Articles Tagged with new york elder law

The Erie County Department of Senior Services recently announced the date for its 17th annual Elder Law Day event. The program will take place from 2pm to 8pm on Thursday, June 22, at the Adam’s Mark Hotel, 120 Church St., Buffalo, New York. The event helps educates seniors and the greater public about many health, safety, and legal issues many of our beloved elders face in these modern times.

The free event will touch on such topics as Medicare, Medicare Supplemental and Managed Care plans, HMO’s, PPO’s, Part D coverage and long term care insurance to help seniors and their families make informed decisions about elder health care needs. Event Goers can also sit down with sponsors to discuss topics like Medicaid planning, estates, trusts, wills, housing, consumer, health insurance and much more.

“Elder Law Day is full of valuable information and is a great opportunity for seniors and caregivers to learn about their rights, get answers to their questions, and build a plan for the future. These events have been tremendously popular in the past and have proven to be a good way to get information into the hands of people who need it,” said Tim Hogues, Erie County Commissioner of Senior Services. “Elder Law Day brings together professionals from all around the aging spectrum to share their knowledge and actually help seniors right on the spot. I encourage seniors, caregivers, and anyone who needs the latest information on any aspect of senior life to attend.”

The passing of a loved one is never an easy event. While families take time to grieve and mourn the loss of a parent or spouse, many estate-related details that can greatly impact the estate’s financial situation may be overlooked. By taking some time to understand what types of benefits Social Security Insurance (SSI) recipients qualified for before their passing, surviving family members can more easily claim these benefits and relieve some of the financial strain of laying a loved one to rest.

Believe it or not, many people forget to claim SSI death benefits after the passing of a senior loved one. These benefits help provide funds towards the cost of funeral or burial for surviving spouses or children of SSI eligible individuals. The program is administered by the U.S. Social Security Administration (SSA) and provides a $225 Social Security Lump Sum Death Payment (LSDP) benefit.

President Franklin D. Roosevelt created the administration in 1935 during his first term during the New Deal. The SSA provides benefits for the elderly, disabled, widows, and many other vulnerable citizens. The $225 is the original amount written into law and stands today to aid those in need.

Anyone with a spouse stricken by Alzheimer’s disease knows exactly how devastating the condition is on the patient and how taxing it can be on the person administering care. Often times, senior act as primary caregivers to their spouses battling Alzheimer’s, a testament to their love and commitment until the very end.

While the nature of alzheimer’s disease means afflicted persons do not often outlive their spouses, those acting as caregivers should nonetheless plan for contingencies such as these to ensure their surviving spouse is well taken care of. Depending on the disease’s progression and the overall health of each spouse, couples may need to plan differently to suit their individual situation.

First and foremost, elder spouses need to ensure their power of attorney is up to date and names the caregiver spouse as the primary decision maker for the individual afflicted with Alzheimer’s. Furthermore, this document should give the caretaker the power to name another individual as the decision maker upon passing away.

When someone passes away, he or she typically has the estate in order by creating a will or trust and designating an executor to oversee the dispersal of assets to named beneficiaries, ensuring a smooth process during a time of grief. However, even the wills and trusts that seem cut and dry can face legal challenges to parties claiming to have a stake in the estate and are rightfully entitled to certain assets.

Fortunately, New York and other states have laws on the books known as “dead man’s statutes” that help to exclude testimony concerning conversations between the deceased and the individual challenging the estate. The main reason to exclude such conversations as evidence from probate proceedings is to prevent purgery and the introduction of evidence that cannot otherwise be verified.

While not limited to cases involving trusts and estates, New York Surrogate Courts often find themselves hearing arguments involving the dead man’s statute. There are three-exceptions to the exclusion of testimony by interested parties under New York law. These exceptions include:

Barring the creation of a trust, all estates must pass through probate court to certify the estate before assets may be disbursed to beneficiaries. In New York state, every one of the 62-counties has at least one Surrogate Court (New York and Kings Counties have two) to hear all types of matters related to decedents and their estates as well as certain types of guardianship proceedings and adoptions.

The law invests these powers to Surrogate Courts through the New York Surrogate’s Court Procedure Act (SCP). The section pertaining specifically to probate cases is NY SURR CT PRO § 201.3 and reads:

“The court shall continue to exercise full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents, and upon the return of any process to try and determine all questions, legal or equitable, arising between any or all of the parties to any action or proceeding, or between any party and any other person having any claim or interest therein, over whom jurisdiction has been obtained as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires.”

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.

Aging comes with a number of considerations, including how to deal with ailments, conditions associated with older age, as well as how method of treatment is best for you or a close loved one. Today, there are an overwhelming amount of options to choose from when it comes to pain management and treatment for chronic conditions, however, many of them can become very addictive. One somewhat controversial treatment option for pain management being used by a number of elderly citizens is the use of medical marijuana.

Although the use of marijuana whether medicinally or recreationally is illegal under federal law, over half of the states have decriminalized and now approved it for use medicinally. Based on numerous studies and research, it has been shown that as compared to other pain management treatments, the use of marijuana leaves less risk for addiction, fewer side effects, as well as allowing individuals to still go about their daily lives while managing health issues. Health issues associated with aging include autoimmune diseases such as multiple sclerosis, arthritis, as well as cancer, dementia and Parkinson’s disease, which have all been approved under conditions managed using medicinal marijuana.

While the current elderly population has been somewhat skeptical of what they have known as an illegal drug being approved for use in the medical setting, as more states make it legal for use, approval among the older generations increases. Since many seniors are seeking to determine if use of marijuana is suitable for their condition, many nursing homes and assisted living facilities have had to come up with their own policies, either endorsing or shaming it’s use. Almost a dozen nursing homes in the state of Washington have amended their policies to respond to the demand for approval of medical marijuana as treatment in their facilities.

The legal rights of illegitimate children and their ability to take under the terms of a trust have for years been the subject of many litigation proceedings. Illegitimate children are traditionally known as children who are born out of wedlock or to unmarried parents, however, the most widely known cases are those children who were born as the result of an affair by either or both parents. When one parent is the beneficiary of the grantor of a trust, the other spouse of the child, when old enough, may try to assert claims that they are also entitled to access the trust due to blood relation.

How Does an Illegitimate Child Take?

While traditionally under common law, an illegitimate child was not seen as a legal child of either parent, with no right of parental support or right of inheritance, today the laws have changed to better reflect the rights of an illegitimate child. Although states differ regarding their laws on wills and trusts, many now favor giving children rights, under statutes such as The Status of the Children Act as well as the Equal Protection Act. Under the Status of the Children Act, there is a presumption that any reference to children not further defined in a will includes both legitimate and illegitimate children, regardless of their relationship to the father.  

Daily, thousands of baby boomers are forced to make the decision as to whether they need care and assistance as they continue to age. Currently, there are 1.4 million adults residing in nursing homes and that number will only continue to grow over the next few decades. Plans for how to cover the millions of adults who thought they would rely on Medicare and Medicaid in their old age as well as where they will live and who will assist in taking care of them if needed, are questions that must be addressed soon.

Thus, it is not surprising that it took four years and thousands of comments in the rulemaking process in order to revise the broad nursing home regulations that were put in place in the 1990s under the Nursing Home Reform Act. Nursing homes must comply with federal nursing home regulations, but some state laws have adopted more strict laws.

What New Regulations?

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.

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