NYC elder law

MAJOR NURSING HOME CASE TESTING MANDATORY ARBITRATION CLAUSE

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

CASE OF POTENTIALLY NATIONAL IMPORTANCE REPORTED IN NEW YORK TIMES

On August 21, 2009 a tragic event occurred at a nursing home in the quaint coastal town of South Dartmouth, Massachusetts. Elizabeth Barrow was over 100 years old at the time of the tragedy, but told her son on her birthday when she turned 100 that she wanted to live to be 104. The New York Times article describes her as a sweet, compassionate woman full of verve and love even in her advanced age. She was known around the nursing home as offering people hugs. It is no surprise that she made friends quickly and was quite popular amongst the fellow residents. Mrs. Barrow entered the nursing him in 2006 with her husband, with whom she shared a room. She felt fortunate just the same because her room gave her a terrific southern exposure, which helped her grow her beloved african violets. Then in 2008 Ms. Barrow’s new roommate moved in with her, after the new roommate had an argument with her previous roommate.

The exact nature of the relationship between Ms. Barrow and her roommate and very much in dispute. What is known is that soon after Ms. Barrow’s death the local District Attorney filed second degree murder charges against the 98 year old roommate. Soon after the charges were filed, the Defendant was found incompetent to stand trial. As of the time of the writing of the New York Times article, the Defendant was still alive at 104 in a local state hospital. Given her advanced age it is unlikely she will ever stand trial.

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.”

SPECIAL NEEDS, THIRD PARTY AND SELF SETTLED TRUSTS – WHATS WITH ALL THE NAMES?

Published on: February 17, 2016 | by Ettinger Law Firm

LEGAL DISTINCTIONS THAT MATTER

When a person applies for Medicaid eligibility there are many pitfalls that an unsuspecting or unsophisticated applicant can run afoul of. To help them retain the benefit of certain monies that they would normally have access to third parties or the applicant themselves can create a special needs trust to help keep the public benefits and still benefit from the money in the trust. The various different trusts have different legal requirements that must be met to qualify as that type of trusts.

Moreover, different trusts accomplish different goals and yet other types of trusts exist that have nothing to do with Medicaid or other public entitlement program eligibility but help to reduce tax liability. Some trusts accomplish two tasks, such as a third party special needs trusts, which allow seniors to live a relatively modest and respectable life and qualify for Medicaid at the same time. While other types of trusts only satisfy just one legal goal, such as a grantor retained annuity trust, which allows a person to make a gift of an asset that will likely appreciate rather quickly, but incur no gift tax liability. Finally, there are other types of trusts that outlive their utility, such as pooled trusts.

ADULT GUARDIANSHIPS, RESTORING RIGHTS

Published on: February 9, 2016 | by Ettinger Law Firm

GUARDIANSHIP CAN BE VACATED

As this blog has discussed in some detail in the past, Adult Guardianship is a complicated area of the law, dealing with many sensitive issues of personal power, ability and basic competence. On a very basic level, guardianship is a judgment that is entered by a Court, which allows one person the the legal right to exercise decision making over another. The basic medical reality is that once competency is gone, an individual often does not regain that capacity back.

As such, when a Judgment of Guardianship is entered is often permanent. There are plenty of cases to show that this is indeed not so common so as to consider it an inalterable rule. The law recognizes this fact and allows for a judgment of guardianship to be vacated if and when a person regains their facilities. Under current New York law, a guardianship Judgment may be entered upon the consent of the ward (protected party), or, if not by consent, then by clear and convincing evidence that someone (either the potential ward or a third party) will likely suffer harm because :

FEDERAL TAX EXEMPTION FOR ELDERLY DEPENDENTS

Published on: February 3, 2016 | by Ettinger Law Firm

EVERY LITTLE BIT COUNTS

For those of among us who care for elderly parents or relatives, you do it without expectation of compensation or reimbursement. You dedicate time, money, resources and do it day in and day out and will continue to do so without concern for recompense. That does not mean, however, that you would not take any financial reimbursement from outside companies or or tax exemptions from the IRS. Most people do not realize that caring for an elderly parent or relative comes with some fairly generous tax benefits. There are some very important and precise legal definitions that need to be satisfied before you can properly claim your elderly relative dependent.

TAX LAW DEFINITIONS AS QUALIFYING DEPENDENT

ADULT PROTECTIVE SERVICES IN NEW YORK – GOAL TO PROTECT VULNERABLE SENIORS

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

New York along with every other state, most United States administered territories and even The Bureau of Indian Affairs for Indian Tribes has an adult protective services enabling statute. New York’s adult protective services statute is found in the archaically entitled Title 81 of the New York State Mental Hygiene Law. It allows for the appointment of a guardian over an incapacitated person only after a Court makes two specific findings of fact:

1) The allegedly incapacitated person is unable to provide for his/her personal needs or unable to manage their property and financial affairs; and

2) The person cannot adequately understand and appreciate the nature and consequences of their inability.

ABLE ACCOUNT LAW CHANGES BROADENING PROTECTIONS FOR SPECIAL NEEDS PLANNING

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

On December 19, 2014 President Obama signed into law a number of tax and financial measures to extend certain tax benefits. More specifically, the legislation enacted the Achieving a Better Life Experience (ABLE) Act of 2013, which amends section 529(e) of the United States Tax Code, to allow for tax-free savings accounts for individuals with disabilities. Almost a year later, almost to the day, both the Federal government and New York state both acted to expand the coverage under the ABLE Act. Prior to the most recent change, ABLE accounts had to be located in the same jurisdiction as the beneficiary.

The law also required state laws enabling such savings accounts. If the state did not have such enabling legislation, individuals in that state would not be able to set up such an account. On December 18, 2015, New York Governor Andrew Cuomo signed the New York Achieving a Better Life Experience (NY ABLE) Act allowing for such savings accounts in New York. On the same day that Governor Cuomo signed the NY ABLE Act, President Obama signed another spending bill that contained, among other things, legislative changes to the ABLE Act. More specifically, sections 302 and 303 of the bill allows for changes in what purchases or expenditures are permitted under the ABLE Act and allowed for beneficiaries to have such accounts in jurisdictions different than the one that they live in.

While one might reasonably believe that the NY ABLE Act is now not necessary, it still has much value as it allows for such accounts to exist within the state and thus subject to the various protections afforded under New York law. It would also draw in capital from other jurisdictions that do not have ABLE Act enabling legislation. All of these measures are part of an expansion of the laws that allow for the financial protections for financial and estate planning for those with special needs. Previous to the PATH Act, individuals with special needs who had savings accounts or other assets over a certain amount (generally, $2,000) would possibly be disqualified from certain governmental benefits. Savings in a PATH Act account will not jeopardize these benefits or eligibility for benefits.

DIFFERENCES BETWEEN ABLE ACT ACCOUNTS AND SPECIAL NEEDS TRUSTS

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

WHAT IS BEST FIT

Both an ABLE Act account and a special needs trusts try to accomplish essentially the same thing. Both attempt to ensure that a special needs child or person are financially planned for through various legal and financial means so as to enrich the life of the beneficiary. An ABLE Act account as well as a special needs trust also aim to protect the beneficiaries valuable governmental benefits that utilize a means based testing for eligibility purposes. While both products roughly accomplish the same thing, one may be better at accomplishing one thing rather than the other.

TWO DIFFERENT MEANS TO ONE END