New York Elder Law Attorney Blog

Encouraging an elderly loved one to enter a long-term care facility is a difficult process. Our New York elder law estate planning attorneys understand that handling the financial affairs in preparation for this care is only half the battle. Many mental and emotional challenges remain when deciding whether to move a senior out of their own home and into a long-term care facility. This process is made even more difficult by the stigmas associated with nursing home life. Popular culture spreads the perception of these facilities as prison-like institutions where a senior's freedoms are restrained and their quality of life deteriorates. That need not be the case.

As a Daily Finance article this week explains, dispelling the misperceptions about long-term care facilities begins with understanding the rights retained by residents of these homes. There is often misunderstanding about the degree of power that nursing home staff members have over residents in their care. For example, some area families are mistakenly told that their loved one cannot leave the facility without doctor permission. This is usually inaccurate. As one advocate with the National Senior Citizens Law Center explained, "The person isn't incarcerated and doctors are professionals hired to give advice, not force people to do things against their will."

There are many other freedoms which residents and their relatives maintain when they enter a nursing home. Resident families generally cannot be restricted to specific visiting hours and they must be allowed to participate in planning care. Also, residents maintain the right to chose when they wake up, go to bed, and similar daily freedoms. The National Senior Citizen Law Center provides a comprehensive list of the rights seniors retain whenever they enter a nursing home.

No one gives up basic freedoms when they enter a long-term care facility. However, it is important to remember that overall nursing home quality can vary dramatically. Some facilities have committed the resources to ensure that residents retain as much independence as possible, while others fall far short of that goal. For many area seniors, the quality of the home where they end up living depends on the amount of preparation done ahead of time to account for their long-term care needs. Proper New York elder law estate planning can ensure local residents have the resources they need at the right time to enter a facility that is the best fit for them.

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It is always frightening when a family member is diagnosed with a cognitive disease like Alzheimer's--the most common form of dementia that causes problems with memory, thinking, and behavior. Symptoms develop slowly and worsen over time. The disease usually affects individuals 65 years old or older, but it is not only a concern of the elderly. Over five percent of Alzheimer's patients develop symptoms in their 40's and 50's. Following an Alzheimer's diagnosis, a family will need to take medical, practical, and legal steps to help prepare for complications and aid in the fight against the disease. The progressive nature of Alzheimer's makes it important to deal with its effects as early as possible before an individual's capacity is lost.

A Huffington Post article this weekend discussed the single most important thing that friends and family can do to help loved ones suffering from the cognitive impairment--encourage them to keep doing what they already enjoy. Research has found that the most important way to slow the spread of mental deterioration is to exercise already developed brain skills as much as possible. For example, if someone is bilingual, they should practice and use those language skills each day as a form of brain exercise. No matter what the skills or interests of the individual, it is vital that they keep their mind occupied. A retired engineer should tinker with appliances and a former professor should continue writing down thoughts and research ideas. Interestingly, experts have found that these mental exercises are only helpful when they involve skills that the person already knows and has utilized in their lives. Attempting to learn another language after the onset of dementia has not been shown helpful.

Besides aiding a loved one's fight against the spread of symptoms, following an Alzheimer's diagnosis all area residents should also handle appropriate legal matters by visiting a New York elder law estate planning lawyer. These attorneys can help prepare documents like a Health Care Proxy and Power of Attorney to ensure that important decisions can be made when mental capacity wanes. In addition, a lawyer can share strategies to provide for possible long-term care and protect current assets--often through the use of a Medicaid Asset Protection Trust.

There is no easy way to work through an Alzheimer's diagnosis, but resources are available to help. Many elder law attorneys have years of experience working directly with families to provide legal protection when one develops Alzheimer's. Also, the Alzheimer's Association is an important nationwide organization that works to spread information about the disease and provide support to families after a loved one is diagnosed.

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Financial prudence is the most common reason that area residents visit a New York elder law estate planning attorney. Avoiding probate costs, saving assets from taxes, and protecting property from Medicaid rules can all be accomplished with proper preparation. However, as geriatric care experts around the world explain, these planning steps can also have a dramatic impact on a senior's quality of life.

Last Friday, a day before President Obama's headline grabbing meeting with the Dalai Lama, eastern and western eldercare advocates met to discuss basic principles for maximizing happiness later in life. The Sacramento Bee reported on the gathering. They explained how participants were surprised by the similar approaches of advocates on both sides of the globe. For example, virtually all agreed that too many seniors try to deny the inescapable reality of aging--coming to terms with the process and embracing it is much more rewarding.

The advocates summarized the keys to "the good life" in the golden years: take care of health, maintain mental equilibrium, and have an independent livelihood. One elder care physician explained that the third prong--maintaining an independent livelihood--was best accomplished by preparing for possible health problems as early as possible. He noted, "we need to plan for the long-term care services we're likely to need [that allow care] in the home rather than a nursing home, maintaining one's independence." Long-term care insurance is often the best way to ensure that extra assistance will be available that keeps a senior in their own home.

The meeting was part of the "3 in 4 Need More" tour sponsored by the 3in4 Association. This organization is committed to sharing information about the need for proper care planning beyond regular health insurance. Nearly 75% of all Americans will eventually need more assistance to cover long-term care costs, long-lasting illnesses, and disabilities. Each situation is different, but residents in our area can visit a New York elder law attorney to learn what options are open to them. Long-term insurance is an ideal choice for many. However, even if insurance is out of reach, other possibilities exist to plan for long-term care and maximize independence later in life.

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Hire Your Children For Caretaking Duties

As life expectancies rise and more baby boomers cross the senior citizen threshold, New York elder law issues are growing in importance. The demographic shift is also forcing more adult children than ever to discuss senior care with aging loved ones. As one Mercury News writer mentioned yesterday, this is becoming the 21st century version of "the talk" between parents and their children.

The story notes how timing is important with these discussions--being proactive is far superior to reactive. One man explained how he only truly appreciated the importance of early discussions after waiting too long to help his wife's grandmother. The grandmother was in her mid 80's when she began to suffer health problems. The senior needed extra assistance, but no plan was in place to provide it. On top of that, like most in her situation, she wanted independence and insisted on staying in her own apartment. Eventually the senior was found wandering throughout her housing complex and was asked to leave. Her family was forced to move her to various places in her final years. They admit that the situation was not ideal for the grandmother or themselves, but their options were limited because they were forced to react to each new emergency.

Learning from that experience, the man began talking with his own mother about her about her long-term wishes and desires for late in life care when she showed the first signs of a decline in health. They conducted estate planning and learned about their options. His mother now lives in a quality senior residence that offers various levels of care. He explained, "You can't just walk in off the street and get that. You have to do research, get on waiting lists, plan years ahead. And not everybody can afford just any place they want."

An early discussion about long-term care planning has many benefits. However, advocates explain that these conversations can be difficult for some seniors who struggle with the reversal of roles between parent and child. They advise adult children to remember that they themselves might be in the same position years down the road and to consider how they'd like their own children to approach them on the issue. If appropriate, it may be helpful to have a trusted third party involved like a family friend, pastor, rabbi, or primary care physician. In each situation adult children should have these discussions early, be patient, and avoid any judgmental comments.

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Victoria Pynchon is a former businesswoman and current writer for the Forbes blog "She Negotiates." The online forum is usually filled with information about how employees can improve their salary, benefits, and opportunities by conducting proper negotiations. However, earlier this month the writer explained how she was unexpectedly forced to use her negotiation skills in an arena that she had never before considered--long-term health care planning.

Our New York elder law estate planning attorneys know that many area residents similarly remain unfamiliar with all that is involved with providing care for aging loved ones. Many do not give the matter much thought until an emergency or sudden accident forces them to consider it. For Ms. Pynchon the moment came when she learned that her ex-husband, for whom she still had a health care proxy, had suffered heart failure. Her former spouse had only months to live, and his cardiologist suggested that he be transferred to a skilled nursing facility.

The doctor gave the name of a recommended nursing home and then left Ms. Pynchon to do the rest. The negotiation side of her brain was immediately activated. She explained that preparation is the most powerful but least appreciated negotiation strategy--no matter what the context. Ideally, a long-term care plan would be conducted long before the care is actually needed. However, even if on the nursing home doorstep it is important not to walk into the process blind. Ms. Pynchon decided that she did not want to simply accept the hospital's nursing home recommendation without first understanding what the home was like and what other options were available.

She soon discovered that the recommended home had been cited by federal officials for at least eleven different deficiencies over the past two years. Residents of the home had suffered preventable pressure sores, infections, and other painful complications caused by negligent care. Ms. Pynchon contacted the hospital's social worker and told them that they should not move her ex-husband to a nursing home without her consent. She then conducted focused research on the costs, quality, and benefits at all nearby facilities before deciding upon an appropriate location.

It is important not to underestimate the likelihood that a loved one will need long-term care. Most studies show that there is at least a 75% chance that one member of aging couples will need to enter a nursing home or receive similar care. Preparation is important. Consider contacting a legal professional to explain how long-term care insurance, Medicaid Asset Protection Trusts, and other planning can ensure that your family is ready when the time comes.

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Caring for elderly parents is a challenge for many area families. Our New York elder law estate planning lawyers understand the complex mix of issues faced by seniors who need help with day-to-day activities but want to keep their independence. Adult children often struggle to strike the right balance between helping out and allowing a loved one to maintain their preferred lifestyle.

This morning Time's "Moneyland" blog shared tips for families navigating this time in life. The author is currently helping his mother deal with dementia. He notes that preparation is essential. The problems associated with aging do not come instantaneously; most seniors only gradually need help with certain activities. It is helpful to plan for future aid at the first signs of struggle. Proper preparation includes a variety of things like ensuring wills or trusts are drafted, learning about your parent's financial situation, obtaining lists of important password information, and similar tasks. Handling these estate planning issues while parents are still relatively healthy may save a lot of trouble down the road.

Families with multiple siblings must ensure that specific roles are defined and the workload is shared. It is not uncommon for one adult child to feel like they are doing all the work in caring for a parent. Harmony is most likely to reign when each individual contributes in a way that matches their strengths. One child may be good at doing routine chores around the house while another may be best at handling medical and legal issues. Fewer disputes arise when responsibilities are identified ahead of time.

The author explains that communication is perhaps the most important part of the process. Family dynamics are often turned on their head when siblings must band together to help their parents. This reversal of traditional family roles can be destructive if family members do not work together. Sharing concerns, frustrations, and worries keeps everyone on the same page and prevents the situation from festering.

Caring for aging parents is a challenge. However, resources are available to help with this process and ease some of the fear and uncertainty. A New York elder law attorney can explain relevant legal issues. Mental health professionals, such as geriatric care managers, can reveal long-term effects of certain heath conditions. The National Association of Professional Geriatric Care Managers website may be a helpful starting point for many of these issues. In addition, city, county, and state agencies exist to share information and provide resources to families. It is important not to go it alone.

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Far too many families continue to underestimate the often crushing financial burden of long-term health care. It is highly likely that your elderly loved one will eventually need expensive day-to-day care. The Wall Street Journal has reported that there is a 75% chance that at least one member of a 65-year old couple will need long-term care at some point in their lives. With those odds, long-term care planning is a prudent decision for every family.

A story is today's Daily Finance reiterated the high cost of this late-in-life care and the need to prepare for it. Regular nursing home costs in our area can average anywhere from $8,000-$12,000 a month. The cost for residents diagnosed with dementia-related problems (like Alzheimer's) is even higher. On average Alzheimer's patients will require $400,000 worth of long-term care after their diagnosis--residents who need many years of aid following diagnosis will rack up even higher bills.

The high likelihood of needing care and the startling cost of that assistance make planning for it a virtual necessity. Fortunately, strategies exist to help families prepare for these costs. For example, long-term care insurance is an ideal option for those who are eligible. Timing is important with this insurance as premiums will be far lower for those who purchase while they are relatively young--in their 50's--as opposed to later. The National Clearinghouse for Long-Term Care Information is a helpful resource for residents to begin investigating insurance details.

Medicaid may be a more logical option for some families. This joint state and federal program can cover many senior health care needs, but receiving the benefits is not automatic. As one advocate in the area noted, Medicaid is accessible for seniors "only if you know what it takes to qualify for those benefits." Most families will need to manage their affairs so that they can become eligible to receive benefits. Consulting an elder law estate planning attorney is crucial to discover what Medicaid strategy is best for you.

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The single most important reason to visit a New York elder law attorney is to learn about various Medicaid Strategies to protect assets from nursing home costs. No matter what one's situation in life--whether in excellent health with long-term care decades away, on the nursing home doorstep, or even already in a home--there are planning options available to assist families. In each case the assistance of professional help is essential. Mistakes could lead to Medicaid penalties that put families in difficult financial situations and eliminate any chance of leaving an inheritance.

For example, yesterday Elder Law Answers discussed a New York appellate decision that upheld a Medicaid penalty where a written agreement was missing in an asset transfer between mother and daughter. In that case, a woman was entering a nursing home. She transferred money from a revocable trust and gave it to her daughter for less than fair market value and without a written agreement providing for repayment. Medicaid investigators learned of the transfer and determined that it triggered a penalty period whereby the woman would not be eligible for benefits for nearly fifteen months. Her family will now have to come up with the resources to provide the necessary care during the penalty period.

When properly executed a "gift and loan" strategy can be used to save some of a senior's assets from being consumed by long-term care costs--even when on the nursing home doorstep. This technique involves gifting one half of assets to a loved one and then loaning the other half. The loan would take the form of a promissory note where the family member agrees to repay the loan at a certain monthly amount with modest interest. Medicaid is then applied for following the gift and the loan. The gift will trigger a penalty period based on the size of the gift amount, but the loan is ignored because it must be repaid. The loan repayment can then be used to pay for nursing homes costs during this penalty period. In this way, half of an estate may be saved as an inheritance even when little planning has been conducted prior to entering a long-term care facility.

Continue reading "Expert Advice Crucial To Avoid Medicaid Penalties For Nursing Home Benefits" »

Designating a Health Care Proxy is a vital part of a New York elder law estate plan. Earlier this month The New Old Age, the New York Times blog, discussed efforts by one local family to enact legislation to offer an "enhanced" Health Care Proxy to aid those who are taking care of elder loved ones.

The effort is being spearheaded by a New York nurse who is helping to care for her 91-year old mother. As the woman discovered, without proper legal documentation it is often difficult for concerned family members to act as a health care advocate and decision-maker for their older relatives. For example, the woman got the idea for a change in the law after having trouble dealing with her mother's mail-order pharmacy company. The pharmacy had sent a different color pill than normal, and the daughter wanted to check that the change was intentional. However, the company would not answer even basic questions without the consent of the woman's mother, because laws protecting patient privacy are strict.

The woman's mother suffers from Parkinson's disease, is hard of hearing, and talks slowly. However, she remains mentally sharp and is not legally incapacitated. Family members often have difficulty assisting older adults with financial and health case decisions unless the individual is officially deemed incapacitated. As the nurse leading the lobbying effort explained, "Family members and others should be able to help frail seniors or younger people navigate the health care system without abandoning them to its complexities or taking over as guardians."

The enhanced proxy would allow seniors to designate someone--such as a family member, friend, or doctor--to help with health care decisions at any time. The senior would retain ultimate control and would have the power to revoke at any time.

Continue reading "Elder Care Advocate Lobbying for Enhanced New York Health Care Proxy Law" »