New York Elder Law Attorney Blog

Sadly, there remain many seniors in our area living in incredibly poor conditions, without access to the care they need to maximize their quality of life in their golden years. What makes these circumstances particularly distressing is that resources exist to help many of these elders--often they just don't know where to go to find them. Ensuring that seniors and their loved ones take advantage of the legal tools and programs available specifically to help them is part of the work done by each New York elder law attorney at our firm.

In addition to having the aid of legal professionals with these matters, seniors and their families can discover some of the potential benefits available on their own. From transportation and housekeeping to complimentary medical check-ups, there are many federal programs available to seniors that go unused. One helpful starting point is an article published this week in the Wall Street Journal entitled, "Find Benefits for Seniors." The article points the way to a helpful tool from the National Council on Aging that seeks to connect seniors and their families with the government resources set aside to help meet basis needs for things like getting proper health care, paying utilities, and even buying food.

The tool is known as "Benefits Check Up"--you can take a look at the site here. It is a database that incorporates information about more than 2,000 state and federal programs. Residents can put in their location, explain their specific financial situation, and then get information on which of those programs are intended to provide support for them. The online site has been around for ten years, but it has undergone a range of improvements in that time. Recently, it was revamped to include information about property-tax relief programs and potential help for those who are at risk of foreclosure. This is important, because our New York elder law attorneys appreciate that the housing crisis hit many seniors hard, particular those on fixed incomes.

For those more comfortable talking about these issues over the phone, the National Council on Aging also has a hot-line where much of this information can be explored. The hotline number is 800-677-1116. Before calling it is helpful to have some information on hand to help accurately determine what programs one might qualify for. This includes estimates from all income sources (pensions, investments, Social Security, etc.) as well as expense estimates for things like housing, medicine, and utilities.

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You May Be Able to Bargain for Long-Term Care

New York Writer Releases New Book Explaining Complexity of Elder Care System

Elder financial abuse is fast becoming a national crisis. That is the message that a New York geriatrician and social scientist is spreading after conducting extensive scientific investigations into the extent of fraud and financial exploitation among local seniors. The doctor is encouraging friends, family members, caregivers, New York elder law attorneys, and others to keep a close eye out for the signs that this abuse might be occurring among seniors that they know.

As reported in the Centre Daily Times, the doctor's latest work suggests that literally millions of seniors are victimized financially each and every year. Yet only a fraction of the instances of abuse ever come to the attention of authorities--only one in forty four, according to the report. In even fewer cases are the wrongdoers held accountable for their conduct. Previous work by this same team of researchers also found that those seniors who had been abused financially saw similar damaging effects on their physical well-being. The groundbreaking work revealed that mortality rates of elderly victims of financial abuse were significantly higher than for those who had not been abused. Suffice to say, this mistreatment has profound effects on the lives of victims and all efforts to limit the problem must be taken.

Yet, there is a long way to go before the mistreatment is stamped out. According to the latest research at least 2.5 million seniors are victims of financial abuse each and every year. Even then, that number may be a significant understatement. For one thing, it was reached mostly via self-reporting. Many seniors might hide their situation out of fear or embarrassment. Additionally, the research team noted that seniors who were suffering from a severe rate of mental decline were not polled in the survey. Yet it is that very group which is at the highest risk of being victimized by unscrupulous individuals willing to take advantage of them for personal financial gain.

Visiting a New York elder law attorney before a loved one with cognitive mental diseases, like Alzheimer's, loses the ability to communicate is essential. The professional will be able to provide an extra set of eyes on the senior's books which may help catch irregularities or signs of financial abuse. Beyond that, having an elder law estate plan put in place will help keep the senior's wishes fulfilled, even if they lose their mental capacities. Substitute decision-making documents will also be crafted to provide for the best interests of the elder as the disease progresses. These include creation of a Power of Attorney and Health Care Proxy. All of this will help avoid costly, timely, and stressful guardianship proceedings through the court system.

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Proper Senior Care Planning Needed to Prevent Elder Financial Abuse

Authorities Often Act Too Late to Prevent Elder Financial Abuse

When local residents conduct New York long-term care planning they usually want to ensure that they will have the resources to pay for the needed care and that it will be of the highest quality possible. It is one thing to have access to caregivers to provide day-to-day assistance when age takes its toll. It is another to have the peace of mind of knowing that the care will allow them to maximize their quality of life. When discussing these issues one advocate has echoed a common songwriter's refrain, "there is a difference between living and living well."

Proper preparation often makes all the difference and allows community members to ensure that their well-being will be prioritized in their golden years. Our New York elder law attorneys have worked for decades on these issues. For example, it is appropriate for some residents to obtain long-term care insurance (LTCI). LTCI serves two purposes: It protects assets from the costs of elder care and it provides resources for that care. For a variety of reasons, LTCI may be out of reach for some community members. In those cases it is usually beneficial to create a Medicaid Asset Protection Trust to shelter assets while still qualifying for Medicaid benefits.

Long-term care insurance often allows residents to maximize their quality of life, because it provides resources to pay for things like at-home care. At-home care has consistently been shown to be the preferable method of aging for those given a choice. However, even with LTCI, at some point a senior may need to move into a nursing home to have access to emergency services to survive each day. Yet, when at a nursing home those with private insurance may be treated differently than those on Medicaid according to new research from the University of Rochester Medical Center. The latest study, summarized this week in McKnight's Long-Term Care News, revealed that those in nursing homes on Medicaid are sent to the hospital 27% more than those receiving private insurance.

At first researchers assumed that the difference was caused by the fact that Medicaid residents are more likely to live in nursing homes that have fewer resources. Therefore, those residents might require extra hospital care while privately insured residents would more often be treated on-site at their skilled nursing facility. However, now experts believe that the difference relates back to finances. Nursing homes are usually reimbursed less when they provide treatment to a New York Medicaid resident as opposed to one covered by private insurance. Therefore, they have a financial incentive to pass on the cost to hospitals of treating certain residents as opposed to others. The study's authors explain that this new data is important, noting that the hospitalization differences actually have "significant impact on the long-term health of residents."

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Nonprofit Innovators Try to Shift Senior Care Away From the Nursing Home

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

Over the years the core purpose of our New York elder law estate planning attorneys has remained unchanged--helping residents pass on assets at death, avoid probate, save on estate taxes, and plan for disability. Yet, technology changes have influenced some ancillary aspects of the preparation and senior care process. For example, on the estate planning side, new web applications now claim to offer non-legal services to digitally store important passwords to be released upon death or to help a family set-up an online auction to distribute family heirlooms. Even New York elder care has been affected by online and web-based tools that seek to expand living options for area seniors.

Much of this new technology has centered on keeping seniors out of a nursing home. This is not surprising as an average stay in an area nursing home is around $120,000 a year, and the vast majority of residents would much prefer to live in their own home for as long as they can anyway. One of the main reasons why many seniors are forced to move into one of these facilities is the need for around the clock observation in case something happens while they are alone. For the last twenty-five years this at-home observation need was essentially filled by a single product--the Life Alert Emergency Response System. The company still dominates the market by providing seniors with a permanent connection to emergency help that they can access via a button on a lanyard worn around their wrist or neck.

Reuters recently discussed how the emergence of web-based systems on phones and tablets have dramatically increased the options available to provide extra security to at-home seniors beyond Life Alert. For example, some seniors are using the "Life360" phone application to immediately send a message and GPS coordinates to family members at the touch of a button on their phone. A more comprehensive service--Sonamba--utilizes a tablet (like an iPad) equipped with a webcam and motion sensors. The device sends signals to family members when a senior's schedule seems irregular, gives medicine reminders, and allows the quick submission of messages.

Local residents interested in supplementing their New York elder care plan with emerging high-tech forms of aid have other options as well. Reflections Solutions offers a watch for seniors that monitors heart rate, temperature, and motion--automatically sending an alert when it suspects that a senior has fallen. Other monitoring companies even provide services to consolidate medical bills and records, set medicine reminders, and provide advisories for in-home care providers who visit the home.

See Our Related Blog Posts:

Nonprofit Innovators Try to Shift Senior Care Away From the Nursing Home

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

Opening up a joint bank account is one of the first things that some area seniors and their loved ones consider when they begin seriously analyzing their need to conduct New York estate planning. Providing a child or other trusted relative access to one's finances is often the easiest way for a potential victim of elderly financial exploitation to provide an extra set of eyes on their finances. With many unscrupulous individuals willing to prey on vulnerable community members for their own financial advantage, some protection is better than none.

However, as was discussed in a March New York Times blog post, the joint bank account option is typically a dangerous and inadequate means of protecting a senior family members assets.

The joint bank account can create problems for both the senior and the co-signer. If for some reason the co-signer has financial problems, that individual's creditors may be able to go after the senior's account, regardless of the elder member's connection to those debts. These accounts also include a right of survivorship, which entitles the family member who joins in the account to retain the proceeds following the older family member's death. The potential for complicated family disagreements around that issue are clear and should be avoided.

Fortunately much more comprehensive, tailored, and effective means of protecting and preparing an estate are available. For example, a New York elder law attorney would be able to explain that a more logical solution may be for a family to create a durable power of attorney. This legal instrument often provides more balance to fill the needs of an aging senior--this option comes with both rights and responsibilities for the family members involved.

Continue reading "Be Aware of Potential Pitfalls with Joint Bank Accounts" »

by A.K. Lehmann, Paralegal.

A health care proxy and living will are a part of a comprehensive elder law estate plan.

A living will describes certain life prolonging treatments which indicate preferred medical care in the event you either suffer from a terminal illness or you will become in a permanent vegetative state. It usually requires certification by a doctor. The health care proxy gives someone else the authority to make health care decisions for you in the event you are incapacitated. Neither of these documents, however, addresses personal and emotional desires or spiritual beliefs around the end of life process.

Aging with Dignity, a privately-funded, non-profit organization which advocates for the elderly and their caregivers, developed a legal advance directive document that compels you to think about situations which arise at the end of life.

The Five Wishes document prompts you to answer questions about:
• The person who you want to make care decisions for you,
• The kind of medical treatment you want or don't want,
• How comfortable you want to be, and
• What you want your loved ones to know.

After completing the questions, the document must be signed and witnessed. After that, The Five Wishes document meets the legal requirements for an advance directive in New York State. There are other requirements if the document is completed in a mental institution (See N.Y. Pub. Health Law Section 2981 (b)).

It is available for downloading on the Aging with Dignity website for a fee.

A New York elder law attorney can assist in making sure all of the legal documents you need are in an individually designed and comprehensive elder law estate plan. Having an experienced advocate for end of life issues may be desirable and even necessary. It is, after all, a process that may be the most important and complex one of you and your families' lives. Anything that you can do to make it easier for loved ones will be greatly appreciated - perhaps even more than leaving behind a well-planned financial legacy.

Part I of a Two Part Series

By A.K. Lehmann, Paralegal

The End of Life Counsel Bill (A 7617/S 4498), recently passed in the New York State Legislature, requires doctors caring for a terminally ill patient to offer information and counseling on available options for palliative and end-of-life care. This new obligation to inform patients of their medical care options is based on the fundamental right of "informed consent."

"End of life" treatments include:
• Hospice
• Pain Management, and
• Palliative Sedation.

The Senate explained the need for doctors to initiate this conversation:

"The lack of communication with respect to basic end-of-life options is a continuing problem. Patients often do not know what options for palliative care and pain management are clinically and legally available to them at the end of life. Patients must be empowered to control his or her own medical care decisions by having access to full information."

Patients may accept or decline the offer to "end of life" counseling - but at least now they, and their family members, do not bear the responsibility for beginning the process of what may be the most difficult and important decisions of their lives.

Furthermore, studies show that earlier referral to hospice and palliative care results in higher quality of life and greater patient and family satisfaction. By making comprehensive medical care information available to patients earlier on in the process of dying, patients and their family members will have greater access to a higher quality of care.

The New England Journal of Medicine reported yesterday that lung cancer patients who receive palliative care actually live three months longer than similar patients not receiving such care.

New York's Hospice and Palliative Care Information Act (PCIA) was supported by David Leven, Executive Director of Compassion & Choices, "Now, at last, patients nearing the end of life will receive an offer to discuss it. Some will decline the offer. Many will accept and use the information to negotiate a death that honors their life and leaves memories of peace and comfort for their loved ones with them at the end. [...] This bill will change the medical culture's imperative to never speak of death and offer any treatment, no matter how remote the chance of success."

The media has taken an interest in this very important health care issue which has come to the fore of our nation's consciousness due to President Obama's health care reform. Vice Presidential nominee and media celebrity, Sarah Palin, made "end of life" counseling rights controversial by relating them to a type of "death panel."

It is important to note that the bill clearly states that patients may decline the offer of information on health care options which will end the discussion.

Recently The New Yorker published an article written by Dr. Atul Gawande that illustrated stories of uninformed patients suffering from endless aggressive medical treatments like chemotherapy, surgery and/or radiation. Gawande attributed this type of care to the medical profession's general inability to muster the courage to discuss imminent death. Without thorough information about medical care options, terminally ill patients are unable to ask critical questions about side effects of treatments and their chances for success.

Last week, Frontline also broadcasted a series entitled "Facing Death." Watchers applauded the producers saying that it is time for Americans to learn how to talk about one of the most important aspects of our lives. "Learning to let go" was the principle advice of those interviewed who were at the "end of their lives." The fourth and particularly poignant episode in the series is entitled, "Talking About the End of Life."

Ettinger Law Firm, as New York elder law attorneys, will keep its clients posted on developments on these emerging "rights to information."

We appreciate your feedback. Please write to us on this blog post.

Next week:
Part II: New Legislation in "End of Life" Care Rights Dartmouth College's Study of "End-of-Life" Care and Finding An Advocate for "End of Life" Planning

Handling day-to-day money matters isn't always the simplest of tasks - even for those with strong financial acumens. Managing the business of a household can also quickly grow into a formidable task. Paying bills twice; overdrawing on checking accounts and succumbing to questionable investments are perils faced by all, but perhaps even more so as one gets older. This is where family becomes important.

Oftentimes adult children assume that their parents have everything "taken care of" and parents think their financial affairs are none of their children's business. New research from the Employee Benefit Research Institute (EBRI) reveals that 51% of adult children have never had detailed discussions with their parents about their income and expenses.

As everyone knows, talking about money is perhaps one of the most unapproachable, emotionally difficult and uncomfortable subjects. Yet avoiding discussing them with aging parents could possibly be disastrous, especially when it comes to making sure that their long term health care needs are planned. Sometimes it helps to seek out a New York elder law attorney after the initial conversation.

Here are some suggestions for breaking the ice:

Remember the goal is not to find out how much money is involved. Instead, this important conversation can begin by asking about their advisors or if there is a contingency plan in place for disability. Sometimes siblings split the fiscal responsibility of aging parents - one oversees the day to day bill paying and the other will manage and/or oversee long term investments/financial advisors.

Authored by A.K. Lehmann, Paralegal

by Bonnie Kraham, Esq.

Most of us don't want to end our days in a nursing home, and would rather "age in place," so it's important to become familiar with available home health care services.

There are three major ways to pay for home health care: self-pay, long-term care insurance, or Medicaid, which is government provided health insurance for those whose assets have been depleted. Medicare, which is government provided health insurance for the elderly, only has limited community home health care. A New York elder law attorney can help to decide which one is the best option.

In general, "community" Medicaid programs, for home care, do not have a "look-back period," that is, Medicaid does not "look back" to see if any transfers (gifts) were made which would make the person ineligible for a certain period of time. Therefore, assets can usually be transferred before applying for community Medicaid without penalty, unlike the rules for "nursing home" Medicaid.

If you meet the asset and income rules, following is a list of some of the home health care services covered by Medicaid:

Personal Care Aide Program. Agencies, paid by Medicaid, employ aides who give custodial level services based on the Activities of Daily Living (ADL's) - feeding, toileting, grooming, bathing, ambulating and transferring. A patient must need help with at least two ADL's.

Consumer-Directed Program. The services are the same as above but the patient, or adult family member, selects the aides, rather than going through an agency. The home attendant cannot be an immediate family member.

Certified Home Health Aide Services. This program usually covers the cost for 45 days after hospitalization. The aide performs health care under the supervision of a registered nurse or licensed therapist. The covered activities include the ADL's and possibly skilled services such as special meals, and tube feedings if the patient is self-directing.

Lombardi Program. Also referred to as the "nursing home without walls," this is the long-term home health care program, the equivalent of a nursing home level of care. The cost for the care cannot exceed 75% of nursing home costs. Availability is limited. The Lombardi program and other similar programs have a five-year look-back period for any asset transfers which would create a "penalty period," or period of ineligibility for Medicaid.

To find other home health care services, contact your county's Office for the Aging for a list of local providers. Orange County (845-615-3700) or Sullivan County (845-807-0241) and Ulster County (845-340-3456)

by Bonnie Kraham, Esq.

Family members overwhelmingly provide the care for elderly and disabled loved ones at home. Although a labor of love, taking care of ailing loved ones also has a market value, meaning that caretakers can be paid as a way to protect assets.

Through the use of a Caregivers Agreement, also known as a Personal Services Contract, the disabled or elderly person can transfer money to family members as compensation rather than as a gift. Gifts to family members made in the last five years before applying for Medicaid to pay for nursing home costs disqualify the applicant from receiving Medicaid for a certain period of time, known as a "penalty period."

For example, Mom depends on daughter Janice for her care. If Mom gifts $100,000 to Janice, then goes into a nursing home in the next five years, and applies for Medicaid, the gift to Janice will result in about a nine month penalty period. Janice will have to give the $100,000 back to Mom to pay nursing home costs during the penalty period, or Mom will have to use other resources to pay.

Instead, using a Caregivers Agreement, Mom pays Janice $2,500 per month for caregiving services. If Mom moves to the nursing home in the next five years, the payments to Janice are compensation, not gifts.

Caregivers Agreements must follow strict rules, so should be drafted by an experienced New York elder law attorney.

The Caregivers Agreement must detail the services to be performed and the obligations of the parties. The payment is based on the going rate of caretaking in that county. Compensation is clearly delineated with hourly and yearly calculations for 24-hour personal care.

Janice must actually give the care and document her caretaking duties. Mom must actually need the care, which should be documented with a doctor's note.

To protect family relationships, it's recommended that all family members agree with the arrangement even if they are not parties to the agreement.

Janice has tax consequences. She reports the payments as ordinary income on her income tax return and pays income taxes on the compensation. In some cases, Mom may be able to deduct the payments as a medical expense.

A proper Caregivers Agreement arrangement can be a valuable elder law planning tool in the right circumstances.