New York Estate Planning & Elder Law Blog

New York Nursing Homes Receive Failing Grade

Published on: January 3, 2014 | by Ettinger Law Firm

Senior citizens rely on experienced and trusted assisted living facilities to provide premier living conditions staffed with professional associates to provide the best medical and personal elder care. More than one-and-a-half million Americans live in nursing homes throughout the country, so that makes for many in search of quality assisted living. Over the next decade the number is expected to swell by as much as 40% as the baby boomers approach retirement. A report shows that many states, including New York, received a failing grade on its nursing home report card, alarming to elder law advocates.

Families for Better Care, a Florida-based nursing home resident advocacy group, released the report, which scored, ranked, and graded states on eight different federal quality measures. The report served the purpose applauding those states that provide good care while exposing, and motivating, those states with poor scores. The nursing home report card analyzes, compares and ranks state’s nursing home quality.

The report gave each state a final grade based on calculating the average grades in several areas of assisted living conditions, including:

The Basics: The Importance of Living Trusts in Estate Planning

Published on: January 2, 2014 | by Ettinger Law Firm

An important element of estate planning is ensuring the financial security of your family after you are gone. Like most people, we have worked our lifetime to provide financial stability for not only ourselves but our loved ones. An easy, burden-less way of providing for your loved ones is through a living trust.

As outlined here, a living trust holds many advantages compared to a will. Establishing a trust is fairly easily. Upon creating the living trust agreement, you essentially transfer a portion, or all, of your assets to a trustee. To retain control of the assets, people sometimes name themselves as the trustee. A grantor must name beneficiaries to the trust who will inherit the trust upon your death. Establishing a living trust bank account will allow you to solidify your savings while also easing any financial burden on your beneficiaries. The provisions of the trust can always be changed, or if you have second thoughts the entire trust can be revoked.

A living trust provides three important factors. Firstly, living trusts avoid the probate process. At the time of the person’s death, the assets of the trust will pass directly to the named beneficiaries. Secondly, living trust provide privacy that wills cannot by avoiding probate. A last will and testament that has been admitted to probate becomes a public record that anyone can freely see and read. In contrast, a living trust agreement, the property, and the beneficiaries remain private. Lastly, a living trust avoids a will contest. A living trust goes into effect the moment it is created, and a contestant must prove the grantor was incompetent or under the influence at the time the trust instrument was signed and the assets were transferred. This is a very hard, possibly impossible, burden to overcome.

A Court Order Delays Life Support Termination

Published on: December 31, 2013 | by Ettinger Law Firm

Legal battles between families and hospitals over whether to disconnect life-support systems are nothing new. Optimistic family members plead with hospitals and insurance companies to keep their loved one on life support, while doctors argue the person has already died and the machines are the only thing keeping the heart beating. Such disputes gained national media attention when a California court blocked the hospital from disconnecting life support from a 13-year-old girl.

Jahi McMath checked into Children’s Hospital & Research Center in Oakland, California for a routine tonsillectomy to treat her sleep apnea. After the December 9 surgery, Jahi’s family said Jahi woke up and appear stable. Jahi then asked for a popsicle. Shortly thereafter, Jahi started bleeding profusely from her mouth and nose. Jahi went into cardiac arrest due to a lack of oxygen to the brain and was placed on life support. Three days after her surgery, a CT scan of her head revealed that two-thirds of her brain was swollen and she was declared brain dead.

Authorities from the Oakland coroner’s office were told of Jahi’s death, and began preparations to obey their obligation of investigating the cause of death. Although the coroner can request termination, Children’s Hospital’s policy is to work with the family to determine when the termination will occur.

Family Fights for Years to Get Email Access After Untimely Death

Published on: December 26, 2013 | by Ettinger Law Firm

What is considered an “asset” today may not be the same as what was an asset one hundred years ago (or fifty years in the future!). Estate planning is one area of the law that changes with the times, as it must account for what is valuable, important, and logical for individual residents–something that changes through the decades.

That principle has no better demonstration than the challenges faced by many families to recover digital assets after the passing of a loved one. Digital estate planning has been a hot topic for several years, but it is far from resolved. Many families continue to experience immense hardship as they struggle to acquire various digital reminders of their loved one, from blogs and picture repositories to email accounts. Of course, there may be some situations where individuals want their digital lives to be left untouched after a passing, but, at the very least, it is important to put some final resolution on the matter to prevent families members from engaging in anguished struggles to gain access to the assets

Battle with Yahoo

Don’t Let Qualifying for Medicaid Force You Into Poverty

Published on: December 26, 2013 | by Ettinger Law Firm

If a New York senior is in immediate need of close, skilled, long-term care and lacks the resources to pay the (quite high) fees for such care are out of pocket, then the only recourse is usually the New York Medicaid system.

But far too many residents fail to appreciate the basic details of this system until they are confronted with the reality head-on. Most notably, Medicaid, unlike Medicare, is based on need–not age. Therefore, the only way to qualify is to have a set asset level that falls below a certain threshold. Many families who have spent a lifetime saving and investing in their home have assets above that threshold. Therefore they are forced to spend down their resources in order to qualify for needed Medicaid support.

A New York Times story from last month discussed how many elderly couples in the past were essentially forced into poverty in order to receive Medicaid help. One story from the 1980s is shared involving a couple who were married for 45 years before divorcing in the mid-1980s. The divorce was not pursued because the couple had fallen out of love, but because it was the only way to avoid the healthier partner from being forced into poverty to ensure the couple qualified for Medicaid.

The Challenges of Dementia Care Around the Holidays

Published on: December 24, 2013 | by Ettinger Law Firm

This time of the year generates mixed emotions for many New Yorkers. November and December are filled with many holiday celebrations, from Thanksgiving and Christmas to Hanukkah and New Years. There are work parties, gift exchanges, light displays, television specials, and more. Many local families have deep memories associated with this time of year, with fond recollections of joyous times with relatives–particularly mothers, fathers, and other older loved ones.

Yet, the happy memories are a double-edged sword. Recollections about fond times in the past may serve as a painful reminder of how things have changed in the present. This is a particularly acute situation for New York families with seniors dealing with cognitive conditions like dementia and Alzheimers. These ailments sometimes make it impossible to re-create the same holiday memories as in the past,

Caregiving Advice

Clarity in Estate Planning – Who Owns Fawcett’s Warhol Painting?

Published on: December 23, 2013 | by Ettinger Law Firm

Unintended consequences are rampant in do-it-yourself Will creation and other estate planning. Even arrangements that seem simple at first blush may prove to have hidden ambiguities or uncertainties that only come to light during probate–when it is too late to fix.

Partner vs. University

To get an idea of how ambiguity in estate planning can lead to controversy, consider the brewing legal battle between actor Ryan O’Neal and the University of Texas at Austin. The dispute centers on an Andy Warhol painting of actress Farrah Fawcett.

Gift Tax Benefits Expiring At End of Year?

Published on: December 20, 2013 | by Ettinger Law Firm

Timing is critical in estate planning for many reasons. Most obviously, because plans are intended to help ease the burden in the aftermath of a death, they must be in place before one dies (or loses the capacity to make legal decisions). But timing also matters to the extent that the law changes and alters the options available to planners.

This is most clear when it comes to taxes. Different tax rates, allowable deductions, and other details are frequently changing. Many individuals act quickly to take advantage of certain favorable situations before they are set to expire.

IRA Gift Tax Break

Understanding Legal Capacity in New York

Published on: December 19, 2013 | by Ettinger Law Firm

New York elder law attorneys work with local families on a range of issues affecting seniors. Most notable among these is assistance arranging long-term care for seniors with physical and mental challenges. This frequently requires use of the Medicaid system, which itself comes with “spend down” requirements and other complications.

One general legal issue that comes up again and again in these cases is that of “capacity.” One must have legal capacity to enter into legal agreements and otherwise make decisions for their own well-being. But how do you know if a senior loved one has capacity? What if they have been diagnosed with Alzheimer’s or dementia? Is there a black line rule on when they can or cannot sign anything on their own behalf?

Legal Capacity in New York

Bucking the Trend – County-Run Nursing Homes

Published on: December 18, 2013 | by Ettinger Law Firm

News regarding New York nursing home care in recent months has centered on one development–the privatization of formerly public-owned facilities. In the past, most New York counties owned and managed their own facilities to provide long-term care for seniors in their community.

However, due to a range of factors, those homes became significant financial weight on county budgets. Local officials looking for ways to get out of the red increasingly decided to sell off their nursing home operations to private companies. The idea often made intuitive sense, considering the facilities often cost the county millions more each year than they brought in. New York Medicaid reimbursement amounts often fail to cover the actual cost of providing support to each senior resident.

However, the privatizations have worried many elder care advocates who wonder if the quality of care will decrease post-sale. Thus far it is hard to say with certainty if private homes automatically provide lower quality care. It remains incumbent upon each family to investigate the quality of each individual home to find the location that is the best fit for your elderly relative.