New York Nursing Home Abuse Lawyer Blog

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).

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

Today, June 15, 2011, is the sixth annual World Elder Abuse Awareness Day. It falls in the middle of World Elder Abuse Awareness Week, which commenced on Monday. While it is important to specify a day or week in which to give attention to the cycle of abuse that many elderly in society face, it is also imperative to remember that this abuse happens every day. We must remain vigilant as a society in an attempt to eliminate elder abuse.

As this blog has chronicled in the past, elder abuse occurs in many forms: physical abuse, emotional abuse, sexual abuse, and financial abuse, to name several. Unfortunately, often this abuse does not occur at the hands of an unkown hospital or nursing home aide, but rather at the hands of family members.

World Elder Abuse Awareness Day helps to raise the public profile of the growing ubiquity of elder abuse. Events such as this, as well as celebrities such as Mickey Rooney speaking about their own experiences, will hopefully bring an awareness of the perils that our elderly citizens face. If you suspect that someone you love has been a victim of elder abuse, please contact the proper authorities as soon as possible. With the proper level of awareness, perhaps someday we can bring an end to elder abuse in its many forms.

A recent study by Cornell University has found that elder abuse is far more pervasive than reported cases would indicate. The study indicates that shockingly low percentages of elder abuse are actually reported to authorities. In cases of general elder abuse, only 4.3% are brought to the attention of authorities. Financial abuse is reported approximately 2.3% of the time. Incidents of general neglect are made known in a staggeringly low 1.7% of cases.

.Entrusting the care of an elderly loved one to a third party is an intrinsically difficult decision. Even with the proper amount of research, elder abuse is an unfortunate reality that too many families are forced to deal with. The lawyers at Gallivan and Gallivan are trained to help families through these trying situations. If suspected elder abuse has occurred, please contact us to help make the situation right.

Website Resource:

Fraction of Elder Abuse Cases Reported, Study Finds The Sacramento Bee, Anita Creamer, January 5, 2011

Unfortunately, elder abuse is often perpetrated by those individuals closest to the victim. As Saul Friedman of Newsday recounts in his June 18, 2009 article, an elderly woman on Long Island attempted to protect her assets from Medicaid by providing her daughter with a life estate to her home (the right to live in the house during the mother's lifetime). However, her son-in-law used this life estate to banish the woman to the basement. Without a familiarity of her own rights, the woman did not seek assistance of an attorney and lived out the rest of her life as a prisoner in her own home.

The article also cites a joint study conducted by Virginia Polytechnical Institute and Adult Protective Services. The results of the study indicate that the recession has increased the vulnerability of older people, many of whom fail to report the abuse. Family members and caregivers are the perpetrators of the abuse in 55 percent of the instances. The typical victim, the report said, "is between 70 and 89, white, female, frail and cognitively impaired. She is trusting of others and may be lonely or isolated."

Website Resources:

The elderly: financially exploited by families, Newsday, Saul Friedman, June 18, 2009.

Dr. Eva Mor has authored a book entitled "Making the Golden Years". Dr. Mor's research has revealed many disturbing truths the elderly population will encounter, from insufficient incomes to elder abuse. According to her book, the U.S. Dept. of the Aging has estimated that by 2019 the number of Americans over 85 will increase to 4.2 million, an increase of 44 percent from today. The median income for men is $21,102 and $12,080 for women over 85 years old.

The average annual cost of a stay in a nursing home in the United Sates is approximately $70,000. Medicare covers 100 percent of costs for only 20 days and partial cost for 80 days. After the 100 days, Medicaid will take over if the individual is eligible. Assisted living facilities are not covered by Medicare and can range from $40,000 to $100,000 a year.

Even more sobering (and disturbing), the elderly are often the target of devious telemarketers (approximately half of the $40,000,000 stolen in telemarketing scams has been attributed to elderly victims). The NY Times reported that a list severely impaired elderly individuals was sold to telemarketers. The book also indicates that 500,000 cases of elder abuse were reported in 2006. It is also likely that at least that many go unreported. Dr. Mor's book offers practical tips to avoid these pitfalls.

Website Resources:

Making the Golden Years, Health News Digest, Eva Mor, June 21, 2009.