I remember a story I heard during law school, about a local judge who was running for reelection.  He was asked whether he would continue to appoint his friends as guardians on estates.  He replied, “Of course I will appoint my friends, you don’t expect me to appoint my enemies.”   He went on to explain that he picks his friends because he knows that they are of good character and that they will do a good job. 

Thinking about the issue of control, who do you want in charge of your property, your trusted friends and relatives or the friends of some judge that you never met?

If you don’t make a will, trust or use some other legal method to transfer your property when you die, New York State Law will direct what happens to your property. The first people entitled to inherit are your spouse and children. If you have no spouse or children, it will go to your other closest relatives, but only after a lengthy process entailing the appointment of an Administrator for your estate. If no relatives can be found to inherit your property, it may go to the state.

In addition, if you have young children and die without a will, a court will have to determine who will care for your young children and their property if the other parent is unavailable or unfit to do so.  Obviously you want your wishes to be respected on such an important decision.  Also, if you have a child or other relative who is disabled, you may need a Supplemental Needs Trust to protect the assets you want to leave for their benefit.

With regard to your house and other property, the form of ownership may determine how your property is distributed after your death.  For this and other reasons, you need to speak to an experienced attorney to explain your options and, after a thorough consultation, prepare an estate planning strategy best suited to you and your family’s specific needs.
For many clients your Last Will and Testament is prepared as part of a package of documents, including a Health Care Proxy, a Living Will and a Durable General Power of Attorney.

Please call me today at the law office of Michael Swaaley so I can put my experience to work for you on your estate planning needs.

Retirement Earnings Test Exempt Amounts:

2008

2009

Under full retirement age
NOTE: One dollar in benefits will be withheld for every $2 in earnings above the limit.

$13,560/yr.
($1,130/mo.)

$14,160/yr.
! ($1,180/mo.)

The year an individual reaches full retirement age
NOTE: Applies only to earnings for months prior to attaining full retirement age. One dollar in benefits will be withheld for every $3 in earnings above the limit.

$36,120/yr.
($3,010/mo.)

$37,680/yr.
($3,140/mo.)

There is no limit on earnings beginning the month an individual attains full retirement age. !

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!

Social Security

• In 2005, 159.1 million workers had earnings taxable under the Social Security program. About 141.9 million had only wages, 9.6 million had only self-employment income, and 6.8 million had both.
• Social Security taxable earnings totaled $4.768 trillion, which includes earnings up to the taxable maximum of $90,000.
• Social Security taxes totaled about $591 billion.

Medicare

• In 2005, 162.9 million! workers had earnings taxable under the Medicare program. About 145.6 million had only wages, 9.5 million had only self-employment income, and 7.8 million had both.
• Medicare taxable earnings totaled $5.886 trillion.
• Medicare taxes totaled about $171 billion.

Social Security has also issued the “SSI Annual Statistical Report, 2007.” The highlights:

Size and Scope of the Supplemental Security Income Program

• About 7.4 million people received federally administered payments in December 2007.
• The average monthly payment in December 2007 was $468.
• Total payments for the year were more than $41 billion, including about $4 billion in federally administered state supplementation.

Profile of Recipients

• The majority were female (56 percent).
• Fifteen percent were under! age 18, 57 percent were aged 18 to 64, and 27 percent were aged 65 o r older.
• Most (83 percent) were eligible on the basis of a disability.
• Almost 5 out of 10 recipients under the age of 65 were diagnosed with a mentaldisorder.
• More than half (56 percent) had no income other than their SSI payment.
• Thirty-five percent of SSI recipients also received Social Security benefits.
• Of the people receiving SSI benefits, about 2 percent were residing in a Title XIX institution where Medicaid was paying more than half of the cost.
• Despite their disabilities, about 357,000 recipients (5.7 percent) were working in December 2007.

 A claimant seeking disability benefits is considered disabled if he or she is incapable of engaging in any substantial gainful activity (paid work) due to a physical or mental impairment that has lasted, or can be expected to last for a period of not less than twelve (12) months. 42 U.S.C., Sec. 423 (d)(1)(A). To qualify for disability benefits under the Social Security Act, the claimant must be unable to perform his or her previous work, or any other kind of substantial work. Dousewicz v. Harris, 646 F.2d 771, 772 (2d Cir.1981). The burden of proving disability is on the plaintiff. 42 U.S.C., Sec. 423(d)(5); See, e.g., Aubuef v. Schweiker, 649 F.2d 107, 111 (2d Cir.1981). However, once the plaintiff has shown that his or her impairment(s) prevents his or her return to his or her prior employment, the plaintiff has established a prima facie case, and the burden shifts to the Commissioner. Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984). The Commissioner must then produce evidence to show the existence of alternate substantial gainful work which exists in the national economy, and which the plaintiff could perform, considering not only his or her physical capability, but his or her age, education, experience, and training as well. Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980); See also, Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir.1983).

The Commissioner, in evaluating disability claims, utilizes a five step sequence set forth  in 20 C.F.R. Sec 404.1520. The Act provides that the Commissioner’s findings as to any fact, if supported by substantial evidence, shall be conclusive. 42 U.S.C. Sect. 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Donato v. Commissioner of Health and Human Services, 721 F.2d 414, 418 (2d Cir.1983).

“In reviewing a final decision of the Commissioner, a district court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir.2004). The former determination requires the Court to ask, inter alia, whether “the claimant has had a full hearing under the [Commissioner's] regulations and in accordance with the beneficent purposes of the Act.” Echevarria v. Secretary of Health & Human Servs., 685 F.2d 751, 755 (2d Cir.1982) (citation and internal quotation marks omitted). The latter determination requires the Court to ask whether the decision is supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Curry v. Apfel, 209 F.3d 117, 122 (2d Cir.2000) (quoting Richardson v. Perales, 402 U.S. 389 (1971)).

An Administrative Law Judge  must evaluate a disability claim in accordance with a  well established, five-step process:

1.     At the first step, the agency will find non-disability unless the claimant shows that he is not working at a “substantial gainful activity”; 
         
2.    At step two, the Social  Security Administration (SSA)  will find non-disability unless the claimant shows that he has a “severe impairment,” defined as “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities”;
       
3.     At step three, the agency determines whether the impairment which enabled the claimant to qualify for benefits under step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies;

 4. If the claimant’s impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled;  and
        
  5. If the claimant does not qualify at the fourth stage, the fifth, and final, step requires the SSA to consider so-called “vocational factors” (the claimant’s age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy.

 In addition to the disability requirements, a claimant also has to meet earnings requirements to qualify for Social Security Disability.  Generally, to qualify an adult worker has to have worked at least ten years in their lifetime and for at least five of the past ten years prior to becoming disabled.  There are special earnings rules for younger claimants.

 Further information, including the list of impairments, can be found at the Social Security Administration’s website at ssa.gov.