Articles Posted in Elder Law

Many local residents consider a single issue when hearing about New York elder law planning: who is going to pay for nursing home care? Of course elder law includes much more than simply figuring out the finances of necessary long-term care. But for many families, the crux of this work is receiving help with Medicaid applications, protecting assets, and otherwise putting seniors in the best position possible to ensure comfortable care in old age.

There are different ways to provide for the care. Long-term care insurance is worthwhile for those who plan ahead, while the New York Medicaid program provides support to seniors who have no insurance and otherwise cannot afford the care on their own. Many middle-class seniors are forced to ‘spend down’ their assets in order to qualify for Medicaid. Various legal tools exists, however, (like Medicaid Asset Protection Trusts) to help keep assets in the family while still receiving Medicaid support.

This week many headlines were made across the country as an appellate court upheld a ruling that forced a son to pay a nearly $100,000 nursing home bill for his mother. The nursing home instigated the legal matter by seeking to enforce a “filial law” to collect unpaid long-term care bills.

Every New York estate plan is slightly different, because no two individuals are identical. Yet, many similar situations and challenges present themselves to different couples which often involve similar planning strategies. For example, one issue facing some residents is planning for married couples who have a significant age difference.

Perhaps the most obvious issue involves overall financial planning. With age differences, one spouse is likely to outlive the other, perhaps by a considerable length of time. The younger spouse may therefore feel more comfortable taking on certain risk than the older spouse who is more likely to suffer from short-term financial dips. It is important to balance the interests of both partners.

For New York elder law estate planning purposes specifically, couples of different ages require unique planning so that time horizons are meshed. Retirement planning can be tricky if one spouse plans on working longer. Similarly, long-term health care planning will be implicated by the age differential. One spouse may need extra care earlier, though it is usually not prudent to automatically assume that the younger spouse will be able to provide the needed care.

New York elder care advocates rallied this weekend in an attempt to save the Horace Nye nursing home in Elizabethtown. The public facility may be the latest in our state to be privatized as a cost-cutting measure by the county. The Essex County supervisors are set to vote this week on whether to move forward with the plan to sell the public facility to private owners and operators.

All those working on New York elder law and Medicaid issues appreciate the concerns of those fighting the change. Studies from a wide-range of sources find that residents at private facilities are more likely than those in public homes to suffer nursing home abuse or neglect. Most point to staffing levels and compensation for direct-care workers as the difference. Private owners are more likely to lower pay and cut staffing levels in order to increase the facility’s profitability.

Regardless of the worries, there is a very clear trend in local governments getting out of the nursing home business. Facilities in Warren County, Washington County, and Saratoga County all may be sold in coming months. The motivation is obvious: local government budgets are tight. For example, those supporting the Essex County sale explain that the facility loses $2 million every year. A property tax cap is in place, and so it is difficult for the County to absorb rising costs.

Main Street had a helpful story this week discussing the risk that many seniors face from credit card fraud. The story was published in awareness of May as “Older Americans Month.” Each New York elder law attorney at our firm appreciates the need to increase community understanding of the various issues affecting seniors, including financial exploitation.

Credit card fraud is common because it is relatively straight-forward. A thief gets the senior’s credit card information and uses it to make a string of purchases. The culprit usually continues until the senior catches on to the problem and puts a stop to it. Depending on the senior’s living situation, it may be quite some time before the theft is identified. Thousands and thousands of dollars can be lost in these simple scams.

Prevention measures take two forms: minimizing risks that the credit card information will be obtained and putting steps in place to catch wrongdoing soon after it occurs.

Legal incapacity is an important term in New York elder law estate planning. An crucial part of the process is ensuring that another is able to handle legal, financial, and medical affairs in case one is unable to do so on their own. “Incapacity” is the term used to delineate when that alternative decision-making kicks in, giving an agent the power to act on another’s behalf. There is not necessarily a bright-line rule when it comes to identifying incapacity on a case-by-case basis. Therefore, many local residents might wonder how incapacity is defined in the law.

Defining Capacity

The New York Department of Health is a good starting point, as the agency website provides an overview of how incapacity is determined in our state for medical decision-making purposes. The resource explains that for health care purposes capacity to make medical decisions is “the ability to understand and appreciate the nature and consequences of health care decisions, including benefits and risks of and alternatives to any proposed health care and to reach an informed decision.” When a patient lacks capacity, then an identified agent (often via a New York Health Care Proxy) is able to act on the patient’s behalf. An elder law attorney can help create the Health Care Proxy so that the desired agent is able to make decisions in the event of disability.

Making the decision to place a loved one in a nursing facility is heart-wrenching. Most seniors prefer to live at home, and everyone has heard horror stories about substandard care provided at some of these facilities. However, even with those concerns, there are times when it is absolutely essential that a senior have access to the around-the-clock skilled nursing care that these facilities provide. Our New York elder law attorneys understand that preparation and investigation before making a nursing home selection are crucial to ensure that the chosen facility is capable of providing the high-level of care that your senior loved one deserves.

Below are a few basic issues to consider when selecting a nursing home:

1) Choose a local facility. Senior care advocates explain that few things are more important at nursing homes than frequent visits by loved ones. Ensure that friends and family will be able to stop by easily. Also, be sure that the facility has liberal policies so that spur-of-the-moment visits, early morning visits, and late-night visits are accommodated.

Law enforcement officers, senior care agency officials, and senior care advocates all believe that having neutral, third-parties with an eye on a senior’s finances is an important way to identify when financial exploitation occurs. Those outside parties can identify particularly suspicious transactions and alert authorities. Our New York elder law estate planning lawyers are proud to play a role in this process, ensuring some local seniors are not taken advantage of by the unscrupulous.

A Monterey County Weekly article on the topic of senior financial exploitation explained yet another factor in prevention efforts–ensuring proper legal documents are in place well before times of incapacity. This is one of the paramount goals of elder law estate planning. The legal documents, such as a Power of Attorney and Health Care proxy, are crucial in ensuring that trusted others can act on the senior’s behalf in case physical or mental problems develop.

One common problem is that mental health ailments rarely occur suddenly. Instead, most seniors experience lack of capacity gradually, over a period of time. This often leads families to put off taking the proper legal steps, assuming that there is always more time. Many are waiting for a clear sign that help is needed, even though that clear sign will only come when it might be too late. It should go without saying that the earlier alternative decision-making documents are in place, the better.

One wouldn’t choose a surgeon who had never performed that particular surgery before. Experience and training matter when it comes to medical health, and the same principles should apply to legal planning efforts. New York elder law planning requires first-hand knowledge of the process as well as familiarity with common pitfalls to help craft overall strategies that provide the maximum benefit to meet one’s specific needs. There is rarely a “one-sized-fits all” approach to any of these issues, because no family is identical. That is why is it usually counterproductive to try to deal with elder care issues using do-it-yourself form legal documents.

Two of the most important documents in any elder law plan are powers of attorney and health care proxies. While the concepts behind these legal documents seem simple, failure to get help crafting them can have significant consequences. For example, New York has a statutorily created form to guide powers of attorney. The form is long and includes various features of which residents might not be aware. For one thing, to protect seniors from being taken advantage of, the statutory form restricts the power that the agent has over financial issues. Any additional powers needed in addition to those in the statutory form must be added individually. In addition, when not done correctly banks or other financial institutions may fail to recognize it.

A do-it-yourself health care proxy may come with similar issues. For example, under state law an agent cannot make decision about withholding certain extreme life support measures even when they have a valid health care proxy. The principal’s wishes about the withholding must be explicitly stated in a living will. When the proxy is crafted without proper legal help, this feature is often left out. Unfortunately, this error is usually only uncovered at the exact moment when it is needed–which is too late.

New York is one of three states that provide a Medicaid planning option known as “spousal refusal.” Essentially the option provides a way for a healthy spouse to save assets and income beyond that originally exempt from Medicaid while still having an ill spouse receive necessary long-term care under the New York Medicaid program. Our New York Medicaid attorneys have helped many families plan in just this way. We often advise clients that there are some potential complications following use of this tool–like a possible lawsuit from the Department of Social Services. However, regardless of the risks, for a variety of reasons the spousal refusal option is a prudent tool for families in many different situations.

However, there is a chance that spousal refusal may not be available to couples in the future. That is because New York Governor Andrew Cuomo recently proposed removing the spousal refusal option in the state. Financial concerns are driving this plan. Some estimates suggest that $34 million a year may be saved by eliminating the state’s spousal refusal.

Many senior advocates have voiced fierce opposition to the proposal, suggesting that the cost to local families would be devastating. Assemblywoman Nicole Malliotakis–a member of the Assembly Committee on Aging–explained that the proposed policy change would force some couples to lose everything that they have built up over a lifetime. Forcing healthier spouses to spend down their assets may have serious adverse effects on the healthy senior’s own well-being. That individual may then require even costlier care themselves than if they had been allowed to keep their assets instead of losing them so their ill spouse qualified for New York Medicaid.