Caregiving

ALZHEIMER’S ASSOCIATION RELEASES 2O16 REPORT

Published on: May 17, 2016 | by Ettinger Law Firm

STAGGERING FIGURES

The Alzheimer’s Association recently released its 2016 Alzheimer’s facts and figures report earlier this month with a long list of many facts and figures, as the reports name implies. While the Alzheimer’s Association produces and publishes its report yearly, the 2016 report highlights the personal financial impact that the disease has on family caregivers. Most specifically, the report helps to show the amazing costs that are shouldered by American families in caring for patients with not just Alzheimer’s but dementia and those with general cognitive delays. In New York alone there are estimated to be 390,000 Alzheimer patients. The Alzheimer’s Association also estimates that there will be approximately 460,000 patients by 2025, an increase of approximately 20%. Overall, 4.7 million Americans are diagnosed with Alzheimer’s. That number is expected to triple by 2050. The emotional impact is already high, yet there is hope. Dr. Samuel Cohen gave a TED talk in late 2015 outlining breakthroughs that could spell a cure for the disease, which would in turn mean that the above numbers would indeed need to be revised.

As for the caregivers, there are approximately 16 million of you in the country who give your time and energy for your loved ones without any financial recompense. You give 18 billion hours of unpaid care for your parents, grandparents and other family members. National Public Radio (NPR) produced a report on the financial impact to individuals and families on March 30, 2016 which showed that the average caretaker used their own financial resources to help their loved ones with Alzheimer’s. The average cost was around $400 per month ($4,800 per year), although some spent up to $10,000 per year to help their relatives with Alzheimer’s. Oftentimes, the caretaker had to make choices between of certain necessities, for example, between food and medical care. As if the financial hit was not enough, it often necessitated that the caretaker reduce their own working hours to care for their loved ones with Alzheimer’s, thereby reducing their income even further. Many caretakers had to sell their own personal belongings to help make ends meet. Some were even reduced to basic poverty levels.

DEPENDENT CARE ASSISTANCE PROGRAM

Published on: May 3, 2016 | by Ettinger Law Firm

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.

INTERSTATE ADULT GUARDIANSHIPS

Published on: April 19, 2016 | by Ettinger Law Firm

INCREASING IN FREQUENCY

Guardians across the country are beginning to grapple with a larger phenomena of life in these United States: that we are a mobile society. Many times these decisions are made by legally competent adults who have the right to decide where they want to live. When it comes to the decisions of an older population, those decisions are animated by such things as access to good health care, location of relatives and loved ones as well as climate and quality of life. Many of those same elderly citizens who move are only in their current location because they may have recently retired and that is where they worked for several decades. Family and home may be elsewhere. It is very common for people to have family that they are close to strewn out across the country, allowing such people a number of locations and climates to chose from. These same facts and drives also apply to people who are involved in adult guardianships. It is not uncommon for these individuals to move from one jurisdiction to another to obtain specialized treatment. With an aging population, these issues are only increasing in frequency.

One would assume that a Court in one state would honor a judgment of guardianship from another. After all the federal Constitution requires states to grant full faith and credit to the judgments of sister states. Often this is the case, but not always. Different standards apply in different states and questions and concerns may arise when one state’s laws require a guardianship to be vacated when the original state contemplated that it would last for life due to the first state’s different laws and the guardian made plans accordingly. How does that influence the issue of continued care? How does the lack of capacity of the protected party affect the decision of the Court? Moreover, when does one state assert jurisdiction and the other relinquish? Courts cannot enter an Order without jurisdiction. Some nightmare scenarios could play out, as they did in the Alabama case of Sears v. Hampton in 2013, without some basic standards to tell Courts how to measure its decisions.

HOME CARE SERVICES IN NEW YORK STATE

Published on: March 29, 2016 | by Ettinger Law Firm

IN HOME PERSONAL ASSISTANTS

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.

PARENTAL VISITATION LAWS – RIGHT TO VISIT PARENT OF ADULT CHILDREN

Published on: March 22, 2016 | by Ettinger Law Firm

ANOTHER CELEBRITY CASE MAKING CHANGES

In the last few months that Casey Kasem had on this earth, he was the center of a brouhaha between his daughter, Kerri Kasem, and her stepmother, Jean Kasem, Mr. Kasem’s second wife. More specifically, Kerri Kasem alleged that at the end of the Mr. Kasem’s life she tried to visit with him but was not allowed until she forced the issue via a court Order. Kerri obviously cared deeply for her father and was clearly distraught over how everything played out during Ms. Kasem’s last few months as almost anyone would. She decided to do something about it and created the Kasem Cares Foundation to advocate for parental visitation laws.

It is not surprising that Kerri Kasem sound to advocate for change, as Mr. Kasem was well known for his advocacy against things such as factory farming and his refusal to engage in movies as a voice actor that portrayed Arabs in a negative light; the Kasem’s are of Lebanese heritage. Kerri Kasem also followed her father into the radio industry. Mr. Kasem passed away on June 15, 2014 and in the last two years, the foundation can justifiably claim some modest success.

NURSING HOME EVICTIONS

Published on: March 17, 2016 | by Ettinger Law Firm

LEADING COMPLAINT ABOUT NURSING HOME IS EVICTIONS

On February 25, 2016 National Public Radio (NPR) ran a story about what is looking to become like a national epidemic: nursing home evictions. According to statistics between 8,000 and 9,000 nursing home residents complain each year about nursing home evictions. The problem with this statistic is that it only measures the complaints, not the actual evictions. As if not being able to measure the full extent of the actual problem is not enough, there is a larger, more grievous issue wrapped up in the issue of nursing home evictions. According to the ombudsman to the Federal Department of Health and Human Services, Administration on Aging, it is the number one complaint regarding nursing facilities. In many cases the nursing home wrongfully evicted the resident(s) but will not honor rulings that find that the nursing home wrongfully evicted the resident. The entity that decides if a facility wrongfully evicts a resident is not the same entity to enforce its own decision. Without a sister state agency to enforce its decision (much like one state honoring a sister state’s money judgment on full faith and credit), such legal endeavors by residents are simply an exercise in futility. The rulings are not worth the paper they are printed on. It is a prime example of a bureaucracy run amok; without teeth to enforce its own ruling. One can and should rightfully ask, why do the agencies even bother to engage in a hearing to only allow the offending party to blithely ignore its ruling?

FEDERAL CASE TO FORCE CALIFORNIA TO ACT

MAJOR NURSING HOME CASE TESTING MANDATORY ARBITRATION CLAUSE

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

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.

PRE-PAID FUNERAL S IN NEW YORK

Published on: February 26, 2016 | by Ettinger Law Firm

NEW YORK PROTECTIONS

Many people are leary about purchasing a pre-paid funeral. This blog discussed some of the issues common to prepaid funerals. In 2002, the American Association of Retired People (AARP) issued a consumer “scam alert” warning people to preplan but not prepay for their funerals. Indeed, often this is good advice. What really should be discussed and should be planned for and paid for is an irrevocable prepaid funeral fund.

It will not render a person ineligible for Medicaid, as Medicaid treats irrevocable trusts as an exempt asset. Some prepaid funeral plans incur account maintenance fees or various other unforeseen problems could result from prepaying for a funeral. It is important to note, however, that New York has some of the strongest consumer protection laws in place for prepaid funerals. Most specifically, the law requires that the money be put into an individual account – as opposed to an account for all of the individuals who prepay for their funeral through a particular funeral director or funeral home – that is both interest bearing and insured, which remains the property of the consumer. If the funds are in a revocable account, the consumer may request a full refund at any time. The funeral home or funeral director also ensures that the consumer receives a notice of what bank the funds are held in and as well as a statement of any interested earned.

ADULT GUARDIANSHIPS, RESTORING RIGHTS

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

GUARDIANSHIP CAN BE VACATED

As this blog has discussed in some detail in the past, Adult Guardianship is a complicated area of the law, dealing with many sensitive issues of personal power, ability and basic competence. On a very basic level, guardianship is a judgment that is entered by a Court, which allows one person the the legal right to exercise decision making over another. The basic medical reality is that once competency is gone, an individual often does not regain that capacity back.

As such, when a Judgment of Guardianship is entered is often permanent. There are plenty of cases to show that this is indeed not so common so as to consider it an inalterable rule. The law recognizes this fact and allows for a judgment of guardianship to be vacated if and when a person regains their facilities. Under current New York law, a guardianship Judgment may be entered upon the consent of the ward (protected party), or, if not by consent, then by clear and convincing evidence that someone (either the potential ward or a third party) will likely suffer harm because :

NURSING HOME CHAIN FILES PETITION FOR REVIEW OF CASE WITH UNITED STATES SUPREME COURT

Published on: February 7, 2016 | by Ettinger Law Firm

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.