The Donna Drake Show Welcomes NY Elder Law Attorney Vivian Garrastegui!

Serving Families Throughout Melville

With us now is Vivian, and she is an Esquire. And I'm so happy to have her here. We're going to be talking in particular about how to prepare for our elderly population.

Welcome to the show. How are you?

I'm doing well. Thank you. How are you?

Good. We have an audience, Vivian, that's from 35 to 65-plus. And when I found out about what you specialized in, I definitely wanted to celebrate you and tell you first of all, thank you. A lot of people are, they kind of think like, oh, you know what, my children are gonna automatically inherit something or I don't have much money anyway. So what difference does it make? Or they don't have a will, especially in New York and across the United States. That's problematic?

Yes. Yes, it is.

Because the assets go where? If you don't leave a last will and testament, where do your assets go?

Then they go in accordance with the New York State statute. So there can be incidences, which we've had in the office, where there is a husband or a wife; they have the home in their name alone; they die without a will; and now that home is going to be distributed to the spouse and possibly two children of the first marriage or the second marriage. And maybe that was not your intent. So you would need the will in order to note that you want the home distributed to that current spouse.

Now you're on the board of the Hispanic bar.



Thank you.

What made you decide to go into law? What was your ‘why’ in life Vivian?

I actually have always dealt with the elderly. I've dealt with the elderly in college, trying to get our elderly into taking auditing courses within the college. And in law school, I dealt with the Elder Law Committee.

A lot of times, people are living longer.


And so that then starts a whole new conversation between the sandwich generation. Sometimes there are multi-generational families living together. My mom lived with her grandmother, you know. My grandma, Halina, lived with, you know, my mom since she was a little girl. And, you know, then there's the whole thing about Medicare and Medicaid and all of that type of thing. When someone realizes they need help, are you the first person that they can call? Can you consult with somebody? If they just don't know?

Yes, we can. Um, that's exactly what we handle—is dealing with the Medicaid program. So it is a federal program, it's implemented differently in every state. We advise clients how to transfer their assets to qualify for Medicaid; how to protect the home, which is usually everyone's largest investment, especially on Long Island. You can also transfer assets to a spouse, to a disabled child — there are several exceptions under the law that people are not aware of. And with that, we prepare trust to try and protect the assets.

If someone decides that they just want to do their own will, can they take it to a local bank, and just, “These are my thoughts, and this is what I want,” and get it notarized? Or does it have to be actually, like, deposited somewhere?

It doesn't have to be deposited. But a will has to be executed before two witnesses.


Not a notary.


And that's actually what happens—individuals feel that I'll take my will and I'll have it notarized and present this will to an attorney, and the attorney cannot probate that will.


Which is what we have to do through the Surrogate's Court. They cannot do that, because it was never signed before two witnesses.


So it needs to be signed before two witnesses; there's a way to process it and the way to do it.


People are also afraid of cost. And not like, I'm asking you to give me your rate card by any means. But can we help put somebody at ease a little bit, you know, because they could pay for the items that they need? It doesn't have to be like $12,000; it could be very cost effective to get the right pieces in place.

Yes! What clients would need would be a will, a power of attorney, a health care proxy, and a living will.


So the power of attorney would give an individual the power over your finances, and a health care proxy will give an individual the power to make medical decisions for you if you are unable to make those medical decisions. So those are usually the documents that you would require. And then if you wanted advanced planning for Medicaid, it could be a trust, and we can go from there.

And does Medicaid still require like 25 different things in order for you to qualify for it? Is it based on age or is it based upon your physical status?

So for the Medicaid program that our office handles, it is for home care or nursing home coverage.


So, we deal with the elderly or with the disabled. What I say is that it's a puzzle, okay. And we need all of the pieces of the puzzle. And those pieces would include personal documentation, birth certificate, marriage license or death certificate of a spouse. It would also include bank records, tax returns. So once I have all of those pieces, I can submit my application.

What brings you the greatest joy when you're able to help a family?

Our office also handles guardianships. We deal with guardianships for minor children, and try to protect parents' assets. So they would pass to that child—especially if that child is disabled—to keep that child on government entitlements on Medicaid. And then for what is a supplemental needs trust, so that that child will be able to use the assets that their parents have left them for a computer, a bicycle, for whatever they need. And the government would pay for their medical needs.

I so appreciate what you do.

Thank you.

We met through a mutual friend, and Vivian, thank you so much. We also wanted to celebrate, you know, it is the Latino month.


But this will be airing ongoing and—congratulations. And is there any words of encouragement you would like to give someone else that might want to follow in your footsteps, to grow up to be just like you?

Determination and perseverance. That's it.

Thank you so much. We hope that you found value, I'm sure that you found value—I always do. And I didn't know that about a will. And I'm sure, possibly you didn't know that either. So it can't be just a notary, especially in the state of New York. So check your local laws and your state laws to find out more, and thank you for tuning in.

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