FAST GROWING TREND

Multi-generational housing is one of the quickest growing forms of households in the country. Thanks in large part to the advent of the Great Recession, many families consolidated and reduced their finances, including one of the largest chunks out of their monthly bill cycle, namely housing. Then to add to that larger trend is the aging of the baby boomers with the myriad of medical issues that come with that. There are positive benefits associated with grandparents and grandchildren living in the same household.

The wisdom, patience and love that come from a grandparent is irreplaceable to the children and always a joy to the grandparents. There is added money for repairs, upkeep and any number of projects that homeowners have the joy of attending to. While there may sometimes be more elbows than space or too many cooks in the kitchen, there is a reason why it is a growing trend. In the course of a generation, multi-generational not only halted the decline from the 1940s to the 1980s, but between 1980 and 200 increased it one quarter (12% to 15%) and then from 2009 to 2012 it increased an additional 20 percent (15% to 18%). With approximately 10,000 baby boomers turning 65 every day, the likelihood of the multi-generational housing will decrease is unlikely. Multi-generational housing is generally defined as homes with more than one adult generation living under its roof.

FURTHER INVESTIGATION INTO NEW YORK NURSING HOMES

Nurses are often on the frontline of dealing with issues of elder law, with their often compassionate personal sacrifices, mixed with their almost always professional approach to the care and treatment of their patients in any number of nursing homes across the state.  They deal with some of the most intimate, personal and human experiences up front and personal.  The vast majority of nurses across the state that work in nursing homes and with the elderly (as well as in other fields and venues) are quiet professionals who are content to simply do their job and move one in life.  

New York, however, is one of only a handful of states that has lax licensing regulations and enforcement.  New York’s nursing licensure schema requires nurses to self report any criminal convictions and may take years before it actually disciplines a nurse for egregious conduct.  Currently the New York state Department of Education, Office of Professions sets the rules and regulations for nurses and issues nursing licenses in the state.  This blog explored a well reported ProPublica investigation into nursing home abuse almost three months ago.  Following the extensive investigative journalism piece, the federal government opened its own investigation on several different levels.  

GROWING NEED

More ten million elderly Americans rely exclusively on their Social Security pension as their sole means of support. Approximately 90 percent of senior citizens receive some sort of income from Social Security and approximately half of those relied on Social Security for at least half of their monthly income. It keeps approximately 35 percent of elderly Americans from dipping below the federal poverty line. To say that Social Security is vital to this population is an understatement. Included within that population are a subset of individuals who do not directly receive their income from the Social Security Administration but instead rely on a representative payee to manage their money and pay their bills.

The incidence of Alzheimer’s disease and other related cognitive impairments increases with age and with people living longer, there will naturally be an increase in such conditions and thus a greater need for more Social Security representative payees. The Social Security Administration’s own Inspector General estimated in 2010 that at least one million elderly Americans over the age of 85 need a representative payee but did not have one. Within this group there is concern that there are de facto representative payee who were not formally approved or vetted by the Social Security Administration and could be perpetuating financial abuse of the beneficiary. Of the existing pool of representative payees, approximately three out of four are family members.

STAGGERING FIGURES

The Alzheimer’s Association recently released its 2016 Alzheimer’s facts and figures report earlier this month with a long list of many facts and figures, as the reports name implies. While the Alzheimer’s Association produces and publishes its report yearly, the 2016 report highlights the personal financial impact that the disease has on family caregivers. Most specifically, the report helps to show the amazing costs that are shouldered by American families in caring for patients with not just Alzheimer’s but dementia and those with general cognitive delays. In New York alone there are estimated to be 390,000 Alzheimer patients. The Alzheimer’s Association also estimates that there will be approximately 460,000 patients by 2025, an increase of approximately 20%. Overall, 4.7 million Americans are diagnosed with Alzheimer’s. That number is expected to triple by 2050. The emotional impact is already high, yet there is hope. Dr. Samuel Cohen gave a TED talk in late 2015 outlining breakthroughs that could spell a cure for the disease, which would in turn mean that the above numbers would indeed need to be revised.

As for the caregivers, there are approximately 16 million of you in the country who give your time and energy for your loved ones without any financial recompense. You give 18 billion hours of unpaid care for your parents, grandparents and other family members. National Public Radio (NPR) produced a report on the financial impact to individuals and families on March 30, 2016 which showed that the average caretaker used their own financial resources to help their loved ones with Alzheimer’s. The average cost was around $400 per month ($4,800 per year), although some spent up to $10,000 per year to help their relatives with Alzheimer’s. Oftentimes, the caretaker had to make choices between of certain necessities, for example, between food and medical care. As if the financial hit was not enough, it often necessitated that the caretaker reduce their own working hours to care for their loved ones with Alzheimer’s, thereby reducing their income even further. Many caretakers had to sell their own personal belongings to help make ends meet. Some were even reduced to basic poverty levels.

CERTAIN LIMITATIONS ON SPECIAL NEEDS TRUSTS

Last year a case out of the Western District of Massachusetts Federal District Court dealt with the interplay of a special needs trust and eligibility for certain governmental benefits that the special needs trust was supposed to address. The case of DeCambre v. Brookline Housing Authority dealt with the beneficiary of a valid special needs trust who applied for a section eight housing voucher but was denied because of income that she received from a third party special needs trust, established by a Court. Ms. DeCambre was involved in a catastrophic accident which resulted in a series of settlements, with the proceeds directly deposited into the special needs trust. She received a total of $330,000.

The trust did not earn any income of it’s own, the truste only distributed the income in line with the terms of the trust and charged the normal and typical trustee fees. Ms. DeCambre did not have any control over the distribution of the income or money in the trust. The Court noted that the special needs trust was indeed valid and in conformity with the special needs trust enabling statute, found at 42 U.S.C. § 1396p(d)(4)(A) and (C). Indeed, the Court noted that Ms. DeCambre benefited from this trust insofar as she received Supplemental Security Income of approximately $850 per month and validly received Medicaid. These programs, the Court noted, specifically excluded the income from the a valid special needs trust. Ms. DeCambre applied for a section eight housing voucher through the Department of Housing and Urban Development (HUD) in 2005. The voucher was approved and provided from 2005 through to 2012, when HUD reduced it by approximately $1,000 per month, based on her income from the special needs trust. Ms. DeCambre sued HUD in Federal Court on several statutory grounds, based on HUD’s decision to reduce the amount of her housing voucher.

THOROUGH PLANNING NEEDED IN ADVANCE

This blog has discussed the necessity of proper and thorough planning to ensure a smooth transition into a continuing care retirement community.  This requires, among other things, that a person properly and legally transfer all of their assets, or a substantial portion of their assets that is, to people or entities that would enable them to be eligible for Medicaid.  As many people know, there is a look back period where the state examines all transfers of assets or money over a certain period of time for purposes of Medicaid eligibility purposes.  

If during that time a person transferred any aset for less than full market value or did not transfer the assets to a proper investment vehicle that is otherwise exempt from Medicaid assets, the Medicaid applicant will likely be denied for financial reasons.  In other words Medicaid will claim that the applicant has too many assets or their income is too high to qualify.  Some examples of a Medicaid exempt transfer is the purchase of a graveyard plot, prepayment for funeral services or the purchase of a short term Medicaid annuity.  An interesting case from November, 2015 out of Broome County, entitled Good Shepherd Village at Endwell v. Peter Yezzi shows the many problems that can result when people start their Medicaid planning after admission to a continuing care retirement community.

SPECIAL NEEDS LAWS HELP PROTECT THOSE WHO PROTECT US

For those of us who come from families with many military members, we know the sacrifices and hard work that service members incur for their principles and belief that there are certain obligations in life that precede all else.  Unfortunately, until recently, for a select few of those dedicated service members faced a choice between two equally important obligations, their obligations to their country and their obligations to their family.  More specifically, service members with special needs children who received benefits publicly funded programs such as Medicaid or Supplemental Security Income knew that if something happened to them and their family received monies through the Military Survivor Benefits pension, their children would lose those vital benefits.  

It should be noted that the protections contemplated by the law are even allowed for if a service member retires and collects a pension for retirement but also diverts some of that money for the benefit of their special needs child.  This was a choice that was too high for some service members and helped them decide to not reenlist.  The military spends a tremendous amount of money on training and maintaining our military.  Any lost member is a lost investment to put it in economic terms.  To help combat the lose of these soldiers, sailors and airmen Congress created the Disabled Military Child Protection Act (DMPA).  The DMPA allows a service member to choose a special needs trusts as the beneficiary of any money given through a Military Survivor Benefits pension.  This allows the service member to have peace of mind knowing that if they do pay the ultimate sacrifice, their children and loved ones will not suffer further.

There is a relatively unknown or at least underutilized program in the law that can provide some important tax benefits for those who care for their elderly or special needs relatives.  The Dependent Care Assistance Program (DCAP) is a tax benefit that is often offered by employers for expenses that a person incurs for any number of things for the care of others.  It is a tax credit that can be claimed by the taxpayer for expenses related to the care for qualifying individuals so that the caretaker may work.  The program is similar to a Health savings account insofar as a person can sock away a certain amount of money that can be used on certain delineated services or costs.  

The good thing for New Yorkers is that this tax credit is for both federal government income taxes as well as state taxes.  Not all states have such a tax credit; residents of these states can only utilize the federal credit and still have to pay state taxes on the money earned and diverted into the DCAP account.  Under federal tax law, the tax credit is limited by to the amount that the worker earns.  New York’s tax credit calculated as a percentage of the Federal tax credit.  In addition, there is a $5,250 ceiling per year on the amount that a person can put into the account.  The benefit is allowed for families earning up to $120,000.  If the employee utilizes a DCAP program through their work, the tax credit is reduced by the amount that use through their employer’s program.

The money can be used for practically anything for the elderly or special needs relative, including adult day care, transportation, (reasonable) entertainment costs, as long as they costs are related to your employment.  In other words, if you do not need to incur the costs to be employed, you cannot claim these costs.  Overnight camp or educational costs cannot be incurred, since they are not related to or required to your employment.  Fellow relatives cannot be the service provider.  While an employee can take advantage of an employer based program, most employers do not offer it as an additional benefit; rather most employers who have such a program allow the employee to earn their income tax free.  

FEDERAL DEFINITION OF ELDER ABUSE AND FEDERAL RESPONSE

In these United States it is often that many things are left up to the states for criminal and civil enforcement. While the federal government does have a statute for murder, it is generally only applied to events that occur on federal lands or of federal agents or employees or when the murderer is allegedly motivated by racial animus or something similar. As such, it is not surprising that there is no general federal legal definition of certain acts that are criminal in nature, such as robbery or extortion. On certain matters, which Congress declared of critical importance, the federal government created defitions that it expects states to follow in substantial regards. For example, foster care placement and adoption, is of such critical importance that Congress created a series of laws that defines a host of things, such as abuse and neglect, when foster care is needed, when the state is to move towards adoption and away from working with the parents.

It creates strong incentives for states to adopt these statutes by offering financial backing. In other words, it underwrites a certain program if the state adopts the law that is substantially in line with the federal government model. The same tactic is employed in the fight against elder abuse. Recently three Senators introduced the Elder Protection and Abuse Prevention Act (the Act), which, seeks, in part, to amend the definition of elder abuse found in the Older American’s Act. But this definition was not tied to block grants to states. The first time Congress authorized a block grant to the state for purposes of elder abuse was in 2010 with the Elder Justice Act. More importantly, Congress never appropriated money for the programs that it statutorily authorized and mandated with the Elder Justice Act.

INCREASING IN FREQUENCY

Guardians across the country are beginning to grapple with a larger phenomena of life in these United States: that we are a mobile society. Many times these decisions are made by legally competent adults who have the right to decide where they want to live. When it comes to the decisions of an older population, those decisions are animated by such things as access to good health care, location of relatives and loved ones as well as climate and quality of life. Many of those same elderly citizens who move are only in their current location because they may have recently retired and that is where they worked for several decades. Family and home may be elsewhere. It is very common for people to have family that they are close to strewn out across the country, allowing such people a number of locations and climates to chose from. These same facts and drives also apply to people who are involved in adult guardianships. It is not uncommon for these individuals to move from one jurisdiction to another to obtain specialized treatment. With an aging population, these issues are only increasing in frequency.

One would assume that a Court in one state would honor a judgment of guardianship from another. After all the federal Constitution requires states to grant full faith and credit to the judgments of sister states. Often this is the case, but not always. Different standards apply in different states and questions and concerns may arise when one state’s laws require a guardianship to be vacated when the original state contemplated that it would last for life due to the first state’s different laws and the guardian made plans accordingly. How does that influence the issue of continued care? How does the lack of capacity of the protected party affect the decision of the Court? Moreover, when does one state assert jurisdiction and the other relinquish? Courts cannot enter an Order without jurisdiction. Some nightmare scenarios could play out, as they did in the Alabama case of Sears v. Hampton in 2013, without some basic standards to tell Courts how to measure its decisions.

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