Elder Law

FINANCING LONG TERM CARE SERVICES AND SUPPORTS

Published on: December 2, 2015 | by Ettinger Law Firm

A DEPLETED INSURANCE MARKET

Many of us will likely find a need at some point with help for basic living functions due to infirmity, recovery from a catastrophic accident or simply from aging itself. Things such as bathing, cooking, taking medicine are all necessities that need to be addressed. These needs are currently being largely addressed through long term care services and support in nursing homes and community and home based programs. It is estimated that over half of all elderly Americans will need to rely on these long term care services and support. Long term care services and support is generally not considered medical care but rather assistance with everyday functional needs. Medicare does not pay for such long term care services and support although Medicaid does. Since Medicaid is a means based program, an individual must dwindle down his/her financial resources to obtain such benefits. Given the large number of aging Americans Health Affairs Journal published a detailed study of the viability of insurance to cover this medical necessity. Many individuals prefer not to think about the need for such eventualities, which only compounds the problem with financing such a service, since such needs are rarely prepared for. Not surprisingly, such a product would likely only be affordable to upper middle class individuals. The need for such an insurance product is important and growing in size.

COSTS INVOLVED

ADVANCES ON PENSIONS: IS IT PREDATORY LENDING?

Published on: November 25, 2015 | by Ettinger Law Firm

GOVERNMENT ACCOUNTING OFFICE INVESTIGATION

On September 30, 2015 the Government Accounting Office (GAO) issued a report following a 15 month investigation regarding advances to pensioners, secured by monies that the pensioner would receive in their pension. The same day the Senate Committee on Aging held hearings on this exact issue to determine if indeed this practice is predatory as well as how the federal government will respond. The GAO conducted an undercover operation and received substantive offers from six different pension advance companies. The GAO report also indicated that there was a lack of disclosure on some fees, interest rates and various options, in addition to undisclosed affliations between 21 of the 38 companies that were investigated. The majority of the offers had interest rates of a stiffling 27 to 46 percent. While there is no set federal definition for usury, New York law defines usury as any loan which requires a payment of 25 percent or more; more about this below. Not surpringly the some of the companies focused their efforts on financially vulnerable pensioners with poor or bad cre dit. One of the recommendations from the GAO report was that the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission (FTC) educate consumers about these practices.

WHY THE GAO INVESTIGATED

FAIR HOUSING ACT IN SENIOR HOUSING

Published on: November 22, 2015 | by Ettinger Law Firm

CIVIL RIGHT ACTS DEALING WITH ELDER LAW MATTERS

The Fair Housing Act of 1968 was one of the raft of civil rights acts promulgated to help make the promises of Civil Rights Era real. In its current, amended form, it prohibits discrimination in the sale, rental and financing of housing based on, among other things, disability status. The Age Discrimination Act of 1975 is another enactment that speaks to the issue of senior housing, as it bars age discrimination in any program or activity that receives federal financial assistance. While there is a “housing for older person exemption” that is beneficial for seniors who need the special services found in many communities, the right to restrict housing is limited to only certain delineated situations. Indeed, the protections for senior housing are broad and robust.

HIDDEN FAIR HOUSING VIOLATIONS ISSUES IN SENIOR HOUSING

WHAT IS LOST AFTER DIAGNOSIS OF DEMENTIA

Published on: November 7, 2015 | by Ettinger Law Firm

LEGAL RIGHTS

The highly charged trial of former Iowa legislature Henry V. Rayhons is now over. Five months ago, jurors voted to acquit the Defendant of third degree sexual assault. One of the voting jurors was a local reporter who wrote a revealing and no doubt personally difficult article. The article and ultimate outcome of the case should give pause to anyone who thinks that our system of justice is broken. By all accounts, the jurors all made their decision based on the evidence and took their job seriously and with the utmost integrity. The larger question that the case spawns, which can now be discussed given that some time has elapsed, is the issue of what rights do dementia patients retain? More particularly, can a dementia patient consent to intimate contact with loved ones? For example, can a husband of over 50 years, in the privacy of his wife’s room embrace her in an intimate and loving fashion? What if the grandchild gives the same loving embrace? Can the spouse sleep in the same bed without concern for legal liability? Leaving the issue of intercourse aside, sexual expression is perhaps one of the most profound and important rights.

MEDICAL AND ETHICAL PERSPECTIVE

LONG TERM COMMUNITY CARE REPORT CARD

Published on: November 4, 2015 | by Ettinger Law Firm

2015 REPORT ON LONG TERM COMMUNITY CARE FACILITY SAFETY AND INTEGRITY

On April 21, 2015, the Long Term Care Community Coalition issued a 30 page comprehensive report to document and report on the state of the long term care community. It was a report card of sorts, where the report notes “significant problems in resident care, quality of life and dignity are pervasive across the country.” Indeed, the report gives a failing grade for enforcement of the robust laws that provide promises of dignity and superior care. More specifically, the report notes that long term care facilities have “inadequate care staff” and provide subpar care, lacking in dignity “because there is nothing stopping them from doing otherwise.” There are too often little or no consequences when the facility fail to live up to the standards that they are contractually bound to, even when these shortcomings result in “significant suffering.”

The Coalition wrote an additional report focused on New York for various reasons. New York’s findings can be found here. The New York report is even more detailed, at least as judged from the fact that it is 18 pages longer than the national report.

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.

Health Care Power of Attorney Good Planning Tool for Seniors & Singles

Published on: October 19, 2015 | by Ettinger Law Firm

News reports reveal that America is increasingly becoming a nation of single people. For adults navigating life solo, careful planning about who will make health care decisions on their behalf in the face of unforeseen, incapacitating illness is a smart decision, especially for singles who are childless, have minor children and/or are estranged from their families. One available option is an advanced directive called a Durable Power of Attorney (DPOA) for health care. It allows singles to appoint an agent to step in and carry out their wishes when they are unable to make critical medical decisions for themselves.

Most states have enacted advanced directives legislation. This contract allows a person, called a principal, to designate to a selected agent the power to make decisions about the course of medical care should the principal become incapacitated. Decisions covered by a DPOA for health care include such things as the power to consent to or withdraw treatment for physical or mental conditions, or to determine when to initiate or terminate life-sustaining treatment.

Health care DPOA gives singles autonomy

Who will Manage Your Affairs in the Event You are Incapacitated?

Published on: October 1, 2015 | by Ettinger Law Firm

No one likes to consider the fact that they may one day need help in managing their affairs, but the fact remains many people will need a fiduciary they can trust to act on their behalf when incapacitated. Typically as part of an estate plan, an individual will execute a power of attorney appointing one or more individuals of their choice to manage their health care decisions and financial matters in the event they can no longer handle their own affairs. Powers of attorney can vary in scope and purposes, and can serve as one method to avoid judicial intervention, including guardianship or conservatorship proceedings.

Guardianship Proceedings

When a health care or financial power of attorney are not sufficient or absent from an estate plan, a guardianship or conservatorship proceeding may be necessary to appoint someone to represent the person suffering an incapacity. In New York, a proceeding for guardianship can be commenced by a variety of parties, including, a distributee of the incapacitated person’s estate, certain fiduciaries, an interested party concerned with the welfare of the individual, or the incapacitated person himself. Incapacity is determined by clear and convincing evidence that the individual is unable to manage their own affairs and is unable to understand the consequences surrounding their inability in such a way that will likely cause harm to themself or others.Courts will consider a variety of factors when selecting a guardian, including the incapacitated person’s specific needs and the capabilities of the proposed guardian in meeting those needs.

Tax Planning for Required Minimum Distributions

Published on: September 16, 2015 | by Ettinger Law Firm

Not all investments are created equal. You investment portfolio may include a 401(k), individual retirement account, pension plan, or deferred compensation plan, among others investment vehicles. Whether your investment trust account is qualified under the Internal Revenue Code will determine the tax treatment of your contributions and withdrawals.

Qualified vs. Non-Qualified Investment Accounts

A tax-qualified account features the ability to contribute income to the qualified account and defer tax on the account funds. Typically, you must be 59 ½ to withdrawal funds from a tax-qualified account without penalty. Conversely, non-qualified accounts do not offer tax deferred treatment. When you withdraw funds from a tax-qualified account, your entire withdrawal will be taxable, as opposed to being taxed on only the growth of your non-qualified account. Qualified tax plans include, but are not limited to:

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.