Articles Tagged with staten island elder law

Daily, thousands of baby boomers are forced to make the decision as to whether they need care and assistance as they continue to age. Currently, there are 1.4 million adults residing in nursing homes and that number will only continue to grow over the next few decades. Plans for how to cover the millions of adults who thought they would rely on Medicare and Medicaid in their old age as well as where they will live and who will assist in taking care of them if needed, are questions that must be addressed soon.

Thus, it is not surprising that it took four years and thousands of comments in the rulemaking process in order to revise the broad nursing home regulations that were put in place in the 1990s under the Nursing Home Reform Act. Nursing homes must comply with federal nursing home regulations, but some state laws have adopted more strict laws.

What New Regulations?

Winter months are difficult on many of those who live in areas that experience great seasonal changes. The National Center for Health Services actually found that death rates are twice as high in the winter than the hottest part of summer. Not only do we have bundle up and face the chilling weather, there is also a major threat of seasonal illness.

Thus, it is not surprising that individuals have the highest risk of dying from natural causes in the end of December and beginning of January. In fact, one study showed that those who die from natural causes, circulatory problems, respiratory diseases, nutritional/metabolic problems, digestive diseases and cancer have a greater chance of dying between Christmas and New Years than any other time of year.

Not Just in America


Nurses are often on the frontline of dealing with issues of elder law, with their often compassionate personal sacrifices, mixed with their almost always professional approach to the care and treatment of their patients in any number of nursing homes across the state.  They deal with some of the most intimate, personal and human experiences up front and personal.  The vast majority of nurses across the state that work in nursing homes and with the elderly (as well as in other fields and venues) are quiet professionals who are content to simply do their job and move one in life.  

New York, however, is one of only a handful of states that has lax licensing regulations and enforcement.  New York’s nursing licensure schema requires nurses to self report any criminal convictions and may take years before it actually disciplines a nurse for egregious conduct.  Currently the New York state Department of Education, Office of Professions sets the rules and regulations for nurses and issues nursing licenses in the state.  This blog explored a well reported ProPublica investigation into nursing home abuse almost three months ago.  Following the extensive investigative journalism piece, the federal government opened its own investigation on several different levels.  


Last year a case out of the Western District of Massachusetts Federal District Court dealt with the interplay of a special needs trust and eligibility for certain governmental benefits that the special needs trust was supposed to address. The case of DeCambre v. Brookline Housing Authority dealt with the beneficiary of a valid special needs trust who applied for a section eight housing voucher but was denied because of income that she received from a third party special needs trust, established by a Court. Ms. DeCambre was involved in a catastrophic accident which resulted in a series of settlements, with the proceeds directly deposited into the special needs trust. She received a total of $330,000.

The trust did not earn any income of it’s own, the truste only distributed the income in line with the terms of the trust and charged the normal and typical trustee fees. Ms. DeCambre did not have any control over the distribution of the income or money in the trust. The Court noted that the special needs trust was indeed valid and in conformity with the special needs trust enabling statute, found at 42 U.S.C. § 1396p(d)(4)(A) and (C). Indeed, the Court noted that Ms. DeCambre benefited from this trust insofar as she received Supplemental Security Income of approximately $850 per month and validly received Medicaid. These programs, the Court noted, specifically excluded the income from the a valid special needs trust. Ms. DeCambre applied for a section eight housing voucher through the Department of Housing and Urban Development (HUD) in 2005. The voucher was approved and provided from 2005 through to 2012, when HUD reduced it by approximately $1,000 per month, based on her income from the special needs trust. Ms. DeCambre sued HUD in Federal Court on several statutory grounds, based on HUD’s decision to reduce the amount of her housing voucher.


It is never an easy decision to make decisions for another person when it is the other person who has to live with the consequences of those decisions. That is doubly true when there is not any family relation or close ties that bind you. When you are deciding for a family member, say for example an aged parent or grandparent, at least you have the benefit of years worth of conversations and their larger thoughts on certain key matters of health and health decisions. You can look back and remember what they did or said in certain similar scenarios. What about those who do not have any such close relatives who decide for them? There is a class of professional guardians across the state and country who are professional in every sense of the term. They examine an issue and consider the best way to get the answer by asking further questions of the experts, such as doctors, therapists, social workers and so on. The hardest decision that any guardian has to make, regardless of whether or not they had the benefit of ties of affinity, is whether or not to terminate treatment for an incompetent patient. By what yardstick do they measure their decisions?

If a patient already expressed their clear desire in the past as to what they want to do, the decision that the guardian must make will be much easier. The 1972 New Jersey case of In Re Quinlan sums up the decision making in this case best. In Quinlan, a young woman was in a vegetative state from which she was not likely going to recover. Her father applied to the Court to be her guardian so he could have the life supporting medical apparatus removed. The trial Court denied this application, although the state Supreme Court found a Constitutional right to privacy in such decisions to remove oneself from life support that the state cannot intervene in. Since she could do it personally, her guardian could do the same in her absence. The legal protections that control a guardian’s decisions ensure that guardians do not make their decisions with improper motive.


There are a number of benefits that the Federal Veterans Administration offers to eligible veterans and their families. While the vast majority of benefits require an eligible veteran or his/her spouse to obtain benefits, there are some limited circumstances when the children, including adult children, may be eligible. Children born with a number of ailments, although mainly spina bifida and conditions secondary to spina bifida, that are direct biological issue of a veteran of the Vietnam war era and who served in country may be eligible for a disability pension. Children of medal of honor winners receive a host of benefits throughout their lifetime, although not all of them are administered by the Veterans Administration. For veterans or their spouses, while not exhaustive, the main benefits that most veterans apply for and receive are:

  1. a military retirement; or


        In 2011 a noted bankruptcy legal scholar at the University of Michigan Law School published a working paper where he documented the rise in the rate of bankruptcy filing rates for elderly Americans.  While the overall rate was only seven percent of the bankruptcy filing population, the rate has increased 177 percent for the 65-74 age group and a staggering 566 percent for the 75 and older age group.  In May, 2015 the New York Times noted this new reality.  There are certainly many factors at play in this dynamic, including a witch’s brew of fixed income, rising medical costs and high credit card debt for a majority of the bankruptcy filers.  No doubt the recession of 2008, with its hard impact on housing and retirement was an additional major factor.  Bankruptcy also has a favorable treatment of social security and retirement income savings.


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