Elder Law Blog

.

Subcategories from this category:

Elder Abuse

As annuity sales soar, fraud claims have increased

Annuities are complex financial products which frequently earn the seller high commissions. Because commissions are high, salesmen frequently use high-presure tactics. A recent article in the Pittsburg Post Gazette discribes how many seniors are harmed by abusive sales tactics. 

“He never explained to us the penalties and fees we would have to pay,” Ms. Welsh said, adding that her husband, Thomas, 80, used to play basketball with their adviser. “We lost a lot of money on those transactions and he made a lot of money in commissions.”

Continue reading
  438 Hits
438 Hits

New Paper posted

We've posted a new paper titled Legal Considerations for Older Adults, Special Needs Individuals and Family Caregivers: 2018.

 https://www.mcguffey.net/pdf/Legal_Considerations_for_Family_Caregivers.pdf

  728 Hits
728 Hits

Euthanasia – Are we there?

On January 29, 2018, CNN reported that a British Court ruled in favor of doctors, and against parents, holding that doctors could withdraw life support for a severely disabled child. Baby Isaiah was born by emergency cesarean after his mother experienced a rupture in her uterus. At birth, he had no audible heartbeat or respiration, but was revived. Doctors argued it was not in Isaiah’s interest to prolong his life.

Euthanasia is the practice of intentionally ending life to releive pain and suffering. Technically, withdrawing life sustaining treatment is not considered euthanasia, but in most cases the withdrawal of treatment is at the patient’s request, not the government, not the medical community, and not insurers. The notion that a patient controls his or her own care, including the right to refuse treatment stems from Cruzan v. Director, Mo. Dep’t Health, 497 U.S. 261 (1990) and related cases.

Continue reading
  1321 Hits
1321 Hits

Look after your loved ones even if they are in a nursing home or ALF

On December 28, 2017, CNN reported the beating of an eighty-six year old man with dementia who was a resident in an assisted living facility. Apparently a younger resident accused the older gentleman of eating his cupcake. The younger resident then beat the older man more than 50 times during a two minute period. No staff were present at the time of the beating.The facility had been sanctioned for other incidents, with two administrators having been arrested on charges of neglect of the elderly.

It is critical that family members visitloved ones in a nursing home or assisted living facility. If you see irregularities, report them to the administrator. If the administrator does not correct the situation, report it to the local ombudsman. If that doesn't resolve the situation, speak with an attorney.

Continue reading
  1043 Hits
1043 Hits

Why I feel more like a nurse than a wife

 

A video clip from Dr. Phil shows him interviewing the wife of someone with a chronic illness, pointing out the strain on caregivers. One of the points made is that you can't give what you don't have, so you must make time to take care of yourself. The clip is available at the following link.

Continue reading
  1160 Hits
1160 Hits

What it takes to become a Certified Elder Law Attorney

Have you ever wondered what's different about a Certified Elder Law Attorney and other lawyers? The following article describes the rigorous examination, which is only one element of the process.

http://www.nelf.org/the-cela-exam-no-harder-than-it-needs-to-be/ 

  1352 Hits
1352 Hits

Is a husband liable for his wife's debts (or vice versa), Part 2?

Recently, the 11th Circuit Court of Appeals decided a case (Key Equipment Finance, Inc. v. Overend) that causes us to revisit the question of spousal liability. We care because the 11th Circuit (a federal appeals court) covers Georgia, and the case involved a question of Georgia law.

George Overend borrowed money from KeyBank to finance the construction of a medical imaging center. After he borrowed money, he transferred a one-half interest in his home to his wife's revocable trust. Overend's business venture went bankrupt, and when KeyBank tried to collect it's money, KeyBank argued that it could set-aside the homeplace transfer as a fraudlent conveyance.

Continue reading
  1151 Hits
1151 Hits

Is a husband liable for his wife’s debt (or vice versa)?

Many families assume that one spouse is liable for the other’s debt. In Georgia, that’s typically not the case. O.C.G.A. § 19-3-9 specifically provides that the separate property of each spouse shall remain the separate property of that spouse, except in limited circumstances.

In Walton Elect. Membership Corp. v. Snyder, 226 Ga. App. 673 (1997), a creditor attempted to collect from one spouse a debt owed by the other. Specifically, Deborah Patton had a contract with Walton Electric to provide electricity. Later, she moved in with Howard Snyder, who also had his own contract with Walton Electric. When Howard and Deborah got married, Deborah had an unpaid, past due balance with Walton Electric. After Walton Electric discovered Howard and Deborah were married, it added Deborah’s past due bill to Howard’s account. Howard objected and refused to pay the bill. Walton Electric then disconnected Howard’s power, so Howard sued. In finding that Howard was right, and that he was not liable for Deborah’s debt, the Georgia Court of Appeals cited to O.C.G.A. § 13-5-30. There, Georgia law provides that a promise to answer for another’s debt must be in writing, and signed by the person undertaking the debt. Further, in the Snyder case, the Court found that the contract must be an original obligation. What is that important? Walton Electric tried to claim that Howard signed a membership agreement when he joined Walton Electric. Ordinarily, if a married couple joins, they become joint members. However, Howard joined Walton Electric as a single person and Walton Electric was not authorized to unilaterally change the agreement just because he was married. To create a joint obligation, a new contract, with new consideration, would be required if Howard was to become liable for Deborah’s debt.

Continue reading
  1398 Hits
1398 Hits

Social Security Increase payments by .03% for 2017

Woo-hoo!!! Social Security has increased its payments for 2017 by --- wait for it --- .03% for 2017. That means someone who was on SSI and received $733 per month in 2016 will receive a $2 per month increase in 2017. With monthly benefits soaring to $735 per month, we remind you "don't spend it all in one place!" Meanwhile, the payroll amount subject to Social Security taxes has increased to $127,200.

http://blog.ssa.gov/an-increase-in-social-security-benefits-in-2017/

  1337 Hits
1337 Hits

Wages for Home Care Aides Lag as Demand Grows

"Home care aides, mostly women and mostly minorities, represent one of the nation’s fastest-growing occupations, increasing from 700,000 to more than 1.4 million over the past decade. Add the independent caregivers that clients employ directly through public programs, and the total rises to more than two million." Unfortunately, wages have been stagnant. One can only speculate regarding what this means as more Americans are living beyond their health. Beyond the wage issue, there is a labor capacity issue. Americans are aging at a rate that outpaces our ability to provide care AND fill other higher paying jobs. The immigration debate, which is front and center in this year's election, ignores the reality that American will either need to import labor to address it's long-term care needs, or we might need to begin exporting our elderly so they can get care.

P. Span, Wages for Home Care Aides Lag as Demand Grows, http://www.nytimes.com/2016/09/27/health/home-care-aides-wages.html?_r=0

  1200 Hits
1200 Hits

What is it like to live in a retirement community?

A recent article published by the Huffinton Post explores what it's like to life in a retirment community. In the article, the write states "Studies have shown that people who live in retirement communities are healthier and live longer than people isolated in their own home."

N. Josefowitx, What is it like to live in a retirement community, http://www.huffingtonpost.com/dr-natasha-josefowitz/what-is-it-like-to-live-i_2_b_12201136.html

  1164 Hits
1164 Hits

The Impact of Caregiving

A recent article in Health Affairs Blog explores the role of family caregivers in the long-term care setting. The following extract addresses some of the burdens of caregiving:

"However, family caregiving can take a large financial, emotional, and physical toll on the caregiver. According to the AARP, the value of informal caregiving provided to adults was approximately $470 billion in 2013. Additionally, close to one out of 10 Americans over the age of 40 are both providing LTSS assistance to a family member and supporting a child. The emotional, social, physical, and financial burden on this “sandwich generation,” is significant."

Continue reading
  1236 Hits
1236 Hits

Article: Patients With Dementia Present Communication Challenges In Hospice Care

Caregivers of those with dementia know that decision-making is challenging. The following extract from an article addresses problems with communication.

"Finster has had dementia for 10 years. She has spent most of that time in facilities with increasing levels of care, moving from an independent living facility, to assisted living to memory care. Mantua has felt some of the frustration that caregivers of other patients with dementia have experienced. Three or four years ago, when Finster still  had a phone in her room, she sometimes called her son Les — Mantua’s older brother — 10 times to leave him the same message that people were coming into her room and stealing her food. She simply forgot that she had called before." (emphasis added)

Continue reading
  1143 Hits
1143 Hits

When should I apply for Social Security Benefits?

Many Americans rely on Social Security for income during retirement. Taking Social Security too early may result in a lifetime reduction of your benefit. Whether you are applying for yourself, or as based on someone else's record (such as a divorced or widowed spouse) we suggest that you speak with a financial planner who can run various scenrios showing how much you would receive if you apply early, at full retirement age, or at age 70 (or anything in between).

A helpful planner is on the Social Security website at https://www.ssa.gov/planners/index.html 

Continue reading
  1757 Hits
1757 Hits

Patient’s Right to Direct Health Decisions Affirmed

On July 5, 2016, in Doctors Hospital of Augusta v. Alicea, 2016 Ga. LEXIS 448 (2016), the Georgia Supreme Court affirmed lower court decisions denying a motion for summary judgment. In doing so, the Court interpreted the Georgia Advanced Directive Act, O.C.G.A. § 31-32-1 et seq., holding that it is the will of the patient or her designated agent, and not the will of the health care provider, that controls health decisions.

On November 12, 2009, Bucilla Stephenson executed an advance directive naming Jacqueline Alicea, her granddaughter, as health agent. Stephenson was 89 years old at the time. The advance directive specified that Alicea was authorized to make health care decisions for Stephenson in accordance with what Alicea deteremined to be in Stephenson’s best interest. The advance directive also said: “My agent shall make health-care decisions for me in accordance with this power of attorney for health care, any instructions I give in this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health-care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.”

Continue reading
  1675 Hits
1675 Hits

Georgia changes method for awarding home and community based services

As of July 1, 2016, the Georgia DHS is changing the way Home and Community Based Services are awarded.

Home and Community-Based Services are services that help older Georgians live safely, healthily and independently in their communities. The services are funded through the Older Americans Act and include home-delivered meals, personal care assistance, homemaker services and respite care.

Continue reading
  1337 Hits
1337 Hits

Survivorship deed was fraudulent conveyance

David Camp and Crawford Wood were business partners. After Crawford died, the busienss arraingment was restructured, with Camp conveying a property to David Wood (Crawford's son) in return for a $130,000 promissory note. Wood's plan was to pay the note off within three years.

The day after Wood executed the promissory note, Wood transferred the property received from Camp to himself and Stephen Bloom, to whom Wood was married under California law, as joint tenants with rights of survivorship. Wood then travelled to India to undergo treatment for a brain tumor. Wood died within a year and Blom became owner of the property as the sole survivoring joint tenant.

Continue reading
  1579 Hits
1579 Hits

Judgment denied where creditor attempted to serve complaint on semi-conscious nursing home resident

In Space Coast Credit Union v. Groce, 2016 Ga. App. LEXIS 252 (May 2, 2016), a lawsuit was filed to reinstate a first priority deed to secure debt. The creditor, Space Coast Credit Union, argued that its lien against property owned by a nursing home resident, Robert Steve Groce, was still valid because Groce's debt was not paid in full. However, a lawsuit cannot begin until the Defendant has been served, or officially notified that he or she has been sued.

Space Coast hired a private process server who went to Mr. Groce's last known home address. The process server discovered that Groce no longer lived at that address, so it looked elsewhere to find him. About a week later, the process server located Mr. Groce at a nearby nursing home. Mr. Groce was sleeping in his bed, in and out of consciousness and was unable to take the papers. The process server left them on a table next to the bed.

Continue reading
  1476 Hits
1476 Hits

Are nursing home evictions on the rise?

On May 8, 2016, the Seattle Times reported that nursing home evictions are up, presumably to get rid of difficult patients. Matt Sedensky, in Nursing homes turn to evictions to drop difficult residents, available at http://www.seattletimes.com/nation-world/nursing-homes-turn-to-eviction-to-drop-difficult-patients-2/, reported that nursing home seek to increase profits by discharging residents who require labor intensive care, thus eliminating expenses and increasing profits. Citing an Associated Press report, Sedensky reports discharges and evictions are up 57 percent since 2000. “‘When they get tired of caring for the resident, they kick the resident out,’ said Richard Mollot of the Long Term Care Community Coalition, a New York advocacy group.” The article goes on to cite other stakeholders, those representing nursing home residents and the nursing home industry.

Federal and state regulations provide that a nursing home resident may not discharge a resident unless (i) The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility; (ii) The transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility; (iii) The safety of individuals in the facility is endangered; (iv) The health of individuals in the facility would otherwise be endangered; (v) The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or (vi) The facility ceases to operate. A discharge for any other reason is illegal. See 42 C.F.R. § 483.12(b).

Continue reading
  1464 Hits
1464 Hits

Adult child has no right to compel a parent’s new spouse to provide unimpeded access to the parent

In Williford v. Brown, 2016 Ga. Lexis 352 (May 9, 2016), Tamara Williford allaged that her step-mother, Mary Ann Brown, denied access to her father, Tommy Brown. Ms. Williford filed a Petition against Mrs. Brown in Hart County Superior Court, alleging a right to visit her father. In her petition, Ms. Williford argued she was Mr. Brown’s biological child, and that he could not leave home but "is in good mental condition and can make decisions for himself." She also argued that the two had a good relationship and used to talk on the telephone regularly, that they saw each other in person, and that her father would like to see Ms. Williford, but was prevented from doing so by Mrs. Brown. Ms. Williford sought an order allowing her unimpeded access to Mr. Brown or appointing a guardian ad litem to ascertain Mr. Brown’s wishes. Mrs. Brown filed an answer denying substantially all of Ms. Williford’s allegations.

Williford v. Brown was presented as a case in equity. In other words, Ms. Williford admitted there was no statute or case law granting a child unimpeded access or visitation right to see a parent. Instead, she argued the circumstances were unjust and the Court should exercise its powers as a court of equity to craft a remedy where none existed.

Continue reading
  1462 Hits
1462 Hits