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!
New 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.
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.
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”
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.