The Caregiver Advise, Record and Enable Act (CARE), signed by Governor Andrew Cuomo on October 14, 2015, has been fully enacted as of January 7, 2016. The law requires hospitals to allow a caregiver to be added to a patient’s record when being admitted. The law goes further in requiring hospitals to keep the caregiver well informed about how to care for the patient, even training the caregiver before the patient is discharged.
In New York, there are approximately 4.1 million New Yorkers acting as caregivers, often for a family member, and many times unpaid. Caregivers are usually lacking in proper training because they are family or friends, which can increase the number of patient hospital or doctor visits. The New York State Senate estimates that the total value of unpaid care reaches approximately $32 billion each year.
CARE was enacted because of the strains on the health system, based on the fact that patients are often readmitted to a hospital when not receiving professional care at home. Additionally, in many instances caregivers are not kept updated about the patient’s care and what treatment is necessary after discharge. CARE enables caregivers to be better prepared to meet the needs of their loved one, which in turn will hopefully avoid preventable medical costs down the line. This law also comes at minimal cost to the taxpayers of New York, but substantially benefits the growing population of elderly individuals.
If you or someone you know is a caregiver for a loved one, it is best to consult with an experienced elder law attorney who can guide clients in making the necessary arrangements and help with protecting the rights of the caregiver and patient. The attorneys at Hobson-Williams, P.C. are available for consultation by calling 866-825-1529.
Nursing Homes Using Guardianship Rights to Collect Debts
The New York Times recently exposed several startling scenarios in which nursing homes have attempted to gain guardianship rights over residents in an effort to collect payment. According to research done by Hunter College, the practice of nursing homes filing for guardianship of residents is becoming increasingly common. In the last ten years, out of 700 guardianship cases brought to court in Manhattan alone, 12% were filed by nursing homes.
If a Guardian is appointed due to the efforts of the nursing home, they are often awarded not only reimbursement of their legal fees out of the incapacitated persons funds but they could also be granted payment of their nursing home bills and obtain other rights over the incapacitated persons finances. It is legal for nursing homes to hire counsel to petition for the appointment of a Guardian and in some cases it may be necessary. However, the intent of Article 81 of the New York State Mental Hygiene Law has been increasingly abused. The intent was that guardianship was to be a last resort and only granted for the benefit of the person for whom it is appointed. Families whose loved ones reside in nursing facilities may be thrust into the vortex of an expensive and lengthy legal battle as a result of the exploitation of the statute.
In a recent heartbreaking case mentioned by the Times last month, an 82 year old man was forced to undergo the anguish of watching his wife of 47 years lapse into dementia while being terrorized by the looming threat of litigation. Mary Manning Walsh Nursing Home had petitioned for guardianship of the woman after her nursing home bills co-payment had doubled to $4,558.54 per month, making it impossible for the couple to keep up with payments. The woman had appointed her husband as health proxy and power of attorney in the event of incapacity. However, the nursing home had left a stack of legal papers near her bedside for her husband to find. It was a petition brought by the nursing home to have a guardian appoited over his wife despite the validly executed power of attorney.
If your relative is in a nursing home that has petitioned for guardianship, or you are just in the process of planning for their long term care, find out how to protect your loved one and contact experienced elder law attorney, Tanya Hobson-Williams. The attorneys at Tanya Hobson-Williams are available to set up a consultation at 866-825-1529.
On September 24, 2014, the Supreme Court of the State of New York Appellate Division: Second Department reversed a lower court’s order annulling the marriage between a younger woman and an elderly man. The Appellate Division determined that a new hearing on the man’s ability to enter into a marriage contract was warranted. Capacity, in a legal sense,refers to the ability to make a rational decision based upon all relevant facts and considerations.
The case involved an elderly man who was appointed a guardian by the New York Supreme Court to provide for his personal needs and property management. During the course of his guardianship, the elderly gentleman entered into a marriage with a younger woman. After being informed of the marriage, the guardian asked the Court to have a psychologist determine whether the elderly man had the capacity to enter into a marriage. After a hearing and testimony, the New York State Supreme Court determined that the elderly gentleman lacked the capacity to enter into a marriage, and, as a result, annulled the marriage.
On Appeal, attorney Tanya Hobson-Williams, representing the young woman, argued that her client was not given any notice that her marriage would be annulled and that she lacked the opportunity to be heard by the court before it ultimately decided to annul the marriage to her late husband. While the petition to appoint a Guardian for the elderly man requested a determination of the elderly gentleman’s capacity to handle his affairs, neither the Petitioner nor the Guardian ever requested that the marriage be annulled. Essentially, all that was formally requested of the court was to determine matters pertaining to the level of guardianship. Continue reading “Tanya Hobson-Williams, P.C. Defends Client’s Marriage to Husband who was declared an Incapacitated Person Resulting in Wife Inheriting $3 Million Dollar Estate”
As a loved one grows older or when he/she suddenly becomes incapacitated, the basic human instinct is to protect them from harm. And although there are many cases involving family and friends with bad intentions, it is clear that if the ability to make decisions for your loved one was stripped away from you, the results would be heartbreaking. That is what a Pittsburgh woman is claiming regarding the medical treatment and control of her mother.
Mirsada Begovic, the daughter of 85 year-old Enisa Begovic, claims that in the last two months, the University of Pittsburgh Medical Center (UPMC) has restricted her access to her mother and has required her to be escorted to her mother’s room by security, after the hospital accused her of interfering with her mother’s medical care. Mirsada, a physician trained in Bosnia who once was part of the University of Pittsburgh Medical School staff, says however, her only offense has been advocating forcefully for her mother. Continue reading “Daughter of 85-year-old Being Denied Guardianship Rights”
Caring for an elderly parent or family member is a serious responsibility to take on and can bring joy and purpose into one’s life but may also cause both emotional and financial strain on a caregiver and his/her family. Having another person such as a sibling to help rely on, can help make things easier, but it can also lead to conflict and resentment. It is important to understand the issues that may arise when two or more adult siblings are caring for an elderly parent, and the best ways to resolve problems.
The main question that is usually asked between siblings taking care of a sole elderly parent is: “Who will be the primary caregiver, and what factors go into the decision?” One of the main factors taken into consideration is the proximity of the siblings in regards to the elderly parent’s home. Yet there are plenty of other factors that siblings should consider while creating a plan for the caregiving. Such as:
- Work Schedules
- Individual’s Family Income
- Individual’s Personal Skills such as day-to-day hands on care or the financial planning and organizing
The best way to avoid conflict and confusion is to communicate openly and often. Good communication is probably the most important factor in making these decisions. Ideally, responsibilities will be divided in whatever way feels fair to everyone involved, and arriving at the best outcome depends on communication.
Finally, as with most things, careful planning will save a lot of headaches and keep your loved one as best protected as possible. Just as the schedule of doctor’s appointments and daily medications needs to be kept track of, so should the finances be kept in careful order and hiring an experienced attorney can make all the difference. If you are splitting responsibilities for caring for a loved one, or believe that you will be taking on such a responsibility in the near future, contact a skilled elder law attorney to help ensure that the right steps are taken to protect your loved one.
As people go through life, it is obvious that familiarizing oneself to legal terminology is not a high priority. Yet, as we get older, it is important to get ourselves informed about decisions and circumstances that one day we may find ourselves in. Below is some general information to get you acquainted with the topic of guardianship. It is vital to keep yourself informed to ensure your legal rights are protected. Read below and keep up with our Blog!
What is a guardian?
A guardian is an institution/individual appointed by the court (or voluntarily appointed by an elderly individual) to make personal needs or property management decisions for an incapacitated person. Continue reading “Guardianship 101: A Brief Intro into Guardianship”
If you’re finding it difficult to take care of your personal needs or your property, or maybe you do not really understand the decisions that you have been making, and/or your friends and family are concerned but are unable to provide the help you need, perhaps an appointed Guardian is an option for you or your loved one.
The New York Mental Hygiene Law Article 81 was established to provide a Guardian to handle the personal and property needs of an alleged incapacitated person. Incapacitated persons are those who are unable to provide for their own personal needs and/or to manage their property. In addition, an incapacitated person is someone who is unable to comprehend or appreciate the inability to handle such affairs.
You might be asking yourself, “Well, how does someone know they are an incapacitated person? What are the signs or symptoms so that you or a loved one can be appointed a Guardian?”
A Guardian is rarely appointed to an incapacitated person because he/or she self declares or voluntarily decides to classify themselves as an incapacitate person. Rather, it is a decision that is given by court order based upon the condition of the individual so that a Guardian can be appointed. The court’s decision is based upon evidence that is clear and convincing that the individual is likely to suffer from harm because he or she cannot comprehend the consequences of the actions they are taking or cannot provide for themselves adequately. The Guardian can be someone the incapacitated person recommends or nominates or simply someone the court appoints that can best serve their interests.
Now that you have an appointed Guardian or you’re aware that such an option is available, you’re probably wondering what a Guardian will actually do for me. The Duties and obligations of the Guardian are created in a particular way so that the needs of the incapacitated person are catered to in regards to personal care and/or the individual’s property management. There may be a variety of issues that a Guardian may be appointed to help with including financial affairs, physical illness, substance abuse or dependency, personal needs, management of property. The purpose is to help with the best interest of the incapacitated person in mind. The Guardian will help make decisions that may be too difficult to make alone, handle medical needs or personal care, and to make sure finances are in order.
The Law Firm of Hobson-Williams, P.C. can assist with all aspects of Guardianships from the application to the court, preparation for the court proceeding and after the Guardian is appointed.
Call our office at (718) 210-4744 now to schedule a consultation!