New York elder law

The Basics – Nursing Home Abuse: Signs and How to Stop It

Published on: February 4, 2017 | by Ettinger Law Firm

Many of our elderly adults end up in nursing homes or assisted living, whether as a result of an accident or due to a declining ability to care for themselves. While many have family members or friends who are able to ensure their loved one is being taken care of properly in their respective homes, not all of those elderly are fortunate to have someone to look after them. In fact, the Special Investigations Division of the House Government Reform Committee found that 30% of nursing homes in the United States were cited for nearly 10,000 instances of abuse over a two year period.

Abuse in a nursing home can take many forms, some problems involving physical abuse and negligent include untreated bedsores, inadequate medical care through dehydration and improper hygiene, as well as physical abuse such as broken bones, untreated bruises and cuts. Other examples of abuse involve verbal abuse, for example yelling, and ignoring requests, as well as withholding medication.

This problem happens all too often, and it can come down to the caretakers word against the elderly abused patient. An Illinois man concerned about the care of his father after he voiced concerns about a new nurse, installed a surveillance camera in his father’s room in an assisted living home. The camera unfortunately confirmed exactly what he believed, he was being neglected at times, verbally and physically abused by a certified nurse’s aid working at the facility. The nurse was charged with a felony aggravated battery to a person older than 60 years and felony abuse of a long-term health care facility resident.

Back to the Basics – The Gift Tax

Published on: November 28, 2016 | by Ettinger Law Firm

Putting your assets in an irrevocable trust has a number of benefits, including: allowing the settlor, also known as the maker of the trust, to establish how his or her assets will be kept and eventually distributed, it allows the settlor to have access to the income produced by the trust, as well as the numerous tax benefits such as capital gains taxes being either deferred or in the event of gifting, avoided.

According to the Internal Revenue Service, the federal tax code applies a gift tax on an individual level, however, that tax does not apply to trusts. If you transfer funds from your personal account, whether it is a savings or checking, to another, in excess of $14,000 you will be subject to a tax for the gift made, however, the IRS does not place these same taxes on trusts, depending on how the gift was made.

If the beneficiary makes a discretionary gift to another, a gift that can be shown to be made for the immediate benefit of another, it depends on whether the donation is viewed as present or future interest in the gift. If it can shown that the gift was made for the future interest of another, the IRS will not subject the trust to gift tax, however if it can be perceived that the gift was made for a temporary relief of another, the gift tax will be applied to the donation made.

How to Properly Choose a Caregiver For your Loved One

Published on: November 5, 2016 | by Ettinger Law Firm

There comes a time when difficult conversations must be had with an elderly loved one in your life that requires a caregiver, but is not receptive to the idea. These conversations can initially be overwhelming for both the loved one and the elderly person, as they start to make a plan about how their lives will change, but as so many Americans continue to live longer with a number of chronic health problems, enlisting the help of a caregiver is a very realistic and responsible choice in order to ensure an elderly person is well taken care of. This also tends to be the best option for those families who are not geographically close enough to care for their loved one full time but see the need for change in the current situation.

In determining the needs of your loved one, continue the dialogue to assess what is most important to both of the parties, such as, full time versus part time care, what daily activities the individual partakes in and what kind of assistance is needed with those, if any, as well as whether overnight care or meal assistance is needed, among many other factors.

Once needs have been determined, it is important to build a pool of applicants to interview. Caregivers build a very personal and intimate relationship with those they care for, thus, it is critical that the individual not only approves of the caregiver, but shares something in common and can trust that person.

Financial Elder Abuse: Warning Signs and How to Stop It

Published on: October 25, 2016 | by Ettinger Law Firm

Elder abuse has been an increasing trend over the past few decades, within roughly one in ten Americans over 60 years of age experiencing elder abuse, whether it be financial, harassment, sexual, physical, or passive abuse through neglect or deprivation. Of the elders subjected to abuse, over 90% of those Americans are abused by someone they know, either a family member, friend, acquaintance, medical staff employee, or caretaker.

Predators seek out opportunities with the elderly in order to become involved in their lives and then later exploit them in their most vulnerable state. Often times, an individual will claim to be helping the elder individual, either by assisting in caretaking or house keeping, and then will later bill them for an exorbitant amount of money or get ahold of their checking account to pay themselves.

Warning Signs

The Housing Issue and The Elderly

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

There are many factors that go into maintaining a budget in a family while also trying to save for the future. For Americans, the cost of maintaining a household has gotten continuously more expensive; the average cost of raising a child born in 2013 now costs roughly $245,000 for a middle income family in the United States, with housing for the child accounting for about 30% of those costs. This is compared to a study done in 1960 by the United States Department of Agriculture that stated middle income families could expect the average cost of raising a child to be a little more than $25,000 until age 18. Interestingly in both studies, housing accounted for the largest expense for the families surveyed. The children once focused on in these 1960s studies have now become the focus of our article, and one thing remains the same, housing is still the biggest expense they must account for.

As the aging population refocuses their priorities for housing, they must consider factors such as accessibility to stores, services, transportation, medical care if they experience chronic conditions, as well as access to social settings and connections. The worry of many aging people is that they will be forced to leave their home and instead reside in an assisted living or nursing home in order to retain government assistance with healthcare. There will also need to be a refocus on the ability to provide for a more diverse population of elderly people; with the thousands of individuals turning 65 years old daily over the next two decades will come a much more diverse population that has had drastically different housing situations.

Possible Solutions

MOLST Forms Gaining Attention

Published on: July 31, 2016 | by Ettinger Law Firm

MOLST Forms, What Are They?

Easily identifiable by its bright pink color, another advance directive has been approved for use in New York medical treatment and healthcare administration. Medical Orders for Life Sustaining Treatment are medical forms similar to a DNR Order, being that they both provide for life of end care preferences. However, Medical Orders for Life Sustaining Treatment (MOLST) not only allows a patient to refuse resuscitation in the event it is needed, but it also allows for a patient to state when they would allow or request it. Once the form was approved in 2008, EMT agencies now may use the MOLST form without needing a non-hospital DNR order, however, they must honor the DNR bracelet if worn by the patient or a non-hospital DNR form if it is on file.

How it Differs from DNR Orders

Home Care Workers Secure Compensation Victory

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

While most of us know that the baby boomer population is vast, many do not realize the impact this population will have as they start to retire over the next few decades. In fact, over the next 20 years, 10,000 baby boomers will turn 65 everyday. Between 65-70 years old has been the age of retirement for many, with some retiring early and some pushing through another decade of work. However, as this generation gets older, their need for care will continue to grow.

Federal Level

In late June, the Supreme Court decided not to hear Home Care Association of America v. Weil, a case that was attempting to deprive home care workers of their ability to qualify for minimum wage and additionally, for overtime pay for those hours worked over 40 per week. These home care workers have been part of the ‘Fight for 15’ movement to get equal pay and higher pay for minimum wage. Home care workers have previously been labeled by the Labor Department as ‘companions,’ which does not allow them to qualify as employees who are subject to minimum wage and overtime pay. The rules governing home care workers were not fixed until this past year, when the Labor Department determined that home care employers needed to follow the same rules as any other employer and pay their employees according to minimum wage standards.

Back to the Basics – What is a Bequest?

Published on: July 5, 2016 | by Ettinger Law Firm

When writing a will, many people seek to ensure that certain people in their lives get specific things, such as a family heirloom necklace, property, or an allotted amount of money. The gifting of property or assets to a certain person through the provisions of your will is called a bequest. There are few types of bequests and different situations in which to use them.

(1) Specific Bequest: It is the gifting of a specified property or asset to an identified person or entity, distinguished from the property in the estate. For example, a specific bequest would be gifting your home to your son, or gifting your diamond earrings to your niece. The main issue faced by the estate is when, upon death, the specific gift that is to be given, i.e. the property or the diamond earrings, are no longer owned by the testator. In this situation, the intended beneficiary then gets nothing, because there is nothing to satisfy or substitute from the estate.

(2) General Bequest: A general bequest is what most people think of when they think of gifts in a will. This bequest is a gift that is payable from the assets of the estate. Most commonly seen are provisions gifting a specified amount of money to a certain person, for example, $10,000 to my nephew, or a stock or securities bond. Unlike specific bequests, these type of bequests are not for a specified item, so other assets in the estate may be sold to satisfy the gift if it is not available when distribution comes.

NON-PROFIT REPRESENTATIVE PAYEES FOR DISABLED

Published on: May 19, 2016 | by Ettinger Law Firm

GROWING NEED

More ten million elderly Americans rely exclusively on their Social Security pension as their sole means of support. Approximately 90 percent of senior citizens receive some sort of income from Social Security and approximately half of those relied on Social Security for at least half of their monthly income. It keeps approximately 35 percent of elderly Americans from dipping below the federal poverty line. To say that Social Security is vital to this population is an understatement. Included within that population are a subset of individuals who do not directly receive their income from the Social Security Administration but instead rely on a representative payee to manage their money and pay their bills.

The incidence of Alzheimer’s disease and other related cognitive impairments increases with age and with people living longer, there will naturally be an increase in such conditions and thus a greater need for more Social Security representative payees. The Social Security Administration’s own Inspector General estimated in 2010 that at least one million elderly Americans over the age of 85 need a representative payee but did not have one. Within this group there is concern that there are de facto representative payee who were not formally approved or vetted by the Social Security Administration and could be perpetuating financial abuse of the beneficiary. Of the existing pool of representative payees, approximately three out of four are family members.

SOCIAL SECURITY SURVIVOR BENEFITS

Published on: April 5, 2016 | by Ettinger Law Firm

NEW RULES FOR SAME SEX COUPLES

Social security survivor benefits may seem like a relatively straightforward issues to understand. Indeed, it can be for the majority of people, but with the Supreme Court ruling in Obergefell v. Hodges that states must recognize the right of all couples, including same sex couples, to marry, the issue of social security survivor benefits for spouses and even for children should at least be touched upon. The opinion in Obergefell may be as monumental of an opinion as the Court ever penned. While only history will tell, the social consequences may be of the same magnitude as the Supreme Court’s opinion in Brown v. Little Rock Board of Education, requiring racial integration of schools across the country.

The implications ripple throughout the law, from tax law to social security benefits to family law, estate planning, bankruptcy and even elder law. Less than a year prior to the writing of this blog there was a patchwork of treatment for same sex couples, which was anything but similar in its treatment of two similarly situated couples, with the only difference being what jurisdiction the couple lived in. Social Security indeed denied some same sex life partners survivor benefits when a couple resided with each other as spouses for decades. Even before the Supreme Court heard oral arguments in Obergefell some who be widows/widowers (but for the state law denial of this right) sued the Social Security for this disparate treatment.