NY Family Health Care Decisions Act

Governor David Patterson, in the State of New York has recently signed into law the Family Health Care Decisions Act. This statute authorizes health care decisions to be made for a person who is incapacitated and has not prepared a healthcare proxy specifically indicating his or her wishes. This statute authorizes family members without a written advanced directive to make decisions to withhold or withdraw life support systems for their family members.

The best means for dealing with making of medical decisions, if you should become disabled or incapable of making your own medical decisions, is to execute a health care proxy appointing someone you trust to make these decisions for you. Unfortunately more than 75,000 incapacitated individuals die each year in the State of New York with out having a health care proxy. Court decisions have ruled that life sustaining treatment cannot be withheld or withdrawn without clear and convincing evidence that the person would decline if they could. This has resulted in people being subject to fruitless treatments that actually violates their personal wishes or religious beliefs.

The new statue sets up a hierarchy to determine those individuals who can make the choices. The list of individuals capable of making these choices range from a guardian, to spouse, to a domestic partner, an adult son or daughter, parent, adult brother or sister, and/or some other relative or close friend. The purpose of the statue is to prevent needless medical treatment for those who, if they were competent, would not want it.

– Elliot Schlissel, Esq.

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Nursing Homes Must Protect Their Residents

Family members of a disabled woman have filed a lawsuit against a nursing home in Aurora, Illinois. Their family member, a disabled woman, was sexually assaulted while a resident of the Fox River Nursing Home.

The lawsuit alleges that Sylvester Grays was a patient at the nursing home. Mr. Grays, age 39, sexually assaulted a senior woman who suffers from dementia. The assault left her “in a bruised, battered, and bloody condition” according to the lawsuit.

Mr. Grays is now awaiting trial on eight counts of aggravated criminal sexual assault and battery. He has previously served prison terms for burglary and retail theft in Rook County, Illinois.

Nursing homes have a responsibility to protect their patients. When they know that a dangerous individual is in their facility, he should be closely monitored or restricted.

The nursing home industry is a growing industry in the United States. They are profit driven and this sometimes leads to their being lax in their responsibilities. Should you, a member of your family, a friend or loved one suffer from inappropriate conduct, abuse, or negligence related to a stay in a nursing home call us at 1-800-344-6431 or contact us by email. We can help you protect seniors for inappropriate practices or conduct.

Nursing Home Expenses & Medicaid

America has a healthcare crisis. President Obama is now battling with Congress to deal with long term issues involving healthcare.

An area of healthcare that is very often overlooked deals with what happens to Americans when they can’t care for themselves.

The best way to maintain a senior is to keep them in their home under circumstances that they are comfortable with. Seniors live longer when they can stay in their home. If they need help beyond what relatives and friends can provide, home healthcare aides can assist them. As individuals age, sometimes their needs exceed those what can be provided for them in their home.

The needs of seniors are often met by assisted living facilities and nursing homes. Assisted living facilities are generally speaking private pay living arrangements. Seniors who do not have problematic medical needs and have the financial ability to sometimes choose to live in these facilities. The cost of assisted living facilities can be anywhere from $3,000 to $7,000 per month in the metropolitan New York area.

Seniors who have greater medical needs often go to rehabilitation facilities or nursing homes. Nursing homes can cost anywhere from $8,000 to $15,000 per month depending on the level of service the senior needs. How does a middle class person go to a nursing home without all of his assets utilized to pay for his or her care?

There is a program that under certain circumstances pay for long term rehabilitation and/or nursing home stays. This program is called Medicaid. The rules and circumstances involving Medicaid are complex and detailed. The most important rule for the public to understand is that there is a 5 year look back concerning the transfer of assets.

If you have assets and you wish to protect them for future generations, it is important that you see an attorney that handles estate work. Planning can be done to insure that if you do end up in a nursing home, all of your assets including your home, stocks, bonds, pensions, 401(k) and savings won’t be utilized to pay for long term nursing care. You cannot wait until you are very elderly and sick to use this type of estate planning. It must be done a minimum of 5 years prior to the need for nursing home or rehabilitation care.

Should you have questions, contact the Law Office of Elliot S. Schlissel. We can provide you with further information concerning Medicaid and estate planning. Contact us at 1-800-344-6431 or email us at schlissel.law@att.net.

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Long Term Care Hospitals – A Capitalist Solution

During the past quarter of a century there have been over 400 long term care hospitals built in the United States. These hospitals do not provide acute care for specific illnesses. They are, generally speaking, holding facilities for individuals who are too sick for nursing homes but not sick enough for regular hospitals.

Patients often stay for many weeks or months in these facilities. Many of these patients are senior citizens. Long term care hospitals have a much higher rate of bed sores and infections among their patients than regular hospitals. They are also more profitable than regular hospitals. They generally do not do surgery in the long term care facilities or handle medical emergencies. Patients needing these services are transferred to general hospitals. 

A large portion of the bills paid for the treatment at long term care hospitals are paid by Medicare. For profit, long term care hospitals often spend less money on patients and have higher profit margins than regular hospitals.

Inspections in the past 3 years in long term care hospitals have found increasing levels of violations of healthcare standards. Many long term care hospitals do not maintain staff physicians on a 24 hour basis. If you have a friend or loved one in along term care facility, you should monitor their treatment to see to it that they are provided with an appropriate level of medical care.

Should you have any problems regarding a hospital stay or a stay at a long term care facility, feel free to contact the Law Office of Elliot S. Schlissel at 1-800-344-6431 or email us at schlissel.law@att.net.

–Elliot Schlissel, Esq.

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Who Needs a Will? You Do!

Do you have assets? Do you own a house? Have you been married more than once? Do you have children from more than one relationship? Are you concerned about what happens after your death to your spouse and/or your children? Are you single? All of the above individuals need a Will.

Estate contests often develop between children from the first marriage and the second wife. Issues arise when a man or a woman has children from more than one relationship. Sometimes loved ones have financial difficulty and the possibility of receiving assets in an estate brings out the worst in them.

There is a simple way to avoid unnecessary expensive litigation that can last from months or years. Write a Will! A Will states who your loved ones are, what your assets are and who will receive your assets at the time of your death. No one looks forward to dying. The thought of writing a Will is often an issue that individuals seek to put off. However, a Will should be written when you are competent and healthy not right before your death.

Attorneys that handle Wills & Estates prepare Wills. They are generally speaking inexpensive documents to have prepared. They simplify your end of life issues and allow your assets to pass in an orderly manner. Wills cut down on financial disagreements developing among your heirs and loved ones.

If you die without a Will your assets pass to your loved ones through administration proceedings. These proceedings can be time consuming and tedious. More than one person can request to be the Administrator of your estate. This can lead to arguments, bad feelings and increased attorney’s fees.

If you have assets or loved ones, you need a Will! Have it written by an attorney before you are too sick and old to deal with it.

Should you have questions regarding drafting a Will, feel free to call the Law Office of Elliot S. Schlissel to discuss these issues at 1-800-344-6431 or email us at schlissel.law@att.net.

When You (Or a Loved One) May be Entering a Nursing Home…

If you, a spouse, or parent  think that you may need the services of a nursing home in the near future, you should know that there are some things you can do to plan for this possibility and help maintain some of the person’s assets.

Nursing homes can be very expensive. Residing on one can deplete $9,000 to $12,000 per month from one’s assets on a monthly basis. You can apply for Medicaid to assist with these bills, but they will only begin paying once the person has completely “spent down” their assets to$13,800 (in 2009) altogether.

There are steps that you can take which would allow you to preserve much of your assets for the next generation while still qualifying for Medicaid if and when nursing home services are needed.

When an individual applies for Medicaid, and the Department of Social Services is looking into whether the application has indeed depleted his or her assets down to almost nothing, they actually look up to five years prior to the application date to see if the person made any transfers to children or others in order to preserve their assets from Medicaid’s required “spend down” to poverty.

Elder law attorneys, such as the experienced lawyers at  The Law Office of Elliot Schlissel, can assist individuals in applying for Medicaid or, for instance, setting up an Irrevocable Trust that may allow a senior to preserve his or her assets from Medicaid’s “spend down” requirement throughout their lives.

We can personalize these trusts depending on each individuals circumstances.

For instance,  if someone has owned their home for a long time, such that the house has increased in value by $250,000 for individuals or $500,000 for married couples, and if the Irrevocable Trust does not appropriately deal with this increased equity in the residence, there can be significant tax liability when the house is sold.

Regardless of whether you need an Elder Law attorney to prepare a Medicaid application or create any other kind of Medicaid plan, you can contact our offices at 800-344-6431 or e-mail us with any questions or to set up a free consultation.

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Cremation or Burial – Autopsy or Not – Who Decides?

Robert Harper, of the NY Trusts & Estates Litigation blog, recently wrote about the law as it relates to the right to decide how human remains are disposed of in New York. The article quoted NY Public Health Law § 4201(2)(a), which identifies an order of priority of who has the right to direct how a deceased person’s remains are disposed of.  An individual may execute a document specifying whom she wishes to decide issues related to how to dispose of her body, but if no such written instrument exists, then the individuals listed in § 4201 determine the order of priority.

Other important issues exist regarding how a loved one’s body is treated after death as well regarding whether a body is autopsied or cremated.

Cremation

With regard to the decision whether bury or cremate an individual’s body, there is an order of priority for how that decision is made, as noted above, and there is an exception to the rule.

1.      If the decedent left a document specifying how her remains should be disposed of (i.e. burial versus cremation), then that document controls. NY Public Health Law § 4201(2)(a)

2.      If no such document existed, but the decedent’s actions or expressed wishes dictated how her body should be handled after death, then those wishes control, even over the objections of family members. Application of Hillard, 91 N.Y.S. 2d 547, 549 (N.Y. Sup. Ct. 1944).

3.      If the decedent had no discernable wishes as to how her body should be disposed of, then the statutory order of priority determines which relatives decide how the decedent’s body is disposed of. NY Public Health Law § 4201(2)(a)

However, there is an exception to the order of priority listed in the § 4201. For instance, a surviving spouse and children are high in the order of priority to decide how a body is disposed of us a surviving spouse, but where there is evidence that the decedent was estranged from his or her spouse or children, the courts look beyond those individuals to decide how a decedent’s body should be disposed of. In re Solomon, 766 N.Y.S. 2d 294, 295 (N.Y. Sup. Ct. 2003).

In one relatively recent Nassau County Supreme Court case, a deceased person’s estranged wife and daughter were planning to have him cremated, and his body was already in the custody of a crematorium. Based on testimony that the decedent led a somewhat observant Jewish life, and based on the expert testimony of Rabbi Moshe Weinberger that orthodox Jews consider cremation unacceptable, the court held that evidence of the decedent’s desire to have a traditional Jewish burial overcame the wishes of the surviving spouse and daughter, the provisions of § 4201 notwithstanding. Id.

The Performance of an Autopsy

NY Public Health Law § 4210 gives the medical examiner the power or right to perform an autopsies on, “… the bodies of persons dying from… casualty, … suddenly when in apparent health, … or in any suspicious or unusual manner.” But § 4210-c(1) states that absent some compelling public policy need, “no dissection or autopsy shall be performed over the objection of a surviving relative … that such procedure is contrary to the religious belief of the decedent, or, if there is reason to believe that a dissection or autopsy is contrary to the decedent’s religious beliefs.”

Absent one of the circumstances specified in § 4210, the medical examiner may not do an autopsy on a body without notice to the family of the deceased. Dick v. City of New York, 2002 WL 31844745, *3 (N.Y. Sup. Ct. Oct. 30, 2002). However, “the burden is upon a decedent’s next of kin to convey a religious objection to the medical examiner’s office” were the death occurred in some unusual manner, or upon notice, absent some unusual or suspicious circumstances surrounding the death.” Id.

If an autopsy is performed despite notice that there are religious objections, the hospital may be held liable for civil damages. In Rotholtz v. City of New York, 582 N.Y.S. 2d 366, 367 (N.Y. Sup. Ct. 1992), the decedent’s brother informed a doctor at Lenox Hill Hospital that an autopsy should not be performed on his sister, but the hospital failed to convey this message when it turned the body over to the medical examiner, who performed an autopsy. The court there held that the hospital was responsible because when it failed to inform the medical examiner of the family’s religious objection to the performance of an autopsy, it thereby “caused or procured” the unauthorized autopsy. Id. at 670.

The Appellate Division reinstated a jury’s decision to award a surviving family $75,000 compensatory damages and $1,350,000 in punitive damages when an employee at Riverside Chapels caused the medical examiner’s office to perform an autopsy even though the family had told Riverside employees that they were orthodox Jews and that no autopsy should be performed. Liberman v. Riverside Memorial Chapel, Inc., 650 N.Y.S. 2d 194, 197-99 (N.Y. App. Div. 1996).

Conclusion

The safest way to ensure that one’s wishes regarding how his or her remains are disposed of after death will be honored is by executing a Will which makes those wishes clear. The named Executor will be able to ensure that the appropriate people know of your wishes. And as for family members, even though it is a very difficult time after the loss of a loved one, miscommunications can be avoided more easily if everyone they speak to at the hospital, the nursing home, and the medical examiner’s office (if they are involved) are made aware of your wishes with regard to how the deceased’s body should be treated.

And of course, if you need assistance with any estate planning documents like Living Wills, Powers of Attorney, Wills, or Trusts, our office has extensive experience with these documents. Feel free to contact our office at any time for assistance.

Picture courtesy of the Hoven Funeral Home. 

Update 8/26/09: Indiana Creates Funeral Planning Directive

Who Needs An Estate Planning Attorney? – Video

Our office maintains a very large Wills, Trusts & Estates and general Elder Law practice. See the video above and our New York Wills and Trusts website for more information.

N.Y. Validates License-less Religious Marriages But Not N.J., Unless…

Prof. Howard M. Friedman, at the Religion Clause blog, has posted another very interesting case relating to New York Domestic Relations Law.

He reported on the case of Matter of Farraj, decided by the Surrogate’s Court in Kings County last week. In that case, Rabaa M. Hanash, the decedent Daoud Farraj’s wife, petitioned the court for an accounting of her husband’s estate. An adult child of the decedent, Saed Farraj, claimed that Rabaa had no standing to compel the accounting because she was not legally married to the decedent.

He claimed that this was the case because the couple did not obtain a marriage licence and were married in a Muslim ceremony in New Jersey, though they actually lived in New York. And according to New Jersey law (N.J. Stat. § 37:1-10) a marriage is absolutely void  if a the couple fails to obtain a marriage license before the ceremony. He argued, therefore, that Daoud and Rabaa’s marriage was void and that consequently, Rabaa was not a spouse with standing to petition to compel an accounting in her husband’s estate.

The Surrogate held that the validity of the marriage in question is governed by New York law,  and not New Jersey law, because the parties maintained their domicile in New York. Under New York law, marriages performed in religious ceremonies are recognized as valid even if no marriage license is obtained. The marriage between Radaa and Daoud was therefore valid under the governing New York law, so the court held that Radaa had standing to petition for an accounting in her husband’s estate proceeding.

I would like to consider the a slight variation on these facts though, to show that even though New Jersey law invalidates marriage ceremonies performed without a license, a New Jersey court would still validate the marriage in this case.

Normally, a New Jersey court would only have jurisdiction over an estate proceeding in the above-mentioned facts, if the parties’ primary domicile was in NJ. And if they had jurisdiction, they would have invalidated the marriage because the marriage ceremony took place without a license. But let’s say the couple had a vacation home in New Jersey and therefore had to do an ancillary probate proceeding in New Jersey to dispose of the home. In such a case, their domicile would still be in New York, but a New Jersey probate court would still have jurisdiction in the ancillary probate proceeding for the NJ vacation home.

Under those facts, if someone challenged the wife’s standing, a New Jersey court ought to agree that the couple’s marriage was valid under New York law (where the couple were domiciled) and therefore that the wife has standing as a widow of the decedent. It should further consider the couple’s marriage to be valid under New Jersey law, pursuant to the Constitution’s Full Faith and Credit clause (Article IV, Section 1), which obligates states to recognize  the “public acts, records, and judicial rulings” of other states. 

Because the couple was domiciled in New York, even a NJ court would hold that the marriage was valid under New York law, and by extension, under New Jersey law as well pursuant to the “full faith and credit” clause.

The New Jersey Supreme Court held in Heur v. Heur, 704 A 2d 913, 916 (1998), that “full faith and credit need not be accorded a judgment of another jurisdiction when the court issuing the judgment lacked the jurisdictional prerequisite of domicile.” Under our facts, the couple would have met the jurisdictional prerequisite of domicile in New York, and therefore a New Jersey court considering an ancillary probate proceeding  would apply New York law to determine the validity of Radaa and Daoud’s marriage. (Is it relevant that despite the couple’s domicile in New York, no New York court every officially ruled on the validity of their marriage?)

Thus, I think that were a New Jersey court to have jurisdiction over an ancilary probate proceeding under the facts, as suggested above, it would also recognize the validity of the Muslim ceremony, even without the marriage license, to give the decedent’s wife standing to petition for an accounting.

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Power of Attorney Laws Changing in New York

Spurred on by financial abuse of the elderly, New York will change its laws with regard to executing a valid “Power of Attorney” (“POA”) document. The new law will be effective September 1, 2009, although POAs executed before that date in compliance with the old law will still be valid. 

This development makes it especially important to use an attorney who activly practices Wills, Trusts and Estate law and is familiar with these significant changes in the law.

The following are some of the changes that attorneys must now consider when drafting and handling executions of General POA documents starting Sept. 1st, pursuant to the new New York General Obligations Law §5-1501:

• The principal’s signature of the POA document must be both notarized and witnessed by two disinterested witnesses.
• The agent must also sign the power of attorney and his/her signature must be notarized (although the signature does not have to take place at the same time as the principal’s signature).
• If a principal intends to give the agent power to make gifts on his behalf to anyone he has not been accustomed to giving to or which exceed $500 per beneficiary per year, he must simultaneously execute a Statutory Major Gifts Rider (“SMGR”).
• The statutory “Caution to the Principal” and “Important Information for the Agent” sections must be included.

These changes were originally set to become effective March 1, 2009, but Gov. Patterson agreed to sign off on an extension to September 1st, 2009 in order to allow attorneys to fully familiarize themselves with these sweeping changes.  So give us a call if you are planning to execute a Will, Power of Attorney, Health Care Proxy, or other estate planning document.

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