Articles Tagged with brooklyn elder law attorney

Many of our elderly adults end up in nursing homes or assisted living, whether as a result of an accident or due to a declining ability to care for themselves. While many have family members or friends who are able to ensure their loved one is being taken care of properly in their respective homes, not all of those elderly are fortunate to have someone to look after them. In fact, the Special Investigations Division of the House Government Reform Committee found that 30% of nursing homes in the United States were cited for nearly 10,000 instances of abuse over a two year period.

Abuse in a nursing home can take many forms, some problems involving physical abuse and negligent include untreated bedsores, inadequate medical care through dehydration and improper hygiene, as well as physical abuse such as broken bones, untreated bruises and cuts. Other examples of abuse involve verbal abuse, for example yelling, and ignoring requests, as well as withholding medication.

This problem happens all too often, and it can come down to the caretakers word against the elderly abused patient. An Illinois man concerned about the care of his father after he voiced concerns about a new nurse, installed a surveillance camera in his father’s room in an assisted living home. The camera unfortunately confirmed exactly what he believed, he was being neglected at times, verbally and physically abused by a certified nurse’s aid working at the facility. The nurse was charged with a felony aggravated battery to a person older than 60 years and felony abuse of a long-term health care facility resident.

Sumner Redstone, the 93 year old media mogul who has infamously alienated both family and friends over the past few years while determining the terms of administration for his estate, added another dramatic chapter last month when he made claims of elder abuse against two of his former girlfriends. The billionaire business man has claimed that his two former girlfriends conspired to take advantage of his wealth and now owe him over $150 million dollars, given in gifts over a period of years.

Some of the gifts to the women included designer clothing and bags, access to any of Redstone’s credit cards, vehicles and real estate located throughout the world. In addition to the gifts given while alive, both women stood to inherit nearly $23 million dollars each, before Redstone altered the terms of his will when he evicted the women from his home. There were numerous tax implications that came with the gifts given by Redstone that left him in financial trouble.

Last year, Redstone’s mental competency was called into question when one of his girlfriends, Manuela Herzer, filed a lawsuit against Redstone following her eviction from his home. The former girlfriend then petitioned a court to regain decision making power of Redstone’s estate and to regain what he originally set aside for her in his will. Herzer made allegations of financial abuse by his family members, however, her case was thrown out after testimony by Redstone was released from a deposition hearing proving that Herzer maintaining decisionmaking power would not be in his best interest.

A study released in late November in the JAMA Internal Medicine journal reported that dementia rates for individuals over the age of 65 years old is down almost 24% from rates found in 2000. There are a variety of reasons why this decline may have happened, including elders with higher education levels than those before them, as well as better heart and brain monitoring, and more awareness as to social and behavioral changes that elders have as a way to combat Alzheimer’s Disease.

This news comes as a welcome surprise, as in 2016, 5.4 million Americans lives with Alzheimer’s Disease, roughly translating to one in nine people over the age of 65 years old. By 2050, the elder population will have tripled in size, amounting to a staggering 84 million people over the age of 65 years old. With the aging population growing at such a rapid pace, medical, legal and social professionals are working to determine how to cope with such a large amount of the population potentially living with this disease.

These recent findings shed some light on how the disease, which generally exhibits symptoms of memory loss, confusion, limited social skills, mood changes and disorders as the result of irritability and anxiety, as well as confused speech and muscular movement.

In continued efforts to protect the rights of elders, The Department of Health and Human Services has passed a rule to further ensure that elders are not taken advantage of and have the right to decide whether they seek a trial or alternative dispute resolution measures when bringing a legal claim. Currently, a majority of nursing home contracts contain arbitration clauses in the event that a residents bring a claim against the nursing home for incidents such as safety, quality of care, sexual harassment, elder abuse,  as well as wrongful death.

Arbitration is a method of alternative dispute resolution that is used as a way to settle a legal claim instead of using litigation. Arbitration involves both parties and a third party neutral arbitrator, who listens to both sides present their case, similar to a judge, and renders a decision after both sides are heard. While arbitration can be a very useful and effective legal tool, the implementation of mandatory arbitration has left room for abuse of the system and injustice for residents and their families who seek legal recourse when bringing their claim. One benefit of arbitration is that it is also a private process; unlike legal proceedings, arbitration proceedings and their rulings will not be made public record, which makes it more difficult to measure rates concerning legal claims brought by elders against nursing homes.

Currently, there are roughly 1.5 million elders in nursing homes who are said to be affected as a result of this rule change, and this number will continue to grow. There may be some confusion regarding the applicability of this new rule however; the rule will only apply to new nursing home contracts that are entered into going forward. Those nursing home contracts already existing that contain a mandatory arbitration clause will be enforceable under the Federal Arbitration Act, according to the Center for Medicare & Medicaid Services. Additionally, a nursing home and potential resident can enter into a contract for arbitration if they wish, but it will not be mandatory in their contract.

There is a relatively unknown or at least underutilized program in the law that can provide some important tax benefits for those who care for their elderly or special needs relatives.  The Dependent Care Assistance Program (DCAP) is a tax benefit that is often offered by employers for expenses that a person incurs for any number of things for the care of others.  It is a tax credit that can be claimed by the taxpayer for expenses related to the care for qualifying individuals so that the caretaker may work.  The program is similar to a Health savings account insofar as a person can sock away a certain amount of money that can be used on certain delineated services or costs.  

The good thing for New Yorkers is that this tax credit is for both federal government income taxes as well as state taxes.  Not all states have such a tax credit; residents of these states can only utilize the federal credit and still have to pay state taxes on the money earned and diverted into the DCAP account.  Under federal tax law, the tax credit is limited by to the amount that the worker earns.  New York’s tax credit calculated as a percentage of the Federal tax credit.  In addition, there is a $5,250 ceiling per year on the amount that a person can put into the account.  The benefit is allowed for families earning up to $120,000.  If the employee utilizes a DCAP program through their work, the tax credit is reduced by the amount that use through their employer’s program.

The money can be used for practically anything for the elderly or special needs relative, including adult day care, transportation, (reasonable) entertainment costs, as long as they costs are related to your employment.  In other words, if you do not need to incur the costs to be employed, you cannot claim these costs.  Overnight camp or educational costs cannot be incurred, since they are not related to or required to your employment.  Fellow relatives cannot be the service provider.  While an employee can take advantage of an employer based program, most employers do not offer it as an additional benefit; rather most employers who have such a program allow the employee to earn their income tax free.  


For those of among us who care for elderly parents or relatives, you do it without expectation of compensation or reimbursement. You dedicate time, money, resources and do it day in and day out and will continue to do so without concern for recompense. That does not mean, however, that you would not take any financial reimbursement from outside companies or or tax exemptions from the IRS. Most people do not realize that caring for an elderly parent or relative comes with some fairly generous tax benefits. There are some very important and precise legal definitions that need to be satisfied before you can properly claim your elderly relative dependent.


        Throughout the twentieth century, the Federal government took various legal steps to positively impact the lives of senior citizens, the disabled and the elderly in general.  Throughout the 1930s a variety of retirement and pension programs were enacted, most significantly social security.  1952 saw the funding for social services programs targeted for the elderly and senior citizen population.  The 1960s saw a number of progressive social legislation enacted, with 1965 as a particularly important year, with the implementation of Medicare as well as the Older Americans Act.  The 1970s followed with many funding programs expanding the legislative enactments of the 1960s.  For example, 1972 saw the funding for a national nutritional program for the elderly, which is known today as meals on wheels, while in 1973 Congress funded grants for local senior community centers.


For purposes of the prevention and coordination of the national response to elder abuse, the Older Americans Act, is perhaps the most significant and comprehensive federal law to deal with elder abuse.  Currently the Department of Health and Human Services, Administration on Aging manages the various programs flowing from the Older Americans Act.  It ensures that each state has a sufficiently strong adult protective services program and a Long Term Care Ombudsman Program, which acts as a voice for residents of long term care facilities in the jurisdiction.  These programs are necessary for the state to receive funding from the federal government.


As this blog wrote about several months ago, certain financial products purchased by a Medicaid applicant do not render them ineligible for Medicaid benefits. While the previous post discussed why a short term annuity did not render a Medicaid applicant ineligible, this blog will discuss why such a choice may be a good fit. For sure, the short term Medicaid annuity must satisfy certain criteria to qualify for the federal “safe harbor” provisions that would otherwise render the purchaser of the short term annuity ineligible for Medicaid.


To be sure, tontines are illegal in America and have been since the early 1900s. There have been many articles of late, however, arguing for their return and putting the product back onto the menu of options that retirees may want to purchase. The idea of the tontine is rather simple. You get a group of people who all buy into the tontine, with their money going into the collective pool of cash. At certain intervals, you get paid money back. When people in the pool pass away, the money they invested does not go back to the investor’s family or estate. Instead it stays in the pool, allowing the payment to the remaining members to increase. The offensive part comes from the financial gain garnered by another’s death. Some people may view it as gambling on the lives of another.


In 1905 the New York based Equitable Life insurance company internal fight went public with accusations of self serving deals and political payoffs. In response New York launched a far reaching investigation that helped to shape insurance law for the next century. The Armstrong Committee started the career of future United States Chief Justice Charles Evans Hughes, who was a rabid opponent of gambling and helped to create the picture in the public that tontines are gambling. He further helped to draft the 400 plus pages of recommendations and reforms. At the time, New York had jurisdiction over 95 percent of the insurance industry in America. Moreover, within ten years most states enacted similar legislation. As such, the impact was national in scope. Among the reforms enacted was a prohibition on rebates by insurance companies and a ban on deferred dividend insurance.


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.  


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