New York Nursing Home Abuse Lawyer Blog

Two employees at a Staten Island long-term care facility, Lily Pond Nursing Home, recently lost their respective licenses after a 40 year-old resident was abused. Cynthia Ferry, a Certified Nurse Aide at the facility, was observed by an EMT striking the 40-year old resident in the head.

Josefina Bernabe, a Licensed Practical Nurse, worked the evening shift as a Nurse Supervisor on the night of the assault. She was advised by the EMT worker that he witnessed C.N.A. Ferry strike the resident on the head. After being informed of the incident, LPN Bernabe told the EMT worker not to report it to protect Ferry from getting in trouble.

Both employees were charged by the Medicaid Fraud Control Unit of the New York State Attorney General's Office. As a result of the charges, both were forced to surrender their respective licenses (Ferry - C.N.A.; Bernabe - L.P.N.) with the condition the they refrain from engaging in any employment in the health care field.

Long-Term Care Community Coalition, Enforcement Actions, 3/16/11 - 6/15/11.

Two Certified Nurse Aides at Ferncliff Nursing Home Co. Inc., a Dutchess County, NY Nursing Home, were recently forced to surrender their C.N.A. certificates after a fall during a transfer at the facility. According to a Long-Term-Care Community Coalition report, Stephen Thomas, a C.N.A., transferred a 94-year old resident, who slipped and suffered a broken arm.

The care plan in place called for the assistance of two staff members during transfers. After the incident occurred, Stephen Thomas asked another C.N.A. to lie about the incident and claim that they transferred the resident together in compliance with the care plan.

Both aides were charged criminally and forced to surrender their C.N.A. certificates as a result of the incident. As we have discussed many times here at the New York Nursing Home Abuse Lawyer Blog, we have handled many cases where attempts were made by nursing home employees to cover-up incidents of neglect and abuse. Although there is no denying that a fall resulting in a fractured arm is a very painful injury, the cover-up here was likely worse than the "crime" itself and likely lead to a more severe punishment for the C.N.A.'s involved.

The New York State Department of Health defines Medicaid as "a program for New Yorkers who can't afford to pay for medical care." While this is certainly true, it provides only a portion of the full explanation of Medicaid. In fact, Medicaid is available to everyone. Only through careful Medicaid planning, however, can many people actually obtain Medicaid benefits.

All too often, an individual finds themself in the position of needing long term care but being unable to afford it. And in this time of ever-changing health care costs and plans, providing for long term care can seem additionally daunting.

Medicaid planning is a way to ensure that an individual allocates his or her assets in such a way that, should the time come and necessity arise, Medicaid benefits are available to them. An individual may only claim a certain amount of combined income and assets per month to be eligible for Medicaid. This total number depends upon marital status and children, among other factors. Maintaining a threshold of resources below the standard is essential to maintaining Medicaid eligibility. The amount of coverage available through Medicaid is also subject to restrictions and limits, even when an individual is safely below the personal income threshold.

The process of Medicaid planning can seem fairly confusing at first glance. It can be difficult for an individual to maneuver through the intricacies of the system. Fortunately, a capable Medicaid planning attorney can illuminate the process. Far too many people leave money on the table when it comes to potential long term health care. Speak to an attorney at Gallivan and Gallivan today to ensure that, should you need them, the full benefit of Medicaid coverage is available to you.

A guardianship may be appointed when an individual, sometimes referred to as a "ward", is no longer capable of caring for himself or herself, or his or her property. The guardian assumes the responsibility of decision-making for the incapacitated individual.

In general, there are several different types of guardianships. For the purposes of this blog, we will focus on three of these types. The first is a guardianship of the estate. In a scenario involving guardianship of the estate, the guardian is authorized to make decisions regarding the incapacitated person's "estate"; in other words, the guardian may decide what is to become of the ward's property or assets.

The second type of guardianship is known as a guardianship of the person. In contrast with a guardian of the estate, a guardian of the person is delegated the responsibility for making decisions regarding the ward's personal welfare. These responsibilities would include living situation or custody, personal and fiduciary relationships, and general activities, to name just a few.

Lastly, the third type of guardianship to discuss is plenary guardianship. A plenary guardianship combines the elements of the first two categories. Specifically, a plenary guardian is authorized to manage decision's regarding both the ward's assets and estate, and his or her personal affairs.

Specific to New York, there are two primary types of guardianships. The first is known as an Article 17-A guardianship. This serves to extend parental rights over a mentally disabled child past the age of 18. A 17-A guardian can be of the person, property, or both.

An Article 81 guardianship is more relevant to the field of elder law. This type of guardianship is used for an elderly or incapacitated individual who is no longer able to care for him or herself. Again, an Article 81 guardianship may fit any of the three categories listed above. Generally in Article 81 proceedings, the court will enumerate specific areas in which the guardian is authorized to make decisions for the ward.

Guardianships can be, and quite often are, tailored to meet the specific needs of the incapacitated individual. Additionally, although a guardian is appointed by the court, family of the individual normally have input as to whom the guardian will be. An experienced New York elder law attorney can help navigate this process to ensure that the needs of both the individual and family are met. If you feel that a loved one may no longer be able to handle his or her affairs, please contact the attorneys at Gallivan and Gallivan today to discuss what steps can be taken.

In an August 30, 2011 decision, the Hon. Anthony Scarpino of the Westchester County Surrogate's Court granted summary judgment in a will contest proceeding. The court denied the will probate, and dismissed the proceeding.

The decedent passed away in late May of 2009, survived by his wife and six children (five from a previous marriage). The will in question was executed in April 2009, distributing to the decedent's wife an amount equal to her elective share, with the remainder distributed equally among his six children. (An elective share is the percentage of a decedent's estate that a surviving spouse may "elect" to receive should he or she not receive a just portion of his or her decedent's estate through the will. In New York, the elective share is equal to the greater of $50,000 or one third of the estate).

The decedent's daughter from a prior marriage served as the proposed executrix of the estate. The same attorney that drafted the will in question served as the daughter's counsel. The proponent of the will failed to comply with numerous discovery demands, and counsel failed to appear in court numerous times. The objectants filed for summary judgment. Summary judgment can only be granted where there exists no triable issue of fact between what the two adversarial sides present. In support of their motion, the objectants presented several medical documents suggesting that the decedent was suffering from Alzheimer's-type dementia. In light of this evidence, burden fell to the proponent to prove that the will was duly executed in compliance with New York law. Because the proponent was unable to prove that this was the case, the court granted summary judgment and denied the will probate.

Probate is a complicated process. Obviously in this case the court felt that questions of mental capacity outweighed the will that the proponent presented. In a strongly worded opinion, the court essentially calls the will questionable in its formation and execution. This case serves as a prime example of the importance of estate planning. A skilled estate planning attorney can help streamline the probate process, and in some instances, even circumvent it in its entirety, relinquishing the potential burden to the family after a decedent passes on.

Citation: Will of Charles P. Haynes, 2010-140/A, NYLJ 1202514015710, at *1 (Surr., WE, Decided August 30, 2011).

Power of attorney, in its simplest form, transfers to the grantee the ability to make authorized legal decisions on behalf of the grantor. Under this general, or ordinary, power of attorney, the agent is authorized to make decisions for the grantor only in specific circumstances. The relationship can be revoked by the grantor, and it terminates upon his or her death or incapacity.

A more specific variant is durable power of attorney. With this document, the relationship continues should the grantor become incapacitated or incompetent. Because of the inherently intimate nature of many of these decisions, a durable power of attorney is often given to a close relation or loved one; someone whom the principal trusts to make decisions for him or her should he or she be unable to do so.

Contemplating a time when we are unable to communicate our own wishes is not a comfortable proposition. However, life is unpredictable. We would all like to believe that we will be capable of making decisions for ourselves until the very end. Often this is not possible or practical. With a durable power of attorney, you can be confident that someone whom you love and trust will make the correct decisions regarding your well-being in the event that you yourself are unable to do so. As twilight years approach, it is essential to ensure that your personal wishes for care are fulfilled. A durable power of attorney is a measure of security to provide peace of mind that a specific loved one will make your desires known for you in the event that you are unable to do so yourself.

Call the Elder Law Attorneys at Gallivan & Gallivan to discuss Power of Attorney documents and other elder planning tools.

Through the use of a health care proxy document, an individual can appoint someone else, known as a health care agent, to make important health-related decisions should the individual become incapable of making the decisions for him or herself. Generally, a health care agent is a close relative or trusted friend--someone who will guard your best interests should an occasion arise in which you are unable to do so for yourself.

As soon as an individual reaches the age of majority, he or she should appoint a health care agent. In the event that you suffer an unexpected injury or illness, rendering you incapable of determining your own course of healthcare, a health care agent can act in your best interests while you are incapacitated. Upon regaining full capacity, you also regain full decision-making. This form of health care proxy serves as a safety net in case the unexpected happens.

Designating a health care agent through proxy is also essential for estate planning. In the event that you are rendered permanently unable to make competent decisions for your own well-being, a trusted health care agent will serve as your liaison to your medical caregivers. And because you yourself have appointed this agent, you will have the comfort of knowing that he or she will act based on your previously expressed directives.

Growing old is difficult both for individuals and for their families. By utilizing a health care proxy in advance, you can be sure that your unique care plan is followed. You can also be sure to avoid difficult processes and decisions for your family. Setting up a health care proxy is a necessary aspect of both emergency preparedness and long-term planning. Setting it up as soon as possible leaves you with one less concern in both the near and distant future.

A key facet to President Obama's health care reform initiative has been eliminating health care fraud throughout the United States. Yesterday, charges were announced against 91 individuals, accusing them of fraudulently obtaining approximately $300 million from the Medicare system. One of the most shocking indictments involves a doctor billing Medicare for services provided to the deceased, as well as providing psycotherapy sessions in excess of 24 hours a day.

US Attorney General Eric Holder announced the arrests yesterday with Kathleen Sebelius, Health and Human Services Secretary. FBI Executive Assistant Director Shawn Henry said in a statement: "[T]he health care system is part of our nation's infrastructure, and we must do everything in our power to protect the integrity of Medicare."

On many levels, the Obamacare initiative has been a polarizing issue for the American people. It will certainly remain so througout the upcoming presidential campaign, as both politicians and voters take sides to debate its value, constitutionality, and long-term effects. One issue that does not seem to be in debate, however, is the need to stop Medicare fraud from adversely affecting our elder population and diverting funds from this segment of our population most in need of them. The announcement of these arrests yesterday marks a victory for the fight against Medicare fraud as well as for our elderly population much in need of Medicare's continued financial support.

Website Resource: 91 charged with Medicare fraud across U.S.

Washington Post, Jerry Markon, September 7, 2011

A recent study by the Mayo Clinic in Rochester, MN suggests that increased aerobic activity may be a deterrent to dementia later in life. Additionally, such exercise may serve to impede the development of dementia once it starts. The researchers who conducted the study define exercise as "enough aerobic physical activity to raise the heart rate and increase the body's need for oxygen."

Although the researchers concede that there is not a conclusive inverse correlation between increased exercise and decreased dementia, they feel that a strong case can be made. Past studies have also shown that aerobic activities reflect a positive increase in mental integrity. At the very least, aerobic activities increase physical well-being. Potentially adding increased mental health makes an active lifestyle even more valuable.

Website Resource: Aerobic Exercise May Reduce the Risk of Dementia, Mayo Clinic Researchers Say Mayo Clinic, September 7, 2011