Special Needs Planning 101

Some things just naturally go together, like peanut butter and jelly, peas and carrots, and Elder Law and Special Needs Planning. Okay, maybe the last example is not so obvious, but there is definitely a natural relationship between Elder Law and Special Needs Planning. Both practice areas tend to share common issues, professionals, government benefit programs, and most importantly – clients.

While it’s true that the clientele often overlaps, one important distinction between the two practice areas is that Special Needs Planning clients are usually not as easy to identify as Elder Law clients. The population of individuals with special needs is extremely diverse and contains people from all age groups, whereas Elder Law clients are typically comprised of seniors and their families.

Much like the aging population, the number of people in the United States with special needs has grown significantly in recent decades as a result of medical advances. Most Elder Law attorneys are already well aware of this fact because many of their clients either have special needs themselves, or have expressed their concerns about a family member with special needs.

The government has responded to the growing special needs community through legislation and benefits programs. One of the most important federal statutes related to the special needs community is the Americans with Disabilities Act (ADA). Enacted in 1990, the ADA was passed to more fully protect approximately 43 million Americans with one or more physical or mental disabilities. The statute provides a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. Additionally, it has helped the general public become aware of many issues faced by the special needs community.

There are several government programs designed to benefit individuals with special needs, including Supplemental Security Income (SSI), Social Security Disability Insurance (SSDI), Medicaid, and Medicare.

Supplemental Security Income – The SSI program is a Federal income supplement program funded by general tax revenues. SSI pays benefits to disabled adults and children who have limited income and resources. SSI benefits are also payable to people 65 and older without disabilities who meet the financial limits. The maximum federal SSI payment amounts increase with the cost-of-living increases that apply to Social Security benefits. The most recent increase was 3.6 percent and went into effect in January 2012.

Social Security Disability Insurance – The SSDI program, which is managed by the Social Security Administration, is designed to provide income supplements to people who are physically restricted in their ability to be employed because of a qualified disability. SSDI benefits are paid to qualified individuals with disabilities and their families. To qualify, an individual must have worked in jobs covered by Social Security, and have a medical condition that meets Social Security’s definition of disability. Benefits usually continue until the recipient is able to work again on a regular basis.

Medicaid and Medicare – Medicaid is a health care program for people with limited resources and low incomes. In many states, Medicaid comes automatically with SSI eligibility, and in other states you must sign up for it. Some children can get Medicaid coverage even if they do not qualify for SSI. Medicare is a federal health insurance program for people age 65 or older and for people who have been getting Social Security disability benefits for at least two years.

These benefit programs are imperative for many individuals with special needs, because the cost of care is extremely expensive. Parents and relatives of Special Needs Planning clients are often afraid that if they leave a bequest, or provide private funds for the care of a loved one with special needs, then that loved one will lose his or her government benefits. There are several options that will help ease these concerns, including Special Needs Trusts, Third-Party Supplemental Needs Trusts, and Pooled Trusts.

Special Needs Trusts – The Special Needs Trust, which is also referred to as a “Disability Trust,” or a “Payback Trust,” is available only to individuals who are under the age of 65 and disabled. This kind of trust must be funded with the assets of the individual who is disabled and must be created for his or her benefit by the court, a parent, grandparent, or legal guardian of the individual. This type of trust must include a “payback” provision that repays the state Medicaid agency upon the death of the beneficiary for the cost of Medicaid benefits received by the beneficiary. Additionally, a Special Needs Trust must be for the sole benefit of the person with disabilities during his lifetime.

Third-Party Supplemental Needs Trusts – This type of trust is designed to supplement (not supplant) Medicaid benefits. A party other than the SSI/Medicaid beneficiary must create the trust, it must not receive any assets belonging to the beneficiary, and it must be restricted to the beneficiary. There is no Medicaid payback in a properly drafted Third-Party Supplemental Needs Trust because the funds in it are not countable as assets available to the beneficiary receiving SSI and/or Medicaid. This type of trust is usually funded with the assets of a relative of the disabled beneficiary, and should be distinguished from a Special Needs Trust as discussed above.

Pooled Trusts – This type of trust pools the resources of many beneficiaries into a single Trust for investment purposes, and is managed by a nonprofit association. Pooled Trusts, which provide a separate account for each beneficiary, are only available to individuals who are disabled and under the age of 65. The Trust account may be created by a third party, a court, or by the disabled beneficiary himself. Upon the death of the disabled beneficiary, the balance remaining in his or her separate account is either retained in the Trust for the nonprofit association or paid back to the state Medicaid agency to reimburse the cost of medical assistance to the beneficiary during his or her life. Pooled Trusts are available to residents in every state.

Special Needs Planning is an exciting and interesting area of law. The recent increase in the population of individuals with disabilities has created, and will continue to create, a great demand for qualified professionals to help resolve complex legal issues. In order to effectively assist the special needs community, it is essential for Elder Law attorneys to understand and appreciate Special Needs Planning.

For more information about Special Needs Planning, visit the following links:

• Academy of Special Needs Planners
• Benefits for Children with Disabilities FAQ
• Centers for Medicare & Medicaid Services
• Disability.gov
• Disability benefits overview
• National Academy of Elder Law Attorneys
• Pooled Trust Directory by State
• SpecialNeeds.com
• Special Needs Answers
• Special Needs Attorney Directory by State

Please feel free to email Eric Einhart at ericjeinhart@gmail.com or post any comments or concerns you may have.

Disclaimer: The information contained in this blog is not intended as legal advice and should not be relied upon to answer any specific questions concerning your own circumstances or for purposes of legal planning. For specific legal advice, please contact an Elder Law attorney.

Plan for Peace of Mind

My wife is a chronic planner. She plans for everything from meals to major life events. As a result, she always seems to be a step ahead of life, and three steps ahead of me. For instance, within hours of our engagement we set a date for the wedding, created a tentative guest list, and chose a color scheme. I’ve been told that some women begin thinking about their wedding day during childhood, but this was some intense planning.

At first her chronic planning drove me nuts, but I soon realized that there was a method to the madness. As with most things, my wife was right about this too. Life is crazy and full of curve balls, but planning for future possibilities can create order during times of chaos and provide peace of mind.

Planning is important for people of all ages, but it is especially important for seniors because they are more likely to suffer a loss of legal decision-making capacity. Unfortunately, if a plan is not in place a loss of capacity usually means loss of personal autonomy as well.

There are, however, effective planning tools available called advance directives and powers of attorney. These legal instruments can allow you to retain control over your healthcare and finances in the event that you lose the legal capacity to make decisions. In addition, in the event that you become incapacitated, these documents can alleviate the need for a lengthy and expensive guardianship proceeding, and make life much easier for your loved ones.

The problem is that most people never execute these planning tools because they do not think they will ever become mentally or physically incapable of making legal decisions. While this may be true for some, it is certainly not true for everyone and only invites the old adage, “He who fails to plan, plans to fail.” Some of the most common legal planning tools are Health Care Proxies, Living Wills and Durable Powers of Attorney. The laws related to these documents vary from state to state, but the concepts are the same.

A Health Care Proxy (HCP) is a legal document that allows you to designate a health care agent to make health care decisions in the event that you become incapable of executing such decisions. Once the document is drafted, you will be able to continue to make health care decisions for yourself as long as you are still competent to do so. By appointing a health care agent, you can make sure that health care providers follow your wishes. Although health care providers must follow your agent’s decisions as if they were your own, you can always limit your agent’s decision-making power by stating his or her authorities in the document.

There are two general situations where a health care agent could be needed: (1) when a principal suffers a temporary inability to make health care decisions, and (2) when a principal has a permanent inability to make health care decisions. It is important to thoroughly reflect upon your individual wishes and discuss them openly with your health care agent. Once your Health Care Proxy is validly executed, it is also important to give a copy to your agent, primary care provider, and a few choice family members. It is also a good idea to always carry a copy in case of an unexpected emergency.

A Living Will is a written, legal statement that spells out the types of medical treatments and life-sustaining measures you want and do not want in the event that you become incapable of communicating your wishes. It can include instructions concerning the termination of life support. In some states, a Living Will may be called a Health Care Declaration or Health Care Directive. A Living Will can be very specific or very general. More specific Living Wills may include information regarding your desire for services such as analgesia (pain relief), antibiotics, hydration, feeding and the use of ventilators or cardiopulmonary resuscitation (CPR).

A major drawback of a Living Will is that it is difficult to provide specific instructions with regard to all possible future events. This means that someone responsible for your care will inevitably have to interpret general instructions in your Living Will in the context of specific circumstances. But, despite this, it is better to have a Living Will than no advance directive at all.

A Power of Attorney (POA) is a written authorization to represent or act on another’s behalf in private affairs, business, or health care decision-making. The main purpose of a POA is to appoint someone to make decisions, sign documents and carry out other important acts if/when you are unable. The person authorizing the other to act is called the principal, and the one authorized to act is the agent. An agent is a fiduciary for the principal and is required by law to act in the best interest of the principal. The agent’s power to act on the principal’s behalf can be limited based on the language in the POA. In addition, the agent’s powers ceases upon the principal’s revocation of the document or death of the principal.

A Durable Power of Attorney is a special type of POA that allows the agent’s authority to continue until the principal’s death whether or not the principal suffers a lack of capacity in the future. In some states (including New York) it is possible to grant a Springing Power of Attorney. Under a Springing Power of Attorney, a power only takes effect after the incapacity of the principal or upon the occurrence of some other definite future act or circumstance spelled out in the language of the POA. While this can be a powerful tool during one’s life, it is not a substitute for a Last Will and Testament.

There are many generic versions of these documents available online, which can be validly executed without the presence of an attorney. With that said, I believe it is extremely important to speak with an Elder Law attorney about your plan in order to ensure your wishes are honored. Elder Law attorneys have vital expertise that can help you recognize any potential issues, and assist you with additional planning, such as tax and long term care planning.

For more information regarding advance directives and powers of attorney, visit the following links:

• U.S. National Library of Medicine
• Health Care Agents: Choosing One and Being One
• New York Online Access to Health (NOAH)
• What are advance directives?

Please feel free to email Eric Einhart at ericjeinhart@gmail.com or post any comments or concerns you may have.

Disclaimer: The information contained in this blog is not intended as legal advice and should not be relied upon to answer any specific questions concerning your own circumstances or for purposes of legal planning. For specific legal advice, please contact an Elder Law attorney.

Life, Liberty, and the Right to Die – Part II

As discussed in the previous blog post, physician-assisted death is one of the most controversial ethical issues related to Elder Law. At the time of this writing, physician-assisted death is only legal in Montana, Oregon and Washington. For those terminally ill adults who reside outside these three jurisdictions, there are alternative methods that will help respond to suffering. The most notable alternatives are hospice care, palliative sedation and voluntary stopping eating and drinking (VSED).

Hospice care involves a team-oriented approach to medical care, pain management, and emotional and spiritual support for people facing a terminal illness. It is tailored to the person’s needs and wishes, and also provides support for the person’s loved ones. Hospice focuses on caring, not curing. In most cases the care is provided in the terminally ill person’s home, but it can also be provided in hospice centers, hospitals, and nursing homes. Hospice is covered under most private insurance plans, HMOs, Medicare, and Medicaid.

Palliative sedation is a legal option for dying patients. The primary intention of palliative sedation is to deliberately induce a temporary or permanent light-to-deep sleep in patients suffering from a terminal illness and specific refractory symptoms. It is not intended to deliberately cause death, and is used to sedate the dying patient so that he or she may not suffer due to specific refractory and intractable symptoms. Palliative sedation can only be considered if the patient is dying and is experiencing unendurable suffering that is not amenable to any standard palliative treatment measures.

There are two basic types of palliative sedation. Proportionate palliative sedation (PPS) uses the minimum amount of sedation necessary to relieve refractory physical symptoms. Palliative sedation with the intended end point of unconsciousness (PSU) is the more controversial practice that may be considered for much fewer refractory cases. PSU is used to heavily sedate the patient until death arrives. There is more ethical consensus about PPS than PSU.

Voluntary Stopping Eating and Drinking (VSED) is the choice to consciously refuse all food and fluids while receiving supportive comfort care until death. According to Compassion & Choices, VSED is a legally recognized option for mentally competent adults who wish to end their suffering. It is not considered starvation and, with palliative support, is described as painless. A growing number of individuals are exploring VSED because it allows death to proceed naturally.

These alternatives to physician-assisted death are major aspects of the Death With Dignity movement. Although some people consider this movement to be just another topic for political debate, there is no denying its impact on our society. It has been the subject of national news stories, books, films, ethical debates, and organized protests. Some celebrities have joined the movement, and the movement itself has propelled some people to a celebrity-like status. Despite the intense controversy that surrounds physician-assisted death, the issue has become ingrained in our national consciousness.

While I strongly believe in the sanctity of life, I also believe that my opinions and religious ideology should not dictate whether another person is able to end his or her own suffering. This is especially true in a democratic nation like ours. Suffering is a very personal experience, and a competent adult should be able to determine if and how that suffering will end. In the words of the late great John Lennon, “Why in the world are we here? Surely not to live in pain and fear.”

For more information about the Death With Dignity movement or alternatives to physician-assisted death, visit the following links:

• Compassion & Choices
• Death With Dignity National Center
• Hospice Foundation of America
• Oregon Health Authority
• Washington State Department of Health

Please feel free to email Eric Einhart at ericjeinhart@gmail.com or post any comments or concerns you may have.

Disclaimer: The information contained in this blog is not intended as legal advice and should not be relied upon to answer any specific questions concerning your own circumstances or for purposes of legal planning. For specific legal advice, please contact an Elder Law attorney.

Life, Liberty, and the Right to Die – Part I

Physician-assisted suicide is one of the most controversial yet important ethical issues related to Elder Law. It has been the topic of numerous attempted legislative acts, controversial court decisions, and heated debates held by people from all walks of life.

According to the American Medical Association’s Code of Medical Ethics, physician-assisted suicide occurs when a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform a life-ending act. As with any ethical or legal debate, there are always two sides to the argument.

On one side there are those who oppose physician-assisted suicide and believe that it is against a doctor’s role as a healer. Many also believe that it would be extremely difficult, if not impossible, to control and would pose serious societal risks. This is the “slippery slope” argument. This argument claims that legalized physician-assisted suicide will increase instances of undue influence and coercion among the elderly, poor, or those who live with a disability, and ultimately lead to euthanasia. The main arguments against physician-assisted suicide are that it comes with a risk of abuse, it jeopardizes physician integrity, and it is wrong to kill.

On the other side of the debate, there are those who support the death-with-dignity movement and prefer to call it “physician-assisted death.” These individuals believe that physician-assisted death provides a dignified option for the dying to control their own end-of-life care. The main arguments for legalization include promoting patient autonomy, mercy, and providing a legal means for physicians to fulfill their obligation to relieve suffering.

Most jurisdictions in the United States have prohibited physician-assisted death either with specific statutory provisions or judicial decisions. Several methods have been used when attempting to change the law. The constitutionality of the prohibitions have been challenged by two U.S. Supreme Court cases, Washington v. Glucksberg and Vacco v. Quill. On the state level, the Montana Supreme Court interpreted its constitution to allow physician-assisted death in the Baxter v. Montana case. There have also been state referenda aimed at legalizing physician-assisted death. This method has only been successful in Oregon and Washington thus far.

In Washington v. Glucksberg, 521 U.S. 702 (1997), the Supreme Court unanimously held that the Due Process Clause did not protect a right to assistance in committing suicide. In this case, the Court feared that if it declared physician-assisted suicide a constitutionally protected right, then the Court would start down the slippery slope to voluntary, and possibly involuntary euthanasia. In Vacco v. Quill, 521 U.S. 793 (1997), the Supreme Court ruled that a New York ban on physician-assisted suicide was constitutional, and preventing doctors from assisting their patients was a legitimate state interest that was within the state’s authority to regulate. This decision established that, as a matter of law, there was no constitutional guarantee of a right to die. Although these decisions were a major roadblock for the “death with dignity movement,” they did not place a federal ban on physician-assisted death. They merely allow states to prohibit it.

States still have the right to legalize physician-assisted death as evidenced by The Oregon Death With Dignity Act (Oregon DWDA), The Washington Death with Dignity Act (Washington DWDA), and the Montana Supreme Court’s interpretation of the Montana Constitution. In Baxter v. Montana, 354 Mont. 234 (2009), the Montana Supreme Court stated that, while the state’s Constitution did not guarantee a right to physician-assisted suicide, nothing in Montana Supreme Court precedent or statutes indicate that physician aid-in-dying is against public policy. This decision was a major success for the death with dignity movement because it allowed terminally ill patients to obtain lethal prescription medication from their physicians in Montana.

In 1997, Oregon voters affirmed physician-assisted dying as a legitimate medical practice under specific conditions and with very specific guidelines. These guidelines were designed to protect patients and doctors. The referendum resulted in the Oregon DWDA, which was upheld by the Supreme Court in Gonzales v. Oregon, 546 U.S. 243 (2006).

In Washington, the Washington DWDA was passed on November 4, 2008, and went into effect on March 5, 2009. This act gives terminally ill adults who are seeking to end their life the ability to request lethal doses of medication from their physicians. As with the Oregon statute, these terminally ill patients must be state residents who have less than six months to live.

There are a number of other states that have attempted to pass laws similar to those enacted in Oregon and Washington, but have ultimately failed. It seems many voters cannot get past the slippery slope argument and still fear that legalizing physician-assisted death may ultimately result in euthanasia. While these concerns may be valid, the way in which Oregon has successfully maintained its law for more than 14 years without sliding down the slippery slope is a great example for other states.

Part II of this article will discuss the death with dignity movement’s impact on our culture and alternatives to physician-assisted death.

Please feel free to email Eric Einhart at ericjeinhart@gmail.com or post any comments or concerns you may have.

Disclaimer: The information contained in this blog is not intended as legal advice and should not be relied upon to answer any specific questions concerning your own circumstances or for purposes of legal planning. For specific legal advice, please contact an Elder Law attorney.

Elder Law – It’s Complicated

In addition to attending law school full-time, I also work as a Law Clerk for Vincent J. Russo and Associates, P.C., an Elder Law firm in Westbury, New York. I work on a part-time basis throughout the school year and have been charged with everything from witnessing document executions, to conducting Medicaid audit trails, to filing petitions in Nassau County Surrogate’s Court. During the recent winter break I had the opportunity to help revise Vincent Russo’s legal practice book titled, New York Elder Law and Special Needs Practice.

The book, which is published by West and written by Vincent J. Russo and Marvin Rachlin, provides up-to-date resources covering a wide range of issues relating to New York Elder Law and Special Needs planning. It also discusses practice issues as they relate to New York and federal law. Throughout the past few weeks I have read and researched numerous statutes, case law and government regulations in order to write legal memos to Mr. Russo, verify citations, and help revise information that will appear in the 2012 edition of the book. At times the sheer volume of information was a bit overwhelming, but the legal geek inside me really enjoyed the work.

I enjoyed this work for many reasons, but mostly because it taught me something invaluable – Elder Law is complicated. It’s complicated for seniors. It’s complicated for adult children who want to take care of their aging parents. It’s complicated for the general public. It’s complicated for members of each branch of government. And I’m sure it’s even complicated for some attorneys. If it was not complicated then books like New York Elder Law and Special Needs Practice wouldn’t exist.

The reason why Elder Law is so complicated is because it is comprehensive. Elder Law not only includes a wide range of federal and state statutes, case law, and government regulations, but also unique categories of ethical and practical dilemmas. Additionally, scientific technology is constantly improving to expand the average life expectancy, which often results in even more unanswered questions for our elderly population.

It takes a true professional to successfully navigate through these issues and help clients plan for their future, or resolve an immediate crisis. Elder Law attorneys are often faced with unique issues like determining a client’s capacity, deciding whether to pursue a guardianship proceeding against their own client, dealing with inter-generational family dynamics, planning for long-term care, and end-of-life decision-making. It takes more than a keen knowledge of the law to resolve these issues. It takes tact, compassion and the ability to truly understand the needs of the elderly and individuals with special needs.

With the rise of the information age, I’m sure there are many people who believe that all the answers to their Eldercare and Elder Law issues can be found in a Google search. This strategy may avoid legal fees initially, but it can be extremely harmful and ultimately result in an immediate need for legal assistance in the future. Although there is no substitute to speaking with a qualified professional, I strongly believe that consumers should be well informed. This is especially true when the services relate to your own care or the care of someone you love.

When working with an Elder Law attorney or Eldercare professional, it’s a good idea to have some general knowledge about the relevant subject matter. A basic understanding of the law and industry jargon will help foster a more productive dialogue between professionals and clients. Many Elder Law attorneys are well aware of the benefits of an informed consumer and provide free seminars or webinars to educate the general public.

It is important to stay informed about updates in government benefits, healthcare laws or other issues that may affect the elderly or individuals with special needs. With this advice in mind, the following are some helpful links to websites that provide information about topics related to Eldercare and Elder Law:

Advance Directives:

• What are advance directives? – U.S. National Library of Medicine
• Healthcare Agents: Choosing one and being one – Caring Connections
• Your State’s advance directives form – New York Online Access to Health (NOAH)

Advocacy:

• Long-term care consumers – Long Term Care Community Coalition
• Low-income seniors – National Senior Citizens Law Center
• General – Center for Advocacy for the Rights and Interests of the Elderly (CARIE)
• Government resource center – USA.gov

Attorney Search:

• National directory of Elder Law attorneys – National Academy of Elder Law Attorneys (NAELA)
• National Directory of Elder Law Attorneys with objective ratings – Avvo

End-of-Life Care:

• What is end-of-life care? – U.S. National Library of Medicine
• How can I help with end-of-life comfort and care? – National Institute on Aging
• Are there caregiving resources available? – AARP
• What is Hospice Care? – Hospice Foundation of America

Housing Options:

• Assisted Living – Assisted Living Federation of America
• Eldercare Locator: Housing Options – U.S. Department of Health and Human Services (HHS)
• Find and compare nursing homes – Medicare.gov
• Government resource center – USA.gov
• Independent Living directory – Independent Living Research Utilization (ILRU)
• Nursing home resident rights – Medicare.gov
• Nursing home resource center – U.S. Administration on Aging

Long-Term Care Insurance:

• What is long-term care insurance? – American Association for Long-Term Care Insurance (AALTCI)
• What to consider before purchasing a long-term care insurance policy? – The Federal Long Term Care Insurance Program
• What are the health qualifications? – AALTCI
• What does long-term care insurance cost/cover? – HHS
• Types of government-sponsored long-term care insurance programs by State – HHS

Medicaid:

• Overview – Centers for Medicare and Medicaid Services
• Government resource center – Medicaid.gov

Medicare:

• Frequently Asked Questions – The Medicare Rights Center
• Government resource center – Medicare.gov
• Medicare handbook for 2012 – Centers for Medicare and Medicaid Services

Social Security:

• Overview – U.S. Social Security Administration (SSA)
• Frequently Asked Questions – SSA
• Office locator – SSA
• Resource Center – AARP

Veterans Benefits:

• Burial and Plot-Interment Allowances – U.S. Department of Veterans Affairs (VA)
• Copay information for 2012 – VA
• Dependents Indemnity Compensation for 2012 – VA
• Federal Benefits for Veterans booklet – VA
• Health benefits reference library – VA
• Improved Death Pension Rate Table effective 12/1/11 – VA
• Improved Disability Pension Rate Table effective 12/1/11 – VA
• Veterans Benefits by state – VA

Please feel free to email Eric Einhart at ericjeinhart@gmail.com or post any comments or concerns you may have.

Disclaimer: The information contained in this blog is not intended as legal advice and should not be relied upon to answer any specific questions concerning your own circumstances or for purposes of legal planning. For specific legal advice, please contact an Elder Law attorney.

An Age of Discrimination

Sometimes my family and I tease my 57-year-old father about his age. We have been known to lovingly comment on his graying hair, offer to help him cross the street, or ask him about his AARP membership. He usually laughs at these jabs and reminds us that we will also be his age one day. While these types of playful remarks may seem innocent enough, they could be considered age discrimination if they were made in a different setting.

Age discrimination can affect individuals of all ages, but it is most prevalent among the senior-citizen cohort. The U.S. Equal Employment Opportunity Commission (EEOC) defines age discrimination as treating someone (an applicant or employee) less favorably because of his or her age. Age discrimination, which often occurs in the work place, has recently become a widespread issue. Due to the weakened economy, many seniors are forced to either remain employed longer or return to the workforce just to make ends meet. According to the Department of Health and Human Services Administration on Aging (AoA), about 6.5 million Americans age 65 and over were in the labor force in 2009. These working seniors constitute approximately 4.2 percent of the U.S. labor force, including about 3.6 million men and 2.9 million women.

The problem of age discrimination in the work place usually arises when there is a troubled economy, because older workers typically bear the brunt of massive layoffs and workforce reductions. If the seniors who lost their jobs in an economic downturn are not able to retire, then they may be faced with hiring policies that discriminate based on age when they try to reenter the workforce. According to AARP, the number of unemployed workers age 55 years and older has increased by 330 percent over the last 10 years. This means that many older workers are now searching for jobs in a cut-throat market that often favors younger employees.

The EEOC claims there has been a 17 percent increase in the number of age-discrimination complaints filed since the economic downturn began in 2007. Despite this increase, age discrimination continues to go unreported because there is a lack of awareness about the law. Additionally, many older workers are more likely to forego a potential age discrimination claim to focus their efforts on finding a job. Before dismissing the option of filing a claim, it is beneficial to understand the types of age discrimination and the laws designed to protect against them.

Age discrimination may occur in the work place as a result of discriminatory employment policies, practices or harassment. It is unlawful to harass a person based on his or her age. Making offhanded remarks about a person’s age might seem like simple teasing, but it could be considered harassment if it occurs so frequently or is so severe that it creates a hostile work environment, or results in an adverse employment decision. The harasser can be the victim’s supervisor, a supervisor in another department, a co-worker, or even a customer. According to the EEOC, an employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on applicants or employees age 40 or older and is not based on a reasonable factor other than age.

There are many state and federal laws that prohibit age discrimination. Some of the most important laws that relate to age discrimination on the federal level are the Age Discrimination in Employment Act of 1967 (ADEA), the Age Discrimination Act of 1975, and the Americans with Disabilities Act of 1990 (ADA). These laws, combined with many state laws, make it illegal to discriminate based on age or disability.

The ADEA, which is enforced by the EEOC, protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, discharge, promotion, compensation, or privileges of employment. It applies to employers with 20 or more employees, including state and local governments, employment agencies and labor organizations, as well as to the federal government. ADEA protections include: apprenticeship programs, job notices and advertisements, pre-employment inquiries, and benefits. Employers may ask employees to waive their ADEA rights, but may only do so if the waiver is knowing and voluntary.

The Age Discrimination Act of 1975 prohibits discrimination on the basis of age in programs and activities that receive federal financial assistance. The Act, which is enforced by the Civil Rights Center, permits the use of some age distinctions and factors other than age that meet certain requirements.

The ADA was passed in 1990 to more fully protect approximately 43 million Americans with one or more physical or mental disabilities. The statute provides a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. The ADA often overlaps with age discrimination because many seniors suffer from a covered disability and may be able to bring multiple discrimination claims based on one incident.

These laws are powerful tools that can be used to help protect against discrimination in the work place. While it is important to stand up for your right to a discrimination-free work place, filing a discrimination claim against a current, former or potential employer can be a difficult decision to make. If you believe you or someone you know has suffered from age discrimination in the work place, please contact an Employment Attorney.

For more information about discrimination based on age or disability, visit the following links:

• AARP
• Administration on Aging
• Americans with Disabilities Act of 1990
• Employment Discrimination Law
• Equal Employment Opportunity
• How to File a Charge of Employment Discrimination
• National Legal Resource Center: Age Discrimination
• State Age Discrimination Laws
• U.S. Equal Employment Opportunity Commission
• Workforce 50

Please feel free to email Eric Einhart at ericjeinhart@gmail.com or post any comments or concerns you may have.

Disclaimer: The information contained in this blog is not intended as legal advice and should not be relied upon to answer any specific questions concerning your own circumstances or for purposes of legal planning. For specific legal advice, please contact an Elder Law attorney.

The Cost of Caring

It’s only natural to want to care for your parents when they are unable to care for themselves. In fact, one of the most well-known moral imperatives in the Judeo-Christian tradition is to honor your mother and father. But what if adult children cannot afford to care for their aging parents?

In the United States this moral imperative has become a necessity due to the increased aging population and lack of resources. Reliance on family support networks has become an integral part of our national healthcare policy, and demographic trends suggest an increased reliance on family caregivers in the future. The American Medical Association (AMA) estimates that 80 percent of community care is provided by family caregivers. As our aging population increases at an unprecedented rate, members of the Baby Boomer generation are often charged with the task of caring for their aging parents at a time when they should be planning for their own retirement.

According to the MetLife Mature Market Institute: Study of Caregiving Costs to Working Caregivers, approximately 9.7 million adult children over the age of 50 care for their parents. The study also states that the percentage of such caregivers has more than tripled throughout the past 15 years. This increase is significant because caring for elderly relatives often has a negative impact on the health and financial resources of the caregiver.

For some caregivers, the burden and stress associated with caregiving may lead to prematurely placing an elderly parent in a nursing home. Others may feel obligated to their caregiver roles and become opposed to outside assistance in order to avoid feelings of guilt or a sense of failure. Caring for an aging parent can be an emotional roller coaster, but there are ways to mitigate the effects.

Caregivers provide care for their elderly parents in many ways. The University of Michigan Health and Retirement Study (HRS) defines “basic care” as assisting an individual with personal activities like feeding, dressing, and bathing. These are commonly referred to as activities of daily living. Caregivers also tend to their parents’ “instrumental activities of daily living,” such as transportation, handling finances and shopping.

Many caregivers also provide “financial assistance,” which is defined by HRS as providing at least $500 of support to a parent within the past two years. The AMA estimates that 26 percent of caregivers spend up to 10 percent of their monthly income on caregiving activities for their aging parents. These costs seem like a drop in the bucket compared to the estimated total lost wages, pension, and Social Security benefits of these caregivers.

There are essentially four types of children who care for their aging parents: working and non-working daughters, and working and non-working sons. Caregiver daughters and sons are comparable in many respects, but caregiver daughters provide most of the basic care and some financial assistance, whereas caregiver sons typically provide mostly financial assistance and significantly less basic care. Working caregiver daughters are more negatively impacted than sons, both in terms of their ability to continue working and saving. However, caregiver sons usually suffer physical and/or mental health ailments more frequently than working or non-working caregiver daughters. This may be a reason why women are more likely than men to provide basic care.

According to the MetLife study, more than one-third of working caregivers either leave the workforce or reduce hours worked. Women are more likely to leave their jobs once they begin to provide care. Many working caregivers report missed opportunities for promotions, relocation, business travel, and education as workplace effects of providing care. By reducing their hours and/or leaving the workforce early, these caregivers often suffer financially due to lost wages, diminished Social Security benefits and private pensions.

The total estimated lost wages, pension, and Social Security benefits of these caregivers are almost $3 trillion. For women, providing care to elderly parents often results in an estimated total loss of $274,000 in wages and Social Security benefits. For men, the same total loss is approximately $233,000. These figures do not account for the additional loss of private pension savings. The ability to save could also be impaired by the additional out-of-pocket expenses that family caregivers often incur.

Caregivers are also subject to additional health risks. The AMA warns that caring for an elderly parent can be stressful and may contribute to serious illness and depression. Studies show that 16 percent of caregivers claim their health has worsened since becoming a caregiver, and about 50 percent of caregivers who care for someone with Alzheimer’s disease develop psychological strain.

The demands associated with caring for an elderly parent place caregivers at risk for psychological and physical problems, such as increased morbidity and mortality, family conflicts, chronic stress, and failure to meet one’s personal and emotional needs. The caregivers stress often manifests itself in burnout, self-neglect, excessive use of drugs or alcohol, and depression.

Despite the litany of financial and health ramifications often associated with being a caregiver, there are many ways to mitigate the negative effects and plenty of resources to help. Caring for an aging parent may seem like an impossible task, but with a strong support network and some planning, it can be done in a cost-effective manner.

One of the best ways to get organized and obtain a support network is to speak with an Elder Law attorney. I know there is an element of bias to this advice because I am a law student interested in practicing Elder Law, but it is good advice nonetheless. Legal issues are usually intertwined with many other eldercare issues, such as housing, finances, healthcare and end-of-life care.

Elder Law attorneys usually have a wealth of knowledge about eldercare and can refer other professionals to complement their services. An Elder Law attorney can also help create and implement an effective plan to make caregivers’ lives easier. This plan often includes Medicaid Estate Planning and creating advanced directives like a Health Care Proxy, Health Care Directive, Durable Power of Attorney, or Revocable Living Trust.

In an effort to alleviate some of the financial losses, caregivers may be entitled to tax deductions, or payment for their services. Most states offer programs that use a Medicaid waiver to give federal payments to family caregivers for their services. Also, if an elderly parent has a Long-term care insurance policy, there is a chance family caregivers can get paid for their services. Some plans offer cash benefits that let the policyholder spend a specified amount of money each month on in-home assistance. Although most plans do not offer this option, it is worth investigating.

Some caregivers may also claim their elderly parent as a dependent on their income tax return. The elderly parent does not need to live with the caregiver, but the caregiver must provide more than 50 percent of the parent’s basic living expenses. Many out-of-pocket costs caregivers often incur may be also eligible for some tax deductions and credits.

Now comes the reality check. An unhealthy caregiver is an ineffective caregiver. In fact, the AMA claims that an unhealthy caregiver is more likely to prematurely place an aging parent in a nursing home. It is extremely important for caregivers to get regular check-ups with their doctors and to take care of themselves. The AMA also suggests that caregivers create partnerships with their parents’ physicians in order to get medical advice and to learn how to manage symptoms of dementia. This will let the caregiver know that he or she is not alone and hopefully help reduce care-related anxiety.

For more information and resources visit the following links:

• AARP
• Alzheimer’s Association
• American Medical Association
• Caregiver Resource Center
• Elder Locator
• Family Caregiver Alliance
• Health and Retirement Study
• Long Term Care Insurance
• MetLife Mature Market Institute
• National Academy of Elder Law Attorneys
• National Alliance for Caregiving
• National Resource Center for Participant-Directed Services

Please feel free to email Eric Einhart at ericjeinhart@gmail.com or post any comments or concerns you may have.

Disclaimer: The information contained in this blog is not intended as legal advice and should not be relied upon to answer any specific questions concerning your own circumstances or for purposes of legal planning. For specific legal advice, please contact an Elder Law attorney.

A Crime of the Times

Who comes to your mind when you hear or read the words “senior citizen?”

Personally, the words “senior citizen” evoke a memory of my grandfather teaching me how to check the engine oil in my first car. I’d like to think those words remind most people of an elderly loved one. For those who may not have grown up with elderly relatives, maybe the image of a former teacher or friendly neighbor comes to mind. Regardless of the person you envision, what’s important is that you think of a person – not a target.

Last week New York County District Attorney Cyrus R. Vance, Jr. hosted the first-annual “Thanks to New York Seniors” Breakfast and Seminar held at New York Law School. During the seminar portion of the event, DA Vance announced new initiatives designed to prevent and more effectively prosecute elder abuse. This event inspired me to reflect on this growing problem.

Elder abuse is a growing epidemic that not only affects seniors from all walks of life, but also society as a whole. Each state has its own definition of elder abuse with corresponding laws designed to prosecute abusers and protect potential victims. Seniors can be abused in a number of ways, including physically, sexually, emotionally, and financially. I have never encountered or detected signs of any of the first three forms of elder abuse, but unfortunately I have known several seniors who fell victim to financial abuse and exploitation.

My first personal experience with elder financial abuse and exploitation occurred when my grandmother was an attempted target. She received an unsolicited telephone call from a fraudster who impersonated a Canadian police officer. The man told my grandmother that one of her grandsons was arrested in Canada and needed her help. Then he instructed her to wire him $3,000 to post bail. Fortunately, her emotions did not get the better of her and she told the fraudster she needed to contact a lawyer before taking any further action.

Although scams are attempted on people of all ages, the elderly have become a favorite target in recent years. Many seniors are victimized by scams just like the one attempted on my grandmother, and the consequences are devastating.

According to research conducted by the MetLife Mature Market Institute (MMI) and National Committee for the Prevention of Elder Abuse (NCPEA), seniors throughout the United States lose more than $2.6 billion annually as a result of elder financial abuse and exploitation. This alarming figure is an unfortunate reality that will only increase as our senior citizen population grows in the decades to come. Even more alarming than the amount of financial exploitation are the relationships the culprits often have with their elderly victims. The same research indicates that family members and caregivers are the wrongdoers in approximately 55 percent of the cases.

Information found on the Federal Bureau of Investigation (FBI) website suggests elder financial abuse and exploitation is an invisible problem for our society because it usually occurs behind closed doors. The research claims many seniors are typically less likely to report a fraud because they don’t know where to report the financial abuse, are too ashamed of having been scammed, or are not even aware they have been scammed. In addition, elderly victims may not report financial abuse and exploitation because they are concerned that relatives may think the victims no longer have the mental capacity to take care of their own finances. Most abusers know about these roadblocks to justice and use them to their advantage.

As millions of Americans continue to struggle financially, the temptation to target the elderly will only increase. It is important to take steps to prevent these abuses. After learning about the innovative plans DA Vance has to combat elder abuse, I thought of a simple method to assist the effort. I call it the Preach-Protect-Prosecute Plan.

Preach – I mean this literally. Spread the word about elder financial abuse and exploitation. Once these abuses are common knowledge then they will be easier to detect and therefore prevent. You can spread the word by talking about this issue with family members, friends, colleagues and neighbors. Posting information about the issue on social networking websites, like Facebook, Twitter, LinkedIn and Google+, is also an easy and effective way to spread the word.

Protect – I think the most practical way to protect the seniors we care about is to spend time with them and learn about what is going on in their lives. It is important to let them know it is okay to talk about any potentially abusive acts they might have encountered. If we inform seniors about how frequently these abuses happen to others, then they may not feel embarrassed about being victims themselves, and may become more willing to report the abuse. It’s also a good idea to remain alert for signs of elder financial abuse and ask all those who interact with your loved ones to do the same. This will create more opportunity for detection while acting as a deterrent to potential abusers.

Prosecute – There are federal and state laws that punish individuals and institutions that engage in elder financial abuse and exploitation. It is important to take advantage of these laws by reporting signs of elder abuse. There are also many state and national watchdog organizations that advocate for seniors and provide information about elder abuse prosecution.

If you, or a senior you know, have experienced elder financial abuse, call your local police department to report the issue as soon as possible. Once you have reported the incident, immediately preserve any evidence that might help law enforcement investigate the case. One way to do this is to make a written statement of the events that took place while it is still fresh in your mind. It is also helpful to keep an orderly file of any relevant financial documents (e.g. images of checks, credit card statements, bank account and brokerage statements).

There are a number of great organizations that provide information about the various forms of elder abuse. For more information about elder financial abuse and exploitation visit the following links:

• AARP
• The AGS Foundation for Health in Aging
• Center for Elders and the Courts
• Elder Financial Protection Network
• National Adult Protective Services Association
• National Committee for the Prevention of Elder Abuse

Please feel free to email Eric Einhart at ericjeinhart@gmail.com or post any comments or concerns you may have.

Disclaimer: The information contained in this blog is not intended as legal advice and should not be relied upon to answer any specific questions concerning your own circumstances or for purposes of legal planning. For specific legal advice, please contact an Elder Law attorney.

Beating the Banker Blues

I’ve got a confession to make.

I used to be a banker.

I wasn’t the kind of hotshot investment banker targeted by the Occupy Wall Street protesters. I was just one of those Average Joes at your local branch. But, given some of the comments I’ve heard attorneys and professors make about branch bankers, I don’t know what’s worse – being a member of the 1% or the guy who opens your checking account?

After speaking with law professors and attorneys who teach and/or practice in the areas of Elder Law, Trust and Estates and Special Needs Planning, I’ve heard several complaints about branch bankers. Initially I defended my former profession and colleagues, but once I learned about the unique challenges many seniors and individuals with disabilities face when dealing with local banks I changed my tone.

Senior citizens and individuals with disabilities have more sophisticated frustrations with banks and their employees than the average customer. The average customer might complain about waiting in a long line, being inundated with marketing materials or getting charged fees for services that used to be free. Senior citizens and individuals with disabilities experience those frustrations and more. They often find their efforts to conduct business stifled by bank policies and bank employees’ ignorance.

Many seniors and individuals with disabilities do not have the mental or physical ability to tend to their finances, so they execute a Power of Attorney (POA). This legal tool allows them to authorize a trusted person to conduct business on their behalf. Most bankers are usually unfamiliar with this document and falsely believe that an internal form the bank provides is a necessary addition to the POA. In addition, many seniors who have a diminished mental capacity may be more easily influenced by recommendations made by bank employees (who usually lack a legal education). These recommendations could have harmful legal consequences. Some seniors might also require more administrative services than the average bank customer, especially if they need to include records of financial transactions with their Medicaid applications.

It is possible to avoid many of these frustrations if you pay private banking departments to handle your finances and cater to your every whim. But for seniors and individuals with disabilities who rely on a limited fixed income, the local branch – and the frustration it may bring – is their only banking option.

At this point in the discussion I’d like to take a second to set the record straight. Most bank employees do not act this way because they are incompetent or bad people – they are just unfamiliar with the law and afraid to lose their jobs. As a former banker, I think the best way to overcome what I call the “Banker Blues,” is to first understand the reasons behind the actions (or inactions) of bank employees, and then work with them to form productive relationships. Here are a few examples of how to do this:

Banker Blues: Two forms of I.D. please

Throughout my time in banking every manager I encountered emphatically impressed upon me the mantra, “No information without identification.” As a result of this mantra most bankers instinctively deny requests for account information made by customers’ family members, friends or attorneys. While this is an important security measure under normal circumstances, it can be just another hurdle to jump if you have the appropriate legal authorization and need to conduct business.  Bank management tends to push the notion of “no information without identification” to the point where any request out of the ordinary forces many bankers to react in a learned behavioral pattern rather than with an open mind. What’s more, there is a fear of losing your job lurking behind the mantra. So this issue is really just a case of the bank employee overprotecting the customer’s interests in order to protect his or her own.

Suggestion: Find a Go-To-Banker

The best way to resolve this is a fairly practical one. Find a bank employee (or manager) with whom you feel comfortable, communicate to him or her what you want to do and explain why you have the right to do it (i.e. show them the authorizing documentation). Then let the banker know that you appreciate the help and want to make him or her “Your Go-To-Banker” from now on. I recommend exchanging business cards with the banker or sending a follow-up email. This will help prevent going through the same song and dance the next time you or one of your clients have a similar request. This sounds a lot easier said then done, right? It may be, but I know from experience that it works. If you are patient and appreciative, many bank employees are more than happy to take the time to listen, or at least call the legal department to verify your paperwork.

Banker Blues: False information

Recently an Trusts and Estates attorney told me that many distributees she speaks with are shocked to discover that some assets will not pass outside of probate. She said the most common reason for this misconception is that “some banker” told the decedent that by opening a particular account any funds put into it would skip probate.

Suggestion: Knowledge is power

This is a difficult situation because sometimes this is willful ignorance on the banker’s part. But often, bank employees honestly believe what they are telling the customer is “banking advice,” and that it is their job to provide it. One solution could be for attorneys to give educational seminars to local bank employees informing them about basic probate and estate tax concepts. While this might be a possible referral source, it could also be time-consuming and expensive. The best way to avoid the issue is to explain to your clients that bankers are not lawyers and should not give Estate Planning advice.

Banker Blues: Bottom of the to-do list

One of my first responsibilities as a law clerk was assisting attorneys with Medicaid applications by conducting financial audit trails. This entails spending hours looking over financial documents for transfers of assets that could trigger a penalty period. The most frustrating aspect of this responsibility was not the tedious investigation, but waiting for the banks and brokerage firms to provide the necessary financial statements.

Often when a customer asks a banker to print out multiple financial statements or images of cashed checks it is a task that gets put at the very bottom of the to-do list. It could take multiple requests before the banker completes the task. This is unfortunate, but true.

The reason for this is primarily economic. Many bankers are paid incentives based on sales production. So if the task you are asking a banker to complete doesn’t have the potential to result in a sale or profitable relationship then there is no incentive to make it a priority. Of course this back-burner strategy is never the bank’s actual policy or the banker’s intention, it’s just the unfortunate reality the sales incentives create.

Suggestion: Do it yourself or ask the “right person”

The bad news is you are probably better off doing the task yourself. But the good news is online banking enables you to complete many of these tasks with the click of a button. Once you set up the online banking feature, any authorized individual can go to the bank’s website to research transactions, print out 1099s, monthly bank statements and even images of checks paid.

There is also a solution for those who are not computer savvy or would rather speak with a live person. Just ask the right bank employee to complete the task. Before you ask the first branch banker you encounter to complete a service-related task, find out who usually handles customer service. Or you can request that the branch manager personally help you. Either way, most sales-oriented bankers will be happy to point you in the right direction.

The bottom line is that most bankers are intelligent and capable professionals who simply have competing economic interests and a limited knowledge of the law. So, the next time you are about to get frustrated with a banker just remember, there’s always a way to beat the Banker Blues.

Please feel free to email Eric Einhart at ericjeinhart@gmail.com or post any comments or concerns you may have.

 

Disclaimer: The information contained in this blog is not intended as legal advice and should not be relied upon to answer any specific questions concerning your own circumstances or for purposes of legal planning. For specific legal advice, please contact an Elder Law attorney.

Creating A Dialogue

Hello. My name is Eric Einhart and I am a third-year law student at New York Law School where I will participate in the school’s Elder Law Clinic during the Spring 2012 semester.  In addition to attending law school, I work as a law clerk for the Elder Law firm Vincent J. Russo and Associates P.C. in Westbury, New York. After graduating I plan to practice Elder Law and Special Needs Planning in the greater New York City area because I strongly believe in protecting the rights and dignity of senior citizens and individuals with disabilities.

One of the most important lessons I have learned in law school and in my experiences working in an Elder Law firm is that the practice of law is neither an art nor a science – it is an evolution. The law, and how society perceives it, is constantly changing through new legislation, court decisions, academic theories and cultural views. You either adapt to the changes or suffer the consequences.  As we progress through the second decade of the 21st Century our senior citizen population is growing at an unprecedented rate, with the fastest growing segment of the U.S. population comprised of individuals over 85-years old. This population boom will force our legislatures, courts and communities to confront a myriad of legal and ethical issues related to the elderly.

I sincerely believe sharing information about the issues affecting the elderly and their families is imperative. By informing senior citizens, their families, and other professionals about these legal and ethical issues we can, at the very least, create a dialogue that will hopefully result in effective resolutions.

I am writing this blog to share my experiences learning about Elder Law and Special Needs Planning. My hope is that by doing so I will assist in creating a dialogue about the legal, ethical and practical issues related to the elderly and individuals with disabilities.

Please feel free to email Eric Einhart at ericjeinhart@gmail.com or post any comments or concerns you may have.

Disclaimer: The information contained in this blog is not intended as legal advice and should not be relied upon to answer any specific questions concerning your own circumstances or for purposes of legal planning. For specific legal advice, please contact an attorney.