Elder Law

LONG TERM COMMUNITY CARE REPORT CARD

Published on: November 4, 2015 | by Ettinger Law Firm

2015 REPORT ON LONG TERM COMMUNITY CARE FACILITY SAFETY AND INTEGRITY

On April 21, 2015, the Long Term Care Community Coalition issued a 30 page comprehensive report to document and report on the state of the long term care community. It was a report card of sorts, where the report notes “significant problems in resident care, quality of life and dignity are pervasive across the country.” Indeed, the report gives a failing grade for enforcement of the robust laws that provide promises of dignity and superior care. More specifically, the report notes that long term care facilities have “inadequate care staff” and provide subpar care, lacking in dignity “because there is nothing stopping them from doing otherwise.” There are too often little or no consequences when the facility fail to live up to the standards that they are contractually bound to, even when these shortcomings result in “significant suffering.”

The Coalition wrote an additional report focused on New York for various reasons. New York’s findings can be found here. The New York report is even more detailed, at least as judged from the fact that it is 18 pages longer than the national report.

DONATE MY BODY TO SCIENCE

Published on: October 29, 2015 | by Ettinger Law Firm

Donating an organ or even a whole body for scientific study or medical education is a relatively common event, which permits a person with perhaps a rare or not well understood disease to contribute to medical science. Even if the person passes without a disease or any unique characteristics, medical schools need these volunteers for very important work. Some people see their act as an act of charity, a way of giving a gift to society. Organ donation helps to reach even more people by providing spare parts for surgeons, for those who need a replacement organ or tissue. It has been estimated that 114,000 Americans are awaiting organ transplants and that one person is added to the list every 11 minutes and that each year 6,600 people die each year while on the organ transplant list.

ANATOMICAL GIFTS PERMITTED VIA WILL

In 2005, the New York legislature passed a law which made it easier to give an anatomical gift. Organ donation is easy enough now, as it can be a mere check the box designation on your driver’s license. No additional signatures or witnesses are needed. New York further permits a person to validly donate their organs or their whole body by way of will. If the will is later invalidated, the donation is considered valid and any physician or medical school acting on the gift is shielded from liability. Some people with religious or moral objections to donating their body may still decide to donate organs without violating their conscience or religion. Even with these provisions in place, it is still best to discuss these decisions with your family and loved ones.

Health Care Power of Attorney Good Planning Tool for Seniors & Singles

Published on: October 19, 2015 | by Ettinger Law Firm

News reports reveal that America is increasingly becoming a nation of single people. For adults navigating life solo, careful planning about who will make health care decisions on their behalf in the face of unforeseen, incapacitating illness is a smart decision, especially for singles who are childless, have minor children and/or are estranged from their families. One available option is an advanced directive called a Durable Power of Attorney (DPOA) for health care. It allows singles to appoint an agent to step in and carry out their wishes when they are unable to make critical medical decisions for themselves.

Most states have enacted advanced directives legislation. This contract allows a person, called a principal, to designate to a selected agent the power to make decisions about the course of medical care should the principal become incapacitated. Decisions covered by a DPOA for health care include such things as the power to consent to or withdraw treatment for physical or mental conditions, or to determine when to initiate or terminate life-sustaining treatment.

Health care DPOA gives singles autonomy

Who will Manage Your Affairs in the Event You are Incapacitated?

Published on: October 1, 2015 | by Ettinger Law Firm

No one likes to consider the fact that they may one day need help in managing their affairs, but the fact remains many people will need a fiduciary they can trust to act on their behalf when incapacitated. Typically as part of an estate plan, an individual will execute a power of attorney appointing one or more individuals of their choice to manage their health care decisions and financial matters in the event they can no longer handle their own affairs. Powers of attorney can vary in scope and purposes, and can serve as one method to avoid judicial intervention, including guardianship or conservatorship proceedings.

Guardianship Proceedings

When a health care or financial power of attorney are not sufficient or absent from an estate plan, a guardianship or conservatorship proceeding may be necessary to appoint someone to represent the person suffering an incapacity. In New York, a proceeding for guardianship can be commenced by a variety of parties, including, a distributee of the incapacitated person’s estate, certain fiduciaries, an interested party concerned with the welfare of the individual, or the incapacitated person himself. Incapacity is determined by clear and convincing evidence that the individual is unable to manage their own affairs and is unable to understand the consequences surrounding their inability in such a way that will likely cause harm to themself or others.Courts will consider a variety of factors when selecting a guardian, including the incapacitated person’s specific needs and the capabilities of the proposed guardian in meeting those needs.

Tax Planning for Required Minimum Distributions

Published on: September 16, 2015 | by Ettinger Law Firm

Not all investments are created equal. You investment portfolio may include a 401(k), individual retirement account, pension plan, or deferred compensation plan, among others investment vehicles. Whether your investment trust account is qualified under the Internal Revenue Code will determine the tax treatment of your contributions and withdrawals.

Qualified vs. Non-Qualified Investment Accounts

A tax-qualified account features the ability to contribute income to the qualified account and defer tax on the account funds. Typically, you must be 59 ½ to withdrawal funds from a tax-qualified account without penalty. Conversely, non-qualified accounts do not offer tax deferred treatment. When you withdraw funds from a tax-qualified account, your entire withdrawal will be taxable, as opposed to being taxed on only the growth of your non-qualified account. Qualified tax plans include, but are not limited to:

Nursing Home Contracts: Before You Sign On the Dotted Line

Published on: September 12, 2015 | by Ettinger Law Firm

At some point in your life you or a loved one may need full time care in a nursing home facility. As part of the process of being admitted into a nursing home you, on your own behalf or on behalf of a loved one, may have to sign a nursing home agreement that outlines the terms and conditions of your residency in the facility. This agreement, by whatever name it may be called, e.g., admission agreement, provider agreement, or nursing home contract, is a legally binding document that governs the relationship between you and the nursing home. For that reason it is important that you become familiar with the terms and conditions in the nursing home contract for your own benefit or to protect your loved one.

Understand Your Rights

Every nursing home resident has rights that nursing homes are required to honor. These rights include, among others, access to quality medical care, the freedom from discrimination and third party payment guarantees, and a complete and understandable disclosure of the facility’s rules and regulations. You have the right to be an active participant in your care, and be informed of your treatment, and the operations of the facility in which you or a loved one are a resident. However, sometimes nursing home facilities either ignore the rights of the patients in their facility, or act in a negligent manner. To the extent you have a dispute with the facility, residents have the right to assert your grievances to the nursing home, and even government officials, without the fear of reprisal.

Prepaid Burial Expenses: An Often Overlooked Part of Medicaid Planning

Published on: September 3, 2015 | by Ettinger Law Firm

When planning for the possibility of eventual nursing home admission, the key is not so much building up assets, but rather, spending as much as possible in ways that will not trigger penalties or ineligibility. So, some of the best tricks are finding exempt expenditures; these are things Medicaid allows you to spend money on without being considered part of your assets.

Prepaid burial

When it comes to the morbid topic of death, no one likes thinking about purchasing the last piece of property they will ever live on, but everyone does eventually die. Not thinking about it will not stop it from happening. Since we know death is inevitable, paying for that burial plot now will take that money out of the scope of Medicaid. There are also other alternatives that may qualify. Loved ones will have to shell out the money to bury you later anyway, so at least this money is now not going to the nursing home.

New York Nursing Homes Beware – Medicaid Fraud Under Fire

Published on: August 27, 2015 | by Ettinger Law Firm

New York’s Attorney General, Eric Schneiderman, unveiled a sweeping Fraud Control Unit designed to target healthcare providers who abuse the Medicaid system. According to the AG’s website, they are continuing to add dozens of prosecutors and investigators to keep up with reports and investigations. Nursing homes throughout the country are largely paid by Medicaid funds. To stay profitable, nursing homes must remain at near full occupancy. This often means cutting corners, refusing to transfer residents who need critical care or higher levels of care, and even billing for services that are not (or cannot be) provided. Below are just three simple examples of Medicaid fraud in nursing homes.

Billing for Services Not Rendered

When a resident goes to a skilled nursing facility, the resident and his or her family typically sign a contract and apply for Medicaid. At times, the application takes some time to be approved, but once it is, the money begins flowing to the nursing home, paying for whatever services are billed. There are fairly strict rules on what the facility can bill for and how much they are paid.

The Happiest and Healthiest Careers to Retire From – Part 1

Published on: August 20, 2015 | by Ettinger Law Firm

Forbes loves to tell us who the happiest workers are, or what the healthiest careers are. But no one seems to talk about post-job satisfaction. While these types of articles are generally highly subjective, we can certainly look at professions that tend to produce happier retirees. Whether these can actually be ranked is another thing altogether.

The following list focuses on just 3 areas of health and satisfaction: smoking rates, self-reported job satisfaction, and obesity rates. Obviously, there are plenty of other areas that play a role in health and happiness, but these are generally good indicators as well.

Nurses

Grisham’s Recent Sycamore Row Highlights Complications When Leaving Estate to a Caregiver

Published on: August 18, 2015 | by Ettinger Law Firm

John Grisham, internationally recognized author known for writing captivating legal suspense and drama, released a slightly different type of book in 2013. While most of Grisham’s stories center on violent crimes and courtroom battles, Sycamore Row makes a stark departure into the world of probate law.

Sycamore Row begins with the suicide of a wealthy landowner, Seth Hubbard. He drafts a holographic will and instructions for a trusted employee to deliver it to a small town lawyer. Hubbard knows that his will undoubtedly is going to cause a stir and lead to a will contest by his children. After all, he left the majority of this estate to his African American caregiver. The story details the struggles and litigation of the will contest, which seeks to undo his last wishes.

Holographic Wills