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Articles Tagged with brooklyn elder law

If you have a beloved elder who currently needs or will eventually need long term, in-home health care, you need to know about new changes to federal labor laws that may not only raise the cost of these services but potentially alter quality aspects. In addition to federal labor and wage laws, state and even local laws may impact what you pay for in home health care and who provides it.

When a person suffers from dementia, alzheimer’s, or or another cognitive health condition, he or she will likely need the aid of a home health care aide to provide even the most basic of care needs. For many years, home health care providers who also lived in the patient’s home were subject to different portions of the federal Fair Labor Standards Act (FLSA) which made them exempt from overtime and would essentially earn less than minimum wage because the individual was expected to be on call even during the evening.

However, a recent legal decision determined these in-home health care workers were not overtime exempt and must be paid one and a half times their average hourly wage when working more than 40-hours per week. This meant that it became economically feasible for many families to maintain constant care to their loved one from a familiar person that could be counted on to provide attentive, individualized service to the patient.

When determining how you want your estate and assets administered upon your death, it is also important to consider how you want decisions made in the event that you cannot make them for yourself. Naming a power of attorney has a number of benefits that will avoid any drawn out court proceedings to name an agent in the event of your incapacitation. Power of attorney documents name an individual, also known as an agent, to perform specific tasks when you cannot. These powers can vary, as there is medical/health care power of attorney and also property or financial power of attorney powers.

Medical power of attorney gives an individual the ability to make your health care decisions, such as where you should receive care, if you should receive a specific treatment in the event your wishes are not listed, as well as dealing with your insurance and medical premiums. Financial powers of attorney allow an individual, upon a specific event, to handle a variety of your financial matters on your behalf. While many people will name someone as power of attorney in the event of incapacitation, some will name a power of attorney to take effect immediately, thus, delegating decision making power.

These situations are predisposed to undue influence, something the court is very suspect of and will closely monitor in the event they believe an individual is abusing their power of attorney role over an elderly individual. In the event that you are competent and have named someone as a power of attorney, but due to a number of circumstances, including the end to a relationship or a possibility of undue influence, you wish to revoke the power of attorney, you can do so by delivering a notice to the power of attorney, your estate attorney, as well as other interested parties notified of the document.

There are a variety of different types of trusts that an individual can use to their benefit while they are alive or in order to preserve their wealth for their family after they pass. Depending on it’s purpose, the grantor of a trust will make either a irrevocable or revocable trust. Irrevocable trusts cannot be modified without permission of the beneficiary since the grantor is giving up rights to their assets to the trust, versus a revocable trust where the grantor can modify the trust terms as they desire during their lifetime and upon their death, the assets transfer to the trust.

One unique type of trust that a grantor can establish for their benefit and for the benefit of a charity is a charitable remainder trust unitrust. Charitable remainder unitrusts are a type of irrevocable trust with specific characteristics setting it aside from other trusts. This type of trust distributes a certain percentage of the value of the assets in the trust to a beneficiary that is not a charity, usually a grantor of the trust or whomever the grantor has named to receive the named distribution. The grantor sets a specific timeline for the distributions to the beneficiary, and upon the termination of that timeline, the remaining assets are distributed out to the charity named.

In order to determine how much the non-charitable beneficiary will receive, the trustee must use a formula that requires minimum distributions from the trust annually. The trustee will first determine the fair market value of the trust at the end of the given year by obtaining a valuation of the assets in the trust and then will distribute out the percentage of that asset value named in the document.

Part of the important tasks of caregivers in nursing homes is the care of wounds. Many patients have wounds of various types. Staff members must take note of any scrapes, lacerations, pressure ulcers, or other wounds, and take steps to properly treat them. This wound care is part of the daily assistance that should be provided at nursing homes and other care facilities.

Identify Wounds

The first step in treating wounds in nursing home patients is to identify them. It may not always be easy to recognize medical problems. For this reason, caregivers need to be properly trained to watch for wounds on nursing home patients. Some residents are more susceptible to wounds than others. This increased risk factor should be noted in their records so that staff members are more careful to watch for these types of problems.

The Social Security Administration recently released a list of changes to take place in 2017, which included the cost of living adjustment that we discussed in a previous article, as well as a new earnings test limits for those older adults who continue to work but qualify for social security. While the cost of living adjustment came out to a roughly $50 a year increase, the other changes listed by the Administration have encouraged many of those who receive their monthly benefits.

The Earnings Test

In order to provide the most equal distribution based on need, the Social Security Administration has come up with a test in order to determine how much in benefits an individual should be allotted. The earnings test applies to those older adults who have not yet reached their full age of retirement, which is 66 years old, and who are still working. For those beneficiaries who attain full retirement age after 2017, they can claim exemption of earnings up to $16,920 a year, or roughly $1,410 a month.

Nursing Homes

Elderly adults end up in nursing homes for a variety of reasons, including rehabilitation after a hospital stay, voluntary admittance in order to have assistance with their daily care, disability, as well as problematic behaviors associated with mental conditions such as dementia. In order to be admitted and afford to one of these nursing homes, many elderly adults rely on government programs such as Medicaid and Medicare. As a result of their reliance on government funded programs, some nursing homes will end services for an individual if their coverage is running out or they feel that the patient is ready for release, however, the patient may not agree with that same reasoning.

Why Am I Being Discharged?

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.

NEVER TOO LATE TO SAVE ASSETS

As this blog discussed in the past, the Third Circuit case of Zahner v. Pennsylvania Department of Human Services, which issued a major victory to Medicaid recipients everywhere. While the case is only binding to the states under the jurisdiction of the Third Circuit (New Jersey, Pennsylvania, Delaware and the Virgin Islands) it is the only Circuit Court of Appeals opinion in the nation on the issue of short term annuities in the context of Medicaid eligibility and it is a well reasoned opinion resting on a solid foundation of the facts as they are applied to the law.

With respect to Zahner, the Court held that under Medicaid’s Safe Harbor Provision, a short term annuity that does not, at the time of purchase, extend beyond the anticipated life span of the purchaser does not violate Medicaid’s policy against transferring assets within a set lookback period of time and thus does not disqualify a person from qualifying for Medicaid by their purchase. Many people do this so as to protect the collective assets of a couple when one spouse is about to enter a nursing home, to ensure that the community spouse (the spouse not in the nursing home) has a stream of income.

HOST OF BENEFITS OFFERED

There are a number of benefits that the Federal Veterans Administration offers to eligible veterans and their families. While the vast majority of benefits require an eligible veteran or his/her spouse to obtain benefits, there are some limited circumstances when the children, including adult children, may be eligible. Children born with a number of ailments, although mainly spina bifida and conditions secondary to spina bifida, that are direct biological issue of a veteran of the Vietnam war era and who served in country may be eligible for a disability pension. Children of medal of honor winners receive a host of benefits throughout their lifetime, although not all of them are administered by the Veterans Administration. For veterans or their spouses, while not exhaustive, the main benefits that most veterans apply for and receive are:

  1. a military retirement; or

CONVERSION OF LIFE INSURANCE DURING LIFE OF COVERED INDIVIDUAL

As this blog discussed in the past, long term planning insurance is something that many consumers are reluctant to purchase for a number of reasons One of the main reasons for this reluctance is the long term cost may not financially justify its utilization. Life insurance companies recognized this problem and started to allow for a hybrid financial product in their life insurance policies. The life insurance company allows for the conversion of a life insurance policy to pay for the long term care services.

The animating philosophy is that there will be a pay out regardless of whether or not it happens during the insured’s lifetime, so the life insurance company could just as easily pay out on the policy during the insured’s life. Every day over 10,000 baby boomers turn 65, so the population base that could potentially utilize such as a product is growing larger every day. It is estimated that at least 70 percent of the baby boomer population will need some sort of long term care during their lifetime, with 40 percent in need of nursing home treatment.

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