fishkill elder law

TERMINATING TREATMENT FOR INCOMPETENT PATIENTS

Published on: April 12, 2016 | by Ettinger Law Firm

TWO SCHOOLS OF THOUGHT

It is never an easy decision to make decisions for another person when it is the other person who has to live with the consequences of those decisions. That is doubly true when there is not any family relation or close ties that bind you. When you are deciding for a family member, say for example an aged parent or grandparent, at least you have the benefit of years worth of conversations and their larger thoughts on certain key matters of health and health decisions. You can look back and remember what they did or said in certain similar scenarios. What about those who do not have any such close relatives who decide for them? There is a class of professional guardians across the state and country who are professional in every sense of the term. They examine an issue and consider the best way to get the answer by asking further questions of the experts, such as doctors, therapists, social workers and so on. The hardest decision that any guardian has to make, regardless of whether or not they had the benefit of ties of affinity, is whether or not to terminate treatment for an incompetent patient. By what yardstick do they measure their decisions?

If a patient already expressed their clear desire in the past as to what they want to do, the decision that the guardian must make will be much easier. The 1972 New Jersey case of In Re Quinlan sums up the decision making in this case best. In Quinlan, a young woman was in a vegetative state from which she was not likely going to recover. Her father applied to the Court to be her guardian so he could have the life supporting medical apparatus removed. The trial Court denied this application, although the state Supreme Court found a Constitutional right to privacy in such decisions to remove oneself from life support that the state cannot intervene in. Since she could do it personally, her guardian could do the same in her absence. The legal protections that control a guardian’s decisions ensure that guardians do not make their decisions with improper motive.

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.

ADULT PROTECTIVE SERVICES VOLUNTARY DRAFT GUIDELINES

Published on: February 24, 2016 | by Ettinger Law Firm

UNIFORMITY OF LAWS

Many laws across the country are the result of non-profit civic minded legal entities. The American Legal Institute is perhaps the most well known of these groups. Not all laws are “laws” in the traditional sense. Some are written by these legal entities and the various states adopt them as compacts, which are in essence legal contracts between states as to how they will handle intra-state legal problems. For example, there is a drivers compact that enables one state to recognize and punish out of state drivers for driver under the influence infractions.

For example, New Jersey driver receives a driving under the influence infraction in New York. The worst thing that New York can do is to revoke that driver’s right to operate a vehicle in New York state. Indeed this does happen. In addition, under the driver’s compact, New York also forwards this conviction to New Jersey and New Jersey then punishes the driver in accordance with New Jersey law, thereby suspending his/her driving privileges. Congress has never weighed in on this issue because there was no need to. Almost every state partakes in the Driver’s compact. States also cooperate with the placement of foster children across state lines to relatives or family friends via a compact. Once again, Congress has not created any statutory framework for the states. At the current moment there is some general agreement between the states when it comes to the laws that deal with Adult Protective Services (“APS”). The key term is that there is “general agreement.”

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.

CAMERAS IN THE NURSING HOME

Published on: December 11, 2015 | by Ettinger Law Firm

MANY ISSUES TO ADDRESS – PRIVACY AND LEGAL CONSIDERATIONS

The issue of video cameras in nursing homes has exploded over the last several years. With the large scale saturation of such user friendly technologies as Skype, Facetime and similar video technologies it should not come as a surprise that these issues are cropping up in nursing homes. Video cameras can be a major liability for nursing homes, including even criminal liability. It seems almost weekly that someone is arrested or charged due to evidence gleaned from video cameras located in nursing home residents’ rooms or other areas. While management may decide to utilize video monitoring equipment in public areas, there are many problems with residents using the same or similar video technology even in their own rooms.

Certainly there are common areas that are not public in nature that are a definite problem area for video imaging. The distinction lies in the public versus private designation. You do not have an expectation of privacy in public. There is an expectation of privacy in a residential unit. With a video camera a resident may be able to, unwittingly, record another resident without his or her permission, in a private area of the nursing home. Such a broadcast, depending on the audience, could be grounds for an invasion of privacy lawsuit. In addition, it could be a violation of the Health Insurance Portability and Accountability Act, usually known as HIPAA, the federal law that requires the confidentiality of medical records. In addition, if there is an audio recording function, recording a third party’s conversations may also violate state criminal wiretapping laws. New York is in the majority of states that require the consent of at least one of the interlocutors for any interception to be deemed legal.

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.

The Facts about Reverse Mortgages

Published on: September 8, 2015 | by Ettinger Law Firm

A home equity conversion mortgage, or reverse mortgage, is a lending option that gives qualified homeowners the ability access the equity in their home. The benefits of a reverse mortgage include the ability to access a regular stream of funds or access to a line of credit when you need additional funds for life’s many unexpected events. However, reverse mortgages do have risks that you need to consider.

How a Reverse Mortgage Works

A reverse mortgage is designed to make payments to you from the unencumbered value of your home, which is the difference between the appraised value and the loan balance on your home. After you obtain a reverse mortgage, you will receive a lump sum or monthly payments from your lender; provided, however, you remain in the house and use it as your primary residence. If you have an existing mortgage, you may have to pay the balance of that mortgage as part of obtaining a reverse mortgage, but you will otherwise not have to make payments on the reverse mortgage until you sell the home or stop using the home as your primary residence. When you pass away, the lender will be paid upon the sale of the home.