Elder Law

Guardianship over Personal Affairs and Property: Not Just for the Incapacitated

Published on: October 23, 2013 | by Ettinger Law Firm

Many of us can relate to growing concerns over loved ones as they continue to age and require more assistance. It can be challenging to meet these changing needs while still recognizing that our elderly loved ones are capable of performing some tasks on their own. It may seem obvious that legal remedies exist for those addressing extreme issues brought up by dementia and other forms of degenerative disease in elderly family members, who may entirely depend on a third party for assistance with daily life activities. What may not be as obvious is that those solutions are legally available to help address our elderly loved one’s needs without necessarily having them declared incompetent, while also enabling them to utilize a proper degree of autonomy.

New York Law

New York Mental Hygiene Law Article 81 was enacted to provide those seeking guardianship, and the Courts, the opportunity of using the least restrictive means of intervention in order to meet the specific personal or property management needs of the elderly individual while still maintaining an appropriate level of independence based on their capabilities. Specifically, Section 81.02(a)(2) of the Article provides that the Court may appoint a guardian to provide for the personal or financial needs of a person without having them declared incompetent, so long as that person agrees to the appointment. This becomes especially relevant in those situations where an individual is just starting to exhibit the first signs or symptoms of a degenerative disease affecting their mental capacity.

Bill of Rights for New Jersey Seniors in Continuing Care Communities – Should We Follow Suit?

Published on: October 22, 2013 | by Ettinger Law Firm

Seniors in Continuing Care Communities in neighboring New Jersey are about to have many new ways to protect their rights and obtain better care. On Thursday, October 17, 2013, New Jersey Governor Chris Christie signed the “Bill of Rights for Continuing Care Retirement Community Residents in Independent Living (CCRC).” The bill covers a wide range of issues facing residents in CCRCs, including a resident’s entry into a facility, communication between the facility and the resident, financial issues, and termination of services. The bill also provides for penalties ranging from $250 to $50,000 for violations of the provisions of the bill.

The bill includes the following rights:

· Each resident will be treated with respect, courtesy, consideration, and dignity;

AARP to Hold Forum on “Modernizing Medicaid”

Published on: October 15, 2013 | by Ettinger Law Firm

Debate and discussion around the ideal setting to care for older individuals has raged for decades. The trends are somewhat cyclical.

In the distant past, virtually all aging took place at homes. “Traditional,” nuclear families were more common, and so seniors who could no longer live on their own almost always moved in with family members. Long-term care facilities were virtually non-existent.

However, seniors who did not have available family caregivers or who needed more support than caregivers could provide were left in dire straits. The growth of various senior housing locations filled the gap. These separate spaces catered exclusively to senior needs, ideally providing better, more efficient care without overburdened family support networks.

Continuing Trend: Private Investor Buys New York Public Nursing Home

Published on: October 10, 2013 | by Ettinger Law Firm

The face of long-term care in New York continues to change. In the past, when seniors were in need of close, around-the-clock care their main option was to move into a skilled nursing home in their community, usually owned by the county itself. These public facilities long acted as the main source of institutional support for ailing seniors.

But things are changing. For one thing, many more seniors are being proactive about their long-term care, creating elder law estate plans that ensure they have more options, including at-home care that allows them to age in place.

On top of that, more and more county owned and operated nursing homes are being sold off to private investors. Finances are at the center of the switch, as tight local budgets are making it very difficult for local policymakers to justify losing significant funds year over year on this care. Recent reports have underscored the situation, noting that virtually all of the county-run nursing homes in New York are operating in the red.

Family Dispute: Kasey Casem’s Children Fighting with Stepmother Over Senior Care

Published on: October 7, 2013 | by Ettinger Law Firm

Family arrangements are diverse. Some New Yorkers still have a “traditional” nuclear family with parents who remain married. However, the standard model of husband, wife, kids, in-laws, and grandkids no longer represents the majority. Instead, most families have some complexities. There are divorces, new marriages, stepchildren, adopted children, grandparents raising their grandchildren, nephews moving in with aunts, and countless other scenarios.

One of the key reasons to be prudent about selecting an elder law estate planning lawyer with significant experience is so that the professional can provide insight into common issues that affect your specific situation. The longer the legal team has been around, the more likely they are to have worked on plans similar to yours, able to craft the package that best protects you and you loved ones. Over the years, many trends become clear.

For example, one of the most common causes of family strife are disagreements between adult children and step-parents. It is quite common for parents to re-marry after a divorce, setting up potential conflicts between a subsequent spouse and children from the first marriage.

Can You “Self Insure” For Your Long-Term Care Needs?

Published on: October 4, 2013 | by Ettinger Law Firm

In helping families throughout New York plan for potential care needs down the road, we frequently explain that the ideal solution is long-term care insurance (LTCI). As the name implies, these policies require community members to pay premiums now with assurances that certain financial support will be available if you need care down the road. One key benefit of long-term care insurance is that it often allows for more flexibility in caregiving options, like paying for at-home caregiver to avoid the need to move into a new location.

But is this insurance good for everyone?

A recent story from Financial Planning suggests that, in some cases it may be worthwhile for retired individuals to “self insure” for long-term care. The basic idea is that it could be more prudent to not pay high premiums for care that may not be needed and instead invest the money that would have been spent on premiums. You may have heard something similar and are wondering if self insurance is the right fit for you.

Making Tough Choices to Prevent Elder Financial Abuse

Published on: October 1, 2013 | by Ettinger Law Firm

Preparation is critical to prevent financial exploitation of elderly community members. Our team of elder law estate planning attorneys frequently discuss how legal documents can be crafted and arrangements made to provide trusted family members with access to financial details of a senior’s life to spot exploitation early. Similarly, by placing assets in trust with oversight from professional trustees, it becomes far harder (often impossible) for scammers to take control of certain parts of an estate.

But, it is important to point out that proper planning does not take away all difficult choices that comes with aging relatives. Many adult children will still be forced to make tough choices on behalf of their loved one. That is particularly true when the senior suffers from progressive cognitive conditions like Alzheimer’s and other forms of dementia.

When to Take the Reins for a Parent?

Five Members of Long-Term Care Commission Issue Separate Report

Published on: September 25, 2013 | by Ettinger Law Firm

Yesterday we discussed the release of the federal Long-Term Care Commission’s final report. As mentioned, the major glaring issue with the report was its relative silence on financing solutions for this care. The Commission was made up of individuals with varying interests–from owners to residents–who have very different incentives. Issues regarding payment for long-term care services, particular Medicaid, is always a contentious topic. In that vein, it is perhaps not surprising that the report did not issue conclusive recommendations on that front.

Yet, that did not stop a subset of the Commission from issuing their own dissent which directly addressed the financing issue. A full version of that 17-page alternative report can be read online here.

Alternative Report

Final Report Issued by Federal Long-Term Care Commission

Published on: September 24, 2013 | by Ettinger Law Firm

You may remember that on New Year’s Day of this year, a large piece of legislation was passed by Congress and signed by President Obama. The bill was the one that (temporarily) avoided the fiscal cliff. It was the measure that seemed to permanently set the estate tax rates among other things.

At the same time, the legislation also called for the creation of a Long-Term Care Commission. Comprised of 15 members, selected by both Republican and Democratic leaders, the group was given six months to hold hearings, debate, discuss, and create a report on various issues regarding long-term care nationwide. More specifically, the entity’s specific charge was to “develop recommendations for the establishment, implementation, and financing of a comprehensive, coordinated, and high-quality system that ensures the availability of long-term services and supports for individuals who depend on this system to live full and healthy lives.”

The Recommendations

Home Health Care Workers to Receive Additional Worker Protections

Published on: September 17, 2013 | by Ettinger Law Firm

A growing number of New York seniors in need of caregiving support are opting to stay in their homes, instead of moving into nursing facilities. This is partially a result of Medicaid programs changing to accommodate more at-home caregiving, often saving money and better meeting elderly preferences at the same time.

As a result, more and more attention is being paid to home caregivers. In particular, some are voicing concern about potential negligent care. Obviously, caregivers can fall far short of standards no matter what the setting, from nursing homes to traveling support. One particular concern with home caregiving aides is that, unknown to many, they actually fall under an exempted category in the Fair Labor Standards Act–the federal law which includes issues like the minimum wage, overtime pay, and more.

At least that was the case. According to new rules released today by the U.S. Labor Department, the specific definition of the “companionship exemption” under which these caregivers previously fell will be narrowed. Beginning in 2015, home caregivers will no longer be exempt, leading to significant changes in their employment status and, some hope, the quality of their work.