Court sides with nursing home against woman’s grandchildren

An elderly New York State woman thought she was doing the right thing for her grandchildren.
A court ruled otherwise, in a case of estate planning gone horribly wrong.
The woman, Lillian Hellman, sought to have four annuities, which she obtained in her name with her in control of the accounts, transferred to each of her grandchildren, making her insolvent and eligible for Medicaid once she had entered a nursing home.
Not so fast, nursing home officials said, and a court agreed with them, according to an article on the website elderlawanswers.com.
“In 2000, Lillian Heather purchased four annuities for each of her grandchildren as part of her estate plan,” the website stated. “The annuities named the grandchildren as annuitants and beneficiaries, but Ms. Heather retained control of the accounts. Ms. Heather also appointed her grandchildren as her attorneys-in-fact under a power of attorney. In 2006, Ms. Heather entered a nursing home. One granddaughter, Kristin Goldman, signed the admission agreement as her designated representative. After entering the nursing home, Ms. Heather annuitized the annuities and the full value was transferred to the grandchildren. She applied for Medicaid benefits, but the state denied benefits because she had transferred assets for less than fair market value.
“The nursing home sued the grandchildren for fraudulent conveyance, arguing that they had transferred Ms. Heather’s assets for no consideration, rendering her insolvent. The nursing home also sued Ms. Goldman for breach of contract, arguing that Ms. Goldman had access to Ms. Heather’s assets and should have used them to pay for her grandmother’s care.”
The New York Supreme Court in Queens County sided with the Chapin Home for the Aging to the tune of $287,893.95.
“According to the court, it was undisputed that the transfers were made without consideration,” elderlawanswers related. “Moreover, the grandchildren did not present any evidence that the transfers did not make Ms. Heather insolvent. Nevertheless, the court rules that Ms. Goldman is not personally liable for breach of contract because the admission’s agreement did not make the designated representative personally liable.”

Ugly Family Scrape Nearly Cost Elderly Man His Home

A sad story out of Ohio has a happy ending, but the saddest part of all is that it didn’t have to happen in the first place.
Just a few minutes of conversation with an elder law attorney might have spared everyone involved a lot of anguish and heartache.
John Potter, a World War II veteran and retired train dispatcher for the Baltimore & Ohio Railroad, faced eviction from the home he built 56 years ago in Zaleski, Ohio, a small community south of Columbus, according to reports on ABC News and Real Estate AOL.
The person threatening him with eviction: his daughter.
“In 2004, John Potter and his wife, who has since died, gave the general power of attorney to his daughter for future matters if they declined in health, including to take care of her autistic adult brother, now 63,” the ABC News piece by Susanna Kim stated. “But unbeknownst to Potter, his daughter Janice Cottrill eventually used that power to convey the deed to the one-story home to herself. In 2010, Potter said he learned of the deed transfer and switched power of attorney to his granddaughter, Jaclyn Fraley, now 35.”
Potter sued his daughter and won his case in Vinton County (Ohio) Court but lost on appeal. The appellate court ruled “that the statute of limitations of four years had passed on the accusation of breach of fiduciary duty and thus the deed could not be handed back to Potter,” the ABC News story continued.
“Early this year, his daughter and her husband sent Potter an eviction notice, saying they had terminated his ‘existing lease.’ ”
“He doesn’t share that this hurts him, but you can tell that it’s hurting him,” Fraley told AOL Real Estate.
“She said it hurts her, too, explaining that she hasn’t spoken to her mother, aside from communication through lawyers, in two years.”
“When asked how he feels about being evicted by his daughter and son-in-law, Potter was at a loss for words,” ABC News reported.
“I just cannot believe my daughter would ever do anything like that to me,” he said.
Janice Cottrill declined to comment, according to Kim’s piece.
In the end, before an eviction hearing could take place, Jaclyn Fraley mounted an online campaign to raise $125,000 to buy back her grandfather’s home. She recently announced that the GoFundMe.com campaign had brought in $139,201.
“We have met out goal and it is so exciting,” Fraley wrote on the site. “We are in awe of all the love and support. We are still so speechless. Grandpa is amazed at all the love and support. He told me, ‘I never knew people could love an old man so much.’ ”
This ugly family feud could have been prevented if only the right legal advice had been sought the proper advice back in 2004 when he signed the durable power of attorney at a time of poor health.
“A durable power of attorney may be the most important of all legal documents,” according to an item on the website elderlaw.com. “This legal document gives another person the right to do certain things for the maker of the durable power of attorney. What those things are depends upon what the durable power of attorney says. A person giving a durable power of attorney can make it very broad or can limit the durable power of attorney to certain acts.”
In the case John Potter of Zaleski, Ohio, obviously some limitations should have been included.

Novel program brings legal assistance to people who need it most

A recent blog on the website of The New York Times highlighted a fine program in California that provides legal help for the elderly while giving real-life experience to law students.
The piece by Paula Span, author of “When the Time Comes: Families With Aging Parents Share Their Struggles and Solutions,” also brings a focus on an important issue, that of a segment of the population greatly in need of a great deal of legal assistance often not getting it.
“Consider the geriatricians working at the Lakeside Senior Medical Center, an outpatient clinic at the University of California, San Francisco,” Span writes. “Many of their patients, despite multiple chronic diseases and advanced age, have never filled out power-of-attorney documents or appointed someone to make health care decisions if they are unable to. Sometimes, the doctors suspect their patients might qualify for public benefits they are not getting, like food stamps or MediCal, the state’s version of Medicaid. Perhaps they face problems with landlords or appear to be victims of financial abuse, or they ought to have a simple will.
“In other words, they need lawyers. But trying to get frail, low-income seniors to consult an elder attorney can seem an insurmountable problem. How will they travel to a law office? Or pay a fee that can reach $300 an hour? Even if the doctors can refer them to a legal aid office, will their elderly patients actually make an appointment? Then remember to go?”
The solution at this particular location, and one that deserves to be duplicated all across the country, is that each semester eight students from the University of California Hastings College of the Law spend 12 to 15 hours a week at the clinic under a program called the Medical-Legal Partnership for Seniors.
“The physicians do the initial screenings, hear what their patients’ problems are, take the history and they essentially write a prescription: ‘Go down the hall and see my friends at U.C. Hastings for help with this housing issue,’ ” Sarah Hooper, who teaches at the University of California Hastings College of the Law, was quoted as saying.
“On the one hand, we have an aging population, for whom understanding a legal document and getting it witnessed and notarized can be daunting, even if people don’t have to do battle over benefits,” Span wrote in conclusion. “On the other, we have law schools scrambling for ways to give their students hands-on experience.
“These folks need each other.”

Legal Specialty Evolved Over Time

Society has always, to some extent, realized its older members were special, for their institutional memory, for the wisdom acquired over the years and for many other traits.

That older Americans have special legal needs has been recognized relatively recently.
“Much has been written of late about the aging of America, and indeed of the world as we are all living longer,” according to an article on the website of Stetson University by Rebecca C. Morgan.  “Laws have been created specifically to deal with the legal problems faced by older Americans. There is a label for this area of law–elder law. Elder law has grown from a specialty practice to a general area of practice within which an attorney may specialize.
“It took a while for the public to grasp the concept of elder law. In fact, comments were frequently made about the name of the practice area. However, one thing that distinguished elder law from other areas of practice is the holistic nature of elder law. Although the practice area label tends to come from the tasks performed by lawyers, elder law has come to be recognized not only by the legal tasks performed by the lawyers, but by the attorney’s function as a counselor to the client and/or the client’s family, the attorney’s knowledge of the aging services network and the nature of the representation of the clients in the later years of their lives.”
Once the specialty became recognized, Morgan says, it became attractive to not only potential clients but also to lawyers.
“Why the growth and evolution of elder law?” she writes. “One reason may be the demographics. Another reason may be the attraction to a holistic law practice, a more problem-solving or helping practice area rather than the typical litigation model. Others attribute the growth more to market forces or the complexity of the area of law. Perhaps all of these reasons are true. But in addition, maybe elder law as a field has grown simply because of the satisfying nature of the practice; an elder law attorney truly has the opportunity to make a difference in the lives of his or her clients, oftentimes during the final phase of the clients’ lives and many times in a crisis. The elder law attorney has the opportunity to ensure the client has the most quality of life as possible during the last years of his or her life.”

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Elder Law Practitioners Help In 10 Specific Areas

Attorneys who devote all or a substantial part of their practices to helping older Americans, whether they are certified in elder law or not, provide valuable services to people who need it the most.

According to an article on the website ehow.com by contributor Helen Harvey, this assistance tends to be concentrated in 10 different areas.
These are:

  • Estate planning
  • Will preparation
  • Conservatorship or guardianship
  • Applying for benefits
  • Establishing trusts
  • Handling eviction situations
  • Ensuring driving privileges
  • Age discrimination
  • Elder abuse
  • Crafting living wills

“The practice of elder law pertains to those areas of the law that are particularly relevant to older adults, or those age 65 and older,” Harvey writes. “It is a diverse discipline dealing with wide-ranging matters, including wills, conservatorship, guardianship, health care, government benefits, housing, nursing homes and elder abuse. With the senior population growing rapidly, elder law is growing as a legal practice specialty, and you should have no problem in locating an elder law attorney to advise you.”

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Discrimination: It’s Not Just for Young People, Anymore

A group of people who probably rarely if ever experienced discrimination in their lives could be in for a big surprise.
And an unpleasant one.
“Elderly people experience a type of discrimination that’s prevalent, and it has nothing to do with the color of their skin, their religion or socio-economic status,” Marlo Sollitto writes on the website AgingCare.com. “ ‘What do you expect at your age?’ ‘You’re not getting any younger!’ Do these statements sound familiar?” The ‘old geezer’ stereotype is an unjust and prejudicial generalization that assumes all older adults naturally become weak, sick and forgetful. This is what constitutes ageism.”
“Discrimination against the elderly is a bias against the elderly based on their age and not on individual merit of the individual,” H.V. Long points out on the website seniorslovetoknow.com.” While discrimination usually refers to negative behavior, it can also refer to increased generosity and kindness towards the age group because of their age. In cases of discrimination against the elderly, the discrimination may also include acts of psychological and physical punishment.”
The author of the article cites some examples:

  • Older employees may be forced to take early retirement or phased out of their employment situations
  • Age limits implemented preventing more mature employees from taking advantage of educational programs
  • Limits on available public transportation, diminishing quality of life
  • Lack of supportive education to overcome diverse barriers in technology

“Society maintains a stereotype about elderly Americans,” Long continues. “In many ways, the stereotype is negative associated with perceptions about aging. This negative stereotype is perpetuated by jokes and common phrases such as old fart, over the hill, older than dirt and more. This prejudice against the elderly is likely to shift as a person ages.”
A law, and one with some real teeth, is in place to protect older Americans against discrimination, but all too often the victims of age prejudice are unaware of their rights or reluctant to exercise them.
“The Age Discrimination in Employment Act prohibits employers from discriminating on the basis of age,” according to the website of the Legal Information Institute at Cornell University Law School.” The prohibited practices closely parallel those outlined in Title 7 and protect employees over the age of 40 from discrimination. The ADEA contains explicit guidelines for benefit, pension, and retirement plans.” This statute is in some ways even more favorable to older people than laws governing other forms of discrimination.
“The Age Discrimination in Employment Act only forbids age discrimination against people who are age 40 or older,” according to the U.S. Equal Employment Opportunity Commission. “It does not protect workers under the age of 40, although some states do have laws that protect younger workers from age discrimination. It is not illegal for an employer or other covered entity to favor an older worker over a younger one, even if both workers are age 40 or older.
“Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40.”

What to Consider When Choosing a Long-Term Care Living Situation for your Loved One

Choosing a long-term care living arrangement is one of the most difficult challenges faced by aging adults and their loved ones. Most families try to avoid the nursing home option to the very end, believing that assisted living or small residential care homes provide a better quality of life. But this may not necessarily be the case.

New research suggests that the type of living situation itself makes little difference in a resident’s emotional well-being. Instead, the happiness and contentment of the resident depends more on the characteristics of the specific environment they’re in, and of course in no small part on their own personal characteristics — how healthy they feel they are, their age, and even their marital status.

Logically enough, a resident of a long-term care facility of any kind is more likely to report satisfaction and comfort if they had a hand in choosing their living situation, if they were part of the decision making process. In fact, studies show that the process of finding and choosing a living situation—researching options, visiting facilities, considering current and future social and physical needs and how they will be met—plays a very important role in the beginning of acclimatization.

Whatever your choice, you’ll need to talk to your family and plan how to finance whichever choice is made for long-term care living. Medicare.gov has published a helpful chart summarizing and comparing the various options for long-term care financing. Or please feel free to contact our office for more information.

Caregiver Compensation Agreements: The Hidden Solution to Caring for Loved Ones

Caring for an aging relative is difficult—and often underappreciated—work. Many people who serve as caregivers often feel as if they have two jobs—their full-time day job at the office, and the part-to-full-time job of caregiver at home. As their parents age and decline, most of these caregivers end up not only giving up more and more of their time, but also, eventually, their opportunity for more income. Caregivers need to know that it doesn’t have to be this way; that if their elderly loved one (and perhaps the rest of the family) agree, the caregiver can be compensated according to mutually agreed upon terms of a Caregiver Agreement, also known as a Personal-Care Contract.

Elder law attorneys have known about Caregiver Agreements for a long time, but very few caregivers themselves are aware of this useful contract. A Caregiver (or Employment) Agreement serves to document a caregiver’s responsibilities and hours, and to set a rate of pay that’s in line with local practices and incomes. The contract would then be signed by both the caregiver and care recipient, and eventually shared with the rest of the family.

An agreement of this sort can be useful not only for the care-giver and the cared-for; it also comes in handy if you think you may need to rely on Medicaid to cover nursing home costs sometime in the near future. Medicaid often will not provide payment for nursing-home costs, unless applicants have already recouped payments made to relatives over the previous five years and used the money to pay existing nursing home bills. However, if payments to relatives are made under the terms of a written employment agreement such as a personal-care contract, the law allows those payments to stand.

It is important to remember, however, that in order for government programs to recognize an employment agreement between family members the contract must already be in place before services are rendered.

This is why it is so important to talk to an attorney who is well-versed in elder law and Caregiver Agreements before any contracts are signed or money changes hands. Contact our office today to provide for your loved ones by exploring your options for caregiving and caregiver agreements.

One-of-a-Kind Families Need One-of-a-Kind Plans

According to statistics the average U.S. family size is 3.2 members. The median age of a man upon his first marriage is 28.1, 47% of women aged 75 or older live alone. Also according to statistics, approximately 60% of couples own their home, 70.7% of mothers with children under the age of 18 go back to work, 6% of men are likely to be unemployed, and approximately 485,000 grandparents aged 65 or more have the primary responsibility for their grandchildren.

Do these statistics accurately portray your family?

“Average,” “median,” and “approximately” may be fine for statistics, but it’s certainly not what you want from your estate plan. Your estate plan should represent your family; your hopes for the future as well as your current needs. This may include a nomination of guardian and education trust for young children, it may include a special needs trust for a disabled child or parent, or it may include incentive trusts for unambitious heirs. Alternatively, you may find that you need none of these, and that a will and simple ancillary documents will serve you just fine.

Whatever your family’s needs may be, you want them to be met by a keen, compassionate, and knowledgeable attorney; someone who will meet you face to face and listen to your concerns with an open mind, not a machine which will spit out a standard document based on numbers and averages. Estate planning may be a business, but it’s also an art, and as such it takes a real person to help create the plan that will provide for you and your family now and in the years to come. The members of our firm have our own families, we understand that you want the best for your family, and we want to help.

How to Prepare to Care for Aging Parents

If you are the child of parents who are currently over the age of 65 you’ve probably given a little bit of thought to the day when one (or both) of your parents may need Long Term Care. Understandably, most adult children prefer not to think about the day when their parents may not be able to care for themselves, but in some cases it simply cannot be avoided, especially if your parent is already showing early signs of Alzheimer’s or dementia. If you are concerned about your parent’s future, there are steps you can take now to make the transition to giving and receiving care later easier on both you and your parents:

1. Talk to your parents. Find out if your parents have already thought about the topic, if they’ve made provisions for it, or if they have any specific wishes. Furthermore, opening the lines of communication lays the groundwork for trust and cooperation in the future.

2. Encourage your parents to create an Estate Plan if they don’t have one already. An Estate Plan will be important in expressing your parents’ wishes on necessary issues such as preferred agents in case of incapacity, financial power of attorney, and health care decisions. These essential documents will not only let you and others know their wishes, it will also prevent many expensive delays and frustrating red tape in the future.

3. Talk to trusted advisors about how to prepare for the financial burden of Long Term Care—because there will be a financial burden. Our firm can help you your options with Medicaid and Long Term Care Insurance, as well as some lesser known options such as a Dependent Care Account.

As you think and talk about these issues with your parents, siblings, and other trusted advisors, remember that you don’t have to go through this alone. Elder Law and Long Term Care are intricate and convoluted subjects, but there are caring professionals out there whose business it is to guide you through the intricacies of Elder Care. Let us help you look into the future with confidence and clear eyes.