Episode Transcript
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Speaker 1 (00:00):
And good morning everyone. Welcome to Life Happens Radio, your
weekly broadcast that brings you ideas, plans and things you
should be thinking about as we go through this process
of life, as we age, having new babies, working, retiring,
planning for the future. All of those things are topics
(00:21):
that we cover in depth here on Life Happens Radio.
And the bottom line to this is are you prepared?
We want our clients at Pierre O'Connor and Strauss, the
law firm that we belong to, to be prepared for
anything that life throws your way. And that is the
theme of the show. Today's topic is quite interesting and
(00:42):
for that I need someone who can dissect an interesting case,
and that is my partner, Aaron Connor. Good morning, Aaron,
and Aaron and I are going to walk you through
some things that are going on right now, some news stories.
And you gotta love the New York Post. That's entertaining
for sure, entertainment, it's also news sometimes and this case, Aaron,
(01:04):
when you look at it on its face, has so
many layers to it. But the bottom line is, folks,
we're going to talk a little bit about nursing homes
today and what goes on inside of a nursing home.
If you haven't been in one recently, you may have
a memory from forty years ago when you visited a
relative in a nursing home. I used to visit my
(01:27):
aunt and I'd pick her up and I'd take her
out for ice cream and she'd be playing cards, you know,
in the areas in the nursing home with other people
who were very mobile and with.
Speaker 2 (01:39):
It very similar my really, she was my grandmother's aunt.
She lived forever because she was not nice to anyone,
and she was just miserable, and she didn't have any
of her own kids. And we would go pick her
up for holidays. She would have a holiday with us, yep.
And right up until she fell when she was like
ninety six, she was still doing basically everything for herself,
(02:03):
living in the Terationian house. Lived in the terreation house
for fifteen years.
Speaker 1 (02:06):
And that was a nursing home population. But folks, if
you work in a nursing home today, arin they're very different. Yes,
And it's the acuity level, as we call it, the
seriousness of the conditions that put people in a nursing home.
It's either a very serious physical condition where the person
is basically wheelchair bound, right, or it's a cognitive issue.
It was more of a rest home. She didn't really
(02:27):
have anywhere else to go. She couldn't live, really shouldn't
mower lawn, She couldn't you know what I mean. It
wasn't like but today she would not be in a
nursing home. A nursing home today has very high needs patients.
And again it's physical. Is it someone who just can't
take care of themselves physically and needs assistance with all
of their activities of daily living? Or is it cognitive?
(02:49):
Is it an issue of Alzheimer's or dementia where they
can't fend for themselves and can't live independently in the community.
For our clients when they come and they talk to us,
most of them say that you know that that kill
me first Beea they do it. You know I have
the gun. I'm going to put it under my pillow.
I say, yeah, by the time you need that gun,
(03:10):
you'll forget where you put it. Yes, But it doesn't happen.
And so the nursing homes are, you know, fairly full.
They have pretty good census In New York State, we
only have one hundred and ten thousand. Now, that seems
like a lot one hundred and ten thousand nursing home beds,
but they're not building anymore, right, and they're full, and
there are a lot of New Yorkers that are aging out,
(03:32):
and that trigger point Aaron comes at a time when
families just can't take care of that individual, right, or
the individual doesn't have family and can't take care of
themselves right.
Speaker 2 (03:43):
So the second one is probably less typical, but it
certainly happens a fair amount of time. It more than
likely that person goes to the hospital for some reason
or another. They don't have anyone to advocate for them,
they don't have anyone to bring them home, and you know,
in most cases that's possible, not in every case, but
almost all. So they end up in a nursing home.
(04:05):
More typically in our area, we people come to us
and they've probably taken care of somebody longer than maybe
they even should have for their own health, right, because
no one, almost no one wants to put people in
a nursing home.
Speaker 1 (04:18):
Well, you have caregiver burnout where a lot of times
it's a spouse, yes, And I've seen this in my
career many times where the spouse is the primary caregiver
for their husband or wife, right, and they will almost
go to their grave to do the things they need
to do for their spouse. They will not let anyone
(04:40):
else do things. They're tied to that person and in
tune with what the person's needs are until their own
health fails, and then the caregiver ends up with pneumonia
in the hospital, and then the person at home has
no one there and there's no plan be correct, and
that's when sometimes that person ends up in a nursing home.
Speaker 3 (05:02):
Yes.
Speaker 1 (05:02):
The other time is you go through the hospital and
the hospital has to discharge you somewhere, and if they
determine that it's not safe for you to go home,
you have no resources or no ability to bring a
person home. Right, They may send you to rehab for
a brief time to see if you get better, and
then they're going to tell you that you need a
permanent nursing home placement.
Speaker 3 (05:23):
That's right.
Speaker 1 (05:24):
So these people with very serious cognitive and physical impairments
are the ones that are in the nursing homes today.
And if you walk down the hallway, you'll see wheelchairs,
you'll see people in the hallway roaming around because they're
not totally with it, you know. The Alzheimer's patients demest
you patients in those nursing homes, and the case that
(05:45):
we want to talk about today involves one of those individuals.
Speaker 3 (05:49):
Yeah.
Speaker 2 (05:49):
So it's a wild scenario, something I've never seen before,
and we've seen a lot of things over the years,
for sure, And unfortunately this happened in New York City.
A ninety five year old defenia maybe dementia patient actually
killed an eighty nine year old patient.
Speaker 1 (06:08):
Holocaust survivor, Yeah, and beat her to death with a
piece of her wheelchair, the arm of the wheelchair. Yeah,
can you believe it, folks, it's wild a ninety five
year old person with Alzheimer's strong enough to wield that
arm of the.
Speaker 3 (06:21):
Wheelchair both women and and.
Speaker 1 (06:26):
Give blows to the person that they hit to the
point where they took their life.
Speaker 2 (06:31):
Yeah, it is kind of hard to fathom a ninety
five year old being swinging that hard enough to do that.
Speaker 1 (06:36):
So again, it's people, and these are sometimes the most
hard to care for. People who are still physically strong, yes,
but mentally they have cognitive issues and there are certain
types of dementia, and we've been dealing with this for
my career for forty two years. Louis body dementia is one, yes,
that takes your ability to reason.
Speaker 3 (06:58):
And that takes it early.
Speaker 1 (06:59):
Generally too, it can this could be people in their
fifty sixty seventy, so they're still physically very strong, Yeah,
but they become violent, they become abusive, and for that
you have special programs and special ways to treat and
isolate those individuals. But a ninety five year old you
(07:21):
wouldn't think is going to be the one who's going
to commit a murder. Now in the nursing home.
Speaker 3 (07:26):
You would not.
Speaker 2 (07:27):
And I mean there's a lot of different things that
can happen with dementia. There can be delusions, there can
be just general fear and angst. There could be lots
of things right, and we don't know, but it would
be interesting to know if there's any history of violence
by this person or.
Speaker 3 (07:46):
You know, issues with other roommates.
Speaker 2 (07:48):
Right in a nursing home, it's not uncommon for your
roommate to pass away. So this was a two person room.
The lady that was murdered, unfortunately a just basically moved
into that room. So maybe she was the ninety five
year old was afraid of her, didn't know who she was.
I mean, there's a lot of things that could have
(08:08):
gone wrong. Certainly seems like there's going to be some
liability on the part of the nursing home here to me.
Speaker 1 (08:15):
So let's unwrap that one, because that's a big issue.
If you have a loved one in a nursing home,
what should you be thinking about and what should you
be doing to make sure that they're safe. Because folks
read the literature on what's going on with nursing homes today,
a lot of them are owned by private enterprise people
(08:37):
who are out to make profits.
Speaker 2 (08:39):
They own generally a lot of nursing homes.
Speaker 1 (08:43):
You know, the county nursing homes mostly have been sold.
We still have one here in Albany County, but most
counties have divested and they're owned by private equity firms
who have to make profits of twenty to thirty percent.
So you have patient care on one side and profits
on the other, and there's a dynamic tension there because
it really comes down to staffing levels. Are nursing homes
(09:06):
adequately staffed. We follow a lot of different groups in
the Kaiser Family Foundation KFF dot org. If you want
to do some research on this, Kaiser Family Foundation does
research on a your over your basis and looks at
the census of nursing home patients, the staff that's caring
for that census, and they report that only about forty
(09:28):
percent of the nursing homes nationally are adequately staffed. So
sixty percent or.
Speaker 2 (09:32):
Not right, that's that's not that surprising given what we
see on a regular basis.
Speaker 1 (09:38):
So, Aaron, when we look at this, because there are
so many issues here, Yes, when we look at this
from a legal liability perspective, what are some of the
things that go into that calculus?
Speaker 2 (09:48):
Well, so there needs to be an evaluation of each
person done before they come in, right, what their needs are,
what their health issues are, what their failings are. Right,
we call that pr.
Speaker 1 (10:00):
I Patient Review Instrument, done typically by a nurse, but
they'll review medical records as well.
Speaker 2 (10:08):
So we know, we don't know how long the ninety
five year old had been with this facility, but we
know that she predated the eighty nine year old, So
generally speaking, that would seem like there's some notice of
this person's behaviors right now, we don't know that for sure.
Speaker 3 (10:26):
You'd have to review records.
Speaker 2 (10:27):
And it would be very unusual that a person would
go from no outbursts to an outburst like this, right
Usually there is some kind of scale of that going.
So there would certainly be an argument that there was
notice and then someone placed at risk, which would be negligence.
Speaker 1 (10:48):
And a failure to respond in an adequate way and
take adequate measures correct to deal with that danger that
was present for the roommate. Think about your relative being
bludgeoned to death by her roommate in a nursing home.
I mean, this adds a layer.
Speaker 2 (11:06):
That I had never really even thought to agree it's
I mean, honestly, I'm a little surprised that we hadn't
seen it something like this before with dementia patients.
Speaker 1 (11:15):
And interestingly, when you go to Medicaid, and Medicaid in
New York State pays for seventy five percent of the
beds that are occupied, seventy five percent of the people
in there are on Medicaid, and the nursing home has
to deal with Medicaid Medicaid reimbursement. Private pay rate, folks,
is a lot higher but if you're private paying, you're
paying you know, seventeen or eighteen thousand dollars a month.
(11:37):
The person in the bed next to you is getting
government subsidies through Medicaid, and the nursing home can't discriminate
between those two patients. That's so they have to provide
them the same level of care. And we have applied
for Medicaid for clients for many, many years, you know,
going on thirty five years we've been doing Medicaid applications.
And when you do a Medicaid application for someone with
(11:59):
demand and behavioral issues, the placement of that individual is very,
very difficult, to the point where we have New York
State Medicaid placing people in Massachusetts nursing home.
Speaker 2 (12:11):
Very typically, right, Massachusetts seems to be very willing to
take New York Medicaid for behavioral problem patients. And this
was even more typical a few years ago that anytime
that there was a behavioral issue, there would be an eviction.
Speaker 3 (12:28):
Right.
Speaker 2 (12:28):
If you don't move them willingly, the nursing home will
try to evict the patient and sometimes it's successful, probably
more often than not, but they would end up in
you know, in the Berkshires really is where most of
them were.
Speaker 1 (12:42):
And I saw there are two ways that I've seen
that happen. One is the straight eviction, so they have
law firms. There's a law froom in Long Island that yes,
most of these the nursing home, yes, in beviction proceedings.
But the other way they do it is much easier
for them and less expensive. And sure the person has
a cold, yes, and they say, well, they're ill, they
need to go to the hospital. And then they stay
(13:02):
there for three days and they don't have to hold
their bed correct, so they give away the bed and
they don't have to readmit. And that's how they call
it patient dumping. And with that, we're gonna take a
short break on the patient dumping note, but we're gonna
come back and kind of unravel this. Who was responsible
for the behavior of that ninety five year old, the
nursing home, the family, what could have been done? And
(13:25):
when people have that kind of condition and they're living
at home, we're gonna look at that as well. And
you do a lot of guardianship work, Aron, how do
the courts get involved before the crime is committed to
prevent the crime. So we're going to unpack all of that. Folks,
Thanks for listening, Thanks for being here with us on
a Saturday morning. You're listening the Life Happens Radio here
(13:46):
on Talk Radio WGY. We'll be right back. Welcome back
to Life Happens. And if that first segment didn't scare you,
nothing will. It's just a frightening thought to have a
loved one placed in a nursing home where there are
violent people. It's like they are you supposed to be
safe putting your eighty nine year old you know, grandmother
(14:08):
or mother into a general population prison. Yes, where you
have convicts and criminals. Yes, here you have a dementia
patient who became a criminal. And and let's tru let's
talk about alleged criminal. Yeah, let's let's explore that issue
first and we'll get into the more general liability issues
for the nursing home. Sure, what is criminal liability? You
have to have some type of capacity. You have to
(14:31):
be able to form a mens rea, right, like the
want to do something right and the knowledge that you're
doing it. So there was an article I think maybe
two days ago about the arraignment, right, and you know,
the DA is going full bor on this, which is idiocy.
I think in and of itself, well, it's it's publicly but.
Speaker 3 (14:53):
But that's what it is.
Speaker 2 (14:54):
It's all pr right, it's to look like, well, we're
hard on crime, even if you're ninety five, right.
Speaker 1 (14:59):
And and have full dimension, right.
Speaker 2 (15:02):
But I really think the woman, the ninety five year
old woman, was not being well served because, at least
based on the article, her capacity wasn't even raised as
a defense.
Speaker 3 (15:12):
They were trying to get her bail.
Speaker 2 (15:15):
So they remanded this woman like she is a Obviously
she's not un dangerous.
Speaker 3 (15:22):
I'm not saying that, but I don't.
Speaker 2 (15:23):
Think that she's like has the ability to go out
and do a crime spree if she was in a
nursing home.
Speaker 1 (15:29):
So let's think about this. If they go through this,
they go through the trial, they prove that she killed
this person without intent, where do they incarcrate her right
after that? Where is her jail? She's good right now?
I think she's in Bellevue. That's where they remanded her. Yep.
Speaker 2 (15:50):
And so it's essentially psychiatric here, and that's a lot
of money down the tube for resources for a defense
district attorney's office. And I really do unless there's something
we don't know, and there are always cos we don't
know behind the scenes, but there's no way this woman
could have formed the requisite intent in my opinion, if
(16:12):
she is a dementia patient that requires nursing home, that
would be criminally culpable.
Speaker 1 (16:19):
So let's take legal theories one step further. If she
can't form the requisite intent, is there anyone that could
be charged for failing to supervise her?
Speaker 2 (16:32):
Well, I think the nursing home has a lot of problems,
right well, clearly, you know, including this case, right yeah,
because again we don't know what they knew and what
they didn't know. But there was I think in at
least an hour before the woman was found bleeding from
the head, which seems to indicate a staffing level problem.
Speaker 3 (16:53):
Yep.
Speaker 2 (16:54):
And could that be criminally liable for not, you know,
doing taking money and then not doing what you're Probably right,
there's I'm sure there's going to be a Department of
Health and investigation, absolutely right, And there could be civil
penalties for that as well.
Speaker 3 (17:12):
Whether the there's.
Speaker 2 (17:14):
A criminal like an actual crime by the nursing home,
I don't, I don't.
Speaker 1 (17:17):
Know, Yeah, you think of And this kind of brings
up for me the fright that I have if my
kids were still younger kids and I had guns around
the house and they took one of my guns and
went out and killed somebody. Right, they're finding parents liable
for that under certain circumstances.
Speaker 3 (17:36):
Yes, sure.
Speaker 1 (17:37):
And so here you have a person who, if the
nursing home had notice of her violent behavior, put her
in a room unsupervised. Yes, and that was the instrument
that killed this eighty nine year old woman. Is there
any way that there could be culpability there?
Speaker 3 (17:53):
Yeah?
Speaker 2 (17:53):
I mean it's it's interesting, but I think if they
left a hammer in the room, that'd be a different story, right,
But a wheelchair. It's going to be interesting to see
how she even got the piece of the wheelchair off, right?
Is this a piece that just normally comes off? Did
it require some manipulation to get off? So maybe that
(18:16):
starts to indicate some intent.
Speaker 1 (18:19):
Had it been falling off and they knew it had,
had she been swinging it? Yeah, exactly, you know, and
brandishing it as a weapon. I don't know.
Speaker 3 (18:30):
It's right.
Speaker 1 (18:31):
Again, it's a crazy case, but it just goes to
show you life happens. This is just craziness inside. It's
a hard one to be prepared for.
Speaker 3 (18:39):
It really is.
Speaker 1 (18:40):
And then that's the criminal side of things, and I
agree with you there's probably no secondary criminal liability, but
there is certainly secondary civil.
Speaker 3 (18:49):
Oh yeah, a lot of it to go around.
Speaker 2 (18:52):
And that's a wrongful death suit in this case. And
I mean, the ninety five year old woman, if she
was private pain, right, her assets are on the table,
sure right, yep, she's getting sued. And if she passes away,
her estate is getting sued right now. If they've done
planning and their money's in a trust and you know
(19:12):
that kind of thing, that's a different story. But I
mean think about that. You think that you've put your
mother in a safe place, that you've done the right
thing right, and then this happens.
Speaker 1 (19:24):
So as a caregiver, and we talk about caregivers on
the show all the time. Yes, we have caregivers on
this show telling their stories. A lot of it relates
to Alzheimer's and dementia care. And we've had representatives of
the Alzheimer's Association come in every year to talk about
the great work that the Alzheimer's Association does and care
managers that help families put care plans together. But when
(19:49):
you're a caregiver and you're looking at the best placement
for your mom, your dad, your grandmother, these are issues
that you have to take very seriously. And nursing home
care is degrading as we speak all the reasons we
stated early. Yes, the economics of a nursing home because
of Medicaid reimbursements and the caps on Medicaid reimbursements. When
(20:13):
they're losing money per patient from Medicaid reimbursements on a
monthly basis, they're making it up from the private paid patients,
those twenty five percent that are being charged the eighteen
thousand dollars a month to live in that nursing home.
Speaker 2 (20:28):
And by the way, that's always a balancing act because
they don't know for sure what they're split of patients
is going to be right. They can only base that
on whatever it's been historically. Yes, so at any given
time they may be squeezed more than another.
Speaker 1 (20:40):
So now you have people who are coming in looking
at this opportunity, the golden goose, which is a nursing
home which is going to produce profits for individuals, groups
and now private equity funds, and squeezing the profits out
of a nursing home, which are already challenged from a
staffing perspective. Yes, you're looking at patient to staff ratios.
(21:02):
And this is an area, Aaron, that New York State
does regulate.
Speaker 3 (21:05):
Yes, for sure, it is very regulated.
Speaker 1 (21:08):
We have nursing homes that get cited for violating those
regulations year over year and still operating.
Speaker 2 (21:14):
Yes, well, I mean not the pylon olmney Med, but
almney Med just recently got in trouble for not having
enough staff and I had to pay a big fine.
Speaker 1 (21:22):
And that's a crisis hospital, yes, not a nursing home, right,
which has a lot less staff. Yes, And hiring people
to work in a nursing home, it's very difficult. It's
a hard job. Who wants that job? Who wants the job?
Taking care of this ninety five year old swing in
her wheelchair?
Speaker 2 (21:41):
By the way, they charged her with criminal possession of
a weapon, and I'm not really sure how that's viable,
you know. Yeah again, I'm not having done criminal on
a very long time. Perhaps overcharged yeah yeah, I'm sure, yeah,
you know, and then it'll quietly all go away. I
bet it's really what's going to happ happen.
Speaker 1 (22:00):
Yeah, and a lot of times. I'm sure the family
of the eighty nine year old is up in.
Speaker 2 (22:05):
Arms for sure, rightfully, so pursuing this, I mean they
you know, whether the ninety five year old is culpable
or not culpable. They thought their mom was in a
safe place and that she actually wasn't.
Speaker 1 (22:17):
So there are there's litigation, nursing home litigation that goes
on all the time, and when you have a wrongful
death case, that's what this would be unless they can
prove that well, there's some conscious there's going to be
conscious pain and suffering because you're getting beaten.
Speaker 2 (22:34):
Yeah, and she lived for you know, not a long time,
but she did live. Yeah, it wasn't an instantaneous death.
Speaker 1 (22:40):
But unfortunately, the legal system Aaron doesn't value human life,
at least.
Speaker 3 (22:45):
In New York.
Speaker 2 (22:45):
Under New York's rules, she would not have a lot
of life left, unfortunately, And that's really how it's determined.
She didn't have a lot of working life. She didn't
have really any.
Speaker 1 (22:56):
Working nobody dependent on her.
Speaker 2 (22:59):
So really unfortunate in these scenarios is that an award
tends to be fairly low.
Speaker 1 (23:05):
Yes, unless you have conscious pain and suffer, right, So
that's what it comes down to. So civil remedies against
the nursing home can be limited depending upon the circumstances.
We certainly work with law firms that do nursing home litigation.
We don't do it in house, but we have a
lot of clients whose relatives have been harmed in nursing
(23:26):
homes and we would certainly talk about that with the
clients and with you and talk about it and see
if we can find the right fit for you for
a firm that can redress these kinds of issues. So
we're going to come back in the second half talk
more about nursing home care and then kind of morph
into other nursing home issues. Looking at nursing homes, what's
(23:47):
the good, what's the bad? How do you get there?
Paying for it is always an issue. So when you
come back, we'll be exploring all of those things. Stay
with us. We'll be back right after the news. And
we are back. I'm Loup Piro, your host for today
on Life Happens Radio Here on w g Y. I'm
live where I'm in studio with my partner Aaron Connor.
(24:11):
Good morning, Aaron, Good morning everybody, and we're talking about
nursing homes and a case that just raises all kinds
of issues. It's the kind of the uh, the man
bites dog story. Yeah, you know, sure people get hurt
in nursing homes frequently.
Speaker 2 (24:27):
Yeah, falling right, or maybe they get bed source because
of lack of attention to.
Speaker 1 (24:33):
Cubidus ulcers if you don't know the term. That's the
that's where a lot of the lawsuits come from. Yeah,
because they haven't been tended, they haven't been cared where
they have been turned properly. And so this is a
murder in effect or is it. It's it's a killing
in a nursing home by a ninety five year old
(24:53):
with dementia using a wheelchair arm to kill her roommate.
Startling stuff. So we're going to come back and talk
about that, but I want to just give a heads
up for something coming up there, and that is a
workshop that's been very valuable to clients. Yes, this is
a segue, folks. So we do something called our Trust
(25:14):
Administration Workshop, and we do it once a quarter and
originally it was designed just for clients who had implemented
trusts in the past three months, but We've gotten a
lot of people coming in because they want to see
what's inside the trust and how it works before they
take on the challenge of creating a trust choosing what
(25:36):
kind of a plan is right for them. So we
have a trust administration workshop that's going to be going
on September thirtieth Tuesday, September thirtieth, and it's at the
Chamber of Commerce, five Computer Drives South in Albany, so
the Capital Region Chamber of Commerce. It starts at twelve noon,
Registration opens up at eleven thirty. We will be serving
(25:58):
lunch and the the topics here are in depth trust administration.
How do you as a trustee handle investments in a trust,
how do you manage record keeping in a trust? How
do you do accountings if you need to do an accounting?
All of those things. And if you're a beneficiary of
a trust, what are your rights, what are your remedies,
(26:19):
what are the things that you can do as a beneficiary,
And of course we always have to talk about taxes.
So David Woojeski, founder and Managing Director of Wojeski and
Company CPAs, will be a guest speaker with us. And
if you need a corporate trustee if you don't have
a family member that can be the trustee, or you
want to use an independent corporate trustee. We have Michael
(26:41):
Bates from trust Go with us and Trustco does administer
trusts and does a great job with that. So join
us September thirtieth for the Trust Administration Workshop whether you
have a trust or you're thinking about it, and you
can log in to Pyro Law dot com, p I
E R R Law dot com go to the events tab.
(27:01):
You can register for the Trustedman Workshop noon on the
thirtieth of September, or you can always call us at
five one eight four or five nine twenty one hundred
and Aaron. This is something that we do as a
service to our clients, Yes, and I think it's it
does serve them very very well.
Speaker 2 (27:19):
It's resonated with clients quite a bit, you know. I
think a big client concern is that they come in,
they do their trust, they pay us, and then we
never see them again. Right now, we have other solutions
for that.
Speaker 3 (27:32):
Obviously.
Speaker 2 (27:33):
We have a POMS program when we meet with people
every year and we encourage people to come in and
when they have a life change to make sure that
we don't need update anything or if we do, to
do that. But this workshop is just a way for
them to make sure that they're doing the right things right.
(27:53):
And what I try to tell our clients all the
time is that it's important to get advice before you
do something, because it's easier to advise. Then once something
is done, to kind of put the toothpaste back in
the tube often can be difficult, and you may have
done something that.
Speaker 3 (28:11):
May hurt your five year clock.
Speaker 1 (28:13):
Right.
Speaker 2 (28:14):
Yeah, people write a check directly to mom out of
the trust. That's a bad unless it's income.
Speaker 1 (28:19):
Let's back up one step because you mentioned a five
year clock, yep. And what we're talking about here, folks,
is one of the trusts that we describe in depth
on the thirtieth of September, and every trust had been workshop.
We call a midicate Asset protection trust, and we do
that trust because you need to have your assets down
below a certain level. That's right, and that five year clock, Aaron,
(28:40):
how does that work?
Speaker 2 (28:42):
So there's really no partial credit, right, if you're going
to a nursing home, there's partial credit only in the
sense is that if you don't make it through five
we can save about half. But really the reward is
to get out and do the proactive planning and save everything.
So but if you're four years in and you need
to go to a nursing home, you don't get eighty
percent of credit.
Speaker 3 (29:03):
It doesn't work like that.
Speaker 2 (29:04):
So you have to have your assets in this trust
for five years really in a day, and then they're exempt.
Speaker 1 (29:11):
So when we talk about nursing home costs of seventeen
to eighteen thousand dollars per month, you're well over two
hundred thousand dollars per year. So we have seen our
client's life savings dissipated in one, two, three years. And
then they come to us and they say, well, what
could we have done? Well, find out in advance there
(29:32):
and said what you can do because, as I said,
in a nursing home, seventy five percent of all those
beds are paid for by medicaid, and the nursing home
is prohibited by law from discriminating against a private pay
patient versus a medicaid patient. So medicaid planning is something
(29:54):
that if you want to protect your assets for this purpose,
needs to be thought of. Come join us on thirty
September and we're going to go through that trust that
allows you to protect assets, qualify for Medicaid, and utilize
the resources available to you. So we would welcome you
to join us there and nursing home costs there. And
(30:15):
we talked about nursing homes earlier being places that used
to be just respite stops. You know, people would be
there just because they didn't have a place to live.
Right now, there is this bandwidth of assisted living and
independent living and all types of other housing that didn't
exist forty years ago.
Speaker 2 (30:32):
No, it really didn't, and even now I think there's
a lot of demand still for that, right, independent senior housing, yeah,
good assisted living right because there, let's be honest, there
are levels of assisted living and some of it's not great,
but some of it is actually pretty great too.
Speaker 1 (30:47):
So if a client does this Medicaid Asset Protection Trust
and they want to take one of those other options,
and there's a donut hole in Medicaid, folks. It covers
home healthcare up to twenty four hour a day. Home
healthcare is a available through Medicaid. It covers nursing home care,
but it doesn't cover most of that assisted living care.
So aaron if the client does the Medicaid Asset Protection Trust.
(31:09):
They want to use some assets from the trust to
pay for assisted living. They don't need a nursing home yet.
Is there a way to do that? Yes, carefully, right,
So the way to do that is not to take
a check directly from the trust and pay the assisted living.
Speaker 2 (31:25):
That's that's a no go, right, So usually our advice
is that we take a chunk of money out at
a time because we can't have regular transactions going from
the trust to you or the trust to your beneficiary
back to you. Right, that's you directing the trust. So
if we know for a six month period you're going
to need X amount of dollars, we will get that
(31:46):
out of the trust, from the trustee to a beneficiary
and then back to you.
Speaker 1 (31:51):
And the technical details of that we go through with clients. Yes,
we draw a picture, a diagram show how the trust works.
Speaker 3 (31:57):
Picture.
Speaker 1 (31:58):
I do. We are associates, the good ones too too,
So we're going to talk about that at the Trust
administration workshop. All the details, the nitty gritty of that.
But you can keep access to those assets through your
trustee and beneficiary, so that's something that you need to know.
And I just had a meeting Thursday with clients that
(32:19):
came and it was a video conference. We do a
lot of zoom meetings now to start relationships with people
that live longer distances away from the office. And we're
talking and she went through like five or six of
the myths of medicaid trusts, and one was well, if
we put assets in, we can never see them again,
They're lost forever. No, that's not true, right, And that
(32:40):
was just one of them. And you go down the
list and people hear a lot of things out there, Aaron,
that are just not factual.
Speaker 2 (32:47):
Well, the internet is kind of a terrifying place, right,
I mean, some of what you read on the Internet
is true, but a lot of it is not. And
I think whereas when I first started doing this, people
would say, well, my neighbor said this, my sister said that,
my barber said this, that kind of stuff. Now it's like, well,
this is what I saw on the internet, right, And
(33:11):
it's shockingly inaccurate.
Speaker 1 (33:13):
A lot of the time because a lot of the
research that you do in your AI and Google searches,
it's all fifty states, right, But medicaids is a state
specific program, yes, And you have to know what the
law is in New York, and the only way to
really know how it applies to you is start with
a workshop like we're having on the thirtieth of September,
(33:33):
or come in for a free consultation because we don't
try to pay to charge for that consultation. If you're
coming in to learn about the trust and you're interested
in doing a trust, we will meet with you, we'll
explain everything to you, we'll apply it to your particular situation.
And everybody's situation is different.
Speaker 2 (33:52):
Well, that's what I try to emphasize to people when
we're out doing seminars and they'll ask me a question
like I can answer it for everybody, right, But everybody's
situation is different. Some people their children have issues. Some
people are in a second marriage, they don't have the
same children. Some people may be moving to another state
or intend to move to another state, or they may
have money in a retirement account versus money not in
(34:14):
a retirement account. And there are so many variables that
we're not We don't have a plan in mind before
we talk to you, right, we need to get some
information from you, health information, where you are, you know,
locality wise, but also where you're at in your life,
whether you're going to retire, whether you're going to stay here,
whether you're going to have to stay here, where you're
going to move away, what your kids are like, what
(34:34):
your kids are like money, right, because they're different. Well,
I counsel people that you know. Somebody will say, I
want to go to South Carolina. Well, your retirement account's
not exempt in South Caroline.
Speaker 1 (34:44):
It is in Florida, right, So you have to know yes.
And we can't stress enough how individualized this planning is.
There's no one size fits all. So if you go
to a shop, if you go to an attorney that says, oh,
I can put you in this trust doesn't cost much,
and you know, here's the here's the here's the document.
You get what you pay for it. You get what
you pay for it, and it's not going to fit
your case. It's like buying a pair of shoes that
(35:05):
are ten size is too small.
Speaker 3 (35:07):
We often fix bad documents. We do.
Speaker 1 (35:10):
We do, that's part of our practice. We and we
also get a lot of referrals I call them hairy
cases from other attorneys who are smart enough to know
that we need someone who does this full time, and
we get those cases and we do the planning, and
we're very grateful to the lawyers that that see that
and understand that their clients are going to be better
(35:30):
served by getting a comprehensive a state plan. So Medicaid
is the funding source for seventy five percent of those
nursing home beds. And how you get there is what
we're going to talk about at the seminar and what
we will do in the consultation. Give us a call
five one eight, four hundred. I want to take a
side step because the case involves Alzheimer's dementia and a
(35:53):
patient that did not have the ability to think for
herself clearly, and there are remedies for that erin and
this is kind of jumping into your pond, which is litigation. Yeah,
if we have a client that has done the right
planning and we have the right documents, it's possible, possible
(36:15):
that a guardianship wouldn't.
Speaker 3 (36:16):
Be necessary, right, very possible.
Speaker 1 (36:18):
But just go through the documents that keep us out
of guardianship and where the cracks are that could still
land you in guardianship.
Speaker 2 (36:27):
Sure, so, more often than not, people have health care proxies, right,
they've gone to a doctor. At some point, they've signed
a proxy to the hospital. Every time you go to
a hospital, they give you the form. We're able to
locate it, right, Occasionally we're not. Sometimes they just appoint
a spouse, right, and no backup. That's a problem, and
(36:48):
that's one of the cracks.
Speaker 1 (36:50):
Right.
Speaker 2 (36:50):
If you have one child only, then that might be
not a problem for you, because there is a statute
that remedies a lot of the problem, not all of it,
if you're in a facility, right, it's very specific, but
it can remedy some of your issues. But it's not
really the best way to go. But if there are
four kids, you all have the same right under that statute,
and if you don't agree, then we're going to have
(37:11):
a problem. So generally speaking, most of the issues come
up with the lack of a power of attorney though,
or a bad power of attorney.
Speaker 1 (37:20):
And the power attorney is the corollary document to the
healthcare proxy, but it deals with finances, right.
Speaker 2 (37:27):
And I mean mostly finance, But you can do almost
everything with the power of attorney. You know, between the
two documents, right, healthcare proxy, you're making medical decisions. Power
of attorney is basically almost everything else, and so it
is a powerful document needs to be drafted. Well, again,
we've run into situations where people have only appointed their
(37:47):
spouse and their spouse predeceaes them.
Speaker 3 (37:49):
They have nobody.
Speaker 2 (37:50):
There is no statute to fix that, so it doesn't
matter if you have kids or whomever. Right you have
to you have to go to court to get appointed.
Speaker 3 (37:59):
We have also had to go.
Speaker 2 (38:00):
To court because the power of attorney was poorly drafted
either was not not affected properly. So, believe it or not,
I met with somebody this week who did a power
of attorney in twenty seventeen. Their agent never signed it.
Their initial agent. Okay, there's a difference between his success
(38:22):
or agent. Success or agent shouldn't sign the document until
they're going to take over. But so this document now
would have to be notarized in twenty twenty five that
the agent was And I said, well, I think you're
going to find that there's going to be.
Speaker 3 (38:37):
Some problems with that.
Speaker 2 (38:38):
Right, we're going to do more than just the power
of attorney for these people. But if you go to
a bank and I give you a power of attorney
that stated twenty seventeen and someone didn't sign it until
twenty twenty five, they're going to have some fraud problem.
Speaker 3 (38:53):
They're gonna be questions, you know.
Speaker 2 (38:55):
So even this simple thing like that you just didn't
have your daughter sign the power attorney, Well that's a problem.
But most problems we run into with a power of
attorney is the lack of a gifting power to save
money when we need to go to a nursing home.
Speaker 1 (39:09):
So all of these things. Even when people start to
plan and you can go to legal zoom and you
can do your own documents.
Speaker 3 (39:17):
Good luck and get what you pay for.
Speaker 1 (39:18):
Yeah, but there are things that and when we do
consultations and I start asking the questions, well, what if
your primary agent isn't available, who are you going to
point next? If that person's not available, who's next? And
they say how far down the line you want to go? Well,
how many names you got?
Speaker 3 (39:33):
Right?
Speaker 1 (39:33):
We put there's no harm exactly in putting five alternate
agents in a document to make sure that there's no
gap in coverage. So the issue you raised, what if
your agent dies, you're back in court and you're back
in guardianship court, and the guardianship just talk a little
bit a bit more about that before we take our
next break. What are the legal standards for the appointment
(39:56):
of a guardian and what is the process. And I'll
just preface this the story. I had two clients, husband
and wife. Husband had dementia, he had violent tendencies and
they had him placed in a nursing home, but he
kept walking out and there was no way for her,
the wife, right to contain him. He just kept coming
back home. And so she comes to me and says, well,
(40:20):
the doctor told me that I needed a guardianship. Otherwise
they couldn't hold him. You know, there's nothing they could do.
And I said, okay, do you know what a guardianship entails. Well,
the doctor said, you just go to court and get
a judge to sign an order. And I said, well, okay,
let me talk to the doctor. So I called the
doctor up. I said, okay, doctor, are you ready to
be the witness and come to court and testify that
(40:41):
the gentleman's behavior is at a point where they where
he needs a guardian? Oh? Well, I didn't realize. And
here's what it takes to get a guardian. I described
it to him and and he said, oh, I had
no idea and most people don't.
Speaker 2 (40:53):
So it's not an easy process. It's going to take
at least a month. First of all, let's be clear
about that. At least at least, right, that's best case scenario.
If it's contested, could take months. But you have to
file a petition. You have to have that essentially petition
approved as a prime what we call a prima facius
showing right, like it says all the things that needs
(41:13):
to say by the judge.
Speaker 3 (41:15):
Then you get a.
Speaker 2 (41:16):
Court date, and you get a lawyer appointed for the
person alleged to be incapacitated, and you get a court evaluator.
Speaker 3 (41:23):
So, and guess who pays all those people?
Speaker 1 (41:24):
Yeah, the person you're a lawyer in many cases, yes,
And then what if another party comes in and.
Speaker 2 (41:30):
Objects exactly, Then we're really in the soup and we're
going to be here for a long time. The guardianship
has to be the least restrictive alternative. That's often an issue,
and many times though that's cleared up by the person
who has some capacity consenting to the guardianship.
Speaker 3 (41:48):
Right.
Speaker 2 (41:49):
So, let's say your dad has problems, he needs help.
He knows, he's got enough capacity to know that he
needs some help, and he's willing to let you take
that on. He can and go into court and consent.
In some cases, people are so incapacitated that they can't consent,
and we take testimony and we go through all of that,
(42:10):
and we get a guardian. In some cases, the person
alleged to be incapacitated says, hey, wait a minute, I'm
not incapacitated, and now I'm mad right because you said
I am. And we go through a long court hearing
to determine that. So it's not without some roadblocks and
some bumps.
Speaker 1 (42:28):
And people lack that understanding. We're going to take our
last break when we come back. How do you prepare
yourself to deal with a relative who comes down with dementia,
who's diagnosed and who's suffering from dementia, Alzheimer's, other types
of dementias. How do you deal with a loved one
who needs a nursing home. How do you plan for
all those things? When we come back, we'll talk about
(42:49):
the planning side of this, how to get out in
front of it, and what you should be thinking about
as you go through life, because you know what life happens.
We'll be right back, all right, welcome back, Thank you
for listening. I'm Loupiro, your host this morning along with
Aaron Connor, and we're here in studio talking about some
really outrageous things that happened, but they lead to planning,
(43:13):
and they lead to things that you should be thinking
about to ward off situations that come up in life.
I want to give a plug because we have a
guest coming up, and I was reading this morning an
article in the New York Times. It's an opinion guest
essay and it's by four economists, for very well known economists.
(43:34):
No one should be very confident, is the headline for
economists dissect Trump and the Economy. And we happen to
have one of the leading economists in the country coming
on on October fourth, Hugh Johnson. So mark your calendars
for nine am on October fourth. If you're as confused
as I am about all the things that are going on.
(43:55):
The Fed just cut rates. We have inflation that has
ticked up a bit, we have jobs that have gone away,
we have tariffs that are being imposed. What does it
all mean for you? Join us October fourth, Hugh Johnson.
Renowned economists will have him here live on the radio.
And we hope you can join us. So erin. We're
(44:15):
talking about dementia, Alzheimer's. I've lived through it, my mom,
I'm other relatives that have had dementia, and it's not
an easy situation in any case. But God help us.
When somebody does a violent act like this that we're
talking about here, killing someone with the arm of a wheelchair,
just bizarre. But that's certainly not the normal course of things. No,
(44:37):
but people should be thinking about preparing for the what ifs.
What if you get that bad diagnosis, whether it's Alzheimer's
or Parkinson's or MS, God forbid als, all the things
that we deal with with our clients on a day
to day basis. We see it, we know what it
looks like. We know what the front end and back
end if that case is because we've dealt with it,
(44:58):
both family and clients. What should people be thinking about
right now to get in place and what should they
be doing for a plan?
Speaker 2 (45:06):
Well, they need to think about lots of things. They
need to think about what they want to protect right
What are you willing to risk?
Speaker 3 (45:14):
Is that your.
Speaker 2 (45:15):
Entire life, savings, your house, all of these things, and
where's that going to leave your spouse, significant other in
all of that, right, or who is going to make
these decisions for you when you can't? That is very critical.
You know, so many people come in and they say,
well if I die, and I'm like, well, not so ath.
(45:36):
I mean, doesn't have to be tomorrow. But you need
to have a plan if I become You can say
if I become incapacitated, right, because some people do not
become incapacity.
Speaker 1 (45:48):
And I've heard a lot of clients say this, dying
wouldn't be the worst thing that could happen to me,
That's right.
Speaker 2 (45:53):
Yeah, I think in a lot of cases, living a
long time with incapacity is worse than de So who
is going to make decisions for you? Do you trust
this person? Do they understand your wishes? So many people
just refuse to have any kind of meaningful conversation about
these topics, and you need to be able to do
that because the only way what you want to have
(46:15):
happen happen is to communicate it. And another important thing
is how are you implementing that plan?
Speaker 3 (46:25):
Right?
Speaker 2 (46:26):
It can't just be in your head. You need documents,
you need to talk to people, and you need to
think about where you want to and might be able
to be physically right, is that in your home? Is
your home today ready for long term care purposes?
Speaker 3 (46:42):
Is your home.
Speaker 2 (46:45):
Potentially ready for long term care? Because there are many
people we talk to they live in an extremely rural
situation in a big farmhouse. Well, it's not impossible, but
that is a much higher degree of difficulty than you know,
you live in country knowles, or you live in colony
somewhere in a suburban neighborhood, or.
Speaker 1 (47:04):
You sell the farm and you live in a very
nice senior living right complex which has you know, levels,
different levels.
Speaker 2 (47:10):
Of care right, but you live in a ranch and
you have access to people, right, And so you need
to think about those things because by the time this happens,
there's so much going on for the people who are
trying to help you that they can't do deal with
everything at once.
Speaker 1 (47:27):
So we do crisis planning, as we call it, where
the you know what is hit the fan, yes, and
you're picking up pieces and clients are scrambling, kids are
scrambling to find a power of attorney or a deed
or documents. Where did this go? Where did mom and
dad store it? That's the worst feeling in the world,
being a caregiver, yes, and being in that situation. So
(47:48):
I think aarin the theme here is do it early.
Speaker 3 (47:51):
Yes, absolutely.
Speaker 2 (47:52):
I I never had anybody say to me, oh, we
did that too soon.
Speaker 3 (47:57):
Yeah right.
Speaker 2 (47:58):
I've had a lot of people come in and say
I should have done this before. I mean just a
few weeks ago. I met with people and I said,
have we talked about this before? And they said, yeah,
we were here five years ago and we should have
done it done.
Speaker 1 (48:10):
And time waits for no man. That's a woman, as
they say. And so get your planning done. Get the
power of attorney, the healthcare proxy, the will, the trust,
the disposition of remains appointment. Get a thorough consultation so
you understand how your iras operate.
Speaker 3 (48:25):
That's right.
Speaker 1 (48:26):
Naming beneficiaries, your life insurance, your annuities, your stocks, your bonds,
your bank accounts, your home, your business. All of those
things fit into a plan and need to be put
in very carefully. Yes, so that you have the right owners,
you have the right trusts, you have the right documents,
and not that we can solve every problem, because if
(48:46):
you become a behavioral issue, your family may end up
in court. Anyway, that's one of the issues that you
can't really plan for, and so everything else we can
take care of. And if you do your documents right,
we're going to do it for you. In advance of
that crisis happening. We've got about a minute left. Aarin,
just as a general rule, what should people be doing
(49:08):
next to get started.
Speaker 2 (49:10):
Well, they should make an appointment, right, So give us
a call at five point eight four one hundred and
utilize that free consultation and figure out what you should
do right or did you say.
Speaker 1 (49:22):
Free, I did say free consult no obligation, no cost.
You can come and talk to Aaron myself one of
our associates, and we can help you through this process.
So again, September thirtieth, I want to just shout that
out one more time. Our Trust Administration Workshop. Please join us.
We're at the Albany Chamber of Commerce at noon on
(49:42):
September thirtieth to talk about trusts. Hugh Johnson coming back
October fourth. Aaron, thanks for joining me here in studio today.
Thank you all for listening, and we hope you can
listen every Saturday at nine am to Talk Radio WGY
and Life Happens thanks for listening,
And good morning everyone. Welcome to Life Happens Radio, your
weekly broadcast that brings you ideas, plans and things you
should be thinking about as we go through this process
of life, as we age, having new babies, working, retiring,
planning for the future. All of those things are topics
(00:21):
that we cover in depth here on Life Happens Radio.
And the bottom line to this is are you prepared?
We want our clients at Pierre O'Connor and Strauss, the
law firm that we belong to, to be prepared for
anything that life throws your way. And that is the
theme of the show. Today's topic is quite interesting and
(00:42):
for that I need someone who can dissect an interesting case,
and that is my partner, Aaron Connor. Good morning, Aaron,
and Aaron and I are going to walk you through
some things that are going on right now, some news stories.
And you gotta love the New York Post. That's entertaining
for sure, entertainment, it's also news sometimes and this case, Aaron,
(01:04):
when you look at it on its face, has so
many layers to it. But the bottom line is, folks,
we're going to talk a little bit about nursing homes
today and what goes on inside of a nursing home.
If you haven't been in one recently, you may have
a memory from forty years ago when you visited a
relative in a nursing home. I used to visit my
(01:27):
aunt and I'd pick her up and I'd take her
out for ice cream and she'd be playing cards, you know,
in the areas in the nursing home with other people
who were very mobile and with.
Speaker 2 (01:39):
It very similar my really, she was my grandmother's aunt.
She lived forever because she was not nice to anyone,
and she was just miserable, and she didn't have any
of her own kids. And we would go pick her
up for holidays. She would have a holiday with us, yep.
And right up until she fell when she was like
ninety six, she was still doing basically everything for herself,
(02:03):
living in the Terationian house. Lived in the terreation house
for fifteen years.
Speaker 1 (02:06):
And that was a nursing home population. But folks, if
you work in a nursing home today, arin they're very different. Yes,
And it's the acuity level, as we call it, the
seriousness of the conditions that put people in a nursing home.
It's either a very serious physical condition where the person
is basically wheelchair bound, right, or it's a cognitive issue.
It was more of a rest home. She didn't really
(02:27):
have anywhere else to go. She couldn't live, really shouldn't
mower lawn, She couldn't you know what I mean. It
wasn't like but today she would not be in a
nursing home. A nursing home today has very high needs patients.
And again it's physical. Is it someone who just can't
take care of themselves physically and needs assistance with all
of their activities of daily living? Or is it cognitive?
(02:49):
Is it an issue of Alzheimer's or dementia where they
can't fend for themselves and can't live independently in the community.
For our clients when they come and they talk to us,
most of them say that you know that that kill
me first Beea they do it. You know I have
the gun. I'm going to put it under my pillow.
I say, yeah, by the time you need that gun,
(03:10):
you'll forget where you put it. Yes, But it doesn't happen.
And so the nursing homes are, you know, fairly full.
They have pretty good census In New York State, we
only have one hundred and ten thousand. Now, that seems
like a lot one hundred and ten thousand nursing home beds,
but they're not building anymore, right, and they're full, and
there are a lot of New Yorkers that are aging out,
(03:32):
and that trigger point Aaron comes at a time when
families just can't take care of that individual, right, or
the individual doesn't have family and can't take care of
themselves right.
Speaker 2 (03:43):
So the second one is probably less typical, but it
certainly happens a fair amount of time. It more than
likely that person goes to the hospital for some reason
or another. They don't have anyone to advocate for them,
they don't have anyone to bring them home, and you know,
in most cases that's possible, not in every case, but
almost all. So they end up in a nursing home.
(04:05):
More typically in our area, we people come to us
and they've probably taken care of somebody longer than maybe
they even should have for their own health, right, because
no one, almost no one wants to put people in
a nursing home.
Speaker 1 (04:18):
Well, you have caregiver burnout where a lot of times
it's a spouse, yes, And I've seen this in my
career many times where the spouse is the primary caregiver
for their husband or wife, right, and they will almost
go to their grave to do the things they need
to do for their spouse. They will not let anyone
(04:40):
else do things. They're tied to that person and in
tune with what the person's needs are until their own
health fails, and then the caregiver ends up with pneumonia
in the hospital, and then the person at home has
no one there and there's no plan be correct, and
that's when sometimes that person ends up in a nursing home.
Speaker 3 (05:02):
Yes.
Speaker 1 (05:02):
The other time is you go through the hospital and
the hospital has to discharge you somewhere, and if they
determine that it's not safe for you to go home,
you have no resources or no ability to bring a
person home. Right, They may send you to rehab for
a brief time to see if you get better, and
then they're going to tell you that you need a
permanent nursing home placement.
Speaker 3 (05:23):
That's right.
Speaker 1 (05:24):
So these people with very serious cognitive and physical impairments
are the ones that are in the nursing homes today.
And if you walk down the hallway, you'll see wheelchairs,
you'll see people in the hallway roaming around because they're
not totally with it, you know. The Alzheimer's patients demest
you patients in those nursing homes, and the case that
(05:45):
we want to talk about today involves one of those individuals.
Speaker 3 (05:49):
Yeah.
Speaker 2 (05:49):
So it's a wild scenario, something I've never seen before,
and we've seen a lot of things over the years,
for sure, And unfortunately this happened in New York City.
A ninety five year old defenia maybe dementia patient actually
killed an eighty nine year old patient.
Speaker 1 (06:08):
Holocaust survivor, Yeah, and beat her to death with a
piece of her wheelchair, the arm of the wheelchair. Yeah,
can you believe it, folks, it's wild a ninety five
year old person with Alzheimer's strong enough to wield that
arm of the.
Speaker 3 (06:21):
Wheelchair both women and and.
Speaker 1 (06:26):
Give blows to the person that they hit to the
point where they took their life.
Speaker 2 (06:31):
Yeah, it is kind of hard to fathom a ninety
five year old being swinging that hard enough to do that.
Speaker 1 (06:36):
So again, it's people, and these are sometimes the most
hard to care for. People who are still physically strong, yes,
but mentally they have cognitive issues and there are certain
types of dementia, and we've been dealing with this for
my career for forty two years. Louis body dementia is one, yes,
that takes your ability to reason.
Speaker 3 (06:58):
And that takes it early.
Speaker 1 (06:59):
Generally too, it can this could be people in their
fifty sixty seventy, so they're still physically very strong, Yeah,
but they become violent, they become abusive, and for that
you have special programs and special ways to treat and
isolate those individuals. But a ninety five year old you
(07:21):
wouldn't think is going to be the one who's going
to commit a murder. Now in the nursing home.
Speaker 3 (07:26):
You would not.
Speaker 2 (07:27):
And I mean there's a lot of different things that
can happen with dementia. There can be delusions, there can
be just general fear and angst. There could be lots
of things right, and we don't know, but it would
be interesting to know if there's any history of violence
by this person or.
Speaker 3 (07:46):
You know, issues with other roommates.
Speaker 2 (07:48):
Right in a nursing home, it's not uncommon for your
roommate to pass away. So this was a two person room.
The lady that was murdered, unfortunately a just basically moved
into that room. So maybe she was the ninety five
year old was afraid of her, didn't know who she was.
I mean, there's a lot of things that could have
(08:08):
gone wrong. Certainly seems like there's going to be some
liability on the part of the nursing home here to me.
Speaker 1 (08:15):
So let's unwrap that one, because that's a big issue.
If you have a loved one in a nursing home,
what should you be thinking about and what should you
be doing to make sure that they're safe. Because folks
read the literature on what's going on with nursing homes today,
a lot of them are owned by private enterprise people
(08:37):
who are out to make profits.
Speaker 2 (08:39):
They own generally a lot of nursing homes.
Speaker 1 (08:43):
You know, the county nursing homes mostly have been sold.
We still have one here in Albany County, but most
counties have divested and they're owned by private equity firms
who have to make profits of twenty to thirty percent.
So you have patient care on one side and profits
on the other, and there's a dynamic tension there because
it really comes down to staffing levels. Are nursing homes
(09:06):
adequately staffed. We follow a lot of different groups in
the Kaiser Family Foundation KFF dot org. If you want
to do some research on this, Kaiser Family Foundation does
research on a your over your basis and looks at
the census of nursing home patients, the staff that's caring
for that census, and they report that only about forty
(09:28):
percent of the nursing homes nationally are adequately staffed. So
sixty percent or.
Speaker 2 (09:32):
Not right, that's that's not that surprising given what we
see on a regular basis.
Speaker 1 (09:38):
So, Aaron, when we look at this, because there are
so many issues here, Yes, when we look at this
from a legal liability perspective, what are some of the
things that go into that calculus?
Speaker 2 (09:48):
Well, so there needs to be an evaluation of each
person done before they come in, right, what their needs are,
what their health issues are, what their failings are. Right,
we call that pr.
Speaker 1 (10:00):
I Patient Review Instrument, done typically by a nurse, but
they'll review medical records as well.
Speaker 2 (10:08):
So we know, we don't know how long the ninety
five year old had been with this facility, but we
know that she predated the eighty nine year old, So
generally speaking, that would seem like there's some notice of
this person's behaviors right now, we don't know that for sure.
Speaker 3 (10:26):
You'd have to review records.
Speaker 2 (10:27):
And it would be very unusual that a person would
go from no outbursts to an outburst like this, right
Usually there is some kind of scale of that going.
So there would certainly be an argument that there was
notice and then someone placed at risk, which would be negligence.
Speaker 1 (10:48):
And a failure to respond in an adequate way and
take adequate measures correct to deal with that danger that
was present for the roommate. Think about your relative being
bludgeoned to death by her roommate in a nursing home.
I mean, this adds a layer.
Speaker 2 (11:06):
That I had never really even thought to agree it's
I mean, honestly, I'm a little surprised that we hadn't
seen it something like this before with dementia patients.
Speaker 1 (11:15):
And interestingly, when you go to Medicaid, and Medicaid in
New York State pays for seventy five percent of the
beds that are occupied, seventy five percent of the people
in there are on Medicaid, and the nursing home has
to deal with Medicaid Medicaid reimbursement. Private pay rate, folks,
is a lot higher but if you're private paying, you're
paying you know, seventeen or eighteen thousand dollars a month.
(11:37):
The person in the bed next to you is getting
government subsidies through Medicaid, and the nursing home can't discriminate
between those two patients. That's so they have to provide
them the same level of care. And we have applied
for Medicaid for clients for many, many years, you know,
going on thirty five years we've been doing Medicaid applications.
And when you do a Medicaid application for someone with
(11:59):
demand and behavioral issues, the placement of that individual is very,
very difficult, to the point where we have New York
State Medicaid placing people in Massachusetts nursing home.
Speaker 2 (12:11):
Very typically, right, Massachusetts seems to be very willing to
take New York Medicaid for behavioral problem patients. And this
was even more typical a few years ago that anytime
that there was a behavioral issue, there would be an eviction.
Speaker 3 (12:28):
Right.
Speaker 2 (12:28):
If you don't move them willingly, the nursing home will
try to evict the patient and sometimes it's successful, probably
more often than not, but they would end up in
you know, in the Berkshires really is where most of
them were.
Speaker 1 (12:42):
And I saw there are two ways that I've seen
that happen. One is the straight eviction, so they have
law firms. There's a law froom in Long Island that yes,
most of these the nursing home, yes, in beviction proceedings.
But the other way they do it is much easier
for them and less expensive. And sure the person has
a cold, yes, and they say, well, they're ill, they
need to go to the hospital. And then they stay
(13:02):
there for three days and they don't have to hold
their bed correct, so they give away the bed and
they don't have to readmit. And that's how they call
it patient dumping. And with that, we're gonna take a
short break on the patient dumping note, but we're gonna
come back and kind of unravel this. Who was responsible
for the behavior of that ninety five year old, the
nursing home, the family, what could have been done? And
(13:25):
when people have that kind of condition and they're living
at home, we're gonna look at that as well. And
you do a lot of guardianship work, Aron, how do
the courts get involved before the crime is committed to
prevent the crime. So we're going to unpack all of that. Folks,
Thanks for listening, Thanks for being here with us on
a Saturday morning. You're listening the Life Happens Radio here
(13:46):
on Talk Radio WGY. We'll be right back. Welcome back
to Life Happens. And if that first segment didn't scare you,
nothing will. It's just a frightening thought to have a
loved one placed in a nursing home where there are
violent people. It's like they are you supposed to be
safe putting your eighty nine year old you know, grandmother
(14:08):
or mother into a general population prison. Yes, where you
have convicts and criminals. Yes, here you have a dementia
patient who became a criminal. And and let's tru let's
talk about alleged criminal. Yeah, let's let's explore that issue
first and we'll get into the more general liability issues
for the nursing home. Sure, what is criminal liability? You
have to have some type of capacity. You have to
(14:31):
be able to form a mens rea, right, like the
want to do something right and the knowledge that you're
doing it. So there was an article I think maybe
two days ago about the arraignment, right, and you know,
the DA is going full bor on this, which is idiocy.
I think in and of itself, well, it's it's publicly but.
Speaker 3 (14:53):
But that's what it is.
Speaker 2 (14:54):
It's all pr right, it's to look like, well, we're
hard on crime, even if you're ninety five, right.
Speaker 1 (14:59):
And and have full dimension, right.
Speaker 2 (15:02):
But I really think the woman, the ninety five year
old woman, was not being well served because, at least
based on the article, her capacity wasn't even raised as
a defense.
Speaker 3 (15:12):
They were trying to get her bail.
Speaker 2 (15:15):
So they remanded this woman like she is a Obviously
she's not un dangerous.
Speaker 3 (15:22):
I'm not saying that, but I don't.
Speaker 2 (15:23):
Think that she's like has the ability to go out
and do a crime spree if she was in a
nursing home.
Speaker 1 (15:29):
So let's think about this. If they go through this,
they go through the trial, they prove that she killed
this person without intent, where do they incarcrate her right
after that? Where is her jail? She's good right now?
I think she's in Bellevue. That's where they remanded her. Yep.
Speaker 2 (15:50):
And so it's essentially psychiatric here, and that's a lot
of money down the tube for resources for a defense
district attorney's office. And I really do unless there's something
we don't know, and there are always cos we don't
know behind the scenes, but there's no way this woman
could have formed the requisite intent in my opinion, if
(16:12):
she is a dementia patient that requires nursing home, that
would be criminally culpable.
Speaker 1 (16:19):
So let's take legal theories one step further. If she
can't form the requisite intent, is there anyone that could
be charged for failing to supervise her?
Speaker 2 (16:32):
Well, I think the nursing home has a lot of problems,
right well, clearly, you know, including this case, right yeah,
because again we don't know what they knew and what
they didn't know. But there was I think in at
least an hour before the woman was found bleeding from
the head, which seems to indicate a staffing level problem.
Speaker 3 (16:53):
Yep.
Speaker 2 (16:54):
And could that be criminally liable for not, you know,
doing taking money and then not doing what you're Probably right,
there's I'm sure there's going to be a Department of
Health and investigation, absolutely right, And there could be civil
penalties for that as well.
Speaker 3 (17:12):
Whether the there's.
Speaker 2 (17:14):
A criminal like an actual crime by the nursing home,
I don't, I don't.
Speaker 1 (17:17):
Know, Yeah, you think of And this kind of brings
up for me the fright that I have if my
kids were still younger kids and I had guns around
the house and they took one of my guns and
went out and killed somebody. Right, they're finding parents liable
for that under certain circumstances.
Speaker 3 (17:36):
Yes, sure.
Speaker 1 (17:37):
And so here you have a person who, if the
nursing home had notice of her violent behavior, put her
in a room unsupervised. Yes, and that was the instrument
that killed this eighty nine year old woman. Is there
any way that there could be culpability there?
Speaker 3 (17:53):
Yeah?
Speaker 2 (17:53):
I mean it's it's interesting, but I think if they
left a hammer in the room, that'd be a different story, right,
But a wheelchair. It's going to be interesting to see
how she even got the piece of the wheelchair off, right?
Is this a piece that just normally comes off? Did
it require some manipulation to get off? So maybe that
(18:16):
starts to indicate some intent.
Speaker 1 (18:19):
Had it been falling off and they knew it had,
had she been swinging it? Yeah, exactly, you know, and
brandishing it as a weapon. I don't know.
Speaker 3 (18:30):
It's right.
Speaker 1 (18:31):
Again, it's a crazy case, but it just goes to
show you life happens. This is just craziness inside. It's
a hard one to be prepared for.
Speaker 3 (18:39):
It really is.
Speaker 1 (18:40):
And then that's the criminal side of things, and I
agree with you there's probably no secondary criminal liability, but
there is certainly secondary civil.
Speaker 3 (18:49):
Oh yeah, a lot of it to go around.
Speaker 2 (18:52):
And that's a wrongful death suit in this case. And
I mean, the ninety five year old woman, if she
was private pain, right, her assets are on the table,
sure right, yep, she's getting sued. And if she passes away,
her estate is getting sued right now. If they've done
planning and their money's in a trust and you know
(19:12):
that kind of thing, that's a different story. But I
mean think about that. You think that you've put your
mother in a safe place, that you've done the right
thing right, and then this happens.
Speaker 1 (19:24):
So as a caregiver, and we talk about caregivers on
the show all the time. Yes, we have caregivers on
this show telling their stories. A lot of it relates
to Alzheimer's and dementia care. And we've had representatives of
the Alzheimer's Association come in every year to talk about
the great work that the Alzheimer's Association does and care
managers that help families put care plans together. But when
(19:49):
you're a caregiver and you're looking at the best placement
for your mom, your dad, your grandmother, these are issues
that you have to take very seriously. And nursing home
care is degrading as we speak all the reasons we
stated early. Yes, the economics of a nursing home because
of Medicaid reimbursements and the caps on Medicaid reimbursements. When
(20:13):
they're losing money per patient from Medicaid reimbursements on a
monthly basis, they're making it up from the private paid patients,
those twenty five percent that are being charged the eighteen
thousand dollars a month to live in that nursing home.
Speaker 2 (20:28):
And by the way, that's always a balancing act because
they don't know for sure what they're split of patients
is going to be right. They can only base that
on whatever it's been historically. Yes, so at any given
time they may be squeezed more than another.
Speaker 1 (20:40):
So now you have people who are coming in looking
at this opportunity, the golden goose, which is a nursing
home which is going to produce profits for individuals, groups
and now private equity funds, and squeezing the profits out
of a nursing home, which are already challenged from a
staffing perspective. Yes, you're looking at patient to staff ratios.
(21:02):
And this is an area, Aaron, that New York State
does regulate.
Speaker 3 (21:05):
Yes, for sure, it is very regulated.
Speaker 1 (21:08):
We have nursing homes that get cited for violating those
regulations year over year and still operating.
Speaker 2 (21:14):
Yes, well, I mean not the pylon olmney Med, but
almney Med just recently got in trouble for not having
enough staff and I had to pay a big fine.
Speaker 1 (21:22):
And that's a crisis hospital, yes, not a nursing home, right,
which has a lot less staff. Yes, And hiring people
to work in a nursing home, it's very difficult. It's
a hard job. Who wants that job? Who wants the job?
Taking care of this ninety five year old swing in
her wheelchair?
Speaker 2 (21:41):
By the way, they charged her with criminal possession of
a weapon, and I'm not really sure how that's viable,
you know. Yeah again, I'm not having done criminal on
a very long time. Perhaps overcharged yeah yeah, I'm sure, yeah,
you know, and then it'll quietly all go away. I
bet it's really what's going to happ happen.
Speaker 1 (22:00):
Yeah, and a lot of times. I'm sure the family
of the eighty nine year old is up in.
Speaker 2 (22:05):
Arms for sure, rightfully, so pursuing this, I mean they
you know, whether the ninety five year old is culpable
or not culpable. They thought their mom was in a
safe place and that she actually wasn't.
Speaker 1 (22:17):
So there are there's litigation, nursing home litigation that goes
on all the time, and when you have a wrongful
death case, that's what this would be unless they can
prove that well, there's some conscious there's going to be
conscious pain and suffering because you're getting beaten.
Speaker 2 (22:34):
Yeah, and she lived for you know, not a long time,
but she did live. Yeah, it wasn't an instantaneous death.
Speaker 1 (22:40):
But unfortunately, the legal system Aaron doesn't value human life,
at least.
Speaker 3 (22:45):
In New York.
Speaker 2 (22:45):
Under New York's rules, she would not have a lot
of life left, unfortunately, And that's really how it's determined.
She didn't have a lot of working life. She didn't
have really any.
Speaker 1 (22:56):
Working nobody dependent on her.
Speaker 2 (22:59):
So really unfortunate in these scenarios is that an award
tends to be fairly low.
Speaker 1 (23:05):
Yes, unless you have conscious pain and suffer, right, So
that's what it comes down to. So civil remedies against
the nursing home can be limited depending upon the circumstances.
We certainly work with law firms that do nursing home litigation.
We don't do it in house, but we have a
lot of clients whose relatives have been harmed in nursing
(23:26):
homes and we would certainly talk about that with the
clients and with you and talk about it and see
if we can find the right fit for you for
a firm that can redress these kinds of issues. So
we're going to come back in the second half talk
more about nursing home care and then kind of morph
into other nursing home issues. Looking at nursing homes, what's
(23:47):
the good, what's the bad? How do you get there?
Paying for it is always an issue. So when you
come back, we'll be exploring all of those things. Stay
with us. We'll be back right after the news. And
we are back. I'm Loup Piro, your host for today
on Life Happens Radio Here on w g Y. I'm
live where I'm in studio with my partner Aaron Connor.
(24:11):
Good morning, Aaron, Good morning everybody, and we're talking about
nursing homes and a case that just raises all kinds
of issues. It's the kind of the uh, the man
bites dog story. Yeah, you know, sure people get hurt
in nursing homes frequently.
Speaker 2 (24:27):
Yeah, falling right, or maybe they get bed source because
of lack of attention to.
Speaker 1 (24:33):
Cubidus ulcers if you don't know the term. That's the
that's where a lot of the lawsuits come from. Yeah,
because they haven't been tended, they haven't been cared where
they have been turned properly. And so this is a
murder in effect or is it. It's it's a killing
in a nursing home by a ninety five year old
(24:53):
with dementia using a wheelchair arm to kill her roommate.
Startling stuff. So we're going to come back and talk
about that, but I want to just give a heads
up for something coming up there, and that is a
workshop that's been very valuable to clients. Yes, this is
a segue, folks. So we do something called our Trust
(25:14):
Administration Workshop, and we do it once a quarter and
originally it was designed just for clients who had implemented
trusts in the past three months, but We've gotten a
lot of people coming in because they want to see
what's inside the trust and how it works before they
take on the challenge of creating a trust choosing what
(25:36):
kind of a plan is right for them. So we
have a trust administration workshop that's going to be going
on September thirtieth Tuesday, September thirtieth, and it's at the
Chamber of Commerce, five Computer Drives South in Albany, so
the Capital Region Chamber of Commerce. It starts at twelve noon,
Registration opens up at eleven thirty. We will be serving
(25:58):
lunch and the the topics here are in depth trust administration.
How do you as a trustee handle investments in a trust,
how do you manage record keeping in a trust? How
do you do accountings if you need to do an accounting?
All of those things. And if you're a beneficiary of
a trust, what are your rights, what are your remedies,
(26:19):
what are the things that you can do as a beneficiary,
And of course we always have to talk about taxes.
So David Woojeski, founder and Managing Director of Wojeski and
Company CPAs, will be a guest speaker with us. And
if you need a corporate trustee if you don't have
a family member that can be the trustee, or you
want to use an independent corporate trustee. We have Michael
(26:41):
Bates from trust Go with us and Trustco does administer
trusts and does a great job with that. So join
us September thirtieth for the Trust Administration Workshop whether you
have a trust or you're thinking about it, and you
can log in to Pyro Law dot com, p I
E R R Law dot com go to the events tab.
(27:01):
You can register for the Trustedman Workshop noon on the
thirtieth of September, or you can always call us at
five one eight four or five nine twenty one hundred
and Aaron. This is something that we do as a
service to our clients, Yes, and I think it's it
does serve them very very well.
Speaker 2 (27:19):
It's resonated with clients quite a bit, you know. I
think a big client concern is that they come in,
they do their trust, they pay us, and then we
never see them again. Right now, we have other solutions
for that.
Speaker 3 (27:32):
Obviously.
Speaker 2 (27:33):
We have a POMS program when we meet with people
every year and we encourage people to come in and
when they have a life change to make sure that
we don't need update anything or if we do, to
do that. But this workshop is just a way for
them to make sure that they're doing the right things right.
(27:53):
And what I try to tell our clients all the
time is that it's important to get advice before you
do something, because it's easier to advise. Then once something
is done, to kind of put the toothpaste back in
the tube often can be difficult, and you may have
done something that.
Speaker 3 (28:11):
May hurt your five year clock.
Speaker 1 (28:13):
Right.
Speaker 2 (28:14):
Yeah, people write a check directly to mom out of
the trust. That's a bad unless it's income.
Speaker 1 (28:19):
Let's back up one step because you mentioned a five
year clock, yep. And what we're talking about here, folks,
is one of the trusts that we describe in depth
on the thirtieth of September, and every trust had been workshop.
We call a midicate Asset protection trust, and we do
that trust because you need to have your assets down
below a certain level. That's right, and that five year clock, Aaron,
(28:40):
how does that work?
Speaker 2 (28:42):
So there's really no partial credit, right, if you're going
to a nursing home, there's partial credit only in the
sense is that if you don't make it through five
we can save about half. But really the reward is
to get out and do the proactive planning and save everything.
So but if you're four years in and you need
to go to a nursing home, you don't get eighty
percent of credit.
Speaker 3 (29:03):
It doesn't work like that.
Speaker 2 (29:04):
So you have to have your assets in this trust
for five years really in a day, and then they're exempt.
Speaker 1 (29:11):
So when we talk about nursing home costs of seventeen
to eighteen thousand dollars per month, you're well over two
hundred thousand dollars per year. So we have seen our
client's life savings dissipated in one, two, three years. And
then they come to us and they say, well, what
could we have done? Well, find out in advance there
(29:32):
and said what you can do because, as I said,
in a nursing home, seventy five percent of all those
beds are paid for by medicaid, and the nursing home
is prohibited by law from discriminating against a private pay
patient versus a medicaid patient. So medicaid planning is something
(29:54):
that if you want to protect your assets for this purpose,
needs to be thought of. Come join us on thirty
September and we're going to go through that trust that
allows you to protect assets, qualify for Medicaid, and utilize
the resources available to you. So we would welcome you
to join us there and nursing home costs there. And
(30:15):
we talked about nursing homes earlier being places that used
to be just respite stops. You know, people would be
there just because they didn't have a place to live.
Right now, there is this bandwidth of assisted living and
independent living and all types of other housing that didn't
exist forty years ago.
Speaker 2 (30:32):
No, it really didn't, and even now I think there's
a lot of demand still for that, right, independent senior housing, yeah,
good assisted living right because there, let's be honest, there
are levels of assisted living and some of it's not great,
but some of it is actually pretty great too.
Speaker 1 (30:47):
So if a client does this Medicaid Asset Protection Trust
and they want to take one of those other options,
and there's a donut hole in Medicaid, folks. It covers
home healthcare up to twenty four hour a day. Home
healthcare is a available through Medicaid. It covers nursing home care,
but it doesn't cover most of that assisted living care.
So aaron if the client does the Medicaid Asset Protection Trust.
(31:09):
They want to use some assets from the trust to
pay for assisted living. They don't need a nursing home yet.
Is there a way to do that? Yes, carefully, right,
So the way to do that is not to take
a check directly from the trust and pay the assisted living.
Speaker 2 (31:25):
That's that's a no go, right, So usually our advice
is that we take a chunk of money out at
a time because we can't have regular transactions going from
the trust to you or the trust to your beneficiary
back to you. Right, that's you directing the trust. So
if we know for a six month period you're going
to need X amount of dollars, we will get that
(31:46):
out of the trust, from the trustee to a beneficiary
and then back to you.
Speaker 1 (31:51):
And the technical details of that we go through with clients. Yes,
we draw a picture, a diagram show how the trust works.
Speaker 3 (31:57):
Picture.
Speaker 1 (31:58):
I do. We are associates, the good ones too too,
So we're going to talk about that at the Trust
administration workshop. All the details, the nitty gritty of that.
But you can keep access to those assets through your
trustee and beneficiary, so that's something that you need to know.
And I just had a meeting Thursday with clients that
(32:19):
came and it was a video conference. We do a
lot of zoom meetings now to start relationships with people
that live longer distances away from the office. And we're
talking and she went through like five or six of
the myths of medicaid trusts, and one was well, if
we put assets in, we can never see them again,
They're lost forever. No, that's not true, right, And that
(32:40):
was just one of them. And you go down the
list and people hear a lot of things out there, Aaron,
that are just not factual.
Speaker 2 (32:47):
Well, the internet is kind of a terrifying place, right,
I mean, some of what you read on the Internet
is true, but a lot of it is not. And
I think whereas when I first started doing this, people
would say, well, my neighbor said this, my sister said that,
my barber said this, that kind of stuff. Now it's like, well,
this is what I saw on the internet, right, And
(33:11):
it's shockingly inaccurate.
Speaker 1 (33:13):
A lot of the time because a lot of the
research that you do in your AI and Google searches,
it's all fifty states, right, But medicaids is a state
specific program, yes, And you have to know what the
law is in New York, and the only way to
really know how it applies to you is start with
a workshop like we're having on the thirtieth of September,
(33:33):
or come in for a free consultation because we don't
try to pay to charge for that consultation. If you're
coming in to learn about the trust and you're interested
in doing a trust, we will meet with you, we'll
explain everything to you, we'll apply it to your particular situation.
And everybody's situation is different.
Speaker 2 (33:52):
Well, that's what I try to emphasize to people when
we're out doing seminars and they'll ask me a question
like I can answer it for everybody, right, But everybody's
situation is different. Some people their children have issues. Some
people are in a second marriage, they don't have the
same children. Some people may be moving to another state
or intend to move to another state, or they may
have money in a retirement account versus money not in
(34:14):
a retirement account. And there are so many variables that
we're not We don't have a plan in mind before
we talk to you, right, we need to get some
information from you, health information, where you are, you know,
locality wise, but also where you're at in your life,
whether you're going to retire, whether you're going to stay here,
whether you're going to have to stay here, where you're
going to move away, what your kids are like, what
(34:34):
your kids are like money, right, because they're different. Well,
I counsel people that you know. Somebody will say, I
want to go to South Carolina. Well, your retirement account's
not exempt in South Caroline.
Speaker 1 (34:44):
It is in Florida, right, So you have to know yes.
And we can't stress enough how individualized this planning is.
There's no one size fits all. So if you go
to a shop, if you go to an attorney that says, oh,
I can put you in this trust doesn't cost much,
and you know, here's the here's the here's the document.
You get what you pay for it. You get what
you pay for it, and it's not going to fit
your case. It's like buying a pair of shoes that
(35:05):
are ten size is too small.
Speaker 3 (35:07):
We often fix bad documents. We do.
Speaker 1 (35:10):
We do, that's part of our practice. We and we
also get a lot of referrals I call them hairy
cases from other attorneys who are smart enough to know
that we need someone who does this full time, and
we get those cases and we do the planning, and
we're very grateful to the lawyers that that see that
and understand that their clients are going to be better
(35:30):
served by getting a comprehensive a state plan. So Medicaid
is the funding source for seventy five percent of those
nursing home beds. And how you get there is what
we're going to talk about at the seminar and what
we will do in the consultation. Give us a call
five one eight, four hundred. I want to take a
side step because the case involves Alzheimer's dementia and a
(35:53):
patient that did not have the ability to think for
herself clearly, and there are remedies for that erin and
this is kind of jumping into your pond, which is litigation. Yeah,
if we have a client that has done the right
planning and we have the right documents, it's possible, possible
(36:15):
that a guardianship wouldn't.
Speaker 3 (36:16):
Be necessary, right, very possible.
Speaker 1 (36:18):
But just go through the documents that keep us out
of guardianship and where the cracks are that could still
land you in guardianship.
Speaker 2 (36:27):
Sure, so, more often than not, people have health care proxies, right,
they've gone to a doctor. At some point, they've signed
a proxy to the hospital. Every time you go to
a hospital, they give you the form. We're able to
locate it, right, Occasionally we're not. Sometimes they just appoint
a spouse, right, and no backup. That's a problem, and
(36:48):
that's one of the cracks.
Speaker 1 (36:50):
Right.
Speaker 2 (36:50):
If you have one child only, then that might be
not a problem for you, because there is a statute
that remedies a lot of the problem, not all of it,
if you're in a facility, right, it's very specific, but
it can remedy some of your issues. But it's not
really the best way to go. But if there are
four kids, you all have the same right under that statute,
and if you don't agree, then we're going to have
(37:11):
a problem. So generally speaking, most of the issues come
up with the lack of a power of attorney though,
or a bad power of attorney.
Speaker 1 (37:20):
And the power attorney is the corollary document to the
healthcare proxy, but it deals with finances, right.
Speaker 2 (37:27):
And I mean mostly finance, But you can do almost
everything with the power of attorney. You know, between the
two documents, right, healthcare proxy, you're making medical decisions. Power
of attorney is basically almost everything else, and so it
is a powerful document needs to be drafted. Well, again,
we've run into situations where people have only appointed their
(37:47):
spouse and their spouse predeceaes them.
Speaker 3 (37:49):
They have nobody.
Speaker 2 (37:50):
There is no statute to fix that, so it doesn't
matter if you have kids or whomever. Right you have
to you have to go to court to get appointed.
Speaker 3 (37:59):
We have also had to go.
Speaker 2 (38:00):
To court because the power of attorney was poorly drafted
either was not not affected properly. So, believe it or not,
I met with somebody this week who did a power
of attorney in twenty seventeen. Their agent never signed it.
Their initial agent. Okay, there's a difference between his success
(38:22):
or agent. Success or agent shouldn't sign the document until
they're going to take over. But so this document now
would have to be notarized in twenty twenty five that
the agent was And I said, well, I think you're
going to find that there's going to be.
Speaker 3 (38:37):
Some problems with that.
Speaker 2 (38:38):
Right, we're going to do more than just the power
of attorney for these people. But if you go to
a bank and I give you a power of attorney
that stated twenty seventeen and someone didn't sign it until
twenty twenty five, they're going to have some fraud problem.
Speaker 3 (38:53):
They're gonna be questions, you know.
Speaker 2 (38:55):
So even this simple thing like that you just didn't
have your daughter sign the power attorney, Well that's a problem.
But most problems we run into with a power of
attorney is the lack of a gifting power to save
money when we need to go to a nursing home.
Speaker 1 (39:09):
So all of these things. Even when people start to
plan and you can go to legal zoom and you
can do your own documents.
Speaker 3 (39:17):
Good luck and get what you pay for.
Speaker 1 (39:18):
Yeah, but there are things that and when we do
consultations and I start asking the questions, well, what if
your primary agent isn't available, who are you going to
point next? If that person's not available, who's next? And
they say how far down the line you want to go? Well,
how many names you got?
Speaker 3 (39:33):
Right?
Speaker 1 (39:33):
We put there's no harm exactly in putting five alternate
agents in a document to make sure that there's no
gap in coverage. So the issue you raised, what if
your agent dies, you're back in court and you're back
in guardianship court, and the guardianship just talk a little
bit a bit more about that before we take our
next break. What are the legal standards for the appointment
(39:56):
of a guardian and what is the process. And I'll
just preface this the story. I had two clients, husband
and wife. Husband had dementia, he had violent tendencies and
they had him placed in a nursing home, but he
kept walking out and there was no way for her,
the wife, right to contain him. He just kept coming
back home. And so she comes to me and says, well,
(40:20):
the doctor told me that I needed a guardianship. Otherwise
they couldn't hold him. You know, there's nothing they could do.
And I said, okay, do you know what a guardianship entails. Well,
the doctor said, you just go to court and get
a judge to sign an order. And I said, well, okay,
let me talk to the doctor. So I called the
doctor up. I said, okay, doctor, are you ready to
be the witness and come to court and testify that
(40:41):
the gentleman's behavior is at a point where they where
he needs a guardian? Oh? Well, I didn't realize. And
here's what it takes to get a guardian. I described
it to him and and he said, oh, I had
no idea and most people don't.
Speaker 2 (40:53):
So it's not an easy process. It's going to take
at least a month. First of all, let's be clear
about that. At least at least, right, that's best case scenario.
If it's contested, could take months. But you have to
file a petition. You have to have that essentially petition
approved as a prime what we call a prima facius
showing right, like it says all the things that needs
(41:13):
to say by the judge.
Speaker 3 (41:15):
Then you get a.
Speaker 2 (41:16):
Court date, and you get a lawyer appointed for the
person alleged to be incapacitated, and you get a court evaluator.
Speaker 3 (41:23):
So, and guess who pays all those people?
Speaker 1 (41:24):
Yeah, the person you're a lawyer in many cases, yes,
And then what if another party comes in and.
Speaker 2 (41:30):
Objects exactly, Then we're really in the soup and we're
going to be here for a long time. The guardianship
has to be the least restrictive alternative. That's often an issue,
and many times though that's cleared up by the person
who has some capacity consenting to the guardianship.
Speaker 3 (41:48):
Right.
Speaker 2 (41:49):
So, let's say your dad has problems, he needs help.
He knows, he's got enough capacity to know that he
needs some help, and he's willing to let you take
that on. He can and go into court and consent.
In some cases, people are so incapacitated that they can't consent,
and we take testimony and we go through all of that,
(42:10):
and we get a guardian. In some cases, the person
alleged to be incapacitated says, hey, wait a minute, I'm
not incapacitated, and now I'm mad right because you said
I am. And we go through a long court hearing
to determine that. So it's not without some roadblocks and
some bumps.
Speaker 1 (42:28):
And people lack that understanding. We're going to take our
last break when we come back. How do you prepare
yourself to deal with a relative who comes down with dementia,
who's diagnosed and who's suffering from dementia, Alzheimer's, other types
of dementias. How do you deal with a loved one
who needs a nursing home. How do you plan for
all those things? When we come back, we'll talk about
(42:49):
the planning side of this, how to get out in
front of it, and what you should be thinking about
as you go through life, because you know what life happens.
We'll be right back, all right, welcome back, Thank you
for listening. I'm Loupiro, your host this morning along with
Aaron Connor, and we're here in studio talking about some
really outrageous things that happened, but they lead to planning,
(43:13):
and they lead to things that you should be thinking
about to ward off situations that come up in life.
I want to give a plug because we have a
guest coming up, and I was reading this morning an
article in the New York Times. It's an opinion guest
essay and it's by four economists, for very well known economists.
(43:34):
No one should be very confident, is the headline for
economists dissect Trump and the Economy. And we happen to
have one of the leading economists in the country coming
on on October fourth, Hugh Johnson. So mark your calendars
for nine am on October fourth. If you're as confused
as I am about all the things that are going on.
(43:55):
The Fed just cut rates. We have inflation that has
ticked up a bit, we have jobs that have gone away,
we have tariffs that are being imposed. What does it
all mean for you? Join us October fourth, Hugh Johnson.
Renowned economists will have him here live on the radio.
And we hope you can join us. So erin. We're
(44:15):
talking about dementia, Alzheimer's. I've lived through it, my mom,
I'm other relatives that have had dementia, and it's not
an easy situation in any case. But God help us.
When somebody does a violent act like this that we're
talking about here, killing someone with the arm of a wheelchair,
just bizarre. But that's certainly not the normal course of things. No,
(44:37):
but people should be thinking about preparing for the what ifs.
What if you get that bad diagnosis, whether it's Alzheimer's
or Parkinson's or MS, God forbid als, all the things
that we deal with with our clients on a day
to day basis. We see it, we know what it
looks like. We know what the front end and back
end if that case is because we've dealt with it,
(44:58):
both family and clients. What should people be thinking about
right now to get in place and what should they
be doing for a plan?
Speaker 2 (45:06):
Well, they need to think about lots of things. They
need to think about what they want to protect right
What are you willing to risk?
Speaker 3 (45:14):
Is that your.
Speaker 2 (45:15):
Entire life, savings, your house, all of these things, and
where's that going to leave your spouse, significant other in
all of that, right, or who is going to make
these decisions for you when you can't? That is very critical.
You know, so many people come in and they say,
well if I die, and I'm like, well, not so ath.
(45:36):
I mean, doesn't have to be tomorrow. But you need
to have a plan if I become You can say
if I become incapacitated, right, because some people do not
become incapacity.
Speaker 1 (45:48):
And I've heard a lot of clients say this, dying
wouldn't be the worst thing that could happen to me,
That's right.
Speaker 2 (45:53):
Yeah, I think in a lot of cases, living a
long time with incapacity is worse than de So who
is going to make decisions for you? Do you trust
this person? Do they understand your wishes? So many people
just refuse to have any kind of meaningful conversation about
these topics, and you need to be able to do
that because the only way what you want to have
(46:15):
happen happen is to communicate it. And another important thing
is how are you implementing that plan?
Speaker 3 (46:25):
Right?
Speaker 2 (46:26):
It can't just be in your head. You need documents,
you need to talk to people, and you need to
think about where you want to and might be able
to be physically right, is that in your home? Is
your home today ready for long term care purposes?
Speaker 3 (46:42):
Is your home.
Speaker 2 (46:45):
Potentially ready for long term care? Because there are many
people we talk to they live in an extremely rural
situation in a big farmhouse. Well, it's not impossible, but
that is a much higher degree of difficulty than you know,
you live in country knowles, or you live in colony
somewhere in a suburban neighborhood, or.
Speaker 1 (47:04):
You sell the farm and you live in a very
nice senior living right complex which has you know, levels,
different levels.
Speaker 2 (47:10):
Of care right, but you live in a ranch and
you have access to people, right, And so you need
to think about those things because by the time this happens,
there's so much going on for the people who are
trying to help you that they can't do deal with
everything at once.
Speaker 1 (47:27):
So we do crisis planning, as we call it, where
the you know what is hit the fan, yes, and
you're picking up pieces and clients are scrambling, kids are
scrambling to find a power of attorney or a deed
or documents. Where did this go? Where did mom and
dad store it? That's the worst feeling in the world,
being a caregiver, yes, and being in that situation. So
(47:48):
I think aarin the theme here is do it early.
Speaker 3 (47:51):
Yes, absolutely.
Speaker 2 (47:52):
I I never had anybody say to me, oh, we
did that too soon.
Speaker 3 (47:57):
Yeah right.
Speaker 2 (47:58):
I've had a lot of people come in and say
I should have done this before. I mean just a
few weeks ago. I met with people and I said,
have we talked about this before? And they said, yeah,
we were here five years ago and we should have
done it done.
Speaker 1 (48:10):
And time waits for no man. That's a woman, as
they say. And so get your planning done. Get the
power of attorney, the healthcare proxy, the will, the trust,
the disposition of remains appointment. Get a thorough consultation so
you understand how your iras operate.
Speaker 3 (48:25):
That's right.
Speaker 1 (48:26):
Naming beneficiaries, your life insurance, your annuities, your stocks, your bonds,
your bank accounts, your home, your business. All of those
things fit into a plan and need to be put
in very carefully. Yes, so that you have the right owners,
you have the right trusts, you have the right documents,
and not that we can solve every problem, because if
(48:46):
you become a behavioral issue, your family may end up
in court. Anyway, that's one of the issues that you
can't really plan for, and so everything else we can
take care of. And if you do your documents right,
we're going to do it for you. In advance of
that crisis happening. We've got about a minute left. Aarin,
just as a general rule, what should people be doing
(49:08):
next to get started.
Speaker 2 (49:10):
Well, they should make an appointment, right, So give us
a call at five point eight four one hundred and
utilize that free consultation and figure out what you should
do right or did you say.
Speaker 1 (49:22):
Free, I did say free consult no obligation, no cost.
You can come and talk to Aaron myself one of
our associates, and we can help you through this process.
So again, September thirtieth, I want to just shout that
out one more time. Our Trust Administration Workshop. Please join us.
We're at the Albany Chamber of Commerce at noon on
(49:42):
September thirtieth to talk about trusts. Hugh Johnson coming back
October fourth. Aaron, thanks for joining me here in studio today.
Thank you all for listening, and we hope you can
listen every Saturday at nine am to Talk Radio WGY
and Life Happens thanks for listening,
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