January 2012 Archives

January 31, 2012

Elder Law Associations Announce Support for Older American Act

Advisor One reported his week on a push by a variety of national legal associations to support the "Older Americans Act of 2011." The Older Americans Act (OAA) was first passed over 45 years ago, in 1965, to support seniors nationwide with a range of community planning and social services. The Administration on Aging was established as part of the legislation. Many New York elder law attorneys have joined in the advocacy effort to reauthorize the bill. In fact, just this week the National Academy of Elder Law Attorneys (NAEL) announced their support for the measure. NAEL is a professional association of elder law attorneys that work with the elderly and those with special needs.

Over the years many advocates have come to appreciate the important role that the OAA plays in the lives of vulnerable seniors throughout the country. However, the law was set to expire in 2011. That is why Senator Bernie Sanders from Vermont proposed legislation which would reauthorize the Act. It is difficult t get anything passed through the gridlocked Congress these days. However, that has not stopped those supporting these important efforts from trying to get it through the system. Many elder law advocates believe that the reauthorization effort is actually gaining steam.

A separate bill--the Older American Act Amendments of 2012--would make a few important changes to the original measure. For one thing, it calls for a revision of the 'Experimental Price Index for the Elderly." This initiative would change the index so that it more accurately reflects the costs which impact seniors at this stage in their lives. Other changes include altering the definition of "economic security" as it applies to determinations for housing, transportation, and long-term care assistance. A Meals on Wheels program would also be established along with a senior center community planning grant program.

The President of NAELA recently issued a ringing endorsement of these measures. He explained, "Programs supported by the OAA help seniors live independently in their homes, while preventing taxpayers from having to pay for more expensive nursing homes, hospitals, and other health care services. [...] It's a win for everyone."

Besides NAELA, the bill is also supported by the American Bar Association (ABA). The ABA adopted a policy a year and a half ago noting their support for the reauthorization of the Older Americans Act. In issuing that policy the ABA explained that elder justice needed to be a concern of all Americans. It was noted that the delivery of legal services to the elderly community remains too low, and all measures which would enhance that availability should be promoted.

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New York Long-Term Care Near the Most Expensive in the Country

January 27, 2012

The Many Challenges of "The Long Goodbye"

Earlier this year a featured article in Atlanta Magazine offered a uniquely detailed and accurate portrait of what it is really like to help an ailing parent or loved one as their heath deteriorates. Entitled, "The Long Goodbye," the article shares the author's own story of heartbreak, worry, stress, financial loss, and confusion while caring for his ailing father. Each New York elder law attorney at our firm understands that it is often helpful to hear real, individual stories about the aging and caregiving process. Discussing numbers--assets saved, taxes avoided--is necessary, but at the end of the day this process is very much about emotions and family values.

The author explains that he thought his father was going to die in 2001. The elderly man had fallen while trying to get the mail, hitting his head hard on the ground and temporarily losing consciousness. The man then skinned his knees as he crawled back up his driveway to the front door of his house. It was that incident that prompted his family to take him to the hospital where he was diagnosed with a deteriorating spine. Not only that, but doctors also found prostate cancer. A risky operation was undertaken, and the family was warned that the man was likely in his final days.

However, he was not actually in his final days.

Similar to the experiences of many local community members, the elderly man persisted. For the next eleven years he was shuttled from care facilities, hospices, and other locations as those involved struggled to find the best fit for him. Our New York elder law attorneys have worked with many clients who have similarly been confused as to what long-term care options are best for their loved one.

The eleven years of care took its toll on the family finances. The author explained, "Daddy's long goodbye has drained his retirement income and life savings of more than $300,000. Where's the money gone? Assisted living, mostly. Of course, that amount doesn't account for his medical bills, most of which have been paid by Medicare and insurance policies that were part of his retirement."

The author admits that he and his sister were completely unprepared to deal with their father's deterioration. They were not familiar with long-term planning options, had not spoken with an elder law attorney, and did not know where to begin to get him the care he needed. The author warned others that while it may not be comfortable to talk about, the benefits of figuring some of these details out ahead of time is absolutely essential.

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New York Ranks Poorly on AARP Long-Term Care Scorecard

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January 25, 2012

New York Medicaid Program Drug Prescriptions Under U.S. Senate Microscope

The vast majority of residents receiving long-term care in nursing homes in our area participate in the New York Medicaid program. The program is a crucial state-federal effort that ensures seniors and the disabled have the access to life-saving, day-to-day care that they need. Recently, several influential federal officials have begun asking questions about one crucial aspect of the program: drug prescriptions. Essentially, the officials are focusing attention on the potentially excessive practices of some doctors in the program. The officials want to know if the alarmingly large amounts of drug prescriptions by some medical professionals are necessary (and safe) for the consumers who receive them.

Financial concerns are obviously involved in this particular investigation, but our New York Medicaid attorneys understand that this oversight can also be an important way to ensure that quality of care standards are met at these homes. For example, as discussed in a Pro Publica story published yesterday, many states, including New York, are being pressured to crack down on doctors who prescribe massive amounts of potentially dangerous drugs to seniors. The effort is being led by Senator Chuck Grassley who sent letters to three dozen states asking about efforts underway to investigate physicians who prescribed antipsychotic drugs and anti-anxiety painkillers with seemingly reckless abandon.

In the elder law context, these drugs have very real consequences for seniors. Nursing homes have long been known to provide antipsychotic medicine to residents for "off label" purposes in an effort to make the residents easier to control. However, recent studies have found that not only does this practice deprive seniors of the ability to be fully engaged in the world around them, but overmedication can be downright dangerous. There is actually a black box warning on antipsychotic medications explaining that use by a patient with dementia can lead to an increased risk of death. Yet, dementia patients still receive this medication in nursing homes across our area each day.

Now the Senator is hoping to crack down on the doctors who overprescribe these drugs. Unfortunately, a lot of work still needs to be done in this regard as most doctors face few punishments for prescribing large amounts of medications, even when they are unable to show that the prescription rates were necessary. Some doctors issued tens of thousands of prescriptions each year. For example, one physician wrote nearly 19,000 prescriptions for the antipsychotic drug Seroquel last year alone, totaling almost nine an hour for every hour of every workday.

In one bit of positive news, over the past few years New York was actually praised for cutting down on some of the most abusive practices. A few of the highest-prescribing physicians in our state who could not explain their actions have been kicked out of the Medicaid program--saving taxpayer dollars while keeping seniors safer.

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January 24, 2012

Another Study Emphasizes the High Costs of Long-Term Care


Yet another company, Northwestern Mutual, has recently issued a "Cost of Long-Term Care" study. Of course, the results indicate that the actual cost depends on a range of factors including what part of the country one lives, whether an at-home aide is hired, or whether one moves into a skilled nursing facility. As any New York elder law attorney can attest, our area is always at the very top of the list when it comes to long-term care costs. It is for that reason that it is particularly incumbent upon area resident to meet with an elder law attorney to plan ahead before the costs actually need to be paid. It is simply impossible for most families to bear the financial burden of this care on their own.

This latest research effort from Northwestern Mutual involved surveys from 6,000 different sources, including a mix of assisted living facilities, home health care organizations, and nursing homes. The researchers found that the hourly rate for home healthcare workers was anywhere from $33 per hour to $15 per hour. New York assistance was near the highest of the group.

Assisted living facilities had rates anywhere from $1,500 a month to just shy of $7,000 per month. As with home health care workers, our area has particularly expensive assisted living facility prices. In addition, it is often difficult to even get into one of these facilities, as many of the best have long waiting lists of folks hoping to get a spot when there is an opening.

Nursing home care is particularly expensive, both in New York and throughout the country. The average cost throughout the country is around $90,000 a year. However, rates in our area can rise to more than double that amount, usually over $10,000 a month. It is important to note that these costs do not even include related expenses like use of medical equipment, transportation, and medicine.

The research project also determined that right now there is a 66% chance that a senior over the age of 65 will eventually need long-term care. Similar surveys have identified that rate as even higher. Overall, that means that for most residents the question is not a matter of if they will need this care but when. With odds like those it is simply common sense to take the time to plan for the care ahead of time. Local residents who conduct even basic New York elder care planning can save hundreds of thousands of dollars in assets that otherwise would vanish had the preparations not be taken.

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January 20, 2012

Elder Caregivers Found To Have Higher Levels of Stress & Health Issues

The focus of most New York elder care planning discussions naturally revolves around the needs of seniors. Are they receiving proper nutrition? Do their caregivers timely attend to their dressing, bathing, and washroom needs? Do they remain connected to the community with opportunities to use their unique skills and abilities? Our New York elder law attorneys know that for far too many seniors, even these basic needs remain unmet. The problem of elder neglect and abuse is troubling, and it will likely become more of a concern in the coming years as the population ages and the total number of seniors in need of extra help skyrockets.

However, a holistic approach to senior care requires not just consideration of the senior's needs but also understanding of the effects on senior caregivers. A CNN Living article this week examined the way that helping an elder resident impacts adult family members. The story of one woman was shared who took her 72-year old father out of a nursing home out of concerns for his well-being. Instead she moved him into her on own two bedroom apartment. The woman admits that she put her life on hold, because the obligations of working full-time while helping her father was overwhelming. She was often required to miss work to take him to a wide range of appointments with medical professionals. In addition, she used her lunch breaks to ensure he took his medications and made it to his dialysis appointments. She confesses, "It was like 'oh my, what did I get myself into?' Sometimes I would just go into the bathroom and cry."

Her situation is not unique as a new "Stress in America" survey from the American Psychological Association found that at least 55% of senior caregivers feel overwhelmed by the task. Not only did the caregivers report higher levels of personal stress, but they were also found to be in poorer health themselves. Caregivers were more likely to engage in unhealthy behaviors in an attempt to alleviate the stress.

As any elder law attorney or others involved is long-term care planning can attest, the quality of care received by a senior is directly dependent on the work and well being of their caregivers. If caregivers are stressed or unhealthy, there will likely be repercussions for the elder. That is why psychological experts suggest that families be realistic when conducting long-term care planning or deciding what to do when a senior is in need. The psychologist leading the latest stress report explained, "It's impossible to be all things to everyone, so what we have to do is have honest straight talk with ourselves about how much we can handle and when we seek help from others."

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January 18, 2012

Elder Law Issues with Second Marriages

Our New York elder law estate planning lawyers understand that handling long-term planning issues can be particularly delicate when there are second marriages involved. However, it is in these situations, with blended families, when this sort of planning is absolutely critical. Many adult children have natural concern when their parent remarries. Obviously there are inheritance planning issues, and it is vital that seniors who remarry make their wishes very clear about who they'd like to receive what. Failure to do so opens the door to strong disagreement and infighting between those involved. The family glue can come undone even among blood relatives, and there are often even less ties keeping fights in check when blended families are involved.

Beyond inheritance issues, local families should also take note of the New York elder law concerns which are implicated by second marriages and blended families. Decisions about naming a Health Care Proxy and Power of Attorney in the event of disability can present some disagreement when seniors remarry.

An article this weekend in the Laurel Leader-Call referred to another issue regarding the long-term care planning problem in the context of second marriages. The story discussed two seniors who met at an assisted living facility, fell in love, and married. Eventually one of the partners began a physical and mental decline and needed to be moved to a nursing home. The couple did not realize that Medicaid could have been applied for to help support those nursing home costs. If the partner whose health deteriorated passes away, their life savings may be entirely exhausted in providing for the long-term care. As a result, the surviving spouse is often left in dire straits when his or her own health deteriorates and they have a need for skilled nursing care. What often happens is that adult children are forced to scramble in crisis mode to figure out how to pay for the care the elder needs. A range of issues are present when those adult children are step-children who may not have as close a connection with the senior.

Blended families and second marriages raise a variety of concerns that should be accounted for by prudent families. Both estate planning and elder law issues are raised. The issues are often complex, and so professional help is always advisable. It is particularly important to ensure that the professional which is sought out has experience in both areas: elder law and estate planning. Failure to account for disability and long-term care issues may make inheritance and tax planning ineffective (and vice versa). All parts of the planning must work together to ensure that they are effective at the moment when they are needed.

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January 13, 2012

New Book on Elder Law Through the Ages: "Someday All of This Will Be Yours"

Laws change. Elder law and estate planning strategies change. But the basic principles surrounding inheritance planning, disability planning, and preparing for one's golden years have been around for centuries. In a soon to be released book from Harvard University Press entitled Someday All of This Will be Yours: A History of Inheritance and Old Age, author Dick Hartog takes a look at some of those timeless principles that have involved elder law and estate planning over the years.

A recent book review summarized the text by noting that Hartog (a legal historian) examines how "ordinary men and woman arranged for their own care as they aged, and then how their alleged caretakers attempted to use the law to make good on these arrangements." Of course our New York elder law attorneys are immediately drawn to these sorts of topics as helping local families make these arrangements is a large part of our practice today. The new Hartog book looks at dozens of elder law cases over the years and "closely, carefully, and painstakingly examines these cases for what they show about changing patterns in care for the elderly, parent-child relations, [and] the tensions between family and commodification." The book discusses how these issues have changed or not changed over the years.

While the principles have likely remained unchanged the strategies to carry out wishes has undoubtedly shifted in recent decades. For example, Hartog discusses how in many circumstances elderly parents convinced children to provide the caretaking they needed with promises (sometimes legally enforceable, sometimes not) that family assets would be passed to them so long as the care was satisfactory. He explains that the core inducement of providing such care was the understanding that a family farm, home, bank account, or other asset would be passed to the child in exchange for the child providing the help that the elder needed with tasks like cooking, cleaning, nursing, or even just companionship. Hartog also discusses how elder law attorneys have gotten involved over the years to help seniors, particularly when those previous promises are not fulfilled.

As the book review author noted, elder law is an area that is finally coming into its own. While our New York elder law attorneys have been working on these issues for years, we appreciate that that it is still difficult for many families to find professionals with specific experience in the wide range of issues related to planning for seniors. Fortunately, most law schools now have at least one elder law course. Hopefully awareness of these issues will continue to grow so that more families take the time to plan in ways that take full advantage of the current available legal tools.

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January 11, 2012

Paying for Skilled Nursing Care: Medicare & Medicaid

Confusion often reigns when one learns that a family member will likely need long-term skilled care. Finances are always an issue. With the average stay in a local nursing home running $11,000 per month, our New York elder law attorneys are acutely familiar with the financial challenges facing local families at these times. Few can afford to pay those costs out of pocket. Without long-term care insurance (expensive in its own right), most families instead turn to Medicare and Medicaid for support.

Many seniors on Medicare get understandably confused when trying to determine what long-term care is provided by the program. The short answer is: very little. The Centers for Medicare and Medicaid Services have produced a handbook entitled Medicare Coverage of Skilled Nursing Facility Care which is a good starting point for those hoping to learn more. In general, the takeaway is that Medicare will only pay for certain skilled nursing stays and never for those staying longer than 100 days. The first 20 days of qualifying care are covered completely, while anything more (up to 100 days) often requires some sort of copayment. To even qualify for that care a resident must have a qualifying hospital stay, need the care immediately after the hospital stay, and meet a few other requirements.

Conversely, Medicaid is the joint state and federal program that provides the most support for extended nursing home stays. That is why on the elder law side of our practice our New York Medicaid attorneys work closely with local seniors to help them apply for the program and save their assets from being consumed in the qualification process. Unlike Medicare, Medicaid is an income-based program, meaning that local seniors will have to show specific financial need before receiving the help. The application process which takes all of this into account has complex asset and transfer rules. Because it is a joint state and federal program, the qualification process is different in each state.

There are actually two forms of Medicaid: Community and Chronic Care. As the name implies, Community Medicaid is much different in that it provides certain resources for individuals who wish to remain at home in their community. When that is no longer an option and close nursing home care is needed, then Chronic Care Medicaid comes into play. It is this form of Medicaid that has a "five year look back" period for assets and transfers. That means that if assets--a home, stocks, savings accounts--were handed over to another within that period, the value of those transfers may take the form of a penalty period where Medicaid services will not be provided. However, there are various strategies that can be employed to protect against the loss of all of one's assets while qualifying for Medicaid. This is true even if one is on the nursing home doorstep. Professionals in the area will be able to explain those strategies and decide on the right course in your case.

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January 9, 2012

New York Elder Law Attorney Explains "Common Sense" of Protecting Assets from Elder Care

Yesterday our New York elder law attorney Bonnie Kraham Esq., had another article published in the Times Herald-Record. In the piece Attorney Kraham explains how it is common sense for middle class families to work to protect their assets from long-term care costs. The basic idea behind asset protection for seniors is simple: take advantage of legal tools so that assets can be passed down to children instead of lost to pay for long-term care. The wealthiest families have been using these strategies for decades, but more and more middle class families are coming to appreciate the benefits of protecting assets that have often taken a lifetime to accumulate.

As Attorney Kraham explains in the story, long-term care costs are high everywhere, but they are particularly significant in New York--roughly averaging about $11,000 per month. At the end of the day there are only three ways to pay for those costs: (1) out of one's own assets; (2) via expensive long-term care insurance; (3) through Medicaid. Few community members can afford long-term care insurance and most only have personal assets to pay for these costs for a limited time. That is why our New York elder law attorneys work with families by using available tools under the law to protect assets in these situations. The goal is to help families receive Medicaid assistance without losing their personal assets in the process.

To accomplish this goal Medicaid Asset Protection Trusts (MAPTs) are often created. Assets are then moved into the trust. Those assets can be protected from being taken to pay for long-term care costs. Government officials specifically designed the system to allow for such planning. For example, there is a five year "look back period" during which the government will evaluate to see if certain asset transfers were made. Those transfers will trigger a penalty period whereby Medicaid payments will be withheld. However, if planning is done beyond that five year window, then all assets can be protected without any such penalty.

A few have questioned the morality of asset protection. It is important to keep these New York elder law asset protection strategies in context. Asset protection measures have been used in various capacities for centuries. Estate taxes are routinely guarded against, and corporations shield personal assets from private ones. It is not be surprising or unfair for middle-class families to use the same strategies to pass on the fruit of their labor to the next generation.

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January 5, 2012

Happiest Nursing Home Staff Members Work at Nonprofit Facilities

Making the decision to place a loved one in a nursing home is no routine matter. Emotions run deep during this time, when families struggle to balance the senior's need for close care and safety with their concerns about the quality of life available in these assisted-living facilities. Our New York elder law estate planning attorneys have helped many families with this process. We appreciate that there are usually two big questions that come up: (1) What is the best facility for our loved one? and (2) How are we going to pay for it?

In answering the latter question, New York elder law attorneys will explain that the costs can either be paid out of pocket, via use of private long-term care insurance, or through the New York Medicaid system. The former question is a bit more challenging, because so much subjectivity is involved. The answer for each family is different. The exact type of care needed, proximity to loved ones, and similar details need to be considered when choosing which nursing home is best. Of course, as a general matter, every family will want to ensure that the nursing home they chose is one free of chronic neglect, mistreatment, and abuse. Many elder care advocates have explained that when it comes to safety measures, study after study has found that nonprofit nursing homes outperform for-profit facilities. One long-term care doctor explained, "Most studies show that nonprofits do a better job of caring for patients, but we're not sure why that happens." This is an important consideration for families deciding where to send their loved one.

A post this week in the New Old Age blog from the New York Times recently discussed another interesting comparison between for-profit and nonprofit homes: the employees are happiest at nonprofit nursing homes. This may be part of the reason why care at these facilities is superior. At the end of the day, the quality of life for those in these facilities is dependent on the work performed by the hands-on caregivers. Therefore, how those caregivers perceive their job is likely to play a key role in their day-to-day actions. The nonprofit employees were happier overall for a variety of reasons: their ability to help set policy, more supportive managers, and availability of adequate resources.

One corollary is that staff turnover at nonprofit homes is much lower than at for-profit facilities. It is not hard to see how consistency in the workforce helps breed experience and better overall care. Long serving nurses and nurse's assistants can gain familiarity with each resident and are better able to understand their quirks, notice problems, and respond quickly to their needs.

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January 3, 2012

Advocates Call for More GLBT Friendly Senior Housing Options

Many writers have taken to calling the upcoming wave of baby boomer retirements as the "silver tsunami." Like real tsunamis, the demographic shift is expected to have many ripple effects in communities across the country. Each New York elder law attorney at our firm has seen first-hand the challenges faced by many in our area when trying to figure out where they will receive long-term senior care and how they will pay for it. These issues are common to all local families who have loved ones about to leave the work force to enjoy time in their golden years.

However, some senior community members have even more unique concerns.

The Associated Press published an interesting article this week discussing the struggles of senior GLBT community members. Public opinion data consistently shows that the younger generation is much more open and supportive of their gay, lesbian, bisexual, and transgendered community members. Older Americans are less approving. That is leading many gay seniors to wonder how they might be treated if they end up in a traditional nursing home or long-term care facility. One expert summarized that many of these "seniors fear discrimination, disrespect or worse by health care workers and residents of elder housing facilities, ultimately leading many back into the closet after years of being open." In addition, GLBT seniors are much less likely to have biological family members to help them through this time of their life. Estrangement and childlessness are more common for gay seniors, making them more dependent on outside services.

These concerns affect a sizeable minority of local residents. Of the 77 million baby boomers expected to retire this year alone, more than 1.5 million are gay, according to the New York group Services and Advocacy for GLBT Elders (SAGE). These concerns have led many to call for an increase in gay-friendly senior housing options. Our New York elder law estate planning attorneys recognize the unique needs of this community, having long helped GLBT residents with their inheritance planning, tax considerations, and New York elder care planning.

Fortunately, some developers are taking the opportunity to fill the need for senior care options for the community. A new 52-unit GLBT-friendly affordable housing unit is breaking ground in Philadelphia this year. The $17 million building is set to open in 2013. A similar project is also in the works for New York City, though the project still has many hoops to jump through. The only finished facility of this sort is in Los Angeles. That 104 unit facility is already filled, with a 200 person waiting list. Private retirement facilities for gay seniors already exist, but these options are often financially out-of-reach for many residents. The lower cost options will hopefully fill the void and provide vital services for this community.

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