New York Elder Law Attorney Blog

Local seniors continue to face financial exploitation, neglect, and abuse at alarmingly high rates. The perpetrators of these acts range from neighbors and caregivers to personal friends and even close family members. For example, the New York Daily News reported this week on a new lawsuit that has been filed by a ninety-two year old woman against her son. It includes allegations of mistreatment that our New York elder law attorneys know occurs throughout our state with surprising frequency.

According to the complaint filed in the suit, the elderly woman is claiming that her fifty-eight year old son changed the locks on the $1 million East Side apartment that she owns and forbid her from using it. The defendant in the suit first moved into the apartment with his mother while his wife was undergoing cancer treatments in 2006. Unfortunately, the cancer treatments did not have the intended effect and the woman died from cancer complications in 2009. Following his wife's death, the son continued to live in the apartment.

Last year, four years after the son first moved in, the elderly resident faced a series of medical complications herself. As a result she needed to be placed temporarily in a nursing home. The nursing home stay was not permanent but instead meant only to help her receive close care after a hospital stay before being transitioned back into the East Side apartment. According to the lawsuit, while the mother was in the nursing home her son concocted a plan to keep the apartment to himself. The defendant-son had the locks changed, barred her from entry, attempted to get an order of protection against her, and eventually forced her to live with her second son in Maryland.

The lawsuit is seeking to have the son thrown out of the apartment. The mother has been paying taxes and co-op maintenance fees on the apartment throughout this time. Unfortunately, her health continues to be spotty, and she does not have the funds to pay for long-term care. She intends to sell the apartment--valued at between $1-1.6 million--in order to pay for the quality of care that she needs. As her second son explained, "It's her decision as to what she wants to do with it and when. She's capable of making those decisions, and that's what she's trying to do."

This case is a similar to situations that each New York City elder law attorney at our firm sees on a frequent basis. Unfortunately, many seniors are forced to engage in battles with those on whom they are supposed to depend in order to retain the ability to manage their own affairs and ensure their financial well-being late in life. One helpful check on this exploitation is having a good relationship with financial advisors who can ensure that one's assets are respected and not taken advantage of by the unscrupulous.

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Last week the New York Times discussed changes in the nursing home industry that may affect how some local residents conduct elder care planning. In a time when nursing home care is becoming more expensive--and Medicare and Medicaid funding shrinks--many facilities are experimenting with at-home models of care. Our New York elder law attorneys understand that the nursing home is a rarely the location that seniors would prefer to age if they had a choice. Now, however, many health care experts and senior advocates are joining the call and explaining that nursing homes are rarely medically necessary or financially smart.

Instead, more and more resources are being put into advances in home care. Instead of living in an institutional-like facility, the new model essentially uses traveling doctors, social workers and therapists to provide care at the senior's home or adult day-care centers. An at-home senior care program run by CenterLight Health System in New York City now has over 2,500 participating residents. New York State Medicaid program director Jason Helgerson explained that in the past the state "was institutionalizing service for people, many of whom didn't need 24-hour nursing care. If a person can get a service like home health care or Meals on Wheels, they can stay in an apartment and thrive in that environment, and it's a lower cost to taxpayers." It is no surprise then that the state of New York plans to shift upwards of 80,000 Medicaid participants into at-home, managed care models over the next three years.

The Archdiocese of New York--one of the state's largest nursing home providers--recently announced a shift away from nursing home ownership. In the announcement, Cardinal Timothy Dolan explained, "Seniors and others who have chronic health needs should not have to give up their homes and independence just to get the medical care and other attention they need to live safely and comfortably."

Though still early, initial studies suggest that these at-home managed care situations both provide better care and cost less. All those working on New York elder law understand that quality, low-cost care is going to become increasingly prized in the next few decades. The aging of the population will demand a sharp increase in elder care services. It is highly unlikely that the demand can be met by sticking with the brick-and-mortar, old-fashioned nursing home model. In fact, nationwide, over the past six years the total number of nursing homes has actually declined by 350. Right now there are 634 New York nursing homes, a decrease of 15 homes in the last five years.

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As election season continues, local residents are likely to hear discussion of many different issues from all those vying for office. There is a big different between a candidate having a stance on an issue and the law actually being changed to affect community members. However, the discussions and conversations during the election process often set the tone for actual governing down the road. Estate planning issues are often implicated, because taxes are a hot topic every election. Usually there are many elder law issues brought up as well, considering long-term care planning is a common concern that affects millions of residents across the country at any given moment.

However, some observers have noted that there has been a surprising (and disappointing) lack of debate about these senior citizen concerns. A Forbes article this week summarized by noting that elder law issues "are not on the front burner...not on the back burner...not even on the stove" this presidential campaign. As a result, it is difficult to understand where the candidates stand on the issues. A survey was sent to all of the current Republican candidates and to President Obama by fifteen national advocacy groups. Only Newt Gingrich and the President even bothered to respond to the survey questions regarding long-term care. Even then, the responses were very brief, shedding little light on how New York elder law or senior care planning might be changed depending on the outcome of the election.

Former House Speaker Gingrich has been the only candidate offering any specifics about what he'd like to do with issues affecting long-term care. In responding to the survey from the advocacy groups he called for improving senior care by repealing the President's Affordable Care Act and replacing Medicaid with a federal block grant. He also believes that residents should be able to use certain tax breaks to pay for long-term care insurance. However, Gingrich has also proposed support for a flat tax system, which would end those tax breaks--so there is a bit of contradiction in his pronouncements on the issue.

In the end, however, community members are still in the dark about where most candidates stand on these issues. Our New York elder law attorneys realize that this might be a mistake. Many members of the Baby Boomer generation are now beginning to retire and are thinking seriously about their long-term care needs. These community members are consistent voters, and so it is important for all those running for office to share their thoughts and perspectives on these issues. Hopefully we hear more from those vying for the presidency in the coming weeks and months.

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News about the New York Medicaid system has been surprisingly positive over the past few weeks. While stories of doom and gloom dominate federal discussions of the program, in our state there has actually been cause for optimism. Most prominently, Governor Cuomo recently announced that while the program is still quite expensive, the cost increases last year stayed below the self-imposed caps set to curb spending growth. This financial goal was attained even though the program added nearly 104,000 participants--essentially reaching a total of 5 million New Yorkers in the program.

These money-saving goals were met thanks in part to the work of the state's Medicaid Task Force which was charged with finding ways to trim program expenses. Observers note that one important way this was achieved was by reducing expensive hospital admission rates and increasing usage of primary care. Our New York Medicaid attorneys appreciate that the state's ability to meet this goals is good news for area seniors who rely on the program for their long-term care needs.

However, this one year cost curbing effort, while positive, does not mean that the all concerns about the program have been resolved. There are still many issues left to face to ensure local seniors who need it have access to this program. For one thing, the program's expenses are still hitting local governments particularly hard. The Times Herald-Record discussed this issue in a story published this morning. County executives from Orange, Ulster, and Dutchess counties met yesterday to talk about a range of issues--Medicaid was by far the most pressing concern.

Ulster County executive Mike Hein explained how he believed that the funding systems of the program were a clear example "of the state dumping an expense on localities." What is particularly frustrating to these executives is the fact that while local government pay essentially half of the state Medicaid costs, localities have no control over the program. Our New York Medicaid lawyers realize that these very concerns are what have prompted some in Albany to try to shift the costs of the program away from localities entirely. However, these county executives were skeptical that those proposals would reach fruition. Orange County executive Ed Diana noted that he thought it unlikely such a large decision would be made during an election year.

When discussing these Medicaid issues, the executives from Orange and Ulster counties also defended their decision to privatize local nursing homes. Dutchess County had privatized several years earlier. Some have voiced concerns over the decision, because private homes have repeatedly been found to provide lower quality care than publicly run homes. However, the executives claimed that financial concerns forced the decision.

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Lower Hudson Valley News reported last week on the current financial picture of the New York Medicaid program. Many local residents depend on the program to meet their various needs, including long-term care costs. Yet, time and again doomsday projections are offered which rightly confuse those who count on their participation to get by each day. According to this latest story, the current financial state of the program can best be summarized as expensive but under control.

As our New York Medicaid attorneys know, our state's Medicaid program is one of the costliest in the nation--topping $54 billion a year. The Medicaid program accounts for 36% of the entire state budget--the largest single piece of the state's yearly obligations. To limit the growth of the program the state created a self-imposed cap which sought to limit Medicaid spending. As of last Wednesday that goal had been met, and the cap was not breached. This was made even more impressive considering that in the same time period the use of the program actually grew, adding 104,000 enrollees in the last half of 2011 to top nearly 5 million total participants.

This is good news for local elder residents, millions of whom conduct New York Medicaid planning to ensure that they have the long-term care they need to survive in their golden years. So how has the state been able to stay below the budget cap even while the program grew in size? Experts explain that reduced hospital admission rates have helped. This allows residents to receive far cheap primary care as opposed to expensive hospital stays. Other cost-cutting measures have also helped rein in spending without slashing services.

However, statewide medical costs can be fickle, and solid footing one day can be gone the next. At a budget hearing where the matter was discussed, the state's Medicaid director, Jason Helgerson, explained, "The good news is that through the end of December, we're $95 million under the spending cap, but every single month things change and we remain very vigilant in watching how spending changes from month to month."

For next year, the proposed budget calls for a 4% increase in Medicaid--an increase lawmakers had previously agreed upon. In addition, the Governor is proposing shifting the burden of the program away from local counties. Many local county budgets have been swamped by Medicaid costs. On average the counties pay 78% of their budget of property taxes for Medicaid costs. In fact, in some areas the county Medicaid costs are more than the total property tax collection amount.

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Virtually everyone would prefer to age gracefully. Unfortunately, many seniors never get that chance and instead face serious health deterioration that occurs quickly, often without warning. This creates complications for many families who wait to conduct long-term care planning. Our New York elder law attorneys realize that many local community members have every intention of seeking out professional help to ensure they have access to the resources they need in their golden years. But many residents simply wait too long before seeking out that assistance, limiting the options available. It is ideal to plan before one's health deteriorates to have maximum benefit from the process.

This is particularly true in the case of cognitive mental diseases like Alzheimer's and dementia. Experts on the condition explain that there remains a big problem with early detection. Many family members fail to discover that a loved one's mental condition has been affected by the condition until the loss of functioning is severe. This often makes dealing with the senior's medical needs much more complicated, particularly when a Health Care Proxy and Power of Attorney were not previously created.

Sadly, waiting too long before conducting New York elder care planning is like crossing a one-way bridge. With our current state of medical knowledge the effects of these cognitive conditions are virtually permanent--we have yet to master treatment options that might reverse most of the damage. However, this week scientists out of Case Western Reserve University announced what some are calling a "breakthrough" in Alzheimer's research. Published in a report in this week's edition of the journal Science, the researchers have apparently discovered a cancer drug that has been able to reverse Alzheimer's symptoms in certain animal modules.

In both humans and animals, Alzheimer's conditions are caused by plague deposits that build up in the brain. According to the report, this cancer drug was able to cut down on the number of plaque deposits in the test cases. In some situations the drug was able to completely reverse the cognitive and memory deficits caused by the condition within 72 hours.

The drug, Bexarotene, has been approved in the U.S. for cancer treatment for the last ten years. However, scientists now know that it may have important implications for the millions suffering from Alzheimer's as well. The lead author of the study summarized, "This is a particularly exciting and rewarding study [...] Our next objective is to ascertain if it acts similarly in humans. We are at an early stage in translating this basic science discovery into a treatment."

Hopefully one day the consequences of debilitating conditions like Alzheimer's and dementia can be reversed. This latest research seems to be a positive step in that direction. However, until that day comes, all residents should be prudent about their planning choices and make preparations for their senior care and inheritance issues as early as possible. Planning can never be conducted too early, but it is often conducted too late.

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Ensuring that resources will be available to provide day to day caregiving during one's golden years is one of the main reasons local residents visit a New York elder law attorney. To accomplish that goal we often explain how tools like long-term care insurance and a Medicaid Asset Protection Trust (MAPT) can be used in combination. The insurance provides actual payments so that seniors can have at-home care when necessary. The MAPT does not provide resources, but it protects some assets that the individual already has from potential long-term care costs in the future.

Because the insurance both protects assets and provides resources, long-term care insurance is generally the superior method of protection. However, long-term care insurance can be expensive, particularly when it is sought by one who is already reaching on in years or is in poor health. The earlier that this insurance is sought the more likely that it will be within one's financial reach.

When a client visits a New York elder law lawyer in our office, we share information about these insurance options. We appreciate that residents want to feel comfortable with their insurance providers--insurance companies are not thought of highly by some residents. Horror stories abound of individuals who dutifully paid premiums only to have difficulty receiving the help they needed. One benefit of having legal professionals involved in the process is the extra set of eyes that will be watching the senior's finances, ensuring that they are not taken advantage of by anyone, including insurance companies.

Unfortunately, this extra protection is sometimes needed. For example, just last week the L.A. Times discussed a new lawsuit filed by a consumer watchdog group against a long-term care insurance provider--Senior Health Insurance Co. of Pennsylvania. The suit alleges that the company engaged in a range of tactics and schemes to avoid paying claims for potentially thousands of seniors.

The consumer group suggests the company ignored or took unreasonably long periods of time to respond to claim requests. They further allege that the insurance company required unnecessary paperwork and medical examinations. In other cases the company is accused of having required caregivers to have certain licenses, even though that violated company policy. One plaintiff, a 78-year old former doctor, apparently purchased the insurance eighteen years ago. However, the company refused to honor 80% of the claims requests that he submitted.

Long-term care insurance remains a very prudent option for many families. However, it only works when the insurance provider acts fairly and appropriately. Be sure to get in touch with a legal professional whenever you have concerns about your long-term care insurance or planning.

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Few illness associated with old age are as debilitating--both for the senior and their family--as Alzheimer's disease. Through the years each New York elder law attorney at our firm has come to appreciate the myriad of ways that these degenerative cognitive conditions impact the lives of community members and affect their long-term planning. Medical experts working on better understanding this illness need all the support they can get--their work can truly change millions of life.

In a bit of good news, a New York Times article earlier this month discussed how a medical team studying Alzheimer's may have found new information about how the condition spreads. By outward appearances, the disease seems to spread with a bacteria or virus moving from brain cell to brain cell. However, according to the new research that does not appear to be the case. Instead, the spreading of the condition is actually caused by a growth of a "tau" protein.

This new research seems to definitively answer for the first time a big question about the spread of the disease. For twenty five years experts debated whether Alzheimer's spread via a transmission of the disease from neuron to neuron via paths used for cell communication or if the transmission did not occur along those paths but simply in clusters of "weaker" brain cells. This latest evidence suggests that cell-to-cell transmission via pathway does occur.

So what does this mean for patients?

Those involved explain that this new understanding may allow researchers to pinpoint ways to stop the spread of the disease in its tracks. Before this information those working to slow the spread were seemingly in the dark--unclear about what exactly was needed to fight it. However, now those same professionals know what they are up against. By using things like antibodies, researchers may learn how to slow or block the spread of the tau protein. In fact, our elder law attorneys were interested to discover that those involved with this project believe the findings may also have implications for other problems that spread in similar ways--like Parkinson's disease.

Hopefully this and related research continues to produce dividends that may one day help doctors slow the spread of Alzheimer's, prevent it, or even reverse course and offer a cure. Until that time, local family members who have suspicions that a loved one may be facing this problem should ensure that they receive medical help as soon as possible. Also, do not forget to visit with a New York elder law lawyer to take proper legal steps so that decisions about long-term care and other medical needs can be made in a timely fashion without legal headaches.

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This week the USA Today reminded readers of the role that family members play in catching the onset of cognitive mental diseases in seniors, such as dementia and Alzheimer's. As any New York elder law estate planning attorney can attest, these issues are of particular importance in the legal context because mental issues can affect one's legal capacity. The ability to conduct estate planning, receive New York Medicaid help, or otherwise make prudent decisions for the future will be made more difficult if begun after dementia or Alzheimer's has set in.

By the very nature of the condition, the one who is suffering from these issues has difficultly identifying the problem themselves. That is why a family plays a crucial role in identifying the cognition problem and addressing it. As the article notes, "dementia can sneak up on families. Its sufferers are pretty adept at covering lapses early on." Often it is not until there is some major accident or life-threatening complication that adult children, spouses, and others become fully aware of the problem.

To combat the challenges of early detection, experts are calling on family members to be more involved. As part of the first "National Alzheimer's Plan," advocates are trying to raise awareness about the need for relatives to be diligent about a senior's actions to ensure mental cognition issues are caught as soon as possible. One advocate noted, "family input should be mandatory...it's the only way to know if the person really is eating enough and taking her medicines as she claims, and not forgetting to turn off the stove."

In addition, there is a growing call for primary-care doctors to take a more active role in detecting dementia early. For example, in a regular visit the doctor might ask "How are you doing?" Usually the senior patient replies, "Fine," and then the matter is dropped. This minimal discussion of basic life circumstances is too brief for the physician to have any way to ensure that the senior's mental condition has not reached a dangerous level.

On top of that, as part of the early detection programs, government officials working on dementia and Alzheimer's issues are trying to get families to conduct advanced planning. Having a Power of Attorney and Health Care Proxy are crucial as soon as dementia is diagnosed. No one is fully prepared for the challenges that aging can bring--particularly conditions that attack the mind. No amount of financial preparation or long-term care plans can make the process easy. However, the overall stress of the situation is less taxing when steps have been taken ahead of time to ensure that sticky matters like estate preparation and proper long-term care planning are decided ahead of time.

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Many residents remain completely unfamiliar with most aspects of New York elder care until the need for skilled long-term treatment is thrust upon them by a loved one's sudden health decline. For one thing, the high costs of the service catch most community members completely off-guard. Coming up with over $10,000 a month (or more) for this care is simply impossible for most areas families that have not planned ahead of time. On top of that, our New York elder law attorneys know that many are also surprised by the challenge of simply finding a suitable facility in the first place, regardless of the costs.

One peculiar aspect of the process, for example, is that men have a harder time finding a bed in nursing homes than women do. The situation was discussed last week in a post at the New York Times' "The New Old Age" blog.

It was explained that the problem has to do with nursing home demographics. A 2010 CMS Report noted what most intuitively suspect: two-thirds of all nursing home residents are female. In some specific areas, the rate of female use of these facilities is much higher. As our New York Medicaid lawyers often explain to clients, Medicaid--which pays for most nursing home care--only covers "semiprivate" rooms. These rooms usually house at least two residents with privacy provided, as in a hospital, by a curtain. Only residents of the same gender can live in each room.

That is where the demographic problem comes in.

Men who are seeking to enter these facilities cannot be put into a room where a woman already resides--even if there are open beds. Therefore, the man is forced to wait until there is a bed available in a room with another man. Considering the skewed demographics, there are a lot fewer male rooms, and the wait can last longer than many expect.

The financial demands on these skilled long term care facilities also play a role. For example, when residents leave a facility, there are often ways to make bed changes so that a room opens up to serve as a male room. However, many facilities are reluctant to do that, because the chance of a bed going unused in a male room is higher than in a female room. If the facility accepts a man and then three woman immediately call and want to move-in, they may have to turn those three down because they used an open room for the man instead of making it another female room. Most long-term care facilities are understandably loathe to not lose money on unused space, and so decisions about room assignments are often affected by the financial motives.

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New York's passage of the same-sex marriage law last year was seen as an important step in ensuring fairness and equality for all residents. Of course, as each New York elder law estate planning attorney at our firm has explained, same-sex couples still have unique planning needs because their marriages in our state are not recognized at the federal level. This lack of recognition is mandated by the federal legislation passed in 1996 known as "The Defense of Marriage Act" (DOMA).

Several recent legal challenges have been mounted against DOMA, seeking to overturn part or all of the law on federal constitutional grounds. In fact, last February President Obama admitted that he considered the law unconstitutional and would no longer defend it in court. This led to much political consternation as various Congressional leaders who support DOMA sought ways to take up the defense.

Late last week, a federal judge in one of the cases challenging DOMA indicated that she is likely to strike down at least part of the law as unconstitutional. The issue in that case relates specifically to participation in long-term healthcare programs for state employees. Right now same-sex spouses and domestic partners of federal employees are denied the right to participate. Opponents of DOMA have argued that the government has no proper basis for the exclusion of these couples other than prejudice against gays and lesbians.
The judge agreed, noting that defenders of the law, "have failed to show a plausible, legitimate, rationale for excluding registered domestic partners from (the law's) list of eligible family members (for the tax benefits), and the court can think of none."

The judge in the case went on to note that statements made by supporters when enacting the ban in Congress indicate that it was motivated by "antipathy towards same-sex couples." Of course excluding same-sex partners from long-term healthcare assistance simply because of distaste for the couple is an unconstitutional overreach.

This particular case is a reminder that the challenges facing same-sex couples is not only related to estate planning but also elder care. Local same-sex couples have the same concerns about New York Medicaid assistance, long-term care insurance, and other senior issues. Lack of federal recognition of their unions has effects on strategies that are employed when it comes to these long-term care issues. That is why it remains essential for same-sex couples in our area to visit with a New York elder law attorney to ensure that they are well-positioned to receive the extra care they might need down the road.

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