NYC elder law

Back to the Basics – Understanding Contested Estates

Published on: December 15, 2016 | by Ettinger Law Firm

Probate and Contested Estates

When an individual dies, their transfer of property through the legal system is known as probate. During this process, the court determines the validity of a legally formed will or a how property will be distributed if it has not been designated to be inherited by another named party. When an estate enters probate, all of the debts and taxes owed by the deceased on the property are paid, any remaining income, dividends, stocks or investments are sold and the property is distributed or transferred out to the heirs of the deceased. While the deceased individual can leave property or assets to any party they wish, there are certain situations that call into question the validity of the transfer. If one of these suspicious situations arises, a party may raise a contested issue with the distribution.

Examples of Contested Estate Issues

Back to the Basics – The Gift Tax

Published on: November 28, 2016 | by Ettinger Law Firm

Putting your assets in an irrevocable trust has a number of benefits, including: allowing the settlor, also known as the maker of the trust, to establish how his or her assets will be kept and eventually distributed, it allows the settlor to have access to the income produced by the trust, as well as the numerous tax benefits such as capital gains taxes being either deferred or in the event of gifting, avoided.

According to the Internal Revenue Service, the federal tax code applies a gift tax on an individual level, however, that tax does not apply to trusts. If you transfer funds from your personal account, whether it is a savings or checking, to another, in excess of $14,000 you will be subject to a tax for the gift made, however, the IRS does not place these same taxes on trusts, depending on how the gift was made.

If the beneficiary makes a discretionary gift to another, a gift that can be shown to be made for the immediate benefit of another, it depends on whether the donation is viewed as present or future interest in the gift. If it can shown that the gift was made for the future interest of another, the IRS will not subject the trust to gift tax, however if it can be perceived that the gift was made for a temporary relief of another, the gift tax will be applied to the donation made.

How to Properly Choose a Caregiver For your Loved One

Published on: November 5, 2016 | by Ettinger Law Firm

There comes a time when difficult conversations must be had with an elderly loved one in your life that requires a caregiver, but is not receptive to the idea. These conversations can initially be overwhelming for both the loved one and the elderly person, as they start to make a plan about how their lives will change, but as so many Americans continue to live longer with a number of chronic health problems, enlisting the help of a caregiver is a very realistic and responsible choice in order to ensure an elderly person is well taken care of. This also tends to be the best option for those families who are not geographically close enough to care for their loved one full time but see the need for change in the current situation.

In determining the needs of your loved one, continue the dialogue to assess what is most important to both of the parties, such as, full time versus part time care, what daily activities the individual partakes in and what kind of assistance is needed with those, if any, as well as whether overnight care or meal assistance is needed, among many other factors.

Once needs have been determined, it is important to build a pool of applicants to interview. Caregivers build a very personal and intimate relationship with those they care for, thus, it is critical that the individual not only approves of the caregiver, but shares something in common and can trust that person.

Financial Elder Abuse: Warning Signs and How to Stop It

Published on: October 25, 2016 | by Ettinger Law Firm

Elder abuse has been an increasing trend over the past few decades, within roughly one in ten Americans over 60 years of age experiencing elder abuse, whether it be financial, harassment, sexual, physical, or passive abuse through neglect or deprivation. Of the elders subjected to abuse, over 90% of those Americans are abused by someone they know, either a family member, friend, acquaintance, medical staff employee, or caretaker.

Predators seek out opportunities with the elderly in order to become involved in their lives and then later exploit them in their most vulnerable state. Often times, an individual will claim to be helping the elder individual, either by assisting in caretaking or house keeping, and then will later bill them for an exorbitant amount of money or get ahold of their checking account to pay themselves.

Warning Signs

Common Estate Planning Mistakes

Published on: August 15, 2016 | by Ettinger Law Firm

Planning how your assets are going to be distributed and for your health care needs is an important tool all adults, not just elders should utilize. However, over 60% of Americans have not made a basic will. There are many misconceptions about estate planning and the reasons for it, which has led many Americans to shy away from the process.

Common Mistakes & Misconceptions

Estate planning is for the elderly or the wealthy. Determining how you want your property distributed or what you would like to happen to you in the event you can no longer speak for yourself are tasks everyone needs to think about. Even the most simple finances can become complicated when there are multiple parties involved.

Technology Aiding the Aging Population

Published on: August 3, 2016 | by Ettinger Law Firm

As the older population continues aging, we are constantly trying to find new tools to help this population manage their lifestyle with more ease. Assistive technology is any service or tool that aids the aging population in performing their otherwise increasingly difficult or impossible daily activities. This technology ranges from a smartphone, to a walker to GPS tracker, many of which allow the individual to continue living independently or without care, while also allowing their loved ones to check on them.

Paying for Technology

As with any other medical assistance, insurance coverage is always a concern. Although there is no universal plan covering assistive technology for the aging population, some plans do cover a portion of the costs. Medicare Part B will cover up to 80% of the cost of technology that can be considered medical equipment. Also if you are eligible with the Department of Veteran’s Affairs for assistance, they will pay for a portion of the cost and will also help train those who are using the device.

Elders Right to Live in the Community

Published on: June 16, 2016 | by Ettinger Law Firm

In 1999, the United States Supreme Court ruled in Olmstead v. L.C. that, consistent with the Americans with Disabilities Act, individuals with mental disabilities have a right to live within their community as opposed to an institution, if professionals have determined that the patient’s ability to adapt and live in their community is appropriate, the patient can be reasonably accommodated and the move to community living offers a less restrictive setting. Following this ruling, President Clinton then directed all states to evaluate individuals in mental hospitals, as well as nursing homes and state institutions to determine whether they could too be acclimated back into their communities. Due not only to the major expenses facing Medicaid and maintaining nursing homes, this was thought to be a possible solution to overcrowding and retaining civil rights for those affected individuals.

However, in the decade and a half since the Supreme Court ruling and the President’s policy statement, the government has done little comparatively to remedy the problem. This has resulted in too many disabled and handicapped people remaining in institutions against their will and left without a method of recourse. While the federal government can control state spending for nursing homes and how Medicaid is spent, the community based care programs that so many disabled and handicapped people are seeking care from are optional.

Yet, Medicaid only pays for about 40% of all long term care services, thus, major bills are still piling up on patients, and in states such as South Dakota, the state with the highest percentage of individuals in nursing homes that have a low need or no need at all the services provided for the institution, they are forced to remain in the institution to receive any kind of care. With over 1.4 million individuals in nursing homes throughout the United States, some states are taking active steps to address the issue by allocating a portion of Medicaid funds to in-home care.

ELDER PROTECTION AND ABUSE PREVENTION ACT

Published on: April 22, 2016 | by Ettinger Law Firm

FEDERAL DEFINITION OF ELDER ABUSE AND FEDERAL RESPONSE

In these United States it is often that many things are left up to the states for criminal and civil enforcement. While the federal government does have a statute for murder, it is generally only applied to events that occur on federal lands or of federal agents or employees or when the murderer is allegedly motivated by racial animus or something similar. As such, it is not surprising that there is no general federal legal definition of certain acts that are criminal in nature, such as robbery or extortion. On certain matters, which Congress declared of critical importance, the federal government created defitions that it expects states to follow in substantial regards. For example, foster care placement and adoption, is of such critical importance that Congress created a series of laws that defines a host of things, such as abuse and neglect, when foster care is needed, when the state is to move towards adoption and away from working with the parents.

It creates strong incentives for states to adopt these statutes by offering financial backing. In other words, it underwrites a certain program if the state adopts the law that is substantially in line with the federal government model. The same tactic is employed in the fight against elder abuse. Recently three Senators introduced the Elder Protection and Abuse Prevention Act (the Act), which, seeks, in part, to amend the definition of elder abuse found in the Older American’s Act. But this definition was not tied to block grants to states. The first time Congress authorized a block grant to the state for purposes of elder abuse was in 2010 with the Elder Justice Act. More importantly, Congress never appropriated money for the programs that it statutorily authorized and mandated with the Elder Justice Act.

MAJOR NURSING HOME CASE TESTING MANDATORY ARBITRATION CLAUSE

Published on: March 15, 2016 | by Ettinger Law Firm

CASE OF POTENTIALLY NATIONAL IMPORTANCE REPORTED IN NEW YORK TIMES

On August 21, 2009 a tragic event occurred at a nursing home in the quaint coastal town of South Dartmouth, Massachusetts. Elizabeth Barrow was over 100 years old at the time of the tragedy, but told her son on her birthday when she turned 100 that she wanted to live to be 104. The New York Times article describes her as a sweet, compassionate woman full of verve and love even in her advanced age. She was known around the nursing home as offering people hugs. It is no surprise that she made friends quickly and was quite popular amongst the fellow residents. Mrs. Barrow entered the nursing him in 2006 with her husband, with whom she shared a room. She felt fortunate just the same because her room gave her a terrific southern exposure, which helped her grow her beloved african violets. Then in 2008 Ms. Barrow’s new roommate moved in with her, after the new roommate had an argument with her previous roommate.

The exact nature of the relationship between Ms. Barrow and her roommate and very much in dispute. What is known is that soon after Ms. Barrow’s death the local District Attorney filed second degree murder charges against the 98 year old roommate. Soon after the charges were filed, the Defendant was found incompetent to stand trial. As of the time of the writing of the New York Times article, the Defendant was still alive at 104 in a local state hospital. Given her advanced age it is unlikely she will ever stand trial.

ADULT PROTECTIVE SERVICES VOLUNTARY DRAFT GUIDELINES

Published on: February 24, 2016 | by Ettinger Law Firm

UNIFORMITY OF LAWS

Many laws across the country are the result of non-profit civic minded legal entities. The American Legal Institute is perhaps the most well known of these groups. Not all laws are “laws” in the traditional sense. Some are written by these legal entities and the various states adopt them as compacts, which are in essence legal contracts between states as to how they will handle intra-state legal problems. For example, there is a drivers compact that enables one state to recognize and punish out of state drivers for driver under the influence infractions.

For example, New Jersey driver receives a driving under the influence infraction in New York. The worst thing that New York can do is to revoke that driver’s right to operate a vehicle in New York state. Indeed this does happen. In addition, under the driver’s compact, New York also forwards this conviction to New Jersey and New Jersey then punishes the driver in accordance with New Jersey law, thereby suspending his/her driving privileges. Congress has never weighed in on this issue because there was no need to. Almost every state partakes in the Driver’s compact. States also cooperate with the placement of foster children across state lines to relatives or family friends via a compact. Once again, Congress has not created any statutory framework for the states. At the current moment there is some general agreement between the states when it comes to the laws that deal with Adult Protective Services (“APS”). The key term is that there is “general agreement.”