Caregiving

The Law – Charitable Trusts

Published on: August 27, 2016 | by Ettinger Law Firm

An Overview

A trust is established by an individual, referred to as a settlor, who seeks to have their property held for the benefit of another party. When it comes to charitable trusts, the settlor intends to have their property or assets transferred for the benefit of one or more charities.

Charitable ‘split interest’ trusts have a number of benefits, not only because they allow the settlor to give to both charitable and noncharitable beneficiaries, but they also reduce the amount paid in estate taxes, they eliminate capital gains, provide an income tax deduction and also provide for and benefit charitable organizations versus paying the IRS. There are two different kinds of charitable ’split interest’ trusts available, which differ depending on the property or assets you seek to donate to the charity, how you want the property to be distributed, as well as any wealth preservation measures you seek to have followed.

Palliative Care: Know Your Rights To It

Published on: July 24, 2016 | by Ettinger Law Firm

New York Statute

In February 2011, New York amended the Palliative Care Information Act, requiring doctors and nurse practitioners to inform terminally-ill patients about end of life options and counseling regarding palliative care. To receive palliative care information under the New York statute, the patient must reasonably be expected to be within the last six months of his or her life, a standard that is commonly associated with hospice care. The information provided to the terminally ill patients includes their diagnosis and the likely course of the disease, the options that would be available to treat the disease, risks and benefits of those options, and their legal rights to pain and symptom management during their final months. If the patient lacks decision making capacity, their appointed proxy or representative must be provided with the information.

Hospice versus Palliative Care

Validity of Living Wills in New York

Published on: July 20, 2016 | by Ettinger Law Firm

In a previous post titled Health Care Proxy: What is Their Role in My Health Care Decisionmaking?, we discussed the role of health care proxies in your end of life planning and what capabilities they have regarding your medical treatment in the event you are not able to make your own decisions due to incapacity. In New York, naming a health care proxy is commonly done along with the formation of a living will. A living will is another type of advanced directive, it is a written statement that outlines what the patient seeks to have done regarding his or her medical treatment, in the event of incapacity or unconscious. A health care proxy will carry out the terms of a living will when there is one on record, instead of making the medical decisions for the patient which is their traditional role. A living will puts the patient’s loved ones on notice of what the patient’s wishes are and ensures they are carried out.

Interestingly, in New York, legislation has not given guidance as to the right of an incapacitated individual to have their last rights respected. However, courts in New York will, through clear and convincing evidence, attempt to respect those wishes if there is a way for them to be known, i.e. through a written document such as a living will. In the living will, you can state which treatments you wish to refuse in the event that they are being considered for treating your condition. Many forum living wills state that in the event of irreversible physical or mental condition, either due to terminal illness, permanent unconscious condition, or minimal consciousness but inability to make decisions, the patient can decide whether they wish for treatment to be withheld. You can also indicate in which scenarios, such as cardiac resuscitation, artificial feeding, mechanical respiration or refusal of antibiotics, you wish for treatment to be administered or withheld.

When it comes to terminal illness, majority of doctors are quick to respect the wishes of a patient who has completed a living will. Terminal illness is generally the most common and uncontroversial example of a situation where a patient’s living will being recognized by the court. However, situations such as permanent disability have been more difficult to apply living wills to. While some people view disability as an intolerable condition in which they would rather cease living than to have a lesser quality of life, doctors have a difficult time because many people will show signs of improvement over time in situations such as a traumatic accident or episode in which they are left in a lesser state than before.

Home Care Workers Secure Compensation Victory

Published on: July 15, 2016 | by Ettinger Law Firm

While most of us know that the baby boomer population is vast, many do not realize the impact this population will have as they start to retire over the next few decades. In fact, over the next 20 years, 10,000 baby boomers will turn 65 everyday. Between 65-70 years old has been the age of retirement for many, with some retiring early and some pushing through another decade of work. However, as this generation gets older, their need for care will continue to grow.

Federal Level

In late June, the Supreme Court decided not to hear Home Care Association of America v. Weil, a case that was attempting to deprive home care workers of their ability to qualify for minimum wage and additionally, for overtime pay for those hours worked over 40 per week. These home care workers have been part of the ‘Fight for 15’ movement to get equal pay and higher pay for minimum wage. Home care workers have previously been labeled by the Labor Department as ‘companions,’ which does not allow them to qualify as employees who are subject to minimum wage and overtime pay. The rules governing home care workers were not fixed until this past year, when the Labor Department determined that home care employers needed to follow the same rules as any other employer and pay their employees according to minimum wage standards.

Elder Law Concern – Capacity Issues

Published on: July 9, 2016 | by Ettinger Law Firm

Sumner Redstone, founder of Viacom, once again had made headlines recently in his decision to alter the terms of his will, raising questions about his decision making capacity. Mr. Redstone suddenly removed two longtime trusted businessmen and friends, the chief executive and director of Viacom, from the trust that controls the media business when Mr. Redstone dies. After the ouster, both filed suit to invalidate the decision, claiming Mr. Redstone had diminished mental capacity and was being manipulated by his daughter, whom he has had rocky relationship with over the years. This is not the first time Mr. Redstone’s capacity has been challenged however. Prior to the recent ouster, he also has taken his former companions out of his trust, both were estimated to receive $75 million each.

After a series of strokes, Mr. Redstone now has a severe speech impediment that has left him needing an interpreter to speak on his behalf in a recent deposition. However, after evaluation by medical professionals, he has once again been cleared as mental capable of making his own decisions. In his most recent medical evaluation, he recalled why he made the decision to oust the two businessmen, pointing to falling stock prices and their inability to run the company correctly.

What Does Diminished Capacity Mean?

Elders Right to Live in the Community

Published on: June 16, 2016 | by Ettinger Law Firm

In 1999, the United States Supreme Court ruled in Olmstead v. L.C. that, consistent with the Americans with Disabilities Act, individuals with mental disabilities have a right to live within their community as opposed to an institution, if professionals have determined that the patient’s ability to adapt and live in their community is appropriate, the patient can be reasonably accommodated and the move to community living offers a less restrictive setting. Following this ruling, President Clinton then directed all states to evaluate individuals in mental hospitals, as well as nursing homes and state institutions to determine whether they could too be acclimated back into their communities. Due not only to the major expenses facing Medicaid and maintaining nursing homes, this was thought to be a possible solution to overcrowding and retaining civil rights for those affected individuals.

However, in the decade and a half since the Supreme Court ruling and the President’s policy statement, the government has done little comparatively to remedy the problem. This has resulted in too many disabled and handicapped people remaining in institutions against their will and left without a method of recourse. While the federal government can control state spending for nursing homes and how Medicaid is spent, the community based care programs that so many disabled and handicapped people are seeking care from are optional.

Yet, Medicaid only pays for about 40% of all long term care services, thus, major bills are still piling up on patients, and in states such as South Dakota, the state with the highest percentage of individuals in nursing homes that have a low need or no need at all the services provided for the institution, they are forced to remain in the institution to receive any kind of care. With over 1.4 million individuals in nursing homes throughout the United States, some states are taking active steps to address the issue by allocating a portion of Medicaid funds to in-home care.

The Need for Geriatric Specialists & Aging Population

Published on: June 10, 2016 | by Ettinger Law Firm

The Problem

In less than 15 years from now, one fifth of our population will be people 65 and older, and 90% of that population will have one or more chronic conditions to care for. With older age comes the potential for additional health problems and thus a need for additional care from geriatric physicians. The definition of old age does not mean what it used to, people today are living much longer, with men having an average life expectancy of 84 years, while women now have an average life expectancy of almost 87 years. However, with the rapidly growing aging class, there will not be enough geriatricians to supply the need that is quickly looming. Currently, there are roughly 7,000 geriatricians in the United States, a record shortage in the country’s history, and about half of what will be required to adequately address the needs of aging individuals. While regular physicians can treat some of the conditions that the older population faces, their issues are unique and will require specific attention, such as hypertension, arthritis, heart disease, diabetes, osteoporosis and dementia.

Why the Shortage?

SHORT TERM ANNUITIES FOR THOSE ALREADY IN NURSING HOME

Published on: May 31, 2016 | by Ettinger Law Firm

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.

MULTI-GENERATIONAL HOUSING

Published on: May 27, 2016 | by Ettinger Law Firm

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.

NURSING HOMES UNDER THE MICROSCOPE

Published on: May 24, 2016 | by Ettinger Law Firm

FURTHER INVESTIGATION INTO NEW YORK NURSING HOMES

Nurses are often on the frontline of dealing with issues of elder law, with their often compassionate personal sacrifices, mixed with their almost always professional approach to the care and treatment of their patients in any number of nursing homes across the state. They deal with some of the most intimate, personal and human experiences up front and personal. The vast majority of nurses across the state that work in nursing homes and with the elderly (as well as in other fields and venues) are quiet professionals who are content to simply do their job and move one in life.

New York, however, is one of only a handful of states that has lax licensing regulations and enforcement. New York’s nursing licensure schema requires nurses to self report any criminal convictions and may take years before it actually disciplines a nurse for egregious conduct. Currently the New York state Department of Education, Office of Professions sets the rules and regulations for nurses and issues nursing licenses in the state. This blog explored a well reported ProPublica investigation into nursing home abuse almost three months ago. Following the extensive investigative journalism piece, the federal government opened its own investigation on several different levels.