When to Hire an Elder Law Attorney in New York

Elder law and estate planning are not the same job in New York

An estate planning attorney asks what happens to your property when you die. An elder law attorney asks what happens to it while you are still alive and need care. In New York those are different questions governed by different statutes. Estate planning runs on the Estates, Powers and Trusts Law and the Surrogate's Court Procedure Act. Elder law runs on Social Services Law §366 (Medicaid eligibility and transfer penalties), Mental Hygiene Law Article 81 (guardianship), General Obligations Law §5-1501 and following (powers of attorney), Public Health Law Article 29-C (health care proxies), and a steady stream of Department of Health GIS and ADM directives that set the dollar figures each January.

A will alone does nothing to protect a house or savings from a $15,000-a-month nursing home bill. A revocable living trust does nothing either; the assets in it count in full for Medicaid. If long-term care is a realistic risk, the planning has to be built around the Medicaid rules first and the inheritance second. Our pages on advanced New York estate planning techniques and the benefits of a living trust cover the estate side in depth; this page is about the timing of the care side.

The New York numbers that decide the timing

These are the figures that determine whether a family has options or has run out of them. They are the 2025 levels published by the New York State Department of Health. They change every year, so confirm the current figures before you act on them.

• Nursing home Medicaid look-back: 60 months. Under Social Services Law §366(5), any gift or below-market transfer made in the five years before a nursing home Medicaid application is presumed to have been made to qualify, and triggers a penalty period.
• Penalty period: the total value of transfers in the look-back period divided by the regional monthly rate set by the Department of Health. The New York City rate has been above $14,000 per month since 2024, with lower rates for Long Island and upstate regions. Divide the gift by the rate and you get the number of months Medicaid will refuse to pay for the nursing home. The penalty does not start running until the person is in the facility, has applied, and is otherwise eligible.
• Community Medicaid (home care) look-back: the 2020 state budget enacted a 30-month look-back for home care. As of this writing it has not been implemented, and transfers still carry no penalty for community Medicaid. The Department of Health has postponed the start date repeatedly. If it takes effect, families who waited will lose the single most forgiving rule in New York elder law.
• Resource allowance: $32,396 for a single applicant and $43,781 for a couple in 2025. Everything above that, other than exempt assets, must be spent, converted, or protected before Medicaid pays.
• Income limit for community Medicaid: $1,800 per month for a single person and $2,433 for a couple in 2025. Income above that is a spend-down, but New York allows an applicant with a disability to deposit the excess into a pooled supplemental needs trust and keep Medicaid. See the benefits of a special needs trust.
• Nursing home income: a resident keeps a personal needs allowance of $50 per month. The rest of the monthly income, less health insurance premiums and any spousal allowance, goes to the facility.
• Community Spouse Resource Allowance: the spouse who stays home may keep at least $74,820 and up to $157,920 in 2025, on top of the house, a car and the applicant's own $32,396.
• Minimum Monthly Maintenance Needs Allowance: $3,948 per month in 2025. If the community spouse's own income is below that, part of the nursing home resident's income is shifted to the spouse before the facility is paid.
• Spousal refusal: Social Services Law §366(3)(a) lets a community spouse with assets above the CSRA refuse to contribute. Medicaid must still cover the institutionalized spouse. The county may later sue the refusing spouse for support, and in practice the exposure is negotiated. This is a New York rule most other states do not have.
• Home equity limit: $1,097,000 in 2025. A home above that equity value disqualifies a single applicant from nursing home Medicaid unless a spouse or dependent child lives there. In much of Manhattan, Brooklyn and Queens, an ordinary family home is at or over this line.
• Estate recovery: under Social Services Law §369, New York recovers Medicaid paid after age 55 from the recipient's probate estate. A house that passes through probate is exposed. A house that passed into an irrevocable Medicaid trust more than five years earlier is not.
• Medicare rehabilitation coverage: after a three-day inpatient hospital admission (observation status does not count), Medicare pays for skilled nursing care in full for days 1 through 20 and with a $209.50 daily coinsurance for days 21 through 100 in 2025, and only while the patient is improving or needs skilled care. Many families learn the Medicare days are ending with a week's notice.

Ten situations, with a decision for each

Each of these comes from the pattern of calls we receive from New York families. The answer is either call now, call this month, or you can wait. Where a deeper page exists on this site, it is linked.

1. A parent has just been diagnosed with mild cognitive impairment or early dementia and has no power of attorney. Call this month. Under General Obligations Law §5-1501B a power of attorney is valid only if signed by a principal who understands its nature and consequences at the time of signing. Mild cognitive impairment does not by itself mean incapacity, and many people in early-stage dementia can still execute a valid POA and health care proxy. The window closes without warning. Once it closes, the only route to authority over the parent's finances is an Article 81 guardianship. See our page on the durable power of attorney and on advance directives in New York.
2. A parent has a power of attorney signed before June 13, 2021. Call, but you can schedule it. Powers of attorney validly executed under the old law remain valid. The problem is practical: the 2021 amendments replaced the statutory gifts rider with a gifting authority inside the form, required two witnesses in addition to notarization, and imposed penalties on institutions that unreasonably refuse a conforming form. Banks are far more willing to honor a post-2021 form. If the parent still has capacity, re-signing is a one-hour appointment. If the old form limited gifts to $500 a year, which the old statutory form did by default, the agent cannot do Medicaid planning with it.
3. A parent is healthy, over 70, and owns a home in the five boroughs or on Long Island. Call now, in the sense of this year. This is the ideal moment for a Medicaid asset protection trust. A house transferred to an irrevocable trust today is outside the five-year look-back by the same date in 2030, and outside estate recovery. The parent keeps the right to live there for life, keeps the STAR and senior exemptions, and the children receive a stepped-up basis at death. Wait until the first fall or hospital stay and the five-year clock starts later, if it can start at all.
4. A parent has been admitted to a rehabilitation facility after a hospital stay. Call before day 20. Medicare's full coverage ends on day 20; after day 100 it ends entirely, and it ends sooner if the facility decides the patient has plateaued. The question the family must answer in that window is whether the parent is going home with Medicaid home care, or staying as a long-term resident at a private-pay rate that in New York City is frequently $15,000 or more per month. The answer changes which application is filed and what can still be protected.
5. A parent is already in a nursing home paying privately, with savings well above $32,396. Call now. It is not too late. New York still permits crisis planning for a single applicant: in broad terms, a gift of part of the assets combined with a Medicaid-compliant annuity or promissory note that funds the resulting penalty period. Done correctly, roughly half of the remaining assets can often be preserved; the exact share depends on the regional rate, the monthly cost of care and the parent's income. Every month of private pay before the plan is implemented is money that cannot be recovered.
6. One spouse is entering a nursing home and the couple's savings exceed $157,920. Call now. The community spouse must decide between spending down to the CSRA and exercising spousal refusal under §366(3)(a). Spousal refusal is a signed document filed with the application; the timing and the follow-up negotiation with the county matter. The couple's income also has to be analyzed against the $3,948 MMMNA. A couple should not sign anything the facility's admissions office hands them, including a third-party guarantee, before that analysis is done.
7. A parent at home needs help bathing, dressing or moving around, and has income over $1,800 a month. Call this month. Community Medicaid currently has no look-back and no transfer penalty, so excess assets can be moved to children or a trust and an application filed without waiting five years. Excess income goes into a pooled trust. Enrollment is through a managed long-term care plan after an independent assessment, and the process from application to an aide arriving commonly takes several months. The 30-month look-back, if the state implements it, will end the no-penalty transfer.
8. A sibling has been added to a parent's bank account, or is the agent under the POA, and will not explain where the money is going. Call now. Under General Obligations Law §5-1510 an agent must keep records and can be compelled to account by a court on the request of a family member or other interested person. A joint account holder who withdraws for personal use is exposed to a turnover proceeding and, if the parent lacks capacity, an Article 81 petition can remove the agent. See what to do when someone is abusing a power of attorney and our elder financial abuse page.
9. A parent wants to change a will, and has recently been diagnosed with dementia. Call before the appointment with any other professional. New York's test for testamentary capacity under EPTL 3-1.1 is lower than the test for contracts: the testator must understand the nature of the act, know the extent of the property, and know the natural objects of their bounty. A person with dementia can meet it on a good day. The signing should be supervised by an attorney, with contemporaneous notes on capacity and, where appropriate, a physician's letter, because a will signed after a diagnosis is the first document a disappointed heir attacks. See will contests in New York.
10. A parent is well, has modest savings below the resource limit, rents an apartment, and has a current POA and health care proxy. You can wait. Review the documents every five years or after any major change, and make sure the agent knows where the originals are. Medicaid planning protects assets; a person with few assets has little to protect and will qualify on application.

What waiting costs: Article 81 guardianship

If no power of attorney or health care proxy is in place and the person can no longer sign one, the family's only path to authority is a petition under Mental Hygiene Law Article 81 in Supreme Court. The court appoints a court evaluator to investigate and report, holds a hearing at which the alleged incapacitated person has the right to counsel, and must find by clear and convincing evidence that the person is likely to suffer harm because of functional limitations they cannot appreciate. The court then tailors the guardian's powers to the specific findings.

The process is public. It routinely takes several months from filing to commission, and longer if a family member objects. Court-appointed professionals are paid from the incapacitated person's own assets, and legal fees in an uncontested proceeding commonly run into the thousands of dollars, with contested cases costing far more. The guardian must file an initial report within 90 days and annual accountings every year thereafter, each reviewed by a court examiner. A guardian who wants to do Medicaid planning must return to court for specific authority under MHL §81.21, and the judge, not the family, decides whether the gifts are approved.

A statutory short form power of attorney and a health care proxy avoid all of this. Signed in a single meeting while the person has capacity, they cost a small fraction of a guardianship and keep the choice of decision-maker where it belongs.

What you do not need an elder law attorney for

Several problems that bring people to our door are better handled elsewhere, or by a general estate planning attorney at lower cost.

• Medicare Part D and Medicare Advantage enrollment. This is insurance counseling, not law. New York's HIICAP program offers free, unbiased counseling through every county office for the aging, and the Medicare Rights Center in New York City runs a free helpline.
• A simple will for a renter with savings under the resource limit and no long-term care exposure. Any competent New York estate attorney can draft and supervise the execution under EPTL 3-2.1. Medicaid planning adds nothing when there is nothing to protect.
• Applying for Social Security retirement benefits. File online or at the local Social Security office. An attorney is useful for disability claims and appeals, not for a retirement application.
• A dispute about the quality of nursing home care, as opposed to the cost. Start with the facility's grievance process and the New York State Long-Term Care Ombudsman. If the complaint involves injury, such as pressure sores or falls, that is a nursing home negligence matter; see our page on bedsores.
• Probate after a death with no Medicaid history and no dispute. That is an estate administration matter, not elder law. See avoiding probate in New York and a sample New York City probate timeline.

What to bring to a first meeting

A first elder law consultation in New York is a numbers exercise. The more of the following you bring, the more specific the advice will be:

• the most recent statements for every bank, brokerage and retirement account, including accounts held jointly with children;
• the deed to any real property and a rough sense of its market value;
• a list of monthly income with the source of each: Social Security, pensions, annuities, rental income, required minimum distributions;
• any existing power of attorney, health care proxy, living will, will or trust, with dates;
• any long-term care insurance policy and its daily benefit and elimination period;
• a list of gifts or transfers over roughly $1,000 made in the last five years, including money given to children or grandchildren;
• the most recent medical records or diagnosis letter, if capacity is in question;
• any paperwork the hospital, rehabilitation facility or nursing home has asked the family to sign.

Frequently asked questions

How much does an elder law attorney cost in New York City?

Fees in New York are set by each firm and vary with the work. Documents such as a power of attorney and health care proxy are usually a flat fee. A Medicaid asset protection trust with a deed transfer is a larger flat fee. Medicaid applications are often flat-fee as well, with crisis planning for a nursing home resident priced higher because of the annuity or note structure and the appeals that may follow. Ask any attorney for the fee structure in writing before engaging them. We quote fees at the first consultation once we have seen the numbers.

Is it too late to hire an elder law attorney if my parent is already in a nursing home?

No. The look-back limits what was done before admission; it does not prevent planning after it. A single resident can still protect a substantial share of remaining assets through a gift-and-annuity or gift-and-note plan, and a married resident's spouse can still use the CSRA, the MMMNA and spousal refusal. The amount preserved falls with every month of private pay, so the right time is the week the family learns Medicare coverage is ending.

What is the difference between an elder law attorney and an estate planning attorney in New York?

An estate planning attorney drafts wills and trusts to pass property at death and minimize estate tax. New York's estate tax exemption is just over $7 million in 2025, so for most families the tax question is secondary. An elder law attorney plans for the cost of care during life under Social Services Law §366 and the Department of Health's Medicaid rules, and handles incapacity through powers of attorney and Article 81 guardianship. Many attorneys do both. Ask how many Medicaid applications the office files in a year; the answer tells you which kind of practice it is.

Does New York Medicaid have a look-back for home care?

Not as of this writing. The 30-month community Medicaid look-back enacted in 2020 has been postponed repeatedly and is not in effect. Transfers made to qualify for home care are not penalized. Nursing home Medicaid has had a 60-month look-back for years, and that one is enforced. Check the current status with the Department of Health or an attorney before relying on this.

Can my parent sign a power of attorney after a dementia diagnosis?

Often yes. The standard under General Obligations Law §5-1501B is whether the principal understands the document at the moment of signing, and dementia is progressive, not binary. The attorney supervising the signing should assess capacity, document the assessment, and consider a physician's letter. A power of attorney signed by someone who clearly lacked capacity is void and exposes the agent to challenge, so the signing should not be rushed through at a bank or by a notary alone.

Will Medicaid take my parent's house in New York?

A home is exempt during life if a spouse or dependent child lives there, or if the applicant intends to return, subject to the $1,097,000 equity limit for a single applicant. After death, Social Services Law §369 lets New York recover what Medicaid paid from the probate estate, which includes a house in the decedent's sole name. A house transferred to an irrevocable trust more than five years before the nursing home application is outside both the look-back and estate recovery. A house left in a revocable trust or passed by will is not protected.

What happens to my parent's income in a nursing home on Medicaid?

The resident keeps $50 per month as a personal needs allowance and the cost of any health insurance premiums. If there is a community spouse with income below $3,948 per month, the resident's income is first used to bring the spouse up to that level. Whatever remains is paid to the facility as the resident's share, and Medicaid pays the balance of the Medicaid rate.

About this page and its sources

This page was prepared by the Law Offices of Albert Goodwin. Albert Goodwin is an attorney admitted to practice in New York. The firm has practised estate, probate and elder law from its office in Midtown Manhattan since 2008 and handles Medicaid planning, powers of attorney, health care proxies, Article 81 guardianships and elder financial abuse matters throughout New York City, Long Island and Westchester. More about the attorney is at about Albert Goodwin.

Dollar figures reflect the 2025 Medicaid levels published by the New York State Department of Health in its annual General Information System messages, the 2025 Medicare skilled nursing coinsurance published by CMS, and the regional nursing home rates published by the Department of Health. Statutory references are to New York Social Services Law §§366 and 369, Mental Hygiene Law Article 81, General Obligations Law §§5-1501 through 5-1514, Public Health Law Article 29-C, and EPTL 3-1.1 and 3-2.1. Last reviewed in 2025. These figures change every January and the community Medicaid look-back may be implemented without much notice; confirm current figures before relying on them. This page is general information, not legal advice for a specific person.

Speak with a New York elder law attorney

If one of the ten situations above describes your family, call us at 212-233-1233 or email [email protected] to arrange a consultation. Bring the documents listed above and we will tell you at the first meeting which options are still open, what each would protect, and what it would cost.