A Less Restrictive Alternative to Guardianship
August 15, 2018
Guardianship is intrusive to one’s privacy and autonomy, often making it the last resort when an individual is unable to care for him or herself. Currently, the US Department of Health and Human Services (DHHS) is funding research on Supported Decision Making, a process in which individuals with disabilities designate an agent to assist them with making decisions and exercising their legal capacity resulting in a less restrictive alternative to guardianship.
Although not available in New York, Texas has enacted the nation’s first law recognizing Supported Decision Making agreements. In addition, the District of Columbia has enacted legislation for students with disabilities recognizing Supported Decision Making as an alternative to guardianship, and in early 2018, a guardianship in D.C. was terminated in favor of Supported Decision Making.
Contact Miriam Davidson, an experienced elder law attorney, for any further consultation.
Recently Enacted Standards to Protect Seniors and Vulnerable Adults from Financial Exploitation
August 8, 2018
In February 2018, FINRA (Financial Industry Regulatory Authority) passed two new rules to protect seniors from financial exploitation.
FINRA Rule 2165 allows brokerage firms to place a temporary hold on disbursements of funds from a client’s brokerage account when the firm believes there is evidence of financial exploitation.
FINRA Rule 4512 requires representatives from brokerage firms to make reasonable efforts to obtain a name and contact information for a Trusted Contact Person (TCP) when opening a new brokerage account, or when updating information for an account. Firms can disclose account information to the TCP and use the TCP as a resource for information.
Both rules were created with the intent to prevent financial exploitation of the elderly. It is recommended that you consult with an estate planning attorney before designating a TCP on your brokerage accounts.
Promising Alzheimer’s Drug Eases Plaque and Decline
July 27, 2018
Researchers are testing a new drug which has shown promise in reducing and preventing the growth of plaque in the brain, a symptom of Alzheimer’s Disease. The drug has the added benefit of slowing or even eliminating the presence of dementia in some patients. The drug is in trials and may arrive as soon as 2020.
Further Erosion of Protections under Affordable Care Act (ACA)
July 10, 2018
On July 7, 2018, the Trump Administration suspended risk adjustment payments between health care insurers, a program created by the Affordable Care Act to maintain stability in the marketplace by pooling the risk of the insurance companies. Under ACA, companies had to cover individuals with preexisting conditions, which creates risk. It is anticipated that insurance premiums will increase in 2019, decreasing the availability of health care.
As the future of the insurance marketplace becomes uncertain, it becomes imperative to plan ahead to ensure access to quality health insurance and to protect your assets.
Widespread Underreporting of Staffing Levels by Nursing Homes
July 9, 2018
New data, required by the Affordable Care Act, shows that a majority of nursing homes underreported staffing to the Centers of Medicare and Medicaid Services (“CMS”), having an average decrease of 12% in staffing levels compared to unverified reports previously submitted by nursing homes. CMS relied on these reports to rate nursing homes. If you relied on these rating for nursing home staffing levels, you were mislead.
How can you reduce the chances of placing yourself or a loved one in an understaffed nursing home? If you plan ahead you may allow yourself to remain in your home with quality care from professionals.
March 5, 2014
What is Medicaid?
Medicaid is the government funded program through which many persons receive care at home or in a nursing home. Medicaid is a state-wide and state specific program, currently administered in the five boroughs of New York City through the Human Resources Administration.
The process of applying for Medicaid is complex and often times confusing. Because Medicaid offers many different programs, the eligibility rules and application processes differ. Having an attorney who has a full and thorough understanding of the benefits available through Medicaid, the rules for eligibility, and the process by which to secure those benefits provides a tremendous advantage to the applicant for Medicaid benefits.
The Medicaid Application Process
Depending upon the program for which you are applying, different information may be required. All Medicaid applications, regardless of benefits sought, require extensive personal documentation and detailed proof of income. Certain programs require proof of assets and sixty months of records for all assets held during that period.
Help with the Application
An experienced Elder Law Attorney can advise you on the benefits available, the process for obtaining the benefits you need, the provisions of the law that might enable your family to protect assets, and the rights that certain family members of the applicant may have.
In New York, it is not required that an attorney assist with the Medicaid application. In fact, you can prepare the application yourself. There are many entities, agencies, or divisions within hospitals and nursing homes which may offer to prepare and submit the application for you for free or for a reduced fee. However, you must exercise great caution when accepting that help, as those entities and agencies are not obligated to advise you of your rights and are not permitted to give legal advice or implement legal strategies. Using these services might expose you and your family to risk.
Be Wary Of:
- Offers to prepare the Medicaid application free of charge or at a significantly reduced rate–if it’s “too good to be true,” it probably is!
- Persons giving legal advice or offering Medicaid Trusts without being an attorney admitted to the New York State Bar.
- Guarantees of Medicaid eligibility or other government benefits.
- Agencies, entities or groups which have as their “sole job” the securing of Medicaid benefits for you. These entities may not have any liability to you if they fail to secure Medicaid eligibility.
Exposure to Risks When an Elder Law Attorney Is Not Used
The law has many nuances and intricacies. A qualified Elder Law Attorney has the obligation to ensure that you are informed of the provisions of law related to Medicaid, and to answer any questions you may have. In fact, the Elder Law Attorney has an ethical duty to advocate for you and your interests. Failing to use an Elder Law Attorney could expose you to the following risks:
- Failure to be fully informed of spousal rights;
- Failure to be informed of opportunities for asset protection;
- Incomplete or inaccurate application submission;
- Denial of application due to failure to provide information;
- Failure to be informed of consequences of prior actions;
- Imposition of a penalty period for which mitigation strategies could have been implemented;
- Failure to have a dedicated advocate working with you through the process.
Case #1: Client utilizes the services of the in-hospital “Medicaid Enrollment Facilitator” when her mother is hospitalized and needs to be discharged to a skilled nursing facility. Client is grateful for the “free help” and then is horrified to learn after the Mother’s death that a lien has been placed on the mother’s home and that the house could have been protected under one of the Medicaid exceptions to the transfer-of-asset rules.
Case #2: Client uses a Geriatric Care Manager to assist in preparing the Medicaid application because costs are less that of local attorney. Application results in significant penalty period during which Medicaid will not pay for care due to prior transfers. Geriatric care manager failed to warn client or take steps to mitigate penalty period. Client then retains an elder law attorney to help.
Case #3: Client uses independent Medicaid Application Preparer as recommended by nursing home to prepare application for incapacitated Husband. Client is told to “spend down” excess assets on cost of nursing home care, and does so. Client later learns that she was never advised of her legal rights as spouse and could have pursued other avenues to secure Medicaid for her husband much sooner.
This information is made available to you by The New York State Bar Association’s Elder Law Section to assist you in understanding the benefits of utilizing a qualified Elder Law Attorney for your long-term care and Medicaid needs. Please contact Miriam Davidson, Esq. at (212) 308-4810 for assistance filing a Medicaid application.
Filing for Disability Benefits after Your Loved One is Deceased
February 19, 2014
Social Security Disability Insurance (SSDI or SSD) is a benefit available from the federal government to individuals who are disabled and who have worked for a certain number of years set by the Social Security Administration.
What if your loved one suffered from a disability before his or her death, but never applied for benefits?
You can apply for SSD on behalf of your deceased spouse, parent, or child up to three months after the date that he or she died. You may be eligible for retroactive disability payments on your loved one’s behalf for up to 12 months before the date that you file the application.
For more information and assistance filing the application, please contact the firm at (212) 308-4810.
You’ve Paid Off Your Mortgage On Your Coop, Now What?
February 10, 2014
Have you paid off your mortgage but still own your cooperative apartment? As a lawyer representing coop owners in real estate transactions, I have found that many people aren’t aware of the steps they must take once they have paid off their mortgage but continue to own the unit. If you, as borrower, do not take these steps promptly, a lien remains on the property and a future closing, transfer, or refinancing will be delayed, even if you have actually paid off your mortgage.
If you borrowed to purchase or refinance your cooperative, you gave the lender both the original stock certificate for your shares and the proprietary lease to secure the loan. The lender then recorded a “UCC-1 Financing Statement” with the City Register, which is a public record of your debt to the lender. The lender maintains the stock and proprietary lease until the loan is paid off.
Once your loan is repaid, the lender must return to you the stock certificate and proprietary lease that you gave as security when you obtained the loan. Without these documents, you will be unable to sell, transfer, or refinance your coop.
The lender must also file with the City Register a “UCC-3 Termination Statement” which is a public record that your loan has been paid off. In my experience, lenders often fail to do so. You should contact the City Register to confirm that the UCC- 3 Termination Statement was filed. If it wasn’t filed, you should ask the lender for the UCC-3 Termination Statement and file it with the City Register yourself. There is currently a filing fee of $40.
The same steps should be taken if you have a home equity line of credit, even if you paid it off or never accessed it. The lender keeps the stock and proprietary lease until you terminate the line of credit. Contact your lender to find out how to terminate the line of credit.
Taking these simple steps after paying off your mortgage or loan will avoid delays and frustration when you are ready to sell, transfer, or refinance your coop. Please contact the firm at (212) 308-4810 for assistance with any coop real estate transaction.