Articles Posted in New York Elder Law

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.

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.

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.

Every New York elder law estate plan should likely include a Power of Attorney and Health Care Proxy. These documents allow another person to handle a variety of legal, financial, and medical affairs on your behalf in the event of disability. Our New York elder law attorneys know that preparing for all possible contingencies is the main purpose of this planning, and so inclusion of these documents remains essential.

Some residents are less familiar with the importance of these decision-making tools and may assume them to be unnecessary in their particular case. They may believe that their friends or family members will step up and handle affairs appropriately without the need for formal legal documents. Unfortunately, that assessment is misguided because very often family disagreement arises among these individuals under the stress of dealing with the disability–setting the stage for conflict without prior delegation of decision-making power. The director of a local public aging services center explained that “the last thing you want is if you age and lose capacity, to become a pod in a power struggle between your kids or your grandkids.” On top that, even if one’s family members do not disagree on any financial or medical issue, the law will not automatically grant these powers to a certain friend or family member. In many cases, the disability requires court intervention to appoint a guardian which is a situation that should always be avoided.

Failure to provide this legal clarity ahead of time can have wide ranging effects. For example, KFBB News reported late last week on one man who is facing felony kidnapping charges after allegedly taking his 92-year old mother out of her long-term care facility and bringing her into another state without permission. The man was not his mother’s Power of Attorney. The family was confused about the local elder care laws, and the man assumed he had the right to move his mother. He didn’t. He is now awaiting extradition to face possible criminal sanctions for his conduct. It is likely that the man would not be facing any charges at all had a Power of Attorney been drafted.

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.
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Second marriage planning always presents families with unique issues to consider regarding planning for their future. Those concerns are often made more urgent when the marriage occurs late in life. When local residents with children enter into one of these marriages it is particularly important to contact a New York elder law estate planning lawyer for assistance.

Last week the New York Times blog, The New Old Age discussed the myriad of issues that arise with late-life marriages. A common theme involves the amount of intermingling that spouses want between each of their separate assets and income during their lives, in case of divorce, and after death. For example, how much of one spouse’s assets can be used to pay for the medical bills of the other spouse? Medicaid concerns must also be factored into the planning. Rules usually dictate that assets of both spouses are considered when one is attempting to qualify for Medicaid. An elder law attorney should be consulted so that these issues can be discussed and couples can strategize.

Late-life marriages may also have effects on Social Security benefits and taxes. The ability of one spouse to draw benefits based on the former spouse’s earnings could be altered in these cases. Remarriage before the age of sixty usually cuts off that Social Security benefit. Couples must also decide whether to file taxes jointly or separately. The decision determines what tax bracket the couple falls into and may shift tax mistakes of one spouse onto the other.

Those in late-life marriages must give careful thought to how it will affect their property distribution upon their death. An older spouse who has specific plans about how to leave his or her estate must recognize the role that their new spouse may play in that decision. Surviving spouses almost always have the option of taking an elective share of the other’s estate unless other arrangements are made beforehand. A prenuptial agreement may be important in those situations.
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The onset of medical conditions that affect brain function like dementia or Alzheimer’s often act as triggers for local residents and their families to visit a New York elder law attorney. As most are aware, these illnesses affect millions of individuals across the country. The brain conditions result in memory-loss, reduction in learning ability, and reasoning problems. Obviously these illnesses pose a serious threat to an individual’s ability to properly manage their affairs, and caregivers are often required to help with day-to-day activities.

While conditions like dementia are rarely found in anyone less than 65 years of age, there are a few lesser known illnesses that affect brain function and occur in younger individuals. Last month the New York Times profiled one of those forms of dementia, known as primary progressive aphasia (P.P.A.). The syndrome often strikes those in their 50s. Its rarity and the age at which it occurs often cause doctors to misdiagnose the condition as depression, anxiety, or even a stroke.

Unlike Alzheimer’s or dementia, P.P.A. does not initially affect memory but instead affects an individual’s communication abilities. An expert on the disease explains how P.P.A. damages the part of the brain that is used in word-finding, object naming, syntax, spelling, and word comprehension.

The wife of one 55-year old sufferer from P.P.A. explains her husband’s impairments, noting that “he can no longer punch in the numbers to operate the garage door or the microwave or the remote for the TV. He might open the car window, then not know how to close it.”

While communication impairment is the primary problem caused by P.P.A., eventually patients suffer other deficits, like memory-loss, various cognitive abnormalities, and even motor problems. It is for those reasons that the article concluded by recommending that those who may be suffering from P.P.A. visit an elder law attorney to ensure that their family’s financial affairs are in order.
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Unfortunately current economic hardships may exist more acutely for the LGBT elder community because of a lifetime of federal law discrimination that has affected their financial security and health care options. Of all the so-called financial safety nets, including Social Security and retiree health insurance benefits, the harshest effects on aging LGBT Boomers is Medicaid. To be eligible in New York for state nursing home assistance, certain asset and income level requirements exist whereby qualified applicants must be deemed impoverished.

New York State Medicaid allows the spouse of a person receiving Medicaid – “the community spouse” – to keep certain assets including the family home to protect against total impoverishment. Because marriage rights are not granted to same sex couples in New York, they cannot take advantage of this provision.

On the other side of the coin, the inability of same sex couples to marry in New York offers a distinct Medicaid planning advantage in later years. If you are in a same sex partnership and wish to plan ahead five years to protect your jointly owned home and life savings from nursing home costs, and cannot obtain long-term care insurance for any reason, you may both establish a Medicaid Asset Protection Trust for one other. Legally married couples may not name each other as the trustee in a MAPT. Same sex partners, however, are able to name one another as each other’s trustee and therefore do not have to go outside of the relationship to put someone else in charge in order to protect assets. A New York elder law attorney who has familiarity with the underserved legal needs of the LGBT community can best advise whether or not a MAPT is a viable financial solution in a given situation.

Each county in New York State demands a unique set of paperwork when applying for Medicaid assistance to pay for nursing home care. While this is subject to change in April when the New York State Department of Health will institute statewide uniformity application rules, right now the rigid documentation requirements by individual county can often slow down the process – even when a family member may need immediate transfer into a residential health care facility. In order to prevent any delay, it is absolutely necessary to gather all relevant documentation before the application is actually submitted. (See below document list.)

No matter what New York State county you or your family member lives in, Medicaid requires documentation from five years ago. Be prepared to gather, research and request paperwork dating back to 2006. There are absolutely no exceptions. An application will be denied without all of the requested paperwork. Often applicants request that a Medicaid application be incompletely submitted, hoping that the documents that they provided will be enough.

“There is no ‘let’s make a deal’ with a county’s Department of Social Services. Even if clients have submitted two or three years’ worth of paperwork, but omit one year, I still have to explain them that without all of the necessary documentation, their Medicaid application will be denied,” says Elizabeth Schalk, Ettinger Law Firm’s experienced Medicaid supervisor.

by A.K. Lehmann, Paralegal.

More and more Americans are caring for an older friend or relative. According to the National Alliance for Caregiving and AARP, 43.5 million serve as caregivers to their elders, a 28% increase from 2004. Because of the tough economic climate of recent years – including the high unemployment rate – an increasing percentage of those are receiving compensation for providing care to a relative or friend.

This trend is predicted to rise due to the 2006 change in Medicaid law that makes it harder for people who qualify to give away assets. (A New York State Medicaid attorney familiar with the changing laws can assist in creating trusts that may make it possible to give away assets and still qualify for benefits.)

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