When someone is unable to manage his or her own affairs, a guardian or conservator may be appointed. The person who is unable to manage his or her affairs is termed the ward. A person appointed to protect the ward’s health and well-being is a guardian; a person appointed to protect the ward’s financial affairs is a conservator.
A guardian is responsible for making sure the ward is healthy and safe. But what happens when the ward disagrees with the guardian’s decisions regarding who the ward can interact with? A recent case in Minnesota sheds some light on this topic.
In this case, Margaret was the ward. Her daughter, Tammy, was her guardian. Tammy attempted to obtain a harassment restraining order (HRO), on Margaret’s behalf, against Richard. Richard and Margaret had known each other for some ten years, having a romantic relationship on and off during that time. Tammy contended that Richard and Margaret’s relationship involved drugs and alcohol, that Richard had made Margaret suicidal, and that Margaret was fearful and grinded her teeth due to the stress brought on by Richard.
Margaret objected to the HRO, stating that she wanted the visits from Richard. Margaret obtained her own representation in the matter. Her attorney argued to the court that Margaret’s guardian could not deny Margaret the “right to visit with persons of her choice as guaranteed under the bill of rights”, pointing to Minn. Stat. § 524.5-120(10):
524.5-120 BILL OF RIGHTS FOR PERSONS SUBJECT TO GUARDIANSHIP OR CONSERVATORSHIP.
The person subject to guardianship or person subject to conservatorship retains all rights not restricted by court order and these rights must be enforced by the court. These rights include the right to:
(1) treatment with dignity and respect;
(2) due consideration of current and previously stated personal desires and preferences, including but not limited to medical treatment preferences, cultural practices, religious beliefs, and other preferences and opinions in decisions made by the guardian or conservator;
(3) participate in decision making about and receive timely and appropriate health care and medical treatment that does not violate known preferences or conscientious, religious, or moral beliefs of the person subject to guardianship or person subject to conservatorship;
(4) exercise control of all aspects of life unless delegated specifically to the guardian or conservator by court order;
(5) guardianship or conservatorship services individually suited to the conditions and needs of the person subject to guardianship or the person subject to conservatorship;
(6) petition the court to prevent or initiate a change in abode;
(7) care, comfort, social and recreational needs, employment and employment supports, training, education, habilitation, and rehabilitation care and services, within available resources;
(8) be consulted concerning, and to decide to the extent possible, the reasonable care and disposition of the clothing, furniture, vehicles, and other personal property and effects of the person subject to guardianship or person subject to conservatorship, to object to the disposition of personal property and effects, and to petition the court for a review of the guardian's or conservator's proposed disposition;
(9) personal privacy;
(10) communicate, visit, or interact with others, including receiving visitors or making or receiving telephone calls, personal mail, or electronic communications including through social media, or participating in social activities, unless the guardian has good cause to believe restriction is necessary because interaction with the person poses a risk of significant physical, psychological, or financial harm to the person subject to guardianship, and there is no other means to avoid the significant harm. In all cases, the guardian shall provide written notice of the restrictions imposed to the court, to the person subject to guardianship, and to the person subject to restrictions. The person subject to guardianship or the person subject to restrictions may petition the court to remove or modify the restrictions;
(11) marry and procreate, unless court approval is required;
(12) elect or object to sterilization as provided in section 524.5-313, paragraph (c), clause (4), item (iv);
(13) at any time, petition the court for termination or modification of the guardianship or conservatorship, and any decisions made by the guardian or conservator in relation to powers granted, or for other appropriate relief;
(14) be represented by an attorney in any proceeding or for the purpose of petitioning the court;
(15) vote, unless restricted by the court;
(16) be consulted concerning, and make decisions to the extent possible, about personal image and name, unless restricted by the court; and
(17) execute a health care directive, including both health care instructions and the appointment of a health care agent, if the court has not granted a guardian any of the powers or duties under section 524.5-313, paragraph (c), clause (1), (2), or (4). 
(emphasis added)
The district court granted the HRO against Richard; Richard appealed. The appeals court reversed, stating that the district court didn’t adequately consider Margaret’s rights, as outlined in her bill of rights, when determining the matter. The appeals court explicitly stated that “courts have an affirmative duty in any proceeding involving a person subject to guardianship to examine the bill of rights, determine the rights retained by the person in question, and enforce those retained rights.”
Indeed, the bill of rights issue or argument doesn’t have to be raised by any party —the court should automatically consider the ward’s rights in such cases. As such, the case was remanded for further consideration.

Beware of Senior Scams!
     There are many, many good people in the world.  Some strangers would give you the shirt off their back, folks who volunteer their time to help others in need, and those who hold the door open for you as you are entering a store.  Especially in our tumultuous times, it is important to be kind and generous to our fellow neighbors.  However, with the good must come the bad.  There are scammers out there who prey on various populations, usually ones who are more vulnerable.  Beware of senior scams!
What are some senior scams to be aware of?
     The ne’er-do well must somehow get in contact with you in order to scam you.  This would usually be via telephone or the internet, but it can also be in-person contact.
  ​1. Watch out for fake Facebook friends. The Better Business Bureau reported that a government grant scam is prevalent on Facebook.[1]  The scammer makes a fake Facebook profile that looks like it belongs to a friend of yours.  The “friend” sends a message to you stating that the “friend” received a government grant of some sort.  Of course, to receive the government grant, you must make an initial investment or pay an application fee. 

• Don’t believe every Facebook profile is real, even ones that look like they belong to a real-life friend.  
• All legitimate federal grants are listed on www.grants.gov.
• Government agencies will not communicate with you via social media. 

   2.  Watch out for scam emails, fake pop-ups, and fake bank transfers.Some scammers will send out an email stating that you have a virus or other malware on your computer. In one instance[2], the victim was contacted by a company called Premium Tech Support to clean up his computer. The victim was quoted a price of $599, which he paid. The company subsequently told him they accidentally deposited almost $80,000 into the victim’s bank account and asked for the money back. The victim transferred the funds back to the company, only to realize that the initial transfer of funds from the company into the victim’s bank account was phony.
 
     In another instance[3], the senior had a pop-up window appear on their computer that informed them they had a virus. The pop-up asked for the senior to contact customer support to fix the issue. Once the senior called customer support, a representative took control over the victim’s computer to remove the non-existent virus. Paying to remove the non-existent virus was one part of the scam, but then the scammer also had access to sensitive information.  

• Do some research to ensure you are working with a reputable business.  
• If you think there has been a banking error of some sort, contact the bank to determine the real facts.
• Don’t give a third-party access to your computer unless you know for sure it is customer support from a company that you contacted. 

 
   3. Watch out for home repair scams Home repair scams can come in many forms.  The first thing a scammer can do is quote you one cheaper price for work and then demand much more after it is finished. Another way the scammer can operate is to do repairs that you never requested or agreed to. Or, the scammer can impersonate a building inspector and demand immediate repairs. Some scammers will up their fear game by telling you that they will put a lien on your home if you don’t agree to what they offer.     

• If a stranger comes to your home seeking to do repairs, tell them you want to get other estimates. This will give you time to see if the company is whom they say they are. Legitimate companies shouldn’t have a problem with you getting other estimates.
• If you aren’t interested in the product or service, then don’t feel bad saying no. It is your choice!
• If you tell the scammer “no,” then they will oftentimes try to throw in a last-minute “deal.” Please, don’t fall for it!

 
   4. Watch out for romance scams Seniors are vulnerable to loneliness, especially in light of COVID-19 restrictions.  Since you may not be able to go to the places you would normally go to meet people, you may turn to the internet to find companionship. And there are many legitimate websites to find love! However, some scammers will create fake dating profiles and try to lure you into a relationship.  Then, the scammer can ask for money, sensitive banking information, or gift cards.  
 
    In one instance[4], the scammer talked the senior into doing an illegal act.  The senior went to China to meet her paramour, whom she had met online.  He was mysteriously unavailable to meet when she arrived, but some of his “friends” asked her to take a backpack full of the paramour’s clothing back to Australia. The backpack contained drugs, unbeknownst to the senior. After taking the backpack through airport security, she was arrested and sentenced to death.  

• Don’t rush into any relationship.
• If the person cannot be available to video chat, they may not be who they say they are.
• Do an internet search of the individual’s name and profile pictures.  
• If an in-person meeting occurs, do so in a public place.
• Definitely don’t send any money to someone unless you are confident it isn’t a scam. 

 
Why don’t seniors report being scammed?
Unfortunately, many senior scams go unreported.  Between 2 and 3 million seniors get scammed every year.[5]  However, on average, only 1 in 44 cases is reported.[6]  But why?  One reason is that many seniors are embarrassed that they were scammed. They think that others will think them unfit and may even “put them in a home.”  Another reason financial exploitation isn’t reported is the perpetrator is a family member, and the senior doesn’t want to see them get in trouble.  
Where can you go for help?
If you or a loved one thinks they have been the victim of a scam, there are ways to get help.  You can call your local police department or call 1-800-677-1116 to reach the Eldercare Locator. This government-sponsored national resource line helps folks find contact information for Adult Protective Services in their area. Here are some more resources to keep handy:
FBI’s Internet Crime Complaint Center
Federal Trade Commission
National Institute of Justice
National Adult Protective Services Association


[1] https://www.bbb.org/globalassets/local-bbbs/cleveland-oh-78/cleveland_oh_78/senior-alerts/government-grant-scammers-using-your-friends-facebook-profiles.pdf

[2] https://www.bbb.org/globalassets/local-bbbs/cleveland-oh-78/cleveland_oh_78/senior-alerts/brook-park-man-loses-$80000-in-tech-support-scam.pdf

[3] https://www.bbb.org/globalassets/local-bbbs/cleveland-oh-78/cleveland_oh_78/senior-alerts/fraudsters-charged-in-$10-million-tech-support-scheme.pdf

[4] https://www.bbb.org/globalassets/local-bbbs/cleveland-oh-78/cleveland_oh_78/senior-alerts/from-love-to-jail_-romance-scams-and-money-mules.pdf

[5] https://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2017.303821

[6] https://www.napsa-now.org/get-informed/exploitation-resources/
​

​Copied from
http://www.wnylc.com/health/news/85/#lookback

Because the Public Health Emergency due to the Pandemic was extended the State Department of Health on January 21, 2021, the look-back period for Community Medicaid has likely been extended to July 1, 2021.

• The State Dept of Health unofficially informed the NYS Bar Association today that the new "lookback" is not likely to be implemented until July 1, 2021.  This is because of protections enacted under the FFCRA Families First Cares Act,  which prohibits states from  restricting eligibility until the quarter following the end of the Public Health Emergency (PHE).  The Public Health Emergency  was just  extended  on Jan. 21, 2021, for 3 months to April  21, 2021.   Therefore, NYS cannot begin requiring the lookback and imposing transfer penalties until the following quarter, which begins July 1, 2021.
• Once the lookback is implemented, assets transferred since Oct. 1, 2020 will still be subject to the lookback.   If the extension to July 1st is confirmed,  if someone transferred assets after Oct. 1, 2020, they have extra time until July 1, 2021 to submit an application seeking eligibility for home care or the Assisted Living Program, with no lookback or transfer penalty.  Check back to this website for news to see if this extension is confirmed.  

When your loved one enters a nursing home or assisted living center, you expect them to be safe.  You expect them to get the care they need in a peaceful environment. But do you ever wonder what happens when you aren't there? Do you wonder if their care declines when no one is looking? Especially in light of the visiting restrictions and the inevitable increased stress of staff that COVID-19 has imputed upon residential care facilities, do you worry about your loved one's care?
Indeed, around 5 million nursing home residents are abused each year.[1]  Elder abuse can come in many forms.  According to the National Center for Victims of Crime[2], the breakdown of types of complaints about elder abuse is as follows:

• 28% – Physical abuse
• 22% – Resident-on-resident abuse (physical or sexual)
• 19% – Psychological abuse
• 15% – Gross neglect
• 8% – Sexual abuse
• 8% – Financial exploitation

How can you better ensure your loved one isn't suffering from these types of abuse at a trusted care facility? Most folks have probably heard of a nanny cam – a camera set up to see how the babysitter treats your kids while you are away.But in recent years, granny cams have also become popular. This is a camera that is set up in your loved one's room at the nursing home or assisted living facility.Knowing what's going on behind closed doors could give the senior's family and friends peace of mind.  But are granny cams legal? If so, are there any requirements that you provide the nursing home notice that the camera is there? Are there any concerns about granny cams? 
One concern with granny cams is privacy. This entails the resident's privacy that is subject to the granny cam and the confidentiality of any other residents in the room. Would you want your every move in your residence recorded? Does having a granny cam ruin or distort the intended home-like atmosphere of the facility? Knowing that they are continually being recorded may make some residents feel uncomfortable or stressed. 
Another concern is the security of the footage. Undoubtedly, private and vulnerable moments are captured on video, like a resident dressing or completing personal hygiene tasks. What are the responsibilities of the owner of such footage? Can it be stored for a period of time? Also, the video feed must be protected from hackers. Imagine the horror of seeing your loved one's private footage online or exploited!  
The obvious benefit to having a granny cam installed is that you can monitor for abuse or crimes.  Is the resident getting the care they need and deserve?  Are their valuables safe? The footage from granny cams can be invaluable in prosecuting violations.  You can also watch the footage for cues on how to make your senior healthier or more comfortable, such as watching for bad sleep patterns or noticing your loved one doesn't enjoy visits from a particular neighbor.
Granny cams are a legal minefield
Hidden cameras are perfectly legal in the privacy of your own home. You can monitor your kids after school or spy on your child care provider (“nannycam”). But it’s a different story in a nursing home or assisted living center. There are two main issues with cameras in elder care facilities:

• Privacy – Cameras can serve as a deterrent to abuse or evidence of mistreatment. But you are also spying on your loved one in vulnerable or embarrassing moments. Even if your family member consents, their roommate may not. Being videotaped while working also takes a toll on morale and retention of caregivers.
  
  
• Liability – Owners, administrators and insurers of elder care facilities have little incentive to allow cameras inside patient rooms. A video recording is more likely to provide evidence of abuse or neglect than it is to disprove bogus lawsuits. If the recording accidentally captures another resident or reveals certain medical treatments, it could violate the HIPAA regulations on disclosing patient data.

What does New York law say about granny cams?
Ten states have passed laws that authorize spouses and families to put videocams in the rooms of nursing home/assisted living patients. New York does not specifically legalize or ban granny cams.
New York is a one-party consent state for wiretap laws. Secret recordings are legal as long as least one of the parties is in the know. But that only applies to phone calls or audio recordings, not hidden cameras. Which leaves granny cams in limbo.
If you do decide to install a camera in your loved one’s room, it might be wise to:

• Inform the facility you are setting up the camera. Some facilities expressly forbid granny cams.
• Obtain the written consent of any roommates.
• Post a sign indicating to staff and visitors that the room is under video surveillance. The mere presence of a camera is a powerful deterrent.

If you are denied permission, the other option is to notify the facility and contact state authorities if you suspect abuse. Nursing homes are mandated to report and investigate complaints, and law enforcement may authorize surveillance to catch the offenders in the fact.
As there is no federal law banning or allowing granny cams, some states have laws on the books regarding their use, such as Illinois, Kansas, Louisiana, New Jersey, New Mexico, Maryland, Oklahoma, Texas, Utah, Virginia, and Washington.  Minnesota was the latest to join the group; their law became effective as of January 1, 2020.  
The new Minnesota law dictates that a family member can install a granny cam in a loved one's room at a nursing home or assisted living facility. However, consent must be obtained from any other residents living in the room, and the nursing home must be notified that the camera is there within two weeks of installation. Finally, signs must be posted in the facility indicating that electronic monitoring may be occurring.  The Minnesota law came on the heels of a case involving the use of a granny cam.  A resident's family installed the camera, and the facility objected to its use. The Minnesota Department of Health subsequently ruled that the facility must allow the installation of the video camera. 
The Kansas granny cam law is more liberal, as it applies not only to nursing homes but to all "adult care homes", which includes nursing homes, care facilities for mental health, intermediate care facilities for those with intellectual disabilities, residential health facilities, boarding care homes, assisted living facilities, and adult daycare businesses. 
Recently, granny cams were litigated in Georgia. In late December 2020, in the Dempsey case, the Supreme Court of Georgia ruled that a hidden granny cam was legal, and the footage could be used in the criminal case against the resident's caregivers. In this case, a WWII Veteran was residing in a nursing home when he told his son that "strange things" were happening.  The son installed the granny cam inside of a clock radio.The camera recorded some horrendous events.  The nursing home staff failed to respond to repeated calls from the Veteran's help call button. The Veteran kept exclaiming that he could not breathe; he subsequently died. The staff was criminally charged and objected to the granny cam footage being used as evidence, as they did not consent to the granny cam being installed.
Georgia has a law that says you can't record another person's activities in a private place unless there is consent.  However, the Georgia Supreme Court said that the case fell into an exception to the law: the law allows recordings by those who own or occupy the property. Since the Veteran had the legal right to occupy his part of the room, he could record that area without the consent of the caregivers. The granny cam, in this case, led to a caregiver being charged with felony murder. 
New Jersey believes in the use of granny cams so much they will allow you to borrow one for free!  The Safe Care Cam Program was instituted in 2017 and was initially established for camera use for in-home health care.  It became so popular, the program expanded to include nursing homes and assisted living facilities. Former New Jersey Attorney General Chris Porrino stated, "At a time when the home healthcare industry is experiencing explosive growth, and the issue of patient abuse has become a national concern, New Jersey must do everything it can to ensure the safety of its most vulnerable citizens – the elderly and disabled."  
Suppose a state doesn't have a statute explicitly authorizing the use of granny cams, and the act of recording doesn't fall into an exception to another related law. In that case, it may be a crime to install the granny cam in a resident's room.  Granny cams could violate nudity laws, privacy laws, wiretapping and electronic surveillance laws, or HIPAA laws.  It is important to know your actions are legal before taking steps to install a granny cam.  This is why it is vital to consult an elder law attorney. 
What are some other ways, besides installing a granny cam, to better protect your beloved senior while they are residing in a care facility?  

• Make friends with the staff.  If you treat them well and they care for you, they may be apt to go the extra mile for your loved one.
• Let the staff know what type of care your loved one needs.  Make sure they know what your standards are.
• Talk with administrators about their hiring and employee retention policies.  Are criminal background checks conducted on an ongoing basis?  What certifications or educational requirements do staff have?  
• Visit often and at various times.  If the staff knows you may pop in at any minute, they'll be on their toes! Can't visit due to COVID-19?  Make phone or Zoom calls, or visit a resident by going to their window.
• Communicate with your loved one.  Ask them a specific question about their care and property.  Let them know they can always come to you with concerns.  
• Talk with other residents if they are willing.  What do they notice going on at the facility? Do they have any concerns about the staff?

With the use of technology continually on the rise, the usage of granny cams likely won't be quelled anytime soon.  In fact, more states will likely put laws on the books to address their use.  And who knows what technology the years to come will bring –possibly better surveillance technology with enhanced security.  Hopefully, this means better care for seniors in care facilities.  Cameras are just one tool against elder abuse
Not all abuse is captured on tape. It often occurs in bathrooms or other areas of the nursing home, away from security cameras. The best way to keep tabs on your loved one is to visit them frequently (but at random times) and to be vigilant for any change in their appearance, health or demeanor.
If your loved one shows signs of physical abuse, sexual assault or medical neglect – with or without video evidence --  talk to an Elder Law attorney about the possible solutions.

 
 
Sources:  
https://www.heraldmailmedia.com/news/nation/granny-cam-footage-allowed-under-georgia-supreme-court-ruling/article_fb36c59a-d14c-5b33-8244-ee7bc09d90c9.html
https://www.nursinghomeabuse.org/nursing-home-abuse/statistics/
https://victimsofcrime.org/
https://www.carrcarr.com/granny-cam-laws-seek-to-protect-against-elder-abuse/
https://health.usnews.com/health-care/for-better/articles/should-you-use-a-granny-cam-to-monitor-a-loved-ones-care
https://www.mprnews.org/story/2019/08/01/minnesotas-new-granny-cam-law-takes-effect-on-thursday  
https://seniorjustice.com/new-jersey-provides-free-nanny-cameras-nursing-home-residents/
https://www.sakkascahn.com/blog/2019/01/new-york-law-neither-authorizes-nor-prohibits-granny-cams.shtml

[1] https://www.nursinghomeabuse.org/nursing-home-abuse/statistics/

[2] https://victimsofcrime.org/
​

The Levy Law Firm is pleased to report the reversal of an adverse determination by Archcare, an MLTC, authorized to provide Home Health Aide Services.

The facts of the case are that my client's Home Health Care service were reduced on the alleged ground that "the service is not medically necessary". The services were reduced from 12 hours/day of personal care and 3 hours/day of cluster care for a total of 15 hours/day, to only 6 hours/day of cluster care. This reduction was drastic and very detrimental to the well-being of the client.  

Arlene Glotzer, the client's Daily Money Manager, contacted the Firm to oppose the unfair decision and strongly advocated for her client.

During the Fair Hearing, Archcare failed to support it's position and the Firm supported the client's claim with an expert report, negating Archcare's position.  

The Decision and Order by the State of New York Department of Health, Commissioner's Designee, on 7/31/2020 completely reversed the adverse determination, reinstated ALL the Home Health Care services, effective within 10 days of receipt of the Order.

Most people prepared with an abundance of toilet paper and hand sanitizer to manage the Covid-19 crisis, but many people have not protected their health care and financial actions/decisions with a Health Care Proxy and Power of Attorney.  These documents should be executed before crisis strikes so that the correct health care and financial decisions can be made, in the event you are unable to act.

Under Executive Order 202.7, these documents can be executed using audio-video technology through April 18, 2020.

I can email a copy of the Executive Order if you would like a copy.  Please email me at suzanne@levylawfirmny.com

No one likes to think about the possibility of their own disability or the disability of a loved one. However, as the statistics below demonstrate, we should all plan for at least a temporary disability. This article examines the eye-opening statistics surrounding disability and some of the common disability planning options. Disability planning is one area where we can give each and every person and family we work with great comfort in knowing that, if they or a loved one becomes disabled, they will be prepared.

Most Individuals Will Face At Least a Temporary Disability
Study after study confirms that nearly everyone will face at least a temporary disability sometime during their lifetime. More specifically, one in three Americans will face at least a 90-day disability before reaching age 65 and, according to the definitive study in this area, depending upon their ages, up to 44% of Americans will face a disability of up to 4.7 years. On the whole, Americans are up to 3.5 times more likely to become disabled than die in any given year.


In raw numbers, over 37 million Americans, or roughly 12% of the total population, are classified as disabled according to the 2010 census. Perhaps surprisingly, more than 50% of those disabled Americans are in their working years, from 18-64. For example, in December 2012, according to the Social Security Administration more than 2.5 million disabled workers in their 20s, 30s, and 40s received SSDI (i.e., disability) benefits.
Many Persons Will Face a Long Term Disability
Unfortunately, for many Americans the disability will not be short-lived. According to the 2007 National Home and Hospice Care Survey, conducted by the Centers for Disease Control's National Center for Health Statistics, over 1.46 million Americans received long term home health care services at any given time in 2007 (the most recent year this information is available). Three-fourths of these patients received skilled care, the highest level of in-home care, and 51% needed help with at least one "activity of daily living" (such as eating, bathing, getting dressed, or the kind of care needed for a severe cognitive impairment like Alzheimer's disease). The average length of service was more than 300 days, and 69% of in-home patients were 65 years of age or older. Patient age is particularly important as more Americans live past age 65. The U.S. Department of Health and Human Services Administration on Aging tells us that Americans over 65 are increasing at an impressive rate:



The Department of Health and Human Services also estimates that 9 million Americans over age 65 will need long term care this year. That number is expected to increase to 12 million by 2020. The Department also estimates that 70% of all persons age 65 or older will need some type of long term care services during their lifetime.
The Council for Disability Awareness provides startling examples of how disability is likely to impact “typical” Americans.
“A typical female, age 35, 5’4", 125 pounds, non-smoker, who works mostly an office job, with some outdoor physical responsibilities, and who leads a healthy lifestyle has the following risks:

• A 24% chance of becoming disabled for 3 months or longer during her working career; with a 38% chance that the disability would last 5 years or longer, and with the average disability for someone like her lasting 82 months.
• If this same person used tobacco and weighed 160 pounds, the risk would increase to a 41% chance of becoming disabled for 3 months or longer.

“A typical male, age 35, 5’10", 170 pounds, non-smoker, who works an office job, with some outdoor physical responsibilities, and who leads a healthy lifestyle has the following risks:

• A 21% chance of becoming disabled for 3 months or longer during his working career; with a 38% chance that the disability would last 5 years or longer, and with the average disability for someone like him lasting 82 months.
• If this same person used tobacco and weighed 210 pounds, the risk would increase to a 45% chance of becoming disabled for 3 months or longer.

Visit the Council for Disability Awareness website at http://www.whatsmypdq.org/ to calculate your own Personal Disability Quotient (PDQ), or risk for disability.
The Alzheimer's Factor
Alzheimer's is growing at an alarming rate. Alzheimer's increased by 46.1% as a cause of death between 2000 and 2006, while causes of death from prostate cancer, breast cancer, heart disease and HIV all declined during that same time period.

The 2015 Alzheimer's Association annual report titled, “Alzheimer's Disease Facts and Figures” explores different types of dementia, causes and risk factors, and the cost involved in providing health care, among other areas. This report contains some eye-opening statistics:

• An estimated 5.3 million Americans of all ages have Alzheimer's disease. This figure includes 5.1 million people aged 65 and older and 200,000 individuals under age 65 who have younger-onset Alzheimer's.
• One in nine people age 65 and older (11 percent) has Alzheimer’s disease.
• About one-third of people age 85 and older (32 percent) have Alzheimer’s disease.
• Eighty-one percent of people who have Alzheimer’s disease are age 75 or older. The number of people aged 65 and older with Alzheimer's disease is estimated to reach 7.7 million in 2030 - more than a 50% increase from the 5.1 million aged 65 and older currently affected.
• Every 67 seconds, someone in the United States develops Alzheimer’s. Thus, approximately 473,000 people age 65 or older developed Alzheimer’s disease in the United States in 2015.
• By 2050, the number of individuals aged 65 and older with Alzheimer's is projected to number between 11 million and 16 million - unless medical breakthroughs identify ways to prevent or more effectively treat the disease.

Caregivers are at risk of developing health problems.  There were approximately 10.9 million unpaid caregivers (family members and friends) providing care to persons with Alzheimer's or dementia in 2009. According to the Alzheimer's Association, those persons are at high risk of developing health problems, or worsening existing health issues. For example, family and other unpaid caregivers of people with Alzheimer's or another dementia are more likely than non-caregivers to have high levels of stress hormones, reduced immune function, slow wound healing, new hypertension and new coronary heart disease.

Spouses who are caregivers for the other spouse with Alzheimer's or other dementia are at greater risk for emergency room visits due to their health deteriorating as the result of providing care. A study mentioned in the 2010 Alzheimer's Association report found that caregivers of spouses who were hospitalized for dementia were more likely than caregivers of spouses who were hospitalized for other diseases to die in the following year.

Receiving care.  According to the National Nursing Home Survey 2004 Study, the most recent of its kind, the national average length of stay for nursing home residents is 835 days, with over 56% of nursing home residents staying at least one year. Significantly, only 19% are discharged in less than three months. Those residents who were married or living with a partner at the time of admission had a significantly shorter average stay than those who were widowed, divorced or never married. Likewise, those who lived with a family member prior to admission also had a shorter average stay than those who lived alone prior to admission.

While a relatively small number (1.56 million) and percentage (4.5%) of the 65+ population lived in nursing homes in 2000, the percentage increased dramatically with age, ranging from 1.1% for persons 65-74 years to 4.7% for persons 75-84 years and 18.2% for persons 85+. According to the U.S. Census Bureau, 68% of nursing home residents were women, and only 16% of all residents were under the age of 65. The median age of residents was 83 years.
See Vol. 4 Issue 5 of the Elder Counselor, The Affordable Care Act:  How It Impacts Our Senior Population, for a discussion of the Affordable Care Act’s Impact on information regarding nursing homes.

Long Term Care Costs Can Be Staggering
Not only will many individuals and families face prolonged long term care, in-home care and nursing home costs continue to rise. According to the Genworth 2015 Cost of Care Survey, Assisted Living, Adult Day Services, and Home Care Costs national averages for long term care costs are as follows:

• Monthly base rate (room and board, two meals per day, housekeeping and personal care assistance) for assisted living care is $43,200 annually, expected to increase .2% annually.
• Daily rate for a private room in a nursing home is $250, or $91,250 annually, expected to increase 4% annually.
• Daily rate for a semi-private room in a nursing home is $220, or $80,300 annually, expected to increase 4% annually.
• Hourly rate for home health aides is $21.50, expected to increase 4% annually.

These costs vary significantly by region, and thus it is critical to know the costs where the individual will receive care. For example, the median annual cost for a private room in the state of California during 2015 was $104,025, whereas the median cost for a year in a semi private room was nearly $90,000.


Most Americans Underestimate the Risk
Perhaps most importantly, despite overwhelming and compelling statistics; most Americans grossly
underestimate the risk of disability to themselves and to their loved ones. According to the Council on Disability Awareness 2010 survey:

• 64% of wage earners believe they have a 2% or less chance of being disabled for 3 months or more during their working career; the actual odds for a worker entering the workforce today are closer to 25%.
• Most working Americans estimate that their own chances of experiencing a long term disability are substantially lower than the average worker’s. 

 
Given the high costs of care, this underestimation often leaves Americans ill prepared to pay for the costs of long term care.

Long Term Care Insurance May Cover These Costs
If a parent, their spouse, or family member needs long term care, the cost could easily deplete and/or extinguish the family's hard-earned assets. Alternatively, seniors (or their families) can pay for long term care completely or in part through long term care insurance.

Most long term care insurance plans let the individual choose the amount of the coverage she wants, as well as how and where she can use her benefits. A comprehensive plan includes benefits for all levels of care, custodial to skilled. Clients can receive care in a variety of settings, including the person's home, assisted living facilities, adult day care centers or hospice facilities.

Planning in the Event Long Term Care Insurance is Unavailable or Insufficient
Unfortunately, many older Americans will either be medically ineligible for long term care insurance or unable to afford the premiums. In that event, more aggressive planning should be considered as early as possible to make sure life savings are not depleted as a result of having to pay out-of-pocket for care. With the help of an elder law attorney, a plan can be created that will protect much of the assets of an individual or couple that would otherwise be at risk of being depleted.

All Planning Should Thoroughly Address Disability
When a person becomes disabled; he or she is often unable to make personal and/or financial decisions. If the disabled person cannot make these decisions, someone must have the legal authority to do so. Otherwise, the family must apply to the court for appointment of a guardian over the person or property, or both. Those who are old enough to remember the public guardianship proceedings for Groucho Marx recognize the need to avoid a guardianship proceeding if at all possible.

At a minimum, seniors need broad powers of attorney that will allow agents to handle all of their property upon disability, as well as the appointment of a decision-maker for health care decisions (the name of the legal document varies by state, but all accomplish the same thing). Alternatively, a fully funded revocable trust can ensure that the senior's person and property will be cared for as desired, pursuant to the highest duty under the law - that of a trustee.

Conclusion
The above discussion outlines the minimum planning everyone, including seniors and their loved ones, should consider in preparation for a possible disability. It is imperative that families work with a team of professional advisors (legal, medical and financial) to ensure that, in light of their unique goals and objectives, their planning addresses all aspects of a potential disability. Our firm is dedicated to helping seniors and their loved ones work through these issues and implement sound legal planning to address them. If we can help in any way, please don’t hesitate to contact our office.

To comply with the U.S. Treasury regulations, we must inform you that (i) any U.S. federal tax advice contained in this newsletter was not intended or written to be used, and cannot be used, by any person for the purpose of avoiding U.S. federal tax penalties that may be imposed on such person and (ii) each taxpayer should seek advice from their tax advisor based on the taxpayer's particular circumstances.

Contact the Levy Law Firm to learn about the changes to the net worth limitation, look back period and penalty period in connection with applying for the VA pension.