Elder Law

Technology Aiding the Aging Population

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

As the older population continues aging, we are constantly trying to find new tools to help this population manage their lifestyle with more ease. Assistive technology is any service or tool that aids the aging population in performing their otherwise increasingly difficult or impossible daily activities. This technology ranges from a smartphone, to a walker to GPS tracker, many of which allow the individual to continue living independently or without care, while also allowing their loved ones to check on them.

Paying for Technology

As with any other medical assistance, insurance coverage is always a concern. Although there is no universal plan covering assistive technology for the aging population, some plans do cover a portion of the costs. Medicare Part B will cover up to 80% of the cost of technology that can be considered medical equipment. Also if you are eligible with the Department of Veteran’s Affairs for assistance, they will pay for a portion of the cost and will also help train those who are using the device.

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

Palliative Care: Know Your Rights To It

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

New York Statute

In February 2011, New York amended the Palliative Care Information Act, requiring doctors and nurse practitioners to inform terminally-ill patients about end of life options and counseling regarding palliative care. To receive palliative care information under the New York statute, the patient must reasonably be expected to be within the last six months of his or her life, a standard that is commonly associated with hospice care. The information provided to the terminally ill patients includes their diagnosis and the likely course of the disease, the options that would be available to treat the disease, risks and benefits of those options, and their legal rights to pain and symptom management during their final months. If the patient lacks decision making capacity, their appointed proxy or representative must be provided with the information.

Hospice versus Palliative Care

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.

Two Wills, Two Different Countries

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

International Will Issues

As our world continues to grow and technology allows us to move places once never thought imagined, many individuals have the opportunity to live abroad throughout the course of their lives. After spending time in a specific area, whether it is for the majority of your life or for a shorter time, you may acquire property in that new place. However, when it comes to estate planning, issues may arise for a citizen who has acquired property in another country and has executed multiple wills for their multiple properties.

If you have property in another country, having a will in that jurisdiction disposing of that property generally will make it easier than if the property’s disposition is listed in a will in a different country, since it will increase the efficiency of estate administration for the property in that jurisdiction. However, if the testator has multiple wills in multiple countries, covering multiple pieces of land, he must write the most recent will in a way as to not revoke the previous foreign wills and subject the land to differing dispositions.

Elders Right to Live in the Community

Published on: June 16, 2016 | by Ettinger Law Firm

In 1999, the United States Supreme Court ruled in Olmstead v. L.C. that, consistent with the Americans with Disabilities Act, individuals with mental disabilities have a right to live within their community as opposed to an institution, if professionals have determined that the patient’s ability to adapt and live in their community is appropriate, the patient can be reasonably accommodated and the move to community living offers a less restrictive setting. Following this ruling, President Clinton then directed all states to evaluate individuals in mental hospitals, as well as nursing homes and state institutions to determine whether they could too be acclimated back into their communities. Due not only to the major expenses facing Medicaid and maintaining nursing homes, this was thought to be a possible solution to overcrowding and retaining civil rights for those affected individuals.

However, in the decade and a half since the Supreme Court ruling and the President’s policy statement, the government has done little comparatively to remedy the problem. This has resulted in too many disabled and handicapped people remaining in institutions against their will and left without a method of recourse. While the federal government can control state spending for nursing homes and how Medicaid is spent, the community based care programs that so many disabled and handicapped people are seeking care from are optional.

Yet, Medicaid only pays for about 40% of all long term care services, thus, major bills are still piling up on patients, and in states such as South Dakota, the state with the highest percentage of individuals in nursing homes that have a low need or no need at all the services provided for the institution, they are forced to remain in the institution to receive any kind of care. With over 1.4 million individuals in nursing homes throughout the United States, some states are taking active steps to address the issue by allocating a portion of Medicaid funds to in-home care.

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.

DISABLED MILITARY CHILD PROTECTION ACT HELPS WITH SPECIAL NEEDS PLANNING

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

SPECIAL NEEDS LAWS HELP PROTECT THOSE WHO PROTECT US

For those of us who come from families with many military members, we know the sacrifices and hard work that service members incur for their principles and belief that there are certain obligations in life that precede all else. Unfortunately, until recently, for a select few of those dedicated service members faced a choice between two equally important obligations, their obligations to their country and their obligations to their family. More specifically, service members with special needs children who received benefits publicly funded programs such as Medicaid or Supplemental Security Income knew that if something happened to them and their family received monies through the Military Survivor Benefits pension, their children would lose those vital benefits.

It should be noted that the protections contemplated by the law are even allowed for if a service member retires and collects a pension for retirement but also diverts some of that money for the benefit of their special needs child. This was a choice that was too high for some service members and helped them decide to not reenlist. The military spends a tremendous amount of money on training and maintaining our military. Any lost member is a lost investment to put it in economic terms. To help combat the lose of these soldiers, sailors and airmen Congress created the Disabled Military Child Protection Act (DMPA). The DMPA allows a service member to choose a special needs trusts as the beneficiary of any money given through a Military Survivor Benefits pension. This allows the service member to have peace of mind knowing that if they do pay the ultimate sacrifice, their children and loved ones will not suffer further.

HOW DOES THE DEATH OF A SPOUSE AFFECT MEDICAID ELIGIBILITY

Published on: April 14, 2016 | by Ettinger Law Firm

NEED FOR UPDATED ESTATE PLANNING WHEN ONE SPOUSE GOES INTO NURSING HOME

When one spouse goes into a nursing home, there is a good chance that he/she is using to pay for their care. That means that the community spouse will have to live survive on certain income thresholds determined by Medicaid. There are also asset limits that are allowed under Medicaid. Estate planning can allow for a middle class family to have one spouse qualify for Medicaid through such legal mechanisms as spousal refusal, which is only allowed in a few states, New York being one of them. These asset and income thresholds presuppose that there is one spouse in a nursing home and the other in the community.

If the spouse in the nursing home passes away, there may be some legal effect on the community spouse, depending on what means based programs he/she qualifies for. They may also receive Medicaid but only receive community based care or any number of other programs, such as the veterans aid and attendance program. On the other hand, if the community spouse passes away first, there will be a much greater chance that the spouse in the nursing home will risk losing their Medicaid benefits or have that additional income provide for the medical care of the spouse in the nursing home and the assets liquidated. The retirement account, the family home any life insurance proceeds from the community spouse’s passing as well as any investments or valuable personal property owned by the community spouse. All of this may be quite contrary to the estate plans that both spouses had. They would have rather left their nest egg to their children and grandchildren rather than have it pay for a Medicaid lien.

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.