Florida Elder Law Blog - ElderLawAssociates.com

The Evolution of Home Care
In the first century of our country's history there was no such thing as nursing homes or assisted living. Society was mostly rural and people lived in their own homes. Families cared for their loved ones at home till death took them. In the latter part of the 1800's because of an increasingly urban society, many urban families were often unable to care for loved ones because of lack of space or because all family members including children were employed six days a week for 12 hours a day. During this period many unfortunate people needing care were housed in County poor houses or in facilities for the mentally ill. Conditions were deplorable. In the early 1900's home visiting nurses started reversing this trend of institutionalizing and allowed many care recipients to remain in their homes. Nursing homes or so-called rest homes were also being built with public donations or government funds. With the advent of Social Security in 1936, a nursing home per diem stipend was included in the Social Security retirement income and this government subsidy spurred the construction of nursing homes all across the country.

By the end of the 1950s it was apparent that Social Security beneficiaries were living longer and that the nursing home subsidy could eventually bankrupt Social Security. But in order to protect the thousands and thousands of existing nursing homes Congress had to find a way to provide a subsidy but remove it as an entitlement under Social Security. In 1965 Medicare and Medicaid were created through an amendment to the Social Security Act. Under Medicare, nursing homes were only reimbursed on behalf of Social Security beneficiaries for short-term rehabilitation. Under Medicaid, nursing homes were reimbursed for impoverished disabled Americans and impoverished aged Americans over the age of 65. It has never been the intent of Congress to pay for nursing home care for all Americans. The nursing home entitlement for all aged Americans was now gone.

Over the last 40 years, there has been a gradual change away from the use of nursing homes for long-term care towards the use of home care and community living arrangements that also provide in-house care.

With Proper Planning People Could Remain in Their Homes for the Rest of Their Lives
We are seeing a trend towards working conditions like those in urban America in the early 1900's where both husband and wife are working and putting in longer hours. We are also seeing a return of the trend in the early part of the 20th century where outside visitor caregivers are becoming available to replace working caregiver's and allow the elderly to receive long-term care in their homes. In addition there is a significant trend in the past few years for Medicaid and Medicare to pay for long-term care in the home instead of in nursing homes.

Given enough money for paid providers or government funding for the same, a person would never have to leave his home to receive long-term care. All services could be received in the home. Adequate long-term care planning or having substantial income can allow this to happen.

We only need to look at wealthy celebrities to recognize this fact. Christopher Reeve, the movie star, was totally disabled but he had enough money to buy care services and remain in his home. President Ronald Reagan suffered from Alzheimer's for many years but received care at his California ranch. He was also wealthy enough to pay for care when needed. Or what about Annette Funicello or Richard Pryor? Income from their movie careers allowed them to receive care with their multiple sclerosis at home. We will be willing to bet that Mohammed Ali, who is severely disabled with Parkinson's disease, will probably never see the inside of a care facility, unless he chooses to go there to die. With the proper planning and the money it provides, most of us could remain in our homes to receive long-term care and we would never have to go to an institution or a hospital.

The Popularity of Home Care
Most of those receiving long-term care and most caregivers prefer a home environment. Out of an estimated 8 million older Americans receiving care, about 5.4 million or 67% are in their own home or the home of a family member or friend. Most older people prefer their home over the unfamiliar proposition of living in a care facility. Family or friends attempt to accommodate the wishes of loved ones even though caregiving needs might warrant a different environment. Those needing care feel comfortable and secure in familiar surroundings and a home is usually the best setting for that support.

Often the decision to stay in the home is dictated by funds available. It is much cheaper for a wife to care for her husband at home than to pay out $2,000 to $4,000 a month for care in a facility. Likewise, it's much less costly and more loving for a daughter to have her widowed mother move in to the daughter's home than to liquidate mom's assets and put her in a nursing home. Besides, taking care of our parents or spouses is an obligation most of us feel very strongly about.

For many long-term care recipients the home is an ideal environment. These people may be confined to the home but continue to lead active lives engaging in church service, entertaining grandchildren, writing histories, corresponding, pursuing hobbies or doing handwork activities. Their care needs might not be that demanding and might include occasional help with house cleaning and shopping as well as help with getting out of bed, dressing and bathing. Most of the time these people don't need the supervision of a 24/7 caregiver. There are, however, some care situations that make it difficult to provide long-term care in the home.

Please note from the first graph below that a great amount of home care revolves around providing help with activities of daily living. Note from the second graph below that the average care recipient has need for help with multiple activities of daily living. Finally, it should be noted from the second graph that well over half of home care recipients are cognitively impaired. This typically means they need supervision to make sure they are not a danger to themselves or to others. In many cases, this supervision may be required on a 24-hour basis. (Graphs were derived from the 1999 national caregivers survey, courtesy www.longtermcarelink.net.)

It is precisely the ongoing and escalating need for help with activities of daily living or the need for extended supervision that often makes it impossible for a caregiver to provide help in the home. Either the physical demands for help with activities of daily living or the time demand for supervision can overwhelm an informal caregiver. This untenable situation usually leads to finding another care setting for the loved one. On the other hand if there are funds to hire paid providers to come into the home, there would be no need for finding another care setting.

Problems That May Prevent Home Care from Being an Option
Caregivers face many challenges providing care at home. A wife caring for her husband may risk injury trying to move him or help him bathe or use the toilet. Another situation may be the challenge of keeping constant surveillance on a spouse with advanced dementia. Or a son may live 500 miles from his disabled parents and find himself constantly traveling to and from his home, trying to manage a job and his own family as well taking care of the parents. Some caregivers simply don't have the time to watch over loved ones and those needing care are sometimes neglected.

The problems with maintaining home care are mainly due to the inadequacies or lack of resources with informal caregivers, but they may also be caused by incompetent formal caregivers. These problems center on five issues:

1. Inadequate care provided to a loved one
2. Lack of training for caregivers
3. Lack of social stimulation for care recipients
4. Informal caregivers unable to handle the challenge
5. Depression and physical ailments from caregiver burnout

In order to make sure home care is a feasible option and can be sustained for a period of time, caregivers must recognize these problems, deal with them and correct them. The responsibility for recognizing these problems and solving them is another function of the long-term care planning process and the team of specialists and advisers involved.

Adequate Funding Solves Most Problems Associated with Providing Home Care
None of the problems discussed in this article would be an obstacle if there were enough money to pay for professional services in the home. These services would be used to overcome the problems discussed in the previous section. If someone desires to remain in the home the rest of his or her life, adequate preplanning could provide the solution.

This planning must occur prior to retirement. The most obvious way to provide sufficient funds for home care is to buy a long-term care insurance policy when someone is younger, healthy and able to afford the lower premiums. If insurance is not an option, then money must be put aside early in life to pay for care in the future. The only other option is to be rich.

Unfortunately, very few people address the issue of needing long-term care when they are older. This leads to a lack of planning and in turn leads to few options for elder care when the time comes. Lack of planning means most people do not have the luxury of remaining in their homes and must rely on Medicaid support in a nursing home to finish out the rest of their lives.

For your full Medicaid planning and home care options, consult a qualified Florida elder law attorney.

Labels: Florida Elder Care, Florida Elder Law Attorney, Florida Medicaid Planning

Karen Greenberg and Jaret Vogel, directors of Prosperity Life Planning, a special needs educational nonprofit organization, have created a new corporation called the Special Needs Tax Credit Alliance (SNTCA). The mission of SNTCA is to build national support for Congress to enable a $5,000 refundable tax credit, to reimburse parents of adults with disabilities and seniors with dementia for the legal expenses of guardianship for their loved ones, and/ or creation of a Third Party Irrevocable Special Needs Trust. The legal work for this mission was completed pro bono by the international law firm of Proskauer, Rose LLP. An IRS filing for 501(c)(4) status (Social Welfare Organization) is currently in progress. Donations will not be tax deductible for the donor but will be tax exempt for the companies' purpose.

The Special Needs Tax Credit Alliance will enlist the support of national parent, disability, senior and guardianship advocates, as well as attorneys and bar associations to support this tax credit proposal. SNTCA is completing final State of Florida registration to allow donations be made to support their cause.

"Having met numerous parents in our counseling of special needs families, we've seen their great surprise to learn that when their child turns 18, the parents are no longer considered the legal guardian. They are further shocked to learn it may cost $5,000 to retain guardianship. Many families cannot afford this legal expense. The child is then left in a 'Catch-22' situation: they do not have the competence to speak for themselves in legal, health care and financial matters, yet the parents cannot afford the legal expense to retain guardianship. The Special Needs Tax Credit Amendment addresses these issues, and provides a sensible and affordable method for these parents to protect their loved ones' interests."

Professional fees, court costs and filing fees bring the approximate cost for full guardianship to $5,000. A number of families may have two or more children with disabilities, thus further straining the family budget. Many of these families have had extraordinary expenses over the course of their child's life for therapies, equipment, specialized recreation, specialized diets, and other expenses, that "typical" children do not require.

A "refundable tax credit" is a dollar-for-dollar reduction in the amount of taxes due. To the extent taxes are paid by a parent, a receipt for legal services would allow a tax refund of their expenses. To the extent that the cost exceeds the amount of federal income tax paid, the government would provide the additional tax refund, much like the child tax credit currently employs.

Jaret Vogel, Director of SNTCA states "Since the time of our earliest colonists, Americans have sought to have a voice in their affairs. The Special Needs Tax Credit Amendment will enable family members to speak for their loved ones who cannot speak for themselves, currently a disenfranchised population. We see this situation as a violation of the First and Fourteenth Amendments, which guarantee Freedom of Speech and equal treatment under the law. How can these people participate if the family cannot afford the extraordinary expenses of guardianship, expenses "typical" families are not burdened with?"

For more information, call Jaret Vogel at 561-865-2921, or email to info@specialneedstaxcredit.com.

Labels: Florida Elder Law Attorney, Florida Guardianship

Many elderly people rely entirely on family or other trusted individuals to help them. Whether it is for physical needs or emotional needs, as people grow older they tend to need more and more help from others. This dependence on caregivers or family members makes an older person more vulnerable for abuse. Of course, if you suspect abuse, contact a Florida elder law attorney.

For example, an older person relying on her children to provide meals and transportation and help her with financial decisions finds it difficult to complain when one of her children takes advantage of her. If, for instance, the child takes her money, hits her or neglects her care, the parent may be threatened with loss of support from the child if the parent complains. The child may also use threats of violence to keep the parent in line.

It is estimated that 5% to 10% of elderly Americans are suffering abuse. According to the National Committee for the Prevention of Elder Abuse,

“Spiraling rates of elder mistreatment are reported by both practitioners and researchers. In a recent national study of Adult Protective Services (APS), typically the agency of first report concerning elder abuse, there were 253,421 reports of abuse of adults age 60+ or 832.6 reports for every 100,000 people over the age of 60 (Teaster, Dugar, Otto, Mendiondo, Abner, & Cecil, 2006). The National Elder Abuse Incidence Study (National Center on Elder Abuse, 1998) found that more than 500,000 persons aged 60+ were victims of domestic abuse and that an estimated 84% of incidents are not reported to authorities, denying victims the protection and support they need.”

Much attention has been focused on abuse in nursing homes but most of the elder abuse in this country is at the hands of family members or other caregivers in the home.

In 2004, Utah Adult Protective Services workers investigated approximately 2,400 allegations of abuse, neglect or exploitation of vulnerable adults. In Utah, a vulnerable adult is defined as an elder adult (65 years of age or older) or an adult (18 years of age or older) who has a mental or physical impairment, which substantially affects that person's ability to protect or provide for themselves. The majority of the victims were females between the ages of 60-89 and 60% of the perpetrators were family members/relatives, while 24% were non-related paid caregivers.

The protective needs identified were as follows:

• self-neglect 31%
• physical abuse 16%
• exploitation 19%
• caretaker neglect 12%
• emotional abuse 19%
• sexual abuse 3%

In conducting the investigations, it was not uncommon to find that adults who were self-neglecting were also being exploited or abused. As stated previously, these statistics are based on approximately 2,400 cases, thus, if only one in ten cases are ever reported, it is possible that there were actually 24,000 or more cases in Utah that year. We suspect 9 out of 10 is close to the actual ratio of unreported versus reported cases in Utah.

We also believe that Utah's lack of reporting elder abuse is not unlike other states in the country. We suspect all the states are experiencing close to the same ratios of underreporting as in Utah.

There are a number of reasons why incidents of abuse, neglect, or exploitation are not reported to Adult Protective Services or other authorities. One of the most common reasons is the victim's fear of losing support. Many of the perpetrators are family members and the victim fears that reporting the crime will result in removal of the caregiver, as the perpetrator may face incarceration or may discontinue relations with the victim once accused, charged, or convicted. Many of these victims fear that by reporting abuse they will be left alone and expected to care for themselves or they will be forced to live in a nursing home.

Many states have implemented mandatory reporting laws to assist in the prevention of abuse, neglect or exploitation of vulnerable adults. Utah is one of the many states to have a mandatory reporting law (U.C.A. § 76-5-111). Utah law states that any person who has reason to believe that a vulnerable adult has been the subject of abuse, neglect, or exploitation shall immediately notify Adult Protective Services or the nearest law enforcement agency. Anyone who makes the report in good faith is immune from civil liability in connection with the report; however, any person who willfully fails to report is guilty of a class B misdemeanor.

It is important to note that the anonymity of the person or persons making the initial report and any other persons involved in the subsequent investigation shall be preserved and may only be released in accordance with the rules of the division (U.C.A. § 62A-3-311). In addition, all investigation information is confidential.

The following is a list of indicators of abuse, neglect or exploitation. It is important to note that the following lists are merely indicators and may not always be violations.

Signs of Abuse:

• Unexplained bruises, welts, fractures, abrasions or lacerations
• Multiple bruises in various stages of healing
• Multiple/repeat injuries
• Low self-esteem or loss of self determination
• Withdrawn, passive
• Fearful
• Depressed, hopeless
• Soiled linen or clothing
• Social Isolation

Signs of Neglect/Self-Neglect:

• Dehydration
• Malnourishment
• Inappropriate or soiled clothing
• Odorous
• Over/under medicated
• Deserted, abandoned or unattended
• Lack of medical necessities or assistive devices
• Unclean environment
• Social Isolation

Signs of Exploitation:

• Missing/"disappearing" property
• Inadequate living environment
• Frequent/recent property title changes or will changes
• Excessive home repair bills
• Forced to sign over control of finances
• No/limited money for food, clothes and other amenities

Prevention can only occur if there is awareness, the statutes are adhered to, and any suspicions of abuse, neglect or exploitation of vulnerable adults are immediately reported to Adult Protective Services and/or law enforcement.

All states have agencies that receive complaints of abuse. In some states failure to report abuse of the elderly is a crime. To contact an abuse complaint department, call your local area agency on aging.

Labels: Florida Elder Care, Florida Elder Law Attorney

We are proud to announce that Howard S. Krooks, JD, CELA was appointed to a one-year term as Secretary for the National Academy of Elder Law Attorneys (NAELA) Board of Directors. Mr. Krooks was also recently honored at the NAELA Annual Conference, which took place April 1-5, 2009, in Washington D.C. Mr. Krooks was one of four attorneys bestowed the organization’s highest honor of becoming a NAELA Fellow.

Howard S. Krooks is a partner of Elder Law Associates PA with main offices in Boca Raton, Florida and Of Counsel to Amoruso & Amoruso, LLP in Westchester County, New York. He is admitted to practice law in Florida and New York. Mr. Krooks’ professional practice is devoted to elder law and trusts and estates matters, including representing seniors and persons with special needs and their families in connection with asset preservation planning, supplemental needs trusts, Medicaid, planning for disability, guardianship, wills, trusts and advance directives.

As a member of the Joint Public Policy Task Force of the Florida Bar Association Elder Law Section and the Academy of Florida Elder Law Attorneys, Mr. Krooks works to protect the rights of the state’s most vulnerable citizens. Mr. Krooks is certified as an Elder Law Attorney by the National Elder Law Foundation. He was honored with the designation of NAELA Fellow in 2009. He serves on the Executive Council of the Elder Law Section of The Florida Bar as the NAELA Liaison. He is a Past Chair of the Elder Law Section of the New York State Bar Association (NYSBA), where he continues to serve on the Executive Committee.

Labels: florida elder law, Florida Elder Law Attorney