Five Legal Issues Caregivers Face

As your loved ones get older, they may become more physically and/or emotionally vulnerable. Unfortunately, this presents a situation in which they can easily be taken advantage of. To adequately prepare for this situation in the event that it occurs, legal planning is necessary. In many cases, families fail to consider these arrangements. In other cases, the plan they established does not have a durable legal foundation and thus, fails. With the correct knowledge, you have the opportunity to prepare early on to protect your legal interests when caring for a senior family member. As you begin to explore your legal options, there are some problems you may face as a caregiver.

What are the issues that Caregivers Face?

1. Problems with Power of Attorney

It is extremely important to draft a power of attorney (POA) to establish someone you trust to make decisions as a healthcare or financial proxy. A POA document establishes an individual (the “principal”) to assign a trusted relative (the “agent”) to make healthcare, legal, and financial decisions on their behalf. This document can also specify how much power the principal allows or limits to the agent. A POA ensures that if you are unavailable/unable to make decisions for your senior family member, another person can step in and take your place. However, this decision often comes at the expense of family relationships when someone is chosen over another person. Additionally, it may be a complicated process when filing with your bank. Despite the challenges a POA may present, it is important to draft one as soon as possible even if your elderly family member is still mentally capable. In some cases, they may still want your help with minor responsibilities. It is also best to be well prepared for the future in case there is a sudden change in their mental or physical status.

2. Seeking Guardianship of an Elder

Oftentimes, family members do not prepare for possible deterioration in the senior’s medical status. Thus, the family fails to file a Power of Attorney document prior to the senior's sudden loss of competence. Alternatively, in some cases, the person that was assigned the role of caregiver abuses their power. To appoint a new caregiver, long and expensive guardianship proceedings are usually needed.

3. Preventing and Prosecuting Elder Abuse

The National Center on Elder Abuse (NCEA) defines elder abuse as “any knowing, intentional, or negligent act by a caregiver or any other person that causes harm or a serious risk of harm to an older adult.”Mentally vulnerable senior citizens are most likely to fall victim to abuse. Those with Alzheimer’s disease or dementia are unable to defend themselves and often unaware of what is taking place. Even senior citizens who are mentally capable can still fall victim to abuse such as a caregiver that steals from their home. 

4. False Accusations of Abuse or Neglect

Senior family members with dementia may have a tendency to sabotage their caregivers and themselves. They may falsely accuse caregivers of elder abuse when they forget who the person is or don’t get what they want. Unfortunately, even if their abuse accusation has no real claim to it, caregivers may have to deal with APS investigations and/or legal action. To prepare for such possibilities, you should keep records of the activities you provide, when the senior’s doctor diagnosed them with dementia, what stage their dementia was initially diagnosed at and how it has progressed, and lastly, when they had to give up responsibilities such as cooking and driving.

5. Estate Administration

Estate administration involves the collection and distribution of assets to beneficiaries. To make this complicated process easier, a will should be drafted well in advance. A will is a legal document that details an individual’s financial and social wishes, and goes into effect after they pass away. Problems arise when family members fail to draft a will before their loved one passes away, fail to update it as more assets are discovered, or fail to share it with the appropriate family members. While a will simplifies the legal aspects of estate administration, it can cause divisiveness between competing family members. 

How an Elder Care Attorney Can Help

If you are a new caregiver for an elderly loved one, it is important to seek advice from an attorney with abundant experience in elderly care. If you have been a caregiver for years, but have come across an unexpected legal issue, it is also important to consult an experienced professional. It is never too early to start looking into a well developed elder care plan. It is extremely important to be prepared in case a sudden event occurs causing a deterioration in health or a case of elder abuse arises. It is just as important to protect yourself from unfortunate false accusations on your loved one’s behalf when they are mentally disabled. For further information on how to start your Elder Care planning, please contact the Law Office of Inna Fershteyn at (718) 333-2394 to obtain aid in the drafting of legal documents and help with any of your Elder Care needs.

Top 10 Questions About Elder Abuse

1.What is Elder Abuse and What types of Abuse take place?

Elder Abuse pertains to specific actions that purposely harm the elder in terms of emotional, physical, financial, and mental harm. The caregiver makes careless decisions that negatively impact the elder they are looking after. Physical abuse uses force and physical contact to threaten or injure the elder. Financial abuse is direct exploitation of the elder through theft, fraud, and other methods of gaining control of the individual’s money. Mental abuse comes in the forms of emotional abuse, neglect, and abandonment. Emotional abuse utilizes verbal attacks, rejection, or isolation to cause harm to the vulnerable elder. If the caregiver causes any form of purposeful distress and anguish on behalf of the elder, this is a clear form of Elder Abuse.

Top 10 Questions About Elder Abuse

2.How do I identify if the caregiver is abusive?

In order to know if your loved one’s caregiver is abusive, you must first be aware of the signs of abuse. Some behavioral signs that may indicate abuse pertain to excessive alcohol use, controlling elder’s actions and decisions, isolating the elder from family members and friends, emotional or financial dependency on the elder, etc. Some other key behaviors you should note are minimizing the elder’s injuries, blaming the elder for the injury or action, threatening to harm an elder’s pet, calling the elder names they do not like, previous criminal history, and temper or anger issues. In terms of long term care facilities, you should look out for negligent hiring practices on behalf of the facility, inadequate training of professionals, and use of staff who lack compassion and empathy towards the elderly population. 

3.What are common warning signs of elder abuse?

There are numerous physical and even emotional signs that may indicate the presence of elder abuse. Some of the common physical signs include slap marks, burns or blisters on the elder’s body. You should pay attention to explanations that do not align with the injury the elder has acquired because this is the abuser’s way of trying to cover up the tracks of their actions. If the elder withdrawals from typical behaviors they enjoy, this is a clear emotional sign of elder abuse. Bruises around the genital area indicates sexual abuse and must be adressed immediately. Sudden changes in financial assets or legal documentation, such as wills, trusts, health care proxy, and power of attorney are important to look out for. Untreated bed sores, dental issues, or any medical issue that goes untreated and unnoticed by the caregiver is a tell tale sign of elder abuse or neglect. 

4.Are all elders at risk?

Not all elders are equally at risk because it depends on the individual’s level of care and their specific situation. It is important to keep in mind that all elders are at risk of abuse and neglect, so you should be aware of the signs of mistreatment. Elders that tend to be more exposed to abuse are typically socially isolated due to poor social networks and lack of family members or friends. Elders who have mental impairments, disabilities, or mental illnesses are at high risk of being mistreated and taken advantage of due to their vulnerability. 

5.What does Elder Self-Neglect mean?

Elder Self-Neglect occurs when an elderly individual is unable to adequately care for themselves and their needs. This puts the elder at risk of being harmed and abused by others. There are a vast variety of signs that you can look out for when identifying self neglect. Some of these signs include the lack of food or basic utility essentials in the elder’s household, refusing to take medications or eat, hoarding of trash or animals, unsafe living conditions populated with insects or vermin of sorts, etc. Other signs to look out for are poor grooming and appearance such as soiled clothing or dirty fingernails, isolation, lack of social support, alcohol, and drug dependence. 

6.Are there laws in place to prevent elder abuse?

As of currently, there is no federal law to prevent elder abuse, however each state has their own laws concerning elder abuse, neglect, and abandonment. In order to learn about your state laws you should reach out to an attorney in your area who has experience in the field and can help you understand if your loved one is the victim of elder abuse. New York is a state that does not have mandatory reporting laws concerning elder abuse. However, New York does require those working in adult protective services to report abuse on behalf of elderly individuals who are being harmed. There are options regarding the following steps of what to do and who to report to once you have witnessed or experienced elder abuse.

7.What steps should I take if I suspect there is elder abuse occurring?

In the case that you suspect elder abuse you should call the police or adult protective services immediately. Some people worry that they will have to find a way to prove the abuse prior to making a report. However, this is not true. Therefore, you should report any sign of elder abuse or neglect as soon as possible even if you do not have concrete proof of harm. In order to report abuse go to an elder abuse website and click on the option that states “where to report” and it will give you the address or telephone number of a place in your area.

8.What information will I have to provide when I call to report the elder abuse?

You should be aware of the elderly individual’s name, contact information, home address, and details concerning why you suspect this individual is the victim of elder abuse. In some cases, you may be asked to leave your name and telephone number so that you may be contacted if the need arises. If you feel uncomfortable with leaving your private information you may report it anonymously. Your confidentiality will be protected, if that is a concern for you that may prevent you from reporting the abuse. 

9.Who is responsible for investigating the abuse?

Adult protective services are the first responders in reporting elder abuse, neglect, and exploitation. These agencies are responsible for taking reports, investigating potential allegations of elder abuse, and provide aid to victims of such abuse. In the case that the abuse is confirmed to be true, then the Adult Protective Services will work with other agencies to ensure that the eldelry individual is properly cared for and provided for. Law enforcement will take action if necessary to collect all of the evidence that would be necessary for persecution. If the elderly individual is unable to manage their own affairs, the court may appoint a guardian to make decisions on the individual’s behalf.

10.How to report financial elder abuse?

Some states offer 24/7 hotlines to report abuse and others have forms at the police office where you may report this abuse. In order to ensure that action can take place you must report the elderly individual’s name, as well as their address. You should identify the location of any suspected actions of abuse, such as the elder’s home or at a long-term care facility. You must provide as many details as possible regarding what you saw or heard in terms of what led you to believe that elder abuse was taking place. Law enforcement will require witnesses and other forms of evidence to make its case, so the more details you provide, the simpler it will be to initiate the case procedures. 

For further elder abuse information please contact a Law Office of Inna Fershteyn at 718-333-2394 to learn how to report abuse, neglect, or exploitation. 

Why Elder Law Attorneys Aren’t Just For Seniors?

An Elder Law Attorney serves as an advocate for the elderly and their loved ones when it comes to the legal issues related to healthcare and financial assets. Individuals who have reached an old age or are approaching the 65 benchmark should consider hiring an Elder Law attorney to assist them with the matter of retirement, social security, Medicaid, long term care planning, guardianship, disability, etc. An Elder Care Attorney will address the importance of creating an estate plan composed of a will, trust, health care proxy, power of attorney, and letter of intent in order to effectively prepare for the future. There are numerous benefits to hiring an Elder Law attorney, some of which include guidance in long term care planning, assistance in creating a durable power of attorney, aid in receiving Social Security benefits, and protection against elder abuse. Elder Law Attorneys are specialists in their field, as they have much experience handling similar cases related to the specific needs of seniors. The attorney will utilize a holistic approach in ensuring that the key issues pertaining to long-term care, housing, well-being, and financial asset protection adhere to the wishes of the elderly individual. In terms of requiring assistance in creating trusts and wills for an elderly loved one, an esteemed Elder Attorney will be able to guarantee that the documents have the individual’s best interests at heart. The lawyer will work with you to protect your assets in the best manner possible to ensure that necessary payments are made on the home and other personal costs, while making sure that there is no form of financial exploitation of assets that could harm your loved ones.

Elder Law Attorneys Aren't Just for the Elderly

Benefits to Hiring and Elder Care Attorney:

1)Guidance in long term care planning

In the case that an individual’s physical and mental health declines, a long-term care facility is typically the most effective plan of care for the individual. When considering which long-term care facility is most effective for your loved one’s needs be sure to also note that the payment plan for this facility is within your price range. An Elder Care Attorney can assist you in obtaining long-term care insurance that will help cover the expenses of care, as prices are on the rise in NY. In the case that long-term care insurance is out of your financial budget, an Elder Care Attorney can assist in qualifying for Medicaid. You are guaranteed to make the best long term care decision possible for your loved one if you seek proper instruction and assistance from an experienced attorney.

2)Assistance in creating a durable power of attorney

A durable power of attorney serves to grant a third party the ability to make decisions and take actions on behalf of the individual who has become incapacitated, as they are no longer able to make decisions independently. An Elder Care Attorney prefers a durable power of attorney rather than just the typical power of attorney because the durable document remains functional even after the individual loses the ability to make decisions for themselves. On the contrary, the typical document would only function if the individual has not become mentally incapacitated. An attorney will guide you through the process of filling out this document to ensure that your future is well planned for. 

3) Aid in receiving Social Security Benefits

An Elder Care Attorney works to guarantee that you are receiving all of the benefits you deserve based on your current age and overall health. Once you reach the age of 67 you are subject to receive the full Social Security benefits. If you have reached this age and are not receiving your full benefits, an attorney will advocate on your behalf and work to grant you your benefits. If you have a disability and are subject to receive disability benefits, then the attorney will assist you in obtaining those benefits by following a similar legal procedure. According to NY State regulations, Social Security Disability Insurance (SSDI) guarantees that you may begin collecting benefits after 6 months since the start of your disability. With the support of an esteemed Elder Care Attorney, you will certainly receive all of the benefits you rightfully deserve.

4)Protection against elder abuse

With the current foundation, research has shown that many elderly residents in nursing homes are facing unjust treatment. An Elder Care Attorney will work with you by representing your loved ones who have been the victims of physical violence, emotional mistreatment, or financial fraud. The attorney will not just provide guidance on the following steps, but will ensure that justice is served and your loved one will never be treated in this manner ever again. The attorney will advocate for the rights of your loved one to guarantee that they are being properly cared for and looked after, especially during these troubling and challenging times.

So, In Sum, Why Elder Law Attorneys Aren’t Just For Seniors?

Elder Law Attorneys work to assist individuals in creating a plan for their future to ensure that the individuals interests and best wishes are clearly declared. These individuals are not always seniors. As a matter of fact, it is recommended that you hire an Elder Care Attorney prior to the age of 65. It is always better to be prepared for anything, rather than procrastinate on preparing for your future. Many individuals fall victim to the assumption that they have an unlimited period of time left to get all of their assets and legal information together. The unfortunate truth is that life is inexplicable and unexpected events can occur at any point in time. In the case that an individual does not have an elder care in place prior to the point in time when they biome incapacitated, then their loved ones must embark in the costly and lengthy process of earning the legal authority to act on their loved one’s behalf. It is encouraged that you avoid waiting because the guardianship legal procedures associated with waiting too long to create an elder care plan are very complex and expensive. If individuals do not take the time to create a will, then they will not be able to decide how they would like their assets to be distributed or how their minor children would be cared for. The court would then be responsible for distributing your assets and estates, which may not align with your wishes. It is certainly better to be well prepared ahead of time, rather than at a loss when the time comes. Make the decision today to protect yourself and your loved ones by hiring an Elder Care Attorney to draft all of your legal documents and create a plan for the future. 

For Elder Care inquiries please contact the Law Office of Inna Fershteyn at 718-333-2394 to best prepare your legal documents for the future.