Articles Tagged with albany elder law

Aging comes with a wide variety of issues and relying on the care of your family is not a resource available to all. Whether it is due to lack of accessibility, estranged familial relationships, or advanced care requirements, many elderly find themselves alone in their older age.

This is not a phenomenon specific to America, it is an issue experienced by countries across the world. Certain cultures are more focused on caring for their elders, much like those elders helped raise them, while others have a less integrated idea of family including care for their elders.

In fact, the issue of elderly abandonment was such a large problem in Japan it was deemed “granny dumping”. While this practice, where senile senior citizens were taken up to the top of mountains and left there by loved ones due to the inability to care for them, is a very old practice, the modern version of abandonment is once against becoming a problem. Today, elderly individuals are being taken to local hospitals, churches and charities, and being left like they used to in the mountains.

The New Rule

When consulting a financial advisor, we all assume that they would have our best interest in mind when determining where our portfolio should be invested and what investments best suit our interests, however, this has not always been the case. This year, the Labor Department issued new regulations that require industry professionals dealing with individual retirement accounts and 401k accounts to act on the best behalf of their clients.

Before this new standard was issued, financial advisors only needed to meet a suitability standard, meaning that the financial advisor only has to choose what is suitable for the portfolio, which is not always what is in the client’s best interest. A financial advisor under this standard could invest in a fund he found suitable, but may be more risky or expensive, although a similar option is available with a different fund. This suitability standard led to many advisors investing in funds they were personally interested in, sparking a need for change.

Nationwide

The Death with Dignity Act gained national attention when it Brittany Maynard, a 29 year old woman suffering from an incurable brain tumor, chose to end her life with the help of a lethal dose of medication. Since then, a national debate has resurfaced about terminally ill patient’s ability to decide when, not if, they are going to die. Currently, the Death with Dignity Act has been passed in California, Oregon, Vermont and Washington, with proposals in many more states, including New York.

New York

FAST GROWING TREND

Multi-generational housing is one of the quickest growing forms of households in the country. Thanks in large part to the advent of the Great Recession, many families consolidated and reduced their finances, including one of the largest chunks out of their monthly bill cycle, namely housing. Then to add to that larger trend is the aging of the baby boomers with the myriad of medical issues that come with that. There are positive benefits associated with grandparents and grandchildren living in the same household.

The wisdom, patience and love that come from a grandparent is irreplaceable to the children and always a joy to the grandparents. There is added money for repairs, upkeep and any number of projects that homeowners have the joy of attending to. While there may sometimes be more elbows than space or too many cooks in the kitchen, there is a reason why it is a growing trend. In the course of a generation, multi-generational not only halted the decline from the 1940s to the 1980s, but between 1980 and 200 increased it one quarter (12% to 15%) and then from 2009 to 2012 it increased an additional 20 percent (15% to 18%). With approximately 10,000 baby boomers turning 65 every day, the likelihood of the multi-generational housing will decrease is unlikely. Multi-generational housing is generally defined as homes with more than one adult generation living under its roof.

TWO SCHOOLS OF THOUGHT

It is never an easy decision to make decisions for another person when it is the other person who has to live with the consequences of those decisions. That is doubly true when there is not any family relation or close ties that bind you. When you are deciding for a family member, say for example an aged parent or grandparent, at least you have the benefit of years worth of conversations and their larger thoughts on certain key matters of health and health decisions. You can look back and remember what they did or said in certain similar scenarios. What about those who do not have any such close relatives who decide for them? There is a class of professional guardians across the state and country who are professional in every sense of the term. They examine an issue and consider the best way to get the answer by asking further questions of the experts, such as doctors, therapists, social workers and so on. The hardest decision that any guardian has to make, regardless of whether or not they had the benefit of ties of affinity, is whether or not to terminate treatment for an incompetent patient. By what yardstick do they measure their decisions?

If a patient already expressed their clear desire in the past as to what they want to do, the decision that the guardian must make will be much easier. The 1972 New Jersey case of In Re Quinlan sums up the decision making in this case best. In Quinlan, a young woman was in a vegetative state from which she was not likely going to recover. Her father applied to the Court to be her guardian so he could have the life supporting medical apparatus removed. The trial Court denied this application, although the state Supreme Court found a Constitutional right to privacy in such decisions to remove oneself from life support that the state cannot intervene in. Since she could do it personally, her guardian could do the same in her absence. The legal protections that control a guardian’s decisions ensure that guardians do not make their decisions with improper motive.

GUARDIANSHIP CAN BE VACATED

As this blog has discussed in some detail in the past, Adult Guardianship is a complicated area of the law, dealing with many sensitive issues of personal power, ability and basic competence. On a very basic level, guardianship is a judgment that is entered by a Court, which allows one person the the legal right to exercise decision making over another. The basic medical reality is that once competency is gone, an individual often does not regain that capacity back.

As such, when a Judgment of Guardianship is entered is often permanent. There are plenty of cases to show that this is indeed not so common so as to consider it an inalterable rule. The law recognizes this fact and allows for a judgment of guardianship to be vacated if and when a person regains their facilities. Under current New York law, a guardianship Judgment may be entered upon the consent of the ward (protected party), or, if not by consent, then by clear and convincing evidence that someone (either the potential ward or a third party) will likely suffer harm because :

CIVIL RIGHT ACTS DEALING WITH ELDER LAW MATTERS

The Fair Housing Act of 1968 was one of the raft of civil rights acts promulgated to help make the promises of Civil Rights Era real.  In its current, amended form, it prohibits discrimination in the sale, rental and financing of housing based on, among other things, disability status.  The Age Discrimination Act of 1975 is another enactment that speaks to the issue of senior housing, as it bars age discrimination in any program or activity that receives federal financial assistance.  While there is a  “housing for older person exemption” that is beneficial for seniors who need the special services found in many communities, the right to restrict housing is limited to only certain delineated situations.  Indeed, the protections for senior housing are broad and robust.  

HIDDEN FAIR HOUSING VIOLATIONS ISSUES IN SENIOR HOUSING

As increased numbers of investors reach the age of retirement, the market for investment services designed for the needs of seniors has greatly expanded. The needs for retired seniors is often unique from those individuals who are still working. For example, senior investors must execute a plan that allows for a comfortable living without the fear of running out of money. Because of this growing market, the Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA) are concerned about the potential for abusive sales practices that may constitute elder financial abuse.

What is Elder Financial Fraud?

There are three primary ways in which elder financial fraud is committed. These include when a financial advisor or stockbroker:

Contact Information