Articles Posted in Elder Law

There is growing discussion about elder caregiving in America and across the world. As the population ages, much more attention is being paid to how seniors are treated when their health falters and their ability to care fully for themselves wanes. In general, there is a rough assumption that many cultures around the world have closer family units, while here in the United States we are more likely to pay professional caregivers.

That assessment is somewhat misleading, because even in the U.S., younger generations (adults children) continue to provide the majority of care to seniors. That is not to say that use of nursing homes, assisted living facilities, and at-home caregivers is not common. But, elder care is simply a reality for tens of thousands of families throughout New York.

Who is Providing Care?

Seniors suffering from Alzheimer’s disease or dementia are at an increased risk of financial exploitation. Each health condition results in a progressive cognitive impairment that can be taken advantage of by the unscrupulous. As a recent true story from Massachusetts illustrates, Alzheimer’s disease can render seniors susceptible to even the most strange of schemes.

A 74-year-old Massachusetts woman suffering from progressive dementia and living in a nursing home has a pet named Puddy Cat. Puddy Cat is so dear to the woman that she created a trust in the animal’s name worth nearly half a million dollars. This “Puddy Cat Trust,” created in the woman’s will, provided that, upon her death, Puddy Cat was to be cared for through the trust and that all remaining assets were to be used for the benefit of animal welfare groups.

Seeing an opportunity to profit at the expense of the woman and Puddy Cat, two neighbors made efforts to befriend the woman and offered to take care of the feline. The pair are accused of swindling the woman out of her life savings, and Puddy Cat out of its inheritance, and they have been charged with embezzlement, larceny, intimidation, and perjury. They allegedly gained access to the woman’s financial assets and bank accounts, withdrawing nearly $200,000 in a 12-month span. The money was not used to care for Puddy Cat, as the two promised, but rather for a prolonged spending spree.

Adult guardianship concerns the laws governing a person’s capacity to manage their own affairs and their own estate. The law presumes that a person possesses this capacity. Therefore, satisfying the legal criteria sufficient for a finding of incapacity is prerequisite to the formation of a guardianship.

Capacity

There is no single, universal definition of capacity. Often, the term “competency” is used interchangeably with capacity, though the modern trend is to prefer the latter. The meaning of the word derives from the context in which it is considered; it cannot be determined in the abstract. An individual’s capacity or incapacity generally must be determined in relation to his or her ability or inability to perform a specific function or act. Because an individual is capable of performing an astonishing number of different functions and acts, a person may have the capacity to do A, B, and C, but not X, Y, and Z. Further illustrating the complexity of the concept is the fact that capacity may be defined differently, depending on whether the context is legal, social, or medical. In terms of legal standards, a determination of incapacity requires clear and convincing evidence that a person is likely to suffer harm because:

“Granny Snatching” is probably not a term you are familiar with hearing. But, believe it or not, over the years elder law advocates have popularized the concept to explain a problem affecting fights over guardianship of seniors. Specifically, granny snatching refers to a problem where a elder guardian (usually close friend or family member) suddenly loses their rights when the senior moves into a different state than the one where guardianship was established.

This situation can exacerbate family feuding and increased elder abuse risk. That is because the jurisdictional matter opens the door for one relative (who does not have legal guardianship) to physically move the senior elsewhere. The former legal guardian then faces significant challenges being reunited with their loved one because the new state’s failure to recognize their authority.

Currently, this is a risk for all families that move into (or out of) New York. Per existing state law, a guardian needed to bring new guardianship proceedings upon moving into the state. At the same time, New York residents that move elsewhere risked having their guardianship ignored by the new state. This poses very real administrative problems for seniors most in need of help with various day-to-day financial and well-being issues.