NYS Attorney General Blasts City Councilwoman’s Eminent Domain Idea

Tanya Hobson-WilliamsNew York State Attorney General Eric Schneiderman said that a plan by City Councilwoman Melissa Mark-Viverito to have the city seize properties using eminent domain as a way for homeowners to avoid foreclosure is something that is not viable.

Ms. Mark-Viverito, who represents East Harlem, is proposing that the city take ownership of the homes away from banks so that troubled homeowners can keep their homes. Mr. Schneiderman says that it can be risky for the city — or any other municipal government — to acquire private property this way, adding that if the city attempts to do this and it’s not done the right way, there could be unfavorable legal consequences for the city.

Mr. Schneiderman cited a similar plan adopted by the city council in Richmond, California that is facing skepticism. On September 11, the Richmond City Council voted 4-3 to allow the city to acquire “underwater” homes from lending institutions so borrowers can stay in their houses. The bill passed, 4-3. Those who voted against the bill said it would open the city to lawsuits and face a backlash from the lending industry.

Bottom line: Don’t wait for eminent domain to save your home. If you are facing foreclosure, contact our office or another attorney experienced in handling these matters. There are a number of legal options available to you.

Top Ten Estate Reasons Real Estate Closings Get Adjourned

Tanya Hobson-Williams#10-     An executor or administrator gives a power of attorney to a third party. Fiduciaries cannot delegate their authority.

#9-       The Seller does not come to closing with certified funds for transfer taxes.  Most Title companies will not take a personal check for transfer taxes unless authorized prior to closing.

#8-       The Buyer unaware that the bank deducts closing costs from mortgage proceeds and fails to bring certified funds to make up the difference.

#7-       The Executor of a Will that was not probated arrives at closing without Letters Testamentary.

#6-       A Religious Corporation arrives at closing without a Supreme Court order authorizing the sale.

#5-       The Seller arrives at closing with a payoff letter showing legal fees due. Seller may be in default on mortgage and must be in compliance with Home Equity Theft Protection Act.

#4-       A child of the deceased owner who lives in the house arrives at closing to execute the deed without an Administrator or an Affidavit of Heirship.

#3-       A seller with a docketed judgment that was discharged in bankruptcy believes he can sell the property free of that judgment.

#2-       Only one Executor shows up to the closing when Letters Testamentary where issued to two executors.

The Number 1 Reason is: Will names a specific person to receive the property but the Executor attends the closing to execute the deed.

 

*Make sure your Estate Attorney and Real Estate Attorney are knowledgeable about the relationship between estate matters and the purchase and sale of property.  Contact Attorney Tanya Hobson-Williams at (718) 210-4744 for more information.

Recognizing Signs of Elder Abuse in a Loved One

Tanya Hobson-Williams

Many senior citizens who are too frail and vulnerable have become victims of elder abuse at the expense of strangers, trusted caregivers and even friends and family members. When one thinks of elder abuse, they think of physical abuse, but it goes beyond that.

Elder abuse takes many forms: sexual abuse (non-consensual sex), willful neglect (failing to provide food, shelter, healthcare or protection for a vulnerable patient), exploitation (stealing, misusing or concealing the seniors’ funds, property or assets for someone else’s gain), abandonment (leaving seniors by themselves without proper care), emotional abuse (verbal threats, humiliation and intimidation) and self-neglect (the failure of a person to perform essential, self-care tasks that may result in a threat of his/her own health or safety).

Signs of elder abuse include bruises, pressure marks and abrasions on the skin; broken bones; unexplained withdrawal from normal activities; depression; sudden changes in their financial situation; bedsores; poor hygiene; unusual weight loss; use of threatening behavior by a spouse; strained or tense situations and frequent arguments between the patient and caregiver.

Elder abuse came into the national spotlight in 2011 when legendary actor Mickey Rooney was granted court protection from his stepson and stepdaughter who he claims abused him, verbally, emotionally and financially. Mr. Rooney also accused his stepchildren of denying him food and medicine.

According to the American Psychological Association, an estimated 2.1 million senior citizens suffer some form of elder abuse. The National Elder Abuse Center report that 21% of elder abuse cases are self-abuse and financial abuse. If you suspect that an elderly loved one may be a victim of elder abuse, it is recommended that you call the authorities and contact us at Tanya Hobson-Williams, P.C..

 

The Purpose of a Guardianship and the Mental Hygiene Law: Article 81

Tanya Hobson-WilliamsIf 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!

New Medicaid Fair Hearing Procedures

Tanya Hobson-WilliamsNew York City has implemented several changes to the Medicaid Fair Hearing procedures. One of those changes includes restricting the ability to obtain an adjournment of the hearing by making the request online or by telephone. When contacting the N.Y.S. Office of Temporary Disability and Assistance (OTDA) office in Albany to request an adjournment, the agents who answer the phone will question the basis for the adjournment. They use a subjective standard of “good cause” to determine whether or not to grant the adjournment. In fact, I had a client who requested an adjournment of a fair hearing because the hearing was scheduled on Rosh Hashanah and she wanted to use that day to prepare for family who would be visiting for the Holiday. OTDA denied my request for an adjournment because Rosh Hashanah was not observed until sundown on the scheduled date.

I argued vehemently that religious observance was “good cause” and that OTDA cannot deny an adjournment request based upon religious observance. However, the request for an adjournment was denied. The agency’s rigid construction of “good cause” emanates from a lawsuit filed against the OTDA for delays in providing fair hearings to individuals who require immediate assistance. A court order is in place requiring OTDA to schedule a fair hearing within 90 days of the request.

The need to ensure efficiency must be balanced with the need to ensure that those with legitimate needs to postpone hearings are not unduely prejudiced by OTDA’s need to comply with the court’s order. It must be noted that pursuant to the Fishman lawsuit, that if an individual defaults (fails to appear) on a fair hearing, OTDA is required to notifiy the individual that their case will be defaulted if they fail to notify the agency that they wish to proceed with the hearing. Although my request for an adjournment was denied, I was able to obtain another hearing date on behalf of my client knowing about the Fishman litigation.

Critics Fear G.O.P.’s Proposed Medicaid Changes Could Cut Coverage for the Aged

by Jennifer Steinhauer, NY Times

According to the Congressional Budget Office, in the 2010 fiscal year, 77 percent of people enrolled in Medicaid were children and families, while 23 percent were elderly or disabled. But 64 percent of Medicaid spending was for older Americans and people with disabilities, while 36 percent went to children and families.

According to the Kaiser Family Foundation, which analyzes health care issues, 7 of 10 nursing home residents are on Medicaid, in large part because even middle-class patients often run through their savings while in a nursing home and turn to the entitlement program.

Changes to the Home Care Program

The Budget makes significant changes to New York’s home care program by limiting level 1 personal care services to 8 hours per week and authorizing the Commissioner to set standards for “high-intensity” high-hour personal care services users, pursuant to emergency regulation. Changes in the definition of estate will increase liens and Medicaid recovery actions.

The Budget also mandates enrollment in Managed Long Term Care (or program models that “may” include long term home health care programs) for anyone over age 21 who needs home and community based services ( “as specified by the Commissioner) for more than 120  days. This is likely to be everyone receiving personal care (home attendant), certified home health agency (CHHA) services, and Consumer-Directed Personal Assistance Program services.  Before it becomes mandatory, a federal waiver must be applied for and approved – which is unlikely before the end of 2011 at least.

Persons subject to mandatory enrollment will be assigned to a plan if don’t select one within 30 days of the date on which they are given the choice of plans. Plans are to contract directly with the State Department of Health and perform assessments for their members’ care needs every six months. The role of local districts in assessing and providing long term care is thus significantly reduced.

 

Reprinted from “NY Health Access”

Certified Home Health Agencies not permitted to reduce hours previously authorized without due process

On April 8th  and 15th, 2011,  the State Commissioner of Health sent all CHHA administrators two directives reminding them that state law  does not allow CHHAs to reduce home health aide services that were previously authorized, without doctor’s orders and notice and hearing rights.  Similarly, if a CHHA client is hospitalized, or in temporary short-term rehabilitation, these changes do not allow the CHHA to abandon them — the CHHA must reinstate the same home health services after the hospital or rehab stay is over, if the client continues to need the services as prescribed by his/her treating physician.