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Revocable Living Trust

AARP agrees that utilizing a revocable living trust is the new thing! Revocable living trusts provide savings opportunities, save probate expenses, and provide other advantages over a will.

What is a revocable living trust?

It is a relationship established between three parties:

    1. The creator of the trust;
    2. The trustee who manages the property within the trust and distributes proceeds to beneficiaries; and
    3. The beneficiaries who receive the property according to the terms of the trust.

A revocable living trust allows assets within the trust as well as income generated by those assets to be managed and distributed by the trustee. The trust income and property are then distributed in accordance with the terms and conditions of the trust. This type of trust is referred to as a living trust because it is established during the life of the creator.

How does one benefit from a revocable living trust?

A revocable living trust provides numerous benefits to the creator. If the creator becomes incapacitated, the trustee is typically authorized to manage all of the assets within the trust as well as any obligations in accordance with the terms of the trust without court intervention. A revocable living trust will also provide financial assistance to family members if the creator becomes incapacitated. Upon the death of the creator, the trust transfers assets outside of the estate and outside of probating a Will. A living revocable trust can also be structured to minimize federal or state tax consequences. A revocable living trust also allows the creator to act as trustee, either with their spouse or without their spouse, or even revoke or modify the trust prior to death.

How does a revocable living trust compare to a will?

Both a revocable living trust and a will are tools that provide a method of passing property and other assets to family members and loved ones. However, a revocable living trust avoids the probate process, whereas a will does not. Unlike a will, a revocable living trust does not need to be administered by a probate court. By avoiding probate, an estate can essentially save numerous costs and assets will be distributed faster to family members and loved ones. In addition, a revocable living trust protects the privacy of the decedent as well as their finances. While court documents and the probate process are a matter of public record, a revocable living trust is handled outside of probate and is therefore kept private.

The attorneys at Hobson-Williams, P.C. are skilled in all aspects of elder law and are dedicated to representing clients with diligence and compassion during emotional times. Contact the experienced New York elder law attorneys at Hobson-Williams, P.C. for a consultation by calling them at 866-825-1LAW or vising them at www.thobsonwilliamslaw.com.

Health Care Proxies and Power of Attorney

A Health Care Proxy is a document that designates an agent to make health care decisions on an individual’s behalf in the event that he or she is unable to do so. Federal regulations, such as the Health Insurance Portability and Accountability Act (HIPAA), protect the confidentiality of an individual’s medical information as well as their ability to make health care decisions. The establishment of a Health Care Proxy and the HIPAA release form are the best means of carrying out health care decisions on behalf of loved ones.

A signed Health Care Proxy must contain specific language that allows an agent, the appointed medical care representative, the ability to act on behalf of the individual, or principal. For instance, if the principal would like the agent to be able to access his or her medical records, then the Health Care Proxy should explicitly state just that. Additionally, the signing of a new Health Care Proxy overrides any previously executed proxy. This is important to note because if the principal has a comprehensive Health Care Proxy, but signs a basic Health Care Proxy while at a hospital, it will essentially revoke his or her comprehensive Health Care Proxy that had been previously signed. This means that the comprehensive Health Care Proxy will no longer be a viable document and can no longer be used because it is not in effect.

Also, it is important to maintain a Durable Power of Attorney. A Durable Power of Attorney is important to have because, oftentimes, an agent is unable to deal with Medicare or Medicaid and other supplemental insurance companies without it.  You will also need a Durable Power of Attorney to handle financial affairs and to be able to act if the principal becomes incapacitated.  In these instances, a Health Care Proxy is not suffient and a Durable Power of Attorney is required for a third party to act on your behalf.

A Power of Attorney allows the principal to designate an agent to act on their behalf for financial matters. It is very important to have a valid Durable Power of Attorney prior to an individual becoming incapacitated because it alleviates the need to Petition the court for the appointment of a Guardian to handle the individual’s affairs when they become incapacitated.

In addition to a Health Care Proxy and a Durable Power of Attorney, individuals should also sign a HIPAA release form as well. This document allows anyone listed on the form to be able to access an individual’s medical records if needed. The HIPAA release form is accepted by most hospitals and doctor offices in the United States. By signing a HIPAA release form, it simplifies the process for obtaining medical records.

The attorneys at Hobson-Williams, P.C. are skilled in all aspects of elder law and are dedicated to representing clients with diligence and compassion during emotional times. Contact the experienced New York elder law attorneys at Hobson-Williams, P.C. for a consultation by calling them at 866-825-1LAW or vising them at www.thobsonwilliamslaw.com.

Tracking down a Retirement Account

Many individuals have worked for different companies throughout the years and may have had a 401(k) plan worth a small amount of money when they left.  Some people lose track of these accounts over the years or find that their plan was transferred to another administrator. Sometimes, in such a case, the administrator may not be able to locate the plan.  Unfortunately, there is no central repository for missing 401(k) funds to date.

 

The Pension Benefit Guaranty Corporation is responsible for safeguarding traditional pensions.  There is a proposal by the Pension Benefit Guaranty Corporation to hold orphaned 401(k) funds from closed plans which would start in 2018.  Senator Steve Daines and Senator Elizabeth Warren proposed that the IRS establish an online database that would allow individuals to locate 401(k) plans and pension plans from open and closed accounts.

 

If an individual’s 401(k) balance was less than $5,000 at the time they left a company, it is possible that a forced IRA transfer took place.  This means that the money would be housed with a small accounts financial services firm.  When an employer cannot locate an individual and they proceed to close the account, the money may be transferred to a bank account, IRA, or state escheat office.  If this took place, a person has the option to contact the state escheat office to locate the unclaimed money. Another option is, if the employer is still in business, an individual may contact them directly to see what happened to the account.  Further, if the company no longer exists, the United States Department of Labor may be able to help track down the money.

 

Tracking down lost retirement accounts can be a tedious process.  That is why it is of utmost importance to always keep track of retirement plans. There are many instances when employers may allow their employees to transfer old 401(k) accounts into their plan, or roll the money into an IRA. It is important to hold onto retirement money and consistently keep track of it, rather than attempting to locate it years later.

 

Maintaining good records is an important aspect of estate planning. If you or a loved one needs assistance tracking down a retirement account, or any other aspect of estate planning or elder law, contact the experienced elder law attorneys at Hobson-Williams, P.C. for the representation you deserve and to ensure that your future plans are carried out. Call us today at (718) 210-4744 for more information or to schedule a consultation.

 

Nursing Home Contracts

Before a senior gets admitted to a nursing home, he or she will need to sign a contract or other admission’s agreement. A contract is a legally binding document that defines the conditions under which the senior is admitted. It is important for seniors and caregivers alike to review and understand the contract in its entirety to ensure optimal care, protection and provisions. Some of the most important terms of a nursing home contract define the circumstances under which a resident can be admitted, transferred or discharged and how they will pay for the services provided.

 

Under federal regulation, 42 CFR 483.12(a)(2), a nursing home facility must allow a resident to stay in the facility under the following conditions: 1. his or her needs cannot be met, 2. the individual’s health improved, 3. the facility services are not necessary, 4. the resident is unsafe in the facility, 5. the individual is a danger to other residents if he or she continues to stay, 6. the resident has failed to pay or apply for benefits to pay after “reasonable and appropriate notice,” and or 7. the facility goes out of business. These are the sole grounds for a nursing home facility to be able to discharge a resident.

 

A facility may not discharge residents when the resident entered for the purpose of rehabilitation, which has now concluded or the resident or family, etc. refuse to sign an admissions contract. Even though the facility can’t force the individual out, the resident is still responsible to pay privately for the care or apply for public benefits to cover the cost of services.

 

According to the National Association of Consumer Advocates (NACA), a nonprofit association of attorneys and consumer advocates committed to representing consumers’ interests, there are problems with recent trends in nursing home contracts.  Some nursing home facilities are requiring third parties to apply for Medicaid, recertification of Medicaid, and pay any legal fees incurred by the nursing home because of failure to apply for or maintain Medicaid, as well as expanding the definition of “representative” and/or “sponsor” to include legal liability beyond that required by federal and state laws .

 

In New York State, under 10 NYCRR §415.3(b)(1) & (6), there is no third party liability in these situations. As a condition of admission, expedited admission, or continued stay, there is no third party liability or guarantees. However, nursing homes may seek a third party to sign an agreement on behalf of a resident if that third party has access to the resident’s funds, such as an agent under power of attorney, joint account holder, or court-appointed guardian. Third parties are never personally liable. Their liability on extends to their access and use of a nursing home resident’s funds.

 

Furthermore, according to 10 NYCRR §415.3(b)(3) – (4), there is no waiver of federal rights. A nursing home may not require a resident to waive the right to Medicare or Medicaid. Also, they may not require a resident to guarantee that he or she will not apply for public benefits to pay for care.  This means they cannot require a resident to be a private payer.

 

For further information on nursing home care, contact a New York elder law attorney.  The goal of an elder law attorney is to help secure appropriate medical treatment and advise on a plan to secure payment of nursing home care.  Further, they will help protect your loved ones and preserve assets to the greatest extent possible under the law. Their tasks in this situation include, but are not limited to, providing an opinion letter for a nursing home, assisting in review of all nursing home contracts, and advising family on proper signing of a contract. i.e.“Resident Representative” vs. “Responsible Party” and protect a client’s right to privacy.

 

The lawyers at Tanya Hobson-Williams, PC are skilled in all aspects of elder law and are dedicated to representing its clients with diligence and compassion during emotional times. Contact the experienced New York elder law attorneys at Tanya Hobson-Williams, PC for a consultation by calling (718) 210-4744 or by filling out our contact form.

 

Nursing Home Discharges: Can You Appeal?

There are many reasons why elderly persons wind up in nursing homes, including voluntary admittance to obtain assistance with rehabilitation after a hospital stay or problematic behaviors associated with various mental conditions such as dementia. In order to afford nursing home costs, many of these adults rely on Medicaid and Medicare. A nursing home may choose to discharge a person for various reasons, including their coverage is running out or they feel the patient is ready for release.  However, if a resident is being discharged, the discharge can be challenged.

There are only five reasons in which a resident can be discharged: (1) the resident’s health has improved, (2) the resident’s needs cannot be met by the facility, (3) the health and safety of other residents is endangered, (4) the resident has not paid after receiving notice, or (5) the facility has stopped operating.

Sometimes, to get around the policy, the nursing home may transfer the patient to a hospital and then refuse to let them back in. In this case, state law requires that the hospital must hold their bed for a certain number of days. (A resident should check their policy to see the amount of time allotted for the hold.)

Without proper notice and planning, a nursing home is unable to discharge a resident at all. The discharge plan must ensure that the resident has a safe place to go and outline the care that they will receive. In general, written notice must be given to the resident 30 days before discharge. In emergency situations, the amount of time may be decreased.

Even if the above notices are given to the resident, they can still appeal a decision to discharge. For residents receiving government-funded healthcare assistance, there is a fast appeal if they are receiving care at a Medicare-covered facility, home health agency, rehabilitation facility, or hospice. The fast appeal is filed through the Beneficiary and Family Centered Care Quality Improvement Organization. During this appeal, the nursing home will be required to provide you with a “detailed explanation of non-coverage,” which will lay out when and why your services will no longer be continued. The Beneficiary and Family Centered Care Quality Improvement Organization will then ask why you believe the services should continue, review your records, and issue a decision by the close of business that day. The appeal process of a nursing home discharge can be overwhelming, so contacting an attorney immediately is recommended.

Taking proper care of the disabled and elderly in our society who depend on us is of the utmost importance. If you have questions about the care of a disabled or elderly loved one, contact an experienced New York elder law attorney who can help. For more information, contact Hobson-Williams, P.C. at (718) 210-4744 for the quality representation that you deserve.

Judge Decides Not to Dismiss Case Against Nursing Home

Eladia Ciprian, an 80-year-old patient at St. Barnabas Rehabilitation and Continuing Care Center, will not have her case dismissed for the center’s failure to correctly diagnose and treat a hematoma in her right bicep. A Bronx County Supreme Court judge decided not to dismiss the case after the center claimed she made no proof of the nursing home’s neglect or deprivation of her rights.

Rather than bringing a medical malpractice suit against the center, Ms. Ciprian filed a claim under Public Health Law § 2801-d. The law allows a private right of action based on the willful deprivation of certain rights of patients by nursing homes and other residential facilities. The rights of the statute protect a patient’s right to appropriate medical care, to be informed of their medical condition, and to have private communications with physicians or lawyers. Under the statute, the burden of proof is placed on the defendant to show that they did not deprive the patient of any of the previously stated rights. The shift of the burden provides a greater advantage to a patient under the statute than a medical malpractice suit, which places the burden on the plaintiff.

Ms. Ciprian states that, after having an amputation in her right leg, phlebotomists drew blood from her right arm for 12 straight days to see how the amputation was progressing. The staff of the center stated that Ms. Ciprian’s records did not show that multiple blood draws were ordered during the time. The complaint alleges that the neglect of the staff in providing adequate records led to the development of the hematoma. Furthermore, the staff’s records following the blood draws fail to show any documentation of the hematoma’s emergence. While remaining in the center’s care, Ms. Ciprian was admitted to the emergency room to evacuate the 800-milliliter hematoma to avoid amputation of her arm.

In reviewing the motion to dismiss, the court disagreed with the center’s argument and stated that there are triable issues as to whether Ms. Ciprian was properly treated. The court noted that the trial will go forward to answer the question of whether the center deprived Ms. Ciprian of any private right or benefit. If Ms. Ciprian is successful in proving her claim at trial, the statute allows for compensatory damages of no less than 25 percent of the daily rate the patient was paying to be in the facility, in addition to legal fees.

Taking proper care of the disabled and elderly in our society who depend on us is of the utmost importance. If you have questions about the care of a disabled or elderly loved one, contact an experienced New York elder law attorney who can help. For more information, contact Hobson-Williams, P.C. at (718) 210-4744 for the quality representation that you deserve.

Changes to the ABLE Act

The federal government passed the Achieving a Better Life Experience (ABLE) Act in December 2014. The ABLE Act allows the family of a disabled person to create a federal income-tax-free account to be used for the medical expenses of the disabled individual. This law was created under the same provisions of the tax code as 529 plans for college savings. According to Autism Speaks, the National Disability Institute estimates that there are 58 million individuals in the United States who have a qualified disability.

The ABLE Act account beneficiary must be deemed to be disabled before the age of 26. A person with a disability can save up to $100,000 without affecting their Social Security or other government benefits they may receive. Additionally, an individual’s Medicaid eligibility will not be affected by the funds in the account.

According to Disability Scoop, dozens of disability advocacy groups are in opposition to legislation to expand the ABLE Act. These groups believe that the changes to the act would not go far enough. In September 2016, the United States Senate Committee on Finance approved two bills, which provide additional flexibility to those with a qualifying ABLE account.

The ABLE to Work Act allows a disabled person who is employed to save more money in their account each year, and the ABLE Financial Planning Act allows money saved in a 529 college savings plan to be rolled over into an ABLE account for a person with a disability. In the original legislation, a limitation due to the age of onset did not exist. According to Chris Rodriguez at the National Disability Institute, the addition of the age restriction left out a lot of people who advocated for the ABLE Act for many years.

Many advocacy groups were under the assumption that the age concern would be addressed before already eligible individuals received additional benefits. According to Autism Speaks, organizations such as the Autism Society, United Cerebral Palsy, and National Down Syndrome Congress, among others, are pledging to oppose some ABLE bills.

Currently, there are four states offering programs where ABLE accounts are available. According to Autism Speaks, “accounts created through programs in Nebraska, Ohio and Tennessee are available to individuals nationwide and Florida’s program offers accounts to residents of the state.” By the end of this year, 15 more states are expected to offer ABLE accounts.

The experienced attorneys at Hobson-Williams, P.C. are available to assist you with your concerns relating to the professional care of disabled or elderly loved ones. For more information, contact our knowledgeable New York Elder Law attorneys at (718) 210-4744 to schedule an appointment.

Will the State Enforce Mandatory Arbitration Clauses in New York Nursing Homes?

The use of arbitration clauses by companies in all aspects of daily living has spread immensely across the country. The United States Supreme Court has recently held that the use of arbitration clauses is fully enforceable, and nearly impossible to overturn. With that being said, the Centers for Medicare and Medicaid Services (CMS) has limited the use of these clauses by implementing a new rule that restricts any nursing home receiving federal funding from requiring residents to resolve disputes in arbitration rather than in court. While the rule does not forbid arbitration completely, it does restrict the use of pre-dispute binding arbitration agreements. The rule will take effect over all nursing home admissions agreements signed after November 28, 2016.

The new rule ensures that a patient is no longer required to settle their dispute in arbitration, which can be costly. Instead, the patient can take their disputes to court which can be a more cost effective route of bringing a claim. A claim brought in arbitration can cost a patient upwards of tree-times as much as bringing an action within the court system due to the increased cost of fees for the arbitrators.

On the other side, nursing homes argue that the Centers for Medicare and Medicaid Services (CMS) stepped outside of their statutory authority as the rule does nothing to protect the residents’ health and safety. The nursing homes also argue that the additional cost to them of fighting these claims in court will force some nursing homes to close.

The New York Times reports that this new rule will not only save patients money in filing a claim, but it will restrict nursing homes from keeping embarrassing practices hidden in arbitration. The switch from arbitration to the court system means that all claims will become public rather than privately adjudicated. It is believed by patients that this transparency will ensure that the nursing homes will provide adequate services.

While the rule only applies to nursing homes receiving federal funding, New York State Public Health Law provides a statutory cause of action for nursing home residents as a result of injuries in any nursing home in New York State. Currently, a case is seeking review from the New York State Court of Appeals to determine whether the New York Statute makes an arbitration clause invalid. In this case, the trial court ruled that the statute invalidated the arbitration clause signed by an elderly woman who sued a nursing home after falling and breaking her hip. The NYS Court of Appeals overturned this decision by stating that the Federal Arbitration Act of preempts the state law because the nursing home engages in interstate commerce. A decision is expected in January 2017 as to whether the NYS Court of Appeals will grant a hearing on the decision.

Taking proper care of the disabled and elderly in our society who depend on us is of the utmost importance. If you have questions about the care of a disabled or elderly loved one, contact the experienced New York elder law attorneys at Hobson-Williams, P.C. at (718) 210-4744 for the quality representation that you deserve.

Antibiotic Usage in Nursing Homes Linked to Serious Health Problems

According to the Center for Disease Control (CDC), up to 70% of nursing home residents are prescribed antibiotics during the course of any given year, ranging in cost between $38 million to $137 million per year. Recently, the Journal of American Medical Association (JAMA) released the results of a study that linked the high usage of antibiotics in nursing homes to many health problems such as gastroenteritis, clostridium difficile, and resistance to superbugs, drug-resistant germs.

The study, which concentrated on a sample of 110,656 patients in 607 nursing homes in Ontario, Canada, found that the residents had a high percentage of antibiotic use. The most commonly prescribed antibiotics were penicillin and second-generation fluoroquinolones. Despite the fact that some elderly residents did not take the antibiotics, they were still at an increased risk of antibiotic-related harm.

As noted by the CDC, the over-prescription of antibiotics contributes to the development and sustainability of superbugs, one of the world’s leading health threats. Physicians are advised to only prescribe antibiotics if, based on evaluation, their patient has a bacterial infection. According to the JAMA study, it is estimated that 56% of inappropriately prescribed antibiotics are to treat suspected urinary tract infections, and up to one-third of these are for nursing home residents with asymptomatic bacteriuria, bacteria in the urinary tract. However, this bacteria is usually safe and does not require antibiotic treatment.

According to the CDC, nursing home residents are highly susceptible to to drug-resistant germs due to the possibility of the bacteria “colonizing,” residing without producing symptoms, on their skin.

If you or your loved one is in a nursing home and has been subjected to misuse or overuse of antibiotics, contact an experienced elder law attorney at the New York Elder Law Firm Hobson-Williams, P.C. at (718) 210-4744.

New York Required to Hand Over Records on Disabled Patients

On March 18, 2016, U.S. District Court Judge Gary Sharpe ruled that the Cuomo administration and New York’s Justice Center must disclose records related to the abuse of disabled and mentally ill patients in the State’s care. Disability Rights New York (DRNY) has requested records involving disabled youths and adults who were allegedly abused, on multiple occasions but all of the requests were denied.

The plaintiff, DRNY, is an organization that advocates for the protection of the civil and legal rights of people in New York with disabilities. They have the obligation to investigate the abuse of individuals with mental illness and developmental disabilities. To fulfil that obligation, DRNY wanted to see the full investigative reports that New York Justice Center completed, including the names of staff accused of committing abuse or neglect, names of those who filed complaints, and clinical records. The Justice Center is a New York State run state agency established to protect people with special needs from mistreatment, and often investigates abuse allegations throughout the state.

During the trial, the Justice Center argued that it should be allowed to redact information such as names and details in clinical records before handing over records. The Judge disagreed, and stated that if the Justice Center did not turn over the records or provided records that were redacted information, DRNY’s mandate to advocate for disabled New Yorkers would be impeded.

Taking proper care of the disabled and elderly in our society who depend on us is of the utmost importance. If you have questions about the care of a disabled or elderly loved one, contact an experienced New York elder law attorney who can help. For more information, contact Hobson-Williams, P.C. at (718) 210-4744 for the quality representation that you deserve.