brooklyn elder law

Changes to National Labor Laws May Change Home Health Care for Those Who Need it the Most

Published on: April 9, 2018 | by Ettinger Law Firm

If you have a beloved elder who currently needs or will eventually need long term, in-home health care, you need to know about new changes to federal labor laws that may not only raise the cost of these services but potentially alter quality aspects. In addition to federal labor and wage laws, state and even local laws may impact what you pay for in home health care and who provides it.

When a person suffers from dementia, alzheimer’s, or or another cognitive health condition, he or she will likely need the aid of a home health care aide to provide even the most basic of care needs. For many years, home health care providers who also lived in the patient’s home were subject to different portions of the federal Fair Labor Standards Act (FLSA) which made them exempt from overtime and would essentially earn less than minimum wage because the individual was expected to be on call even during the evening.

However, a recent legal decision determined these in-home health care workers were not overtime exempt and must be paid one and a half times their average hourly wage when working more than 40-hours per week. This meant that it became economically feasible for many families to maintain constant care to their loved one from a familiar person that could be counted on to provide attentive, individualized service to the patient.

New York Elder Law Estate Planning: Unitrusts

Published on: March 6, 2017 | by Ettinger Law Firm

There are a variety of different types of trusts that an individual can use to their benefit while they are alive or in order to preserve their wealth for their family after they pass. Depending on it’s purpose, the grantor of a trust will make either a irrevocable or revocable trust. Irrevocable trusts cannot be modified without permission of the beneficiary since the grantor is giving up rights to their assets to the trust, versus a revocable trust where the grantor can modify the trust terms as they desire during their lifetime and upon their death, the assets transfer to the trust.

One unique type of trust that a grantor can establish for their benefit and for the benefit of a charity is a charitable remainder trust unitrust. Charitable remainder unitrusts are a type of irrevocable trust with specific characteristics setting it aside from other trusts. This type of trust distributes a certain percentage of the value of the assets in the trust to a beneficiary that is not a charity, usually a grantor of the trust or whomever the grantor has named to receive the named distribution. The grantor sets a specific timeline for the distributions to the beneficiary, and upon the termination of that timeline, the remaining assets are distributed out to the charity named.

In order to determine how much the non-charitable beneficiary will receive, the trustee must use a formula that requires minimum distributions from the trust annually. The trustee will first determine the fair market value of the trust at the end of the given year by obtaining a valuation of the assets in the trust and then will distribute out the percentage of that asset value named in the document.

Social Security Earnings Test & Increases in 2017

Published on: December 30, 2016 | by Ettinger Law Firm

The Social Security Administration recently released a list of changes to take place in 2017, which included the cost of living adjustment that we discussed in a previous article, as well as a new earnings test limits for those older adults who continue to work but qualify for social security. While the cost of living adjustment came out to a roughly $50 a year increase, the other changes listed by the Administration have encouraged many of those who receive their monthly benefits.

The Earnings Test

In order to provide the most equal distribution based on need, the Social Security Administration has come up with a test in order to determine how much in benefits an individual should be allotted. The earnings test applies to those older adults who have not yet reached their full age of retirement, which is 66 years old, and who are still working. For those beneficiaries who attain full retirement age after 2017, they can claim exemption of earnings up to $16,920 a year, or roughly $1,410 a month.

Fiduciary Duties & The New Rule for Financial Advisors

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

The New Rule

When consulting a financial advisor, we all assume that they would have our best interest in mind when determining where our portfolio should be invested and what investments best suit our interests, however, this has not always been the case. This year, the Labor Department issued new regulations that require industry professionals dealing with individual retirement accounts and 401k accounts to act on the best behalf of their clients.

Before this new standard was issued, financial advisors only needed to meet a suitability standard, meaning that the financial advisor only has to choose what is suitable for the portfolio, which is not always what is in the client’s best interest. A financial advisor under this standard could invest in a fund he found suitable, but may be more risky or expensive, although a similar option is available with a different fund. This suitability standard led to many advisors investing in funds they were personally interested in, sparking a need for change.

LONG TERM CARE THROUGH LIFE INSURANCE POLICY

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

CONVERSION OF LIFE INSURANCE DURING LIFE OF COVERED INDIVIDUAL

As this blog discussed in the past, long term planning insurance is something that many consumers are reluctant to purchase for a number of reasons One of the main reasons for this reluctance is the long term cost may not financially justify its utilization. Life insurance companies recognized this problem and started to allow for a hybrid financial product in their life insurance policies. The life insurance company allows for the conversion of a life insurance policy to pay for the long term care services.

The animating philosophy is that there will be a pay out regardless of whether or not it happens during the insured’s lifetime, so the life insurance company could just as easily pay out on the policy during the insured’s life. Every day over 10,000 baby boomers turn 65, so the population base that could potentially utilize such as a product is growing larger every day. It is estimated that at least 70 percent of the baby boomer population will need some sort of long term care during their lifetime, with 40 percent in need of nursing home treatment.

TOOLKIT TO HELP PREVENT SENIORS FROM FALLING

Published on: March 8, 2016 | by Ettinger Law Firm

SIMPLE GUIDELINES, EASY TO UNDERSTAND AND FOLLOW

The Center for Disease Control (CDC) released guidelines to help prevent and mitigate falls among senior citizens in 2012. The CDC program is called STEADI, an acronym coming from the full title Stopping Elderly Accidents, Deaths and Injuries. Research shows that falls are the leading cause of injuries, death and emergency room visits for trauma. If a senior citizen falls it can literally be a traumatic, life altering event or even a deadly one. The silver lining is that many falls are preventable. Last year the Obama Administration announced that that the White House Conference on Aging, the Administration on Aging awarded $4 million in various grants to help expand STEADI. It is estimated that the increased funding will help reach an additional 18,000 at risk senior citizens. It is further hoped that the funding will increase participation in evidence based community programs and improve the overall programs long term viability. The CDC developed these guidelines in conjunction with British and American Geriatric Societies.

The American and British Geriatric Societies already had clinical practice guidelines in place to better define the various risk factors in falls by senior citizens. The CDC guidelines contain basic information about falls, methods to begin conversations with seniors, balance assessment tests, gait assessment tests along with instructional videos for the gait and balance tests and even case studies of the the fall risks for different senior citizens. The program and recommendations are all inclusive in that the STEADI program at the CDC website has a testing protocol for professional medical care providers, to information about webinars and other instructional videos, material for senior citizens themselves, important facts about falls, referral forms, posters for professional establishments, with posters also available in Spanish and Chinese and most importantly, it has a toolkit for medical professionals.

GERIATRIC CARE MANAGER

Published on: February 18, 2016 | by Ettinger Law Firm

DISTANCE AND PROFESSIONALISM

The New York Times ran an article on December 23, 2015 discussing the distance that the average American lives from their mother. As revealed in longitudinal study published in 2010, half of Americans live 18 miles or less from their their mother. As shown in the graph plotting these distances, the half of Americans who live less than 18 miles usually live extremely close. 40 percent live five miles or less. It seems as if the 40 percent and five mile mark is where the divergence occurs. 55 percent live less than 28, 60 percent live at least 47 miles or less, 65 percent live 80 miles or less and 70 percent live 129 miles. Depending on whether you live in the suburbs, the far suburbs, rural America or in the inner city with a reliable and timely public transportation system, these percentages and distances mean different things. 128 miles is not insurmountable and is actually a common commute if you live in Philadelphia and have to commute to Manhattan.

If you live in Southern New Jersey and have to battle the daily commute to Manhattan the same 128 miles is entirely different. Other factors also play out in your ability to see your parents as often as you want or need to. If you are a busy emergency room physician, working 24 hour shifts, you may not be able to see them anywhere near as often as need be or as you want. If your parents rely on you for basic assistance with medical issues or long term care decision making and you cannot dedicate the time to help them, you may want to consider a relatively under utilized service in the form of a geriatric care manager. In addition to assisting their clients and families make informed decisions, they are professionals who almost always work in the community and have a better working knowledge of different issues that may crop up with one provider or facility but not another.

PLANNING FOR YOUR SPECIAL NEEDS LOVED ONES

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

CREATE A GLOBAL PLAN TO GO INTO EFFECT TODAY

If you are a parent, stepparent, grandparent or caretaker of a special needs child you need to prepare for the day when you are no longer able to physically and financially care for your special needs loved one. While it is not suggested that you stop caring for the special needs loved one today, there is no better time than to start your planning than now and to actually try it out, so as to cure any unanticipated issues now while you still have the mental, emotional and financial wherewithal. First on the list of priorities is to find a standby guardian who can step in and care for your loved one without complication, so as to insure a seamless transition. Better still is to have two caretakers who can assume responsibility for the day to day needs of your special needs loved one. This blog has discussed the wisdom and utility of a standby guardian.

While it is essential for you to discuss these plans with any standby guardian and alternate standby guardian, as any legal responsibility to assume guardianship requires the consent of the standby guardian, it is always best to discuss these decisions with your loved one. Many autistic children do not deal with change very well. As such, having the standby guardian come in to run the show and do what you do on a daily basis is best. The same applies for any alternate standby guardian. It would also be best to discreetly disclose your financial planning, income and expenses with the standby guardian as well as any alternate. Any monies coming in from public agencies or even benevolent societies as well as a review of key service providers would be necessary for the standby guardian to understand if you become incapacitated, disabled or otherwise unable to provide the same level of care that you currently provide for your special needs loved one.

SENIOR HOUSING PITFALLS

Published on: October 26, 2015 | by Ettinger Law Firm

CONTINUING CARE RETIREMENT COMMUNITIES

There are currently 1,900 continuing care retirement communities throughout the country, with approximately one half of a million residents. As you may already know, continuing care retirement communities are communities that offer seniors or older adults – depending on the community – independent living options with various medical and social care features. There is a recent trend to offer senior housing options in association with universities, which usually give the residents cutting edge medical care. The residents also benefit from being allowed to attend college lectures and have access to the universities exercise and recreational activities.

MAJOR FINANCIAL AND LIFE DECISION

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.