Archive for the ‘Elder Law’ Category

Guest Blog: Palliative Care and Palliative Care Laws in New York: What Patients Should Know

Friday, November 21st, 2014

Our guest blogger this week is David C. Leven, JD, Executive Director, Compassion & Choices of New York

Palliative care can help improve your quality of life. You should know what palliative care is and how two New York State laws effective in 2011can help you learn about your palliative care options and receive timely palliative care.  The Palliative Care Information Act (PCIA), Public Health Law Section 2997-c,and the Palliative Care Access Act (PCAA), Public Health Law Section 2997-d, defines palliative care as “health Care treatment, including interdisciplinary end-of-life care, and consultation with patients and family members, to prevent or relieve pain and suffering and to enhance the patient’s quality of life, including hospice care.” The care provided can address not only pain and other symptoms but depression, anxiety, psycho-social and spiritual issues as well.

Palliative Care Access Act (PCAA)

The PCAA  requires that  hospitals, nursing homes, home care agencies and enhanced and special needs assisted living residences establish policies and procedure to provide patients with advanced, life limiting conditions and illnesses who might benefit from palliative care, with information and counseling regarding such options appropriate to the patient.. It also requires that they facilitate access to appropriate palliative care and pain management consultations and services including but not limited to referrals consistent with patient needs and preferences.

Palliative Care Information Act (PCIA)

Terminally ill patients now have a clearly defined right to receive information and counseling about their palliative care and end-of-life options, including hospice. This will enable them to make informed treatment decisions during the final months of their lives. The law states, in part:

“If a patient is diagnosed with a terminal illness or condition, the patient’s attending health care practitioner shall offer to provide the patient with information and counseling regarding palliative care and end-of-life options appropriate to the patient, including but not limited to: the range of options appropriate to the patient; the prognosis, risks and benefits of the various options; and the patient’s legal rights to comprehensive pain and symptom management at the end of life; and information regarding other appropriate treatment options should the patient wish to initiate or continue treatment.”

The information and counseling under both laws should be provided to those lawfully authorized to make decisions for patients who lack capacity to make medical decisions, such as a health care agent.

What You Can Do to Get Palliative Care and the Benefits Required Under the Laws 

If you are a patient and believe that you may qualify for the benefits of either law or both laws or if you are a health care agent or surrogate for a patient who you believe has or may have a terminal or advanced life limiting illness or condition, then you might consider discussing this with the appropriate health care practitioner. If you are a health care professional and you believe that a patient of yours has not yet benefitted by the requirements of the PCIA and/or PCAA, then you might consider discussing this with the appropriate health care practitioner responsible for compliance with the applicable law (s) after conferring with the patient.

Learn more about Palliative Care and the Palliative Care Laws in New York, by visiting  Compassion and Choices.


Learn more about our elder law services by clicking here,  www.elderlawnewyork.com.

 

Guest Blog: Universal Design Elements Assist Aging in Place

Friday, November 14th, 2014

Our guest blogger this week is Priscilla Toomey, Associate Broker, JD, Top 5, ABR, SRES, Certified EcoBroker, Julia B. Fee Sothebys International Realty.

PRT Headshot_web

While many of us have heard the terms “universal design” and “aging in place,” their meanings and implications may be vague to us. They are universal movements and also have implications for house design going forward.

Basically, universal design is the concept that spaces should be aesthetically pleasing but also be easy to use by people with (or without) disabilities and by the aging population. A few examples  that are commonplace are audiobooks, slip-resistant surfaces, automatic doors, closed captioned television, curb cuts at corners, low-floor busses, Velcro, cabinets with pull-out shelves, lever handles instead of knobs for opening doors, and no-stair access to housing.

A major benefit of universal design is that it makes it easier for people to continue living in their own homes. We are living with an aging population.  By 2030, the US population aged 65 and over is expected to grow to 71.5 million people, from about half that number in 2006.  More and more people want to “age in place” (AIP) rather than go into assisted living, if at all possible.

Aging in place is a world-wide movement, because populations everywhere are living longer. The idea is to enable people to remain in their own homes as they age by providing resources and support services, rather than having them move into assisted living, which is far more costly and more disruptive. Universal design elements can help them do that, while postponing the need for expensive institutional care.

There are more aging in place organizations in Westchester than you may have imagined. There are currently three aging in place models in Westchester County and several organizations in different parts of the county encouraging the formation of AIPs. One close-by example of an aging in place resource is Gramatan Village in Bronxville, NY.

For legal needs, there are lawyers who specialize in a relatively new field known as “elder law”.  For real estate, agents who are interested in working with older clients can become certified as Seniors Real Estate Specialists (SRES). When you need the expertise of one or the other, it’s nice to know they’re there.

 Click here to contact Priscilla.


Learn more about our elder law services by visiting www.elderlawnewyork.com.

Choosing A Medicare Advantage Plan

Monday, November 10th, 2014

Medicare beneficiaries have a choice in health plans. They may choose Medicare Part A (hospital insurance) and Part B (physician and outpatient coverage), which together are also known as traditional or original Medicare, or they may choose Part C, a Medicare Advantage plan, which replaces Parts A and B. Medicare Advantage plans also usually come with their own prescription drug plan, thereby replacing Medicare Part D as well.

Medicare Advantage plans are offered by private health insurance companies that contract with the government to provide Medicare benefits. Most of them are managed care plans similar to preferred provider organizations (PPOs) or health maintenance organizations (HMOs). Medicare Advantage plans may cost more than traditional Medicare, but they may also offer additional benefits. It is important for beneficiaries to understand the options in order to make the best choice for their circumstances. For many, traditional Medicare is the default choice, but there are reasons why beneficiaries may prefer Medicare Advantage.

Some people may prefer the way Medicare Advantage plans handle prescription drug coverage. Most of them include prescription drug coverage in the cost of the plan, so the extra cost of Medicare Part D can be avoided. However, the total that beneficiaries pay depends on what prescriptions they have. The Medicare Plan Finder at Medicare.gov can help individuals determine how much they would pay for prescription drugs under various plans.

Another reason people choose Medicare Advantage plans is the limits on out-of-pocket spending. Under traditional Medicare, there is no out-of-pocket maximum, but Medicare Advantage plans are restricted to a cap for out-of-pocket expenditures. Whether a beneficiary would meet that cap depends on individual circumstances. In addition to the cap, Medicare Advantage coinsurance payments may be structured in a more beneficial way.

Beneficiaries may also choose Medicare Advantage because they want vision or dental plans included, or they want an alternative to purchasing “Medigap” coverage to pay for costs that traditional Medicare does not cover. Individuals should examine the costs and benefits of plans carefully to determine the right choice for them.

 

Learn more about our services by visiting www.littmankrooks.com.


Was this article of interest to you? If so, please LIKE our Facebook Page by clicking here.

Assets Can Be Spent Down Safely to Qualify for Medicaid

Friday, October 17th, 2014

Many seniors have to rely on Medicaid to pay the high cost of care in a skilled nursing facility. However, Medicaid is a needs-based program, which means that one must meet certain income and asset limits in order to qualify. Many seniors therefore find themselves needing to “spend down” their assets to become eligible, which can significantly affect their estate plans. Seniors cannot simply give assets to family members in order to qualify, as such transfers during Medicaid’s five-year “look back” period will trigger penalties.

By planning well ahead, many families are able to avoid the spend-down issue by purchasing long-term care insurance or transferring assets early enough that they are not affected by the look-back period. However, those who are in immediate need of long-term care do not have the luxury of protecting their assets in advance, and must focus on spending down assets in a way that enables them to qualify for Medicaid.

Certain “non-countable” assets do not have to be spent down or sold in order to qualify for Medicaid, including the home, a vehicle, household goods, personal effects, some prepaid funeral arrangements, and a limited amount of cash. In most states, therefore, one can safely spend down savings by using them to pay for non-countable assets. This may include paying off a mortgage or buying a new home, making repairs to a home, replacing home furnishings, replacing an old vehicle, or prepaying funeral expenses. In most cases, one may also pay off any legitimate debt, such as credit card debt.

In addition, most states permit a Medicaid applicant to make qualified payments for caregiving services in the home, when this helps the person stay at home and avoid nursing home costs. The caregiver who accepts such payments may be a family member, provided there is a written agreement and the caregiving services are not prepaid.

Medicaid rules can be complex, and they vary from state to state, so consultation with an experienced elder law or estate planning attorney is highly recommended.

 

Learn more about helping seniors and their families plan for the future by visiting www.elderlawnewyork.com.


Is this article of interest to you? If so, please LIKE our Facebook Page by clicking here.

What Household Employees Should Know About the Affordable Care Act

Tuesday, September 23rd, 2014

By Tom Breedlove, HomePay by Breedlove

Nannies, senior caregivers, housekeepers and other in-home providers are in a unique situation compared to most employees. They don’t work for a large company with a Human Resources department looking out for their best interest. So when it comes to something like purchasing health insurance, it’s not as simple as filling out a form and letting someone else do all the work on the back end. And with the implementation of the Affordable Care Act, many household employees have questions about what is required of them.

While millions of people signed up for health insurance policies via the federal and state online exchanges last October, many others did not and will have a decision to make once again in the next few weeks. Open enrollment for health coverage starting in 2015 is scheduled to begin on November 15th – both for those buying policies for the first time and those whose policies are set to expire at the end of the year.

The most important thing for employees to understand is that the law itself is not changing in 2015 compared to 2014. That means all individuals are still required to have health insurance policy in place or pay a fine. For 2014, the fine is $95 or 1 percent of income for those that remain uninsured, whichever is higher. For 2015, this fine increases to either $325 or 2 percent of income, whichever is greater. For example, someone earning $35,000 per year would face a fine of $700.

However, there is a silver lining to this cloud. There are subsidies that many employees will qualify for based on their income level that will allow them to obtain health insurance at a discounted rate. The Kaiser Family Foundation has a helpful calculator tool that any employee can use to estimate the subsidy they could receive. It takes into account several factors, including income, number of adults enrolling in coverage, number of children, the employee’s resident state, and others.

IMPORTANT NOTE: In order to qualify for a subsidy, the employee must have documented wages – meaning they have to be paid legally. In most trust situations and many senior care employment arrangements, this is already taken care of, but it warrants a reminder that this subsidy is available for those working so hard to care for a family’s loved one. It’s just another benefit of legal pay to go along with others, such as Social Security income, Medicare health coverage, unemployment benefits, disability benefits, and the ability to secure loans/credit.

To learn more about health insurance coverage, please visit Care.com or go to healthcare.gov.


To learn more about helping seniors and their families plan for the future, visit www.elderlawnewyork.com. If you liked this article, please like it on our Facebook page.

Rent Increase Exemption Expanded for New York City Seniors

Monday, September 15th, 2014

Eligibility was expanded for the Senior Citizen Rent Increase Exemption (SCRIE) program, which provides a rent freeze to people age 62 or older who live in rent-regulated apartments and whose rent is more than one-third of their income.

Previously, seniors were eligible for the program if their rent was $29,000 or less. The action taken by City Council changes the eligibility cap to $50,000, and was made possible by a provision in the state legislature’s budget passed March 31. The program served 53,000 seniors, and 24,000 more seniors are newly eligible since the change went into effect on July 1.

Under the SCRIE program, when seniors in rent-regulated apartments receive rent increases from their landlords, the tenants do not have to pay the increase, and the landlords receive an equivalent property tax credit.

In order to be eligible for the program you must meet the following criteria:

  • A tenant must be age 62 or older;
  • Be the head of the household in a rent-regulated unit that is the tenant’s actual residence;
  • Total household income for the previous tax year cannot exceed $50,000,
  • The tenant’s rent must exceed one-third of income.

Tenants may apply for SCRIE through the New York City Department of Finance at http://nyc.gov/finance. Tenants do not need their landlord’s permission to apply and landlords cannot refuse to participate. After the department reviews the application, tenants will receive a letter of approval or denial. An Approval Order will inform the tenant of the amount of the rent increase exemption and when it begins and ends, and the landlord will receive an Owner Approval Order. The benefit must be renewed every two years or whenever a lease expires, and if a tenant moves to another rent-regulated apartment, then a Portability Application must be filed.

Learn more about SCRIE by clicking here. To download the initial SCIE application, click here. To learn more about our services for seniors and their families, visit www.elderlawnewyork.com.


Was this article of interest to you? If so, please LIKE our Facebook Page by clicking here.

Some Seniors May Prefer Naturally-Occurring Retirement Communities

Tuesday, August 12th, 2014

Although many retirement communities are constructed after thorough planning, it is not the only way for such a community to develop.

The term “retirement community” usually refers to a neighborhood or apartment complex that was designed for seniors, and may be restricted to residents above a certain age, such as 55. Large developments of this kind have proliferated across the Sun Belt and elsewhere, offering a variety of activities and services to seniors. At the same time, other neighborhoods underwent an unintended demographic shift over time, until the majority of residents were seniors. These naturally-occurring retirement communities (NORCs) can qualify retroactively for funding for seniors’ support services, while providing the generational diversity that some older people prefer.

Many seniors want to live in a neighborhood where they can meet people their own age and take advantage of services and activities that are geared toward their needs, but they also want to live in a diverse area where children and young people may not be next door, but are not miles away either. Sometimes these communities occur naturally, as people age in place or as more older people move in. In addition, some developers are now mimicking NORCs by building small retirement enclaves in generationally diverse areas, an alternative to sprawling retirement communities where thousands of seniors may live separately from young people.

NORC is a term that has been in use since 1986 and is recognized by all levels of government. In New York, once a community meets certain criteria regarding the size of the population of older people, funding may be available from local, state or federal government agencies to provide services such as health care, social services and recreational activities. There are currently 27 recognized NORCs in New York City alone, and with the large baby boom generation aging, the number of these retirement communities can only be expected to grow.

Learn more about retirement communities and other options for seniors at www.elderlawnewyork.com. 

 

Was this article of interest to you? If so, please LIKE our Facebook Page by clicking here.

 

Should You Consider a Trust for Your Child’s Inheritance?

Monday, August 4th, 2014

An update has been made to the NY Estate Tax. To read our update, please click here.

This conversation comes up a lot with our estate planning clients: “So, you’re leaving your entire estate equally to your three kids,” we say to our client. “Do you want to leave it outright or would you consider putting it in a trust for them?”

The two most common responses:

  •  “No, my kids are all OK. They can manage money and would be insulted if their inheritance was left in trust.”
  •  “No. If they can’t manage their inheritance then I can’t help them. I don’t want to try to control things after I’m gone.”

Then, we explain that creating a trust is actually a good thing for the kids but it’s usually hard to convince clients. So let’s try it here, and then we can just hand them this article.

Why consider a trust for your child’s inheritance? It may be a real benefit to them, protecting their inheritance from their creditors, spouses, even estate taxes. Let’s look at each of those concepts briefly:

One common concern we hear: “we love and trust our daughter, but though we like her husband we wouldn’t want him to inherit our assets if something happens to our daughter.”   By creating a trust for your child’s inheritance, you make it easier to keep the property separate from spouses and more likely to pass to your grandchildren on your child’s death. Sadly, divorce is very common: you can help keep the inheritance from being considered as part of the property to be divided if your daughter does divorce.

Let’s consider creditors. “Our son is a doctor,” you say, “and he has plenty of money.” Ah, but professionals are vulnerable to future malpractice lawsuits, and anyone can have even a substantial estate drained by an auto accident or medical crisis. Creating a trust for your son can help protect the inheritance from lawsuits, creditors, and bankruptcy.

How about taxes? If your daughter is a successful professional, she might well have a taxable estate on her death. That could be true even though she is not particularly close to that figure today. If estate taxes do kick in, they start at a very high 40% on the federal level. New York currently has an estate tax on estates over $1 million.  If you leave your daughter’s inheritance in trust, you can fairly easily arrange to keep it out of her “estate” for tax purposes.

So there are good reasons to leave an inheritance in trust, even though all your children are responsible and your estate is modest. But aren’t there some serious downsides? Doesn’t it mean a lot of additional costs and imposition of a bunch of difficult rules? Not really.

Depending on your family circumstances, you might even name your son trustee of his own trust. Or make your son trustee of the trust for your daughter, and make her trustee of his trust. Or make your daughter (you know, the one with her CPA who works for the bank) trustee for all the kids’ trusts. In other words, creating a trust does not mean you have to incur professional trustee fees though it might actually make sense to name a non-family trustee. We can talk about those options.

The trusts for your children will have to file tax returns each year. That will in fact mean a small additional cost. But the total amount of income tax paid need not increase. It should be fairly easy to assure that each trust’s income is taxed to its beneficiary, rather than paying taxes at the (often much higher) trust rates. We can talk about those issues, as well.

What about your son’s access to the money? Do you think he might want to use his inheritance to pay off his mortgage, or to allow him to put more away for retirement, or to send your grand kids to college? You can give him the power to demand money from the trust, or give the trustee direction to follow those kinds of requests. Let’s talk about how much control you want to give each of your children over the trust while they are alive. And on their death, you can even give your children the power to name which of their children (or spouses, or charities, or whomever you want to permit) will receive the remaining trust’s assets.

Cost? Setting up a trust for each of your children will likely increase the cost of your estate planning but by a pretty small number, in most cases. These principles apply even (perhaps especially) if you are leaving your estate to grandchildren, nieces and nephews, or anyone other than your children.

As you can see, there are many benefits of using a trust in your estate planning.  Keep in mind, however, that one size does not fit all and it is important to have your documents tailored to meet your specific needs.

An update has been made to the NY Estate Tax. To read our update, please click here.


Learn more about elder law and estate planning by visiting www.elderlawnewyork.com

 

 

Advance Directives Need to Be Accessible

Tuesday, July 8th, 2014

When drafting advance directives, a common problem for many people is making these documents easily accessible for their loved ones.

What is an advance directive? A legal document in which a person specifies what arrangements should be taken for their health if they are no longer able to make decisions for themselves because of illness or incapacity. There are different ways of creating advance directives, including a living will, a durable power of attorney and also a health care proxy.

People may feel that their advance directive should be kept with their attorney or in a safe deposit box. However, decisions about medical treatment often need to be made quickly, so it is important that an advance directive be not only safe, but easy to get to.

If an individual’s advance directive appoints another person as health care proxy, then that person should have a copy of the document, or know where it is kept. If a patient is incapacitated, then it is important that the health care proxy be able to present the document to medical personnel.

It may also be wise to keep a copy of the document in electronic form, stored in such a way that it is accessible from a smartphone or other device. Such electronic copies have the same legal authority as the original paper document, and they can be accessed more easily. Ask your attorney what they recommend for digital or cloud storage for these documents to ensure the security of your private information. Learn more about our services within elder law and advance directives by clicking here.

If you enjoy our content, please share it on  Facebook.

Traveling with an Older Adult

Wednesday, June 25th, 2014

By Susan Yubas, founder of FYI Senior Living Solutions, Inc.


As we prepare for a trip with older members of our family, we want the plans we make to be as uncomplicated and stress free as possible.  “Ha, ha,” you laugh.  Travel is complicated and stressful on its own these days, let alone when you are traveling with an older adult who may be frail.

Here are some tips to ease the way:

  • Review your travel plans with their personal physician so you know if there are any special needs you should be aware of and plan for in advance of your arrival.
  • Make sure you know the health insurance company’s requirements for out of network or emergency care – sometimes a family definition of emergency is different from that of the insurer.  Bring a copy of insurance cards with you on the trip.
  • Bring a current medication list and medications in their original pharmacy bottles.  Carry the medications with you – never pack them in checked luggage or in a place that you cannot get to easily.
  • If an older adult has difficulty walking long distances or easily gets short of breath, arrange for a wheelchair.  It is important that you do this well in advance of arrival at the airport as having the wheelchair available at curbside will allow you to navigate security and get to the gate more easily and safely.
  • Familiarize yourself with available medical resources at your destination in advance.
  • If you will be traveling quite a distance, you may want to consider travel insurance that includes medical transport and/or trained personnel to accompany you to a care destination should the need for urgent care arise.
  • Be flexible with your schedule and enjoy your trip!

Susan Yubas is a Certified Senior Advisor and the founder of FYI Senior Living Solutions, Inc.  She will help you articulate your goals,identify issues you may not have considered and direct you to appropriate professionals to help you implement what is needed.

 

Was this article of interest to you? If so, please LIKE our Facebook Page by clicking here.