07/20/2018










Important Facts to Know About Nursing Homes and Guardianship

It is less than common knowledge that nursing homes can file for guardianship of their residents to collect debts. However, this practice has increased ten-fold in recent years. In fact, studies show that up to two thirds of all guardianship proceedings nationwide are brought forth by a government entity or institution. Elderly and disabled nursing home residents with unpaid debts are at the core of this seemingly untoward practice. A report by the Brookdale Center of Healthy Aging and Longevity has shown between 2000 and 2012, over twelve percent of Manhattan’s guardianship cases were initiated by nursing homes. A study of the entire state resulted in a similar outcome.

Why Would Nursing Homes Want Guardianship of Residents?

Guardianship transfers an incapacitated individual’s right to make decisions regarding themselves to another party. Once the appointment is complete, the guardian (a person or entity) will make all financial and personal decisions for the individual. Guardianship effectively trumps a healthcare proxy or power of attorney. In situations where unpaid debts are accumulating against the nursing home, the facility may petition for guardianship to avoid family feuds, prevent embezzlement by family members, or to obtain Medicaid coverage. However, many people argue that the real reason for this practice is to force the resident’s family members to pay unpaid debts and settle bill disputes. In these situations, the guardian (nursing home) is usually paid with the incapacitated resident’s money. In fact, a nursing home with guardianship can directly take unpaid debts out of the resident’s bank account.

Although the primary reason for nursing home guardianship is typically financial, the granting of guardianship also gives the facility the last say in the resident’s care. In doing so, the nursing home is able to continue collecting payments by keeping the incapacitated person in their facility. It goes without saying that this type of arrangement creates a scenario in which nursing homes could take advantage of residents.

Can Guardianship Be Avoided?

A guardian has access to an incapacitated individual’s bank account and other readily accessible funds; however, guardianship does not supersede the trustee of a trust. By placing all of your loved one’s assets in a trust before they go into a nursing home, you can protect their assets from guardianship.

Andrew M. Lamkin – Elder Care Attorney

When an individual no longer has the capacity to make financial and healthcare decisions on his or her own, a guardianship proceeding may be required. If you need to help a loved one during this difficult time, you may consider filing a petition for guardianship. This is a complex legal process that requires the help of a skilled elder care attorney. As discussed above, guardianship can also be petitioned for by an institution or government entity. If you are looking for ways to protect your loved one’s assets from this type of guardianship arrangement, an elder care attorney can help you in this situation as well. At the Law Office of Andrew M. Lamkin, we have been representing older New Yorkers and their loved ones for many years. We understand the complexities and emotional challenges surrounding elder care law and estate planning. It is our goal to make this process as painless as possible, and to protect the assets and wishes of you and your loved ones. Contact the Law Office of Andrew M. Lamkin for a free consultation.

Six Considerations: Choosing a Legal Guardian for your Minor Children

guardianshipFor the parents of minor children, one of the most important aspects of your will is naming a legal guardian for your kids in the event that you and your spouse are no longer able to care for them. While it can be extremely difficult to choose who will raise your children in an emergency, you do not want to leave the decision up to the courts.

Below, we’ve listed six important considerations for parents who are choosing their children’s legal guardians.

  • Does the guardian share your values? Even if you have a guardian in mind who is loving and eager to help, it may be a deal-breaker if they do not share your religious background, cultural background, or your basic values. Speak with your potential guardian about their values and whether they would be willing to raise your children according to your wishes.
  • Will the guardian have the financial means to care for your children? If you do not have a plan to furnish your guardian with an appropriate amount of money to raise your children, you will have to consider your guardian’s financial situation. Do they already have children? Are they financially secure? Would your contributions be enough to ease the financial burden of expanding their family?
  • How big will the transition be for your children? Whoever is chosen as the guardian is not the only important factor. You should also consider whether your children will have to move states and school systems. Choosing a guardian in your town or community, even if it is not a close relative, may be easier on your kids than choosing a guardian across the country, away from familiar faces, and away from friends and activities.
  • How old is the guardian? Many parents automatically wish to list their own parents as legal guardians. However, they may not be taking the age and health of their parents into account. If your parents are 65 years old when your children are toddlers, your kids might have to transition through several different homes and caregivers before they turn 18.
  • Is your guardian already a parent? It may be a bonus to know that your guardian has experience raising children and being a parent. It may also be a bonus if your guardian has children that are close with your children. However, you should also ask yourself if your guardian will be able to care for your children in addition to theirs, or if your children’s interests may clash or compete with your guardian’s children’s interests.
  • Do the guardian and your children have a strong relationship? This may be one of the biggest and most important considerations. Simply ask yourself if both the guardian and your children would be happy and healthy living and growing together. This one consideration could outweigh a number of the others.

Choosing a legal guardian for your children is a tough and complicated decision, but it is an extremely important one to make. While you may not be able to care for your children after you are gone, you do have the power to make sure they are raised by someone you love, trust, and admire.

Designate a Legal Guardian in Your Will Today

Are you ready to draw up your will and establish a legal guardian for your minor children? The Law Offices of Andrew M. Lamkin are here to help. Call a New York estate plan attorney today to get started: (516) 605-0625 or fill out our online contact form.

Handling Elderly Loved Ones with Deteriorating Driving Skills

The ability to drive is more than a skill. It is a symbol of a person’s independence. Thus, when people get to an age that driving may no longer be advisable, the situation needs to be approached with care. Though this type of conversation is not bound to be easy, failure to have it could result in the elderly person or someone else being injured or even killed.

Taking a Sensitive Approach

No one wants to give up his or her freedom. Not driving because of old age may seem like good sense, but much more is at stake for the person giving up the keys. Aging forces people to face many changes, and admitting to an inability to drive is one of the more difficult ones. Remain compassionate when talking to an elderly person about this topic, and be prepared to listen to a range of emotions. Consider what it would feel like to suddenly have to rely on others to go to the store, the post office, visit friends, etc. It can feel humiliating.

Here are some tips about approaching this delicate topic:

  • Set aside some quiet time to have the discussion.
  • Encourage honest feelings of fear, sadness, or anger.
  • Listen and reflect on what the person says to show understanding.
  • Offer empathy not judgment.
  • Don’t aim for immediate resolution; plan to talk again in a few days.

Know the Signs That Someone May Need to Stop Driving

Unless the elderly person suffers from a condition that renders him or her from making a sound decision, you cannot force someone to stop driving. Ultimately, your role is to be supportive not forceful. You can stay alert for signs that the person may need to stop driving, including:

  • An increased number of traffic citations
  • Trouble switching pedals
  • Slow response times
  • Episodes of disorientation and confusion
  • Limited mobility that could affect steering

Avoid telling that the person that he or she needs to stop driving. Inquire about how the driving process has been going and bring up something that brought on the concern, such as a recent fender bender. Don’t make general comments that friends and neighbors can help give rides to places; actually find out what services are available to the elderly, such as driving services from organizations like the YMCA. Once it is clear that a conversation needs to happen, plan to do it soon. Waiting could be catastrophic.

The Bottom Line

Life transitions are not always easy. Recognizing that it is time to stop driving can be very difficult to accept for some people. Having supportive family can make the process easier.

If you or your loved one needs assistance with elder law, including wills, estate planning, or retirement, call the Law Offices of Andrew M. Lamkin, P.C. today at (516) 605-0625 or fill out our online contact form and we will get back to you within 24 hours.

Elder Care Benefits in the Workplace

As the Baby Boomer generation ages, more and more working adults are finding themselves responsible for the care of parents or other elderly relatives. In fact, over 40 percent of Americans are currently responsible for the care of elderly family members, and most are doing so in addition to managing their careers and taking care of children or other household responsibilities. Many employers are starting to recognize this trend and are beginning to offer some kind of elder care benefits in the workplace.

Increasing Empathy and Help for Employees with Elder Care Responsibilities

According to the 2014 National Study of Employers published by the Families and Work Institute, growing trends show an increase in elder care support and benefits provided in the workplace from 2008 to 2014. In fact, 75 percent of employers are willing to provide time off for employees to provide elder care without putting their jobs at risk. Furthermore, employers are increasingly more likely to report that they offer elder care resources, referral programs, Dependent Care Assistance Programs (DCAPs), and access to respite care in health plans.

One explanation for this trend given by the Families and Work Institute is that aging upper management is more likely to personally experience elder care issues, making them both more sympathetic to and aware of these needs. The study also cited an overall aging workforce, a greater number of employees dealing with managing elder care, and an expectation that even more employees will need elder care benefits in the next five years even if they are not already providing care for a loved one as reasons for increasing benefits. Interestingly, this trend has not been aided by legal requirements, as the Family and Medical Leave Act (FMLA) does not expressly provide for the care of the elderly.

Not All Employers Are Equal When It Comes to Elder Care Benefits

Although the trend in workplaces across the country is to increasingly provide for elder care benefits, not all employers guarantee the same or even any elder care provisions. Twenty-five percent of workplaces still have no provisions allowing for employees to take off work to take care of elderly relatives or other provisions supporting elder care. The National Study of Employers categorized companies with the following characteristics as the most likely to provide elder care:

  • Large companies with many employees or operating in multiple locations
  • Nonprofits
  • Employers of few hourly employees
  • Employers of many women
  • Employers with many women and minorities that are in or report directly to executive leadership

Although these types of companies most likely have elder care, some companies that fulfill these characteristics do not provide for elder care benefits. The easiest way to find out what elder care benefits are available in your company is to ask. Your elder law attorney can help answer questions about benefits and planning.

Contact Us

In general, elder care can be a complex issue to manage for personal, financial, and legal reasons. Oftentimes, it can help to discuss some of the financial and legal aspects of elder care with an experienced elder care attorney. If you are responsible for the care of an elderly relative, contact the Law Office of Andrew M. Lamkin, P.C. today for a free consultation to find out what you should do to make sure that you are both protected during this difficult time.

Ensuring Good Care for Your Elderly Parents

If you are the guardian of your elderly parents, you are responsible for their well-being. In addition, you have the right and privilege to make sure that they are treated properly while in a nursing facility. Here are some common problems for nursing home patients that you can avoid for your loved ones:

Physical Abuse

Physical abuse is usually the most obvious form of abuse. If bruises or other injuries begin to appear on an elderly patient, it is important to ask about the injuries. Physical abuse can also include restraining or drugging a patient unnecessarily.

Emotional Abuse

Emotional abuse occurs when a caretaker or someone else interacts with an elderly person, causing him or her emotional distress. If verbal, the abuse can include shouting, threatening, or humiliating. If nonverbal, emotional abuse can include isolating an elderly person or ignoring him or her.

Financial Abuse

Because elderly people often need help performing their daily tasks, they may not be as capable in handling their money and assets. Sometimes, this opens them up to financial exploitation. This could include stealing their possessions, forging their checks, or even stealing their identity.

Neglect

However, the most common form of elder abuse is a less-extreme type: neglect. While it may not involve physical violence or psychological distress, neglect can cause a great deal of pain and discomfort for an elderly person. The most common indicators of neglect are bedsores, dehydration, dirty living conditions, and rapid weight loss. Additionally, look for changes in the elderly person’s demeanor. Does he or she seem depressed, angry, or apathetic? Also, note if the elderly individual is getting into arguments with his or her caretaker, as this is often a sign of some sort of problem.

Call Us

The first step that should be taken in guaranteeing that your elderly family member does not have to deal with any of the above issues is to carefully choose the care facility. Upon finding a good situation for your elderly family member, call Andrew M. Lamkin, at 516-615-0625. He will gladly help you file all of the appropriate paperwork and make sure that your loved one’s transition is smooth and carefree.

Understanding Guardianship of the Elderly

Understanding all of the intricacies associated with guardianship of the elderly can be a complicated task. However, when looking past all of the detailed legal terms involved, there are a number of simple and easy-to-understand guidelines that should help.

Rules Surrounding Guardianship of the Elderly

In essence, guardianship of the elderly refers to the ability for someone to be deemed by the court to be the rightful guardian for an elderly person. Many times, the guardian is given the title due to the subject being ill or incapacitated and therefore unable to look after him or herself anymore. Those who are appointed by a judge to be a legal guardian for the elderly should understand that they will now have to make all of the decisions for their ward. This means that the guardian is entirely responsible for the well-being of the person for whom they have been awarded guardianship.

The courts must first come to the conclusion that the elderly person in question needs a guardian and cannot make basic decisions. The judge may also choose to grant limited guardianship. For instance, limited guardianship can often be determined if the elderly person can provide for him or herself financially, but cannot do so in regards to physical needs, or vice versa. Once guardianship is granted, the guardian does not have to acquiesce to the demands of the elderly person, as he or she is no longer in charge of his or her own decisions.

Who is Eligible

The most basic of rules for eligibility to be a guardian states that the person must be at least 18 years of age. It’s possible for any person that is officially chosen by the elderly person to become a guardian. Despite this, it is oftentimes impossible for the elderly person to even have the faculty to do so.

Those that are relatives or close family members of the subject can apply to become a guardian, while anyone else that the court deems appropriate may also serve as a guardian. If there is no one available to become the guardian for the elderly person, the Department of Social Services may step in and do so.

Required Documents

Becoming a guardian for an elderly person doesn’t require endless amounts of documents. It’s necessary to apply and fill out any paperwork provided. Once the paperwork has been filled out, it should be taken to a nearby probate court, where they will schedule a hearing. The only fees that are required include a fee to obtain the paperwork and another fee to file.

For anyone considering guardianship of an elderly person, it’s important to understand that this is not a light matter. Being given guardianship over a person’s entire decision-making process is a huge responsibility. If you feel that this is the correct decision to make, the aforementioned guide should help you to have a better understanding of the process involved.

Contact Us

Let the professionals at the law office of Andrew M. Lamkin, PC answer your questions about guardianship. Contact them today at 516-605-0625 to get the help you need!

Common Roadblocks In Setting Up Legal Guardianship of a Minor

A guardianship is established when the court determines that a child’s biological parents are no longer able to care for a child appropriately. A case may be brought to court by child protective services if abuse has been filed against the parent. A case may also be brought to court by the person attempting to become guardian or a relative of the minor in question. Whatever the situation, there are several common problems that can arise when trying to become a guardian. While the legal process of guardianship does not strictly require the use of an attorney, having one is highly recommended.

The Custodial Parent Objects to the Guardianship

This is perhaps the most common problem with acquiring guardianship. Most situations involve a forced removal of the child from parental custody, but the law here is somewhat ambiguous because the biological parents’ rights may still intact. This gives the parent a great deal of say over the guardianship and who can become a guardian. The parent may also make certain demands, such as reasonable visitation, that may conflict with the guardian’s schedule and make the overall process much more difficult.

Missing Notice Forms

The law is very strict on the requirement that a guardian give “legal notice” to certain individuals, relatives and agencies involved with the child. Some of these individuals may be apparent, such as the child’s current parents or custodians. Others may not be apparent or may not be directly involved in the child’s care. It is your responsibility to find these individuals and “serve” them a legal notice form. If you cannot find the person, then you must appeal to court to allow the case to go forward regardless. A mistake during this process can require you to start the guardianship process all over again.

Home Study Failure

The court will appoint an investigator to interview you, the child, the parents and other applicable individuals. They will also conduct a home study to ensure that your home environment is suitable and meets certain standards. The investigator will be looking to ensure that the child will have adequate personal space, access to nearby education, access to acceptable healthcare and a space appropriate for parental visitation. Inadequacies in any of these areas will be reported to the court and may result in a delay of the guardianship process.

Return of Absent Parent

It should be noted that biological parents always have first parental right, even if they have been absent from the child for a long time or were not currently holding custody. A guardianship case may be hindered if an absent parent returns unexpectedly to claim his or her parental rights. The court will have to assess the parent’s appropriateness and may assign the child to the returned parent instead of the guardian.

A judge makes the final decision on all guardianship cases. Keep in mind that a guardianship is not an adoption, and it can be revoked by the court at any time. Many guardianship cases on Long Island result in the child being ultimately returned to their biological parents.

Sources:
http://www.courts.ca.gov/1212.htm
http://oklaw.org/issues/family/guardianship

 

The Basics of Guardianship, Health Care Decisions, & Power of Attorney

Legal terms can be confusing. To help those debating over the best care options for their loved ones, below three common elder law terms are defined and explained.

Guardianship

Guardianship is a term used to define anyone who has custody of, or the sole responsibility of caring for, an aging parent or other elderly relative or friend. Guardianship of this nature is usually requested and/or obtained by a close relative or trusted friend of an elderly person when it is deemed that the person needs someone to take care of them due to such issues as a disability, dementia, Alzheimer’s disease, or a terminal illness that renders the person too ill or weak to take care of himself. Guardianship of a disabled or terminally ill relative or aging parent may also be granted by a judge if there is a dispute regarding who has the legal “right,” as well as the best means possible, to provide the necessary care.

Health Care Decisions

While many people think of this subject in relation to the elderly, health care decisions must also be made for children and disabled or terminally ill relatives as well as aging parents. Such health care decisions often include what is known as a living will, also referred to as an advance directive. This important document simply specifies the person’s wishes regarding medical care in the event of a terminal illness or other medical condition or emergency which would leave the person in a coma or vegetative state and unable to make decisions. This also ties in closely with power of attorney, which is addressed next.

Power of Attorney

Granting a power of attorney is an important, personal decision that involves choosing someone to make all legal and medical decisions in the event that the person doing the choosing becomes unable to make decisions for or care for himself. A power of attorney is a legal power which requires the acceptance and agreement of the chosen party to care for and carry out the other person’s wishes, within reason, as well as required legal documentation which has been prepared by the person’s attorney.

Need More Advice?

To fully understand the ramifications of different care and decision-making arrangements for your loved one, it is best to seek the advice of an elder law–focused lawyer. Long Island attorney Andrew Lamkin has long experience working exclusively on elder law and related legal questions. Contact us today for a free consultation at 516-605-0625.

5 Alternatives to Guardianship

A guardianship is a position of total authority and responsibility for a disabled adult who is for some reason incapable of making decisions to support himself or manage his affairs. Such persons are referred to as wards. Often, a person may be temporarily disabled or in need of less restrictive assistance. There are several alternatives to guardianship that may be more appropriate or preferable for such individuals.

A Health Care Proxy*

A health care proxy’s support is limited to only those decisions involving health matters, such as hospital stays, operations, and long-term care. A health care proxy is usually called upon for short-term disabilities such as periods of coma or unconsciousness. The proxy may also be called in for long-term disabilities such as dementia or terminal illness. The proxy is usually a family member, but it can be any agent agreed upon by the individual.

A Personal Caregiver

A personal caregiver is usually an employed professional trained to provide for people with serious illnesses or disabilities that prevents them from caring for themselves. Personal caregivers are usually assigned to those who do not require hospitalization, but cannot live independently. A personal caregiver may visit temporarily to provide meals or services, or they may stay at the home to provide round-the-clock care. A caregiver is often assigned by a hospital or other medical agency. They generally do not have legal permission to make decisions for the individual, but they may have access to personal information and limited access to financial resources needed for that person’s care, such as buying groceries or medical supplies.

A Power of Attorney

A power of attorney is a legal ability to make financial or healthcare decisions for a particular person. The person provided with power of attorney is known as the attorney-in-fact. Power of attorney can vary from complete control of a person’s financial resources to limited control of only a single aspect. For example, an attorney-in-fact may be assigned to deal only with a person’s health care needs, much like a health care proxy, or they may be assigned only to deal with a person’s investments or estate. Power of attorney is often given to a family member, but it can be given to any individual at the disabled person’s discretion.

A Representative Payee

A representative payee is an individual assigned by the Social Security Administration to handle a disabled person’s Social Security and SSI payments. The SSA dictates a representative payee, with input from the disabled person if possible. The SSA will choose family members or close friends first. If none are available, they will use a qualified organization to act as a representative payee.

Trusts

A trust is a wealth management tool that allows an asset to be held by a third party on behalf of a beneficiary. Anyone can hold an asset in trust for anyone else, regardless of age or disabled status. Trusts are often used to handle inheritance and to limit the impact of inheritance or estate taxes.

Know the Facts Before Making Your Decision

Elder law attorney Andrew Lamkin focuses on providing advice on how to best fulfill the care and decision-making needs of your dependent loved one. Contact his law office today at 516-605-0625 to receive a free consultation and ensure that you make the most suitable choice for those who depend on you.

Recommended Resources
http://www.health.ny.gov/professionals/patients/health_care_proxy/
http://www.ssa.gov/payee/
https://www.fidelity.com/estate-planning-inheritance/estate-planning/trusts



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