Articles Tagged with albany elder law attorney

Many of our elderly adults end up in nursing homes or assisted living, whether as a result of an accident or due to a declining ability to care for themselves. While many have family members or friends who are able to ensure their loved one is being taken care of properly in their respective homes, not all of those elderly are fortunate to have someone to look after them. In fact, the Special Investigations Division of the House Government Reform Committee found that 30% of nursing homes in the United States were cited for nearly 10,000 instances of abuse over a two year period.

Abuse in a nursing home can take many forms, some problems involving physical abuse and negligent include untreated bedsores, inadequate medical care through dehydration and improper hygiene, as well as physical abuse such as broken bones, untreated bruises and cuts. Other examples of abuse involve verbal abuse, for example yelling, and ignoring requests, as well as withholding medication.

This problem happens all too often, and it can come down to the caretakers word against the elderly abused patient. An Illinois man concerned about the care of his father after he voiced concerns about a new nurse, installed a surveillance camera in his father’s room in an assisted living home. The camera unfortunately confirmed exactly what he believed, he was being neglected at times, verbally and physically abused by a certified nurse’s aid working at the facility. The nurse was charged with a felony aggravated battery to a person older than 60 years and felony abuse of a long-term health care facility resident.

Physician assisted suicide has been a controversial topic across the world, however as the reasoning behind it becomes better understood, many countries have chosen to legalize the practice for reasons outside of terminal illness. In the United States, in the past few decades, the public began to take notice with news headlines such as those regarding Dr. Jack Kevorkian, the Michigan physician who helped assist numerous patients chose when they would die from terminal illnesses and subsequently served eight years for his acts.

Today, physician assistance in dying is legal in Washington, Vermont, Montana, Oregon, with California recently signing in their aid in dying legislation in June 2016, Colorado approving a ballot measure in the most recent November 2016 election by two thirds majority, as well as the District of Columbia signing in their version of the same aid in dying law in December 2016. With a not so surprising passage of these laws comes the realization that Americans as a whole see the reasoning or at least themselves would want the option, in the circumstance they were to become terminally ill.

What is different with the United States’ various aid in dying laws in place is that they are all for those patients that are terminally ill, requiring certain validation steps through physicians and therapists.

A study released in late November in the JAMA Internal Medicine journal reported that dementia rates for individuals over the age of 65 years old is down almost 24% from rates found in 2000. There are a variety of reasons why this decline may have happened, including elders with higher education levels than those before them, as well as better heart and brain monitoring, and more awareness as to social and behavioral changes that elders have as a way to combat Alzheimer’s Disease.

This news comes as a welcome surprise, as in 2016, 5.4 million Americans lives with Alzheimer’s Disease, roughly translating to one in nine people over the age of 65 years old. By 2050, the elder population will have tripled in size, amounting to a staggering 84 million people over the age of 65 years old. With the aging population growing at such a rapid pace, medical, legal and social professionals are working to determine how to cope with such a large amount of the population potentially living with this disease.

These recent findings shed some light on how the disease, which generally exhibits symptoms of memory loss, confusion, limited social skills, mood changes and disorders as the result of irritability and anxiety, as well as confused speech and muscular movement.

There is a relatively unknown or at least underutilized program in the law that can provide some important tax benefits for those who care for their elderly or special needs relatives.  The Dependent Care Assistance Program (DCAP) is a tax benefit that is often offered by employers for expenses that a person incurs for any number of things for the care of others.  It is a tax credit that can be claimed by the taxpayer for expenses related to the care for qualifying individuals so that the caretaker may work.  The program is similar to a Health savings account insofar as a person can sock away a certain amount of money that can be used on certain delineated services or costs.  

The good thing for New Yorkers is that this tax credit is for both federal government income taxes as well as state taxes.  Not all states have such a tax credit; residents of these states can only utilize the federal credit and still have to pay state taxes on the money earned and diverted into the DCAP account.  Under federal tax law, the tax credit is limited by to the amount that the worker earns.  New York’s tax credit calculated as a percentage of the Federal tax credit.  In addition, there is a $5,250 ceiling per year on the amount that a person can put into the account.  The benefit is allowed for families earning up to $120,000.  If the employee utilizes a DCAP program through their work, the tax credit is reduced by the amount that use through their employer’s program.

The money can be used for practically anything for the elderly or special needs relative, including adult day care, transportation, (reasonable) entertainment costs, as long as they costs are related to your employment.  In other words, if you do not need to incur the costs to be employed, you cannot claim these costs.  Overnight camp or educational costs cannot be incurred, since they are not related to or required to your employment.  Fellow relatives cannot be the service provider.  While an employee can take advantage of an employer based program, most employers do not offer it as an additional benefit; rather most employers who have such a program allow the employee to earn their income tax free.  


If you already have New York Medicaid you may be eligible for managed long term care or in home care by a licensed Managed Long Term Care Agency (often simply referred to as MLTC). The animating thought is to ensure that older adults can remain in their home and community rather than in a nursing home. The menu of options available to eligible New York state residents is actually quite extensive. In fact, there is even the option of hiring and training your own personal assistant, know as Consumer Directed Personal Assistance Program.

Traditionally, they could not live with you and you cannot hire your own spouse, parent, son-in-law, son, daughter-in-law or daughter, although they can be grandchildren, neices or nephews or any other relative for that matter. That requirement is changing in April, 2016. There is an exception that allows your personal assistant to live in your home if the amount of care required by the patient makes it necessary. That means that parents (usually of a disabled child), children, grandchildren or sons and daughters in law may reside in the home and care for the patient and get paid for it. You are also required to hire and train an alternate for when the primary care assistant is unable to come to your home because of vacation or need for sick time.


The Center for Disease Control (CDC) released guidelines to help prevent and mitigate falls among senior citizens in 2012. The CDC program is called STEADI, an acronym coming from the full title Stopping Elderly Accidents, Deaths and Injuries. Research shows that falls are the leading cause of injuries, death and emergency room visits for trauma. If a senior citizen falls it can literally be a traumatic, life altering event or even a deadly one. The silver lining is that many falls are preventable. Last year the Obama Administration announced that that the White House Conference on Aging, the Administration on Aging awarded $4 million in various grants to help expand STEADI. It is estimated that the increased funding will help reach an additional 18,000 at risk senior citizens. It is further hoped that the funding will increase participation in evidence based community programs and improve the overall programs long term viability. The CDC developed these guidelines in conjunction with British and American Geriatric Societies.

The American and British Geriatric Societies already had clinical practice guidelines in place to better define the various risk factors in falls by senior citizens. The CDC guidelines contain basic information about falls, methods to begin conversations with seniors, balance assessment tests, gait assessment tests along with instructional videos for the gait and balance tests and even case studies of the the fall risks for different senior citizens. The program and recommendations are all inclusive in that the STEADI program at the CDC website has a testing protocol for professional medical care providers, to information about webinars and other instructional videos, material for senior citizens themselves, important facts about falls, referral forms, posters for professional establishments, with posters also available in Spanish and Chinese and most importantly, it has a toolkit for medical professionals.

New York along with every other state, most United States administered territories and even The Bureau of Indian Affairs for Indian Tribes has an adult protective services enabling statute.  New York’s adult protective services statute is found in the archaically entitled Title 81 of the New York State Mental Hygiene Law.  It allows for the appointment of a guardian over an incapacitated person only after a Court makes two specific findings of fact:

1) The allegedly incapacitated person is unable to provide for his/her personal needs or unable to manage their property and financial affairs; and

2) The person cannot adequately understand and appreciate the nature and consequences of their inability.

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