked behind a fake, invalid number.”  The second requires that voice service providers implement the “STIR/SHAKEN” protocols to validate that calls are actually coming from the numbers displayed on the Caller ID.  The STIR/SHAKEN authentication protocol uses cryptography to validate that a call is really from the number it displays, preventing bad actors from illegally “spoofing” phone numbers.

Fake COVID-19 Vaccination Cards:

A bill signed into law on December 23, 2021 makes the falsification of COVID-19 vaccination cards a class A misdemeanor. It also creates a new E felony of third-degree computer tampering for “intentional entering, alteration or destruction of computer material regarding COVID-19 vaccine provisions.”

Mandatory Retirement Plans for Workers in Private Sector Businesses:

As of 2022, private sector businesses in New York must offer a retirement savings plan to their employees.  The new law requires private sector businesses that don’t currently provide their employees with a retirement plan to automatically enroll them in the state’s Secure Choice Savings Plan.

Homeowners’ Insurance and Pets:

A new law now prohibits insurers from refusing to issue or renew, cancel, or charge or impose an increased premium for certain policies based solely on the breed of dog owned.

Recently, an aunt of mine was clearing out some personal items and came across a letter my grandfather had written to his mother-in-law (my great-grandmother) soon after my grandparents’ honeymoon in 1924.  It was a beautiful letter- the kind that people years ago were skilled at writing, a skill not often displayed these days in e-mail, texts and on social media. Lets face it, the art of letter writing has been lost in our digital age.  Traditionally, people have always hung on to such letters or cards for posterity- keepsakes to remember and pass on to a child or grandchild.  Is this also being lost in our digital age?

As recently reported by NPR, consider the plight of a mother in Portland, Oregon, who continued to use her son’s Facebook account to read postings on his wall after his accidental death.  Her son’s wall contained photos and postings from personal friends, many of which she had never seen before. However, when Facebook learned of the son’s death, it changed the password and closed the page.  Thus began a long legal battle by Karen Williams to regain access and obtain years worth of her son’s life on Facebook.

Now, lawmakers in many states are considering legislation that would require social networks like Facebook to grant loved ones access to the accounts of family members who have died.  In Oklahoma, a recent 2010 law grants the administrator of an estate the power to act on behalf of a deceased individual and access social media accounts.  These laws beg larger questions for the individual estate plan.  Whereas in the past, people have always properly considered the disposition of tangible personal property in their Wills, shouldn’t they now also be being given consideration to their “on line” property- the treasure trove of photos, messages and postings that accompanied them through life?

My grandfather died in 1963- 6 years before I was born.  I only know him from family stories… but his letter gave me great insight into his character.  I smile at the notion of how much more my great grandchildren will know of me.

A will has no force nor effect until it is probated and the Surrogate determines that it is genuine, that the testator had testamentary capacity, that he was not unduly influenced by another person, and that he published the will before signing it. When a proposed executor submits a probate petition, he must notify all of the deceased’s heirs at law. Each must either waive his or her right to contest the will or be cited to appear in court to oppose the will. Problems arise when the testator’s family cannot be located. Petitioners frequently must hire a genealogist to locate lost heirs. The task becomes more difficult and expensive when the decedent emigrated from another country and his birthplace is unknown.

Yesterday, I met with a client who must locate the heirs of a man who was born somewhere in eastern Europe. Thinking about this problem and given that today is St. Patrick’s Day, I started wondering how difficult it would be to probate St. Patrick’s will.

Some historians have postulated that St. Patrick was not a living person, but a fictional character of legend.　They’d get an argument, but not absolution, if they confessed their sinful thoughts to Father O’Shea this morning at the Cathedral which bears the Saint’s name.　And they’d get a beer in their face but not in a glass if they voiced their opinion today in any Irish pub in Woodside.

For the true believers, St. Patrick is as real as the sun setting over Galway Bay. 　But experts dispute his birthplace.

Various accounts have St. Patrick being born in Scotland, see: http://www.catholic.org/saints/saint.php?saint_id=89 and in England, see: http://www.vortigernstudies.org.uk/artgue/guestjelley.htm and in Wales, see: http://www.historic-uk.com/HistoryUK/Wales-History/StPatrick.htm and in Boulogne, France (as per Dr. Lanigan, author of The Ecclesiastical History of Ireland) as referenced in this scholarly article, http://ads.ahds.ac.uk/catalogue/adsdata/PSAS_2002/pdf/arch_scot_vol_005/05_261_284.pdf and, in Gaul, see this scholarly article: http://www.sangrial.com/pdf_files/saintpatricksfamily.pdf . To confuse things even further, Gaul was a Roman province which covered the area from France, Belgium, and westernmost Germany, see: http://en.wikipedia.org/wiki/Roman_Gaul.  Since St. Patrick was a Roman Citizen and the territory of Gaul also included the Italian Alps, even the Italians have laid claim.　

While the proponent of the will would have a huge problem, his birthplace is not of concern to his many fans.　　We can all share St. Patrick today, because everybody’s Irish on St. Paddy’s Day.   Slainte!　　

It’s a dilemma that every estate planner faces. Mrs. Martinez’ grandniece, once removed, (GNOR) makes an appointment for her to make a will. At the appointed time, they arrive together . . . alone. Mrs. M. is a lovely lady somewhere between 80 and 120 years old, has a strong accent and doesn’t hear well. GNOR offers to sit in on the consultation and translate. During the introductions, GNOR explains that Mrs. M. is a widow and lives in a large, old house. Her four grown children live out-of-state. GNOR lives in Mrs. M’s basement, pays no rent, but helps with the chores. She says that Mrs. M. wants to give her a power of attorney and devise her the house when she dies. She offers:

My Aunt’s an old woman who came from Peru;
She needs an estate plan but doesn’t know what to do
Her children are absent, don’t visit or call
As God is my witness, they don’t help at all.
One is a doctor who lives in St. Paul
Another’s in Georgia and speaks with a drawl
I moved in last year when my aunt had a fall
I’m here to help her for the long haul.

At the ends of the story Mrs. M. starts to bawl. What’s the real story? Should my skin start to crawl? As I offer her a tissue and a glass of water, I suggest that I speak to Mrs. M. privately.

Many elderly people find themselves alone when their spouses die and their children are grown. They need assistance and companionship but their traditional family supports have collapsed. So they look for other options. Hopefully they have well-meaning extended family members or friends who fill the breach. But too frequently, they are preyed upon by grifting wolves who cloak themselves in a shroud of love and friendship. The lawyer’s job is to help the client tell the difference. It’s a delicate but necessary task. You must separate the client from the “helper” so that you hear the clients’ wishes without interference. It’s essential to know if he or she is able to make an independent decision and isn’t unduly influenced. If you sense that the “helper” is helping him or herself, it’s time to pull the plug on the consultation as a lawyer is ethically estopped from preparing an estate plan for a client who is unduly influenced or mentally impaired. It’s a hard call, especially when the client is a stranger and seems to be in danger. The meeting is fleeting and physical infirmities like hearing loss or speaking impairment, may make an elderly person seem mentally incompetent when they are not.

The elderly client and the “true helper” are better served when the lawyer makes careful inquiries such as I have described. If he doesn’t, the will may be denied probate when a distributee challenges it.

Believe it or not, in America, more adults have pets than children.  Most people consider their pets as part of their families.  A 2007 survey of the American Animal Hospital Association found that 83 percent of pet owners refer to themselves as their pets “mom” or “dad”.  

So what happens to these pets when their “parents” die or become incapacitated?   The best way for an owner to ensure the continuity of care for their pet is to establish a pet trust.  New York’s Estate Powers and Trusts Law § 7-8.1 allows for such trusts for the care of pets and protects trust funds from being used for anything other than the pet’s benefit.

Many people have traditionally provided for pets in their will.  But this is a flawed plan and can pose many problems.  First, a will is usually not read or produced for days, if not weeks after the owner’s death.  Second, the caretaker named in the will holds only an honorary position.  He/she may abscond with funds intended to care for the pet or leave the animal in a shelter and the courts don’t have the authority to enforce the owner’s instructions.  So, by example, if you write in your will that you leave $10,000 to your niece with instructions that the money is to be used for your beloved beagle Fido, your niece can pocket the money and abandon Fido without the fear of any legal reprisals. 

Courts, however, can enforce the owner’s instructions if they are contained in a pet trust.  Additionally, the terms of a trust can be enforced during the owner’s lifetime, whereas the terms of a will only apply after the owner’s death- significant for the pet of an owner who becomes incapacitated and unable to care for their pet.   An owner who becomes disabled an unable to care for their pet can direct in their trust that the caretaker bring the pet for visits.  The effect a pet can have on people’s physical and mental health is well documented.  Whether its playing a game of catch with a stroke victim or being a calm, familiar face for an owner suffering from the diseases of old age, pets can play an important role in a sick person’s life.

So how does it work?  First, the owner should establish a pet trust. Second, the owner’s will should be written or amended to name the trust and arrange for its funding.  Every pet trust, of course, should name a trustee.  The trustee disburses funds to a named caretaker, who shall carry out the owner’s instructions for the care of the pet.  These instructions can be detailed- from the food the pet prefers, to the park the pets likes to walk, to the owner’s preferred vet or groomer.  A client with more than one pet can direct that the pets live together.   

How much money should be placed in the trust?  This can be tricky.  You’ll want to feel comfortable that your pet is well provided for.  However, if you fund the trust lavishly, you open the door to legal challenges.  Other potential heirs might seek to invalidate the trust claiming that you were not of sound mind.  Therefore, always give good reasons in the trust document for the amount you transfer to a pet trust.  This will substantiate your good judgment and enforce the pet trust in case of a conflict.