24 BROOKLYN MEDIA GROUP • SEPTEMBER 2 - SEPTEMBER 8, 2016 Many options to treat kidney stones The Elder Law Minute TM How to avoid undue influence in estate planning BY RONALD A. FATOULLAH, ESQ. & EVA SCHWECHTER, ESQ. Most people have heard the term “undue influence” in connection with a will or an estate plan, but what does it mean and how can it be avoided? Undue influence occurs when someone exerts pressure on an individual, causing that individual to act contrary to his wishes and to the benefit of the influencer. The pressure can take the form of deception, harassment, threats or isolation. Often, the influencer separates the individual from his or her loved ones in order to create a sense of dependency, so that the individual begins to see the influencer as being the only one he has, and therefore the only one to whom he should leave his assets upon his death. Elderly individuals, individuals with disabilities, and individuals suffering from a form of dementia can be very susceptible to undue influence. If someone suspects that his loved one was subjected to undue influence that caused the loved one to make drastic changes to his estate plan (most commonly his will), then that individual can contest the will once it has been admitted to probate. The court will consider certain factors when determining whether undue influence was actually present. One factor the courts will consider is whether an individual disposed of his property in a way that was unexpected under the circumstances. For example, if a man was close with his wife and children his whole life, but in his later years left all of his assets to a favorite nurse or caretaker, that would obviously be unexpected, and would raise suspicion with the court. Another consideration that the court will look into is whether the person was in a state in which he was likely to be susceptible to undue influence. Specifically, the court will look at the age, health and/or frailty of the person in question. The court will also place a strong focus on whether there was a “special relationship” with the influencer, and whether the person who allegedly exerted the influence had the opportunity to do so. Generally, the burden of proving undue influence is on the person claiming such influence. However, if the alleged influencer had a fiduciary relationship with your loved one, the burden may be on the influencer to prove that there was no undue influence. People who have a fiduciary relationship can include a child, a spouse or an agent under a power of attorney. The important thing to keep in mind when drawing up a will or an estate plan is to avoid anything that will give even the appearance of undue influence. For example, if an individual is planning on leaving everything to his daughter who is also his primary caregiver, his other children may argue that this daughter took advantage of her position to influence the parent in a time of relative weakness. To avoid the appearance of undue influence, do not involve family members in drafting a will. Family members should also not be present when discussions pertaining to the will are taking place with the attorney. An attorney should request that all family members leave the room before going over the contents of a will with the client, to ensure that the contents of the will are the sole desire of the testator, and not a result of pressure from outside sources. You should also make sure that the attorney keeps a clear record of your wishes, so that if a claim of undue influence is brought after your passing, you can ensure that your estate is distributed according to your wishes. Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts, wills, and real estate. Eva Schwechter is an associate with the firm. The law firm can be reached at 718-261-1700, 516- 466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES. Mr. Fatoullah is also the co-founder of JR Wealth Advisors, LLC. The wealth management firm can be reached at 516-466-3300 or 800-353-3775. Frederick Gulmi, MD, chief of urology at NYU Lutheran, cautions anyone who has never had a bout with kidney stones. "Many of my patients have described a kidney stone as one of the most painful things they have ever experienced, even if their stone is quite small,” he says. "With difficulty urinating and possibly blood in the urine, the excruciating pain caused by kidney stones often prompts a visit to the emergency room." But for kidney stone sufferers in Brooklyn, there are many treatment options at NYU Lutheran. First, Gulmi says, it is critically important to determine the stone’s size, shape and location within the urinary tract, so that physicians can determine the best treatment approach. Although more commonly seen in adults, Gulmi adds that kidney stones in children have been increasing. "Medication and noninvasive efforts to flush out the stone are the first course of action to consider,” Gulmi says. “If this is not successful, or if stones are too large to pass on their own, we offer other minimally invasive approaches that can be very effective.” These include extracorporeal shock wave lithotripsy (ESWL) using high-energy sound waves to crush the stones; ureteroscopy, which involves coursing the thinnest of scopes through the ureter to grab or pulverize the stone using a laser; and percutaneous nephrolithotripsy, a technique using a thin needle to gain access to larger kidney stones. When congenital defects accompany the kidney stones, robot-assisted surgery can be performed to treat the anatomic defect and remove the stone at the same time. "Urologists were among the first group of specialists to welcome the use of robots in the operating room,” Gulmi says. “The three-dimensional view, high magnification, precision and dexterity provided by robots enable surgeons to perform delicate surgery that preserves and minimizes damage to tissues." Some people have the mistaken belief that avoiding calcium-rich food can prevent kidney stones. In fact, according to Gulmi, some types of calcium can bind with other nutrients – and actually prevent or help break up kidney stones. Sometimes confused with gallstones, kidney stones are formed often from an accumulation of calcium or uric acid in the urine, a byproduct of the kidneys' role as the body's filters of waste and extra fluid from the bloodstream. Diet, inadequate fluid intake, extreme sweating from heat or exercise, and weight-loss surgery among many other factors, can cause kidney stones to form. After kidney stone surgery, a metabolic evaluation is recommended, which takes into consideration the type of stone the patient had so that steps can be taken to prevent a recurrence. "Recurring kidney stones can pave the way for chronic kidney disease," says Gulmi. Before coming to NYU Lutheran, Gulmi served as chair and residency program director of the Department of Urology at Brookdale Hospital Medical Center, where he worked for 31 years. Over the course of his distinguished career, he has seen the specialty of urology undergo monumental changes. "The challenge of diagnosing and treating urologic diseases, including kidney stones, cancer of the urinary system, including bladder and prostate cancer, have benefited from advances in clinical research as well as in technological innovations," says Gulmi. "At NYU Lutheran, we have the expertise and technology that can achieve the most optimal urologic surgical outcome for our patients." Gulmi's office locations are NYU Lutheran Medical Arts Pavilion, 8714 Fifth Avenue, and 2060 Utica Avenue. For an appointment at either office, call 718-630-8600. Photo courtesy of NYU Lutheran Dr. Frederick Gulmi.
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