Articles Tagged with manhattan elder law attorney

Caregivers are in high demand and that demand is ever increasing as the aging population continuously grows every day. However, caregiving can be a difficult and underappreciated job that has left it with little public desire to go into the field, due to the lack of benefits, support and adequate pay. As a way to motivate those seeking employment to explore the field of caretaking and to help provide for those who are currently caregivers, new technology is being established in order to help support and ease communication between caregivers and the elderly they support.

Seeing the struggle for adequate communication measures between caregivers, their elderly client, the elderly client’s family, one technology company is seeking to establish a smartphone application that will hopefully increase that transparency. When caregivers sign up through the application, they will be able to directly communicate with their client and their client’s family members, log all appropriate information in one place on the application , as well as request time off, similar to many corporate structures. Caregiver are able to leave detailed notes about events of the day as well as medication schedules.

Another issue with caregiving is the inability of the caretaker to take time off due to lack of backup support. This application is aimed at offering that back up support, along with paid time off and many other benefits, if properly certified through the company. In order to receive these benefits, the caregiver must be trained through Care Pros, the official caregiver network, which will come with a number of additional benefits.  Caretakers can also opt for workers’ compensation benefits in the event that they sustain an injury on the job, which can be a real possibility when a fair amount of heavy lifting is required. Additionally, caretaker are offered stock options as well as pay that is at least 10% above the market rate in their area of employment.

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.

In continued efforts to protect the rights of elders, The Department of Health and Human Services has passed a rule to further ensure that elders are not taken advantage of and have the right to decide whether they seek a trial or alternative dispute resolution measures when bringing a legal claim. Currently, a majority of nursing home contracts contain arbitration clauses in the event that a residents bring a claim against the nursing home for incidents such as safety, quality of care, sexual harassment, elder abuse,  as well as wrongful death.

Arbitration is a method of alternative dispute resolution that is used as a way to settle a legal claim instead of using litigation. Arbitration involves both parties and a third party neutral arbitrator, who listens to both sides present their case, similar to a judge, and renders a decision after both sides are heard. While arbitration can be a very useful and effective legal tool, the implementation of mandatory arbitration has left room for abuse of the system and injustice for residents and their families who seek legal recourse when bringing their claim. One benefit of arbitration is that it is also a private process; unlike legal proceedings, arbitration proceedings and their rulings will not be made public record, which makes it more difficult to measure rates concerning legal claims brought by elders against nursing homes.

Currently, there are roughly 1.5 million elders in nursing homes who are said to be affected as a result of this rule change, and this number will continue to grow. There may be some confusion regarding the applicability of this new rule however; the rule will only apply to new nursing home contracts that are entered into going forward. Those nursing home contracts already existing that contain a mandatory arbitration clause will be enforceable under the Federal Arbitration Act, according to the Center for Medicare & Medicaid Services. Additionally, a nursing home and potential resident can enter into a contract for arbitration if they wish, but it will not be mandatory in their contract.

MOLST Forms, What Are They?

Easily identifiable by its bright pink color, another advance directive has been approved for use in New York medical treatment and healthcare administration. Medical Orders for Life Sustaining Treatment are medical forms similar to a DNR Order, being that they both provide for life of end care preferences. However, Medical Orders for Life Sustaining Treatment (MOLST) not only allows a patient to refuse resuscitation in the event it is needed, but it also allows for a patient to state when they would allow or request it. Once the form was approved in 2008, EMT agencies now may use the MOLST form without needing a non-hospital DNR order, however, they must honor the DNR bracelet if worn by the patient or a non-hospital DNR form if it is on file.

How it Differs from DNR Orders

CERTAIN LIMITATIONS ON SPECIAL NEEDS TRUSTS

Last year a case out of the Western District of Massachusetts Federal District Court dealt with the interplay of a special needs trust and eligibility for certain governmental benefits that the special needs trust was supposed to address. The case of DeCambre v. Brookline Housing Authority dealt with the beneficiary of a valid special needs trust who applied for a section eight housing voucher but was denied because of income that she received from a third party special needs trust, established by a Court. Ms. DeCambre was involved in a catastrophic accident which resulted in a series of settlements, with the proceeds directly deposited into the special needs trust. She received a total of $330,000.

The trust did not earn any income of it’s own, the truste only distributed the income in line with the terms of the trust and charged the normal and typical trustee fees. Ms. DeCambre did not have any control over the distribution of the income or money in the trust. The Court noted that the special needs trust was indeed valid and in conformity with the special needs trust enabling statute, found at 42 U.S.C. § 1396p(d)(4)(A) and (C). Indeed, the Court noted that Ms. DeCambre benefited from this trust insofar as she received Supplemental Security Income of approximately $850 per month and validly received Medicaid. These programs, the Court noted, specifically excluded the income from the a valid special needs trust. Ms. DeCambre applied for a section eight housing voucher through the Department of Housing and Urban Development (HUD) in 2005. The voucher was approved and provided from 2005 through to 2012, when HUD reduced it by approximately $1,000 per month, based on her income from the special needs trust. Ms. DeCambre sued HUD in Federal Court on several statutory grounds, based on HUD’s decision to reduce the amount of her housing voucher.

FEDERAL DEFINITION OF ELDER ABUSE AND FEDERAL RESPONSE

In these United States it is often that many things are left up to the states for criminal and civil enforcement. While the federal government does have a statute for murder, it is generally only applied to events that occur on federal lands or of federal agents or employees or when the murderer is allegedly motivated by racial animus or something similar. As such, it is not surprising that there is no general federal legal definition of certain acts that are criminal in nature, such as robbery or extortion. On certain matters, which Congress declared of critical importance, the federal government created defitions that it expects states to follow in substantial regards. For example, foster care placement and adoption, is of such critical importance that Congress created a series of laws that defines a host of things, such as abuse and neglect, when foster care is needed, when the state is to move towards adoption and away from working with the parents.

It creates strong incentives for states to adopt these statutes by offering financial backing. In other words, it underwrites a certain program if the state adopts the law that is substantially in line with the federal government model. The same tactic is employed in the fight against elder abuse. Recently three Senators introduced the Elder Protection and Abuse Prevention Act (the Act), which, seeks, in part, to amend the definition of elder abuse found in the Older American’s Act. But this definition was not tied to block grants to states. The first time Congress authorized a block grant to the state for purposes of elder abuse was in 2010 with the Elder Justice Act. More importantly, Congress never appropriated money for the programs that it statutorily authorized and mandated with the Elder Justice Act.

CASE OF POTENTIALLY NATIONAL IMPORTANCE REPORTED IN NEW YORK TIMES

On August 21, 2009 a tragic event occurred at a nursing home in the quaint coastal town of South Dartmouth, Massachusetts. Elizabeth Barrow was over 100 years old at the time of the tragedy, but told her son on her birthday when she turned 100 that she wanted to live to be 104. The New York Times article describes her as a sweet, compassionate woman full of verve and love even in her advanced age. She was known around the nursing home as offering people hugs. It is no surprise that she made friends quickly and was quite popular amongst the fellow residents. Mrs. Barrow entered the nursing him in 2006 with her husband, with whom she shared a room. She felt fortunate just the same because her room gave her a terrific southern exposure, which helped her grow her beloved african violets. Then in 2008 Ms. Barrow’s new roommate moved in with her, after the new roommate had an argument with her previous roommate.

The exact nature of the relationship between Ms. Barrow and her roommate and very much in dispute. What is known is that soon after Ms. Barrow’s death the local District Attorney filed second degree murder charges against the 98 year old roommate. Soon after the charges were filed, the Defendant was found incompetent to stand trial. As of the time of the writing of the New York Times article, the Defendant was still alive at 104 in a local state hospital. Given her advanced age it is unlikely she will ever stand trial.

On February 10, 2016 the United States Immigration and Customs Enforcement (‘ICE’) announced in a policy document that appears to coincide with ranking ICE officials testimony before the United States Senate Special Committee on Aging that it recently launched ‘Operation Cocoon‘ to help curtail the use of “elderly citizens” unknowingly acting as drug couriers, or drug mules as couriers are sometimes referred to as, from foreign countries to the United States or to other foreign countries. While not part of the policy document released, typical of the victims of such scams is J. Byron Martin a 77 year old retired minister from Maine, who thought he was helping a fellow soul by transporting what he believed to be books from Peru to London via Spain.

It turned out that the books in issue had drugs secreted away in them. Mr. Martin’s son, Andy Martin of Henderson, Nevada testified that his father was never arrested in his 70 plus years on this planet prior to this episode. Mr. Martin is now serving a seven year sentence of incarceration in Spain. Senator Susan Collins presided over the hearing and indicated that the ensnared seniors are duped into transporting the drugs, those with the requisite criminal intent secret the drugs away in “chocolates, picture frames, tea, markers, canned goods, shampoo bootles, soap and wooden hangers.” The hearings were an effort to get the word out about this very serious danger. Both the Senate Committee on Aging and ICE operate a toll free number to report suspected scams. That number for ICE is (866) DHS-2-ICE; (866) 347-2423. The phone number for the Senate Committee on aging is (855) 303-9470.

RAW NUMBERS

GOLDEN LIVING CENTER SEEKING TO FORCE ARBITRATION

On December 18, 2015, national long term care facility operator, Golden Living Centers filed a writ of certiorari with the United States Supreme Court to review a decision of the Pennsylvania Supreme Court issued on October 27, 2015. The Pennsylvania Supreme Court determined that the arbitration agreement was void due to reliance on the National Arbitration Forum as the exclusive arbitrator.

The National Arbitration Forum, based in Minneapolis, Minnesota, no longer accepts consumer cases pursuant a consent decree with Minnesota Attorney General, Lori Swanson. According to Plaintiff’s counsel (the prevailing party), the Pennsylvania Supreme Court also noted a distorted “lopsided balance of power” between the “far less sophisticated non-drafting party” and the national corporation. As such, the Pennsylvania Supreme Court implicitly framed the matter as a consumer contract, which creates further complications for the Defendant corporation. Consumer contracts are governed by a whole different set of rules and regulations, such as Regulation Z which grants consumers a three day right of rescission on all consumer contracts. Regulation Z controls in timeshare purchases and home refinance loans, so the idea that it would control in nursing home contracts is not a far stretch of existing law.

WHAT IS BEST FIT

Both an ABLE Act account and a special needs trusts try to accomplish essentially the same thing. Both attempt to ensure that a special needs child or person are financially planned for through various legal and financial means so as to enrich the life of the beneficiary. An ABLE Act account as well as a special needs trust also aim to protect the beneficiaries valuable governmental benefits that utilize a means based testing for eligibility purposes. While both products roughly accomplish the same thing, one may be better at accomplishing one thing rather than the other.

TWO DIFFERENT MEANS TO ONE END

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