Transcript Epstein Becker Green - Corporate Caregivers

Aging in America: What Clients and
Caregivers Need to Know
Presented at the EmblemHealth Family Caregiving Summit
Wednesday, April 30, 2014
PETER J. STRAUSS, ESQ.
Epstein Becker & Green, P.C.
Distinguished Adjunct Professor of Law
250 Park Avenue
New York Law School
New York, NY 10177
185 W Broadway
(212) 351-4746
New York, NY 10013
[email protected]
[email protected]
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THE U.S. – MORE INCAPACITATED OLDER
PERSONS and PERSONS WITH DISABILITIES
2010
2020
2030
2050
310
341
373
439
Percent
13%
16%
19%
20%
Number
40
54.8
72
88.5
Percent
1.8%
1.9%
2.0%
4.4%
Number
5.7
6.6
8.7
19
Total Population (In Millions)
OVER 65
OVER 85
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THE FAILURE OF MEDICARE
MEDICARE is America’s health care program for persons over 65
younger persons with disabilities who are not covered by an employer
health insurance plan.
When Medicare was enacted in 1965, President Lyndon B. Johnson
stated the following prediction of Medicare's benefits for the elderly:
"Every citizen will be able, in his productive years when he is earning,
to insure himself against the ravages of illness in his old age. No longer
will illness crush and destroy the savings that they have so carefully put
away over a lifetime so that they might enjoy dignity in their later years."
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President Johnson Was Wrong!
Because Medicare only pays for acute care and skilled care,
persons who suffer from long term, chronic illness do not have
their needs met.
There is little in current health reform that helps in any
meaningful way with respect to financing long term care.
It is important to consider purchasing long term care
insurance.
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PLANNING AHEAD: TAKE CONTROL!
CONSEQUENCES OF FAILURE TO PLAN: COURT IMPOSED SYSTEMS
The absence of advance planning results in court intervention and control. The
appointment of a guardian will be necessary. This often results in a significant loss
of independence and autonomy.
Guardianship is an unsatisfactory system of financial and personal
management in most cases.
The person who may be appointed guardian may not be the person the
incapacitated person would choose.
This is particularly true with persons who are living together in a loving life
partnership.
Set up your own property management system to take over in the event you
become incapacitated.
Execute advance directives for health care decisions.
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POWER OF ATTORNEY
The typical power of attorney form is usually very basic.
The basic advance planning tool.
Durable. Under the common law, powers of attorney were
ineffective if the principal became incapacitated. All states now
authorize “durable” powers of attorney – powers that are effective
even when the maker is incapacitated.
Presently Effective. Most powers of attorney are effective and the
powers exercisable by the agent at the time of execution.
Springing. A “springing” power of attorney becomes effective only
when the make becomes incapacitated.
New York law default rule is now durable.
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2010: A NEW POWER OF ATTORNEY LAW
The new law includes provisions pertaining to:
•
Compensation of an agent.
•
Minimizing fraud and abuse.
• Allowing principal to name a monitor.
General Obligations Law title 15.
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TRUSTS: WHEN and WHY
Not just to “avoid probate.”
A property management device.
May also be used to help dispose of a person’s assets upon death.
Can be revocable or irrevocable.
Is the most effective asset management device for senior citizens and
persons with disabilities. There is greater efficiency and acceptability of a
trust within the financial community than a power of attorney. There is
greater possibility of avoidance of judicial intervention and control.
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BENEFITS OF A TRUST
• The trust can be funded at time of creation.
• The trust becomes the owner of the assets.
• The trust is most useful when the grantor is ill, lacks expertise, desires
to travel or simply wishes to be relieved of administrative tasks.
• Trust assets are managed, paid and distributed in accordance with the
terms of the trust agreement.
Important - title of assets must be registered in the name of the trustee,
attaching a “schedule” of trust assets is not sufficient.
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THE STANDBY TRUST
Ideal for persons who wish to plan for the possibility of future illness
or incapacity, but have no present need or desire to relinquish control.
The standby trust is created, executed and funded with only a
nominal sum.
A client simultaneously executes a durable power of attorney
containing the power to transfer the client's assets to the standby trust in
the event of illness or incapacity.
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MAKING DECISIONS
AT THE END OF LIFE
The doctrine of informed consent was established by the case of
Schloendorff v. Society of New York Hospital, 211 N.Y. 1 25 (1914) where
Justice Benjamin Cardozo, then on the New York Court of appeals, wrote:
“Every human being of adult years and sound mind has a right to
determine what shall be done with his own body; and a surgeon who
performs an operation without his patient’s consent commits an assault,
for which he is liable in damages.”
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• See also Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261 (1990)
• “The common-law doctrine of informed consent is viewed as generally
encompassing the right of a competent individual to refuse medical
treatment”
• “...the principle that a competent person has a constitutionally
protected liberty interest in refusing unwanted medical treatment may
be viewed from our prior decisions”
• This right exists even where the decision to decline treatment will result
in death.
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Does the Liberty Interest Right to Refuse
Extend to Incapacitated Persons?
• In general, yes. Matter of Quinlan, 70 N.J. 10 (1976)
• But, states have the right to limit how that right may be exercised.
Cruzan v. Director, Mo. Dept. of Health, supra.
• Historically, New York has adopted a conservative approach to the right
to refuse by requiring clear and convincing evidence of the patient’s wishes
before life-sustaining treatment can be withheld or withdrawn.
Matter of Storar, 52 N.Y.2d 363 (1980)
•
Eichner v. Dillon, 73 A.D.2d 431 (1980), modified sub. nom. Matter of
Storar, 52 N.Y.2d 363 (1980)
•
Matter of Westchester County Medical Center (O’Connor),
72 N.Y.2d 517 (1988)
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THE LIVING WILL
Perhaps better called a “Health Care Declaration.”
A document whereby you express your wishes as to the type of care and
treatment you would want or refuse.
New York does not have a living will statute, but living wills are
recognized by case law. Matter of O’Connor, supra
Do not believe it if hospital personnel say a living will is not legal in
New York!
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Drafting Suggestions
My suggestion for health care agents and others:
“I emphasize that this directive to forego or discontinue
treatment is to be applied when there is no reasonable prospect of
recovery to a cognitive life where I can recognize and interact with
my loved ones, but that I wish the medical treatments described
above to be attempted if there is a reasonable possibility of such
recovery in the opinion of my treating physicians. I understand that
in such case, treatments may be instituted although later withdrawn
if such recovery does not occur.”
Avoid using terms such as “terminal condition,” terminal illness,” “death is
imminent” or “heroic measures.”
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The Health Care Proxy
Public Health Law Article 29C
Effective January 18, 1991.
• Allows a person to designate a surrogate - the health care agent - by
executing a health care proxy.
• A competent adult may appoint a health care agent. (Note the use of the
word “competency” rather than “capacity” the more appropriate term
used in Article 81 of the Mental Hygiene Law). Every adult is presumed
competent “unless …adjudged incompetent or otherwise adjudged not
competent to appoint a health care agent, or unless a committee or
guardian of the person has been appointed….” (PHL Section 2981).
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The Health Care Proxy (cont…)
• The agent’s authority to act begins when the attending physician determines
that the patient lacks capacity to make health care decisions. (PHL Section
2983). “For a decision to withdraw or withhold life-sustaining treatment, the
attending physician who make the determination that a principal lacks
capacity to make health care decisions must consult with another physician
to confirm such determination” (PHL Section 2983).
• A health care provider shall comply with health care decisions made by an
agent in good faith under a health care proxy to the same extent as if such
decisions had been made by the principal, subject to any limitations in the
health care proxy and pursuant to the provisions of subdivision five of
Section 2983(5) . PHL §2984.
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WHAT IS THE LEVEL OF CAPACITY REQUIRED TO
EXECUTE A HEALTH CARE PROXY?
Public Health Law Section 2981:
“…every adult shall be presumed competent to appoint a health care agent
unless such person has been adjudged incompetent….”
Do not assume a family member who has been diagnosed with dementia
or who has had a stroke cannot sign a Health Care Proxy!
“The Health Care Proxy” by Peter J. Strauss,
Newsletter of the Alzheimer’s Association, New York Chapter,
April 2006 (See supplemental course materials)
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SHOULD YOU SIGN BOTH A LIVING WILL
AND A HEALTH CARE PROXY?
Yes!
• The Living Will is clear and convincing evidence of the patient’s wishes.
• Guides the agent’s decisions
• Helps the agent deal with guilt.
• If there is no Health Care Proxy or the agents have died the Living Will
stands alone and the patient’s wishes must be followed.
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FHCDA – FAMILY HEALTH CARE
DECISIONS ACT
On March 16, 2010, Governor Paterson signed Chapter 8 of the Laws
of 2010 which was passed by the legislature after 17 years of debate.
The Governor said “After nearly twenty years of negotiations, New
Yorkers now have the right to make health care decisions on behalf of
family members who cannot direct their own care.”
Well, almost…
The Family Health Care Decisions Act adopts the concept of
substituted judgment decision making - existing in all other states - in
New York for patients who lack capacity to give informed consent who
did not leave clear and convincing instructions or evidence of their wishes
or did not execute a health care proxy.
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Key Purposes
• The FHCDA establishes a system for decisions making in order to
provide consent to medical treatment.
• Allows for decision making at the end of life for withholding or
withdrawal of treatment.
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Applicability of FHCDA
The law applies to decisions for adult patients who are in general
hospitals, residential health care facilities (skilled nursing homes) or
hospice.
Note: the statute uses the term “hospital” to refer to both types of
facilities.
FHCDA does not apply to persons who have appointed a health care
agent who have a guardians appointed under SCPA 1750-b with powers to
make life-sustaining treatment or family members who have such powers
under 1750-b for whom treatment decisions can be made pursuant to
OMH or OMRDD regulations (PHL section 2994-b(3)(c))
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Who Can Make the Decision The Surrogate
FHCDA sets forth a list of persons, in order of priority, who may act as the
surrogate to make decisions for an incapacitated patient.
• “A guardian authorized to decide about health care pursuant to article
81 of the mental hygiene law” PHL 2994-(d)
• Note: although not clear, it appears that the guardian should be
designated as the surrogate in the order of appointment (see section 25
of Chapter 8, laws of 2010, amending MHL section 81.22).
• The spouse or domestic partner (as defined in FHCDA)
• An adult child
• A parent
• A brother or sister, or
• A close friend
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Decisions to Withhold or Withdraw
Life-Sustaining Treatment
There are two provisions that authorize the surrogate to make decisions
about life-sustaining treatment:
1. Life-sustaining treatment can be withdrawn if the treatment “would be
an extraordinary burden to the patient” and the attending physician
and another physician determine that the patient is terminally ill, i.e.,
is suffering from an illness or injury that can be expected to cause
death within six months whether or not treatment is provided or is
permanently unconscious.
2. Life-sustaining treatment can be withdrawn if “the provision of
treatment would involve such pain, suffering or other burden that it
would reasonably be deemed inhumane or excessively burdensome
under the circumstances and the patient has an irreversible or
incurable condition, as determined by an attending physician with the
independent concurrence of another physician to a reasonable degree
of medical certainty and in accordance with accepted medical
standards.” PHL 2994-d (5)
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ISSUE FOR THE 21ST CENTURY - CAN WE
HAVE ALL THE TREATMENT WE WANT?
“MEDICAL FUTILITY”
While most of us, if asked, would state that we do not want all
treatment available if there is no quality of life, others may seek all
treatment available because of religious or ethical reasons or a belief that
“the cure is around the corner.” Having shifted the focus of power to the
patient and establishing the principle that the patient’s wishes are
paramount (patient choice), does the patient also have the right to
everything medicine and science can offer?
Can a physician or hospital refuse to furnish treatment that is
considered as “futile?” Is patient choice unlimited?
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New York’s Position on the “MEDICAL
FUTILITY” Issue
The Surrogate trumps the physician
Public Health Law Section 2994 (f)(3) provides:
Notwithstanding the provisions of this section or subdivision one of
section twenty-nine hundred ninety-four-q of this article, if a surrogate
directs the provision of life-sustaining treatment, the denial of which in
reasonable medical judgment would be likely to result in the death of the
patient, a hospital or individual health care provider that does not wish
to provide such treatment shall nonetheless comply with the surrogate's
decision pending either transfer of the patient to a willing hospital or
individual health care provider, or judicial review in accordance with
section twenty-nine hundred ninety-four-r of this article.
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The Texas Approach
The physician trumps the family
•
48 hours' notice must be given to the family and they can participate in the ethics committee
consultation process.
• Family members may consult their own medical experts and lawyer
• The ethics committee must provide a written report to the family of its decision
• If the ethics consultation process fails to resolve the dispute, the hospital must try to transfer
to another provider physician and institution who are willing to give the treatment
requested by the family
• If after 10 days, no such provider can be found the hospital and physician may unilaterally
withhold or withdraw the treatment that has been determined to be futile.
• The family may appeal to court and ask the judge to grant an extension of time before
treatment is withdrawn. An extension is granted if the judge determines that there is a
reasonable likelihood of finding a willing provider.
• If either the family does not seek an extension or the judge fails to grant one, futile treatment
may be unilaterally withdrawn by the treatment team with immunity from civil or criminal
prosecution.
Note: the law was signed into law while George W. Bush was Governor of Texas.
There are some pending amendments to the Texas law to provide more rights to the family.
Ch. 166, Texas Health & Safety Case, Sec. 166046
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HONORING PATIENT CHOICE
• Compliance with patient advance directives is an issue
• Matter of Zornow, 31 Misc. 3d 450, 919 N.Y.S.2d 273 (Sup. Ct. Monroe Co.
2012)
• “Compliance with Advance Directives: Wrongful Living and Tort
Incentives,” Lynch, Fernandez and Sawicki, 8:8 Am. J. Bioethics 33 (2008)
• “A New Life for Wrongful Living,” by Nadia Sawicki: New York Law School
Law Journal, http://nylslawreview.com/201314-volume-58-number-2/
• “Dispute Resolution Mechanisms for Intractable Medical Futility Disputes,”
by Thaddeus Mason Pope: New York Law School Law Journal
http://nylslawreview.com/201314-volume-58-number-2/
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THE ULTIMATE DILEMMA
When Is It Time For The Agent To Implement
The Patient’s Wishes?
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Aid in Dying
The right to have a physician prescribe terminal medication is not
protected by the 14th Amendment to the U.S. Constitution as a liberty
interest/privacy right or under the equal protection clause.
Washington v. Glucksberg, 521 U.S. 702 (1997)
Vacco v. Quill, 521 U.S. 793 (1997)
The Montana Supreme Court held in Baxter v. Montana, 224 P.3d 1211
(2009) that it is not criminal for a physician to prescribe terminal
medications under the Montana Constitution.
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Aid in Dying Not Considered Suicide
“…The mental health community recognizes a clear difference
between the act of “suicide” and the choice of a terminally ill
patient to bring about a peaceful death.”
Kathryn L. Tucker, “Give me Liberty at My Death:
Expanding End of Life Choices in Massachusetts”
New York Law School Law Review,
http://nylslawreview.com/201314-volume-58-number-2/
“Assisted Suicide” is being replaced by the term “Aid in Dying.”
Advocates are moving the debate surrounding the aid in dying
options from a legal issue to a professional practice standard
discussion. See Tucker article, supra.
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The “Slippery Slope” Debunked
“No One Rushing in Oregon To Use a New Suicide Law,” The New York
Times, March 15, 1998
Report of Oregon Public Health Division for 2013
Since 1997 1,173 prescriptions written and 752 patients have died from
ingesting medication. See:
http://public.health.oregon.gov/ProviderPartnerResources/Evaluation
Research/DeathwithDignityAct/Documents/year16.pdf
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VSED
Voluntary Stopping Eating and Drinking
“Exploring the Option of Voluntary Stopping Eating and Drinking within
the context of a Suffering Patient’s Request for a Hastened Death,” Judith
Schwarz, Ph.D., R.N., Journal of Palliative Medicine, Vol. 10, No. 6
(See supplemental course materials)
TERMINAL SEDATION
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Elder Abuse
• Physical Abuse
• Financial Abuse
“The Met Life Study of Elder Financial Abuse: Comes of Occasion,
Desperation, and Predation Against America’s Elders”
http://metlife.com/mmi/research/elder-financial-abuse.html
“Report of the New York State White Collar Crime Task Force,” July 2013
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Medicare
47 Million Americans are enrolled in Medicare
•
39 million 65 and older
•
8 million non-elderly with a permanent disability or end stage
renal disease
Part A – Hospital Coverage (2014)
•
Days 1 – 60
$1,216 deductible no co-insurance
•
Days 61 – 90
$304 per day co-insurance
•
Days 91 – 150 $608 per day co-insurance (lifetime reserve days)
Part B – Physician Services (2014)
•
$147 deductible (2013 was $140)
•
Higher premiums
•
Skilled Nursing Home co-insurance (Days 21-100) $152
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2014 MEDICARE PART B PREMIUMS
MONTHLY MEDICARE PREMIUMS FOR 2014
The standard Part B premium for 2014 is $104.90. If you are single and filed an individual
tax return, or married and filed a joint tax return, the following chart applies to you:
Part B monthly premium amount
Prescription drug coverage
monthly premium amount
$104.90
Your plan premium
$146.90
Your plan premium + $11.60
$209.80
Your plan premium + $29.90
Individuals with a MAGI of $160,000 up to $214,000
Married couples with a MAGI of $320,000 up to
$428,000
$272.70
Your plan premium + $48.10
Individuals with a MAGI above $214,000
Married couples with a MAGI over $428,000
$335.70
Your plan premium + $66.40
Modified Adjusted Gross Income (MAGI)
Individuals with a MAGI of $85,000 or less
Married couples with a MAGI of $170,000 or less
Individuals with a MAGI of $85,000 up to $107,000
Married couples with a MAGI of $170,000 up to
$214,000
Individuals with a MAGI of $107,000 up to $160,000
Married couples with a MAGI of $214,000 up to
$320,000
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2014 Medicare Payroll Tax, Part B
Premiums, Itemized Deduction
Medicare payroll tax will be increased for individuals earning
more than $200,000 or married couples earring more than
$250,000 from 1.45% to 2.35%.
“High income” taxpayers will pay a new tax on unearned
income, such as interest income, dividends, annuities, royalties,
rent and capital gains.
The current medical expense deduction “floor,” was increased
to 10% in 2013, but this increase is postponed for taxpayers 65 or
older until 2017.
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LIMITED MEDICARE NURSING HOME COVERAGE
Provided a beneficiary is admitted to a nursing home within 30 days
following a three day hospital stay, beneficiary is allowed a
maximum of 100 days of skilled care.
•
The first 20 days of skilled care are fully covered.
•
Days 21 through 100 have a co-insurance payment of $152 (2014) for skilled care.
•
Home care beneficiaries are entitled to by law to up to 35 hours a week for “part
time and intermittent” skilled care but in reality get only a few hours a week.
GOOD NEWS! Settlement in Jimmo v. Sibelius class action will result in increased
benefits by eliminating the Medicare “Improvement Standard.”
BAD NEWS: The “observation status” problem
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Medicare Supplemental
(“MEDIGAP”) Policies
Most Medicare Supplemental Policies will cover only the Medicare
deductibles and the co-insurance portion of the Medicare determined
reasonable and customary charge.
Consider Medicare Supplemental policies that will pay more than the
Medicare reasonable charge when your physician does not “accept
assignment.”
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Medicare Supplemental
(“MEDIGAP”) Policies
COMPARISON OF MONTHLY PREMIUMS FOR MEDICARE
SUPPLEMENT POLICIES (NEW YORK)
First United
American
Mutual of Omaha United HealthCare(AARP)
Plan A
$208.00
$216.57
$156.50
Plan B
$286.00
$332.29
$219.00
Plan C
$344.00
$361.03
$256.00
Plan F
$325.00
$412.39
$257.00
Plan F+(High
Deductible)
$64.00
n/a
n/a
Abraham I. Gruenwald, CLU, CLTC
65 Plus – The Health Care Safety Net
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LONG TERM CARE INSURANCE
Long-term care insurance for those who can afford it and for those
who can meet medical underwriting criteria may offer a viable option for
financing long-term home care and nursing home costs.
Long-term care insurance may also be used as an integral part of an
overall financial plan which can protect the assets of an impaired senior
citizen by financing the costs of nursing home care during the Medicaid
period of ineligibility after asset transfers either outright or in trust are
made.
If you have long-term care insurance you may not need to
prematurely divest yourself of your assets and can keep your ownership
of assets until it appears that institutionalization is necessary.
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USING YOUR LIFE INSURANCE TO PAY
FOR LONG TERM CARE COSTS
“LIVING BENEFITS” RIDERS
“LIFE SETTLEMENTS” (“VIATICAL SETTLEMENTS”)
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LIVING BENEFITS RIDERS - ALSO KNOWN
AS “ACCELERATED BENEFITS” RIDERS
You may be able to draw down the face value of
your life insurance policy on a discounted basis to pay
for long term care.
Many insurance companies provide riders allowing
for withdrawal of the face value of a policy in the event
you:
• Are terminally ill
• Need permanent institutionalization or
• Need ongoing care at home
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LIFE SETTLEMENTS
(Viatical Settlements )
• It may be possible for you to sell your life insurance policy to a private
company which will buy the death benefit on a discounted basis
• The discount will depend on the life expectancy and health of the
insured
• The funds you receive will not be counted as income if you take the
benefits because you are a “qualified taxpayer” – meaning you are
unable to perform at least 2 “activities of daily living”
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REVERSE MORTGAGES
If you are over age 62 you may be able to borrow on the equity in your home
without having to repay the loan until you sell your home or die.
Interest accumulates.
The older you are the more you can borrow.
Leading program is HUD’s Home Equity Conversion Program (“HECM”).
Loan can be obtained based home values capped at $675,000. The borrower
can obtain a loan based on a percentage of the home’s value (no more that
$675,000).
Private bank “jumbo” reverse mortgages are presently not available.
It had been possible to get a reverse mortgage on a cooperative apartment in
New York for “jumbo” loans, but HUD does not yet permit this for HECM
loans. The FHA recently advised that its policy will not be changed.
Recent FHA rules will limit the number of persons eligible for reverse
mortgages and the amount of “up front” cash withdrawals.
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LIMITATIONS
•
Former products (“Saver” and “Standard”) have been combined
by FHA – borrowers will receive about 15% less
•
Upfront cash limited to 60% of loan proceeds (some exceptions)
•
Expensive upfront charges:
0.5% mortgage insurance premium
2.5% premium if more than 60% of loan taken in 1st year
•
Financial assessment – will the borrower be able to pay real estate
taxes and insurance
•
Escrow “set aside” from proceeds may be required
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CONGREGATE CARE COMMUNITIES
Certain congregate care facilities may provide long term health care
benefits for residents at reasonable costs.
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MEDICAID - THE PAYOR OF LAST
RESORT
The Medical Assistance program, commonly known as “Medicaid,” was created in 1965 by the
same legislation that created the Medicare program. Medicaid is a health insurance program for
the poor, providing benefits to persons of limited financial means.
To be eligible
•You can own no more than $14,550 of “countable’ assets (In most states only $2,000)
•Be a resident
•Be “medically needy”
Certain property is exempt (not countable) in determining an individual's eligibility including
•Your home – subject to new caps of the value of equity (up to $814,000) Your home
remains exempt so long as you, your spouse, or a minor, blind or disabled child resides
there
•An automobile
•Essential personal property
•Funds in qualified deferred compensation plans if you are in payout status
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BASIC ESTATE TAX PLANNING
1. The Federal Lifetime “Exemption” - $5.34 Million in 2014.
2. Annual Exclusion Gifts: $14,000
3. Gifts for Educational and Medical Purposes.
4. Charitable Gifts.
5. Benefits of Lifetime Gifting.
6. Life Insurance and Life Insurance Trusts:
•Three year rule
•Irrevocable
•Crummey Notices
7. Split Interest Trusts:
•QPRT – Qualified Personal Residence Trust
•GRAT – Grantor Retained Annuity Trust
•GRUT – Grantor Retained Unitrust
8. Power of Discounting: Think LLC!
Proceed with care when the client or the client’s spouse is ill!
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REVISION OF NEW YORK ESTATE TAX
The New York Legislature at the urging of Governor Cuomo is
considering several provisions as part of the budget debate to reform the
estate tax
• Bills being debated propose increasing the N.Y. estate tax exemption to
either $3 million or $5 million
• The Assembly proposal would add-back gifts to the gross estate
• There is a proposal to impose the estate tax on the entire estate if the
taxable estate exceeds 105% of the exclusion
(Status as of March 20, 2014)
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BIOGRAPHY OF PETER J. STRAUSS
Peter J. Strauss, Distinguished Adjunct Professor of Law at the New York Law
School, teaches Elder Law and is co-director of the Guardianship Clinic and the Wills Clinic. He
is also Senior Counsel at Epstein Becker & Green, P.C., a national law firm, based in its New
York office. He has practiced trusts and estate law since 1961 and has special expertise in the
legal problems of aging and persons with disabilities, end of life decision-making and is a
frequent lecturer on those issues. Mr. Strauss was elected as a Fellow of the American College
of Trust and Estate Counsel (ACTEC) in 2013.
Mr. Strauss is a prolific author and has written articles for various publications
including the New York Law Journal, Bottom Line Personal, Trusts & Estates, and Strength for Caring
and has addressed many national professional and consumer organizations. He is co-author of
“Aging and the Law” a treatise for professionals published by Commerce Clearing House, Inc.
and a consumer book, “The Complete Retirement Survival Guide: Everything You Need to Know To
Safeguard Your Money, Your Health and Your Independence,” (Facts-on-File, Inc.) Professor Strauss
has taught Elder Law and Aging in America at New York Law School since 1990 and is director of
the Elder Law Clinic which he founded in 2004 and the Wills Clinic, established in 2013. Mr.
Strauss is considered as one of the pioneers in the field of Elder Law, is a founding member
(1988) and one of the four first lawyers to be elected as a Fellow of the National Academy of
Elder Law Attorneys. He served as the original counsel to the National Association of
Professional Care Managers as is presently a member of the Board of Directors of Judges and
Lawyers Breast Cancer Alert.
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Mr. Strauss has special interest in issues involving capacity for the execution of legal
documents and the legal issues and rights of persons with respect to health care treatment and
decisions at the end of life and is a member of the Board of Directors of the New York Affiliate
of Compassion & Choices. He also handles guardianship matters and is known for his work
concerning special needs trusts for persons with disabilities.
Among the accolades Mr. Strauss has received are his designation for the years 2007
through 2014 as one of the New York Metropolitan area’s “Super Lawyers” and “Best Lawyers,”
and he has been named the “Best Elder Law Attorney in New York’ for 2012 by Best Lawyers.
U.S. News & World Report has designated Mr. Strauss’s law firm, Epstein Becker & Green, as
the best Elder Law firm in the United States in 2013.
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