Articles Posted in Elder Law

When American Top 40 legend Casey Kasem’s daughter, Kerri Kasem, appeared in front of a Los Angeles County Superior Court Judge this past Monday, she told the Court she believed her 82 year old father had been “kidnapped“. Prior to the disappearance the radio icon, who suffers from Lewy body dementia, had been residing in a Santa Monica nursing home receiving 24-hour medical care. Kerri Kasem feared that removal from the nursing facility allegedly by Kasem’s wife, with whom Kasem’s children had been involved in a long-time feud, threatened his health and safety considering his medical condition. Kerri Casem was immediately granted a temporary medical conservatorship, filed a missing persons report with the Santa Monica Police Department, and Kasem was ultimately located on Wednesday in Washington State with his wife. Kasem’s children suspect Jean absconded with their father out of fear that they would coerce him into changing his will.

Casey Kasem’s family saga is a public and an extreme example of how contentious familial relationships can become when disagreements as to the health care of an older family member arise. Medical Conservatorship is a legal concept in the United States where a guardian is appointed by a court to manage the healthcare decision-making concerning an incapacitated or individual. As explained by the New York Department of Health, an individual is determined incapacitated when an attending physician finds to a reasonable degree of medical certainty that the patient lacks ability to understand and appreciate the benefits, risks and consequences of proposed health care. The individual must be able to make an informed decision as to health care. If an individual already has in place an advanced healthcare directive, the decision-making about the individual’s medical care in the event of sudden incapacity, or incapacity due to old age, is already taken care of.

But oftentimes, there is no directive document. That is where the conservatorship arises. Conservatorship is a legal arrangement that requires appointment by a court, granting authority to a legal decision-maker to act on behalf of the incapacitated family member. In addition, a conservatorship provides a legal process where major healthcare decisions, for example removal from life support, must be approved by the court. In the absence of a healthcare directive, conservatorship grants family members a clear legal determination of authority when it comes to medical care of an incapacitated family member.

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?

Elder financial exploitation is a nuanced term for a growing problem–the financial abuse of the elderly.

Financial abuse of the elderly is a growing concern in today’s society. There are more senior citizens now than ever before and many of them are institutionalized or require help to get by in life. These dependent situations create an environment where the elderly can be taken advantage of financially.

What Is Financial Abuse?

Residents throughout New York continue to experience “sticker shock” when exploring their long-term care options. Whether you are planning for possible needs in the future or working quickly to secure support for an ailing loved one, there is a good chance you may be surprised by the overall costs of this care. Naturally, there is a spectrum of care–from occasional, at-home aides to a move into a skilled nursing home. And there are wide variances in quality among specific caregivers. In most cases, however, the overall cost is quite significant, particularly in a relatively expensive state like New York.

The Cost Data – 2014

A helpful starting point to understand the financial toll of long-term care is to examine the newly released 2014 Cost of Care Survey from Genworth. This particular survey has been conducted for over a decade, allowing an understanding of year over year trends on top of providing information on current costs.

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:

Legendary actor Mickey Rooney died earlier this month at the age of 93. Over the later course of his life, Rooney offered many important lessons related to elder law estate planning. For one thing, he was a vocal advocate against senior financial exploitation. In 2011 he testified before a U.S. Senate committee that was analyzing the various aspects of elder abuse. Rooney told the committee that he was emotionally and financially abused at the hand of his step-children (the biological children of his estranged wife).

At that hearing, Rooney echoed the thoughts of many New York seniors who were in the same situation, explaining, “For years I suffered silently. I didn’t want to tell anybody […] Even when I tried to speak up, I was told to shut up and be quiet.”

Fighting Continued After Death

As the first wave of healthcare insurance enrollment ends as part of the Affordable Care Act, observers are quick to comment on the changes enacted by the law. In addition to millions who took advantage of insurance sold in private marketplace exchanges, there has also been a significant increase in Medicaid participants–both in New York and nationwide.

According to a New York Times report last week, across the country there are now over 62 million Americans receiving some Medicaid support. The increase is more targeted in states like New York that specifically took advantage of options in the Affordable Care Act that allow for expansion of the program.

Importantly, much of the discussion about healthcare exchanges and Medicaid expansion refer to general health insurance coverage–not necessarily care that includes long-term support for the elderly.

“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.

Rather extraordinary claims were recently made by researchers in a Nature Medicine article that may forever change the long-term care planning landscape.

Scientists from Georgetown University are claiming to have developed a blood test that can determine whether an individual will develop dementia symptoms within two or three years. Their findings suggest the test is 90% accurate. While few are questioning the researchers methods, it is still to early to know if the results will hold up in future studies. This initial group consisted of only 525 total participants (all over age 70), with only 28 of that group ultimately developing symptoms. More efforts are already underway to test larger groups and potentially verify the results.

While this test offers nothing in the way of a direct cure to prevent Alzheimer’s or minimize symptoms, it still may eventually lead to treatments. That is because some research argues that all previously attempted therapies failed because they were only begun after someone showed the symptoms–at which point it may have been too late. However, if this test proves accurate, then treatments can begin earlier that may actually be effective.

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